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       2      CORRECTION
                                PUBLIC HEARINGS:
                             Van Buren Hearing Room A
       9                     Legislative Office Building, 2nd Floor
                             Albany, New York
                             October 1, 2018, at 12:00 p.m.

      12      PRESIDING:

      13         Senator Patrick M. Gallivan, Chairman
                 NYS Senate Standing Committee on Crime Victims,
      14         Crime and Correction

      15         Senator Frederick J. Akshar II, Chairman
                 Senate Standing Committee on Elections

      17      PRESENT:

      18         Senator Joseph A. Griffo

      19         Senator Thomas F. O'Mara

      20         Senator James N. Tedisco

      21         Senator Susan J. Serino






              SPEAKERS:                               PAGE  QUESTIONS
              James Ferguson                            15       15
       3      Former Member
              New York State Board of Parole
              Holley Carnright                         108      115
       5      District Attorney
              Ulster County
              Michael Stewart                          119      127
       7      Regina Stewart
              Parents of Christopher Stewart
       8      Personal Story

       9      Chrys Ballerano                          144      154
              Senior Director
      10      New York State Coalition
                Against Sexual Assault
              Patrick J. Lynch                         161      168
      12      President
              John Neville
      13      Public Affairs Team Member
              Police Benevolent Association
              James Walsh                              161      168
      15      Legislative Counsel
              New York City Patrolmen's
      16        Benevolent Association

      17      Richard Wells                            179      179
      18      Police Conference of New York

      19      Peter Kehoe                              179      179
              Executive Director
      20      New York State Sheriffs Association

      21      Michelle Lewin, Esq.                     189      204
              Executive Director
      22      Parole Preparation Project

      23      Jose Saldana                             189      204
              Community Organizer
      24      Release Aging People
                in Prison Campaign


              SPEAKERS:                               PAGE  QUESTIONS
              Antonio Perez                            206      217
       3      Division 236 Council Leader
              Gina Lopez
       4      Division 236 Assistant Council Leader
              Public Employees Federation (PEF)
              Todd Valentine                           226      239
       6      Co-Executive Director
              New York State Board of Elections
              Jason Schofield                          226      239
       8      Commissioner
              Rensselaer County Board of Elections
              Erik Haight                              226      239
      10      Commissioner
              Dutchess County Board of Elections
              Robert Lowrey                            248      260
      12      Deputy Director
              New York State Council of
      13        School Superintendents

      14      Julie Marlette                           248      260
              Director of Government Relations
      15      New York State
                School Boards Association
              Elizabeth Gaynes                         263      281
      17      President and CEO
              Osborne Association


      20                           ---oOo---







       1             SENATOR GALLIVAN:  Good afternoon, everybody.

       2             I'm Senator Patrick Gallivan, and I am the

       3      Chair of Senate Standing Committee on Crime Victims,

       4      Crime and Corrections.

       5             I'd like to introduce Senator Fred Akshar,

       6      who is the Chair of Senate Standing Committee on

       7      Elections;

       8             Senator Griffo is to my right, your left;

       9             Senator O'Mara to my left;

      10             And then Senator Tedisco on the far end.

      11             And I do know, at the very least, we'll be

      12      joined by Senator Sue Serino.

      13             I will call this public hearing to order.

      14             We are here today for the purpose -- for a

      15      very narrow purpose of examining two different

      16      areas:

      17             The first area is the statutory procedures

      18      parole board members are required to consider when

      19      making a decision, and their compliance with same.

      20             The second area is the procedures used in

      21      issuing conditional pardons, pursuant to the

      22      Governor's Executive Order 181.

      23             The hearing is conducted under the authority

      24      of the Senate rules.

      25             There was public notice of this that was


       1      published.

       2             In some cases, individuals or groups were

       3      invited to testify.

       4             In other cases -- in other cases, we reached

       5      out to ensure that there was representation when

       6      we're dealing with the different statutory factors.

       7             All members of both committees, both Majority

       8      members and Minority members, received the

       9      individual notices directly to their office.

      10             I have -- had correspondence with -- our

      11      office had correspondence with at least two other

      12      offices, and I do not know whether or not any

      13      Minority members of either committee will be

      14      appearing, or will be -- will be here or not.

      15             This is the first in the series of two

      16      hearings.

      17             We are doing this here today.

      18             Tomorrow, in the downstate area, we'll be

      19      doing a second hearing regarding the same two

      20      topics, in Hicksville.  And, of course, you're all

      21      invited to that as well.

      22             And what we've tried to do is, rather than

      23      repeat the testimony in both locations, we've tried

      24      to make sure that we maximize the testimony, and the

      25      testimony -- essentially -- or, the groups are


       1      complementary rather than repeating.

       2             And, ultimately, we will consider the

       3      testimony from both hearings; we will consider

       4      written testimony that has been submitted, where

       5      it's been invited, or, some have chosen to submit

       6      the written testimony, but will not appear and give

       7      oral testimony.

       8             So that will all be taken into consideration,

       9      as well as the request for information that we have

      10      made to the Executive Branch, to the Governor's

      11      counsel; specifically, to the commissioner of the

      12      department of corrections and community supervision,

      13      and to the chairwoman of the board of parole.

      14             We have received some of the information that

      15      will be helpful as we look at these two topic areas.

      16             We do not have all of information from them

      17      yet, but I am grateful that they have complied with

      18      the request and have forwarded some of the requested

      19      information.

      20             And we, of course, will be following through

      21      on that.

      22             At the very end of all of this, when we take

      23      all this information in, whether it's the testimony,

      24      whether it's written, whether it's the examination

      25      of the records, we will ultimately issue a report.


       1      And I would anticipate that it would come with

       2      recommendations as well.

       3             So the way that we are -- we have -- we have

       4      a list of speakers, and we will -- we'll call them

       5      individually.  Some will appear in panels.

       6             And the way that we've tried to organize it,

       7      is to try to take on the topic areas one at a time:

       8      First, starting with the standards of release for

       9      parole and the parole board's compliance, and then

      10      the Governor's executive order.

      11             I understand, though, that some testimony

      12      that will be given, some organizations or

      13      individuals have testimony to offer in both areas.

      14      And, of course, we would deal with both areas while

      15      the individual person or panel is testifying, as

      16      opposed to having you talk about one thing, stand

      17      up, and then come back a little bit later.

      18             I ask all the people that are testifying to

      19      attempt to please limit their comments to the

      20      topical areas, to the two specific topics.

      21             I mentioned, the standards of release.  They

      22      are contained in 259-i of the executive law.  The

      23      factors the board must consider are in Section 259

      24      of the executive law as well.

      25             The Governor's executive order.  We are


       1      examining the Governor's executive order; the

       2      process that ultimately was put in place, and the

       3      concerns that constituents and others have raised

       4      about that process.

       5             The purpose today is not to have -- not to

       6      have a debate on whether or not voting rights for

       7      certain individuals -- certain individuals should

       8      have voting rights or not.  That was not the purpose

       9      of the hearing.

      10             It is my contention, and I feel strongly

      11      about this, that the Governor usurped the power of

      12      the Legislature; that the Constitution was not

      13      intended to -- to deal in a blanket fashion with

      14      tens of thousands of individuals.

      15             It was, rather, intended for individual

      16      injustices.  I may be right, I may be wrong, but

      17      I thought it was appropriate to examine that.  And,

      18      then, the procedures that were put in place.

      19             And that is the purpose of that particular

      20      area.

      21             So I do ask the comments to try to stay

      22      contained to the area -- the areas that we're

      23      examining.  And then, ultimately, of course, we will

      24      try to help in that regard.

      25             So before we move on, I would like to give


       1      the opportunity to the other members of the panel to

       2      offer a few comments, starting with the Chair of the

       3      Elections Committee, Senator Akshar.

       4             SENATOR AKSHAR:  I'm going to pass.

       5             SENATOR GALLIVAN:  Senator Serino?

       6             SENATOR SERINO:  Nope, nope.  I'm good.

       7             If they choose to.


       9             SENATOR O'MARA:  No, I'm good.

      10             SENATOR GALLIVAN:  Senator Tedisco?

      11             SENATOR TEDISCO:  Yeah.

      12             SENATOR GALLIVAN:  You're lucky.

      13             SENATOR TEDISCO:  Thank you, Senator Gallivan

      14      and Senator Akshar, for putting this hearing

      15      together, and the next one that's going to take

      16      place, and for all my colleagues being here to

      17      listen.

      18             It's a very important issue.

      19             And let me thank everyone who is here from

      20      beyond this region, and I believe across the state,

      21      especially those from the 49th Senatorial District,

      22      my senatorial district.

      23             I especially want to make note of someone

      24      we're going hear along the line here, two

      25      individuals, Michael and Regina Stewart, two of my


       1      constituents.

       2             You're probably familiar with the tragedy

       3      that took place in their family locally.

       4             They lost their son Christopher Stewart,

       5      outstanding individual, outstanding student athlete,

       6      from Shenendehowa High School, also lost life in

       7      that accident that took place.

       8             I guess you could call it an accident, but

       9      it's not really an accident when somebody,

      10      unforgivingly, drinks and drugs, gets impaired, and

      11      gets behind the wheel and kills other individuals,

      12      innocent law-abiding citizens.

      13             Deanna Rivers lost her life in that accident

      14      also, and several other students were injured.

      15             I want to personally thank them, not only for

      16      being here today, but for taking their personal

      17      tragedy and turning it into something very positive,

      18      I think, for the rest of the families of the

      19      49th Senatorial District, this region in the state.

      20             They worked very hard on legislation to

      21      reform the systems and policies that take place when

      22      crimes of this type happen.

      23             And are here to testify about the process

      24      they've gone through now, in terms of parole, when

      25      this situation takes place with someone who doesn't


       1      seem to care very much about other individuals on

       2      the roadway, and uses drugs, and those impairments

       3      that can impact us all.

       4             So, I thank them for being here.  I look

       5      forward to hearing their testimony, as well as all

       6      of the individuals' testimony today, and, hopefully,

       7      getting some good input on this important issue.

       8             Thank you very much, Mr. Chairman.

       9             SENATOR GALLIVAN:  Thank you, Senator.

      10             We did invite three members of the Executive

      11      Branch, as I had mentioned, to testify, and, as is

      12      customary, we would have asked them to speak first.

      13             They are not here, but they did submit

      14      written testimony, which we will include as part of

      15      the record, as well as our request for information

      16      to each of those particular offices.

      17             So, we do have written testimony that we will

      18      be providing momentarily to each of the members.

      19             From Alphonso David, who is counsel to the

      20      Governor, he responded in written testimony, dated

      21      September 28, 2018.

      22             And his testimony -- or, I'm sorry, his

      23      letter, rather, had to do with the Governor's

      24      executive order, and their authority, where he cited

      25      the Constitution and relevant election law to do the


       1      same.

       2             And that will become part of the record.

       3             I'm going to go in reverse order of the topic

       4      areas for just a moment.

       5             Acting Commissioner Anthony Annucci of the

       6      department of corrections and community supervision,

       7      also, we had asked for a number of different

       8      documents relating to the Executive Order 181, and,

       9      department of community and corrections (sic)

      10      supervision policies, their implementation of it,

      11      their supervision, et cetera.

      12             And he has provided some of those records to

      13      date, and he has provided written testimony as well.

      14             And the written testimony spoke solely with

      15      that second topic area, the Governor's executive

      16      order, and their implementation, and their process.

      17             Later on, during the hearing, we do have

      18      somebody representing -- or, an individual

      19      representing parole officers, and they will be asked

      20      about the implementation of the process and the

      21      policy.

      22             And if -- if they are not able to fully go

      23      into it, I will actually recite some of

      24      Commissioner Annucci's testimony.

      25             But that also is on its way to all of the


       1      members, and made part of the record.

       2             And then, finally, from the Executive Branch,

       3      Tina Stanford is the chairwoman of the board of

       4      parole.

       5             She has also submitted written testimony, as

       6      well as responded to our request for records.

       7             And we have, again, a number of the records

       8      that we had asked for.

       9             She did indicate that she wasn't able to

      10      gather it all before this past Friday, but we will

      11      be following up on that as well.

      12             And then her written testimony dealt with the

      13      topic area, dealing with the board of parole, the

      14      standards of release, the commissioner's compliance

      15      with that.

      16             And I will put that into the record for now

      17      and set that aside.

      18             We do have a former member of the board of

      19      parole who is here, who we will ask about the

      20      procedures, the standards, and release, applicable

      21      law.

      22             And if questions remain unanswered, we may

      23      come back to Chairwoman Stanford's written

      24      testimony, and I would recite some of that as well.

      25             But, ultimately, at the very end, all of this


       1      will be contained in and be a part of the report of

       2      the Committee.

       3             So our first -- our first person that we

       4      would call forward now is --

       5             SENATOR O'MARA:  Before you proceed with

       6      that, Mr. Chairman, I would just ask of the Chair,

       7      whether any explanation from Alphonso David,

       8      Commissioner Annucci, or the -- or Tina Stanford was

       9      provided as to why they are not appearing in this

      10      hearing for our questioning?

      11             SENATOR GALLIVAN:  No.

      12             SENATOR O'MARA:  Thank you.

      13             SENATOR GALLIVAN:  -- former parole board --

      14             SENATOR GRIFFO:  If I could just add to that,

      15      Mr. Chairman, you did have correspondence, and

      16      made direct inquiries, relative to the invitation

      17      that was presented to them?

      18             They were all presented with an invitation to

      19      appear; correct?

      20             SENATOR GALLIVAN:  Yes, they were all -- all

      21      their offices were provided with a written

      22      invitation to appear.

      23             And Senate counsel spoke with the Governor's

      24      counsel, and I personally spoke with

      25      Commissioner Annucci and Chairwoman Stanford, and


       1      inviting them to attend.

       2             SENATOR GRIFFO:  None indicated whether or

       3      not they would be here at that time?

       4             But did they --

       5             SENATOR GALLIVAN:  At the time of the

       6      personal contact, they did not.

       7             And, of course, the various heads of agencies

       8      in the Executive Branch do report to the Executive

       9      Office.

      10             And they, of course, at the time that

      11      I talked with them, would have to talk with their

      12      superiors before making a decision.

      13             But, nonetheless, there was both verbal and

      14      written.

      15             And, I do want to point out again that we did

      16      do written requests for information, that they made

      17      an effort to comply with, and all provided written

      18      testimony.

      19             Okay.

      20             Anybody else?

      21             -- Mr. James Ferguson, who is a former

      22      member of the board of parole.

      23             JAMES FERGUSON:  Good afternoon, Senators.

      24             SENATOR GALLIVAN:  Good afternoon.  Thanks

      25      for being here.


       1             JAMES FERGUSON:  Thank you for having me.

       2             SENATOR GALLIVAN:  So for the record, would

       3      you give us your name, and just talk a little bit

       4      about your time of service on the board of parole,

       5      including which governor appointed you or -- and/or

       6      reappointed you?

       7             JAMES FERGUSON:  Yes.

       8             My names is James Ferguson.  I was appointed

       9      by Governor Pataki in 2005.  Was reappointed by

      10      Governor Pataki, and was, subsequently, reappointed

      11      by Governor Cuomo.

      12             My term expired last year, and I left service

      13      as of January of this year.

      14             SENATOR GALLIVAN:  So how long did you serve

      15      as a member?

      16             JAMES FERGUSON:  About 13 years.

      17             SENATOR GALLIVAN:  13 years.

      18             JAMES FERGUSON:  And I was administrative law

      19      judge for the division of parole for about

      20      6 1/2 years prior to that.

      21             And then before that I was a prosecutor at

      22      gangs and major cases in The Bronx.

      23             SENATOR GALLIVAN:  And are you employed now?

      24             JAMES FERGUSON:  I am teaching.  I am doing

      25      contracting and consulting work.


       1             SENATOR GALLIVAN:  Now, we appreciate the

       2      fact that you are willing to be here today.

       3             And we're looking to talk about the standards

       4      of release, and provisions that are -- may or may

       5      not be in place regarding how the parole board's

       6      compliance is measured -- is measured, is looked at,

       7      if at all.  How parole board members get their

       8      information.  And those types of things.

       9             So I don't know if you had opportunity at all

      10      to review the law.

      11             I do have relevant copies of the executive

      12      law here.  That is something that I could give you,

      13      if you wanted.

      14             JAMES FERGUSON:  Well, I have 259-i, and

      15      8002.

      16             SENATOR GALLIVAN:  So let's talk about the

      17      standards of release first.

      18             So what are -- what are the standards that

      19      the parole board must consider?

      20             JAMES FERGUSON:  Well --

      21             SENATOR GALLIVAN:  I'm sorry.

      22             What are the standards that an individual

      23      must meet before the individual is approved for

      24      release?

      25             JAMES FERGUSON:  Well, first, it must be


       1      determined that the individual is not going violate

       2      the law if released; that it's compatible with the

       3      welfare of society; and that the seriousness of the

       4      instant offense, the release would not deprecate the

       5      public's view of the law.

       6             We consider multiple factors in coming to

       7      that conclusion.

       8             SENATOR GALLIVAN:  Excuse me, if I may, do

       9      you happen to have the -- do you have the executive

      10      law there that you had said?

      11             JAMES FERGUSON:  259-i?

      12             SENATOR GALLIVAN:  Yeah.

      13             JAMES FERGUSON:  Yes.

      14             SENATOR GALLIVAN:  Okay.  Could you -- could

      15      you refer to 259-i, Section c, subdivision A.

      16             JAMES FERGUSON:  Which starts off with

      17      "Discretionary release on parole"?

      18             SENATOR GALLIVAN:  Yes.

      19             Could you provide us the first sentence that,

      20      it is my belief, are the standards of release?

      21             JAMES FERGUSON:  "Discretionary release on

      22      parole shall not be granted merely as a reward for

      23      good conduct or efficient performance of duties

      24      while confined, but after considering if there is a

      25      reasonable probability that, if such inmate is


       1      released, he will live and remain at liberty without

       2      violating the law, and that his release is not

       3      incompatible with the welfare of society, and will

       4      not so deprecate the seriousness of his crime as to

       5      undermined respect for the law."

       6             SENATOR GALLIVAN:  So is it your

       7      understanding, generally speaking, that those are

       8      the three standards of release that the parole board

       9      must base their decision on?

      10             JAMES FERGUSON:  Yes, sir.

      11             SENATOR GALLIVAN:  You mentioned "factors."

      12             Now, what factors must the parole board

      13      consider when they make a release decision?

      14             JAMES FERGUSON:  There are multiple factors

      15      that are enumerated in 259(c).

      16             Institutional record, which, of course, would

      17      include programming, academic accomplishments, work

      18      assignments, therapy, interaction with staff and

      19      other inmates;

      20             Performance on temporary release;

      21             Whether the inmate has a coherent release

      22      plan;

      23             Any deportation order;

      24             Any statements made by crime victims, as well

      25      as district attorney and judge letters and


       1      recommendations at sentencing;

       2             And also consider the seriousness of the

       3      offense with due consideration to the type of

       4      sentence, length of sentence, and recommendation of

       5      the sentencing court, district attorney, and

       6      attorney for the inmate, the pre-sentence probation

       7      report, as well as consideration of any mitigating

       8      and aggravating factors and activities;

       9             And, of course, any prior criminal record.

      10             SENATOR GALLIVAN:  Does 259-i also speak to

      11      the nature and pattern of offenses?

      12             JAMES FERGUSON:  Well, if you look at 259(c),

      13      subsection vii, it talks about the seriousness of

      14      the offense, with due consideration to the type of

      15      sentence.

      16             SENATOR GALLIVAN:  Does it mention anything

      17      else?

      18             JAMES FERGUSON:  Other than what I've read,

      19      it also discusses the nature and pattern of

      20      offenses, adjustment to any previous probation or

      21      parole supervision?

      22             SENATOR GALLIVAN:  What about any prior

      23      confinement?

      24             JAMES FERGUSON:  Yes.  That would be under

      25      "prior criminal record."


       1             We consider not only the offenses, but the

       2      sentences, especially if there was prior prison.

       3             SENATOR GALLIVAN:  All right.

       4             So all of those -- all of those factors that

       5      must be considered are contained in that 259-i,

       6      sub (c)(A)?

       7             JAMES FERGUSON:  Yes, sir.

       8             SENATOR GALLIVAN:  Now, it's my understanding

       9      that there are two other factors that have come

      10      about as a result of either state law, or federal

      11      law or federal court decisions.

      12             And then, ultimately, those two factors were

      13      dealt with in a change in parole policy, it had to

      14      do with parole policy.

      15             Are you familiar with those?

      16             JAMES FERGUSON:  No, sir.

      17             SENATOR GALLIVAN:  Are you familiar with the

      18      COMPAS; or the risk-assessment tool?

      19             JAMES FERGUSON:  Yes.

      20             SENATOR GALLIVAN:  All right.

      21             JAMES FERGUSON:  Very much so.

      22             SENATOR GALLIVAN:  All right.

      23             You --

      24             JAMES FERGUSON:  In fact, I was one of the

      25      individuals who recommended, in 2008, that we


       1      consider a risk-assessment tool as one additional

       2      factor, not as a controlling factor, for the

       3      commissioner's decisions.

       4             SENATOR GALLIVAN:  There are a couple of

       5      cases that I will refer to right now.

       6             One is the matter of Bodecker (ph.) versus

       7      Stanford.

       8             Another that's a little bit more on point is

       9      Montane, M-O-N-T-A-N-E, versus Evans.

      10             And both of those deal with COMPAS.

      11             Montane versus Evans, in particular, says

      12      that the board must consider COMPAS as a factor.

      13             I mean, I don't know, are you aware of that,

      14      or not?

      15             JAMES FERGUSON:  Yes.

      16             SENATOR GALLIVAN:  All right.

      17             The other area came about as a result of a

      18      Supreme Court decision, and that requires that the

      19      board also consider as a factor, their age at the

      20      time of events.

      21             JAMES FERGUSON:  Yes.

      22             SENATOR GALLIVAN:  Are you familiar with

      23      that?

      24             JAMES FERGUSON:  Yes.

      25             SENATOR GALLIVAN:  So there came a time,


       1      then, that the board adopted regulations to deal

       2      with these two areas, introducing them as a

       3      factor -- as factors?

       4             JAMES FERGUSON:  Yes.

       5             SENATOR GALLIVAN:  Can you just talk about

       6      that a little bit?

       7             JAMES FERGUSON:  Well, I know that there have

       8      been additional rules that have been put forth for

       9      us to consider.

      10             There are other things as well.

      11             There's consideration regarding drug

      12      sentencing, what an inmate would face today as

      13      opposed to the past.

      14             There's information regarding, when you

      15      talked about youth, to take into consideration:

      16      Their age at the time of the offense, their

      17      immaturity.  What success they've had while

      18      incarcerated.  If they continue to pose some type of

      19      a threat.

      20             SENATOR GALLIVAN:  So many of those, and

      21      especially you're talking about their age, really

      22      became, I guess for lack of a better way of saying

      23      it, a subset of those other factors that have been

      24      articulated?

      25             Among the things that must be considered, for


       1      instance, their age at the time of the offense,

       2      their state of mind, the way that they were raised,

       3      the type of case, et cetera, et cetera, I mean,

       4      those different things -- a number of things you

       5      just mentioned?

       6             JAMES FERGUSON:  That was something we've

       7      always considered.

       8             SENATOR GALLIVAN:  Okay.

       9             So we have the factors.

      10             And it's my belief, based on -- based on what

      11      is contained in the executive law, and those two

      12      other areas that we just mentioned, are the factors

      13      that must be considered.

      14             Now, to what extent, if -- you know, based on

      15      your experience, what weight, if any, is applied to

      16      any of those factors when you're making a release

      17      decision -- when the board is making a release

      18      decision?

      19             JAMES FERGUSON:  Well, consideration is given

      20      to all of those factors, each of them is gone

      21      through.

      22             Sometimes inmates, either on their own

      23      initiative or with the aid of other programs, or

      24      attorneys, give us parole packets, as you may

      25      recall, having served as a commissioner.


       1             We go through each of those components, and

       2      we weigh them, and we consider.

       3             In particular, of course, we want to know:

       4             What type of danger the person may pose if

       5      released;

       6             What type of successes they may have had

       7      while incarcerated;

       8             And what's their prospect for future success

       9      and reintegration if released.

      10             SENATOR GALLIVAN:  Now, just -- I am going to

      11      ask how you get the information in a moment.

      12             But, when you're making the decision, after

      13      the interview is done --

      14             Which I'm anticipating you'll say, that's how

      15      you get some of the information.

      16             -- but when you make the decision itself, you

      17      have the standards that were articulated a little

      18      bit earlier, but, living and remain at liberty, and

      19      so on.

      20             And you have these -- what appear to be about

      21      ten different larger areas, with subsets underneath

      22      them, of the factors that must be considered.

      23             Is there any requirement that you apply a

      24      certain percentage of weight to any or all of those

      25      factors?


       1             JAMES FERGUSON:  No, there's not a specific

       2      requirement giving a percentile as to each of the

       3      factors.

       4             I mean, obviously, one can consider, if an

       5      individual has been committing violent crime for

       6      20 or 30 years, and has completed an

       7      anger-management program in prison, the 20 or

       8      30 years of acting out in anger perhaps outweighs

       9      the one program completion.

      10             So, it's common sense, and it's experience.

      11             As you're all aware, many of the individuals

      12      who are on the parole board have criminal -- I don't

      13      want to say criminal backgrounds, because it might

      14      convey the wrong impression, but, having experience,

      15      to some extent, that prepares them to be able to

      16      make these decisions.

      17             SENATOR GALLIVAN:  I did neglect one, and

      18      I apologize.

      19             There is another court case, another court

      20      case that is relevant, and that is, for the record,

      21      Silmon, S-I-L-M-O-N, versus Travis.

      22             And that was decided at the state level, and

      23      added -- added a so-called "insight and remorse."

      24             But, the idea that the board must consider,

      25      if an inmate is talking about their insight into


       1      their offense, and remorse, if it's there, that that

       2      is another factor to be considered, according to

       3      this.

       4             Is that your understanding as well?

       5             JAMES FERGUSON:  Absolutely.  A very

       6      important factor.

       7             SENATOR GALLIVAN:  If you give me just a

       8      moment, I want to make reference to two other court

       9      cases.

      10             There is the matter of Serrano,

      11      S-E-R-R-A-N-O, versus Alexander, and, Hamilton

      12      versus the New York State Division of Parole, that

      13      deal with the board's authority.

      14             And I will quote from the matter of

      15      Serrano versus Alexander.

      16             I quote:  The board need not enumerate, give

      17      equal weight, or explicitly discuss every factor

      18      considered, and was entitled, as it did here, to

      19      place a greater emphasis on the gravity of his

      20      crime.

      21             Hamilton speaks more in general to permitting

      22      the board to exercise discretion over the weight

      23      that they can give any or all of the factors.

      24             Now, I don't know -- are you familiar with

      25      either of those cases?


       1             JAMES FERGUSON:  I'm not familiar with

       2      Hamilton, no.

       3             SENATOR GALLIVAN:  All right.

       4             In both -- and the briefs from each of these

       5      cases will be made part of the record as well.

       6             But, nonetheless, was -- is that, that

       7      practice, your understanding?

       8             JAMES FERGUSON:  I'm sorry?

       9             SENATOR GALLIVAN:  These two court cases --

      10             JAMES FERGUSON:  Yes?

      11             SENATOR GALLIVAN:  -- and the notion that the

      12      board has the discretion to exercise -- to apply as

      13      much weight, or ascribe as much weight, to any or

      14      all of factors, as it deems appropriate, was that --

      15      was that the practice of the board --

      16             JAMES FERGUSON:  Absolutely.

      17             SENATOR GALLIVAN:  -- from -- during --

      18      during your time there?

      19             JAMES FERGUSON:  Yes, that's how 259-i is

      20      written:  To give the board members the discretion

      21      in each factor.

      22             SENATOR GALLIVAN:  Now -- now let's go back

      23      to the consideration of the factors, not the weight

      24      that you apply.

      25             But, do you have any discretion to not


       1      consider any of the statutory factors, or must you

       2      consider all?

       3             JAMES FERGUSON:  No, we're required to

       4      consider them all.

       5             SENATOR GALLIVAN:  And what was your practice

       6      during your -- your experience during your time as a

       7      member?

       8             JAMES FERGUSON:  You consider them all.  You

       9      review the entire record.

      10             And as you may remember, it's a daunting

      11      task.

      12             You get there in the morning, you're given

      13      several dozen cases to review.

      14             SENATOR GALLIVAN:  Okay, let's stop there.

      15             Let's go to how you get your information.

      16             So, let's talk about how you get the

      17      information.  And then if you can take us through

      18      the interview process.

      19             We'll talk about -- I'll ask you about

      20      scheduling a little bit later.

      21             JAMES FERGUSON:  Okay.

      22             SENATOR GALLIVAN:  So, you've got all of

      23      these factors that must be considered?

      24             JAMES FERGUSON:  Yes, sir.

      25             SENATOR GALLIVAN:  How do you get that


       1      information?

       2             JAMES FERGUSON:  It's given to us in what's

       3      now referred to as an "ISR" (inmate status report).

       4             It's a report that is prepared by ORCs

       5      (offender rehabilitation coordinators) under the

       6      supervision of an SORC.

       7             They acquire the --

       8             SENATOR GALLIVAN:  What's "SORC"?  A senior?

       9             JAMES FERGUSON:  SORC, yes.

      10             SENATOR GALLIVAN:  A supervisor?

      11             JAMES FERGUSON:  Yes, who works in ORC.

      12      Although, I think everybody --

      13             SENATOR GALLIVAN:  And if I may, there was

      14      a -- I think it was -- perhaps 2011, there was a

      15      reorganization --

      16             JAMES FERGUSON:  Yes.

      17             SENATOR GALLIVAN:  -- for lack of a better

      18      word, if you will.

      19             Who does -- so the parole board is

      20      autonomous, the board itself, in making its

      21      decisions?

      22             JAMES FERGUSON:  In terms of its decisions,

      23      yes, it is.

      24             SENATOR GALLIVAN:  Now, the offender rehab

      25      specialists, and the people preparing that


       1      information for you, did they fall under the

       2      supervision of the parole board?

       3             JAMES FERGUSON:  No.

       4             SENATOR GALLIVAN:  They fell -- accurate to

       5      say that they were now classified to be department

       6      of corrections, community supervision employees --

       7             JAMES FERGUSON:  Correct.

       8             SENATOR GALLIVAN:  -- supervised by the

       9      department of --

      10             JAMES FERGUSON:  Yes.

      11             SENATOR GALLIVAN:  -- okay.

      12             JAMES FERGUSON:  Previously you had parole

      13      officers in that position.

      14             And that was one of the objections many of us

      15      made to the merger.

      16             And inmates as well.

      17             Inmates were afraid of having the ORCs be the

      18      people that gather this information and give it to

      19      the board.

      20             And those fears still exist, and just as of

      21      recently, I've been told.

      22             SENATOR GALLIVAN:  Okay.  So the offender

      23      rehab specialists, they prepare the information or

      24      the file, so to speak?

      25             JAMES FERGUSON:  Yes, sir.


       1             SENATOR GALLIVAN:  That you ultimately get?

       2             JAMES FERGUSON:  Correct.

       3             SENATOR GALLIVAN:  So how do you get that

       4      file?

       5             JAMES FERGUSON:  You get that file on the day

       6      of the parole board.  You show up at the location.

       7             At this point we're, pretty much, videoing

       8      out to almost every facility in the state, with a

       9      few exceptions.

      10             When you arrive, each of the commissioners

      11      are given several folders.

      12             Within that folder is contained the inmate

      13      status report which will give that you information.

      14             SENATOR GALLIVAN:  So let's go a little bit

      15      more in detail, if you would --

      16             JAMES FERGUSON:  Sure.

      17             SENATOR GALLIVAN:  -- with, what is in folder

      18      that you get?

      19             JAMES FERGUSON:  Well, I mean, there's a lot

      20      of institutional records which are not really

      21      relevant.

      22             Communications between the ORC.  Information

      23      sometimes about lawsuits with the inmate.  A variety

      24      of other documentation.

      25             But you will also have in there certificates


       1      of completion for various programs.  You'll have a

       2      disciplinary record.  You'll have a RAP sheet.

       3             SENATOR GALLIVAN:  A RAP sheet?

       4             JAMES FERGUSON:  A modified RAP sheet, yeah.

       5             SENATOR GALLIVAN:  What -- what -- a

       6      "RAP sheet" is a criminal history?

       7             JAMES FERGUSON:  Yes, sir.

       8             You'll also have any other supporting

       9      documents that have been submitted.

      10             If the inmate doesn't submit a formal plan

      11      which is self-contained, we will sometimes have a

      12      variety of other letters that have been submitted,

      13      whether from judges, victims, DAs, people who are

      14      supporting the inmate, people who oppose the

      15      inmate's release, and a variety of other documents

      16      that are contained in the folder.

      17             We're given an opportunity, however brief it

      18      may be, to review those documents and see what's in

      19      there, and assess.

      20             We also have probation reports, which is

      21      usually the source of the information regarding the

      22      underlying offense.

