In New York, the provisions regarding pardon and parole laws are provided under NY CLS Exec § 15 through § 19, NY CLS Exec § 259 through NY CLS Exec § 259-s, and NY CLS Const Art IV, § 4. 1. NY CLS Exec § 259-b provides that in the state division of parole a state board of parole (“Board”) should be created. The Board should consist of not more than nineteen members appointed by the governor with the advice and consent of the senate.
Duties of the Board
The Board will possess the powers and duties such as[i]:
- determine which inmates serving an indeterminate or determinate sentence of imprisonment should be released on parole, or on medical parole, and when and under what conditions;
- determine which inmates serving an indeterminate or reformatory sentence of imprisonment should be released on parole and when and under what conditions;
- determine the conditions of release of the person who will be presumptively released, conditionally released or subject to a period of post-release supervision under an indeterminate or determinate sentence of imprisonment;
- determine the conditions of release of the person who can be conditionally released or subject to a period of post-release supervision under an indeterminate or determinate sentence of imprisonment. Also to determine which inmates serving a definite sentence of imprisonment can be conditionally released and when and under what conditions;
- determine, as each inmate is received by the department of correctional services, the need for further investigation of the background of such inmate and cause such investigation as can be necessary to be made as soon as practicable, the results of such investigation together with all other information compiled by the division and the complete criminal record and family court record of such inmate to be filed so as to be readily available when the parole of such inmate is being considered;
- write guidelines for making parole decisions as required by law, including the fixing of minimum periods of imprisonment or ranges for different categories of offenders. Such written guidelines can consider the use of a risk and needs assessment instrument to assist members of the Board in determining which inmates can be released to parole supervision;
- study or cause to be studied the inmates confined in institutions over which the Board has jurisdiction, so as to determine their ultimate fitness to be paroled;
- the power to revoke the presumptive release, parole, conditional release or post-release supervision status of any person and to authorize the issuance of a warrant for the re-taking of such persons;
- grant and revoke certificates of relief from disabilities and certificates of good conduct as provided for by law;
- when requested by the governor, of reporting to the governor the facts, circumstances, criminal records and social, physical, mental and psychiatric conditions and histories of inmates under consideration by the governor for pardon or commutation of sentence and of applicants for restoration of the rights of citizenship;
- for the purpose of any investigation in the performance of duties made by it or any member thereof, issue subpoenas, to compel the attendance of witnesses and the production of books, papers, and other documents pertinent to the subject of its inquiry;
- authorize any members and hearing officers to administer oaths and take the testimony of persons under oath;
- make rules for the conduct of its work, a copy of such rules and of any amendments to be filed by the chairman with the secretary of state;
- where a person is entitled to jail time credit, to certify to the person in charge of the institution in which such person’s sentence is being served the amount of such credit; and
- transmit a report of the work of the Board for the preceding calendar year to the governor and the legislature annually.
Grounds of release on Parole
NY CLS Exec § 259-h provides that where a person is under one or more of the following sentences imposed pursuant to the penal law the person will be eligible for release on parole. Such matters will include:
- Life imprisonment for the crime of murder in the first,
- Life imprisonment for the crime of kidnapping,
- Death commuted to life imprisonment for the crime of murder in the first degree or for the crime of kidnapping,
- Any such person who is not otherwise or who will not sooner become eligible for release on parole under such sentence will be or become eligible for release on parole after service of a minimum period of imprisonment of twenty years,
- A minimum term of twenty years or more and a maximum of natural life for the crime of murder in the second degree,
- A minimum term of twenty years or more and a maximum of natural life for the crime of kidnapping,
- A minimum term of fifteen years or more and a maximum of natural life for a third conviction of a felony under laws relating to narcotic drugs,
- A minimum term of fifteen years or more and a maximum of natural life for a fourth conviction of a felony,
- Any person who is not otherwise or who will not sooner become eligible for release on parole under such sentence will be or become eligible for release on parole after service of a minimum period of imprisonment of fifteen years.
Conditions for Parole
Conditions of parole often include things such as obeying the law, reporting all encounters with police officers, refraining from drug and alcohol use, avoiding contact with the parolee’s victims, obtaining employment, and maintaining required contacts with a parole office.
Authority of the Board
NY CLS Exec § 259-o provides that ‘preliminary violation hearing’ means a hearing to determine whether there are reasonable grounds to believe that a person released on parole has violated the conditions of his/her parole.
Pursuant to NY CLS Exec § 259-o, whenever there is reasonable cause to believe that a person released on parole in another state but under the parole supervision of New York, a member or designee of the Board, upon request of the sending state, can conduct a preliminary violation hearing unless such hearing is waived by the parolee.
Whenever there is reasonable cause to believe that a person released on parole in New York but under the parole supervision of another state, any person duly authorized in such other state to conduct preliminary violation hearings, upon request of the chairman of the Board, can conduct such hearing, unless such hearing is waived by the parolee. The preliminary violation hearing and the determinations made thereat will have the same force and effect as preliminary violation hearing conducted in New York by the Board[ii]. Whenever a preliminary violation hearing is conducted in another state pursuant to this section, the alleged violator should be afforded a final hearing.
Pursuant to NY CLS Const Art IV, § 4, the governor will have the power to grant reprieves, commutations and pardons after conviction, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations, as the governor thinks proper. However, it will be subject to such regulations that are provided by law relative to the manner of applying for pardons. Upon conviction for treason, the governor will have power to suspend the execution of the sentence, until the case is be reported to the legislature at its next meeting, when the legislature can either pardon, or commute the sentence, direct the execution of the sentence, or grant a further reprieve. The governor should annually communicate to the legislature each case of reprieve, commutation or pardon granted, stating the name of the convict, the crime of which the convict was convicted, the sentence and its date, and the date of the commutation, pardon or reprieve.
NY CLS Exec § 15 provides that the governor has power to grant reprieves, commutations and pardons, after conviction, for all offenses, except treason and cases of impeachment, upon such conditions, and with such restrictions and limitations, as the governor thinks proper. The governor should annually communicate to the legislature, each case of reprieve, commutation or pardon; stating the name of the convict, the crime of which s/he was convicted, the sentence and its date, and the date of the commutation, pardon or reprieve[iii].
NY CLS Exec § 18 provides that if any person who has been discharged from imprisonment, by virtue of any parole, conditional pardon, or conditional commutation of his/her sentence, violates such condition or neglect to perform it, the person’s parole, pardon or commutation will be void and s/he will be remanded to the place of his/her former imprisonment and there confined for the unexpired term for which s/he had been sentenced. Determination of the violation of such parole, pardon or commutation and re-incarceration will be in the manner prescribed in the correction law.
Pursuant to NY CLS Exec § 19, upon motion duly made, the judgment of conviction can be set aside and the indictment, information or complaint dismissed by the court in which the defendant was convicted, when the defendant receives a pardon from the governor. The pardon should state that it is issued on the ground of innocence of the crime for which s/he was convicted and further stating that such finding of innocence is based upon evidence discovered after the judgment of conviction was rendered and after the time within which to make a motion for a new trial on newly discovered evidence had expired. Such setting aside of a judgment of conviction and dismissal of an indictment, information or complaint against a defendant will place the defendant in the same position as if the indictment, information or complaint had been dismissed at the conclusion of the trial by the court because of the failure to establish the defendant’s guilt beyond a reasonable doubt.
[i] NY CLS Exec § 259-c.
[ii] NY CLS Exec § 259-o.
[iii] NY CLS Exec § 17.