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    April 12, 2023 HUMAN RIGHTS

    Antiracist Parole Reform Is Past Due

    by Jason D. Williamson

    On January 18, 2023, as the New York legislative session got underway, hundreds of organizers, advocates, and concerned residents from across the state gathered in Albany to celebrate the homecomings and accomplishments of dozens of formerly incarcerated people who have been granted parole in recent years. The gathering, organized by the People’s Campaign for Parole Justice—a statewide coalition of advocacy organizations dedicated to reimagining the parole system—also served as an opportunity to renew the ongoing push for parole reform, with the goal of creating a more equitable and transparent system that offers meaningful opportunities for release for all those who are (or should be) eligible.

    Specifically, the People’s Campaign is urging lawmakers to pass two critical pieces of legislation that would expand parole eligibility for elderly incarcerated individuals (the Elder Parole Bill) and rework parole release standards to better account for the emotional, spiritual, and/or educational growth that a person may have undergone while incarcerated (the Fair and Timely Parole Bill). In addition, advocates will continue to implore the governor’s office to appoint new and diverse candidates to serve on the Parole Board who can bring a fresh perspective to the process.

    And although there are many aspects of the criminal legal system that need to be reformed, and ultimately abolished, a functioning parole system is particularly important to any serious effort to decrease bloated prison populations. This is especially true because (short of a gubernatorial pardon) parole is the only avenue to release for those serving sentences with a maximum of life in prison.

    A functioning parole system is particularly important to any serious effort to decrease bloated prison populations.

    A functioning parole system is particularly important to any serious effort to decrease bloated prison populations.

    JUSTINAS VIA ADOBE STOCK

    But while transforming the parole system in New York could benefit all parole-eligible individuals currently serving time in a state correctional facility, such a transformation could have a particularly profound impact on Black and Latinx inmates and their communities. Not surprisingly, there are significant racial disparities in parole release rates across the state. Like every other facet of the criminal legal system, people of color are disproportionately affected by persistent racial bias (conscious and unconscious) that infects both the parole system as a whole as well as the judgment of the individual parole commissioners tasked with making release decisions. The hard data confirms this longstanding reality.

    In 2021, the Center on Race, Inequality, and the Law at New York University (NYU) Law School, in partnership with the Parole Preparation Project, released a groundbreaking report entitled The Problem with Parole: New York State’s Failing System of Release (Report), which provides data that lays bare the stark realities and persistent dysfunction underlying the parole system.

    But first some context. As of November 29, 2022, there were a total of 31,213 people locked inside 44 state prisons across New York. See N.Y. State Dep’t of Corr. & Cmty. Supervision, DOCCS Fact Sheet (Nov. 1, 2022). According to the most recent Under Custody report by the New York State Department of Corrections and Community Supervision (DOCCS), of the total prison population, approximately 12,400 people are serving indeterminate sentences, meaning that they were sentenced to a range of years (e.g., 5 to 15 years), with the possibility of parole after they have served the minimum number of years. Another 7,130 people have been sentenced to a maximum of life in prison, with the possibility of parole after serving a minimum term (e.g., 15 years to life). And 305, or roughly 1 percent of the state’s incarcerated population, are serving life sentences without the possibility of parole. See N.Y. State Dep’t of Corr. & Cmty. Supervision, Under Custody report as of Jan. 1, 2021 (April 2022). For perspective, at the end of 2021, 23 states had smaller total prison populations than New York’s indeterminate population alone. See Vera Inst. of Just., People in Prison in Winter 2021–22, at 3-4 (February 2022). As such, the vast majority of individuals currently incarcerated in New York will have an opportunity to appear before the Parole Board at some point to advocate for their release. And that means that the actions of the Parole Board have determined—and will continue to determine—the fate of a significant number of incarcerated people.

    Further, New York exemplifies the longstanding disparities in incarceration rates playing out across the country. Indeed, as of 2019, more than 70 percent of those locked in New York state prisons were Black or Latinx, despite comprising less than 37 percent of the state’s total population. See NYU Center on Race, Inequality & the Law and Parole Preparation Project, The Problem with Parole: New York State’s Failing System of Release, p. 5 (2021).     