      23             SENATOR GALLIVAN:  They are all contained

      24      within the folder?

      25             JAMES FERGUSON:  They are supposed to be,


       1      yes.

       2             SENATOR GALLIVAN:  So all those factors, I'll

       3      go through them here:

       4             The institutional records.

       5             So the record of programs, whether it is

       6      academic, vocational.  Their successes.

       7      Interactions with staff or other inmates.

       8      Disciplinary, training, records.

       9             Essentially, anything that is required that

      10      took place within the institution, is that

      11      contained?

      12             JAMES FERGUSON:  Yes.

      13             SENATOR GALLIVAN:  Is information, if they

      14      were on temporary release, contained in that file?

      15             JAMES FERGUSON:  Yes, it is.

      16             SENATOR GALLIVAN:  Is information regarding

      17      their release plans contained in the file?

      18             JAMES FERGUSON:  There is some in the actual

      19      ISR.  And then we also will have -- if the inmate

      20      provides a document, we will have his parole plan as

      21      well.

      22             SENATOR GALLIVAN:  And that would have to do,

      23      if it's support services that they would anticipate

      24      availing themselves of, employment, education,

      25      training --


       1             JAMES FERGUSON:  That is correct.

       2             SENATOR GALLIVAN:  -- things of that nature.

       3             JAMES FERGUSON:  And sometimes letters from

       4      corrections officers.

       5             But, yes, all that information.

       6             SENATOR GALLIVAN:  And that would be in

       7      there?

       8             JAMES FERGUSON:  Yes, sir.

       9             SENATOR GALLIVAN:  Information regarding any

      10      deportation order, if it exists, is that in that

      11      file?

      12             JAMES FERGUSON:  It's supposed to be, yes.

      13             SENATOR GALLIVAN:  A victim's statement, if

      14      there is one, is that located in the file as well?

      15             JAMES FERGUSON:  It's a file within a file.

      16             Since that statement is confidential, and it

      17      is not shared with the inmate, and no one's supposed

      18      to even know it's there, except the members of the

      19      parole board and the staff, it is a separate file

      20      contained within that file.

      21             SENATOR GALLIVAN:  So information regarding

      22      their sentence is in there?

      23             JAMES FERGUSON:  Sentencing minutes should be

      24      in there, along with any recommendations of the

      25      judge, a DA, and defense attorney at time of


       1      sentencing.

       2             SENATOR GALLIVAN:  Pre-sentence report, would

       3      that be located --

       4             JAMES FERGUSON:  A PSI is, yes, it's supposed

       5      to be in there.

       6             SENATOR GALLIVAN:  And then information about

       7      their particular offense, including mitigating

       8      factors, would that be in there?

       9             JAMES FERGUSON:  The mitigating factors would

      10      be brought out potentially by the ORC.

      11             The mitigating factors might be brought out

      12      by the defense attorney in the sentencing minutes,

      13      if we have the sentencing minutes and if the defense

      14      attorney made a statement.

      15             The probation report will contain, sometimes,

      16      if the inmate makes a statement.  If there's

      17      mitigating factors in there, it might be in the PSI

      18      as well.

      19             SENATOR GALLIVAN:  And then, of course, you

      20      talked about the RAP sheet; or the criminal history.

      21      That then would deal with the criminal record,

      22      nature and pattern of offenses.

      23             Prior incarcerations, I'm assuming?

      24             JAMES FERGUSON:  Correct.

      25             SENATOR GALLIVAN:  And prior parole or


       1      probation, if any?

       2             JAMES FERGUSON:  Correct.

       3             SENATOR GALLIVAN:  Now, in that file, I would

       4      assume, the age at the time of offense is -- because

       5      you have the age and you can calculate that.

       6             JAMES FERGUSON:  Do it regularly, yes.

       7             SENATOR GALLIVAN:  So you do have that?

       8             JAMES FERGUSON:  Yes, that was a regular

       9      practice of mine, is to determine the age of the

      10      inmate before he came up --

      11             SENATOR GALLIVAN:  Okay.

      12             JAMES FERGUSON:  -- (indiscernible).

      13             SENATOR GALLIVAN:  And then, the

      14      risk-assessment tool, then state board of parole

      15      uses COMPAS.

      16             Is that located in there as well?

      17             JAMES FERGUSON:  Yes, it is.

      18             SENATOR GALLIVAN:  So you have this file.

      19             Do you get any -- and you say you get it on

      20      the day of the hearing?

      21             JAMES FERGUSON:  Yes.

      22             SENATOR GALLIVAN:  Do you get any information

      23      about any of the cases that you're going to hear

      24      prior to the day of hearing?

      25             JAMES FERGUSON:  Very unusual circumstances.


       1             Sometimes we'll get a CD mailed to the

       2      office, which may find its way to the commissioners

       3      in time.

       4             Sometimes you may get --

       5             SENATOR GALLIVAN:  A CD?

       6             JAMES FERGUSON:  -- I'm sorry?

       7             Like, someone might create a DVD with

       8      information on it about the individual's release.

       9      Sometimes you'll get release plans through that way.

      10             But, 99 percent of time you are getting the

      11      information when you show up that day at the parole

      12      board.

      13             SENATOR GALLIVAN:  And that 1 percent of the

      14      time, who is sending you that information?

      15             JAMES FERGUSON:  Usually inmate's attorney is

      16      trying to get things to the parole -- presiding

      17      parole commissioners prior to the hearing.

      18             SENATOR GALLIVAN:  Does it come directly to

      19      you from the inmate's attorney?

      20             JAMES FERGUSON:  No.  It would go to the

      21      office, because the parole board schedule, who's

      22      sitting on each and every board, is a secret, so as

      23      not to provide an opportunity for any type of

      24      influence or collusion, or anything of that sort.

      25             So they would send it to the main office.


       1      And then the hope would be is that it would get to

       2      the presiding commissioner via the internal staff,

       3      once they determined who was going to be presiding

       4      at those proceedings.

       5             SENATOR GALLIVAN:  Are there -- is there

       6      anything, whether it's called by this or something

       7      like that, a pre-board report that comes from --

       8             JAMES FERGUSON:  We have a pre-board report.

       9      And when we had the parole officers there, it was a

      10      much more detailed report.  You got facts and

      11      information about the case.

      12             On occasion, you may get a victim statement

      13      prior to the parole board.

      14             But the information provided to the

      15      commissioners, prior to the proceeding, is extremely

      16      limited.

      17             SENATOR GALLIVAN:  The victim impact

      18      statement, if there is one, do you get that in

      19      advance?

      20             JAMES FERGUSON:  We sometimes will.

      21             There's a transcript made of the proceedings,

      22      and we will sometimes get those transcripts prior

      23      to -- we're supposed to, prior to the parole board.

      24             SENATOR GALLIVAN:  I will come back to that

      25      shortly as well.


       1             So you've got all of this information on the

       2      day of the hearing.  And you're at -- you're at your

       3      seat, so to speak.

       4             And the majority are video-conferenced?

       5             JAMES FERGUSON:  Yes.

       6             SENATOR GALLIVAN:  Or by teleconference?

       7             JAMES FERGUSON:  Correct.

       8             SENATOR GALLIVAN:  Are you able to quantify

       9      that, percentage-wise, if you're able to?

      10             And it can be -- we'll recognize it's

      11      approximate.  You don't --

      12             JAMES FERGUSON:  I think we only have three

      13      facilities now that we actually go to.

      14             So all of the rest of the facilities are

      15      videoed out.

      16             SENATOR GALLIVAN:  And so you are at --

      17      you're not at a facility in a general sense; you're

      18      in an office somewhere?

      19             JAMES FERGUSON:  Correct.

      20             SENATOR GALLIVAN:  And who's in the room with

      21      you at your end of the teleconference?

      22             JAMES FERGUSON:  The other commissioners, of

      23      course.

      24             There will be support staff, the ORCs.

      25      Usually an SORC.  The stenographer.  Occasionally an


       1      interpreter.

       2             SENATOR GALLIVAN:  On the other end, with the

       3      individual that's being interviewed for potential

       4      release, who's in the room with that individual?

       5             JAMES FERGUSON:  On that end, similarly,

       6      there will be staff consisting of ORCs.  You may

       7      occasionally have a corrections officer in and out

       8      of the room, but they're not supposed to be there

       9      during the actual proceeding unless there's some

      10      type of security risk.

      11             SENATOR GALLIVAN:  Generally speaking, not

      12      counting the exceptions, are they -- is the inmate

      13      handcuffed during the interview?

      14             JAMES FERGUSON:  I'm sorry?

      15             SENATOR GALLIVAN:  Is the inmate in handcuffs

      16      during the interview?

      17             JAMES FERGUSON:  That's rare.

      18             It's -- someone who either has mental-health

      19      issues and violent acting out, which would require

      20      handcuffs, or, someone who may be being brought down

      21      from SHU, will sometimes have inmates who are

      22      currently confined because of misconduct.  And then

      23      they're brought down, and they're brought down under

      24      those circumstances.

      25             SENATOR GALLIVAN:  Who determines if there


       1      are -- if there's security issues?

       2             JAMES FERGUSON:  That's corrections.

       3             SENATOR GALLIVAN:  Department of corrections?

       4             JAMES FERGUSON:  Yes.

       5             SENATOR GALLIVAN:  And the way that we've

       6      described it, on the teleconference, anyway, that's

       7      at that other location, not a location where you

       8      are?

       9             JAMES FERGUSON:  Correct.

      10             SENATOR GALLIVAN:  So what are you looking at

      11      when your looking at -- if you're constructing the

      12      interview, how much of the inmate do you see?

      13             JAMES FERGUSON:  It was my practice, and

      14      I worked with former Commissioner Greenan on this,

      15      that we had various specifications as to how things

      16      should be conducted as to what we can see, because,

      17      not interviewing live, as opposed to interviewing

      18      over TV, you have some limitations from the camera

      19      as to what you can see.

      20             But you can make the camera so you can see

      21      the inmate from head to toe.

      22             Sometimes it's from the table, or, chest up,

      23      if there's a table there, so you can see clearly the

      24      inmate and what he or she is saying.

      25             SENATOR GALLIVAN:  Is it live time or is


       1      there a delay?

       2             JAMES FERGUSON:  There's no lapse.  It's

       3      live.

       4             SENATOR GALLIVAN:  How reliable, in your

       5      experience, was the equipment?

       6             JAMES FERGUSON:  Uh, it could probably use

       7      some touching up.

       8             We have had periods in which -- especially

       9      after the transition, after the merger, it was very

      10      difficult because, the staff, in my view, was not

      11      properly trained.

      12             In fact, it was so deficient,

      13      Commissioner Elovich and I, and a staff member named

      14      Lori Fischer (ph.), came up with our own training

      15      program.  And then we traveled around the state to

      16      try to train the ORCs on how to participate, conduct

      17      the hearing, prepare the paperwork, and work with

      18      inmates.

      19             But, the equipment, I haven't used the

      20      equipment in some time, Senator, so, the current

      21      status, I couldn't tell you.

      22             But when I was there, you did have a fair

      23      amount of deficiencies and problems with the

      24      equipment.

      25             SENATOR GALLIVAN:  What would happen if there


       1      was problems with the equipment?

       2             JAMES FERGUSON:  Well, sometimes we would

       3      have to wait for hours to try to get it repaired.

       4             We've waited an entire day at times.

       5             At some point we cut and run, which means we,

       6      basically, decide -- the senior commissioner will

       7      decide we have to just go to the facility.  So then

       8      we would drive to that facility.

       9             Depending on what the circumstances were, if

      10      we felt relatively confident that we would be able

      11      to get that equipment up the next day, we might

      12      postpone the hearings until the next day.

      13             But, generally, if the equipment fails, you

      14      are at the mercy of them locating someone who can

      15      work on that equipment; otherwise, you have to go to

      16      the facility or postpone the proceedings.

      17             SENATOR GALLIVAN:  All right.

      18             Let's go back to the interview now.

      19             JAMES FERGUSON:  Yes.

      20             SENATOR GALLIVAN:  So, you've got the file,

      21      with the factors that we talked about are in the

      22      file, you have them.  And -- you have them, and

      23      you're ready to conduct an interview.

      24             Will you take us -- don't take us through the

      25      multiple cases, but just take us through an


       1      interview.  Like, just talk about the process, not

       2      word by word.

       3             But, what takes place?

       4             JAMES FERGUSON:  Do you want me to give you

       5      like a mock interview?  Or --

       6             SENATOR GALLIVAN:  No, no, just paraphrase.

       7             Just take --

       8             JAMES FERGUSON:  Okay.

       9             SENATOR GALLIVAN:  -- what takes place

      10      through an interview.

      11             JAMES FERGUSON:  We would, of course, welcome

      12      the inmate into the room, ask them to have a seat.

      13             If they have additional documents, they would

      14      give us additional documents.

      15             We'd introduce the commissioners.

      16             We would then go ahead and start asking

      17      questions that we have.

      18             At that point, you've reviewed this

      19      individual's file, so you have made appropriate

      20      notes inside the file, so that when the inmate comes

      21      into the room, you are prepared to ask certain

      22      specific questions, or touch on certain points that

      23      you have questions about.

      24             The other commissioners are given the

      25      opportunity to ask questions if they have questions.


       1             And the inmate is given the opportunity to

       2      make any final statement or comments that he or she

       3      might like to make.

       4             SENATOR GALLIVAN:  So when we talked about

       5      the factors that are required, both by statute and

       6      by various court decisions, one was insight and

       7      remorse.

       8             I didn't ask you if that was located in the

       9      file at all.

      10             How did you get information regarding the

      11      applicant's insight regarding the nature of the

      12      offense, or if there was any remorse.

      13             JAMES FERGUSON:  Through questioning.

      14             You would discuss the offense.  You would

      15      tell him what the official version of the offense

      16      is.  You would ask the inmate whether or not he or

      17      she had a different version of events.

      18             You would then ask them:

      19             What happened?

      20             Why did it happen?

      21             What's different today?

      22             What have you learned since you've been in

      23      that will assure us that this type of conduct won't

      24      occur again?

      25             So from that we'll get what their insight is,


       1      and it is during that time that we would expect them

       2      to mention whether or not they have remorse.

       3             There are certain questions we don't ask.

       4             If you asked someone, "Do you have remorse?"

       5      you would have to be an exceptionally dull

       6      individual to not say, yes, I have remorse.

       7             So there's some questions, Senator, that we

       8      leave for the inmate to raise on their own accord.

       9             SENATOR GALLIVAN:  So we talked about all the

      10      information that's in the file that you have?

      11             JAMES FERGUSON:  Yes.

      12             SENATOR GALLIVAN:  And you have the applicant

      13      in the room with you.

      14             Is there a record made of all this -- of all

      15      of these factors?

      16             JAMES FERGUSON:  Yes.  There is a

      17      stenographer recording the proceedings as we speak.

      18             SENATOR GALLIVAN:  And I'm assuming there's a

      19      transcript, then --

      20             JAMES FERGUSON:  Yes.

      21             SENATOR GALLIVAN:  -- for every case --

      22             JAMES FERGUSON:  Yes.

      23             SENATOR GALLIVAN:  -- that's completed at

      24      some point afterwards?

      25             Is it -- does the applicant have the


       1      opportunity to talk about those various factors, or

       2      to explain or embellish on certain things?  Or, if

       3      there's information that he or she feels is

       4      inaccurate, to talk about that?

       5             JAMES FERGUSON:  I think the majority of the

       6      commissioners give the inmate the opportunity to

       7      raise any particular issues they want to raise.

       8             Obviously, to sit -- we know what the

       9      programs are, so we don't necessarily need someone

      10      sitting there and going through, Well, this is what

      11      I did in day one in the anger-management program.

      12             If they have a special insight that they've

      13      gained in programs like that.

      14             And experiences, losing their own loved ones,

      15      often gives them insight as to the pain and

      16      suffering that they've caused other individuals by

      17      taking a life.

      18             So they will -- they will usually bring that

      19      up of their own accord during the course of the

      20      discussion where multiple opportunities are provided

      21      to interject that information.

      22             SENATOR GALLIVAN:  So you conduct the

      23      interview.

      24             And I think you said -- did you say that, at

      25      the end, the applicant is given an opportunity to


       1      add anything --

       2             JAMES FERGUSON:  Yes, I mean, unless during

       3      the course of the interview, through the various

       4      interjections, all the points have been raised,

       5      I think, generally, the majority of commissioners

       6      will still ask:  Is there anything else that we

       7      haven't covered that you think we need to know?

       8             SENATOR GALLIVAN:  So you go through the

       9      interview.

      10             JAMES FERGUSON:  Yes, sir.

      11             SENATOR GALLIVAN:  And then what?

      12             JAMES FERGUSON:  After the interview, the

      13      inmate is excused.  We then have deliberations

      14      amongst the commissioners.  More and more

      15      frequently, it's become "commissioner."  You know,

      16      there's only one other.

      17             It's been two.  And as you may recall, it's

      18      very challenging to have just two commissioners on

      19      the board.

      20             Sometimes, I've been on cases where we

      21      deliberated over a period of weeks, until,

      22      literally, the decision was due that day, at a

      23      certain time, and we had to get it in at that time.

      24             SENATOR GALLIVAN:  And do you know recall

      25      what the law requires as far as -- or do you recall


       1      what the law requires --

       2             JAMES FERGUSON:  Two weeks.

       3             SENATOR GALLIVAN:  -- as far as --

       4             JAMES FERGUSON:  Two weeks.

       5             SENATOR GALLIVAN:  -- okay.

       6             Thank you.

       7             JAMES FERGUSON:  Yeah.

       8             But, the majority -- the vast overwhelming

       9      majority of cases are decided at that point, after

      10      the interview, after discussion.

      11             You will have cases that people will come

      12      back to, because we are still try to get the other

      13      people who've been waiting out there for hours, to

      14      get them in and move on to the next interview.

      15             So if we have a case where we feel we're

      16      stuck, we may put it aside and then come back to it

      17      later, so as to keep the --

      18             SENATOR GALLIVAN:  How long is an interview?

      19             JAMES FERGUSON:  It changes.

      20             I'm hearing now that people are being

      21      interviewed, on a regular basis, 30, 40 minutes,

      22      maybe an hour.

      23             When I started -- and the numbers were

      24      different when I started.  Interviews were generally

      25      around 15 minutes.


       1             So --

       2             SENATOR GALLIVAN:  Do you have any -- do you

       3      know of any -- what accounts for the difference?

       4             If you know.

       5             JAMES FERGUSON:  Different techniques.

       6             There's six new commissioners who I've not

       7      trained.

       8             But, prior to that, I created a training

       9      manual.  And with that training manual, there was a

      10      training program.  I trained many of the

      11      commissioners.

      12             There's a different technique in

      13      interviewing.

      14             There's different types of questions that are

      15      asked, that have almost never been asked prior to

      16      the past few years.

      17             SENATOR GALLIVAN:  So, you're interviewing

      18      the various applicants for parole -- or, those

      19      eligible to be considered, and you have two or three

      20      commissioners.

      21             How many -- how many in a particular --

      22      strike that.

      23             Does every commissioner have access to

      24      information relating to the factors that are

      25      required to be considered during the course of the


       1      interview?

       2             JAMES FERGUSON:  Yes.

       3             Each commissioner usually has a -- what we

       4      call a "courtesy copy" of the ISR, which contains a

       5      variety of other documents attached to it; the

       6      COMPAS, the RAP sheet, et cetera.

       7             So they'll have, that.

       8             In addition, if any commissioner feels that

       9      he or she needs to look further into the file, the

      10      file is handed over.  The commissioner goes through

      11      whatever he or she is looking for, and, hopefully,

      12      finds what they are looking for.

      13             SENATOR GALLIVAN:  Is there ever a time,

      14      prior to the interview, that you are asked to make a

      15      decision in favor or against release?

      16             JAMES FERGUSON:  No.

      17             The only qualification, I'll put it -- on

      18      that, Senator, is if we receive a victim impact that

      19      we read before the proceeding, and we receive an

      20      inmate packet before the proceeding, which, of

      21      course, that's when we receive it.

      22             SENATOR GALLIVAN:  Sure.  I'll be clearer.

      23             Is there anytime that you're directed from a

      24      superior --

      25             JAMES FERGUSON:  Never.


       1             SENATOR GALLIVAN:  -- or from anybody else in

       2      government --

       3             JAMES FERGUSON:  No.

       4             SENATOR GALLIVAN:  -- to make a decision one

       5      way or the other?

       6             JAMES FERGUSON:  No.

       7             During my interview for the position, that

       8      was a question that I asked:  Is anybody going to

       9      ever tell me what to do?

      10             If so, I'll keep my current job, and forgo

      11      this one.

      12             And I was specifically told by Chauncy Parker

      13      that that would never happen.

      14             SENATOR GALLIVAN:  All right.

      15             Briefly, can we talk about COMPAS?

      16             So what -- we're saying it's a

      17      risk-assessment tool, that I will note, that is

      18      required to be utilized, pursuant to a change in the

      19      law that the Legislature made I think back in 2011.

      20             But, nonetheless, what is your understanding

      21      of the purpose of the risk-assessment tool; or

      22      COMPAS?

      23             JAMES FERGUSON:  Well, the original purpose

      24      of the risk-assessment tool was to help

      25      commissioners, and guide them, into the potential


       1      risks that an inmate may pose if released, as well

       2      as assist them in understanding what he or she has

       3      accomplished while incarcerated, what insights they

       4      may have, what resources are available to them if

       5      released.

       6             So it's supposed to give us a compact piece

       7      of information to answer the majority of the

       8      concerns that we may have when making a release

       9      decision.

      10             But, initially, it was supposed to be one of

      11      the factors that we considered.

      12             SENATOR GALLIVAN:  Would it be accurate,

      13      both, based on your experience, and what we talked

      14      but in the -- and the court cases that I made

      15      reference to, that it is now a factor that must be

      16      considered, and treated as the other factors, as it

      17      relates to the weight when making a decision?

      18             JAMES FERGUSON:  I think it's becoming a

      19      controlling factor, as opposed to --

      20             SENATOR GALLIVAN:  As required --

      21             JAMES FERGUSON:  -- (indiscernible) --

      22             SENATOR GALLIVAN:  -- as required by law,

      23      or -- as require -- or as a practice?

      24             JAMES FERGUSON:  -- well, you do have 259-i

      25      and 8002 of Title IX, which indicates that --


       1             SENATOR GALLIVAN:  And that would be the

       2      regulation that was adopted, that we talked about

       3      earlier?

       4             JAMES FERGUSON:  Yes.

       5             SENATOR GALLIVAN:  Okay.

       6             JAMES FERGUSON:  -- that requires the

       7      commissioners to -- point for point, if they deny

       8      someone release, explain why they disagree with

       9      COMPAS.

      10             So, when you have to explain why you disagree

      11      with COMPAS, that elevates COMPAS to a status that,

      12      it is my understanding -- when I recommended that we

      13      go to a risk-assessment tool in 2008 for

      14      consideration, it was one more thing to help us.

      15             Now I think it's actually becoming -- and

      16      states do have that.

      17             There are states that use just the

      18      risk-assessment tool to make their decisions.  The

      19      parole board reviews the risk-assessment tool, and

      20      perhaps the file, without an interview, and makes a

      21      decision.

      22             But that was not my understanding of what the

      23      other statutes and the legislative intent was in the

      24      other statutes.

      25             SENATOR GALLIVAN:  Okay.


       1             So, you conduct a hearing.  We've talked a

       2      little bit about COMPAS.  You get the information on

       3      that particular day.

       4             I guess my question is:  How do you learn all

       5      this stuff?  How do you know that you've got to do

       6      this stuff?

       7             Are you trained?

       8             JAMES FERGUSON:  Well, when I first came on

       9      there was no training.

      10             You, basically, followed someone around like

      11      a puppy dog, and learned what they did, and observed

      12      what they did.

      13             And based upon your, usually, decades of

      14      experience, you were supposed to be able to pick up

      15      how things work.

      16             For people who are not from the criminal

      17      justice field, I think it's an exceptional challenge

      18      for them to be able to make that leap.

      19             And they also don't come with having -- at

      20      this point in my career, I believe I worked on about

      21      50,000 cases.

      22             So you don't have that type of raw data

      23      underneath your belt when you come from another

      24      field.

      25             So you're supposed to, Senator, just kind of


       1      learn as you go.

       2             But as I mentioned before, I wasn't satisfied

       3      with that.  I didn't think that that was

       4      unprofessional.

       5             I thought it was unfair to the public,

       6      I thought it was unfair to the commissioners,

       7      I thought it was unfair to the inmates, to not have

       8      formal training.

       9             We did start to go into some formal training

      10      later on, but we never had a formal comprehensive

      11      training manual, which I was able to create.

      12             SENATOR GALLIVAN:  Okay.

      13             Now, so you do your job.

      14             JAMES FERGUSON:  Yes, sir.

      15             SENATOR GALLIVAN:  You go through all these.

      16             And, the parole board has a number of other

      17      functions.  We are focusing on the release

      18      determination, so -- so we'll just stick with that,

      19      the release determinations.

      20             Who makes sure that you -- as a commissioner,

      21      that you are doing your job properly, and complying

      22      with the law?

      23             JAMES FERGUSON:  No one.

      24             I mean, you have the chairperson, but the

      25      chairperson is not like a direct supervisor in any


       1      other position.  "Oye, you got this one wrong."

       2             And they're not supposed to, because then

       3      that's influencing your decision-making process.

       4             There was a time that we did get our release

       5      statistics, which gave us a general idea of how many

       6      releases that we were involved in.

       7             Those statistics were flawed because, if I'm

       8      on with Commissioner Elovich, and

       9      Commissioner Elovich has the case, she's the lead

      10      commissioner, and she decides to release, she would

      11      get credited with the release, but I wouldn't, even

      12      though, if I said, no, the person would not be

      13      released.

      14             So the statistics were flawed.

      15             And they also don't give feedback, which is

      16      something I asked for.

      17             As you know, knowledge is the most important

      18      thing, information is the most important thing.

      19             We should be getting feedback on the

      20      decisions we're making.

      21             Some of them, unfortunately, is tragic.

      22             I've been on boards where people have been

      23      released and, subsequently, people have been harmed.

      24             I'm on other boards where people were held

      25      in, and it turns out they were innocent.


       1             So it would be important for commissioners to

       2      be able to hone their instincts and abilities, to

       3      get this feedback, to show them, in private, not

       4      chastised by some supervisor, this is my percentage,

       5      this is what I'm doing right.

       6             There's a human factor here, which it means

       7      anything can happen.

       8             So these are incredibly difficult decisions

       9      to make.  And having any type of information that

      10      can help you make a good decision, that secures the

      11      safety of the public, protects victims, and helps

      12      inmates get a fair decision, would be really

      13      valuable.

      14             SENATOR GALLIVAN:  Do you know what

      15      information, if any, regarding the board's

      16      activities, the hearings, transcripts, whatever it

      17      may be, is made available to the public?

      18             JAMES FERGUSON:  Well, I know there's been a

      19      push lately to try to get the minutes of the

      20      proceedings accessible to the public, which

      21      I believe they should be.

      22             They have to be made available to the inmate;

      23      they have to be made available to the inmate with a

      24      specified period of time after the proceeding for

      25      appellate purposes.


       1             But, the only information that gets out to

       2      the public is via the possible notification of a

       3      victim if someone is released, or, if, for whatever

       4      reason, the department of corrections decides to do

       5      a press release.

       6             Otherwise, unless people inquire and dig,

       7      this is all, I don't want to say hidden, because

       8      I guess it may connotate an intent, but, it's -- the

       9      public doesn't have access to nearly the amount of

      10      information they should have, in my view.

      11             SENATOR GALLIVAN:  All right.

      12             Do any other -- do members have any

      13      additional questions?

      14             SENATOR TEDISCO:  Yep, this way.

      15             SENATOR GALLIVAN:  Senator Tedisco, followed

      16      by Senator Griffo.

      17             SENATOR TEDISCO:  Thank you,

      18      Commissioner Ferguson, for being here today, for

      19      your service, and your patience.

      20             JAMES FERGUSON:  Thank you, Senator.

      21             SENATOR TEDISCO:  Factors.  We talked about

      22      victim impact statement being a factor.

      23             On occasion, the injured party cannot make a

      24      statement, so the family has the opportunity to make

      25      a family victim impact statement on behalf of their


       1      family member who is injured, the injured party.

       2             Could you explain how that process works when

       3      a family member or family members come in to make

       4      that impact statement on behalf of their family

       5      member?

       6             JAMES FERGUSON:  Senator, usually what

       7      happens is, an individual will register at the time

       8      of the processing of the case in the district

       9      attorney's office.

      10             That information will be forwarded over to

      11      our victim-impact unit.  They keep that record on

      12      file.

      13             And what is supposed to happen, and there

      14      have been so many difficulties and so many problems,

      15      I, literally, have lists here that I could tell you

      16      for hours, the difficulties and things that have had

      17      to be fixed within parole.

      18             But, the victims are supposed to be notified

      19      prior to the parole board, and told to come in to

      20      make a statement.

      21             SENATOR TEDISCO:  When you say the "victims,"

      22      if they're not able to -- the family members, you

      23      mean?

      24             JAMES FERGUSON:  Whoever it is that has

      25      registered.


       1             SENATOR TEDISCO:  Oh.

       2             JAMES FERGUSON:  So it could be either the

       3      victim, him or herself, or their family members if

       4      the person is deceased.

       5             Sometimes they will have -- you can even have

       6      a representative.

       7             As you can imagine, it's very tragic, and

       8      it's very painful, for victims to come in and meet

       9      with the parole board, and relive all this.

      10             And some of them do it every two years for,

      11      you know, decades.

      12             SENATOR TEDISCO:  Well, that's another

      13      question to talk about.

      14             Let's continue with this one.

      15             JAMES FERGUSON:  Yes, sir.

      16             So they're notified.  They call victim

      17      impact.  They make an appointment to see a

      18      commissioner within whatever geographical area

      19      they're in.

      20             SENATOR TEDISCO:  Let's stop right there.

      21             A commissioner --

      22             JAMES FERGUSON:  Yes.

      23             SENATOR TEDISCO:  -- will that be one of the

      24      commissioners that -- why you shaking your head?

      25             JAMES FERGUSON:  No, sir.


       1             That's one of the problems I've had as well,

       2      is that you do not have the person actually talking

       3      to the commissioners.

       4             Victim impact statements are extremely

       5      powerful.

       6             And I know there are people who advocate for

       7      inmates.  And there are some, but very few, who

       8      advocate for victims.

       9             But when you sit down and you listen to the

      10      statements, and you see the pain and suffering that

      11      people go through, it is extremely compelling, it is

      12      extremely powerful.

      13             But they do not get to see a presiding

      14      commissioner, because they are seeing the presiding

      15      commissioner in advance of the proceeding, which now

      16      means they know, and have information, of who the

      17      commissioner will be; and, therefore, that violates

      18      an important practice of the board to keep who's

      19      going to be on the boards secret.

      20             There is a way to get around that, if -- and

      21      they try to, I guess the best they can, is the

      22      transcript is made, and that transcript is then

      23      sent.

      24             But I've had many victims complain that they

      25      have not been able to speak to the commissioners who


       1      will be making the decisions.

       2             SENATOR TEDISCO:  Let me get this straight.

       3             The commissioner they speak to is prohibited

       4      from being a part of the parole --

       5             JAMES FERGUSON:  They're not prohibited.

       6             There were many times I would see people who

       7      I would be a commissioner who's going to be on that

       8      case.

       9             I would not, and could not, disclose that to

      10      them, because no one is supposed to know who's

      11      supposed to be there.

      12             SENATOR TEDISCO:  Oh, so they could or could

      13      not be?

      14             JAMES FERGUSON:  It's just chance.

      15             SENATOR TEDISCO:  Just chance.

      16             Is there any an obligation, of whoever is the

      17      commissioner hearing it, to get their information on

      18      what they heard, besides a transcript being sent out

      19      to the commissioners who will be hearing it?

      20             Because, other than that, what's the purpose

      21      of that person being there?

      22             JAMES FERGUSON:  I've asked for that to be

      23      done.

      24             There are many things I've asked to be done,

      25      that have not been done by the parole board.


       1             And that is one of the things I've asked that

       2      we do, is that the presiding commissioner make a

       3      recommendation, if not a -- you can't make a

       4      recommendation on the case because you haven't

       5      reviewed all the facts and you haven't heard from

       6      the inmate.  So that would be unjust.

       7             But you can include information of factors

       8      that should be considered by the commissioner, as to

       9      what transpired that day, the demeanor of the

      10      family.

      11             Sometimes families will come in, and they're

      12      so distraught, they get lost talking about Christmas

      13      and weddings.

      14             And I don't -- I don't mean to belittle that

      15      component at all, but --

      16             SENATOR TEDISCO:  Well, they need some relief

      17      in some way.

      18             JAMES FERGUSON:  -- absolutely.

      19             SENATOR TEDISCO:  And they do it in their own

      20      way.

      21             JAMES FERGUSON:  Absolutely.

      22             And it's one of the few times, Senator, that

      23      they actually get to participate and be heard in the

      24      system.

