By Chris Gelardi via The American Prospect
At the Rikers Island jail complex in New York City, at least 91 people had been waiting for March 1 to roll around. On that date, most aspects of New York state’s new parole reform law went into full effect, and those who had been held on warrants issued by the Department of Corrections and Community Supervision (DOCCS), which runs the state’s parole system, were expecting a shot at freedom.
Among other provisions, the new law, known as the Less Is More Act, makes it significantly more difficult for DOCCS to jail people after they commit certain parole violations, and it mandates a hearing within 24 hours to give people whom the parole agency has ordered jailed a chance to argue for their release.
But March 1 came and went, and the 91 people—as well as dozens or hundreds more across the state—remain in jail. According to DOCCS, because they were jailed on alleged parole violations before that date, they aren’t grandfathered into Less Is More’s protections, so the department didn’t go about releasing them.
The framework of their situation is just one of several points of ongoing disparity between the department’s interpretation of the Less Is More Act and the interpretation of the advocates and elected officials who worked for several years to pass it. Each of DOCCS’s unique interpretations—which vary in plausibility and seize on details as minor as the numbering of the legislation’s subparagraphs—minimize the number of people whom the law would release from incarceration.
It doesn’t help that the Less Is More Act is a perplexing piece of legislative writing—in December, a Bronx judge opined that one section is worded “in the most confusing way possible”—leaving DOCCS plenty of room to quibble. But the law’s crafters and supporters assert that its spirit and intentions are clear, and that DOCCS is undermining it because department officials don’t want to release people from jail.
Assemblymember Phara Souffrant Forrest, who sponsored the Assembly version of Less Is More, called DOCCS’s interpretations “appalling and frankly, embarrassing,” and described it as an “attempt to fabricate a new precedent for the reading of bills.”
“DOCCS is willfully ignoring the clear legislative intent of Less Is More,” she told New York Focus and The American Prospect in a statement.
“It’s just DOCCS being DOCCS,” said Emily NaPier Singletary, co-executive director of Unchained, one of the advocacy groups that helped lead the effort to pass the Less Is More Act. “We really attribute it to just good old fashioned obstructionism.”
In an emailed statement, a DOCCS spokesperson said that the department has been committed to implementing Less Is More correctly. “We categorically reject any allegation that DOCCS is implementing the law in bad faith,” the spokesperson said.
“Even before the enactment of the law, DOCCS began high-level internal meetings to begin planning for the implementation of this major overhaul of the parole revocation process,” the spokesperson said. “Since that time, we have worked diligently internally and with the [courts], and have also remained engaged with public defenders, including holding multiple calls in the week leading up to March 1st.”
The situation highlights an aspect of criminal justice reform that often goes overlooked, especially in New York: After a highly publicized political battle results in a new law, it takes a whole other, quieter power struggle to get state agencies to implement it.
Some of these bureaucracies are large and entrenched enough to wield their own political power, further complicating this second-stage scuffle. Though DOCCS is technically under the direct purview of Governor Kathy Hochul, who signed Less Is More into law and has expressed enthusiastic support for it, the governor hasn’t directed the department to adjust its interpretation of the legislation.
Advocates have taken DOCCS to court over its alleged obstructionism: Most recently, on March 2, the Legal Aid Society filed a lawsuit on behalf of the 91 people held on Rikers Island who expected a chance at release. DOCCS is fighting that lawsuit, with representation from the office of New York Attorney General Letitia James, who has touted the benefits of the Less Is More Act herself. (James’s office did not respond to emailed questions.)
Similar suits have yielded mixed results, and the disagreements over the law’s implementation have left likely hundreds of people who would otherwise be let out sitting in jail.
“The distance between reform moving through the legislature and being signed into law, and being effectuated inside of these bureaucracies, is profound,” said gabriel sayegh, co-executive director of the Katal Center for Equity, Health, and Justice, another of the core advocacy groups behind Less Is More. “These bureaucracies are slow to change and absolutely resistant to it, from top to bottom.”
Most of the interpretive battles over Less Is More relate to when certain parts of the law go into effect, as well as to whom those start dates apply—debates over minutiae that decide whether hundreds of people are jailed or released.
While the bulk of the reforms went into effect on March 1, one part of the legislation took effect as soon as Governor Hochul signed it into law on September 17, 2021: “the amendments made to subparagraph (xi)” of a certain section of existing parole law.
But in rewriting existing parole law, Less Is More changed the numbering of its sections. That means there is both a new subparagraph (xi) and an old subparagraph (xi)—and thus disagreement over which policies were immediately in effect.
According to Less Is More’s proponents, the subparagraph (xi) that went into effect last September is the new version, which contains perhaps the most significant facet of the reform law: that those people merely accused of violating “technical” conditions of their parole—breaking curfew, consuming alcohol or drugs, or failing to notify their parole officer about a new job, for example—should almost never be jailed.
