Even Model NYS Inmates Face Steep Barriers to Parole

In May of this year, Craig Crimmins appeared before the parole board in New York for the eighth time. He has served nearly 34 years in prison on a 20-to-life sentence for murder. Every two years since the year 2000 he has gone before the board, and every time he has been denied.

“I tell you, it’s easier to do two years than it is to do the two days you have to wait after seeing the board,” Crimmins said during a recent interview at the Shawangunk Correctional Facility, a maximum security prison in Walkill. Crimmins was convicted in 1980 for killing Helen Hagnes Mintiks, a violin player at the Metropolitan Opera House, where he worked as a stagehand. The woman went missing during intermission at a performance and was later found naked and bound at the bottom of an air shaft. For weeks before police identified Crimmins as the killer, the New York City tabloids ran story after story about, “The Phantom of the Opera Killer.”

Thirty-four years ago, Crimmins was a 21-year-old illiterate drug and alcohol abuser with no prior criminal record who told the judge, “Something in my head just snapped.” Today, at 55, he is a humbled inmate who earned an Associate’s degree in substance abuse counseling and works in the prison commissary. “Every time they turn me down, it’s always about the nature of the crime, nothing about who I am now or what I’ve done since then,” he says. “I could have cured cancer, they wouldn’t care.”

What is obvious to Crimmins and many people who follow the criminal justice system is the simple fact that crimes that receive a disproportionate amount of media attention are judged more harshly by parole boards than similar offenses that are off the public radar.

Parole appears to be getting harder to get in New York State. As the state’s prison population has fallen in recent years—it dropped 14 percent from 2007 to 2013—in part because of reforms to the Rockefeller drug laws, it is likely that the typical inmate seeking parole today committed a more serious crime than the average parole applicant in 2005.

But the decline in parole approvals is still striking: From 2005 to 2013, the percentage of parole applicants who won approval fell from 52 percent to 24 percent.

An unwritten rule

While precise figures are difficult to nail down, between 2010 and 2013 the board saw an average of 10,000 parole applicants annually from a prison population hovering around 85,000. They turned down, on average, three out of four applicants.

“It’s not like it’s written down anywhere, but every board member knows, if you let someone out and it’s going to draw media attention, you’re not going to be re-appointed,” said Robert Dennison, a former parole board chairman and commissioner. And Dennison should know. He became commissioner when a vacancy opened up after his predecessor presided over the release of Kathy Boudin, who was sentenced to 20-years-to-life for her role in a botched robbery in 1981 of an armored car in Rockland County that resulted in the deaths of two police officers and a security guard.

On her third appearance before the board, Boudin was granted parole in 2003. The governor at the time, George Pataki, publicly denounced the decision and within months replaced the former chairman, Brion Travis, with Dennison. The two commissioners who voted to release Boudin were also replaced on the board.

“So everybody knows, if you like the job and you want to keep the job, you don’t vote to release people who are going to wind up in the media the next day,” Dennison says.

The decision-makers

Being a parole board member is by most estimates a pretty cushy gig. The current base salary is over $100,000 per year for roughly three days’ work per week plus the added perks of health benefits, a state car with a placard and per-diem hotel and meal expenses.

Jim Murphy is a former county legislator in Schenectady County and a longtime volunteer with the New York chapter of CURE, Citizens United for Rehabilitation of Errants, a national organization started in Texas in 1972 that now has chapters in 40 states. For the past four years, Murphy has been tracking the statistics of the parole board and plugging them into spreadsheets to determine the patterns in the parole process that are apparently not tracked by the board itself.

He believes he will soon be able to show a pattern emerging that can predict which parole board commissioners are more or less likely to grant or deny parole. “A good number of these people—not all of them—but a good number seem to be making their decisions based on the politics of the case.

“To me, the biggest issue is, philosophically, what is the parole board meant to do? The parole board’s role was not meant to re-judge the crime; the parole board’s role was to determine whether a person is ready for release or not,” he says. “As it is, many members of the Parole Board just look at the crime and determine whether that sentence was long enough.”

When media publicity about a past crime is compounded by impact statements from victims’ families, parole is virtually impossible for someone with a sentence ending in a “to-life” suffix. A conundrum for prisoners and their advocates is the fact that those parts of their parole files are sealed.