      25             SENATOR TEDISCO:  You said there was a way to


       1      work around this?

       2             What was that again?

       3             SENATOR GALLIVAN:  Well, by sending the

       4      transcript.

       5             And you could, as a commissioner, if you

       6      wanted to, say something, I guess, at the end of the

       7      transcript, if you felt that it was necessary or

       8      needed to be said.

       9             But there's no formal way for a victim-impact

      10      commissioner to give any other information, other

      11      than the transcript, to a presiding commissioner.

      12             SENATOR TEDISCO:  Are the families

      13      time-limited when they give their victim impact

      14      statement?

      15             JAMES FERGUSON:  Yes and no.

      16             They're not given a specific time.  They're

      17      not told, you've got an hour.

      18             But, if there's another victim impact

      19      scheduled in an hour and a half, by default, you

      20      sort of have a time limit.

      21             And when you do, offices, like my former

      22      office, the New York City office, you are regularly

      23      doing three or four of them on a Friday, so they're

      24      all back-to-back.

      25             SENATOR TEDISCO:  Okay.


       1             So, it really cannot be a factor, because if

       2      the real commissioners who are interviewing the

       3      person up for parole never get the information, or

       4      what the family members have to say, there's no

       5      victim impact statement there.  There's just a

       6      victim's representative speaking, because they're

       7      not getting any information.

       8             Is that right?

       9             JAMES FERGUSON:  Well, they'll get the

      10      transcript.  There's usually a copy of the

      11      transcript provided, and it's cumulative.

      12             So if a victim appears before a board, and

      13      someone gets held for two years, they come back two

      14      years later, the prior information is contained in

      15      the file.

      16             SENATOR TEDISCO:  Yeah, a transcript is a lot

      17      different from me and you speaking and talking to

      18      each other.

      19             How about this:

      20             How about we change the law so we videotape

      21      the family members or the victim, and they're

      22      mandated to see it before they go to the parole

      23      commissioners to hear the individual who is up for

      24      parole?

      25             What would be wrong with that?


       1             JAMES FERGUSON:  I absolutely concur with

       2      that recommendation.

       3             SENATOR TEDISCO:  Would we need legislation

       4      to do that?  Or --

       5             JAMES FERGUSON:  I think it could be handled

       6      through a rule change on how the parole board

       7      conducts the victim impact.

       8             I don't think that that's necessary.

       9             SENATOR TEDISCO:  Who would make the rule

      10      change?

      11             JAMES FERGUSON:  Well, it would have to go

      12      through counsel's office, the chair.  The board

      13      would have to review the different considerations.

      14             I think, for the rules and regulations, it's

      15      open to public comment.

      16             So there is a process to go through to get

      17      the change done.

      18             Whether or not that's necessary, I think

      19      counsel's office would have to answer that question,

      20      but, I think that's, perhaps, the best solution.

      21             The only problem in the past has been, and

      22      this is another one of the areas that I've

      23      complained about, and has not been fixed, is, when

      24      we get the DVDs, whether it's from the victim, or

      25      even from inmates, by the time we get them, there's


       1      no equipment, either on the site of the video

       2      conferencing or within the individual offices,

       3      that's necessarily available to the commissioners to

       4      view that.

       5             So unless you're taking -- unless you have

       6      sufficient time to take that home with you and view

       7      it at home, it doesn't get seen.

       8             SENATOR TEDISCO:  Do you think the family

       9      members of the victim feel they don't want to come

      10      before the board, knowing what we know about the

      11      fact that the real board members who are at the

      12      parole hearing may never see their statements?

      13             Do you think that has an impact on them being

      14      willing to come up, as you mentioned, every two

      15      years to go through the trama and the consequences

      16      of what happened?

      17             JAMES FERGUSON:  I think they have a concern.

      18             And it's actually something that's been

      19      expressed to me quite a bit recently, that they feel

      20      that the victim impact means nothing.  People are

      21      following the COMPAS, and whatever else anybody else

      22      says does not matter.

      23             I think victims are grossly mistreated in the

      24      process.  And I've had numerous different

      25      suggestions to try to escalate our treatment of


       1      victims, that just have not worked --

       2             SENATOR TEDISCO:  Just quickly, 24 months, is

       3      that a good idea, or bad (indiscernible) to have

       4      that happen every two years?

       5             JAMES FERGUSON:  From a victim's standpoint,

       6      it's an absolutely terrible idea.

       7             I have seen victims -- since I was there for

       8      13 years, I have seen victims three and four times.

       9             And the pain never goes away.

      10             These families are utterly destroyed.

      11             Some even remarry and move on, and they still

      12      can't move on.

      13             It's something that is unfortunate.

      14             And I think, again, the victims are just done

      15      a disservice in the way the process is handled.

      16             SENATOR TEDISCO:  Thank you, Commissioner.

      17             JAMES FERGUSON:  Thank you, Senator.

      18             SENATOR GALLIVAN:  Senator Griffo.

      19             SENATOR GRIFFO:  Thanks for being here, Jim.

      20             JAMES FERGUSON:  Thanks, Senator.

      21             SENATOR GRIFFO:  Do you agree that parole is

      22      probably considered an important part of our

      23      criminal justice system and process?

      24             JAMES FERGUSON:  It's essential.

      25             SENATOR GRIFFO:  So, you've indicated that


       1      you've been very frustrated in your time on the

       2      parole board.

       3             You had some input in trying to develop some

       4      training requirements.

       5             But, some of the things you've talked about

       6      here are very concerning if you really predicate

       7      that on what we just said; that this is an important

       8      part of the entire criminal justice process and

       9      system.

      10             So, what's the root of that frustration,

      11      then?

      12             Were you not being heard, were members of the

      13      board not being heard, relative from either the head

      14      of the commission, the chairperson, or the

      15      administration?

      16             JAMES FERGUSON:  Probably a little bit of

      17      everything.

      18             I think, ultimately, if there's the will in

      19      the administration, then there will be the will

      20      within the chairperson, and that means things can

      21      happen.

      22             There are things, I guess, that people don't

      23      want to rock the boat on.

      24             There are -- sometimes we had to -- taken a

      25      stand.  Not only as a commissioner, but as an


       1      attorney, I felt I had an ethical responsibility

       2      under certain circumstances.

       3             We would have individuals who would be

       4      corrections officers, and they would be the

       5      interpreter for the inmate.

       6             You know, talk about a conflict of interest.

       7             We actually had to stop seeing cases to force

       8      them to change this practice, even though we were

       9      given a letter telling us not to do that.

      10             So, there's a lot of frustration within the

      11      process.

      12             Regularly, commissioners are not -- and you

      13      have decades, if not hundreds of years of experience

      14      of people in the criminal justice system on the

      15      board.  And they are often cast aside to fit the

      16      agenda of whatever the administration is.

      17             SENATOR GRIFFO:  And you think that,

      18      basically, then, either designation or the tenor is

      19      really more reflected on a political philosophy than

      20      on good public-safety philosophy?

      21             JAMES FERGUSON:  Yeah, I think whichever

      22      administration, I think it can go both ways.

      23             You know, you have people on both ends of the

      24      criminal justice spectrum.

      25             There are people who believe that everybody


       1      should be in prison and they should all be there

       2      forever.

       3             Then you have people on the other side who

       4      believe that everybody should be released from

       5      prison.

       6             Obviously, the answer is in the middle, and

       7      you have to have an administration that agrees with

       8      that philosophy.

       9             Unfortunately, what happens is, when you have

      10      what we've had, a very prosperous period of low

      11      crime, which is, of course, a large part due to new

      12      police tactics, but I would submit that it's also,

      13      in part, that the parole board, for a period of

      14      time, was holding a lot of violent felons in.

      15             You have another philosophy that is more

      16      geared towards release, and I think that's what

      17      we've been seeing lately.

      18             SENATOR GRIFFO:  So in order to have a fairer

      19      system, and a more balanced system, do you believe

      20      there's a better way to select commissioners --

      21             JAMES FERGUSON:  Absolutely.

      22             SENATOR GRIFFO:  -- to serve on the board of

      23      parole.

      24             JAMES FERGUSON:  Absolutely.

      25             SENATOR GRIFFO:  And do you believe now


       1      they're based more on politics than on professional

       2      credentials?  Would that be your impression?

       3             JAMES FERGUSON:  I would say politics is a

       4      very significant, and too significant, part of the

       5      process.

       6             It should be credential-based.

       7             When you talk about people having five years

       8      of experience to serve on the parole board, I think

       9      it should be at least ten, if not more.

      10             You talk about medical doctors,

      11      psychologists, psychiatrists, sociologists,

      12      criminologists, being on the parole board.

      13             My personal experience, and maybe I'm biased

      14      because I'm a former trial prosecutor, is I think

      15      the board should be split even between people who

      16      are defense attorneys and people who are

      17      prosecutors.

      18             I have had the privilege of working with

      19      people who are on the complete opposite side of my

      20      views in the criminal justice spectrum.  But when we

      21      were able to sit down and engage one another, some

      22      really good decisions were made on cases.

      23             So I think it's very important to have that

      24      balance.

      25             And when you don't, we go back to days where


       1      either no one is released, or everybody is released

       2      and there's a crime wave as we had back when

       3      Giuliani and Pataki were in office.

       4             SENATOR GRIFFO:  Thank you, Chairman.

       5             SENATOR GALLIVAN:  Senator Akshar.

       6             SENATOR AKSHAR:  James, how long have you

       7      served -- how long did you serve for?

       8             JAMES FERGUSON:  Just about 13 years on the

       9      parole board.

      10             SENATOR AKSHAR:  Would you say that members

      11      of the board are overworked?

      12             JAMES FERGUSON:  Without question.

      13             SENATOR AKSHAR:  On average, how many cases

      14      are you seeing a day?

      15             If Tuesday was your day, how many cases would

      16      you see?

      17             JAMES FERGUSON:  I'll give you the two worst

      18      examples.

      19             The two worst examples I had, is we start at

      20      7:30 in the morning, reviewing cases.  And there

      21      was, the worst day I had was, we worked until 1 a.m.

      22      of the following morning, without dinner breaks, and

      23      things like that.

      24             The worst calendar scenario was, we went in

      25      and we had 119 cases scheduled to be seen, and that


       1      normally was supposed to take place within a two-day

       2      range.

       3             For the most part, the -- especially with two

       4      commissioners.

       5             One of the big recommendations I would make

       6      to you is, you've got to fill the board up.

       7             The board has to be filled up.  It's the only

       8      way to fairly and properly get through the cases.

       9             But without question, Senator, they are --

      10      there are too many cases, they're overworked.

      11             SENATOR AKSHAR:  So you talked a lot -- or,

      12      Senator Gallivan talked a lot about, what are the

      13      considerations, and what are the factors?

      14             So, in such a short period of time, and such

      15      a huge caseload, how are you, or anyone else,

      16      supposed to make an educated decision about what to

      17      do with the life of somebody that is sitting before

      18      you?

      19             JAMES FERGUSON:  That's the unfortunate thing

      20      about administrations not respecting institutional

      21      knowledge.

      22             You need people who have been there for a

      23      long time and understand the workings of a variety

      24      of cases; they've seen everything.

      25             When you talk about trying to get through


       1      these cases, fairly and justly, so that you give not

       2      only the inmate a fair and accurate hearing, and

       3      give them a due opportunity to be heard, but you

       4      make sure that you're reading everything that you

       5      need to read to protect the public.

       6             And, it's challenging, even if you know what

       7      to do.  With 13 years, I found it still challenging

       8      to get through the information I had to get through.

       9             It's an unfair process to everybody involved.

      10             SENATOR AKSHAR:  One of the factors that you

      11      consider, is it the opinion of law enforcement and

      12      where they fall on a particular case?

      13             JAMES FERGUSON:  They don't get called.

      14             There was a time that a recommendation was

      15      made by me to have unions -- law-enforcement unions,

      16      since they have a special relationship with the

      17      people that are killed, and, perhaps, even

      18      assassinated, that they might have the special

      19      standing.

      20             But many of the unions do a good job of

      21      providing letters of opposition to the release of

      22      individuals, and law enforcement who have been

      23      killed.

      24             SENATOR AKSHAR:  So you weigh that?

      25             JAMES FERGUSON:  Oh, absolutely, without


       1      question.

       2             SENATOR AKSHAR:  How about the community at

       3      large?

       4             Same scenario, if the community was outraged

       5      about a particular case, they could opine on that,

       6      and then that would be part of your review process

       7      as well?

       8             JAMES FERGUSON:  Yes.

       9             SENATOR AKSHAR:  Okay.

      10             Let me shift my questioning.

      11             Every crime is terrible and -- but some

      12      criminal action, you know, is referred to as "high

      13      profile."  Right?

      14             A particular homicide case may be high

      15      profile.  A robbery case may be high profile.

      16             If this person, let's just say, for murder of

      17      a police officer, was up in 2018, and you sat on

      18      that particular case, would you hear that case, and

      19      that person was denied parole, would you hear that

      20      case again two years later?

      21             JAMES FERGUSON:  That's another issue,

      22      Senator, is that you can have the same commissioner

      23      time and time again.

      24             I've recommended scheduling adjustments to

      25      plan out, if I'm still commissioner in two years,


       1      that, on this date, I don't go to this facility

       2      where this inmate is.

       3             Sometimes the problem with that is, you have

       4      inmates that get transferred.

       5             So I may make an effort to not be at

       6      Otisville, and go to Eastern.  But now that person's

       7      been transferred to Eastern.

       8             But, yes, all too often, commissioners see

       9      the same people.

      10             SENATOR AKSHAR:  Is it uncommon for -- let's

      11      say, three commissioners were scheduled to hear the

      12      case of a high-profile cop-killer, and shortly

      13      before that case came to fruition, a parole board

      14      member was changed, was taken off that case, and

      15      then someone else was put on.

      16             Is that abnormal?

      17             JAMES FERGUSON:  It's not normal.

      18             I don't know that I would say it's abnormal.

      19             You do have commissioners that are going to a

      20      wedding, their daughter is graduating, and so

      21      they -- or they're sick, and they can't be on a

      22      panel.

      23             So, maybe there's an important case that's

      24      going to be heard.  So you don't want it to possibly

      25      be a lack of consensus with two commissioners, so


       1      you schedule a third commissioner there.

       2             We try to stay away from that because it has

       3      an appearance of impropriety.

       4             SENATOR AKSHAR:  Sort of like in a

       5      Herman Bell case?

       6             JAMES FERGUSON:  I'm not familiar with the

       7      scheduling.

       8             I'm familiar with the Bell case.  I sat on

       9      the Bell case twice before.

      10             But I am not familiar with what the

      11      scheduling scenario was.

      12             SENATOR AKSHAR:  Let me ask the question a

      13      different way.

      14             How far out in advance are the commissioners

      15      scheduled to hear a particular case?

      16             I'm sorry.

      17             JAMES FERGUSON:  Again, another one of my

      18      bones of contention.

      19             Commissioners should be given a schedule for

      20      six months, if not the entire year.

      21             You spread the commissioners out evenly to

      22      every single facility, so the public -- it's shown

      23      to the public and to the inmates that there's no

      24      fooling around going on.  Everybody is equally

      25      spread out to every facility.


       1             If I have to change something because of a

       2      vacation, or something else like that, it should get

       3      put in writing, and then changed.

       4             I had periods where we, literally, didn't

       5      know where we were going to be the next week.  And

       6      that's just really unacceptable.

       7             SENATOR AKSHAR:  As a member, have you ever

       8      felt the pressures to clear cases, and to clear

       9      cases a certain way?

      10             JAMES FERGUSON:  I've never had anyone

      11      specifically say to me to do something with cases.

      12             I have heard, high ranking, Oh, you guys

      13      don't release enough people.

      14             I've heard people say things like that years

      15      ago.

      16             But, you never get told.

      17             You have influences when you are in the

      18      parole board, and you're having a meeting, and you

      19      are having guest speakers, and all three of those

      20      guest speakers are former inmates for murder.

      21             One of those people is involved in the murder

      22      of a police officer.  And I think on that very day

      23      there's a plaque being put up on a bridge to one of

      24      the officers who were killed.  And you're,

      25      literally, being lectured.  You're a captive


       1      audience, you're being lectured to.

       2             You always want -- like I said, information

       3      is valuable.  I think it's important to hear what

       4      people have to say.

       5             But when, repeatedly, you are getting

       6      information that leans towards releasing people, my

       7      perception is, is I think that that's an attempt to

       8      influence.

       9             So whether or not it meets any type of legal

      10      standard, you know, that's another story.

      11             SENATOR AKSHAR:  Yeah, so you talked a little

      12      bit about politics coming into play in this

      13      particular arena.

      14             And so let me ask you a particular question.

      15             Are you familiar with anyone trying to

      16      influence the outcome of a hearing?

      17             JAMES FERGUSON:  I mean, you get

      18      statements --

      19             SENATOR AKSHAR:  Directly.

      20             JAMES FERGUSON:  Directly?

      21             SENATOR AKSHAR:  Yep.

      22             JAMES FERGUSON:  -- again, with the exception

      23      of getting statements from victims, getting

      24      statements from the public or from unions, that, of

      25      course, is trying to influence you to make a


       1      decision.

       2             I have never had, and I've never heard from

       3      any of my fellow commissioners, that someone got a

       4      call or someone was told, Hey, listen, you know,

       5      this case is coming up.  You got to do this or that

       6      with it.

       7             That's never been done.

       8             SENATOR AKSHAR:  And so, unfortunately, you

       9      know, I think you're well-healed, and you have a

      10      great deal of experience in this, in this particular

      11      arena, much more than many of us up on the dais,

      12      maybe with the exception of Senator Gallivan because

      13      he served.

      14             You know, I'm fearful that politics does, in

      15      fact, play a role in the outcome of this particular

      16      work, because you made the comment, you know, the

      17      will of the administration is generally the -- you

      18      know, the will of the chairperson.  And then,

      19      ultimately, you know, the direction that an

      20      administration wants to go is generally the

      21      direction the chair wants to go.

      22             And I think, while we're talking about direct

      23      impact, I think, in fact, politics does come into

      24      play, and it does indirectly affect the outcome of

      25      what you're trying to do.


       1             JAMES FERGUSON:  Senator, when the governor

       2      appoints people, you know, usually he or she is

       3      going to appoint someone that is in concurrence.

       4             So people appointed by Governor Pataki are

       5      probably going to have a different mindset than

       6      people appointed by Governor Paterson.

       7             So, in that sense, I think politics is there.

       8             But there are certain things that are just so

       9      important, that it needs to be above politics.

      10             And when you deal with matters of community

      11      safety, and you deal with matters of fairness to

      12      people who may spend their entire life in prison,

      13      and you have to balance that, it's important to have

      14      a balance on the board.

      15             If you don't, in the end, in my opinion, and

      16      from my past experience, disaster usually results.

      17             SENATOR AKSHAR:  Yeah, the unfortunate part,

      18      and I'll end on this, is that, unfortunately, in

      19      this city, things change with the wind.

      20             And while you may be strong in your

      21      convictions, and others who serve as a member of the

      22      board may be strong in their convictions, I think

      23      that indirect influence, or indirect outcomes of

      24      things, changes with political winds, based on what

      25      is happening to some.


       1             So I just want to publicly thank you for

       2      being a member, and for standing firm in your

       3      convictions as you tried to do this work.

       4             JAMES FERGUSON:  Thank you.

       5             SENATOR AKSHAR:  Chairman, thank you.

       6             SENATOR GALLIVAN:  Senator O'Mara.

       7             SENATOR O'MARA:  Yes, thank you,

       8      Mr. Ferguson, for being here.

       9             JAMES FERGUSON:  Thanks.

      10             SENATOR O'MARA:  How many commissioners are

      11      there?

      12             JAMES FERGUSON:  Currently there's 12.

      13             SENATOR O'MARA:  And how many are vacant?

      14             JAMES FERGUSON:  The maximum is 19.

      15             SENATOR O'MARA:  19?

      16             JAMES FERGUSON:  Yes.

      17             SENATOR O'MARA:  Do you think -- so a third

      18      of the commissioners are vacant right -- over a

      19      third is vacant right now?

      20             JAMES FERGUSON:  Yes, sir.

      21             SENATOR O'MARA:  Do you think 19 is enough to

      22      handle the caseload that you have of these parole

      23      reviews?

      24             JAMES FERGUSON:  I was on the board only for

      25      a brief moment in my 13 years where we had 19, and,


       1      it was night and day.

       2             I mean, you were -- and people don't get

       3      this.

       4             And even -- there was a time that we had to,

       5      literally, run around to all the senators to explain

       6      to them how we do our work, because there was some

       7      political nonsense going on.

       8             So we had to go around and explain to all the

       9      senators we could, this is what we do and this is

      10      how we do it.  We're probably the hardest-working

      11      board that there is.

      12             You travel on Monday.

      13             You work on the two days.  Now it's

      14      stretching into the third day, and then you're

      15      supposed to travel back and then do victim impacts

      16      and paperwork, which includes three-year discharges,

      17      which not a lot of people are familiar with, on that

      18      day.

      19             But 19, Senator, would be ideal.

      20             Could you survive with 18?  Yes.

      21             Could you do 17?  Yes.

      22             Once you start to get below that, it's

      23      challenging, because you have -- you really should

      24      have three commissioners on each board.

      25             And right now, with four boards, if they had


       1      that, no commissioner could get sick, no

       2      commissioner could take vacation, and you would be

       3      working every week of the year.

       4             SENATOR O'MARA:  So every week you're on a

       5      panel, that you're working?

       6             JAMES FERGUSON:  With this number, 12, you're

       7      working.

       8             There were times where -- when we had

       9      numbers, like 19, that you would have an office

      10      week.  You would get to go in and do paperwork.

      11             But with this number of 12, you're either on

      12      vacation or you're working.  There's no other way

      13      out of it.

      14             SENATOR O'MARA:  So on a given day that

      15      you're on a panel, and you're either going to

      16      complete that panel -- complete those hearings in

      17      one day or two days is what you're allotted to do

      18      it.

      19             And you go in on a day where you've got, you

      20      said your worst day was 119 cases.

      21             What would an average day be?

      22             JAMES FERGUSON:  I would say an average day

      23      would probably be in the area of 40 interviews,

      24      30 interviews, somewhere around there.

      25             Depending on what facility you are in, and


       1      sometimes you're bouncing around -- well, you're --

       2      video, it would be a video, you're bouncing around.

       3             Before we used to have to drive to three or

       4      four facilities in a day.

       5             But, yeah, I would say, you know, in the "40"

       6      range would probably be a reasonable number.

       7             SENATOR O'MARA:  Yeah, so 40 is a reasonable

       8      number, and up to 119 the worst you had.

       9             And you get these files the morning you

      10      arrive?

      11             JAMES FERGUSON:  Yes, sir.

      12             SENATOR O'MARA:  For the board?

      13             JAMES FERGUSON:  Yes, sir.

      14             SENATOR O'MARA:  Wouldn't it be preferable to

      15      have those files ahead of time?

      16             JAMES FERGUSON:  Senator, I have said --

      17      I didn't want to be too, you know, rambunctious,

      18      but, after my second year, and I felt I knew what

      19      I was doing, I started to suggest that we have

      20      commissioners assigned to specific offices, and we

      21      use the technology that states like Texas have been

      22      using since 15 years ago, where each commissioner

      23      can video out to every prison from every location in

      24      the state.

      25             So a senator from Buffalo-- excuse me,


       1      Senator.

       2             A commissioner from Buffalo could video in to

       3      Otisville.  Me in New York, I could video in to

       4      Otisville.

       5             Now, I'd go to the office, Monday through

       6      Friday, 9 to 5.

       7             I would be able to give these files fair

       8      review and consideration, which, of course, protects

       9      the public and assures the inmate of a fair hearing.

      10             Of course, you know, that involves an

      11      investment, so, that fell on deaf ears.

      12             But that's the only way, really, to do it,

      13      to -- you need more time to review these files

      14      fairly.

      15             SENATOR O'MARA:  Are the files digitized

      16      or --

      17             JAMES FERGUSON:  No.

      18             SENATOR O'MARA:  -- computer-accessible?

      19             JAMES FERGUSON:  No.

      20             And there are states that do have that as

      21      well.

      22             SENATOR O'MARA:  So you show up in the

      23      morning and you get handed a box full of files, or

      24      manila folders, or whatever the -- what's the

      25      physical makeup of the --


       1             JAMES FERGUSON:  It is, literally, a box, and

       2      inside it are folders.

       3             Some of them, depending how long the person's

       4      been in prison, will have two 8-inch-thick folders.

       5             The average folder is probably about 3- or

       6      4-inches thick, depending on how long the person has

       7      been in and what their history is.

       8             But you get a box, or two, or three.  And

       9      then you get boxes of what we call "paper cases,"

      10      which means we have to review the file, and decide

      11      what types of conditions (indiscernible).

      12             And then there are other emergency cases that

      13      come in, that we may have to sign off on and review

      14      as well.

      15             SENATOR O'MARA:  Okay.

      16             How far in advance of the actual hearing date

      17      do you get the list of inmates that you're going to

      18      be reviewing?

      19             JAMES FERGUSON:  I think it's about a week.

      20             SENATOR O'MARA:  A week in advance?

      21             JAMES FERGUSON:  If -- when we used to get

      22      the board pre-report -- the pre-board report,

      23      I don't even remember the last time I got one of

      24      those.

      25             And I've been out for a while, but, many


       1      things have fell by the wayside as a result of the

       2      merger.  And that was one of them.

       3             SENATOR O'MARA:  Uh-huh.

       4             Now, you were talking about the video before,

       5      and if you were able to do it from your home office,

       6      I guess, rather than all getting together as the

       7      panel and sitting around the same table.

       8             JAMES FERGUSON:  Yes.

       9             SENATOR O'MARA:  What does -- and you all can

      10      see the inmate.

      11             What does the inmate see?

      12             JAMES FERGUSON:  The inmate will see

      13      whoever's talking.

      14             When you first start the interview, the

      15      inmate is given a view of all three commissioners.

      16             And then, when he sits down, and if I'm the

      17      lead commissioner, I would be, like, Good morning,

      18      sir.  Have a seat.

      19             And then the staff will push a button and it

      20      will focus on me.

      21             If Commissioner Gallivan, or

      22      Commissioner Elovich has a question, the camera will

      23      pan over to them, and then he will see the person

      24      speaking.

      25             SENATOR O'MARA:  Okay.  So the inmate's


       1      really only seeing one person at a time?

       2             JAMES FERGUSON:  Correct.

       3             SENATOR O'MARA:  Now, if you get that list of

       4      cases you're going to review a week ahead of time,

       5      if these files were digitized and available online

       6      or on the computer, somehow, you would have an

       7      opportunity over that week to look at cases, at

       8      least maybe cases of greater concern to you than

       9      others?

      10             JAMES FERGUSON:  It depends, Senator, on

      11      where you're going to be.

      12             If I'm in New York and I'm going to Buffalo,

      13      my understanding is, now they're doing this

      14      ridiculous practice of "no flying," which means

      15      someone would drive from New York City to Buffalo,

      16      which actually costs more than flying.

      17             If I have to do that, then I'm not going to

      18      have time to review even digitized files, unless I'm

      19      staying up late on a particular night after how many

      20      hours of driving, or how many -- I mean, you know,

      21      as I said, I've done, you know, 18-hour days on the

      22      parole board.

      23             So, if it was digitized, I think there would

      24      probably be a way for us to work it out, especially

      25      if we had more commissioners, we would be able to


       1      have the time to properly and fairly review the

       2      files, yes.

       3             SENATOR O'MARA:  Okay.

       4             Who's making the determination of which three

       5      commissioners are going to be on a panel, next

       6      Wednesday?

       7             JAMES FERGUSON:  Traditionally, it was the

       8      chairperson.

       9             Then it went to some computerized system,

      10      which, my understanding, was still subject to

      11      manipulation.  And, of course, still subject to

      12      changes after it's made.

      13             I am not sure what the current practice is

      14      with Chairwoman Stanford, if she's still utilizing

      15      that computerized program.

      16             SENATOR O'MARA:  Okay.

      17             So that, that panel, then, could be

      18      determined after it's determined what cases are

      19      going to be before that panel?

      20             JAMES FERGUSON:  Absolutely, because you know

      21      when somebody's coming up for parole.

      22             If I have 15 to life, you know when I'm

      23      coming up for parole.

      24             So, that panel will be composed with

      25      potential aforeknowledge of what cases will be


       1      coming.

       2             SENATOR O'MARA:  Given the caseload that we

       3      have, and it's been brought up here about the

       4      24-month review period for these cases, and you have

       5      to review every parole matter every 24 months, in

       6      your experience, are there just certain matters

       7      that -- that you know that it's just not time yet,

       8      and you really don't need to see that case every

       9      two years, and it could go a longer period of time

      10      before it might be ripe for a real consideration of

      11      release?

      12             JAMES FERGUSON:  Yes, sir.  You can have

      13      cases similar to the Berkowitz case, where he

      14      received six consecutive 25-to-life sentences.

      15             But because of the way New York law is

      16      drafted, they all merge, and he's available after

      17      25 years, like any other individual who may have

      18      killed one person, that he would be up for parole.

      19             So -- I'm losing my train of thought here as

      20      to what your question was.

      21             SENATOR O'MARA:  That's okay.  It's been a

      22      long time.

      23             But, really, if there are certain types of

      24      cases that, really, longer than 24 months would be

      25      an appropriate time, rather than wasting the board's


       1      time every two years to look at these cases over and

       2      over, and run the victims through it over and over

       3      every two years.

       4             JAMES FERGUSON:  I have seen cases where

       5      I believe that the person may merit, you know, a

       6      longer hold than 24 months.

       7             Other states do holds of 5 and 10 years.

       8      It's not unreasonable.

       9             The practice is, ultimately, incredibly

      10      unfair to the victim.

      11             And there are inmates whose cases, you know,

      12      such as a multiple-murder case, that person may

      13      deserve greater than a 24-month (indiscernible).

      14             And, of course, keep in mind, we can always

      15      do less.  We can do anywhere from the 1 to

      16      24 months.

      17             SENATOR O'MARA:  Right.

      18             JAMES FERGUSON:  But, I would agree with

      19      that, that certain types of cases --

      20             SENATOR O'MARA:  A current pending piece of

      21      legislation has to deal with 48 months for certain

      22      high-level violent crimes, such as murder, rape, the

      23      most serious of crimes.

      24             And then it would even still, then, be in the

      25      board's discretion if they wanted to hold one


       1      earlier than 48 months.

       2             JAMES FERGUSON:  Yes, that --

       3             SENATOR O'MARA:  Does that sound unreasonable

       4      to you?

       5             JAMES FERGUSON:  -- yeah, I would not say it,

       6      of course, across the board for all cases.  There's

       7      not -- you know, the lesser offenses, of course,

       8      I don't think even come close to requiring a 5-year

       9      hold.

      10             But there are, without question, cases in the

      11      system that a 5-year hold would be justified.

      12             SENATOR O'MARA:  Yeah.

      13             And the final point I want to go over with

      14      you, on the factors to consider for release on

      15      parole, the factor of, that "the release on parole

      16      will not so deprecate the seriousness of his crime

      17      as to undermine respect for the law."

      18             That's, obviously, very subjective, as a lot

      19      of these criteria are, in making your decision.

      20             What type of training, if any, are the

      21      commissioners given in whether or not "the release

      22      would so deprecate the seriousness of the crime as

      23      to undermine respect for the law"?

      24             JAMES FERGUSON:  None, to my knowledge.

      25             SENATOR O'MARA:  In your experience, how


       1      often does that factor come into play in a

       2      particular panel's determination of a case?

       3             JAMES FERGUSON:  For the very serious

       4      offenses, such as cases like the Bell case, there

       5      are rape cases where people have received

       6      significant sentences.

       7             There's a fair number of cases that come in

       8      where the inmate can be the perfect inmate.  They've

       9      done everything they possibly can.  They perhaps

      10      even demonstrate a genuinely changed person.

      11             But, sometimes there's just -- enough time

      12      has not been done, because of this component of the

      13      serious nature of the offense and undermining

      14      respect from the law.

      15             You know, what is the public going to say if

      16      you release Charles Manson.  Okay?

      17             So, there are those cases that, without that

      18      component, and I know that inmate advocates advocate

      19      getting rid of that, but that means every single

      20      person who comes in, and does their programs, gets

      21      out, even people who are dangerous to the community

      22      that they're purporting to serve.

      23             So, without question, there are very -- that

      24      is a very important part of the more serious

      25      offenses that we deal with, that -- having that


       1      component.

       2             You could have a person who's a perfect

       3      inmate.

       4             The statute provides, that if you have this

       5      "serious nature of the offense" portion of it, you

       6      can hold.

       7             But, back to the COMPAS, we've started to get

       8      to this, that, and the -- and you have to -- I've,

       9      literally, had judges say in an overturned case,

      10      Don't consider that.

      11             So you're telling me to not fulfill my sworn

      12      duty as a commissioner and as an attorney to uphold

      13      the laws of the state of New York, and ignore this,

      14      because you disagree with it?

      15             That's how, I think, fanatical the belief is

      16      on that.