Before the Less Is More Act, people on parole were subject to mandatory detention upon being accused of a technical violation—a policy that led to New York having one of the highest rates of parole-related incarceration in the country. But with this revision, DOCCS can’t detain them while they await hearings that will determine the future of their parole status. And at those hearings, parole officers are mostly barred from re-incarcerating them as punishment.
DOCCS, on the other hand, has argued that changes to the old subparagraph (xi) were what went into immediate effect in September 2021. But the only changes in that part of the law are to the subparagraph numbering and the addition of gender-neutral language (specifically, changing “he or she” to “such officer”). Thus, in DOCCS’s view, it had no obligation to release anybody new until March 1.
To Less Is More proponents, DOCCS’s interpretation is bad-faith. “It’s just a ludicrous argument,” said NaPier Singletary. She concedes that the language in that part of the bill is convoluted, which she attributes to rushed edits in the final hours of the legislative session, but asserts that the intent is more than clear. “I don’t know how [DOCCS] could reasonably believe that that kind of change”—the addition of gender-neutral language—“was so urgent to the legislature that they made that take effect before everything else.”
Judges weighing in on this debate have come to varied conclusions. In one decision in December, a Bronx judge characterized DOCCS’s interpretation as “no more than an adherence to a scrivener’s numerical error,” and thus ordered the person who brought the lawsuit, who was jailed on a technical violation, released. But the following month, a judge in Binghamton wrote that he “disagrees with that analysis,” and concluded that, if the legislature wanted “sweeping, substantive changes” to parole law to take effect immediately, it would have asserted it more clearly than by a perplexing reference to one subparagraph.
According to Souffrant Forrest, DOCCS’s interpretation—and thus the Binghamton judge’s—is incorrect. “As the lead sponsor of the bill, and having recruited a majority of my colleagues to support for the measure, I can say with confidence that it was the intent of the legislature to ensure that, effective immediately upon passage, no individual should be incarcerated for a technical violation,” she said.
“When a bill is passed and refers to the implementation of a given section, it is in reference to the language of the bill as passed, not in reference to a previous version,” Souffrant Forrest said. “Quite simply, DOCCS is attempting to play language games at the expense of people’s freedom.”
“Proactive in Applying the Spirit of the Law”
The Binghamton judge denied court-ordered release to the incarcerated person who brought that case. And though DOCCS released some people held on technical violations between September and March, the disagreement still left hundreds more sitting in jail for weeks or months longer than they otherwise would have.
When Hochul signed Less Is More, she immediately ordered the release of 191 peoplefrom parole-related incarceration on Rikers Island—but announced that she was doing so “in the spirit” of the new law, rather than as a requirement of it, leaving the door open for DOCCS to keep some people held on technical violations incarcerated.
DOCCS has echoed Hochul’s language of voluntarism. “Under the direction of Governor Hochul, we have been proactive in applying the spirit of the law as it pertains to new technical warrant and absconder dispositions to qualified parole violators currently in-custody,” the department spokesperson said in the emailed statement.
And in an email to a state Senate staffer obtained by New York Focus and The American Prospect, Cal Whiting, DOCCS’s assistant commissioner for government affairs, said that the department had been “proactive in applying the spirit of the law” by releasing certain people before March 1. According to Whiting’s email, as of January 27, 843 people statewide had been released from jail as a result of DOCCS beginning to lift parole warrants for technical violations.
Yet hundreds remained incarcerated. Data from the state Division of Criminal Justice Services show that a daily average of 464 people were held in jail on technical violations across the state that month—a reduction of less than half from the month before Hochul signed Less Is More into law. In fact, that January number was up slightly from the month prior, suggesting that DOCCS was incarcerating new people on technical violations after Less Is More became law. According to DOCCS, it issued 82 parole warrants for technical violations between the law’s signing and March 1.https://datawrapper.dwcdn.net/LGTD0/3/
The DOCCS spokesperson said that, as of March 7, the department had lifted nearly 1,600 parole warrants, leading to the release of 911 people, but did not address a question about whether it had facilitated the release of all of those it was legally required to as of March 1.
“Upon Execution of a Warrant”
While those jailed on technical violations finally found relief when the bulk of Less Is More went into effect last week, DOCCS’s interpretation of the law has left another group unnecessarily incarcerated.
For those accused of violating their parole by committing a new crime (as well as limited exceptions to the no-jail-for-technical-violations rule), the Less Is More Act stipulates that DOCCS must give them what is known as a “recognizance hearing” within 24 hours to determine whether they should be jailed in the leadup to their later parole hearings. In order to jail the person, the burden of proof is on DOCCS, which must demonstrate to a judge that there is a “substantial risk” that the person won’t show up for the later hearings. (The recognizance hearings for parole are separate from whatever bail hearings a person may have for their alleged new crime.)
The recognizance hearings requirement went into full legal effect on March 1. Since then, DOCCS says it has “complied with the law” by providing the hearings to those it seeks to jail prior to their parole hearings. For those who were jailed prior to March 1, however, DOCCS’s position is that they’re out of luck.