In fact, any correspondence to the parole board opposing the release of an inmate is kept in a confidential folder that prisoners cannot access, whether the letters are from victims, their relatives or the judges and prosecutors. Other items frequently placed into a folder include newspaper clippings, but inmates have no way of knowing the entirety of the information the board commissioners are using to arrive at their decisions. Crimmins says he has heard that his victim’s parents have both died and that her former husband re-married and moved somewhere in Europe. A search of online databases turned up no information as to their whereabouts.

Attempts at reform

In December 2013 the New York State Assembly Committee on Corrections conducted a hearing on the parole system, during which Columbia Law Professor Philip M. Genty took state officials to task for failing to follow through on reforms that were implemented in 2011. That year the Legislature amended Article 259 of the Executive Law mandating parole officials to, “… establish written procedures incorporating risk and needs principles to measure the rehabilitation of persons appearing before the board.”

“Despite a clear legislative mandate, the board has, to date, failed to promulgate new regulations containing the written risk and needs assessments procedures required by [law],” Genty told the committee. “As a result, the Parole Board is still operating under an obsolete set of regulations dating back to 1980. This is simply inexcusable.”

State Assemblyman Daniel J. O’Donnell who chairs the Committee on Corrections, says that the Parole Board has taken the position that they don’t have to comply with the legislature’s mandate; a challenge is pending before the New York State Court of Appeals. O’Donnell also says he is proposing legislation in the upcoming 2015 session to address the issue.

“I do have a bill that would eliminate one of the things that the parole board seems to use for high profile cases, that ‘releasing them would deprecate the seriousness of the offense,’ which to me essentially means that the parole board gets to re-sentence someone,” he says.”

The media role

O’Donnell is particularly concerned about the situation facing inmates like Crimmins, convicted of high-profile crimes in which judges did not impose a maximum sentence but where parole commissioners continue to sit in judgment of the inmate’s freedom.

“One of the problems is the family of the defendant hears ’20’ and the family of the victim hears ‘life,'” O’Donnell notes. “The other problem, and it’s a problem with the media, is that they don’t seem to understand how the system works.”

That sometimes means the parole system is blamed for releasing people over which it had no control. “Many sentences release inmates to the supervision of the parole division without them ever appearing before the parole board, like the man who stabbed two children in a housing project elevator in Brooklyn this summer. A similar case is the recent killing of Rochester police officer Daryl Pierson, the first officer from that city to be killed in the line of duty since 1959. While several media outlets ran headlines and stories employing the phrase, “recent parolee,” few went to the trouble of explaining that the killer, Thomas Johnson, had served time, was released to parole, violated his parole, served an additional year and was wanted for yet another parole violation when the shooting occurred. He never saw a parole board.

O’Donnell agrees that just because a crime is high-profile doesn’t guarantee that release for inmates serving long sentences is automatically appropriate. John Lennon’s assassin, Mark David Chapman, faces not just public outrage over killing a music icon, but “a legitimate fear on behalf of Yoko Ono and her children that that would be a threat to their safety,” O’Donnell says.

“But somebody who was high on drugs and got involved in a robbery where someone died, I don’t necessarily believe that that’s the case so I think the board should be required to make more substantive determinations, particularly when they’re so vastly beyond the minimum.”

The cost of incarcerating prisoners in New York is about twice the national average according to a 2012 study released by the Vera Institute for Justice. In a survey of 40 states which participated, the national average was $31,286 inmate, while New York State’s was about $60,000. The cost of supervising an inmate on parole is estimated at about one-tenth the cost of keeping them in prison.

Some see board as too soft

Not all state legislators share O’Donnell’s views. In a clear example of the downstate-upstate divide, state Sen. Michael Nozzolio has derided the parole board as being too soft on releasing inmates. While O’Donnell’s district covers the upper-west side of Manhattan, Nozzolio’s covers a swath of New York between Rochester and Syracuse. After the board released an inmate named John Edward Brown six months shy of his three-year sentence for assaulting his infant son, Brown murdered his 34-year-old girlfriend Helen Buchel and her 12-year-old daughter Brittany Passalacqua in Geneva, in the center of Nozzolio’s district.