      17             When you realize that that component is

      18      necessary, we either have to say that everyone gets

      19      out every time they complete their programs, which

      20      includes the worst of the worst, or, we have that

      21      component which means, there will sometimes be cases

      22      we disagree on, that this person should have got out

      23      or they shouldn't have gotten out.

      24             SENATOR O'MARA:  I would agree with you that

      25      it's a very important factor for the -- for


       1      upholding our criminal justice system as a whole,

       2      and not undermining it with premature releases.  And

       3      certain -- I mean, most people would say,

       4      Charles Manson should never get out.

       5             I don't think somebody that intentionally

       6      assassinates a police officer should ever get out,

       7      either.  That any release of that individual is

       8      undermining our criminal justice system.

       9             But, thank you, Mr. Ferguson, for your

      10      testimony here today.

      11             JAMES FERGUSON:  Thanks, Senator.

      12             SENATOR GALLIVAN:  And, finally,

      13      Senator Serino.

      14             SENATOR SERINO:  Thank you very much,

      15      Commissioner.

      16             I really learned so much today about -- and

      17      sadly, about the flaws in the system.  And I think

      18      it's so hurtful to the victims and to the inmates.

      19             And, actually, the reason I'm here today is

      20      because I wanted to learn more about the process,

      21      which you're helping me do, from hearing from people

      22      in my own district that have had problems with the

      23      parole board's decisions that they made.

      24             But I'm also a person who believes strongly

      25      in a person's ability to reform themselves after


       1      incarceration.

       2             Of course, I've taken issue with the way this

       3      whole thing was rolled out, bypassing the

       4      Legislature, not allowing the people to have their

       5      voice.

       6             It was just terrible on this important issue.

       7             And as a mom, not only as state senator, but

       8      the problem with allowing sex offenders to go and

       9      vote in the school without actually having a process

      10      in place.

      11             There was no guidance for our election

      12      officials or for our school districts.

      13             And I know I'm preaching to the choir, but

      14      I just wanted to say, thank you again.  I feel like

      15      I've learned a lot today.

      16             So thank you for your testimony.

      17             JAMES FERGUSON:  Thank you, Senator.

      18             SENATOR GALLIVAN:  Just a couple follow-up

      19      questions, and then we'll move on.

      20             You made reference to the type of individual

      21      that should serve on the parole board.

      22             JAMES FERGUSON:  Yes, sir.

      23             SENATOR GALLIVAN:  Currently, there are --

      24      are you aware that there are minimum qualifications

      25      for the positions, as outlined in the executive law?


       1             JAMES FERGUSON:  Yes, sir.

       2             Five years of experience, a degree, and then

       3      the multiple areas I mentioned before.

       4             SENATOR GALLIVAN:  In a couple different

       5      subject areas, the same ones that you spoke about

       6      earlier?

       7             JAMES FERGUSON:  Yes, sir.

       8             SENATOR GALLIVAN:  And are you aware of the

       9      process, how a member comes to be?

      10             Who puts the name forward, in other words?

      11             JAMES FERGUSON:  Well, I mean, there's --

      12             SENATOR GALLIVAN:  No, in government, who

      13      actually nominates the individual?

      14             JAMES FERGUSON:  -- oh, well, the governor,

      15      of course, is the person who has to nominate the

      16      individual.  But then the Senate must confirm

      17      whether or not that person will be appointed.

      18             SENATOR GALLIVAN:  And, naturally, because

      19      I don't know if you're going there or not, I wasn't

      20      going to, but the governor, likely, takes input from

      21      different members of the community, those that might

      22      have an interest in the type of individual

      23      appointed?

      24             JAMES FERGUSON:  Without question, yes.

      25             SENATOR GALLIVAN:  But it's, the law,


       1      dictates the minimum qualifications.  Is that

       2      correct?

       3             JAMES FERGUSON:  Yes, sir.

       4             SENATOR GALLIVAN:  All right.  Thank you.

       5             Now, we know the statutory factors.  We've

       6      gone over those time and time again.

       7             Senator Akshar brought up law-enforcement

       8      input or input from the community.

       9             The law very clearly requires you to consider

      10      certain factors; correct?

      11             JAMES FERGUSON:  Yes, sir.

      12             SENATOR GALLIVAN:  We've talked about them.

      13             Does the law preclude you from considering

      14      any other factors that the board deems relevant?

      15             JAMES FERGUSON:  Well, I mean, there are --

      16             SENATOR GALLIVAN:  To your knowledge?

      17             JAMES FERGUSON:  -- yes, there's some basic

      18      things.

      19             Like, someone may have --

      20             And I've had to correct fellow commissioners

      21      who don't come from a criminal justice background on

      22      this.

      23             -- they'll start discussing arrests that the

      24      person has, that were dismissed.

      25             So there are certain things by law that, you


       1      know, we're not allowed to consider, but it's not an

       2      exhaustive -- it's not an exhaustive list.

       3             SENATOR GALLIVAN:  To your knowledge, does

       4      the law preclude any type of input from the

       5      community or from law enforcement --

       6             JAMES FERGUSON:  It does not.

       7             SENATOR GALLIVAN:  -- for consideration,

       8      as -- so long as it's relevant to that case?

       9             JAMES FERGUSON:  It permits it.

      10             SENATOR GALLIVAN:  All right.  Thank you.

      11             And, finally, when did you -- when -- would

      12      you tell us again when you left the board?

      13             You were employed through, when?

      14             JAMES FERGUSON:  January of this year.

      15             SENATOR GALLIVAN:  January 2018?

      16             JAMES FERGUSON:  Yes.

      17             SENATOR GALLIVAN:  All right.

      18             Is there anything else that you might want to

      19      add?

      20             Now, keep in mind, we want to bring it to --

      21             And I know there are things connected.

      22      Training is connected, of course.  The conduct of

      23      the board -- or, the operations of the board are

      24      affected as well.

      25             -- but, going back to the statute, the


       1      statutory factors that must be required, the

       2      standards of release, and the board's compliance or

       3      accountability towards that?

       4             JAMES FERGUSON:  I have a list I would love

       5      to talk to you all about some other day.

       6             But, for today's purposes, before people

       7      start throwing at me for being here too long,

       8      throwing things at me, is the one thing I would

       9      comment on, Senator, is the COMPAS instrument.

      10             I, of course, was around for the origination

      11      of this instrument, and bringing it in.

      12             I objected to it, I objected to it on several

      13      grounds, because I feel, I don't know that I would

      14      use the word "deficient," but there are problems.

      15             One of those problems is, it would treat

      16      someone, and I'll use him again, like the Berkowitz

      17      case, it didn't have a mechanism to consider the

      18      fact that six people were killed, six people were

      19      wounded.  And on eight other occasions he went out

      20      hunting for other victims, but was unsuccessful.

      21             So that couldn't be included in his

      22      risk-assessment score.

      23             It also has issues for juveniles.

      24             One of the issues I had, and this is why

      25      I made a training tape for OCFS, for the kids that


       1      come in, all juveniles are, basically, marked as a

       2      high risk because of their age, which is, obviously,

       3      patently unfair.

       4             Sex offenders and mental-health individuals

       5      it also had issues with.

       6             So the COMPAS is, by far, not a perfect

       7      instrument.

       8             And I can tell you that, for quite some time

       9      after we had the instrument, I asked for feedback.

      10             Where's the -- show me this is working.

      11             Show me that the investment of our tax

      12      dollars is working, and the trust that we're placing

      13      in this to allow people out in our community is

      14      well-founded.

      15             We've never gotten information back, showing

      16      that these are all the people we scored as a low

      17      risk.  They went out there, and 7 out of 10 did

      18      perfectly.  Or, we were wrong 7 out of 10 times.

      19             Well, now I know there's something that

      20      I can't trust about your instrument.

      21             So that has never been provided.

      22             And as a former attorney, I take -- uh, a

      23      former -- current attorney, I take a negative

      24      inference on that.

      25             If you don't provide something, there must be


       1      a reason.

       2             So that's something we've asked for for quite

       3      some time, Commissioner (sic).

       4             And I think what's happening now with the

       5      COMPAS instrument, and the way things are being

       6      drafted in 8002 and 259-i, is they're trying to put

       7      the commissioners back in a corner, that when you

       8      get this COMPAS score, you must follow it.

       9             If you don't, even if it's a case where you

      10      believe the serious nature of the offense should

      11      control, you're required to write a novel saying why

      12      you disagree with COMPAS.

      13             So I think that's the current direction it's

      14      heading in, and that's why we are having some of the

      15      difficulties that we're having.

      16             SENATOR GALLIVAN:  If I can clarify, I want

      17      to make sure I have this right.

      18             The law requires a risk-assessment tool,

      19      risk-and-needs assessment tool.

      20             COMPAS is one of those tools?

      21             JAMES FERGUSON:  Yes, sir.

      22             SENATOR GALLIVAN:  Correct.

      23             COMPAS is not required by law.

      24             But a -- there could be -- there are other

      25      risk-and-needs assessments tools, risk-and-needs


       1      analyses, plural, that are out there.

       2             This is the one that the State has chose to

       3      use.

       4             Was that accurate?

       5             JAMES FERGUSON:  The State has chosen to use

       6      it.

       7             And, Senator, it's my understanding that it

       8      is required to be considered.

       9             And I think --

      10             SENATOR GALLIVAN:  No -- well, that's

      11      according to -- the actual law, the executive law,

      12      actually, it doesn't name COMPAS.

      13             It does talk about a risk-and-needs.

      14             JAMES FERGUSON:  -- oh, okay.

      15             Yeah.

      16             SENATOR GALLIVAN:  So the criticism of it is

      17      that particular instrument?

      18             That's what I'm trying to clarify.

      19             JAMES FERGUSON:  Yes, sir.

      20             Yeah, I understand.

      21             SENATOR GALLIVAN:  Not -- not the notion of

      22      the requirement of a risk-and-needs assessment.

      23             Just that, in your mind, absent these --

      24      absent these criticism or changes in that, that's an

      25      inadequate tool?


       1             JAMES FERGUSON:  Yes, sir.

       2             SENATOR GALLIVAN:  I don't want to put words

       3      in your mouth, but that's -- that's what you're

       4      getting at?

       5             COMPAS --

       6             JAMES FERGUSON:  Yes, that specific issue.

       7             SENATOR GALLIVAN:  -- not the --

       8             JAMES FERGUSON:  Whether there's a better

       9      instrument out there, you know, I couldn't say at

      10      this point.

      11             SENATOR GALLIVAN:  Okay.

      12             Appreciate your time.

      13             You've been very patient, and it was a little

      14      longer than we thought.

      15             But we thank you for being here --

      16             JAMES FERGUSON:  Thank you, all.

      17             SENATOR GALLIVAN:  -- and for your testimony.

      18             JAMES FERGUSON:  Thank you.

      19             SENATOR GALLIVAN:  Ulster County District

      20      Attorney Holley Carnright.

      21             And while the district attorney is making his

      22      way down, if I could put just into the record,

      23      I want to reference two provis -- two parts -- two

      24      portions, rather, of the chairwoman's,

      25      Tina Stanford's, testimony.


       1             One has to do with scheduling, and I quote:

       2             The parole board random assignment scheduling

       3      system computer program is used.

       4             The board schedules published monthly to the

       5      commissioners.

       6             I alone am authorized to make changes in the

       7      event of emergencies.

       8             I only assign specific commissioners to

       9      interview specific individuals when this is required

      10      by recision policy, a court order, or administrative

      11      appeal decision.

      12             Assignments are never made to impact the

      13      likelihood of a specific decision.

      14             End quote.

      15             And regarding the length of interviews, and

      16      the deliberations, I will quote:  I am satisfied

      17      that this present board takes the time they feel

      18      that they need with each person and case to be able

      19      to render a legitimate and responsible decision.

      20             Mr. Carnright, thanks for being here, and

      21      thanks for your patience.

      22             As you know, as we talked about the statutory

      23      factors, one of the factors that is required to be

      24      considered is the recommendation of the prosecuting

      25      attorney; or the district attorney.


       1             And that's what we had hoped to ask you

       2      about.

       3             So, if you're able, just to talk about your

       4      thoughts on that:  The process.  If the process

       5      works.  If it doesn't work, what recommendations for

       6      change you might have.

       7             And then we may have some questions.

       8             DA HOLLEY CARNRIGHT:  I wish I hadn't been

       9      here for the last two hours.  I learned a lot of

      10      things that I don't want to know.

      11             So, in Ulster County --

      12             I can't speak for all of the DAs throughout

      13      the state.

      14             -- but in Ulster County, when I receive a

      15      letter from the board, suggesting that an individual

      16      is going to go up before consideration, in most

      17      instances, I write a note back, saying, "Thank you

      18      for your notice," and I don't put anything specific

      19      out.

      20             But in some instances I do, and those are

      21      instances of the types of cases that I think you're

      22      concerned with today, and that we've all been

      23      talking about.

      24             I'm -- based on this last hour and a half --

      25             SENATOR GALLIVAN:  Excuse me, sir.


       1             Could you just pull the microphone closer to

       2      you?

       3             DA HOLLEY CARNRIGHT:  Oh, sorry.  Yeah.

       4             SENATOR GALLIVAN:  And then there should -- a

       5      little red dot should appear there that shows it's

       6      on.

       7             DA HOLLEY CARNRIGHT:  I see a red dot.

       8             Yeah, okay.

       9             SENATOR GALLIVAN:  We're good.

      10             DA HOLLEY CARNRIGHT:  Okay.

      11             -- the suggestion that the parole board gets

      12      12 minutes to review a file, and the amount of

      13      money -- amount of information that's in that file,

      14      leads me to believe that they're not looking at

      15      anything that I've sent up.

      16             But before we even get to that problem, when

      17      I get notices on cases, it's shortly after the

      18      defendant has been convicted.

      19             And many of the cases that I want to respond

      20      to will not go before the board for over a decade.

      21             Of course, I don't expect to be here at the

      22      time, and so I write notes to them.  I actually send

      23      them things that I think they should have.

      24             I send them things like crime-scene pictures.

      25      I send them victim statements.


       1             I prepare information that I think anyone

       2      that's going to make a decision on a person's

       3      release, should have.

       4             And from what I -- we heard from the previous

       5      speaker, they don't even have the equipment to put

       6      the CD in a computer and look at the crime scenes.

       7             I mean, that's a little bit of, what the

       8      heck? honestly.

       9             But at any rate, one of the problems that

      10      I wanted to address with you this afternoon was the

      11      inability, or the lack of, communication, I think,

      12      between the people involved in this process and the

      13      victims.

      14             If you've been the -- if your family has been

      15      the victim of a murder, and a person doesn't go

      16      before the board for 10 or 12 years, I'm not sure

      17      how they reach out and give the appropriate notice

      18      to that family to allow them to be there.

      19             I'll give you an example of the case that we

      20      just had in Ulster County.

      21             But the last year I was in law school, a few

      22      years ago, a fella named Ronald Krom broke into

      23      Trudy Farber's house, tied up her husband, and

      24      kidnapped her at gunpoint.  And, put her in a box,

      25      and put the box in a shallow grave.  And went to her


       1      father, who was a fairly wealthy individual, seeking

       2      ransom.

       3             And that individual tried to pay the ransom,

       4      it took a day or two.

       5             And by the time they got to Trudy, she had

       6      died in this -- she was buried alive in a shallow

       7      grave.

       8             He was just released by the parole board a

       9      couple weeks ago.

      10             No one contacted to me.

      11             This is Ulster County.  Of course, I wasn't

      12      the DA at the time, but I'm the DA today.

      13             And no one reached out to me and said, By the

      14      way, do you know that it's possible that this person

      15      might be released?

      16             I don't know, I don't have the records, of

      17      whether they tried to reach Mr. Resnick's family.

      18      But I know Mr. Resnick's family is still in

      19      Ulster County.

      20             That's troubling to me, frankly, a case of

      21      that magnitude.

      22             You started out your discussion, Senator,

      23      about the factors, the three important factors,

      24      whether he'll recommit, the seriousness of the

      25      offense, and the public confidence.


       1             And I think we're kind of 0-for-3 on a case

       2      like that.

       3             And, of course, I state the obvious, that in

       4      order to make an assessment of whether a person is

       5      going to reoffend, the primary information we're

       6      getting is from that individual, which is, I would

       7      argue to you, not a particularly reliable source of

       8      information compared to the seriousness of the

       9      crime.

      10             I mean, you know, what's the -- in essence,

      11      what are we doing?

      12             We're making a decision to release somebody,

      13      and give them an opportunity to scratch an itch

      14      that's been there for a long time.

      15             It's a very troubling process, not to allow

      16      the victims a chance to have direct input.

      17             So it -- I don't know if I'm answering your

      18      questions, but, in my county, in primary cases

      19      that I think warrant the safety of the people

      20      I represent, I take the time to write letters and

      21      send specific information to the parole board.

      22             I don't -- I've never -- there was one

      23      instance, it was a fairly minor case, by my

      24      standards.  It was a grand larceny.  A lady stole

      25      $700,000 from a local elderly lawyer.  And she's


       1      before the parole board a couple years after a

       2      5-year sentence.

       3             And I wrote a simple letter, saying, Can you

       4      explain why she's even before you?

       5             I mean, you know, based on the sentence, and

       6      my expectation of the working of the sentence, is

       7      why are we considering it?

       8             I didn't happen to get a response to that.

       9             Any way, what kind of questions can I answer

      10      for you?

      11             SENATOR GALLIVAN:  I think you hit on an area

      12      of potential concern, really, the process.

      13             So if I understood you right, that an

      14      individual is convicted.  And upon conviction,

      15      somebody from the department of community --

      16      corrections and community supervision, or the board,

      17      is reaching out to you shortly after conviction,

      18      asking for your input regarding parole?

      19             DA HOLLEY CARNRIGHT:  Right away.

      20             So, you know, as I get this letter, sometimes

      21      two months, three months following the sentencing

      22      date.  We don't get notice --

      23             SENATOR GALLIVAN:  And it could be -- all

      24      right.

      25             So let's just say a 25 to life, you're not


       1      getting it -- you're not getting notice or request

       2      for input that 25 years later?

       3             DA HOLLEY CARNRIGHT:  Correct.  When --

       4      when -- when -- at the time that the individual is

       5      actually going before the board, we're not getting

       6      any notice of that.

       7             And I don't know how they could even reach

       8      out to the victims.

       9             I mean, what -- what process would be in

      10      place, unless the victims have been in this

      11      situation where you've mentioned, where they go

      12      every two years before the board.

      13             Most victims aren't given these kind of

      14      notices.

      15             Most of them, there's victim services, of

      16      course.  But I'm not sure that they are even aware

      17      of their ability to appear.  And that --

      18             SENATOR GALLIVAN:  That's another -- we --

      19      actually, that's another area that we're looking to

      20      examine, I mean, how the victims get notice.

      21             Are you satisfied that you are -- or, to your

      22      knowledge, if you're able to answer, at least the

      23      notices that you're getting, that you're getting in

      24      every case, where somebody is sentenced to state

      25      prison, with the possibility of being eligible for


       1      parole, post conviction?

       2             DA HOLLEY CARNRIGHT:  I think we get -- well,

       3      we get a lot of them, so I assume we get all of

       4      them.

       5             I haven't received -- there are a couple of

       6      noteworthy cases I've prosecuted a couple years ago.

       7      I had two child beatings, and -- two separate cases.

       8             And I -- actually, before I came up, I looked

       9      to see what I had sent to the parole board on those

      10      cases, and I hadn't received notices on them.

      11             But, in general, we do receive notices.

      12             SENATOR GALLIVAN:  All right.

      13             Thank you.

      14             Any other questions?

      15             SENATOR AKSHAR:  I'm good.

      16             SENATOR SERINO:  I'm good.

      17             SENATOR GALLIVAN:  All right.

      18             You had a very narrow section of the law that

      19      applied.

      20             DA HOLLEY CARNRIGHT:  Well, thank goodness

      21      for that.  If you were going to --

      22             SENATOR GALLIVAN:  I appreciate your brevity,

      23      but thank you for taking the drive up, for being

      24      here.

      25             DA HOLLEY CARNRIGHT:  Could I mention two


       1      things, as long as --

       2             SENATOR GALLIVAN:  You can.

       3             DA HOLLEY CARNRIGHT:  -- it's always a danger

       4      to give a microphone to a DA, you know.

       5             When you -- when you make a note, that when

       6      the parole officers -- or, the parole board is

       7      receiving their PSIs in order to determine a

       8      person's prior criminal history, their juvenile

       9      record is not contained in that.

      10             And we, unfortunately, have had many people

      11      with very serious juvenile records.  And, generally

      12      speaking, you need a court order to get a family

      13      court or a juvenile record, that that would even go

      14      into the equation of whether to receive this

      15      information.

      16             That's something that it might be worth

      17      looking at.

      18             And I didn't know this, I'm embarrassed to

      19      say, I didn't know this until I looked at the

      20      statute on the way up here, but, according to the

      21      statute, there's a provision where there's a

      22      transcript made.  And, the victim, or the victim's

      23      representative, can receive a copy of that

      24      transcript, which I am glad I know that.

      25             I'm going to start to let my victims know


       1      about that.

       2             How hard would it be to give them a chance to

       3      review that before the board made a decision, in

       4      case they -- you know, if -- if -- let's just say,

       5      hypothetically, there was information that was

       6      presented that was in contest?

       7             The victim could say, Well, he may have told

       8      you this, but let me tell you what really happened.

       9             It's a pretty simple thing to fix, it seems

      10      to me.

      11             Thank you so much for your time.

      12             SENATOR AKSHAR:  Thank you, sir.

      13             SENATOR GALLIVAN:  Thank you, sir.

      14             Michael and Regina Stewart.

      15             Good afternoon.

      16             REGINA STEWART:  Hi.

      17             MICHAEL STEWART:  Good afternoon.

      18             SENATOR GALLIVAN:  So how about if we start,

      19      how about if you just give us your names, and it

      20      doesn't matter to me who goes first, and just a

      21      quick background.

      22             And I do know that you had a video that you

      23      wanted to present as testimony?

      24             REGINA STEWART:  That would be great.

      25             SENATOR GALLIVAN:  And we're going to do that


       1      at the beginning?  Or --

       2             MICHAEL STEWART:  Yeah, we just have a few

       3      slides, because we would like at least a visual,

       4      initially, of, you know --

       5             SENATOR GALLIVAN:  Sure.

       6             How about if you just, quick, give us your

       7      names, and just a brief background, and then we can

       8      move to that.

       9             REGINA STEWART:  Okay.

      10             Well, I'm Regina Stewart.

      11             And we're here to talk about our son

      12      Christopher, and what happened to us in 2012.

      13             MICHAEL STEWART:  And my name is

      14      Michael Stewart, and I'm Christopher's father.

      15             So, we have a couple different things to talk

      16      about.

      17             First of all, we want to thank the Committee

      18      for hearing us today and allowing us to testify on

      19      such an important topic to us.

      20             And, please keep in mind, you know, this --

      21      when we go through this process of parole, we,

      22      obviously, went through it for the first time.

      23             So we have, obviously, a lot of opinions on

      24      things and how things could work better.

      25             But we think we've learned a lot already in


       1      this first phase that we've gone through, where the

       2      offender, in our case, you know, has had his parole,

       3      it's been denied.

       4             And we've kind of gone through the process,

       5      and we think we have a pretty good feel on -- from a

       6      victim -- or, a victim's family perspective on how

       7      things will work.

       8             We're going to be talking briefly, very

       9      briefly about, as Regina mentioned, Christopher's --

      10      the crash that killed Christopher.

      11             But we also want to talk about a couple of

      12      initiatives that we know are on the table in terms

      13      of specifically extending the parole term, from

      14      two years, to five years, when a decision of denial

      15      is made.

      16             And, at the same time, definitely reinforcing

      17      being able to talk with three board commissioners

      18      rather than one, and the benefits behind that.

      19             So, do you want to talk about the events

      20      leading up?  Or do you want me to?

      21             REGINA STEWART:  No, you can.

      22             I just wanted to also say that we don't ever

      23      do this.

      24             I know you just see Mike and I here in front

      25      of you, but we come as three.


       1             And these are our son's ashes (holding up

       2      hand).

       3             And we advocate on his behalf, always three

       4      of us.

       5             So, for those that have a child that's older

       6      than 17, we're envious of you.

       7             We had a lot of plans with our son as well,

       8      and they're not to be.

       9             So this is Christopher at 17 (indicating),

      10      and he goes with us everywhere.

      11             So I just wanted to say that we do this as a

      12      family.

      13             MICHAEL STEWART:  So in 2012, December 1st of

      14      2012, you know, a day like any other day for us,

      15      Christopher, at this point, is halfway through his

      16      senior year at Shenendehowa, and enjoying his

      17      football season that he had just finished, and at

      18      the same time, anticipating many things; his high

      19      school prom, senior prom, high school graduations,

      20      preparing for college.

      21             All of these things we were so excited about,

      22      and Christopher was so excited about.

      23             As we mentioned, Christopher, outstanding

      24      football player.

      25             That's just one thing with Christopher.


       1             Big, six-foot-one, 250-, 260-pound person,

       2      indestructible, as we could feel in our minds.

       3             But, obviously, we found out that big of a

       4      person, that strong of a person, in a Ford Explorer,

       5      a good car, a good large, safe car, doesn't come to

       6      play when you've got a menace on the roads, and the

       7      things that lead up to it.

       8             So, on December 1, 2012, Christopher was

       9      traveling.  He went down to a ULV-Siena game down at

      10      the Times Union Center.  And he was driving with one

      11      of his -- or, actually, three friends: his

      12      girlfriend, Bailey Wind; his good friend

      13      Deanna Rivers, and her boyfriend, Matt Hardy.

      14             Chris went to the game.

      15             We left him that afternoon, gave him a hug.

      16      Said, "Be safe," as we always do.

      17             And that particular evening Chris was driving

      18      home from the event, was coming straight from the

      19      event.  Hadn't been out, hadn't been partying.

      20             Was just above Exit 8 on the Northway, and

      21      was driving the speed limit, as was documented by

      22      all the investigations, when this offender, who had

      23      been out drinking earlier before, basically, had

      24      five different shots of alcohol over the course of a

      25      couple of hours, admitted to smoking marijuana


       1      earlier in the day, he was speeding in the third

       2      lane, going in excess of 80 miles per hour, and he

       3      was texting.

       4             He decided to pull up behind Christopher at

       5      the last moment to get off an exit, hit Christopher,

       6      causing Christopher's car to fishtail across three

       7      lanes of traffic, until it hit the median dirt, and

       8      that's when the car rolled multiple times until it

       9      hit a bunch of trees in the median.

      10             Christopher was killed instantly.

      11             Deanna Rivers was thrown from the car,

      12      killed.

      13             And, Matt and Bailey somehow survived that

      14      particular crash.

      15             As you can see, Ford Explorer, very safe car.

      16             As you can see to the right, we have no idea

      17      how two people got out of this vehicle alive on that

      18      particular day.

      19             Picture.  This is our -- our picture of our

      20      family, the last family picture we had, which was

      21      Christopher's junior prom the summer before.

      22             You know, the pictures we take now, we know

      23      Christopher is there, as he's always there, but, for

      24      a family to have minus one, whenever family photos

      25      come up, it's pretty devastating.


       1             And, again, it's important for us, as we do,

       2      to take him places with us.

       3             But to not see him in pictures anymore is

       4      devastating.

       5             So, that's kind of the history behind it.

       6             We just wanted you to see Christopher, the

       7      person, here in this very, very brief video.

       8             (Video playing, transcribed as follows:)

       9                "INTERVIEWER:  What about the

      10        interception?

      11                "CHRISTOPHER STEWART: Oh, it was so much

      12        fun.  I've never had that kind of experience.

      13                "I saw the quarterback drop back and

      14        I kind of knew it was a screen.  So I just stuck

      15        my hand out there and tipped it, and the next

      16        thing I knew, it was in my hands, and it was just

      17        kind of off to the races from there.

      18                "It was a lot of fun."

      19                (End of video, and transcription thereof.)

      20             MICHAEL STEWART:  That's Chris, always

      21      upbeat.  Never a bad day in his life.

      22             So we got through -- somehow got through the

      23      next year.

      24             And this offender, he was basically free,

      25      from the time he killed our son Christopher, for


       1      370 days, by the time he was sentenced.

       2             370 days that we had to deal with waiting for

       3      him to be sentenced.

       4             At that point, we thought that we were away

       5      from the word "parole" for at least 4 1/2 years.

       6             His sentence was 5-year minimum, 15-year

       7      maximum, with also a 10-year conditional release

       8      mixed into the decision.

       9             We thought we were done with parole for a

      10      while.

      11             Within five months we get this letter

      12      (holding up a paper).

      13             "Please be advised that, in July of 2018, the

      14      above-referenced inmate is scheduled to appear

      15      before the parole board."

      16             Five months after, we're being notified

      17      already as to when the inmate is going to be up for

      18      parole.

      19             Not too much time for healing in that four-

      20      to five-month period.

      21             So, we're going to talk about -- we want to

      22      talk about a few things with our involvement with

      23      the parole process; things that we think work,

      24      things that we think definitely don't work.

      25             And if you wouldn't mind just kind of hearing


       1      us out, and then, at that point, we would love to

       2      entertain any questions that any of you might have.

       3             SENATOR GALLIVAN:  So the letter, with the

       4      notification, was that also the notice that you had

       5      the right to be heard?

       6             That was the purpose of their letter?

       7             MICHAEL STEWART:  The notice was, basically,

       8      the -- is just notifying us of when his parole was

       9      coming up.

      10             We had been notified prior to that by the

      11      district attorney's office, if we wanted to register

      12      to be notified when, in fact, he was going to be

      13      coming up for parole, and the provisions and

      14      everything behind it, as to if he was going to be

      15      moved from one facility to another.

      16             That's part of that registration process that

      17      we had done prior to.

      18             SENATOR GALLIVAN:  So, he's coming up for

      19      parole, or a parole hearing?

      20             MICHAEL STEWART:  He came up for parole in

      21      July.  He had his parole hearing in July of this

      22      year, 2018.

      23             His first potential release was going to be

      24      December of 2018, which would have been five years

      25      from the time that he was sentenced.


       1             So that's kind of the time frame between

       2      then.

       3             SENATOR GALLIVAN:  And you had the

       4      opportunity to provide -- to meet with a member of

       5      the board, or --

       6             MICHAEL STEWART:  We did.

       7             SENATOR GALLIVAN:  -- provide a statement?

       8             MICHAEL STEWART:  We had met with the board

       9      in June of 2018.  And, typically, they talk to

      10      families and their inmates 30 days prior to actually

      11      interviewing the inmate.

      12             SENATOR GALLIVAN:  Where did you have go for

      13      the interview?

      14             REGINA STEWART:  We do that right on

      15      Central Avenue in Albany --

      16             SENATOR GALLIVAN:  In a parole office?

      17             REGINA STEWART:  -- yeah -- uh, yeah, the

      18      crime victim --

      19             MICHAEL STEWART:  It's the office of --

      20      office of victim assistance, is what their

      21      department is called.

      22             They're the group that works with victims or

      23      victims' family.  They're kind of the interface

      24      between the families and the parole board, the

      25      parole commissioner's office.


       1             SENATOR GALLIVAN:  And they're the ones who

       2      sent you the notice?

       3             MICHAEL STEWART:  They -- I believe that,

       4      initially, they were the ones that sent us the

       5      notice, in terms of, if, in fact, we wanted to

       6      register to actually testify in front of a parole

       7      board member, yes.

       8             SENATOR GALLIVAN:  Now, I may have

       9      misunderstood that letter.

      10             So the hearing has conducted.

      11             And was the individual granted a release on

      12      parole?  Is that what that notice is?

      13             REGINA STEWART:  So this notice comes from

      14      the office of the district attorney from Saratoga

      15      County, which is where this crash took place.

      16             And so this came from their office in May of

      17      2014.  And Dennis Drue had been sentenced in

      18      December of 2013.

      19             So this came five months after his

      20      sentencing.

      21             SENATOR GALLIVAN:  No, I understand that.

      22             But I'm trying to ascer -- what's the status

      23      of the offender?

      24             Was -- has he had --

      25             REGINA STEWART:  So he --


       1             SENATOR GALLIVAN:  -- the parole interview?

       2             SENATOR AKSHAR:  -- yes, he had his parole

       3      interview in July.  He was denied parole.  And so he

       4      is still in Collins Correctional Facility in

       5      Buffalo.

       6             SENATOR GALLIVAN:  Were you notified after

       7      the hearing, or that's what the registration is

       8      about?

       9             What do you get with the original

      10      registration, I mean, as far as the notification?

      11             MICHAEL STEWART:  I'm sorry, could you say

      12      that again?

      13             SENATOR GALLIVAN:  When you registered, and

      14      you did that with, was -- were you working with

      15      victim services from the district attorney's office,

      16      or the state office of victim services?

      17             MICHAEL STEWART:  That's correct, no, it was

      18      the victims services advocates for the district

      19      attorney's office at that particular time.

      20             SENATOR GALLIVAN:  And then, ultimately, you

      21      would automatically get notice of certain things by

      22      registering?