    In light of those numbers, the racial disparities in release rates, while still jarring, are unsurprising and consistent with disparities across the system. According to the Report, between January 2018 and January 2020, 46 percent of white parole applicants were granted release, compared to just 39 percent of applicants of color. A deeper dive into the numbers makes the disparities even more glaring. Some 43 percent of white applicants appearing before the Board for the first time were granted release, while only 33 percent of first-time Black or Latinx applicants were successful on their first attempt. Moreover, “[r]elease rates for applicants of color have been lower regardless of their age at the time of the interview or how old they were at the beginning of their imprisonment, both of which closely relate to how much a person has grown and changed.”

    It is also worth noting that a shocking 62 percent of incarcerated people of color in New York are serving indeterminate sentences with a maximum of life in prison, leaving them at the mercy of the parole system if they ever hope to be released. To put that number in context, consider that less than a quarter of the total prison population is serving such sentences. 

    The Report also highlights the regional disparities in parole release rates, which can serve as a telling proxy for race and ethnicity. Between October 2017 and October 2019, those incarcerated for crimes originating in the more urban, downstate areas of Westchester and New York City were denied parole approximately three times before being released, resulting in their spending, on average, more than four years in prison beyond their minimum sentences. “By contrast, people convicted in [more rural] upstate counties were denied parole 2 times and forced to serve close to 3 years past their minimum sentence on average.” These regional disparities are not only devastating for the individuals seeking release but also have a detrimental impact on their communities, as their families remain incomplete in their absence, and their communities’ collective political and economic power is severely diminished over time.

    Of course, as the Report notes, these disparities are nothing new and have persisted even in a time of growing recognition of this country’s unhealthy and destructive addiction to mass incarceration. Despite the momentum that has developed around criminal legal system reform over the last decade—from policing to bail reform to the emergence of the “progressive prosecutor” movement—disparities in parole release rates have remained, even while the total number of people in prison may have decreased. Based on a New York Times analysis of data from 2013 to 2016, “41% of white people with no prior prison sentences convicted of third-degree burglary were paroled, compared to just 30% of similarly situated Black and Latinx people.” Further, “[a]mong [people] under 25 who had no prior state prison sentences, the Parole Board released 30 percent of whites but only 14 percent of blacks and Latinos.”

    Sadly, the current rhetoric around rising crime rates, particularly in New York City, suggests that parole releases will become even more rare in the coming months and years, and disproportionately so for applicants of color, unless swift action is taken to make the system more equitable. In addition to passing the Fair and Timely Parole and Elder Parole bills, there must be a concerted effort to change the composition of the Parole Board to better reflect the diverse backgrounds and experiences of both parole applicants and the general public. To be clear, this does not mean simply populating the board with people of color; it means incorporating people with diverse economic backgrounds, work histories, and life experiences.

    Moreover, the executive law governing parole proceedings must be amended to ensure that the focus of those proceedings is on the personal transformation of the applicant rather than on the nature of the person’s crime of conviction. As the Report observes, “Commissioners should not be asked to justify release but instead should be asked to justify why continued incarceration is appropriate. Changing our default question from ‘why release?’ to ‘why continue confinement?’ is critical to ensuring the release of people who pose no risk to public safety.”

    This shift is especially important for those serving indeterminate sentences with a maximum of life in prison, a disproportionate number of whom are Black or Latinx, whose crimes of conviction will typically be considered more serious and, by extension, more of an obstacle to release under the current regime.

    Until lawmakers develop the political will to make these (and other) essential changes to the parole system, countless individuals who have paid their debt to society and transformed their lives in the process will be denied a meaningful opportunity to return to their families and contribute to the well-being of their communities. And, as usual, Black and Latinx people will bear the brunt of the harm caused by the state’s inaction.

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    Jason D. Williamson

    Executive Director, Center on Race, Inequality and the Law, New York University School of Law

    Jason D. Williamson is the executive director of the Center on Race, Inequality, and the Law at New York University School of Law. The Center was created to confront the laws, policies, and practices that lead to the oppression and marginalization of people of color and uses public education, research, advocacy, and litigation to highlight and dismantle structures and institutions that have been infected by racial bias and plagued by inequality.