If the risk is low, let them go
In an article published by The Indypendent in late June, wrote about the efforts of formerly incarcerated people in New York to pressure the state to address the health care and humanitarian crisis for aging people who still face many more years behind bars. One month after the article was published, one of the incarcerated people featured in the story committed suicide. Here, we republish the original article, along with the follow-up report from The Indypendent below.
BACK IN 1978, Mujahid Farid had already decided to turn his life around when he entered the New York prison system to begin a 15-year-to-life sentence for attempted murder of an NYPD officer.
Held in Rikers Island while his trial was pending, Farid studied for--and passed--a high school equivalency exam. Over the next decade and a half "behind the walls" he earned four college degrees, including a master's in sociology from SUNY New Paltz and another in ministry from New York Theological Seminary.
In the late 1980s he helped establish an HIV/AIDS peer education project that grew into the acclaimed program known as PACE, Prisoners for AIDS Counseling and Education, and began teaching sociology courses to people seeking their alcohol and substance Abuse counseling certification.
By 1993, Farid had served his minimum sentence and was eligible for a hearing before the New York Parole Board. Given how hard he had worked to redeem himself, no one could blame him for being optimistic that they would agree to his release.
Instead, they spent five minutes asking him curt questions focused entirely on his original offense. Then the hearing ended.
"Not one bit of my progress and rehabilitative efforts mattered," Farid recalls. "I was denied parole because of something that was immutable, that could never change."
He was denied parole "again and again," until his 10th attempt in 2011, when he was 61 years old.
"Over the years, the process breaks a lot of people down," he says. "Many take it personally. I realized it was common parole board practice."
NOW AGED 66, Farid recently met me at 8:30 a.m. on a Monday morning at his office in Harlem, where he had been at work since the building opened hours earlier. In a firm and encouraging tone, tinged with polite impatience, he explained how upon his release from prison, he couldn't forget "the broken parole system I had dealt with" and the men he left behind.
New York's prison population has greyed rapidly in the last 15 years. Even as the number of people locked up fell by 23 percent, those aged 50 or older ballooned nearly 85 percent, reaching 9,200 people. This echoes a national trend of the elderly being the fastest growing part of the prison population. By 2030, they will number 400,000, or nearly one-third of the U.S. prison population.
While 50 may not seem that old, most medical experts agree that incarcerated people age much faster than those on the outside. They suffer higher rates of chronic illness and conditions related to drug and alcohol abuse, such as liver disease and hepatitis. Data from the New York Department of Corrections show prisoners aged 51 to 60 have the highest rate of mortality due to illness of any age group behind bars.
Most of these older prisoners are serving long sentences for committing violent crimes. Their first hurdle to release is a parole board that refuses to provide them with fair and objective hearings because of their original offense, even though they have not posed a threat to society in years.
"The parole board is co-opted by the punishment paradigm," Farid says. "Even though the elderly have the lowest of risk of committing a crime upon release, they are being denied similarly to everyone else."
Meanwhile, this public health and humanitarian crisis has gone unaddressed despite a renewed interest in criminal justice reform that has focused narrowly on nonviolent offenders.
So in 2013, Farid founded a group called Release Aging People in Prison, or RAPP.
"We realized we had to change the narrative from talking about long termers and lifers-- which people in the community couldn't really connect with--to talking about the elderly," he says.
RAPP's slogan--"If the Risk is Low, Let Them Go"--draws on the New York Department of Corrections and Community Supervision's own data.
According to the state's most recently available report on recidivism by age, those released after the age of 65 return for new commitment at a rate of just 1 percent, compared to a 40-60 percent return rate for the general prison population.
IN 2011, the same year Farid was released, New York actually passed a law that requires the parole board to adopt a more forward-looking approach when deciding whether to release someone. Tacked onto the budget bill as an amendment, it instructed the board to "establish written guidelines" that include rational standards that measure a potential parolee's current risk to society, in addition to noting their initial crime.
New York is one of at least 23 other states that measures those standards with a risk and assessment tool called COMPAS, which has proven to be more accurate than human intuition in predicting the likelihood that a prisoner will break the law again if freed.
"Even though COMPAS isn't perfect, it gives us an advantage," Farid notes, "because the aging population we are focused on scores low risk."
It seemed like a victory. But even after COMPAS was adopted, the parole board waited until December of 2014 to issue formal rules on how to use the tool in its decisions. Afterwards, most of its denials remained focused on the criminal history of potential parolees.
This was the case for Dempsey Hawkins, who had been denied parole since he became eligible in 2000. Hawkins murdered his teenage girlfriend in 1976 when he was 16 years old. He had spent his entire adult life in prison and made extensive efforts to rehabilitate in the other areas the parole board would consider: he completed counseling programs and educational courses and had an excellent behavior record.
But in 2002, the board said Hawkins had "demonstrated no remorse nor compassion for her family," even though he had written a long letter of apology to the family taking full responsibility for his crime with an extended discussion of shame, remorse and consideration of the family's pain and suffering.