      23             MICHAEL STEWART:  Correct.

      24             We would be notified of, again, when his

      25      parole would be coming up at particular times,


       1      whether he was going to be moved from one facility

       2      to another.  And that's pretty much it.

       3             I mean, we were not allowed any type of

       4      information as to, you know, his participation, his

       5      behavior, or anything like that.  That's not shared

       6      in any of that type of information.

       7             SENATOR GALLIVAN:  So he was held.

       8             Was it -- to your knowledge, was he held for

       9      a 2-year period, an additional 24 months?

      10             MICHAEL STEWART:  So far as we know, yes.

      11             SENATOR GALLIVAN:  And did they give you an

      12      indication that you would have the opportunity to be

      13      heard prior to his next hearing?

      14             REGINA STEWART:  Yes.

      15             SENATOR GALLIVAN:  And how will you get

      16      notice of that?

      17             REGINA STEWART:  We probably -- I would

      18      guess, we're going to get another letter to let us

      19      know.

      20             So what happens is, they send us a letter.

      21      They tell us to call the victim services office to

      22      make an appointment, so we can come in and give our

      23      impact statement, our victim statement.

      24             And we have to be scheduled to do that.

      25             So it will say, you know, in our case, it was


       1      the month of June, on a Friday in the month of June.

       2             MICHAEL STEWART:  And at that time, we didn't

       3      know specifically when his hearing was going to be.

       4             We were told that it would likely be the

       5      second or third week in July, but they wanted us to

       6      make sure that we were in there at least 30 days

       7      prior.

       8             And, again, that's something that the

       9      commissioner was -- was -- had also referenced, in

      10      that, in terms of just the notification process.

      11             And they have to have time, obviously, for

      12      anything; any documentation, anything that we say,

      13      the testimony, the transcript, they need to have

      14      time to get that out to the particular facility.

      15             So that's the idea of allowing us to come in

      16      at least 30 days prior, which kind of ensures the

      17      information will get to the people making --

      18             SENATOR GALLIVAN:  So the current law

      19      provides that the victims have a right to be heard.

      20             And my question is:  Do you think the current

      21      law is adequate?

      22             And if not, what thoughts may you have, or

      23      recommendations, about what it ought to be?

      24             REGINA STEWART:  Well, I personally feel that

      25      it's adequate in letting us know that we do have the


       1      option to come in and give a statement, or to be --

       2      we were given a choice, actually.  We could either

       3      send in a written statement.  We could appear in

       4      person.

       5             MICHAEL STEWART:  We could send videos.

       6             We could send copies of anything that we

       7      want.

       8             In our particular case, we were very

       9      proactive in this.

      10             Probably a year before we knew his parole

      11      hearing was coming up, we were already talking with

      12      the office of victims assistance, because we chose

      13      to do so, to find out the process, to find out the

      14      things that are beneficial to present to a board

      15      member.

      16             You know, so we went, and we were prepared.

      17             We went with newspaper articles, media

      18      coverage, letters from the community, letters from

      19      the school districts.

      20             We had a petition online that we had over

      21      11,000 people sign.  We brought copies of that.

      22             These were all things that we were proactive,

      23      and brought with us, and brought four copies of

      24      everything.

      25             We made a video, a family video, again, four


       1      copies.

       2             For us, this was something that we wanted to

       3      do.

       4             But I think, for many families, it's very

       5      difficult to be able to round up all this

       6      documentation, put it together, make four copies of

       7      everything.

       8             You know, for us, we did it because we wanted

       9      to.  But for most families, I think that's a pretty

      10      hard task to do.

      11             SENATOR GALLIVAN:  Well, I'm sorry for your

      12      loss, but grateful that you're here, and appreciate

      13      your willingness to stand up and talk about that,

      14      and, potentially, help us as we look forward with

      15      these procedures.

      16             Senator -- I understand you live in

      17      Senator Tedisco's district?

      18             REGINA STEWART:  Correct.

      19             SENATOR GALLIVAN:  Senator Tedisco.

      20             SENATOR TEDISCO:  First of all, let me thank

      21      you both for being here, and working so hard to help

      22      other families who are facing the same tragedy

      23      that -- or similar, that you have faced.

      24             I'm just wondering, you had to do some

      25      research to find out exactly what was going to take


       1      place.

       2             Did they tell you how long you would be able

       3      to speak at this victim impact, or did they give you

       4      any limit, or give you any idea of how long they

       5      give you for this?

       6             REGINA STEWART:  Originally, we were told to

       7      plan for about an hour.

       8             SENATOR TEDISCO:  Uh-huh?

       9             REGINA STEWART:  And in our case, there was

      10      not another family that was going to be coming in

      11      after we were there, so we were able to stay a

      12      little longer.

      13             And we felt that we were fully heard, which

      14      was soothing in a way, because we -- there's a lot

      15      of anxiety, of course, that goes along with what we

      16      were going through.

      17             It was very stressful knowing that one, or

      18      maybe two people, in all of New York State, were the

      19      two people that were either going to release

      20      Dennis Drue or keep him incarcerated.

      21             And that's hard for a family to have to hope

      22      for, that we were going to have two quality

      23      commissioners, that we don't know.

      24             And we did step out a little while ago just

      25      to thank Commissioner Ferguson because, had we known


       1      someone like him would have been listening, and been

       2      the one that was advocating and hearing everything

       3      on behalf of our son, I know it made me feel a

       4      little bit more at ease, because he seemed to be so

       5      thorough and so caring in his thoughts and in his

       6      actions.

       7             And so, hopefully, every single one of the

       8      commissioners acts in the same way.

       9             But it's very stressful for parents to know

      10      that, after losing so much, you still have this

      11      worry that -- you know, that the offender is not

      12      going to be released so quickly.

      13             SENATOR TEDISCO:  Did they give you any idea

      14      of what the setting would be like when you showed

      15      up?

      16             Where you would be sitting?

      17             Where the commissioner listening to you --

      18      there was only one commissioner there; right?

      19             REGINA STEWART:  Correct.  We only had one

      20      commissioner there.

      21             And the thing is, as Mike was saying, we were

      22      proactive.  And the year before, I think it was

      23      April of the year before, we actually made an

      24      appointment with the victims services office, and

      25      asked them if we could come visit them, and have


       1      them explain to us what it was we were going to need

       2      to prepare for.

       3             We wanted to make sure that the hour or so

       4      that we spent was thorough, from our perspective,

       5      and that we were doing the best for our son that we

       6      could do.

       7             And so we were actually in the very room that

       8      we would have -- that we went back to the next year.

       9             So, for us, we knew what the setting was

      10      going to be.  And, basically, it's just like this, a

      11      large wood conference room table, and, you know,

      12      probably 15 chairs around it.

      13             SENATOR TEDISCO:  Was the commissioner

      14      attentive to you?

      15             REGINA STEWART:  Very.

      16             SENATOR TEDISCO:  Did he ask -- was it a he

      17      or --

      18             REGINA STEWART:  It was a woman.

      19             SENATOR TEDISCO:  Did she ask questions?

      20             REGINA STEWART:  She did -- first she

      21      explained to us what was going to happen before we

      22      went on the record and before the stenographer

      23      started taking notes.

      24             And, you know, there was water.  There were

      25      tissues.


       1             It was -- they were very accommodating to us.

       2             And, took their time, and let us take our

       3      time, because it was very emotional for us.

       4             And she was -- you know, she waited for us to

       5      kind of compose ourselves again and continue on.

       6             So, it was not a stressful situation.

       7      I mean, it was, but it wasn't -- you know, they were

       8      helpful to us, I guess, is what I'm trying to say.

       9             MICHAEL STEWART:  And I think, too, the one

      10      thing to add, I'm sure that most people that go into

      11      that have no idea that this isn't one of the people

      12      that are going to be making the decision.

      13             SENATOR TEDISCO:  Well, that's a question

      14      I wanted to ask you.

      15             Did you know before you went in?

      16             MICHAEL STEWART:  We knew -- I mean, that was

      17      the first question I asked when I -- when we spoke

      18      with them a year before, because we knew we were

      19      speaking with one person that -- or, we were going

      20      to be speaking with one person that day.

      21             And the person at the office of victim

      22      assistance that was telling us the process, she was

      23      very outright to say, no, there is no guarantee.

      24             It could be, it could be one of the three, or

      25      it could be one of the two; depending upon if they


       1      have two or three board members making the decision.

       2             But, she was very clear.

       3             But, again, that was something that I brought

       4      out, the question, because that was important to us.

       5             And I think most people are shocked whenever

       6      I tell them that that is not one of the people

       7      that's going to be guaranteed at least to be either

       8      making the decision in the case, or is actually

       9      going to be having a verbal communication with the

      10      people that are, because they're not.

      11             SENATOR TEDISCO:  Well, that was -- that was

      12      the other question I wanted to ask.

      13             There was no guarantee that the person you

      14      spoke with would be in contact at all with the real

      15      commissioners who would be at -- they'd send the

      16      documentation of the event, but that person would

      17      not necessarily talk to them about how she felt

      18      about in what you said personally?

      19             MICHAEL STEWART:  That's correct, that's the

      20      guarantee you get, is that all of the information

      21      that we provide them will be provided to the either

      22      two or three board members making the decision.

      23             And she also mentioned that, although the

      24      information, we'll try to get out there, typically,

      25      well in advance, the people, those particular board


       1      members, don't necessarily get a chance to review it

       2      until the day of.

       3             SENATOR TEDISCO:  I don't know about the

       4      privacy issue that was brought up by

       5      Commissioner Ferguson, about not letting anybody

       6      know who the real commissioners would be.

       7             But, how about the idea of videotaping, and

       8      requiring those who will be hearing, see and look at

       9      the videotape before they go to the parole hearing

      10      with the perpetrator?

      11             REGINA STEWART:  I think that would be an

      12      amazing idea.  I think it would be very beneficial

      13      to everyone, actually.

      14             I know Commissioner Ferguson was saying how

      15      exhausted that they were.

      16             And, you know, I can tell you, Mike and I

      17      would not have wanted for us to have been the

      18      119th family that he was hearing, you know, after

      19      being up for all those hours.

      20             That's very unsettling.

      21             And a video, I think, would do a lot of good

      22      for everyone.

      23             We did provide one on our son's behalf.

      24      And --

      25             SENATOR TEDISCO:  But not required for them


       1      to look at it, really.

       2             REGINA STEWART:  Well, we're hopeful that

       3      they did look at it.

       4             SENATOR TEDISCO:  Right.

       5             REGINA STEWART:  But, you know,

       6      Commissioner Ferguson made us feel a little

       7      unsettled about that too.

       8             Like, what if they don't have a DVD player?

       9             And we were specifically told to make four

      10      DVDs.

      11             We had to make four of everything we did,

      12      because we were told --

      13             SENATOR TEDISCO:  You had to pay for it?

      14             REGINA STEWART:  -- that they had to be given

      15      to the commissioners that would be hearing --

      16      hopefully, hearing.

      17             And then one would go into the master folder.

      18             MICHAEL STEWART:  Yeah, victim-assistance

      19      folder.

      20             REGINA STEWART:  And that, in two years, when

      21      Dennis Drue comes up for parole again, that all of

      22      the initial information we provided, along with

      23      anything new that we want to put in the envelope,

      24      would still be there.

      25             So I guess it collects and continues on.


       1             SENATOR TEDISCO:  It's very difficult for

       2      those of us who might not have experienced something

       3      similar to this, to feel or think about what it's

       4      like to go every two years to make this requirement,

       5      give that impact again.

       6             And I know you mentioned it, but I think,

       7      could you say something else about your feelings

       8      about the two-year period, over and over coming up,

       9      and having to go through this process, and how it

      10      impacts you and your family?

      11             MICHAEL STEWART:  Yeah, well, the two-year,

      12      you know, in our particular case there was no trial,

      13      you know.

      14             He, basically, ended up admitting to guilt

      15      58 times the day before the trial was supposed to

      16      start.

      17             So we didn't have to go through that very

      18      stressful point of a trial, where you go through the

      19      trial, you relive all the events, and then you hear

      20      "guilty," or "not guilty," and the stress leading up

      21      to that.

      22             You know, we're fortunate that we didn't get

      23      that.

      24             But, with this two-year process, that's

      25      imposed on us every two years.


       1             This was no different.

       2             On the day that we called the office of

       3      victim assistance, that morning, and for those that

       4      don't know the process, after the inmate has his

       5      particular hearing, after he's been notified of the

       6      decision, the information goes to the office of

       7      victim assistance.

       8             And the families, as us, start calling the

       9      following Monday at 8:00 in the morning, to get the

      10      answer.

      11             So, it wasn't guilty or not guilty, but it

      12      was denied or approved.

      13             And there's, that feeling, I can tell you

      14      right now, I'm sure it was the exact same feeling

      15      that anybody feels when they're in trial and they

      16      hear "guilty" or "not guilty."

      17             And, now we get do that every two years, and

      18      have that stress level.

      19             Whereas, if it's extended to five years as

      20      the possibility, it's a tremendous relief from a

      21      family's standpoint.

      22             SENATOR TEDISCO:  Thank you so much.

      23             And sorry you had to go through some of this

      24      here today again, but I think it was important for

      25      the rest of the families.


       1             And we appreciate what you do on behalf of

       2      Chris and your family, for the rest of the families.

       3             MICHAEL STEWART:  Thank you, Senator.

       4             SENATOR AKSHAR:  Thank you.

       5             SENATOR GALLIVAN:  Thank you very much.

       6             SENATOR SERINO:  No questions.

       7             SENATOR GALLIVAN:  No more questions.

       8             REGINA STEWART:  Okay.  We're happy to answer

       9      any.

      10             SENATOR GALLIVAN:  We do appreciate your

      11      time.  You've been very helpful.

      12             REGINA STEWART:  Okay.  Thank you very much.

      13             SENATOR GALLIVAN:  Chrys Ballerano from the

      14      New York State Coalition Against Sexual Abuse.

      15             Good afternoon.

      16             Thank you for being here.

      17             Good afternoon.

      18             Thank you for being here.

      19             CHRYS BALLERANO:  My name is Chrys Ballerano,

      20      with the New York State Coalition Against Sexual

      21      Assault.

      22             First, I want to convey my condolences to the

      23      Stewarts.

      24             I can't imagine.

      25             I have one child, she's 30, and she's my


       1      life, she's my precious one.

       2             And I just want to convey my deepest

       3      condolences to the family.

       4             I appreciated their comments.

       5             I, Christine Ballerano, familiarly known as

       6      "Chrys," am giving this testimony today from a place

       7      of respect, compassion, and deep empathy with people

       8      who have experienced interpersonal violence and

       9      other traumatic forms of crime.

      10             As an advocate in the sexual-assault movement

      11      for over 20 years, over 19 of those serving as

      12      statewide project director at the New York State

      13      Coalition Against Sexual Assault (NYSCASA), I've

      14      learned a great deal about the criminal justice

      15      system's approach to managing victims of crime, and

      16      those who have done harm and violated the rights of

      17      survivors.

      18             As a statewide sexual-assault and

      19      mental-health project director since 1999, I've

      20      heard countless testimonies from survivors for whom

      21      the criminal justice system brought no justice;

      22      survivors from whom much was taken and not restored,

      23      or witnessed in any manner that brought healing for

      24      the traumatic injury that was caused.

      25             And I'd like to share this statement from our


       1      organization's project team, which I shared earlier

       2      in our press conference.

       3             "Too often, the actions public officials take

       4      in the name of crime victims, particularly in the

       5      name of survivors of sexual and domestic violence,

       6      do not line up with the actual needs and desires of

       7      the majority of survivors, especially survivors from

       8      communities that are at most risk" -- "most at risk.

       9             "As an organization committed to healing and

      10      justice for all survivors, and to truly ending

      11      sexual violence, NYSCASA recognizes that reliance on

      12      a bias and inherently reactive criminal justice

      13      system will not achieve these goals.

      14             "Like many survivors, we would rather see

      15      public officials take action to ensure that

      16      survivors, their families, and communities have the

      17      comprehensive resources they need to heal and to

      18      thrive; that significant investments are made in

      19      community services and institutions that will

      20      prevent violence from happening in the first place;

      21      that people who commit harm are held accountable in

      22      a meaningful way that does not perpetuate a cycle of

      23      violence; and that people who commit harm have

      24      access to the services they need to stop committing

      25      harm."


       1             As a survivor of sexual child abuse by my

       2      paternal grandfather, a rape as an adolescent by a

       3      boyfriend I trusted, and sexual assault as a college

       4      freshman by a teacher my first semester in college

       5      at Stony Brook University, I know firsthand how

       6      these crimes go unspoken, unhealed, and, ultimately,

       7      made invisible.

       8             So you see, this issue is personal for me.

       9             And I understand what my colleagues and other

      10      survivors refer to as a "rape culture."

      11             We continue to have powerful institutions

      12      that protect adults who harm kids, and even punish

      13      youth for the actions of adults.

      14             Although I know of efforts being made in some

      15      areas of service provision to be more

      16      trauma-informed, there is still a lack of cultural

      17      competence and far too great a propensity toward

      18      punishment in different forms of violence when a

      19      person is seen as non-compliant.

      20             Locally, we all saw the tragic results of

      21      reactivity in the heartbreaking case of Dontay Ivy.

      22             We see this violence play out in

      23      victim-blaming scenarios, where bullying, blaming,

      24      and harassment run rampant, with people savagely

      25      disrespecting other people.


       1             At times, this violence is even labeled as

       2      appropriate behavior by institutions set to maintain

       3      the status quo.

       4             As a child, I didn't tell anybody about my

       5      sexual abuse because I didn't feel I had the power

       6      to speak up against my elder.

       7             What I do remember doing, though, again and

       8      again, was going to another elder, my maternal

       9      stepgrandfather, James Rearer (ph.), who I trusted

      10      implicitly and who loved me unconditionally.

      11             His love and protection of my spirit was one

      12      of the greatest assets of my childhood development.

      13             Grandpa Rearer was also an ex-felon from

      14      before I was born, having, as a minor, driven the

      15      getaway car for his older brother's failed bank

      16      robbery in Ohio.

      17             I didn't know this fact about him till years

      18      later after he had passed away.

      19             He had been offered an out for prison by

      20      serving in the military during World War II.

      21             And I knew he had served.

      22             He was always a man of great dignity and love

      23      for others.

      24             My mother's older sister, my Aunt Fran,

      25      described my grandpa as a "knight in shining armor"


       1      when I asked her about my biological grandfather who

       2      I had never met.

       3             She told me about my grandfather's courtship

       4      of my grandmother, and how, as an uneducated

       5      Sicilian immigrant, my maternal grandmother had

       6      endured domestic violence in her first marriage, and

       7      had relied upon nuns to help raise her three young

       8      daughters, my mother included, during the

       9      depression, living in extreme poverty before

      10      marrying my Grandpa Rearer.

      11             I recall grandpa earning a good living as a

      12      union laborer, and how beloved he was by his

      13      co-workers, his friends, and all of his family.

      14             After coming home from school as a child,

      15      I would run to his and my grandmother's house behind

      16      our home on Long Island to be with him in the

      17      garden, or watch him work in his garage, or just run

      18      errands together in his pickup truck for my family.

      19             He was my gentle giant protector, and I loved

      20      him with all my heart.

      21             He was a complete contradictions from the

      22      other grandfather who was in my life at the same

      23      time.

      24             They both lived within walking distance from

      25      my home.


       1             He was my -- his elder brother, my

       2      Uncle John, was also very special to me, and taught

       3      me how to fish as a young girl, treating me as a

       4      real person, not just as a little girl, giving me

       5      confidence in myself at a time when I was most

       6      vulnerable.

       7             I had the highest respect for these two men.

       8             I had no idea that they had each been

       9      convicted of felony crimes as young men.

      10             They remain in my heart and my memory among

      11      my dearest mentors, and I cherish stories and photos

      12      that remain of them.

      13             I would hate to see us moving backward and

      14      pre-judging people for eternity based upon their

      15      actions as youths.

      16             Taking away an individual's right to vote is

      17      another way of dehumanizing the most marginalized

      18      citizens of our nation, and as such, it's another

      19      form of violence.

      20             Such policy has no place in New York State.

      21             We should proudly model human rights, not

      22      exacerbate systemic oppression.

      23             Instead, our policies should foster

      24      self-respect, healing, empathy, and prepare

      25      incarcerated individuals to participate as citizens


       1      on the outside, not discard and disregard people as

       2      unworthy of dignity and civil rights.

       3             If Nelson Mandela can lead a

       4      truth-and-reconciliation tribunal in

       5      post-South Africa -- I mean, in post-Apartheid

       6      South Africa after suffering decades of brutal

       7      imprisonment, what stops us from honoring human

       8      rights for all people in the United States?

       9             We also know that too many people living

      10      behind bars are themselves victims of violence,

      11      trauma, tremendous loss, as children, adolescents,

      12      and adults.

      13             Many are there for non-violent crimes that

      14      were survival strategies, the most accessible ways

      15      of coping with the traumatic pain that they'd

      16      experienced as victims.

      17             These young people, like some of us in this

      18      room, may have used self-destructive behaviors, like

      19      drugs, like alcohol, to get by, to survive,

      20      resulting in these survivors being criminalized for

      21      their coping strategies.

      22             We also know that those who serve the longest

      23      and harshest sentences for these offenses are the

      24      poor and, disproportionately, people of color.

      25             Those early traumas known as "adverse


       1      childhood experiences," or "ACES," are often

       2      exacerbated by the brutality experienced and

       3      witnessed while in prison, and the racism and

       4      implicit biased expressed in mainstream culture

       5      throughout so many of our institutionalized systems,

       6      including our health-care system.

       7             I have visited incarcerated survivors, and

       8      I know from what I've seen, how broken the system of

       9      mass incarceration is from families and individuals

      10      seeking healing and/or justice.

      11             I recall visiting with a female survivor of

      12      domestic and sexual violence in Columbia County's

      13      jail in Hudson while I was working as a rape-crisis

      14      counselor at the Reach Center of Green and Columbia

      15      counties in the '90s.

      16             She refused to allow me to tell her family

      17      she was in jail because she didn't want them to see

      18      her that way.

      19             The shame she felt about them seeing her

      20      behind bars was too great for her to ask for support

      21      that she desperately needed.

      22             And as a crime victim, the subsequent

      23      isolation did nothing to help her heal from her

      24      trauma.

      25             Her crime had been a relapse of cocaine use


       1      while she was on parole.  Again, self-medicating

       2      because she'd been raped.

       3             I could go on about special housing units for

       4      survivors of sexual assault while in custody, and

       5      how this practice is the equivalent of torture, but

       6      I'll stop here because I'm about out of time.

       7             I would like to thank you for listening to my

       8      testimony, and discuss this request to recognize the

       9      right to vote as a human right; that all people be

      10      counted as a human member of our troubled society, a

      11      society in great need of healing and restorative

      12      practices across all of our human-service

      13      institutions, this criminal justice system being

      14      just one.

      15             Anyone working with people needs to think of

      16      them, think of -- needs to think of themself as

      17      human services, or we endanger others by

      18      perpetuating pain and trauma instead of providing

      19      some form of corrections, restoration, and healing

      20      which we state is our intention.

      21             Increasing parole rates, and granting voting

      22      rights, are positive steps in that direction.

      23             Attached to my testimony you will see the

      24      "New Vision for Crime Victims" that the Downstate

      25      Coalition drafted last year, and that NYSCASA


       1      wholeheartedly supports as well.

       2             I'm happy to answer any questions you might

       3      have as a panel or as individuals.

       4             SENATOR GALLIVAN:  Absolutely.

       5             Thank you for being here.

       6             And, thanks for sharing your story, and

       7      turning it into something, working over your career

       8      now, to help other people.

       9             That's really -- and, fortunately, I didn't

      10      have to experience that.

      11             But, thank you for standing up, appreciate

      12      that.

      13             Now I have a couple questions.

      14             You've touched on many things, many of the

      15      challenges that we and our colleagues face in

      16      both -- well, not just both, in many areas.

      17             You mentioned health care, social-related

      18      services, criminal justice, and many other things,

      19      much greater than the scope of today.

      20             So I want to bring it back, and ask about the

      21      victim impact panels.

      22             Have you had any experience -- not panels,

      23      the victim impact --

      24             CHRYS BALLERANO:  Statements.

      25             SENATOR GALLIVAN:  -- do you have any --


       1             Yes.

       2             -- do you have any experience --

       3             CHRYS BALLERANO:  Yes, I helped --

       4             SENATOR GALLIVAN:  -- in dealing with

       5      victims?

       6             CHRYS BALLERANO:  -- yes, I worked in direct

       7      services before I came to the coalition, and

       8      I assisted victims in drafting their victim impact

       9      statements, and making sure they knew how to go

      10      about the process.  And also helping them with the

      11      application for crime -- what used to be called

      12      "crime victims compensation."

      13             SENATOR GALLIVAN:  Is that valuable to

      14      victims --

      15             CHRYS BALLERANO:  Absolutely.

      16             SENATOR GALLIVAN:  -- that process?

      17             CHRYS BALLERANO:  It is valuable.

      18             SENATOR GALLIVAN:  Is it adequate?

      19             CHRYS BALLERANO:  I don't think it is

      20      adequate, no.

      21             SENATOR GALLIVAN:  How could it be better?

      22             CHRYS BALLERANO:  Well, I'm a strong believer

      23      in restorative practices.

      24             I really do believe that that's where we're

      25      moving as a culture, very slowly, at the rate of a


       1      glacier, perhaps.

       2             But I know, in the college sexual-assault

       3      area in particular, which is one of the projects

       4      I supervised at NYSCASA, and because I was violated

       5      when I was in college, it was -- I was actually

       6      heading that program before we hired

       7      Michelle Carol (ph.), our project director.

       8             She's been trained in restorative justice

       9      practices.  And she's actually been working with the

      10      New York State Department of Health, to help them

      11      better understand how restorative practices and

      12      restorative justice models can be utilized in a

      13      campus setting, because in oft -- often, so many

      14      cases, survivors really want that more relational

      15      model.

      16             They want to be able to, not necessarily have

      17      the person who did harm toward them incarcerated,

      18      but they want them to understand that what they did

      19      was wrong; that what they did was violence.

      20             And, unfortunately, the way the system

      21      operates currently, or has been operating up until

      22      now, I mean, Enough is Enough is making some changes

      23      for sure, but it's not enough.

      24             I know that's what the law is called, "Enough

      25      is Enough," but it's not enough.


       1             And, so, there's a lot --

       2             SENATOR GALLIVAN:  I think many -- you'll

       3      find many people up here agree with that.

       4             CHRYS BALLERANO:  -- yeah.

       5             So there's a lot more that can be done, and

       6      I don't think we should wait till college either.

       7             I think that we're seeing more and more

       8      issues of children.

       9             I myself experienced this child sexual abuse

      10      at eight years old.

      11             I know people who have experienced it at much

      12      younger years, and older years.

      13             And so it's, like, we can't wait till college

      14      to be dealing with victim impact statements.

      15             We can't wait till someone's dead or raped

      16      before we're helping the family.

      17             You know, we should be doing much more

      18      preventive measures, which is one of the things my

      19      coalition really stand -- our coalition really

      20      stands for, is primary prevention; really stopping

      21      the violence before it happens.

      22             And, yeah, so victim impact statements are

      23      important, but they're no solution.

      24             There's so much more that can be done.

      25             And I think that it really begins in a


       1      cultural competency and understanding what "rape

       2      culture" is, and also what "racism" is, and what --

       3      what, you know, violence against women is rooted in

       4      as well.

       5             Violence against anybody who's held in less

       6      power, and the power differentials that we see in

       7      this country, I think that's where the crux of the

       8      matter really is.

       9             When you have somebody who feels powerless,

      10      how are they going to gain power?

      11             SENATOR GALLIVAN:  Senator Akshar has some

      12      questions.

      13             SENATOR AKSHAR:  Do you believe that criminal

      14      justice reform is appropriate?

      15             CHRYS BALLERANO:  Do I feel that -- do

      16      I believe that criminal justice reform --

      17             SENATOR AKSHAR:  Justice reform is

      18      appropriate.

      19             CHRYS BALLERANO:  -- yeah.

      20             SENATOR AKSHAR:  Bail reform is appropriate?

      21             CHRYS BALLERANO:  Bail?

      22             SENATOR AKSHAR:  Bail reform is appropriate?

      23             CHRYS BALLERANO:  Yes.

      24             SENATOR AKSHAR:  Parole reform is

      25      appropriate?


       1             CHRYS BALLERANO:  Yes.

       2             SENATOR AKSHAR:  Do you believe it's

       3      appropriate to allow violent sex offenders into

       4      schools to vote?

       5             CHRYS BALLERANO:  I don't believe that

       6      violent sex offenders ought to be in schools where

       7      children are unsupervised while they're voting.

       8             But I also want to tell you that those who

       9      have been convicted of sex offenses are a drop in

      10      the bucket compared to the numbers of people out,

      11      walking around, unprosecuted; that most sexual

      12      assault crimes have not been reported to law

      13      enforcement.

      14             80 percent of them have not been.

      15             SENATOR AKSHAR:  But the purpose of this

      16      hearing, though, is to determine, should we be

      17      reforming the parole system?

      18             And then to talk specifically about the

      19      voting rights of some.

      20             CHRYS BALLERANO:  Correct.

      21             SENATOR AKSHAR:  My question to you was:

      22      Do you think it's appropriate to have violent sex

      23      offenders voting within the confines of a school?

      24             Or, perhaps, is there a better system that we

      25      could put in place?


       1             CHRYS BALLERANO:  I think there's probably

       2      all kinds of better systems we can put in place.

       3             SENATOR AKSHAR:  Okay.  Thank you.

       4             That's all.

       5             SENATOR GALLIVAN:  I think we're done with

       6      questions.

       7             But you mentioned, right at the very end of

       8      your testimony, that you had an attachment?

       9             And I don't --

      10             CHRYS BALLERANO:  I did attach it --

      11      I paper-clipped a two-page document to my one-page

      12      testimony.

      13             So everyone should have received that, unless

      14      somebody dis-attached them.

      15             SENATOR GALLIVAN:  Do you have a copy with

      16      you?

      17             CHRYS BALLERANO:  Unfortunately, I handed

      18      them all to the woman that was sitting in the back.

      19             SENATOR GALLIVAN:  Okay.  We will --

      20             CHRYS BALLERANO:  It's the "New Vision for

      21      Crime Victims," and it was written by the Downstate

      22      Coalition.

      23             SENATOR GALLIVAN:  We will track that.

      24             We'll connect with you, if not immediately

      25      following, but to get that, because I don't think --


       1             Never mind.

       2             Located.

       3             CHRYS BALLERANO:  You found it?

       4             SENATOR GALLIVAN:  Yes.

       5             CHRYS BALLERANO:  Great.

       6             SENATOR GALLIVAN:  Thank you very much.

       7             CHRYS BALLERANO:  Oh, you're welcome.

       8             Thank you for your time.

       9             SENATOR AKSHAR:  Thank you, ma'am.

      10             SENATOR GALLIVAN:  New York City Police

      11      Benevolent Association, Patrick J. Lynch, president.

      12             Good afternoon.

      13             PATRICK LYNCH:  Good afternoon.

      14             SENATOR GALLIVAN:  Thank you all for your

      15      patience, as with all the others that remain and

      16      stuck around.

      17             How about if everybody introduces themselves,

      18      and then we'll get started.

      19             JOHN NEVILLE:  John Neville, public affairs

      20      team member of the PBA.

      21             PATRICK LYNCH:  I'm Patrick J. Lynch,

      22      president of the New York City Patrolmen's

      23      Benevolent Association.

      24             JAMES WALSH, ESQ.:  And I'm Jim Walsh.  I'm

      25      with Manatt, Phelps & Phillips for legislative


       1      counsel for the New York City PBA.

       2             SENATOR GALLIVAN:  All right.  Thank you.

       3             Mr. Lynch, we do have written testimony.  And

       4      I know that you did want to provide a brief

       5      statement, and we'll go from there.

       6             PATRICK LYNCH:  Yes, if I could.

       7             SENATOR GALLIVAN:  All yours.

       8             PATRICK LYNCH:  Thank you, Senator.

       9             Good afternoon, Senator Gallivan,

      10      Senator Akshar, and Senator committee members who

      11      sit on this Committee.

      12             Thank you for the opportunity to provide

      13      testimony on this very important issue.

      14             Out of respect for your time, I will

      15      summarize my testimony, and refer you to the written

      16      statement I've submitted, as we just spoke.

      17             As you know, our union represents more than

      18      24,000 rank-and-file New York City police officers

      19      in the New York City Police Department.

      20             As law-enforcement professionals, we

      21      recognize that judicious granting of parole release

      22      to certain offenders is not only necessary for the

      23      efficient operation of our criminal justice system,

      24      it is essential to the principles of fairness and

      25      justice on which the system is founded; however,


       1      like all discretionary aspects of criminal justice,

       2      the parole system requires clear, well-considered

       3      guidelines and strong institutional controls.

       4             Without these guidelines and controls, the

       5      parole system become plagued with dysfunction,

       6      error, arbitrariness, and its decision-making, and,

       7      ultimately, with outright abuse, that jeopardizes

       8      public safety and undermines respect for our laws.