Per Less Is More, the department is required to give recognizance hearings within 24 hours “upon execution of a [parole] warrant.” Thus DOCCS’s position is that people whom it ordered jailed for a non-technical violation before March 1—that is, those to whom DOCCS issued a warrant before Less Is More went into effect—aren’t grandfathered into the recognizance hearing provision, and thus aren’t entitled to one.
Less Is More’s proponents, on the other hand, have argued that everyone is entitled to a recognizance hearing within 24 hours of the March 1 effective date. In addition to asserting that people currently jailed should be grandfathered into the recognizance hearing requirement, they also point to another part of the law, which dictates that, if someone pays bail or is offered release at the bail hearing for their new criminal charge, they “shall not be detained further based solely” on a parole warrant.
“That would suggest that DOCCS has to identify a mechanism for lifting that parole hold,” said NaPier Singletary. “Whether they want to do that through a recognizance hearing or whether they just want to lift the parole warrant, I don’t care. But they need to do something for these folks, because the law clearly says they can’t hold them.”
On this issue, Souffrant Forrest again asserts that DOCCS’s interpretation of Less Is More is incorrect. “The bill states clearly that a parole warrant alone is not sufficient reason to hold a person in detention; I do not know how DOCCS has come up with any other understanding of this very clearly written law,” she said. “By denying these benefits to people who happened to be accused of violations prior to March 1, DOCCS is arbitrarily applying the law to keep people jailed unlawfully and blatantly undermining the intent of the legislature.”
The 91 people included in the Legal Aid Society’s March 2 lawsuit are in this situation: They are all held on $1 bail for their new criminal charges, so the only thing keeping them in jail is their parole warrant. There are likely many others across the state in the same position.
Citing the ongoing litigation, DOCCS declined to comment on the issue of recognizance hearings other than to say that the department began facilitating them on March 1.
To advocates, DOCCS’s failure to release these people is another example of the department slow-walking reforms.
Governor Hochul “declared that the Less Is More Act would usher in a fairer and more just criminal justice system by ending some of the problematic, punitive, and unfair practices that had been happening in New York’s parole system for years,” said Philip Desgranges, supervising attorney in the Legal Aid Society’s special litigation unit.
“What’s really concerning and ironic is that the state now is clutching onto those same vestiges of overly punitive and unfair practices by saying that these individuals who are currently detained don’t get to benefit.”
As an executive agency, DOCCS is under the purview of Governor Hochul, who has portrayed herself as a staunch backer of the Less Is More Act.
“New York state incarcerates more people for parole violations than anywhere in the country. That’s a point of shame for us, and it needs to be fixed,” she said when she signed the legislation into law. “And it’s going to be fixed today.”
But when it comes to DOCCS’s restricted implementation of the law, Hochul hasn’t wielded her power over the department to get more of those people released from jail.
“We have attempted to give the governor the benefit of the doubt here because she has been a steadfast supporter politically,” said sayegh of the Katal Center. And her office has been involved in making sure other aspects of the law are implemented smoothly: According to NaPier Singletary, the governor’s office has liaised with DOCCS to ensure that it implements earned time credits—another facet of Less Is More, which will allow people to earn time off of their parole sentence—before that part of the law’s September 2022 deadline.
But “Hochul does need to step up” and get DOCCS to implement the law more broadly, sayegh said—especially since advocates and the department are poised for new skirmishes over it. For one, DOCCS has indicated that it will treat any alleged parole violation committed by someone convicted of a sex offense as a non-technical violation, even though advocates argue that Less Is More’s caveats for those with sex offense convictions still allow for some to fall under the no-detention-for-technical-violations rule. And despite provisions in Less Is More that dictate that parole-related hearings have to be held in courthouses or other public spaces as of March 1, DOCCS has indicated that it will continue to hold some hearings in jails.
Asked about Hochul’s opinion on the interpretations of Less Is More and why she hasn’t issued any guidances to DOCCS, the governor’s press secretary, Hazel Crampton-Hays, only said in a statement that “we remain committed to implementing the law as written and passed by the Legislature, which includes the effective date for implementation of new procedures for parole revocation hearings on March 1.”
“If the legislature passes any modifications to the law, the Governor will review them,” Crampton-Hays said.
According to sayegh, DOCCS, like other criminal justice agencies, has operated “with a kind of impunity.” He likens DOCCS’s positions on Less Is More to the New York Office of Court Administration’s actions in the years after the 2009 Drug Law Reform Act, which rewrote some of the harsh sentencing requirements imposed by the 1970s-era Rockefeller Drug Laws. The OCA and judges tried several maneuvers to restrict the number of people they were required to resentence, and New York’s highest court had to step in to set them straight.
“Hochul has said the right things politically as it relates to Less Is More,” sayegh said. “The next step, though, is what’s missing: Somebody from the administration has to put their hands on [DOCCS] and make them do this right.”
“If they don’t do that, then inertia just takes over and the status quo dominates,” he said.