Then in 2004, all but two words of the board's written decision were about the teenager who committed the crime, not the man before them: "We note your positive programming but find more compelling your total disregard for human life."
During the hearing, Hawkins asked if there was anything he could do to "increase my chances for my next hearing." A commissioner responded, "You've done many of the right things. You've continued to program well, and stayed out of trouble. Clearly, there's no, you know, 14-year-old girls here to kill in prison, so we have to consider the crime."
After the 2011 reform, Hawkins continued to be denied parole. In 2012, the board refused his release but noted that "[c]onsideration has been given to the assessment of your risks and needs for success on parole, any program completion, and any satisfactory behavior."
In 2014, board members spent most of his brief hearing asking about the crime he had committed more than 35 years earlier and denied him again.
AT THIS point, Farid's legal instincts kicked in from his days as a jailhouse lawyer.
"I always knew the parole board was contemptuous," he recalls.
He suspected board members were now violating state law by failing to consider all factors in a person's record when deciding whether or not to release them. So he began advising prisoners to file what is called an "Article 78" with the state Supreme Court, which is basically a request for a judge to review a decision made by a New York State agency.
Some judges responded positively and ordered the board to hold a new hearing--called a de novo hearing. Farid realized the parole board would likely issue similar denials. But this would allow a prisoner to then file a contempt of court motion.
"It is not common, especially for someone behind the walls, to get a contempt order in their favor against government authorities," Farid says. "But the dynamics at play now are that the courts feel they are being disrespected by the parole board."
"One of the real positive things about a contempt petition is it allows the person to escape an onerous process called exhaustion," he adds, pausing. "I don't want to lose you on this."
Before a prisoner can even ask a court to review the parole board's decision, they have to complete every other means of appeal. While this process can take as long as a year, he notes, "a judge can review a contempt petition within a month."
In May of 2015, Judge Sandra Sciortino issued the first contempt of court decision for the parole board's "failure to have complied" with her order to give a prisoner named Michael Cassidy a de novo hearing "consistent with the law."
Cassidy was convicted in 1984 of killing his girlfriend and had covered up the murder until her body was discovered. Over the past three decades in prison he had worked hard to redeem himself, and his favorable COMPAS ratings predicted a low risk for violence, re-arrest, absconding or criminal involvement. But after his new hearing, the board again said his release "would be incompatible with the welfare of society and would so deprecate the serious nature of the crime as to undermine respect for the law."
Judge Sciortino responded that while "the Parole Board retains substantial discretion, and need not enunciate every factor considered, a denial that focused almost exclusively on the inmate's crime while failing to take into account other relevant statutory factors, or merely giving them a 'passing mention' [is] inadequate, arbitrary and capricious."
THE STATE appealed. Then about a year later, a second judge held the board in contempt. This time the case involved John Mackenzie, an older prisoner who sought Farid's advice after reading instructions in a packet distributed by RAPP that includes boilerplate samples of how to file a contempt motion.
"It's not a lot of paperwork," he says. "I explain some of the complications a person may encounter so they don't get summarily dismissed."
Mackenzie's motion succeeded.
"It is undisputed that it is unlawful for the parole board to deny parole solely on the basis of the underlying conviction," an exasperated New York Supreme Court Judge Maria Rosa wrote in her May 24 response to the board's denial of parole to Mackenzie. "Yet the court can reach no other conclusion but that this is exactly what the parole board did in this case."
MacKenzie was convicted of murdering a Long Island police officer in 1975, and went on to turn his life around, earning degrees and even establishing a victims impact program. The board has denied him parole eight times since he became eligible in 2000. He is now 69 years old.
"This petitioner has a perfect institutional record for the past 35 years," Judge Rosa wrote in her order, as she demanded to know: "If parole isn't granted to this petitioner, when and under what circumstances would it be granted?"
She ordered the state to pay a $500-per-day fine for each day it delayed giving him another de novo hearing. Again, the state appealed.
In June a higher court dealt reformers a setback when it reversed the Cassidy decision. It said the board had recognized factors other than his original crime when it noted he "had serious alcohol problems since he was a teenager," and concluding he had "a high probability of a return to substance abuse upon his reentry into society" even though he had been sober since 1997.
Cassidy's lawyer Alan Lewis plans to ask the Court of Appeals to reinstate the lower court's contempt finding.
"Every litigant has an obligation to abide by a court's order, government agencies included," Lewis told The Indypendent.
He praised RAPPs work on similar cases, saying, "It raises awareness of the plight of aging inmates and the injustices sometimes suffered by them."
"Judges are starting to realize there is this huge problem," agrees MacKenzie's lawyer, Kathy Manley. She says other attorneys have sought her advice and are filing additional contempt motions.
AS THESE contempt cases wind through the legal system, no judge has taken the next step to override the parole board and release a prisoner who has been denied a fair hearing, out of deference to separation of powers. But Manley notes this concept can be applied in another way.
"If the original judge sentences a person to 30-years-to-life, then once they reach the minimum point there is an expectation they should be released if they've done well," Manley explains. "But in my client's case the judge said the board is applying its own penal philosophy."