       9             Unfortunately, recent events suggest we've

      10      reached that point in the state of New York.

      11             In particular, the New York State Parole

      12      Board has, on multiple occasions over the past year,

      13      made the unconscionable decision to grant parole

      14      release to individuals convicted of murdering

      15      New York City police officers and other members of

      16      law enforcement in the performance of their duties.

      17             The murder of a police officer, one of the

      18      most serious offense against the people of our

      19      state, because it represents not only the taking of

      20      a life, but also an attack on the rule of law and

      21      our society as a whole.

      22             That understanding was reflected in the

      23      Crimes Against Police Acts of 2005, which made the

      24      murder of police officers punishable by life

      25      imprisonment without parole.


       1             However, cop-killers whose crimes predate

       2      that law are currently serving sentences that allow

       3      parole release.

       4             Until recently, and with rare exception, the

       5      parole board routinely denied their request for

       6      parole.

       7             That practice appears to change suddenly and

       8      dramatically in March of this year when a parole

       9      board panel voted to release Herman Bell.

      10             As you know, Bell is one of three domestic

      11      terrorists convicted in the brutal 1971 ambush

      12      assassination of New York City Police Officers

      13      Waverly Jones and Joseph Piagentini.  He also later

      14      plead guilty to his involvement in the assassination

      15      of a San Francisco Police Department sergeant,

      16      John Young, that same year.

      17             On seven previous occasions, parole board

      18      panels had considered the facts and circumstances of

      19      Bell's brutal premeditated crimes, and rightfully

      20      concluded that his release would be, in quotes,

      21      incompatible with the welfare of our society, end

      22      quote, and who so depreciate the seriousness of his

      23      crime as to undermine the respect of law, end quote.

      24             Nonetheless, the current panel disregarded

      25      these consistent findings and the very basic


       1      statutory standards for considering parole.

       2             Bell's release sent a clear message to

       3      New Yorkers that there is no crime too vicious and

       4      no criminal too depraved to earn a favorable-release

       5      hearing and release by the current parole board.

       6             Since Bell's release in April, the board has

       7      granted parole to two additional cop-killers, as

       8      well as the killer of a Bronx prosecutor.

       9             These outrageous parole decisions have made

      10      it abundantly clear that the parole system is broken

      11      and the current parole guidelines are fundamentally

      12      flawed.

      13             Even with revisions to the guidelines, they

      14      will -- they will still require a board that will

      15      properly adhere to them as is statutorily required

      16      and demanded by the public.

      17             The responsibility for addressing these

      18      crisis rest in many hands, including those of

      19      Governor Cuomo, who appointees form the overwhelming

      20      majority of the current parole board members.

      21             Ultimately, however, the issue cannot be

      22      resolved without affirmative legislative action to

      23      strengthen the parole guidelines, and introduce the

      24      strong institutional controls that the parole board

      25      is so clearly lacking.


       1             We, therefore, respectfully request that you,

       2      as New York State Senators and members of these

       3      combined committees, take action in the following

       4      areas:

       5             First:  The Legislature should repeal the

       6      2011 amendment to the executive law which mandates

       7      the parole board to be guided by the numerical score

       8      generated by a risk-and-assessment needs, a tool in

       9      rendering their determinations, and to provide the

      10      individualized explanation for any departure from

      11      these scores.

      12             Second:  We urge the Legislature to enact

      13      statutory requirements that reemphasize the

      14      seriousness of the instant offense; specifically, in

      15      connection with the impact on the respect of the law

      16      and the welfare of society as a whole in parole

      17      board decision-making process, in all of them.

      18             Third:  We urge the Legislature to pass

      19      legislation introduced as Senate 8921 in this

      20      session by your colleague Senator Golden, to amend

      21      the executive law to clarify that crime victims,

      22      their family members, or representatives have

      23      standing to appeal the parole board determination.

      24             It's extremely important.

      25             Fourth, and finally:  We urge the Senate to


       1      exercise even greater scrutiny over parole board

       2      appointees.

       3             It is the governor's responsibility in the

       4      first instance to screen potential parole

       5      commissioners for any form of bias in addition to

       6      the basic professional qualifications defined in the

       7      statute.

       8             However, we urge you and your colleagues to

       9      engage in the most thorough vetting process

      10      possible, including substantive discussions with the

      11      appointees to ascertain their ability or willingness

      12      to consider each case on its own merit, using only

      13      the criteria defined in the statute and the parole

      14      board rules.

      15             At present, there are at least 59 killers of

      16      New York City police officers appearing regularly

      17      before the parole board, meaning dozens of families

      18      are preparing to once again oppose the release of

      19      their loved ones' killers with the very present fear

      20      that these heinous criminals may go free.

      21             This week alone, the families of

      22      Police Officer Anthony Abruzzo and

      23      Police Officer Sean McDonald will both deliver

      24      their victim impact statement to the board.

      25             And later this month, both the Piagentini and


       1      Jones families will appear before the board to argue

       2      against the release of Herman Bell's accomplice

       3      Anthony Bottom.

       4             Each of these families is terrified that this

       5      will be their last opportunity to make their voices

       6      heard; that the parole board will ignore their pain

       7      and fear, and return the individuals who terrorized

       8      their families and our society back to that same

       9      society.

      10             Senators, as you know, and you all can

      11      appreciate, there is simply no time to waste in your

      12      efforts to fix our broken parole system and restore

      13      the proper functioning of the parole board.

      14             On behalf of New York City police officers

      15      and our families, I thank you all for your efforts

      16      in this area so far.

      17             We look forward to continuing to work with

      18      you towards our shared goal of a stronger, safer,

      19      fairer New York.

      20             I'm happy to answer any kind of questions

      21      today, or continue on as this process moves forward.

      22             SENATOR GALLIVAN:  Well, I can't ask you

      23      about recommendations because you just gave them to

      24      us, and we appreciate that.

      25             So, I do not have any other questions.


       1             I don't know if any of the other members do.

       2             SENATOR AKSHAR:  Pat, thank you.

       3             I'm a former member.  And I just want to

       4      publicly thank you for standing shoulder to shoulder

       5      with the men and women of the NYPD.

       6             And let me ask you one particular question.

       7             Do you believe that politics has come into

       8      play in the parole system?

       9             PATRICK LYNCH:  Absolutely.

      10             What we found is, rather than look at the

      11      facts in a case, many times what's not being looked

      12      at is the impact this crime had on, not only the

      13      families, but society as a whole.

      14             And what's happening is, those that yell the

      15      most are getting what they want.

      16             All we ever asked for as New York City police

      17      officers, in any process, including this one, is

      18      fairness.

      19             Look at all the aspects.  Be guided by the

      20      law and the statutes.

      21             What we find, that has changed, and that's

      22      not happening any longer.

      23             We cannot stop looking at how this impacted

      24      our families.

      25             Earlier there was a question about the


       1      victims' impact statements.

       2             That's extremely important.

       3             It's extremely important because it's the one

       4      opportunity for our families to sit at a table like

       5      this, and read and tell their story, to say how

       6      their lives were changed since their mother or

       7      father were removed from this earth, since they were

       8      so viciously murdered by a criminal; how their lives

       9      have changed, and will continue to change.

      10             We think it's extremely important that we

      11      strengthen that aspect, give the weight to that

      12      aspect the most in the criteria, because they're the

      13      ones that know most how it affected them.

      14             Just because it affected one family doesn't

      15      mean in the future it might not affect another.

      16             So we think it's important that they're heard

      17      from.

      18             We think it's important that it's given the

      19      paramount amount of weight, because they're the one

      20      that's living with the heinous crime that visited

      21      their kitchen table.

      22             And when you attack a New York City police

      23      officer or law enforcement across this country, and

      24      even a prosecutor, that's an attack on all of

      25      society.


       1             If they can kill us, they can kill anyone,

       2      and that's the reality of it.

       3             We need to keep the humanity in this process.

       4             Terrorists should not walk our streets.

       5             The members that killed Piagentini and Jones,

       6      although it was 1971, they were "terrorists."

       7             We didn't use that word as often back then,

       8      but they wanted to terrorize society.

       9             How did they do it?

      10             By killing a -- New York City police

      11      officers.  By viciously pumping 20 rounds into their

      12      body as they begged for their life for their family.

      13             Why?

      14             Because they knew that would make society

      15      fearful.

      16             "If we can kill a cop, we can kill anyone."

      17             And if they do it right as terrorism, they

      18      won't have to kill anyone, because they would have

      19      terrorized us into submission, and fear, where we

      20      hide in our homes.

      21             We can't allow that to happen.

      22             Because you go through your sentence, and you

      23      learn how to answer the questions, and you have a

      24      parole board that's sympathetic and holds you in

      25      high regard as a criminal because you lived your


       1      life right behind bars?

       2             They have no choice but to live their lives

       3      right behind bars.  They have a correction officer

       4      on their left and on their right that make sure you

       5      abide by the rules.

       6             What we have to look at is, what did they do

       7      when they were free?

       8             Why did you go 30 years and not be sorry for

       9      your act?

      10             Not to say, I was wrong, and then on your

      11      eighth appearance, all of a sudden we found God?

      12             I don't believe that.

      13             Keep them behind bars.

      14             Let them teach the next generation that what

      15      I did as a criminal is not worth it, so you don't do

      16      it either.  It's not worth it because I'm spending

      17      the rest of my life behind bars.

      18             That's where they'll do the most good.

      19             Because we feed them, because we educate

      20      them, and they've learned how to play the system,

      21      doesn't mean they should be living next door to us.

      22             It doesn't mean they should walking into our

      23      schools to vote where our children are.

      24             They're violent criminals, they've proved

      25      that.


       1             If they attack us, they'll attack you.

       2             SENATOR AKSHAR:  I called Bell "a terrorist"

       3      then, and I'll call him "a terrorist" again today,

       4      because I believe it.

       5             And the critics and the pundits will

       6      pontificate about how members of law enforcement

       7      don't care about criminal justice reform, don't care

       8      about bail reform, parole reform.

       9             It's the furthest thing from the truth, would

      10      you agree?

      11             PATRICK LYNCH:  I do.

      12             And in any process, for anyone, whatever side

      13      of this issue we're on, we should ask for fairness.

      14             Look at each case, starting with the initial

      15      crime, and then make a decision from there.

      16             I find it odd that, all of a sudden this

      17      year, (pounding on table) rubber stamps of granting

      18      parole.

      19             We're not looking at the crime, we're not

      20      taking seriously the victim impact statements, and

      21      they've skewed the laws.

      22             Look, you're never against reform, but you

      23      should steer reform towards fairness where everyone

      24      in the process feels like they were fairly treated.

      25             And how do you do that?


       1             It's by looking at just the facts, just the

       2      crime, and each aspect from there.

       3             Many of the cases we're talking about are not

       4      young women and men who made a bad decision as they

       5      were growing up.

       6             We have people that thought out their

       7      process, premeditated, that sat and ambushed

       8      New York City police officers, and others.

       9             They're talking about, they knew exactly what

      10      they were doing.  They planned it out.

      11             And that evil doesn't go away.

      12             And when, year after year, they go to parole

      13      board, and they're not sorry, (snaps fingers) then

      14      all of a sudden they are?

      15             Meanwhile, our families, every two years,

      16      have to relive that by telling their stories.

      17             I have the opportunity of knowing these

      18      families.  And their lives have changed, and will

      19      never be changed back.

      20             Their children grew up without mothers and

      21      fathers, who were just going out to put food on the

      22      table just like every one of us do each and every

      23      day.

      24             A terrorist decided, we're going to fight for

      25      something that's not right, and you have gotten in


       1      our way, and we'll kill you for it?

       2             That should be given the most weight, because

       3      they feel it every day.

       4             Some say there's closure.

       5             I don't believe there's closure.  I think our

       6      families get used to the pain.

       7             And what keeps them going sometimes, is

       8      keeping their family member's spirit alive, by

       9      testifying at functions like this, of standing up

      10      and hearing what society says about their heroes.

      11             Well, I think the parole board needs to hear

      12      that too.

      13             And I think those commissioners that listen

      14      to the victims' impact statement should put politics

      15      aside, look them in the eye, understand their pain,

      16      and then vote to keep them behind bars.

      17             SENATOR AKSHAR:  Well, that's the problem,

      18      Patrick.  People don't put people before politics,

      19      unfortunately, in this crazy city.

      20             They don't.

      21             They put their political ambitions in front

      22      of that.

      23             So, you go home to New York City and you tell

      24      the sons and daughters and the mothers and fathers

      25      they have a friend here.


       1             And that I will always advocate for you,

       2      because you seek fairness, despite what the critics

       3      and despite what the pundits say.

       4             You just want a fair system; and you want a

       5      fair system not only for the people -- the men and

       6      women of the NYPD, but for everybody who finds

       7      themself in the system.

       8             It's very simple.

       9             Some will choose to spin it a certain way.

      10             I choose to speak the truth.

      11             Thanks for being here today.

      12             PATRICK LYNCH:  Thank you, Senator.

      13             SENATOR GALLIVAN:  I do have a question now.

      14             So, a lot of the written testimony, and some

      15      of the things you've just added --

      16             PATRICK LYNCH:  Yes.

      17             SENATOR GALLIVAN:  -- has to do with the

      18      various factors; recommendations on changing the

      19      factors, or the parole board giving a certain amount

      20      of weight, which, under current law, they're able to

      21      do without a requirement.

      22             But the standards themselves, I'm interested

      23      in your opinions.

      24             So the standards are, paraphrasing, the

      25      liberty without violating the law, welfare of --


       1      consistent with the welfare of society.

       2             Then the last one that you mentioned in your

       3      testimony, will the release so deprecate the

       4      seriousness of the crime as to undermine respect for

       5      the law?

       6             Essentially, the community standard, or, the

       7      community-at-large standard.

       8             Is it your opinion that those standards are

       9      appropriate ones, to look at not just the inmate,

      10      but also the community?

      11             PATRICK LYNCH:  Yes.

      12             SENATOR GALLIVAN:  Again, outside, not

      13      counting the factors, but just the standards

      14      themselves.

      15             PATRICK LYNCH:  You have to look at the

      16      standards and weight them properly.

      17             And the highest weight should be given to the

      18      nature of the crime, and the impact on the families

      19      who are society; New York City police officers who

      20      live in our communities.

      21             SENATOR GALLIVAN:  No, let's go here.

      22             So those two things, nature of the crime and

      23      impact on families, are factors, all the things to

      24      be considered.

      25             Then they balance them against those things,


       1      the welfare of society, deprecate the seriousness.

       2             So just those three.

       3             Not what has to be considered.

       4             Is this the right standard?

       5             Like, so if you consider all these things,

       6      the current standard that says above the line or

       7      below the line, is that line appropriate?

       8             PATRICK LYNCH:  No, what we need to do is

       9      reform the whole process and look at the fairness of

      10      the process.

      11             What we find is is that they're not going by

      12      the rules at all.

      13             They're going by what the crowd is saying

      14      outside the door.

      15             So I'm fearful that's -- they're not looking

      16      at any of the criteria.

      17             If you look at the criteria, and look at it

      18      fairly, listen to the victims and others, then it

      19      would be effective.

      20             I don't believe its effective now.

      21             SENATOR GALLIVAN:  Okay.

      22             Thank you, for your service, and for coming

      23      up here and testifying.

      24             PATRICK LYNCH:  Thank you, Senators; thanks

      25      to all of you.


       1             Thank you.

       2             SENATOR GALLIVAN:  Thanks, everyone.

       3             PATRICK LYNCH:  All the best.

       4             SENATOR GALLIVAN:  Police Conference of

       5      New York, Richard Wells, president;

       6             New York State Sheriffs Association,

       7      Peter Kehoe, executive director.

       8             Gentlemen, thank you for being here.

       9             RICHARD WELLS:  Afternoon, Senators.

      10             SENATOR GALLIVAN:  So if you look, you should

      11      have a red dot there.

      12             Just make sure the red dot is lit on the

      13      microphones.

      14             So, thanks for being here.

      15             We are, of course, focused on parole: the

      16      standards of release, the factors.

      17             And that's my understanding what you're going

      18      to -- we're also looking at the parolee voting

      19      issue.

      20             But we're focused with your testimony

      21      interview on the first.  Is that correct?

      22             OFF-CAMERA SPEAKER:  Correct.

      23             SENATOR GALLIVAN:  Okay.

      24             So let me ask you, and -- well, you know

      25      what?  Before I do, can you each just talk about the


       1      agency that you represent and who is represented in

       2      that?

       3             RICHARD WELLS:  My name is Richard Wells,

       4      president of the Police Conference of New York.

       5             The Police Conference is a coalition of local

       6      PBAs throughout the state of New York; over

       7      200 local units belong, representing approximately

       8      25,000 police officers in the state of New York.

       9             PETER KEHOE:  And I'm Peter Kehoe, an

      10      executive director of the New York State Sheriffs

      11      Association, and I represent the 58 sheriffs of

      12      New York State; 55 elected, and 3 appointed.

      13             SENATOR GALLIVAN:  All right.  Thank you.

      14             So, currently, victims have the right to be

      15      heard by the parole board, and get to weigh in

      16      before the parole board makes a decision.

      17             Do you think that's appropriate?

      18             Do you think the current process is working

      19      as it relates to victims, or do you have

      20      recommendations for change?

      21             RICHARD WELLS:  The current process is not

      22      working in many aspects.

      23             But --

      24             SENATOR GALLIVAN:  Let's stick with victims

      25      right now.


       1             RICHARD WELLS:  -- okay.

       2             As far as the victims go, and I didn't know

       3      until this morning's testimony from the former

       4      commissioner, how bad it actually was.

       5             I don't think they're giving the victims'

       6      impact statements are given the weight they need to.

       7      It doesn't seem like they get to the people it needs

       8      to.  There's no guarantee that the people hearing --

       9      conducting the hearing on the day that it's going to

      10      be decided whether somebody should be released,

      11      actually even sees it, reads it, hears it, or any

      12      part of it.

      13             And that needs to be seriously looked at, and

      14      amended and revised.

      15             PETER KEHOE:  And I agree; and I agree with

      16      the proposition that the victim should be heard.

      17             I think they should be heard in a respectful

      18      way, and I think their presentation should be given

      19      great weight.

      20             And I don't think that's the case.

      21             I think it's more perfunctory:  We'll listen

      22      to what you have to say, and we may or may not relay

      23      it to the people who should hear it.  But, even if

      24      we do, we're not saying it has any weight, or what

      25      weight it will have.


       1             I think it should have great weight, and that

       2      should probably be a matter of statute.

       3             SENATOR GALLIVAN:  The -- of course, the

       4      statutory factors are described in the executive

       5      law, and they include the sentencing judge, the

       6      district attorney, the defense attorney.

       7             Law enforcement is not specifically named,

       8      but it's not precluded.

       9             Do you have any thoughts on that?

      10             RICHARD WELLS:  I think police,

      11      (indiscernible) organizations, executive

      12      organizations, should certainly have a part in this.

      13             It's our members that deal -- you know, we

      14      initiate somebody going into the criminal justice

      15      system.  And a police officer is involved in all

      16      aspects: through indictment, hearings, trial, and

      17      conviction.

      18             Then he is later, when somebody comes up for

      19      parole, nobody asks for input, nobody really wants

      20      our input, it seems many, many times.

      21             But, yes, we should certainly be given a seat

      22      at that table.

      23             PETER KEHOE:  And I agree.

      24             I think that it gives -- shows the police

      25      officer that his work has value; that his opinion


       1      has value; that you recognize the tough job that

       2      they're doing.

       3             And that they are in on the ground level.

       4      They know what's going on.  And they probably know a

       5      lot more about this inmate than anybody else in the

       6      system.

       7             So I think it would be important for them to

       8      have input on the decision.

       9             RICHARD WELLS:  And in addition to that,

      10      Senator, especially in a lot of our smaller

      11      communities, which we have many in this state, that

      12      the police officer can give some aspect as to what

      13      is the release of this person back into a local

      14      community where the memories may still be fresh and

      15      raw, going to have an effect on that community?

      16             SENATOR GALLIVAN:  I was just going to go

      17      there.  So, I mean, I was going to move into the

      18      community.

      19             First, I suppose, you could blend them

      20      together.

      21             You know, to what extent should the community

      22      have input, if any, prior to the parole board making

      23      a decision?

      24             And, secondly, what's the input, in your

      25      opinion -- or, I'm sorry, the impact on the


       1      community, in your opinion, when somebody is

       2      released, from a public-safety end of it?

       3             RICHARD WELLS:  Well, the public safety, of

       4      course, obviously depends on the crime that they

       5      were convicted for, the likelihood they're going to

       6      repeat such a crime.

       7             And, again, I think the size of the community

       8      will have more an aspect.

       9             The smaller community, everybody knows each

      10      other.  They're all going to know that when the

      11      person is coming back into town.  And that's going

      12      to cause a lot of angst amongst the community if

      13      we're talking about a violent crime.

      14             And some weight should be given to that.

      15             SENATOR GALLIVAN:  And my last question,

      16      before I would ask for your recommendations, is

      17      we've seen -- you know, there's been testimony

      18      regarding some of the higher-profile releases of

      19      cop-killers.

      20             I mean, does that have an impact on the

      21      people that you represent, I mean, on the police

      22      officers themselves and the job that they do?

      23             PETER KEHOE:  Absolutely.

      24             And we see, you know, the great disrespect in

      25      some quarters for the police officer today.  And


       1      that is exacerbated by things like the release of

       2      Bell and other cop-killers.

       3             It just says to the police officer:  You're

       4      expendable.  We don't care about you.  It's more

       5      important that this poor defendant get

       6      rehabilitated, by having the right to vote, and

       7      being released into society, and all these things.

       8      And forget about the police officer who's dead.

       9             And I think it has a great impact on the

      10      profession.

      11             We are -- I think you're probably aware, at

      12      least a couple of you have been police officers, you

      13      know, probably, the difficulty that police agencies

      14      are having in recruiting police officers today.

      15             And a lot of that has to do with the Blue

      16      Lives Matter and the society that has disrespected

      17      the office of police officer.

      18             So what young person wants to go into that

      19      profession where they're denigrated for the job that

      20      they do in protecting those very people that are

      21      denigrating them.

      22             So, this is just another aspect of that:

      23      Showing disrespect for the police officer who's

      24      trying to protect society.

      25             RICHARD WELLS:  And it also sends a message


       1      to people who may be thinking about, even things

       2      like resisting arrest, fighting with the police,

       3      that, attacking cops, even killing cops, is not

       4      treated seriously.

       5             When you look at the -- Herman Bell, is

       6      probably -- I don't know if we can come up with a

       7      worse one than that, three police officers he

       8      murdered; directly responsible for the cold-blooded,

       9      premeditated murder of three police officers, and

      10      he's allowed to go back into society?

      11             It's beyond disgraceful that that could have

      12      even been considered by rational people.

      13             SENATOR GALLIVAN:  Recommendations regarding

      14      parole; the operations of the board as it relates to

      15      the standards of release and the factors that should

      16      be considered?

      17             We've already -- you don't have to repeat the

      18      factors that we just --

      19             PETER KEHOE:  Yeah, and I agree with --

      20      I again was enlightened a lot by the former parole

      21      board member and his testimony this morning.

      22             And I agree wholeheartedly with the comments

      23      and the recommendations of my friend Pat Lynch.

      24             I think one thing that we would suggest, it

      25      go a little further, and I know there are


       1      due-process issues and constitutional issues, and

       2      all of that stuff, but, there should be a statutory

       3      presumption against release on parole for a

       4      cop-killer.

       5             Right now it seems to be the presumption for

       6      anyone who's before the parole board is a

       7      presumption that you will be released, unless

       8      there's something negative in your file that's

       9      really bad to keep you from being released.

      10             With respect to a killer of a police officer

      11      and other emergency responders, I think there should

      12      be a presumption against it, and it would have to be

      13      overcome by some extraordinary circumstance favoring

      14      release; otherwise, no release.

      15             RICHARD WELLS:  Certainly, I agree with the

      16      increasing from 24 months.  I think five years

      17      should be a minimum starting base for parole

      18      hearings.

      19             And perhaps it should --

      20             SENATOR GALLIVAN:  In all cases, or are we

      21      talking about --

      22             RICHARD WELLS:  -- I'm just going to say,

      23      perhaps it should be graded.

      24             You know, violent crimes be treated this way.

      25             Then we have A, B, C, D, and E felonies.


       1             Maybe go by the grade --

       2             SENATOR GALLIVAN:  Graded according to the

       3      seriousness of the crime?

       4             RICHARD WELLS:  -- absolutely.

       5             SENATOR GALLIVAN:  Just like the sentencing

       6      standards are.

       7             RICHARD WELLS:  Correct.

       8             But this every two years, it's not a good

       9      system at all.

      10             And, again, for a murder of a police officer,

      11      never.

      12             SENATOR GALLIVAN:  I'm straying just a

      13      moment, which I shouldn't be doing, but, do you have

      14      thoughts on indeterminate versus determinate

      15      sentencing?

      16             PETER KEHOE:  Probably a lot, but I don't

      17      think we have time to develop that, Senator.

      18             SENATOR GALLIVAN:  Okay.

      19             We will pass.

      20             We'd like to thank you for being here, and

      21      your patience.

      22             Of course, the service of all of the members

      23      and agencies that you represent, I appreciate the

      24      work you do, and the fact that you're willing to be

      25      here.


       1             RICHARD WELLS:  Thanks for the opportunity.

       2             PETER KEHOE:  Thanks for the opportunity.

       3             SENATOR AKSHAR:  Thank you.

       4             SENATOR GALLIVAN:  All right.  Our next panel

       5      will be, Michelle Lewin, executive director of the

       6      Parole Preparation Project;

       7             And, Jose Saldana, community organizer for

       8      the Release Aging People in Prison Campaign.

       9             I'm going to need just a moment, all right,

      10      as soon as Niko takes care of you there.

      11             Give us two minutes.

      12                (Pause in the proceeding.)

      13                (The hearing resumed.)

      14             SENATOR GALLIVAN:  Okay.  Ready?

      15             MICHELLE LEWIN, ESQ.:  Yes.

      16             SENATOR GALLIVAN:  We just saw statements

      17      that you have here, and, we have a copy of the

      18      report that was prepared by the -- your two

      19      organizations, that we did want to talk about.

      20             So there's a lot of materials there.

      21             MICHELLE LEWIN, ESQ.:  Well, Senator, before

      22      you begin, I would like to read my statement.

      23             SENATOR GALLIVAN:  Pardon me?

      24             MICHELLE LEWIN, ESQ.:  I would like to read

      25      my statement on the record.


       1             SENATOR GALLIVAN:  It will be on the record

       2      anyway.

       3             MICHELLE LEWIN, ESQ.:  I understand.

       4             SENATOR GALLIVAN:  My hope would be that

       5      could you paraphrase the high points of it, and

       6      emphasize, so we can go on to questions.

       7             You can read it if you want, but like I said,

       8      it is in the record now (indiscernible) --

       9             MICHELLE LEWIN, ESQ.:  Yeah, I'll go ahead

      10      and read it.

      11             SENATOR GALLIVAN:  -- (indiscernible).

      12             MICHELLE LEWIN, ESQ.:  Yeah, thank you.

      13             SENATOR GALLIVAN:  I think because you spoke

      14      first, ladies first.

      15             Well, unless you want to --

      16             MICHELLE LEWIN, ESQ.:  No, no, we --

      17             SENATOR GALLIVAN:  -- (indiscernible) --

      18             MICHELLE LEWIN, ESQ.:  -- we discussed it, we

      19      discussed it.

      20             Thank you.

      21             My name --

      22             SENATOR GALLIVAN:  Oh, there we go.

      23             All right.  Go right ahead.

      24             Sorry, I didn't have the microphone on.

      25             MICHELLE LEWIN, ESQ.:  My name is


       1      Michelle Lewin, and I'm an attorney in

       2      New York State.

       3             I'm the executive director of the Parole

       4      Preparation Project.

       5             Founded in 2013, the project supports and

       6      advocates for the release of people serving life

       7      sentences in New York State prisons.

       8             We also help lead the statewide campaign for

       9      parole justice.

      10             In addition to running the Parole Preparation

      11      Project, I coordinate a contingent of attorneys

      12      working on parole-related litigation across the

      13      state, and I'm deeply familiar with parole policy

      14      and procedures.

      15             I'm considered an expert in this issue, and

      16      I consult on cases nationwide.

      17             To be plain about it, our work is about

      18      advocating for the release of more community-ready

      19      people from prison, especially people convicted of

      20      violent crime decades ago.

      21             It is about ensuring that parole-eligible

      22      people have a fair and meaningful opportunity for

      23      parole, and that their freedom is not determined by

      24      a political agenda, a special-interest group, or an

      25      antiquated approach to, quote, law and order.


       1             Our work is about promoting public safety,

       2      healing, and justice.

       3             Before addressing any arguments in greater

       4      detail and answering your questions, I want to

       5      outline some of the core principles that guide our

       6      movement for parole justice, and, from our

       7      perspective, should guide the criminal legal system

       8      at large.

       9             We believe that all people are valuable, and

      10      that regardless of the harm a person has caused,

      11      they deserve to be treated with dignity, respect,

      12      and compassion.

      13             Further, no lives are more valuable than any

      14      other, including the lives of law enforcement.

      15             We also see the humanity in all people, and

      16      recognize that people harm others for a whole host

      17      of reasons, often related to their own trauma and

      18      the ways in which we as a society have failed them.

      19             Violence stems from the painful realities of

      20      structural oppression, including racism and white

      21      supremacy.

      22             We also define people by who they are today.

      23             We do not define people by the worst thing

      24      they've ever done, but by their accomplishments, and

      25      their aspirations, their personal transformations,


       1      and their acceptance of responsibility.

       2             All people are capable of change and of

       3      making incredible contributions to their

       4      communities.

       5             So many of our leaders in the parole-justice

       6      movement who are here today with us were convicted

       7      of serious crimes decades ago, and have made

       8      tremendous contributions to our world.

       9             Further, we believe that the only

      10      determinative factors that should be used when

      11      assessing a person's readiness for release are these

      12      forward-looking markers:  Their achievements, their

      13      personal growth, and their potential risk to public

      14      safety.

      15             Lastly, and most importantly, we honor the

      16      experiences of all those who are harmed by crime and

      17      violence.

      18             We believe wholeheartedly in a victim's right

      19      to seek healing and restoration in the many forms

      20      those take.

      21             We do not suggest that there should be no

      22      accountability for harming other human beings.

      23             There absolutely should.

      24             We do not support is the current process

      25      rooted solely in punishment that serves no other


       1      purpose than to banish and indefinitely warehouse

       2      those who cause harm.

       3             We do not believe such a system helps our

       4      communities overcome the effects of crime and

       5      violence, nor does it sooth wounds, bring

       6      resolution, or keep any of us safe.

       7             And just for a bit of history, and we've

       8      discussed some of this on the record already, but

       9      I'll review:

      10             In 2011 the New York State Legislature

      11      amended the executive law governing parole, to

      12      require the board to use a risk-assessment

      13      instrument in their release determinations.

      14             The goal was to further a, quote,

      15      forward-looking holistic and rehabilitative

      16      approach.

      17             In September of 2017, the board of parole

      18      also revised their regulations in a similar vein,

      19      this time with even more emphasis on the role of,

      20      quote, risk-and-needs evaluations.

      21             The regulations now state, that if the board

      22      departs from their risk-assessment instrument and

      23      denies release, that it must give, and, quote, an

      24      individualized reason for such a departure.

      25             What I've heard others testify about today,


       1      and what Senator Gallivan has claimed in several

       2      public appearances, is that advocates misunderstand

       3      the law.

       4             Senator Gallivan claims that the executive

       5      law that governs parole has within it an inherent

       6      requirement that the parole board consider a

       7      community's opposition to a person's release when

       8      making their determinations, and should weigh that

       9      opposition heavily.

      10             This is not the law.

      11             The passage in dispute states, that release

      12      shall will be granted so as long as it is not,

      13      quote, incompatible with the welfare of society, and

      14      will not so deprecate the seriousness of his crime

      15      as to undermine respect for the law.

      16             Other than this vague phrase, the executive

      17      law contains no factor requiring the board to

      18      consider, quote, community opposition, a refrain we

      19      hear repeatedly from state senators, and state

      20      Republican senators.

      21             In fact, courts have held that the only

      22      opposition the board may consider is the testimony

      23      from victims directly impacted by the crime and

      24      their families and the district attorney.

      25             It is the job of the parole board, not


       1      special-interest groups, to make individualized,

       2      independent decisions about someone's freedom.

       3             The, quote, community opposition state

       4      senators and the parole board reference is also

       5      shrouded in secrecy.

       6             Parole applicants and their advocates are not

       7      permitted access to the so-called "opposition," and

       8      in some cases, upon judicial action, have discovered

       9      it never really existed at all.

      10             In other instances, "community opposition"

      11      merely refers to a petition signed by people who

      12      have no knowledge of the case or any connection to

      13      the victim or their family.

      14             There's nothing in the law that prohibits

      15      parole applicants from seeing this material.

