Release Aging People in Prison

RAPP ( promotes the release of people in New York State prisons who are age 50 and older, have served considerable time, and pose no threat to public safety. We urge the governor and other policy-makers to use existing mechanisms—parole, compassionate release, and clemency— to release these elders, and to pass the S.A.F.E. Parole Act to increase parole release rates for everyone.

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David Lenefsky in the NY Law Journal: Fix Parole

Dec 8, 2014 | by admin

There wouldn’t be so many elders incarcerated in NY prisons if the parole board worked as it should.

The representation of two inmates who were repeatedly denied parole is sufficient experience to recognize that the law of parole and the practice of the Board of Parole badly need fixing.

Craig Winchell at age 16 murdered his 16 year old girl friend. He was sentenced to 18 years to life. Philip Rabenbauer at age 30 murdered his wife. He was sentenced to 15 years to life. Both were model inmates, doing everything that society wants an inmate to do: accept responsibility; program effectively; achieve academically; and relate maturely with staff and other inmates. Both had employment skills and extended community ties. Yet, Winchell was denied parole 10 times before his release, and Rabenbauer is waiting for his ninth hearing.

In both cases, I filed an Article 78 petition and in both the court ordered a new parole hearing.1 In both cases, the board again denied parole. After the second Winchell Article 78 was granted,2 the board, which included its chair, granted parole. The second Rabenbauer Article 78 was granted by the court on Nov. 12, 2014. The court ordered a new parole hearing within 30 days and a decision within 15 days thereafter.3

Surely, it would be useful to know how many inmates who have served their minimum sentence with good institutional records have been denied parole. The Department of Corrections and Community Supervision knows how many inmates have been denied parole in any given year. But they do not know how many with good records have been denied parole twice, three times or more. In an age of megadata, not knowing the financial cost of incarcerating inmates with good records who have served their minimum sentence is managerial malpractice.

In essence, when a board denies parole to inmates with good records, it acts as an appellate sentencing court, a role neither intended nor appropriate.

A major advance in the practice of parole would be accomplished if boards that deny parole gave the inmate specific program goals and perhaps the inmate would be incentivized to achieve them pending the next hearing. Every correctional facility has available counseling programs covering a wide variety of issues, for example, anger management, drug and alcohol dependence and family responsibility.

At the same time, setting a new hearing date should be coordinated with setting program goals. The current prevailing practice of setting a new hearing date every two years is not mandated. Two years is the maximum; a board can set any earlier date it wants. Boards should recommend a variety of program goals appropriate for a particular inmate and set the next hearing to a date sufficient for the inmate to accomplish them.

The next hearing could then focus on the programming activities rather than on the underlying crime, the subject which currently dominates most hearings, no matter how long ago the crime was committed and the inmate’s accomplishments during incarceration.

Parole hearings today are conducted through video conferencing, rather than face-to-face. Parole commissioners apparently favor video conferencing, inmates do not. While there is not much research on the issue of how structural features of a parole hearing influence parole decisions, the limited research finds that inmates participating in person are more likely to be paroled than those appearing in video hearings. Video conferencing may “have less intimate interactions, resulting in reduced exchanges of information and decreased interpersonal connections.”4

There appears to be a split at least between the First and Second Departments on the issue of whether parole can be denied solely on the basis of the crime. In the First Department, King v. New York State Division of Parole, appears to say it can not.5 In the Second Department, Matter of Hamilton v. New York State Division of Parole, seems to say it can.6 Obviously, this issue needs a dispositive resolution either by the Court of Appeals or the Legislature.

Good jurisprudence would dictate that parole cannot be denied solely on the basis of the crime; otherwise, why have a sentencing judge, let a parole board decide the sentence. But, if parole can not be denied solely on the basis of the crime, then the Legislature needs to fix the statute that presently mandates that parole can not be granted solely on the basis of good conduct.7

There is obviously a logical contradiction between a mandate that parole can not be granted solely on the basis of good conduct, and that parole can not be denied solely on the basis of the serious nature of the crime.

Currently, the office of the prosecuting district attorney can write a letter to the board objecting to parole. That letter is confidential and thus beyond an inmate’s comment. Absent an inmate threatening a district attorney there is no reason to treat such a letter as confidential. District attorneys are public figures just as parole commissioners are. An inmate should have an opportunity to comment. Often, the assistant district attorney who prosecuted the case has left office and is not the prosecutor submitting the letter.

There appears to be a recent change in both board willingness to grant parole and the willingness of the courts to scrutinize board decisions and order a new parole hearing. This all fits well within the heightened interest in how to responsibly reduce the incarcerated population.

One is entitled to be optimistic.


1. Matter of Winchell v. Evans, 27 Misc.3d 1232(A), 910 N.Y.S.2d 766, 2010 (LaBuda, J.); Matter of Rabenbauer v. New York State Department of Corrections, 2013 WL 6244184 (N.Y.Sup.Ct., Sullivan County, LaBuda, J. 2013)

2. Matter of Winchell v. Evans, 32 Misc 3d 1217(A), 934 N.Y.S.2d 37, 2011 NY Slip Op 51347(U) (LaBuda, J.)

3. In the Matter of Rabenbauer v. Annucci, 2014 N.Y. Misc. LEXIS 4824; 2014 NY Slip Op24347 (Sup Ct Sullivan Co 2014, LaBuda, J.)

4. Tewksbury, Richard and David Patrick Connor, Corrections Today, June/July 2012, p.54-56

5. King v. New York State Division of Parole, 190 AD2d 423, 598 N.Y.S.2d 245 (1st Dept. 1993), aff’d 83 NY2d 788, 610 N.Y.S.2d 954

6. Matter of Hamilton v. New York State Division of Parole, 119 AD3d 1268, 990 N.Y.S.2d 714 (3rd Dept.2014)

7. Executive Law, Section 259-i(2)(c)(A)

David Lenefsky is an attorney in New York. Kevin Barnes-Ceeney, director of Research, Prisoner Reentry Institute, John Jay College of Criminal Justice, contributed ideas for this article.
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