Tuesday, September 11, 2012

Anti-parole policy does not violate Constitution

The State of New York allegedly had an unofficial policy against granting parole to violent offenders. They sued the state, claiming this policy violates the Constitution. The Court of Appeals does not think so.

The case is Graziano v. Pataki, decided on August 3. According to plaintiffs, who wanted to make this a class action, the state sharply reduced parole after George Pataki became governor, from 28 percent in 1993-94 to 3 percent in 2000-01. You can see how the state can get away with this. No politician was ever taken to the woodshed for denying parole to violent felons, including murderers.

In a series of summary orders over the last few years, the Second Circuit has held that the alleged anti-parole policy does not violate the Constitution. It re-affirms those rulings in this case, this time in a precedential opinion. Plaintiffs argue that the blanket parole denials violate due process because "they have a limited liberty interest in 'not being denied parole for arbitrary or impermissible reasons."  But the Court of Appeals concludes that the parole scheme does not create a legitimate expectancy of release from jail, which means there is no property interest, which means there is no due process claim. Not only do the plaintiffs fail to allege that the parole officials are taking improper factors in account in denying parole, but all the parole deciders are really doing is heavily emphasizing the violent nature of the inmates' crimes, a legitimate factor under state law.

While the parole law requires the parole board to consider a variety of factors in granting or denying parole, they are allowed to overvalue the violent crime at the expense of other statutory considerations. The Second Circuit (Katzmann and Wesley) concludes, "a policy of according substantial weight to the severity of the crime is neither arbitrary nor capricious; indeed the Board is required to consider this factor as part of its determination, and it is entitled to give whatever weight it deems appropriate to each of the statutory factors." District Judge Underwood dissents.

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