      16             And if Senate Republicans and members of the

      17      board are so adamant about its power, then it should

      18      be made available to the very people it impacts

      19      most.

      20             Senate Republicans claim that releasing

      21      anyone who has killed a member of the law

      22      enforcement would so, quote, deprecate the

      23      seriousness of the crime; and, therefore, violate

      24      the law.

      25             What is actually unlawful is their demand


       1      that the board issue blanket denials of people based

       2      solely on their crimes of conviction.

       3             Senate Republicans are also saying that no

       4      amount of time, rehabilitation, or transformation

       5      could meet the "deprecate" standard, and that the

       6      board of parole should resentence all people with

       7      these crimes to life without parole.

       8             Sentencing remains within the purview of the

       9      courts, not the board.

      10             Significantly, and perhaps surprisingly to

      11      this Committee, the new regulations published in

      12      2017 eliminate altogether the, quote, welfare of

      13      society and deprecate language, perhaps in light of

      14      how impossible it is to implement such vague

      15      premises.

      16             While these phrases remain in the executive

      17      law, they appear nowhere in the revised version of

      18      the regulations.

      19             Even if commissioners were permitted to

      20      consider input from the general public, the question

      21      remains:  Which public, and whose community, are you

      22      even referring to?

      23             It seems you refer just to your own

      24      constituency, and even then it is not clear that

      25      your throw-away-the-key mentality is shared by your


       1      voters.

       2             Undermining respect for the law also does not

       3      refer to undermining respect for law-enforcement

       4      officers.

       5             It refers to the legal system.

       6             Further, the vast majority of people living

       7      in communities where people in prison, and most

       8      victims come from, believe that continued

       9      incarceration and death behind bars in no way serves

      10      the welfare of society.

      11             Bringing people home, reuniting families, and

      12      restoring fractured communities is the only form of

      13      welfare we seek.

      14             Distorting the law in this way is an attempt

      15      by Senate Republicans to erase the progressive

      16      amendments made to the executive law in 2011 and the

      17      regulations in September 2017.

      18             It is an attempt to amplify and exaggerate

      19      the minority of voices in the state who want

      20      perpetual punishment and believe death in prison is

      21      the only form of justice.

      22             It is an attempt to silence Black and Brown

      23      communities that have, for decades, fought for the

      24      release of their loved ones.

      25             The amendments to the regulation, as well as


       1      the appointment of new commissioners in June 2017,

       2      commissioners this very Committee confirmed, has led

       3      to an increase in release rates.

       4             Just last month, the parole of board released

       5      48 percent who appeared before it.

       6             We welcome and celebrate these changes with

       7      an air of caution and scepticism.

       8             Even with increased releases, more than

       9      50 percent of people appearing before the board are

      10      denied parole and remain locked up and away from

      11      their families.

      12             The board's policies still profoundly and

      13      disproportionately impact people of color, and more

      14      specifically, Black men.

      15             The board's practices also systematically

      16      deny release to aging and elderly people.

      17             Many parole-eligible people serving life

      18      sentences are over the age of 50, with some entering

      19      their 60s and 70s.

      20             This mass aging in prison, which is happening

      21      not only in New York State, but across the country,

      22      means we are building nursing homes inside prison

      23      walls and graveyards on prison grounds.

      24             I mean this literally.

      25             Let's be clear that, in New York State,


       1      repeatedly denying someone parole means sentencing

       2      them to die in prison.

       3             When Republican Senators say, "people who

       4      kill police officers should not be released," what

       5      they mean is that they should die behind bars.

       6             I want to close that by saying, that while

       7      we're here participating in this process, we see

       8      these hearings as a political ploy, and as an

       9      attempt to scare voters into re-electing you in

      10      November.

      11             Your proposed policies do not serve any of

      12      your stated goals of public safety, protecting

      13      victims, or law and order.

      14             They are purely for punishment, and nothing

      15      else.

      16             Further, your characterization of

      17      incarcerated people, and those who have been

      18      convicted of violence, as dangerous, barbaric,

      19      terrorists, and other words I am ashamed to repeat,

      20      is not only factually inaccurate, but racist,

      21      bigoted, and harmful.

      22             The same is true of your efforts to

      23      disenfranchise people on parole who only recently

      24      obtained the right to vote.

      25             Elected officials across this country use


       1      fear-mongering, deception, and hate to rally their

       2      constituents, and you are no different.

       3             I am hopeful that, in November, community

       4      opposition will refer not to a small contingent of

       5      law enforcement opposing the release of aging people

       6      in prison, but the masses who have finally,

       7      decidedly, said:  Enough.  No more perpetual

       8      punishment.  No more death in prison.

       9             SENATOR GALLIVAN:  Mr. Saldana.

      10             JOSE SALDANA:  Yes, I'm a community organizer

      11      for RAPP (Release Aging People in Prison) Campaign.

      12             We work to end mass incarceration by

      13      advocating for the release of the older prisoners in

      14      New York State who have languished in prison, some

      15      for over four decades.

      16             I came here to advocate on their behalf.

      17             I think they would want me to speak for them.

      18             But I want to pause for a few minutes, and

      19      respond to something that occurred just a few

      20      minutes ago.

      21             You mentioned the murder of two New York City

      22      police officers, and the devastation that it caused

      23      their family and their community.

      24             Made no mention that that very year, '92,

      25      teenage boys, young Black men, were murdered by


       1      New York State; New York City police officers.

       2             92 families, not mentioned, not one single

       3      word.  Happened the same year.

       4             Their lives didn't matter, but they matter to

       5      me, and they matter to our community.

       6             And all the people who incarcerated for

       7      violent crimes for 40 years, their lives matter to

       8      us.  And they have shown their worse, and I have

       9      seen their worth up front.

      10             I've languished with them for 38 years.

      11      I know who these men are.

      12             38 years I've seen them develop the best

      13      therapeutic programs possible.

      14             Why?

      15             Because New York State Department of

      16      Corrections does not educate.  They do not

      17      rehabilitate.

      18             So we take it upon ourselves to rehabilitate

      19      ourselves; to create programs like the Challenge to

      20      Change, to address criminal thinking, attitude, and

      21      behavior.

      22             We develop victim-awareness programs that

      23      will help us develop insight into the harm that our

      24      crimes inflicted on innocent people.

      25             We develop anti-violent programs,


       1      gang-prevention programs, to help these teenagers

       2      that are at risk to becoming gang members.

       3             And these men have been doing this for

       4      decades.

       5             They're not faking, because, once they let us

       6      out, they have let a few of us out, and they

       7      continue to do the same thing, exact same thing.

       8             You will find them in the worst

       9      neighborhoods, addressing the gang violence, because

      10      what happens in our communities matter to us.

      11             We are concerned with the plight, the social

      12      and economic conditions, in our community.

      13             I realize that you -- y'all ain't concerned

      14      about that.

      15             You weren't concerned back then.  You're not

      16      concerned now.

      17             You're concerned about your own constituents.

      18             You're not concerned about Brownsville,

      19      Spanish Harlem, east New York.

      20             We are.

      21             We've come from prison, after decades, to

      22      address these issues.

      23             That's our worth.

      24             That should be the measure, of who we are

      25      today, not back in 1979, or 1971.


       1             That's all I have to say.

       2                [Applause.]

       3             SENATOR GALLIVAN:  Well, thank you for being

       4      here.

       5             And I'm very sorry to hear that you're here

       6      participating, but you see this as a political ploy.

       7             If I saw it as a political ploy, I wouldn't

       8      be sitting here, asking questions.  I wouldn't have

       9      immersed myself in hours and hours of research, and

      10      wouldn't go through this.

      11             You have your opinion.

      12             But I can tell you, from my perspective, and

      13      my Co-Chair's perspective, that is not accurate at

      14      all.

      15             New York State lawmakers, I think it was in

      16      2005, or perhaps it was a little bit earlier, they

      17      have made the murder of a police officer punishable

      18      by life in prison; Democrats and Republicans.

      19             That is the state of the current law.

      20             The changes that were made to the parole

      21      regulations were in response to New York State

      22      statute and to the Supreme Court.

      23             And I'm not going to read it, but it will be

      24      available in the ultimate record, but that is

      25      something that the chairwoman of the board clearly


       1      articulates.

       2             The chairwoman of the board, in her written

       3      testimony, also clearly articulates all of the

       4      factors that must be considered.

       5             She articulates the fact that the courts

       6      have, essentially, placed it on the board to

       7      determine the weight, and the standards are the

       8      standards.

       9             And when I speak from that, when I speak in

      10      talking about the standards, and I talk in certain

      11      cases, where I think members of the parole board

      12      failed the citizens that they serve, the citizens

      13      they serve, sir, are just like me.

      14             Yes, I have a district, but every citizen in

      15      the state is a constituent.

      16             And I recognize, when I make my decisions,

      17      I affect people and families.

      18             And my decisions aren't always right, but

      19      I recognize the constituency is across the state,

      20      and I care about people.

      21             You may not know that my uncle was murdered.

      22             You may not know that my uncle, lived on the

      23      east side of Buffalo in a very poor area, was

      24      stabbed 27 times.

      25             You may not know much about my personal


       1      family, that I'm not going to go into.

       2             I understand that you made some very, one in

       3      particular, a very inaccurate comment, about my time

       4      on the parole board.

       5             You don't know what my release rate was.

       6             You don't know the people that I released.

       7             But I can tell you that the statement that

       8      you made about that is absolutely wrong.

       9             And, while I don't even think it's merited,

      10      but out of respect, like you being at this hearing

      11      today, if you would like to sit down and go over

      12      that, and I can show you what is accurate, I'm happy

      13      to do that.

      14             I had wanted to take the time to go into the

      15      report, and ask about the objectivity of it, ask

      16      about how many cases were looked at, ask about how

      17      much information was obtained by the parole board.

      18             But because of how you characterize it, I --

      19      I -- it appears that there's no need to do that

      20      today.

      21             But we do appreciate the time that you guys

      22      took to be here, and your patience.

      23             Thank you very much.

      24             Public Employees Federation, represented by

      25      Antonio Perez, Division 236 council leader, and


       1      Gina Lopez, Division 236 assistant council leader.

       2             Give us just a moment.

       3                (Pause in the proceeding.)

       4                (The proceeding resumed.)

       5             SENATOR GALLIVAN:  Did you -- have you

       6      submitted something written yet?

       7             VICTOR ANTONIO PEREZ:  I wrote something, but

       8      it had so many grammatical errors, I was ashamed to

       9      submit it.  So, I'll just read it off.  It's very

      10      short.

      11             SENATOR GALLIVAN:  That's okay.

      12             All right.  So, we're just going to wait one

      13      moment.

      14             Okay.

      15             Thank you both for being here, and your

      16      patience.

      17             GINA LOPEZ:  Thank you.

      18             SENATOR GALLIVAN:  It doesn't matter to me

      19      who starts -- oh, maybe you're starting by rank.

      20             VICTOR ANTONIO PEREZ:  My name is

      21      Victor Antonio Perez.  I am a senior parole officer.

      22      I live in The Bronx.  I work out of Westchester.

      23             I have been with the former division of

      24      parole, and now the department of corrections and

      25      community supervision, for a total of 26 years.


       1      Ten of those years were inside doing parole boards.

       2             I was one of those original facility parole

       3      officers that has since been eliminated.

       4             And I now am the council leader of

       5      Division 236, representing all of the parole

       6      officers of the state of New York, as well as the

       7      president of the Fraternal Order of Police,

       8      Lodge 27, representing all of the parole officers of

       9      the state of New York.

      10             SENATOR AKSHAR:  Thank you.

      11             GINA LOPEZ:  Hello.  I'm Gina Lopez.

      12             I am actually a parole officer in the

      13      Rochester metro office.  I've been a parole officer

      14      for 12 years, and I recently was made the assistant

      15      council leader of Division 236.

      16             SENATOR GALLIVAN:  Okay.  Thank you.

      17             VICTOR ANTONIO PEREZ:  Good afternoon,

      18      Senator Gallivan and Senator Akshar.

      19             Did I pronounce that right, sir?

      20             SENATOR AKSHAR:  It's fine.

      21             VICTOR ANTONIO PEREZ:  Thank you for the

      22      opportunity to speak before you on this matter of

      23      restoring voting rights to those on parole in the

      24      state of New York.

      25             First and foremost, I want to make it very


       1      clear that the parole officers of the state of

       2      New York do not oppose the rights -- the restoration

       3      of rights to parolees to vote.

       4             We do have a problem, however, the way it is

       5      being rolled out -- or, the way it was rolled out.

       6             After all, we are tasked to make sure, or to

       7      assist, in the reintegration of parolees back into

       8      society.  And I think voting is certainly one of

       9      those things that can and should happen.

      10             After reviewing Executive Order 181, and how

      11      it was to be implemented, the executive order

      12      states:  Individuals being released from

      13      incarceration on to parole supervision, and

      14      individuals who are currently under parole

      15      supervision, will be given consideration for a

      16      conditional pardon that will restore voting rights

      17      without undue delay.

      18             "Consideration" is not blanket pardons.

      19             And though I'm told that it wasn't a blanket

      20      pardon, I didn't find anybody in any office that did

      21      not get one.

      22             There was, as of September 18, 2018,

      23      30,676 parolees have been conditionally pardoned.

      24             Of that group, already, 646 have been revoked

      25      through the parole revocation process.


       1             Now, how is that impact the parole officers?

       2             Let me share with you what the parole

       3      officers that were tasked to do.

       4             On these 30,000-plus conditional pardons were

       5      to be given and distributed out to by,

       6      approximately, 900 -- actually, the number is

       7      922 parole officers, we were told to get these

       8      pardons out in the hands of parolees.  Drop

       9      everything that we were doing.

      10             The parole officers were told to cancel

      11      delinquency operations.  That means do not, or at

      12      least cancel, or postpone, executing warrants of

      13      absconders from parole.

      14             Being the good soldiers that we are, we did

      15      exactly that, and we dropped everything that we were

      16      doing to find parolees all over the place, not only

      17      in our counties, but those who have been transferred

      18      to other counties.

      19             And I've heard stories about parole officers

      20      being told to go to Rikers Island, because, at that

      21      time, it wasn't clear on whether these parolees were

      22      going to get their rights restored or not.

      23             So you have parole officers going to

      24      Rikers Island simply to deliver the executive

      25      pardons.


       1             Now, we have parole officers -- because of

       2      the COMPAS system that's been well talked about

       3      today, there are parole office -- parolees that

       4      don't report to parole for four months.  And visits

       5      are not requested for -- or, mandated for

       6      four months.

       7             And that's how the ratio of parolees to

       8      parole officers are established; and, therefore,

       9      their time.

      10             So, all of these parolees had to be found,

      11      whether they be home.  Some of them do not have

      12      curfews, and so it was just hit or miss, some two or

      13      three times.  Some at their jobs.

      14             And -- which required just an awful lot of

      15      additional work.

      16             And, to my knowledge, none of these parole

      17      officers were compensated any more than their

      18      regular salaries for doing such a task.

      19             Now, as to the Level 3 sex offenders, those

      20      with SARA conditions, parole officers all

      21      reported -- the parole officers that I spoke to,

      22      I spoke to about seven parole officers from four

      23      different offices around the state, and they all had

      24      one thing in common: there was mass confusion.

      25             At the beginning, when the pardons were


       1      given, there wasn't real correct -- any direction on

       2      how to approach the sex offenders going into schools

       3      where voting polls were taking place.

       4             But that was addressed probably a few weeks

       5      after that.

       6             And parolees were given letters and

       7      conditions, basically stating, that if they wanted

       8      to vote, and the voting place was in the school,

       9      they must seek approval of the superintendent.

      10             Some of the officers weren't aware of who was

      11      actually going to make this request.

      12             Some officers thought that the parolees were

      13      supposed to do it.

      14             Parole officers were told to send this

      15      request -- some parole officers were told to send

      16      those requests to SOMO, which is our central office,

      17      and that they would send the request.

      18             One officer reports that they sent four

      19      requests to SOMO, and -- but only one response was

      20      given.

      21             And they were a little fearful because,

      22      parolees who actually wanted to vote, which were

      23      very few, by the way, but those who wanted to vote,

      24      three out of those four were not able to vote

      25      because of the no-request.


       1             One officer reports that there were several

       2      requests, didn't give the number, but none of them

       3      were responded to by central office.

       4             And I assume that that means the

       5      superintendent didn't respond to them, but there was

       6      no communication as to why, where.  And the parolee

       7      was left with the inability to vote anyway.

       8             One officer was very disturbed to see a

       9      parolee under Article 10 of the mental-health law,

      10      who had raped multiple minors, to receive the right

      11      to vote.

      12             That particular parolee was not interested in

      13      voting anyway, luckily, so we didn't have to worry

      14      about him going into a school.

      15             The general consensus of the parole officers

      16      that had to execute the Governor's pardons were

      17      that, initially, the orders were unclear, that it

      18      was a process that was rushed and not very well

      19      thought out.

      20             The feedback was that, for the most part,

      21      very few parolees were even interested in voting.

      22             The sex-offender parolees were very reluctant

      23      to make their presence known in schools.  They spent

      24      most of their time in prison hiding the fact that

      25      they're sex offenders.  And, in public, they try to


       1      do the same.

       2             Those few that were, did express some

       3      interest in voting, wanted to do it in an

       4      absentee-ballot situation.  And there was not enough

       5      information given to anybody on how to go through

       6      that process.

       7             I don't even know how to do it myself.

       8             One sex offender did vote in New York City.

       9             And the one that did get permission, another

      10      who wanted to vote, was actually on parole.

      11             And one of those persons that probably we

      12      would have no problem with was on parole for

      13      18 months, was doing well, worked two jobs, was

      14      actually working with the Fortune Society.  But he

      15      never got permission from the superintendent, and

      16      so, therefore, he could not vote.

      17             The consensus was simple.

      18             If a massive undertaking like this was going

      19      to take place, you would think that somebody would

      20      reach out to us, and at least talk to us and see

      21      what the hurdles were going to be.

      22             And we would have easily just told them, this

      23      is what you're going to run into, and how to go

      24      about, maybe, just jump over some of those hurdles.

      25             The other thing is that, and I speak for all


       1      officers that I spoke to, and I think I speak for

       2      all officers in the state of New York, that a

       3      blanket -- although the administration said it's not

       4      a blanket pardon -- I haven't seen anything to

       5      refute that -- that the process should be

       6      individualized.  There should be some kind of

       7      evaluation.

       8             Just as there's merit parole, the restoration

       9      of any other right, the restoration of the right to

      10      hold office or the restoration of a right to carry a

      11      gun, or whatever, that has a process.  It's called a

      12      "certificate of relief from disabilities."

      13             If they want to shorten that process to make

      14      it to vote, that's fine, but make it a process based

      15      on evaluation and based on merit.

      16             Somebody has to earn their rights back, not

      17      just given to them, because I have a problem facing

      18      two parolees.

      19             One is doing excellent, he has two jobs, he's

      20      supporting his kids.  He is rehabilitated.  He saw

      21      the light, and he's living the life.

      22             And the other side, he's not living the life.

      23      He's turning dirty, hasn't found a job, or, for

      24      whatever reason, you know, he's got -- what we would

      25      call "pre-delinquent."


       1             And those two people have the same right to

       2      vote?  That's not fair.

       3             Not fair.

       4             Let them earn it.

       5             SENATOR AKSHAR:  Thank you.

       6             SENATOR GALLIVAN:  Miss Lopez.

       7             GINA LOPEZ:  In my office there are two big

       8      things that they saw.

       9             One was, like he said, the immediacy to have

      10      this be put into place, with the parolees being able

      11      to be given their pardons.

      12             I'll use me as an example.

      13             I have a mixed caseload.

      14             On my mixed caseload I cover over 84 people

      15      that I have to do visits on, make sure they're going

      16      to programs.

      17             And, there was just this intense immediacy

      18      that this had to be completed immediately.

      19             We had to give the numbers every week of when

      20      we were getting it done, who we got done, and the

      21      list was on and on about making sure that you went

      22      for extra home visits, if you had to go to their

      23      employment, if you had to go anywhere to catch them

      24      to give them to this pardon.

      25             And many of them make office reports, when


       1      they could have came and gotten it from us by just

       2      coming into the office.

       3             One of the things that was very difficult in

       4      my office was, the sex offenders, I have sex

       5      offenders that -- supervised sex offenders.

       6             In the executive order it totally talks about

       7      making sure that schools are aware that you are

       8      going to be coming to the school to vote; however,

       9      in my area, many of those voting sites are in

      10      recreation centers, where it's not legally obligated

      11      for you to let them know that they're coming.

      12             But, morally, the parole officers felt that

      13      they should make someone aware that someone was

      14      going to be coming to a recreational center in that

      15      area to be able to vote.  And that was the big

      16      consensus in my office in regards to that.

      17             SENATOR GALLIVAN:  Thank you.

      18             Do you have any questions?

      19             SENATOR AKSHAR:  Go ahead.  No, I'm good.

      20             SENATOR GALLIVAN:  I had a number of

      21      questions, but, specifically, about the things that

      22      you spoke to.  And I think you've answered pretty

      23      much everything, but, I guess I have one or two

      24      more.

      25             Was there any -- so within department of


       1      corrections and community supervision, when, in a

       2      general sense, would it be -- is it fair to say,

       3      when something comes out, that there is -- I don't

       4      know if it's called the general policy, or a

       5      regulation, I'm not sure what you might call it

       6      internally --

       7             VICTOR ANTONIO PEREZ:  Directive.

       8             GINA LOPEZ:  Directive.

       9             SENATOR GALLIVAN:  -- a directive comes out,

      10      did any directives come out --

      11             VICTOR ANTONIO PEREZ:  Yes.

      12             SENATOR GALLIVAN:  -- regarding this topic?

      13             VICTOR ANTONIO PEREZ:  Yes, they did.

      14             SENATOR GALLIVAN:  And did they -- did the

      15      directives have to do with some of, Mr. Perez, what

      16      you testified to?

      17             VICTOR ANTONIO PEREZ:  Yes, yes.

      18             SENATOR GALLIVAN:  About how were you to

      19      handle it, and all that?

      20             Can you tell us what directives -- if you

      21      have them, what directives came out and when?

      22             VICTOR ANTONIO PEREZ:  I do not have that

      23      directive.

      24             We were given directives.

      25             The directives were, pretty much, that


       1      everybody who got a pardon was supposed to be

       2      hand-delivered that pardon.

       3             And there was -- in the directive, I don't

       4      believe it had a timetable, but we were told by

       5      administration, at first, they wanted everything

       6      done in two weeks, and then maybe four weeks, and

       7      then that was extended.  And so we were able to get

       8      them all.

       9             SENATOR GALLIVAN:  Regarding -- and either,

      10      if you have knowledge, regarding the issue related

      11      to sex offenders, and the additional special

      12      conditions to getting permission, and so on, that

      13      I now know does exist, do you recall when that

      14      directive came out?

      15             VICTOR ANTONIO PEREZ:  Yeah, I believe -- I'm

      16      not sure if that was a directive or an e-mail or

      17      some kind of communication from the office.

      18             That came out.

      19             The problem was, and it said, and I'm just

      20      saying this secondhand, because I didn't see it

      21      myself, from the officers, that the central office,

      22      SOMO, the sexual -- Sex Offender Management Office

      23      in Albany, was supposed to be notified if, in fact,

      24      a parole -- a sex-offender parolee that was a SARA

      25      case, and was restricted from being in a school,


       1      within 1,000 feet of the school, that they were

       2      supposed to be notified.

       3             My understanding that -- was that, that

       4      someone was to notify the superintendent or the

       5      administrator of that school.  And, somehow, that

       6      information would come back to the parole officer,

       7      and then to the parolee.

       8             The trouble is that, of the seven

       9      sex-offender officers that I spoke to directly

      10      within the last couple of days, only two knew that.

      11      The other five had no idea.

      12             And that could have been because that none of

      13      their particular sex offenders, you know, expressed

      14      a willingness or, you know, a desire to vote.

      15             SENATOR GALLIVAN:  Were there -- the

      16      Governor's executive order was dated April 18th?

      17             VICTOR ANTONIO PEREZ:  That's correct.

      18             SENATOR GALLIVAN:  I don't know the exact

      19      date that he announced it, but it was dated

      20      April 18th?

      21             VICTOR ANTONIO PEREZ:  Yeah, I saw that date.

      22             SENATOR GALLIVAN:  Was there any directives

      23      or instructions prior to April 18th?

      24             VICTOR ANTONIO PEREZ:  No, not that I'm aware

      25      of.


       1             I think that was, May, I believe was when we

       2      were notified that there were -- the executive

       3      orders were starting to be distributed.

       4             SENATOR GALLIVAN:  Okay.  I do want to note

       5      that Commissioner Annucci's written testimony does

       6      talk about the actual procedure -- or, the process

       7      now for sex offenders.

       8             And then there's a reference both from the

       9      commissioner and from the Governor's counsel, that

      10      the process -- the process for everybody is now

      11      listed on the Governor's website.

      12             VICTOR ANTONIO PEREZ:  Yeah, and let me be

      13      the first to -- the department of correction and

      14      community supervision are great at directives.  They

      15      write everything down.

      16             The distribution of those directives, and the

      17      communications of those directives, don't always get

      18      to the person they need to get to.

      19             And in this case, I think that was the case.

      20             It was because it was a little bit of a

      21      rush -- or, no, it was a lot of a rush.

      22             And the -- our directives were:  Do it, do it

      23      now.  Drop everything that you're doing.  This is

      24      our number-one priority.

      25             So that, I think, was part of the problem,


       1      with the communication.  The communication was

       2      moving so fast that not all of it came down on a

       3      timely basis.

       4             SENATOR GALLIVAN:  So other than what you've

       5      already testified to, regarding process, we can't go

       6      backwards, any recommendations, going forward?

       7             VICTOR ANTONIO PEREZ:  Yeah.

       8             Some recommendations are:

       9             I don't -- again, you know, the pardons that

      10      are given, those pardons that are revoked because of

      11      parole violations or new crimes, I would like to see

      12      those pardons be scrutinized a little bit more.

      13             And like the executive order says, that

      14      they -- and I'll quote:  That individuals who are

      15      currently under parole supervision will be

      16      consideration, not guarantee.

      17             And so those who do violate the process may

      18      be considered, but not given because of their

      19      behavior.

      20             I do believe that those are things that need

      21      to be earned.

      22             And somebody could do very, very well in

      23      prison.

      24             You know, and like the testimony that -- like

      25      Mr. Lynch had said, and other people, when they


       1      come out, that's the real test.  That is the real

       2      test.

       3             And voting is a right, I understand that, but

       4      voting is a right that's been taken away because

       5      somebody behaved, you know, criminally.  And it has

       6      to be restored in a fair -- in a fair manner.

       7             I do most parolees will do -- and will do

       8      that.

       9             But for those who don't, I don't think they

      10      should have that right.

      11             SENATOR AKSHAR:  (Indiscernible).

      12             SENATOR GALLIVAN:  Oh, I'm sorry.

      13             Let me just note, you jogged something in my

      14      mind regarding -- regarding the conditional pardon

      15      that then is revoked.

      16             We are getting a monthly report of that.  We

      17      are -- that is, we are being made aware of that.

      18             And I think, I'm not positive, that might be

      19      available publicly on the DOCS website.

      20             But at the very least, I know that we are

      21      getting a -- we are getting a -- I don't know

      22      exactly how it happens, but we do get the monthly

      23      report.

      24             VICTOR ANTONIO PEREZ:  Good.

      25             SENATOR GALLIVAN:  Sorry.


       1             SENATOR AKSHAR:  So your testimony today is

       2      that, those who sought the right to vote should have

       3      went through the current process of obtaining a

       4      certificate of relief from disabilities?

       5             VICTOR ANTONIO PEREZ:  Either that -- that

       6      process is already in place.

       7             SENATOR AKSHAR:  Oh, I understand.

       8             VICTOR ANTONIO PEREZ:  Right.

       9             And if that process is to be changed or

      10      altered in any way, and I don't oppose a more

      11      expedious (sic) (ph.), because that's a long

      12      process.  For somebody, it takes months and months

      13      and months for a certificate of relief to -- because

      14      an investigation has to happen, prolonged

      15      investigation on a parolee, et cetera.

      16             But there's some kind of evaluation done.

      17             We do merit paroles all the time.

      18             Somebody, for non-violent felony offense, has

      19      completed one year of successful parole, they're

      20      working, they've abided by their conditions of

      21      parole; they're not using any illegal substances;

      22      they've completed their programs; you know, they

      23      report; they're home, you know, when they're

      24      supposed of be; those people get off parole, because

      25      they earned it.


       1             And then, they should.

       2             A similar process could happen, you know,

       3      maybe after three months after somebody is on

       4      parole.

       5             90 days is a good, you know, milestone for

       6      somebody to -- for a parole officer to evaluate

       7      whether a parolee is adjusting well to his

       8      supervision.

       9             And, let me just say, parole officers do a

      10      wonderful job, a marvelous job.

      11             And, yes, I'm a little biased because

      12      I represent all the parole officers.  But, nobody

      13      knows how well-adjusted a parolee is more than a

      14      parole officer; his or her parole officer.

      15             And I think that is where it starts:  Let

      16      them make an evaluation.

      17             SENATOR AKSHAR:  Great.  Thank you.

      18             SENATOR GALLIVAN:  Well, thank you both for

      19      being here, and for your service, and those of the

      20      people that you represent.

      21             I know, from our committee work, and from our

      22      budget-related work, I know how difficult a job you

      23      have.

      24             And I appreciate the fact that you're out

      25      there, plugging away every day, and for your


       1      patience today as well.

       2             Thank you.

       3             VICTOR ANTONIO PEREZ:  If I may acknowledge

       4      one thing, today is the first day of Breast Cancer

       5      Awareness Month.

       6             And having lost my sister just 90 days ago to

       7      breast cancer, I just wanted to throw that out

       8      there.

       9             And anything anybody could do to get those

      10      people who need mammograms or breast-cancer exams,

      11      to avoid that, I want to put it out there.

      12             SENATOR GALLIVAN:  Sorry for your loss.

      13             Thanks for bringing it up.

      14             My wife and mother are survivors, so we're

      15      very active in trying to help get the word out.

      16             VICTOR ANTONIO PEREZ:  Thank you.

      17             SENATOR GALLIVAN:  But it's wonderful you

      18      brought it up.

      19             Thank you.

      20             VICTOR ANTONIO PEREZ:  Thank you.

      21             GINA LOPEZ:  Thank you.

      22             SENATOR GALLIVAN:  Our next panel, from the

      23      New York State Board of Elections, Todd Valentine;

      24             Rensselaer County Board of Elections,

      25      Jason Schofield, commissioner;


       1             And the Dutchess County Board of Elections,

       2      Erik Haight, commissioner.

       3             Just a moment, please.

       4             TODD VALENTINE:  Yes.

       5                (Pause in the proceeding.)

       6                (The hearing resumed.)

       7             SENATOR GALLIVAN:  Well, thank you for being

       8      here.

       9             Could you each introduce yourself, and your

      10      titles?

      11             JASON SCOFIELD:  Jason Schofield, Rensselaer

      12      County Commissioner of Elections.

      13             TODD VALENTINE:  Todd Valentine, co-executive

      14      director, New York State Board of Elections.

      15             ERIK HAIGHT:  And, Erik Haight,

      16      Dutchess County Board of Elections.

      17             SENATOR GALLIVAN:  Well, thank you all for

      18      being here.

      19             We have some written testimony from

      20      Director Valentine.

      21             And, we're hoping that you can paraphrase it,

      22      or go through it if you wish, and then we can ask

      23      questions.

      24             Or, each of you can just comment about your

      25      concerns.


       1             So, obviously, your purpose here today, we're

       2      now in our second topic area, and that's the

       3      Governor's executive order.

       4             And our real interest is, the implications

       5      for the various boards of election across the state,

       6      polling places, et cetera.

       7             And so we'll let Mr. Valentine go first.

       8             TODD VALENTINE:  Yeah, as you indicated,

       9      I had submitted written testimony to you, and I'll

      10      just highlight a couple of points.

      11             There's really two points we want to make,

      12      which is what was already -- as was just previously

      13      discussed by the parole officers.

      14             First of all, the Executive Order 181, it was

      15      not well thought out through.

      16             And the second thing, is that we're starting

      17      to see a lot of pushback from the schools, and

      18      that's going have large election implications.

      19             I mean, there were problems from the outset.

      20             As you noted previously, the executive order

      21      was issued on April 18th, but it wasn't clearly

      22      until a month later, in May, that we actually had

      23      some direction from the Governor's Office, through a

      24      phone call, that they would be announcing the

      25      release of the pardons in the upcoming weeks.


       1             And on that call they relayed that they would

       2      have a plan, where the county boards could look up

       3      the information as to whether a parolee had been

       4      granted the pardon or not.

       5             But there were still a lot of questions that

       6      we had.

       7             And, specifically, they mentioned about the

       8      issue with regard to sex offenders that have

       9      limitations on schools that might be poll sites.

      10             They indicated that, at that time, there

      11      would be no granting or change from the conditions

      12      that had already been indicated on the paroles.