“It is unconscionable that these horrific crimes could have been prevented if the New York State Parole Board had taken a harder stance on crime and against individuals who commit violent and horrific crimes against society,” Nozzolio said shortly after the 2009 murders. “Clearly the New York City-driven agenda to release criminals into our streets has failed.” Brown is now serving a 40-years to life sentence.

The gnarly issue of reforming the way parole is handled has been batted around in the state legislature from both perspectives for decades, yet little by way of substantive reform has taken hold. Like so much of Albany’s work product, bill after bill gets proposed with great fanfare then dies a slow quiet death in committee. The most recent is Senate Bill 1128 and its companion in the Assembly, 4108, known as the Fair Parole Act, which would modify interview procedures and mandate the disclosure of parole records. It was introduced and referred to committee in January 2013, died there, and re-introduced at the beginning of this year and referred back into committee, where it died again this year.

“They’ll never pass that bill, it doesn’t stand a chance,” says Dennison, the former board chairman. “Let’s face it, if you’re an elected official and you’re seen as coddling prison inmates, your opponent is going to pounce all over you with that. Forget about the fact that there’s a larger, more nuanced argument to be made about the long-term interests to society as a whole.”

Rare court challenges

When an inmate is denied parole, he or she has the right to appeal the decision, first at the administrative level and then in the courts, but it is virtually unheard of for a New York State court to overturn a parole board decision.

A prime example was the recent case of Samuel Hamilton, who was denied parole for the seventh time in August of 2012. Hamilton and two friends set out to mug a man who turned out to be an off-duty transit police officer named James Carragher in 1982. One of Hamilton’s accomplices got into a gun battle with Carragher, who was shot dead. Hamilton was also shot and captured, while the other two escaped. Hamilton denied knowing that Carragher was a police officer and refused to cooperate with the police in identifying the other two men. Although the prosecutor acknowledged that Hamilton was unarmed and not the shooter, Hamilton was convicted of murder and given 18-years-to-life in prison.

When he went before the parole board in 2012 he had letters of support from more than 20 corrections officers, a former prison superintendent and the prosecutor who put him away. He had earned a Master’s degree in prison, mentored and volunteered in numerous programs and was by all accounts a model prisoner. Still, the three-member parole panel denied his parole 2-1. Of the two commissioners who voted no, one was a retired police officer, and the other was a former assistant district attorney.

Hamilton filed a lawsuit challenging the decision, and in July of this year a five-judge appellate panel voted 3-2 in favor of the parole board. Justice Christine Clark who wrote the majority opinion cited a passage of law that is used again and again in parole denials, that reads: “…the Board must consider whether there is a reasonable probability that, if such inmate is released, he [or she] will live and remain at liberty without violating the law, and that his [or her] release is not incompatible with the welfare of society and will not so deprecate the seriousness of the crime as to undermine respect for law.”

“So long as the Board violates no positive statutory requirement,” the judge wrote, “its discretion is absolute and beyond review in the courts.”

But the two judges who disagreed penned scathing dissents of the decision. “I believe that our own Court has established an overbroad rule in appeals from denials of parole. The majority asserts that this clearly extraordinary case is not susceptible to reversal upon judicial review; we have then wholly abdicated our critical judicial function, and the courthouse doors are closed,” wrote Presiding Justice Karen Peters.

Her colleague, Justice Elizabeth Garry, wrote a single paragraph dissent that read, “No sound basis supports this individual’s continuing incarceration. While our review powers are limited, they should not be applied in a manner that is so inordinately deferential as to render the appellate review process a mere sham.”

Interestingly enough, a few weeks later on August 19th of this year, a three-member parole board voted unanimously to release Hamilton.

In Crimmins’ case, when asked whether he thought he would have been paroled long ago had he killed a citizen in his Bronx neighborhood, he replies, “I think it’s more about the location than the person, and the media coverage, of course. That place is a playground for the rich and famous. The fact that it happened there is why I’m still here.”

He says that after his latest denial he has, for the moment, given up hope that he will ever be released. “You know, you always hear that in this country justice is supposed to be blind, but I don’t know. Every time I walk into those parole hearings….,” he reaches up his right hand and mimics the motion of lifting a blindfold just slightly above his right eye, “…I think she peeks.”