The former chair of the state's parole board, Edward Hammock, made a similar point in an essay titled, "A Perspective on Some Procedures That Unfairly Delay Prisoner Release."
"Some of these determinations fly in the face of judicial sentencing and sentences that flow from plea agreements between the court, counsel for the defendant, and the prosecutor," Hammock observed.
Ultimately, the parole board falls under the authority of the executive branch. Its members are appointed by the governor for 6-year terms. But beyond backing the reform in 2011, Governor Andrew Cuomo has done little to address the problem, and cut the board down from 19 to 14 members during his first year in office and appointed as its chair Tina Stanford, former Director of the state's Office of Victim Services. She has been Chairwoman of the Crime Victims Board since 2007 and before that was an Assistant District Attorney and prosecutor.
Advocates note New York Attorney General Eric Schneiderman's office could also decline to file appeals as it represents the board in the contempt of court cases. RAPP is currently approaching state lawmakers to ask them to request that Schneiderman issue an advisory to the board in response to the contempt rulings.
Meanwhile these lawmakers continue to consider additional legislative reform, such as the SAFE Parole Act, which would require parole hearings to take place in person instead of via video stream. It would also record the hearings, which are currently closed to the public. But this is the second year it failed to reach a vote.
AS THE legislature's 2016 session ends and advocates wait to hear from the attorney general whether he plans to reign in the state's parole board, RAPP continues its community outreach. When the group's older members meet with policy makers and the public, their very presence helps give a face to elders who are still behind bars and could be included in the push to end mass incarceration.
At a recent RAPP meeting, 71-year-old Abdul Rahman, who served 45 years in prison, apologized for being late, noting he was suffering from a cold that had "slowed me down." At the same time, he pulled out a stack of business cards he collected after speaking to advocates for the elderly in Brooklyn.
"Many of them approached me afterwards with great interest," he said.
The meeting was a mix of people over age 60 who had been released from prison in recent years or had loved ones still inside, and interns in their twenties. One asked for advice on discussing the needs of elders during an upcoming exchange with the city's Department for the Aging or DFTA.
"They should be ready for more people getting out than before," Farid responded.
"Emphasize their post-prison potential and the contributions they can make to society," added Laura Whitehorn. "People should be judged on who they are now."
Whitehorn spent 14 years behind bars for a conspiracy to blow up symbols of domestic racism and U.S. foreign policy, and has helped ensure aging political prisoners and their analysis are included in RAPP's efforts.
This comes across in the lineup of a July 9 event RAPP is hosting with the Senior Citizen & Health Committee of Community Board 12 in Queens, an area that is home to 10 senior centers and where many former inmates are being released. The event includes a workshop titled "Breaking the Cycle of Permanent Punishment," and one of the speakers is Sekou Odinga, a former member of the Black Liberation Army who spent 33 years in federal and state custody.
"We incorporate the political prisoner issue in our work because we are dealing with the punishment paradigm as the root of what we have to get at," Farid notes.
In early June, a former Black Panther locked up on charges related to his activities more than three decades ago was denied parole, and another lost his Article 78 challenge: Robert Seth Hayes and Maliki Shakur Latine, who both have at exemplary records, and COMPAS scores that show them to be at low risk of reoffending. Hayes suffers from Hepatitis C and Type II diabetes.
"These are the people who I consider to have been the canaries in the coal mine," Farid says. "I don't think we're going to really see anything substantive take place unless we see it happen with them."
It is another example of how RAPP is making sure that no one is left behind.
"It's not about getting handrails in the prisons," Farid says of RAPP's strategy. "It's about getting people out."
Then he turns to answer the phone call of a prisoner who says he's been denied parole, again.
First published at The Indypendent.
Update: After the suicide of John MacKenzie, one of the incarcerated people featured in this article, The Indypendent published this follow-up story on August 10:
ONE OF the men featured in The Indypendent's July cover story about aging prisoners who are denied release by the New York State Parole Board despite their low risk of recidivism was found dead in his cell on August 4.
John MacKenzie, aged 70, reportedly hung himself after he was denied parole the previous week. He had spent 40 years redeeming himself and working with victim's families, and had been eligible for parole since 2000. "We don't intend to allow the death of John to be in vain," said Mujahid Farid, founder of Release Aging People in Prison, who spoke to MacKenzie the day before he died, and had been working with him on a case in which a judge held the parole board in contempt of court for refusing to acknowledge his clear remorse for killing a police officer in 1975.
"This petitioner has a perfect institutional record for the past 35 years," New York Supreme Court Judge Maria Rosa demanded in May. "If parole isn't granted to this petitioner, when and under what circumstances would it be granted?"
MacKenzie's death was marked by rallies at the board's Albany office and another in Manhattan. "I hold the parole board responsible," said his lawyer Kathy Manley. "They are not letting people out when they should be, and it is killing people."
More than 9,500 people over the age of 50 are held in New York's prisons, and two-thirds are eligible for parole. MacKenzie daughter Danielle said that while her father "took responsibility for his actions, the parole board has completely ignored theirs."
First published at The Indypendent.