      13             As was seen later on, the permission process

      14      that was already existed in statute was then

      15      augmented or changed, with limitations on the time

      16      frame, that were not as part of the statute as we're

      17      concerned.

      18             But none of that information was relayed to

      19      either state board of elections, or for us to filter

      20      down from the county board of elections.

      21             And the revocations of the pardons continue

      22      to be an issue.

      23             As we've noted, that we asked for who would

      24      be granted these paroles, and we did ask what

      25      conditions might be, or what review was undertaken.


       1             They indicated, nothing -- no formal review,

       2      no standards, (indiscernible) pardons.

       3             But then when the revocations began, we asked

       4      the same question:  What is the basis for the

       5      revocations, and what is going to be the process in

       6      revoking these?

       7             Because without this not having been a

       8      thought-out process, that, as for many voting

       9      rights, those are discussions that take place

      10      publicly.

      11             Those are the discussions that take place

      12      during a statutory debate, during legislative

      13      debate; those ideas are floated and discussed, quite

      14      often, for lengthy periods of time as we know.

      15             But this was -- arisen, and then by fiat, was

      16      issued out to the counties, and through us to the

      17      county boards.

      18             And this is the same thing with the

      19      revocations; we've been getting the information, and

      20      we've been passing that along to the county boards

      21      so they can -- if they have those that are

      22      identified in there.

      23             But, again, there's no process for revoking a

      24      pardon once it's been issued.

      25             And, until this time period, it was extremely


       1      rare to ever see a pardon issued for a vote -- for

       2      voting.  And, quite honestly, in my 20 years'

       3      experience, I had never heard of it.

       4             So -- and, then, to have it all done,

       5      thousands issued in fell swoop, while that's within

       6      the law, it was also a drastic change in the

       7      process.

       8             So we were able to put together a procedure,

       9      that we could then try to advise the county boards

      10      as best we can.  And we're still getting questions

      11      to this day.

      12             But that's now where we're starting to see

      13      the pushback from the schools that, you know, in

      14      this state, you know, one of the things that you

      15      don't think about is, you know, the poll sites that

      16      we have, statewide, just under 20 percent of the --

      17      our polling places are schools statewide.

      18             SENATOR GALLIVAN:  I'm sorry, how many?

      19             TODD VALENTINE:  27 percent of our polling

      20      places, statewide, are schools.  And that number

      21      increases dramatically as you go -- the further

      22      south you go.

      23             You know, Nassau County is 49 percent.

      24             Suffolk County is 53 percent.

      25             You know, the New York City numbers are quite


       1      high as well.  70 percent for Queens.  69 percent

       2      for Staten Island.  65 percent for The Bronx.  And

       3      46 percent for Brooklyn.

       4             Manhattan is a little lower at 37 percent,

       5      but they have a lot more buildings to deal with.

       6             But that's why, one of the things I was

       7      asking to have, you know, at least two county boards

       8      here with me, were Dutchess and Rensselaer, was that

       9      they are seeing that experience firsthand; that when

      10      they go to put these poll sites into place, you

      11      know, that's over 1400 poll sites that we're now

      12      getting questions about.

      13             And, quite honestly, from an elections'

      14      perspective, we're just not prepared for that

      15      change.

      16             And while the statute can force a public

      17      building to be used as a poll site, without the

      18      assistance or the help from those buildings, they

      19      can make it very difficult to be a poll site.

      20             You know, one thing that we wanted to touch

      21      on, that we had -- that wasn't raised earlier, is

      22      that, you know, New York State is not a permanent

      23      voting-bar statement.

      24             Our -- we're not -- other states do

      25      permanently bar those that are convicted from --


       1      felons from registering to vote.

       2             We are not one of those states, we have never

       3      been one of those states.

       4             You are allowed to register to vote once

       5      you've completed your sentence.  That's the

       6      operation of the statute.

       7             And parole is a part of your sentence.  And

       8      once you have completed that, you're eligible to

       9      register to vote, so we've never done that.

      10             But what this does is change that dynamic of

      11      that process, that I don't believe was ever

      12      anticipated for in the statute.  And it certainly

      13      wasn't publicly debated.

      14             And, quite honestly, the timing, we talked

      15      about April for the parole board.

      16             What you need understand is where we were at

      17      in April.

      18             In April, that was when candidates were

      19      filing to get on the congressional ballot, so we're

      20      in the middle of the election cycle.

      21             May, we're a month out from the June Primary.

      22             I mean, that's right around the

      23      voter-registration deadline for the June Primary,

      24      when directions come out.

      25             And as the parole officer union


       1      representatives testified earlier, that's when they

       2      were given the directions to immediately release

       3      these.

       4             Whether that's coincidence or not, I don't

       5      know, but that's a fact.

       6             You know, the timing of that is tied with

       7      events that occurred throughout the year, tied to

       8      the election.

       9             And, you know, whether we like it or not,

      10      that's the way it is.

      11             But, you know, certainly, the confusion is

      12      there.  It's still there today.  It's an issue we're

      13      dealing with.

      14             And, now, I don't know if Erik --

      15      Commissioner Haight wants to go first and talk a

      16      little bit about his experience, and then

      17      Commissioner Schofield can go after that?

      18             JASON SCOFIELD:  Alphabetical.

      19             TODD VALENTINE:  All right.

      20             ERIK HAIGHT:  Thank you, Senators.

      21             You know, I believe Dutchess County is a

      22      microcosm of New York.

      23             Depending on who you ask, we're either

      24      upstate or downstate.  It depends on which way is

      25      north or south.


       1             But, we have 2 cities and 20 towns.  Some

       2      areas are very rural, some areas are suburban, and

       3      some areas very urban.

       4             So of our 105 poll sites, 22 of them are in

       5      schools.  And some of those places we just simply

       6      don't have alternatives.

       7             But, where we do have alternatives, those

       8      alternatives are usually churches with day-care

       9      centers.

      10             So, as far as dealing with the confusion of

      11      the executive order, we have a March 1st deadline of

      12      setting poll sites, well before the executive order

      13      was established.

      14             In addition to the confusion about how this

      15      was rolled out, we don't know really how to deal

      16      with the revocations.

      17             As was mentioned, there have been 646.

      18      A handful of those have been in my county.

      19             So we have to go through our database and

      20      find those revocations, and cancel those folks'

      21      registrations.

      22             The parolees themselves are confused.

      23             They come in on election day to speak with

      24      the duty judge if their name is not in the poll

      25      book.


       1             And, the duty judges themselves are confused

       2      about whether to give a court order for the person

       3      that day.

       4             So I think some direction should be offered

       5      to the office of court administration for the duty

       6      judges that are working on election day.

       7             As an association, the Elections

       8      Commissioners Association of New York, well before

       9      the executive order was issued, we've been

      10      requesting that schools make it a non-student day, a

      11      superintendents' day for hearings, so that the

      12      general population isn't intermingling with the

      13      student population on election day, because, very

      14      often, schools are simply just a necessity because

      15      there's no other public buildings available.

      16             In addition, the schools, for their own

      17      elections, utilize our lists -- our voter lists.

      18             So, not only for elections that we

      19      administer, elections that the school clerks

      20      administer will have a similar sense of confusion as

      21      to who's available to vote, and who isn't.

      22             So just in my county alone, based on the

      23      State's website, there's 691 school districts

      24      outside of New York City, 2 of which in Dutchess

      25      County are 10th and 27th, as far as Wappinger and


       1      Arlington school districts as the largest districts

       2      outside of New York City.

       3             They make up almost all of our schools that

       4      we utilize as websites -- as we utilize as poll

       5      sites.

       6             And as Mr. Valentine mentioned, we get

       7      significant pushback from our poll-side partners.

       8             And there's always a rub between their civic

       9      duty as not-for-profit entities, and their duty to

      10      keep their students safe.

      11             So that's a conflict that was made even worse

      12      by the rollout of this executive order.

      13             I think we all knew that, in 2018, there

      14      would be a gubernatorial election.  And it would

      15      be -- it would have been helpful had this been

      16      rolled out in 2017, versus 2018.

      17             So, in short, as election commissioners and

      18      administers of the election, it's our job to simply

      19      administer the elections.

      20             While we may have our own opinions on whether

      21      this should have been done or not, the fact is,

      22      we're doing our best to comply with the law and

      23      administer the elections the best we can.

      24             And that's true for every county in the

      25      state.


       1             JASON SCOFIELD:  Thank you.

       2             Rensselaer County is having the same issues

       3      as Dutchess.

       4             We have 2 cities and 14 towns.

       5             Some of our schools in the more rural part is

       6      really the only place that we could have the

       7      election.

       8             Town Hall just isn't big enough for the

       9      entire town to come in and vote.

      10             One of our school districts in one of the

      11      rural areas does not want us anymore.  We've had to

      12      use our own highway money to upgrade the firehouse

      13      and ambulance to be used as a polling place.

      14             Erik mentioned about making it a non-student

      15      day for schools.

      16             You can't do that every time there's a

      17      Primary Election or a Special Election.

      18             I served 15 years on the (indiscernible)

      19      school board.  The last thing parents want is a day

      20      off for their students when they have to work.

      21             Also, where do students go on those days?

      22             Well, they go to the Boys and Girls Club, or

      23      other community -- local town community areas, which

      24      also use polling places now.

      25             So -- or the libraries, and things like that.


       1             Housing areas and -- housing projects, we

       2      have our polling places there in some of them.

       3      Again, it's just a huge area where someone could

       4      just walk in.  You wouldn't know if he lives there,

       5      or if he's a voter, or what his situation is.

       6             So we are experiencing a lot of negative

       7      feedback from people who do not want us, and we're

       8      running out of barriers to go to, because we have to

       9      meet the rigorous handicapped and disabled demands

      10      of our -- for our -- the disabled community to have

      11      the rights to vote too.

      12             So, it's been interesting process, and we are

      13      continuing to work to try and deal with these

      14      issues.

      15             SENATOR GALLIVAN:  All right.  Thanks.

      16             So the process, Governor announces it in

      17      April.  They reach out in May.  A lot of confusion,

      18      things that you had to deal with on the fly.

      19             If we presume that the executive order

      20      continues, many of those things -- it's a problem

      21      for the first year.

      22             Fair to say?

      23             I'm just taking this from your testimony.

      24             But, going forward, if the executive order

      25      continues, or if the law was to change, the issue


       1      that you see is the availability of polling sites,

       2      the school districts, is that something that would

       3      continue to raise issues --

       4             TODD VALENTINE:  Well, that's --

       5             SENATOR GALLIVAN:   -- concerns from school

       6      boards -- concerns from schools --

       7             TODD VALENTINE:  Yes --

       8             SENATOR GALLIVAN:  -- (indiscernible)?

       9             TODD VALENTINE:  -- well, schools.

      10             And as Commissioner Schofield pointed out, I

      11      mean, it's not the only site where -- and as the

      12      parole officers previously testified, that there are

      13      other spots that are not covered by the permission

      14      process that sex offenders have, where the parolees

      15      are now going.

      16             And they're -- so it encompasses not just

      17      school districts, but there are other sites where

      18      children do congregate in the afternoons and in

      19      evenings that are also poll sites, and other parts

      20      of the building where the voting is not occurring.

      21             So that's going to continue to be a problem.

      22             You know, but, looking forward, or, perhaps

      23      lookings backwards, you know, there are other, you

      24      know, other -- there may be other alternatives that

      25      we need to consider.


       1             You know, one of the options, obviously,

       2      that's not available is absentee balloting.

       3             The Constitution requires you to be out of

       4      the state.  And that would take a change in the

       5      Constitution.

       6             And parolees, generally, are restricted to

       7      the county where they are, so they can't leave to

       8      become absent to go vote.

       9             So, you know, some other type of special

      10      ballot might need be addressed, because even as the

      11      parole officers indicated, a number of the sex

      12      offenders may not want to go to the schools, because

      13      they're trying to avoid them anyway for their own

      14      privacy sakes.  They don't want to seek the

      15      permission process.

      16             So, something needs to be thought about,

      17      well, "what are the alternatives?" because nobody

      18      wants to deny somebody who's earned the right to

      19      vote, the ability to do that vote.

      20             But when you put in obstacles or barriers

      21      that make it difficult, and the sex offenders are an

      22      example, they have to go through a permission

      23      process, while maybe they've earned it, but they're

      24      afraid to use it.

      25             SENATOR GALLIVAN:  So we get -- we -- the


       1      process is the process, confusing, whatever it may

       2      be.

       3             Primary Day, were there any problem areas

       4      that you were aware of at any of the sites, or, any

       5      problems that crept up with this specific issue at

       6      any polling site, if you're aware of it?

       7             JASON SCOFIELD:  In our county, none that I'm

       8      aware of with the parolees voting in the Primary.

       9             There was issues with, school coming back,

      10      schools saying, you know, why is the Primary on

      11      Thursday?

      12             We scheduled our welcome back for parents and

      13      families to meet their teachers, things like that.

      14             But we did not have any parole issues, no.

      15             TODD VALENTINE:  And we don't keep -- and we

      16      don't keep a record -- we don't know who the --

      17      quite honestly, the county boards don't know who the

      18      parolees are.  All they know them as "registered

      19      voters."

      20             So they -- you know, and if they are a

      21      registered voter, they come in, they're not going

      22      identify themselves as a parolee, or, they're not

      23      going to identify themselves of having gotten

      24      permission to be in a school where they otherwise

      25      wouldn't normally have been.


       1             So they're not -- the county boards are not

       2      going to notice that.

       3             SENATOR GALLIVAN:  Would the state board be

       4      aware of that?

       5             TODD VALENTINE:  The state board is not aware

       6      of that either.

       7             SENATOR GALLIVAN:  So it would just be -- so

       8      now, then, once they get the pardon, the parole

       9      officer notifies them that they have that

      10      conditional pardon for that purpose, they make

      11      application according to existing law?

      12             TODD VALENTINE:  Right.  The --

      13             SENATOR GALLIVAN:  And it's just the same

      14      process?

      15             TODD VALENTINE:  -- right.

      16             It's the school -- that's an existing process

      17      that's been in law for a number of years now.

      18             SENATOR GALLIVAN:  Same as everybody?

      19             TODD VALENTINE:  And used to this amount,

      20      but -- I'm sorry, what?

      21             SENATOR GALLIVAN:  Same as anybody who

      22      registers to vote?

      23             TODD VALENTINE:  Yeah, they're treated as any

      24      other registered voter.  And you would -- and

      25      there's no mark in the poll book.  You don't know


       1      who they are.  You don't know -- there's nothing of

       2      that.

       3             But, the concern has been raised.

       4             And I know that there have been other -- you

       5      know, police officers that have raised it.

       6             You know, as we've heard earlier today, you

       7      know, they're worried about the security.

       8             And I know, in Nassau County, they had a

       9      discussion with the Nassau Police Department about

      10      what schools were used, and where they were --

      11      where -- where possibly these parolees may go.

      12             They don't have answers for that.

      13             So even if they wanted to provide security

      14      where there might be an issue, they have no idea

      15      where they are.

      16             Now, I'm not advocating that they be

      17      identified for them.  That's not fair.

      18             But on the other hand, there still needs to

      19      be some balance, or at least a public discussion, as

      20      to when a voting right is now being restored to

      21      somebody, you know:  Is this the appropriate time?

      22      Should there be a small waiting period?

      23             You know, the parole officers' union

      24      recommended, perhaps, a 90-day waiting period.

      25             I don't know.


       1             We don't deal with the --

       2             SENATOR GALLIVAN:  But that would be separate

       3      from --

       4             TODD VALENTINE:  -- but that would be

       5      separate and apart from us.

       6             SENATOR GALLIVAN:  -- what the board of

       7      election's responsibility is; right?

       8             TODD VALENTINE:  That's not our obligation.

       9             All we know is, they're coming, and we need

      10      to register the voters.  And that's what they're

      11      prepared to do, and that's what they have been done.

      12             Whether they voted or not, we don't have that

      13      record.

      14             Presumably, some did, some didn't.

      15             SENATOR GALLIVAN:  Because you -- that would

      16      be because you don't know --

      17             TODD VALENTINE:  We don't know.

      18             SENATOR GALLIVAN:  -- who makes up this

      19      population?

      20             TODD VALENTINE:  Right.

      21             SENATOR GALLIVAN:  I only have one other area

      22      for question.

      23             You mentioned the revocations.

      24             Are you notified -- are the various boards --

      25      who's notified if there are revocations?


       1             Does it go to the State first, and then

       2      farmed out?  Or is it -- does it go directly to the

       3      county boards?

       4             TODD VALENTINE:  That comes to the state

       5      board.  Then we provide that to the county boards.

       6             And about once a month we'll get a list of

       7      the next round of revocations.  And then we send

       8      that to all of the county boards.

       9             While it -- it indicates a county -- what we

      10      believe to be the county of residents.  And,

      11      presumably, the parolee has not moved.  But that

      12      provides some information for the county boards to

      13      then look up to see, if they had been registered to

      14      vote, that they then need to turn around, as

      15      Commissioner Haight said, to cancel them, or, they

      16      really don't need to do anything, because if they

      17      didn't come in to register to vote, the revocation,

      18      you know, it doesn't mean anything.  They're still

      19      under a felony conviction.

      20             So, when they do come in to register at some

      21      point in the future, they'll see that under the

      22      current system for looking parolees up.

      23             SENATOR GALLIVAN:  Okay.  Thank you.

      24             SENATOR AKSHAR:  So you don't know how many

      25      of the actual 30,000 people who got pardons voted?


       1             TODD VALENTINE:  We do not.

       2             SENATOR AKSHAR:  You have no idea?

       3             You just know number of people who have been

       4      revoked?

       5             TODD VALENTINE:  Correct.

       6             SENATOR AKSHAR:  Right?

       7             But when is the poll book authored?

       8             I should know this, I apologize.

       9             TODD VALENTINE:  Well, the poll book is when

      10      you go to sign in.  And all that indicates is --

      11             SENATOR AKSHAR:  No, when does it -- I'm

      12      sorry.  I should have articulated better.

      13             When is that book prepared to send to the

      14      polling locations?

      15             TODD VALENTINE:  Well, that will vary, but

      16      it's usually about two weeks ahead of the elections,

      17      depending on the size of the election.

      18             SENATOR AKSHAR:  Erik, you make a good point.

      19             We've known for a very long time there was

      20      going to be a gubernatorial race.

      21             Right?

      22             One would think that we could have figured

      23      this out, you know, rather than -- you know, much

      24      earlier, rather than just a few months before the

      25      election took place.


       1             Smells of political posturing to me, but

       2      that's just me.

       3             That's all I have, Chairman.  Thank you.

       4             SENATOR GALLIVAN:  Thank you again.

       5             We appreciate your patience and your

       6      willingness to be here today.

       7             JASON SCOFIELD:  Thank you, Senators.

       8             TODD VALENTINE:  Thank you.

       9             JASON SCOFIELD:  Thank you.

      10             SENATOR AKSHAR:  Thank you, guys.

      11             SENATOR GALLIVAN:  Our next panel will be

      12      from the New York State Council of School

      13      Superintendents, Robert Lowrey, deputy director;

      14             And from the New York State School Boards

      15      Association, Julie Marlette, director of government

      16      relations.

      17             Oh, that was quick.

      18             We need just a moment.

      19                (Pause in the proceeding.)

      20                (The hearing resumed.)

      21             SENATOR GALLIVAN:  Alphabetical?  Right to

      22      left?  Your choice.

      23             Thank you for being here.

      24             Can you, though, just before you testify, and

      25      we do have your written testimony, feel free to


       1      paraphrase if you'd like.  But the entire written

       2      testimony will be entered into the record.

       3             But could you just, you know, tell us your

       4      names.

       5             We can see them, we know that, but, a little

       6      bit about the organizations you represent and who

       7      your membership is.

       8             ROBERT LOWREY:  I'm Robert Lowrey, deputy

       9      director of the New York State Council of School

      10      Superintendents.

      11             We have, probably, represent 99 percent of

      12      the superintendents across the state: BOCES

      13      superintendents.  Regular school-district

      14      superintendents.  Most of the big five cities.  Some

      15      specialized school districts.  We also represent

      16      many assistant superintendents.

      17             A few years ago we asked superintendents

      18      across the state to tell us, via email, what they

      19      most wanted the public to know about their work as

      20      superintendents.

      21             We got a lot of eloquent responses about the

      22      rewards and challenges of being a superintendent,

      23      but one was especially poignant.

      24             A superintendent wrote, "Every morning I wake

      25      up thinking, can we keep everyone safe today?"


       1             It was actually Mary Beth Fiori, one of

       2      Senator O'Mara's superintendents.

       3             And every superintendent feels an obligation

       4      to every family to leave nothing undone that could

       5      assure the safety of their children while at school.

       6             And that sense of obligation extends to

       7      protecting other adults as well.

       8             And that sense has been heightened in the

       9      aftermath of the Parkland tragedy, and other

      10      tragedies.

      11             In the months since, superintendents boards

      12      and their partners in law enforcement have been

      13      reexamining their practices, and their buildings,

      14      and trying to reassure families that no deficiency

      15      is being overlooked and no reasonable improvement

      16      will be dismissed.

      17             We've done a survey, and we find that

      18      districts have been responding.

      19             89 percent say they have done at least one

      20      thing to improve safety since Parkland.

      21             97 percent said they had done things

      22      previously.

      23             We also found that 82 percent of

      24      superintendents said that responding to these

      25      community concerns about safety is a significant


       1      problem.

       2             I think there are two things going on there.

       3             One is, just ability to pay for the

       4      improvements, and that's common in rural districts.

       5             And also just, in some cases, it's -- it may

       6      be that the district leaders feel we've done

       7      everything we reasonably can to improve safety, but

       8      they still feel they need to show the community that

       9      they're doing something more.

      10             All this provides some context for

      11      understanding how we as a superintendents

      12      organization have to think about the issue of

      13      parolees voting in schools.

      14             In the runup to the Primary Election, there

      15      were many media reports about the prospect of

      16      paroled sex offenders voting in schools.

      17             You've heard a bit about how the process is

      18      supposed to work.

      19             The way we understand it is:

      20             First the parole officer grants his or her

      21      permission.

      22             The parolee is required to disclose the route

      23      that he or she would take to reach the school, and

      24      it is instructed to leave the school promptly.

      25             If the parole officer approves that, then the


       1      department of correctional services sends a letter

       2      to the superintendent for a final decision on

       3      whether the parolee should be allowed to vote in the

       4      school building.

       5             In the days and weeks leading up to the

       6      Primary Election, not a single superintendent

       7      contacted us about this issue, either to advise us

       8      of a request or to seek our guidance.

       9             We contacted the department of corrections

      10      two days before the Primary, and learned that there

      11      had been no more than 10 parolees who had made

      12      requests to their parole officers, and, at that

      13      point, only one of which had been approved.

      14             In the weeks since, we've informally polled

      15      groups of superintendents.

      16             We haven't found any who actually received a

      17      request, nor were they aware of any colleagues who

      18      had done so.

      19             It's possible that there will be more of

      20      these requests with the General Election.

      21             Having said all of this, the process that --

      22      that's prescribed in law really puts superintendents

      23      in an awful position.

      24             I've explained the great sense of obligation

      25      that each superintendent feels for assuring the


       1      safety of all children, and how that's been

       2      amplified since Parkland and other tragedies.

       3             So put yourself in the position of a

       4      superintendent.

       5             Whatever assurances may have been given,

       6      whatever your personal beliefs, how would you

       7      explain to your board and your community that you

       8      had given explicit permission to a convicted sex

       9      offender to enter school grounds?

      10             We haven't found any superintendent who said

      11      they would be willing to do that.

      12             So we would hope that paroled sex offenders

      13      seeking to exercise the right to vote would be

      14      encouraged, directed, or even required to vote by

      15      absentee ballot, and we understand that's actually

      16      common practice now.

      17             There's some other points we'd make about

      18      voting and safety of school children.

      19             We do support Senator Phillips' bill to give

      20      schools the authority to decline to serve as polling

      21      places.

      22             We've really seen in the last year or more,

      23      even before Parkland, a greater sense of anxiety

      24      among parents about -- about election days.

      25             Also, we, on the other hand, strongly oppose


       1      legislation to require school districts to not

       2      conduct classes on election day.

       3             Not all schools are used as polling places,

       4      and there are large areas where not a single school

       5      building is used as a polling place.

       6             It doesn't make sense to require all of them

       7      to close.

       8             Also, in some years, for example, when

       9      Labor Day falls on September 7th, it would be

      10      difficult for districts to fit in the 180 days of

      11      required-instruction session days in order to

      12      receive full State aide.

      13             And in some areas, that challenge has been

      14      heightened as they've grown more diverse.

      15             We have districts that are now recognizing

      16      the Muslim holiday of Eid, and the Hindu holiday of

      17      Diwali.  Those districts have a special challenge of

      18      trying to fit in all of the required instructional

      19      days.

      20             Joseph Erardi was superintendent of the

      21      Newtown public schools when 20 children and

      22      6 employees were murdered at that district

      23      Sandy Hook Elementary School in 2012.

      24             He spoke at our fall conference last week,

      25      and he told our members, "Every school leader needs


       1      to own school safety, not to delegate it."

       2             Given that school superintendents are

       3      accountable for keeping all school children safe,

       4      it's not reasonable to expect that they could

       5      explicitly grant permission to paroled sex offenders

       6      to vote on school grounds.

       7             Generally, they will not be in any position

       8      to assess the risk that any one individual might

       9      impose.

      10             And because superintendents are accountable,

      11      together with their boards, they should be allowed

      12      discretion to determine whether schools should be

      13      closed on a voting day, and whether voting on school

      14      grounds on any day can accommodated without risk to

      15      school children.

      16             Thank you for the opportunity to testify.

      17             JULIE MARLETTE:  Thank you.

      18             Now my light's not coming on.

      19             Is that better?

      20             SENATOR GALLIVAN:  Yes.

      21             JULIE MARLETTE:  Good afternoon.

      22             And I just want to echo my colleague's thanks

      23      for having us here today.

      24             I really welcome the opportunity to speak to

      25      you briefly.


       1             I'm not going to read my written comments.

       2      I'll trust that you'll look at them later.  And,

       3      certainly, you know how to reach me if you need to

       4      follow up.

       5             But thought it might be a more useful use of

       6      our time together today to maybe just address some

       7      of the things I have heard in my time here this

       8      afternoon, and then leave an opportunity for you to

       9      ask any questions that you might have.

      10             I would start by thanking, not just the two

      11      of you and your colleagues who had to depart

      12      already, but, really, offer our heartfelt thanks to

      13      Senator Phillips.

      14             Senator Phillips, joined by

      15      Assemblyman Russo, has introduced legislation, as

      16      Bob indicated, that would allow school districts the

      17      opportunity to decline their designation as a

      18      polling place.

      19             While I know that may seem an extreme

      20      measure, it's something that's a significant

      21      priority for school districts around the state.

      22             My organization represents about 90 percent

      23      of all of the school districts in the state of

      24      New York.

      25             And this is actually one of our official


       1      priorities that was actually voted on by our

       2      delegates at our delegate meeting annually in 2014,

       3      and we've been seeking legislative support for it

       4      ever since.

       5             I may have a slightly different perspective

       6      than some of the people you've heard from today who

       7      have focused on, perhaps, concerns caused by the

       8      recent executive pardons.

       9             From the perspective of my members, this is a

      10      situation that has always existed.

      11             This is just a situation that got more

      12      attention as a result of the executive pardons.

      13             And so I actually welcome the opportunity to

      14      have it now on more people's radar, and, perhaps,

      15      engage more people in the conversation about what we

      16      can do to keep our students safe.

      17             I know it was referenced by the people

      18      speaking directly before me, the same issue Bob

      19      raised, about closing on election days as an

      20      alternative option to allowing districts to not be

      21      used as polling places.

      22             I want to echo Bob's opposition to that

      23      proposal.

      24             We understand that it can be complicated to

      25      find a new location, and that it's not maybe the


       1      easiest solution.

       2             But, ultimately, for all of the reasons he

       3      raised, as well as, quite frankly, the increasing

       4      number of extreme weather days we face, it's harder

       5      and harder to find 180 days in the allowable time

       6      frame that you need to conduct session to maintain

       7      your State aid.

       8             In addition, I would offer this as an

       9      alternate perspective:

      10             The job of the board of education, in

      11      partnership with our the superintendents and

      12      business administrators, is not to run elections.

      13             It's to run schools, and provide a safe and

      14      secure learning environment.

      15             I think that's what we should just be allowed

      16      to focus on.

      17             Let the board of elections be in charge of

      18      elections, but, perhaps, not ask us to balance our

      19      calendars and our children's both safety and

      20      educational experience against the access provided

      21      by our school buildings.

      22             A final thought that I would just share is,

      23      I know that I don't have tell either one of you, or

      24      any of your colleagues, the -- both steps that have

      25      already been taken, nor the steps that I'm sure


       1      you'd like them to be able to take, to make school

       2      buildings more secure.

       3             Your Conference put forth a more than

       4      comprehensive package of school-safety measures this

       5      year, that you passed, that dealt in many ways with

       6      the hardening of school buildings, with the

       7      increasing of school security.

       8             Though those weren't enacted into laws, many

       9      of those were wonderful ideas that I think many

      10      districts would like to take advantage of with or

      11      without State aid.

      12             It seems there to be a bit of cognitive

      13      dissonance to suggest that on two or three, or

      14      sometimes four or five or six days a year, depending

      15      on how many Special Elections, Primary days, Special

      16      district elections, and other reasons you might be

      17      designated as a polling place, that you would,

      18      essentially, be asked to suspend those safety

      19      measures to let people into your building in a

      20      somewhat unfettered manner.

      21             And that's true, unfortunately, whether

      22      they're out on parole, whether they've been a

      23      convicted sex offender, or whether they've not,

      24      things can happen.

      25             We've had reports from districts who have had


       1      incidents that required a lockdown on an election

       2      day.

       3             People who are there to vote or who work as

       4      poll workers do not know what the lockdown

       5      procedures are for a school.

       6             It just doesn't make sense, as we move

       7      forward and look at the safety measures that are

       8      needed, to continue to insert external people into

       9      the building when children are there.

      10             And we can't afford to close every time those

      11      external people need to be there.

      12             And I close by just wanting to applaud the

      13      woman from the Sexual Assault Coalition who raised,

      14      I think, a really important point that I will

      15      reiterate, though it's not in my testimony.

      16             For every perpetrator out there that's on a

      17      list that you can give to a superintendent, there's

      18      a survivor that never reported, and her

      19      perpetrator's not on any list, and those people are

      20      in our buildings too.

      21             SENATOR GALLIVAN:  Excellent point.  Thank

      22      you.

      23             So the larger issue is, I think you put it

      24      well, you're in the education business, not the

      25      election business.


       1             So the larger issue is, the school safety as

       2      it relates to elections in general, any election.

       3             JULIE MARLETTE:  Correct.

       4             SENATOR GALLIVAN:  An imposition on the

       5      calendar, and I guess, really, an intrusion into

       6      your existing procedures.

       7             Commissioner Annucci's written testimony, you

       8      had -- Bob, you had given some statistics that you

       9      were aware of, one out of ten.

      10             Commissioner -- these are probably updated

      11      numbers for you, but, Commissioner Annucci's written

      12      testimony said that 2 out of 11 was the number of,

      13      you know, the registered sex offenders that applied,

      14      and ultimately were granted permission.

      15             I don't know if they voted, or didn't.

      16             Are either of you aware of any school

      17      districts that made special provisions?

      18             I know of one school district out on

      19      Long Island that canceled afternoon activities.

      20             Are you aware of anything else like that

      21      across the state?

      22             ROBERT LOWREY:  The only one that I'm aware

      23      of is, well, the town on Long Island.

      24             SENATOR GALLIVAN:  I didn't even know the

      25      name of it.


       1             That was it?

       2             ROBERT LOWREY:  Yes.

       3             SENATOR GALLIVAN:  Okay.

       4             All right.  Thank you.

       5             Senator?

       6             SENATOR AKSHAR:  Any complaint -- you had

       7      mentioned, Bob, that you didn't hear from any of the

       8      superintendents directly about issues that arose.

       9             Did either of you, or anybody that you

      10      represent, hear from the community, and the

      11      community complaining about, you know, the new

      12      process?

      13             ROBERT LOWREY:  Not really.

      14             Again, we saw that, you know, in Levittown,

      15      apparently, members of the community, parents, were

      16      sufficiently concerned, and, you know, expressed

      17      that concern, that the district decided to cancel

      18      evening activities in the school.

      19             But that's the only thing that I am aware of.

      20             SENATOR AKSHAR:  Thank you.

      21             JULIE MARLETTE:  I'm not aware of anything in

      22      addition to that, except the more broader question

      23      of, do we make the decision to close or not?

      24             SENATOR AKSHAR:  Okay.

      25             I'm good.


       1             SENATOR GALLIVAN:  Thank you for your

       2      testimony and your patience.

       3             SENATOR AKSHAR:  Thank you so much.

       4             SENATOR GALLIVAN:  From the

       5      Osborne Association, Elizabeth Gaynes, president and

       6      CEO.

       7             You really need to be thanked for your

       8      patience.

       9             ELIZABETH GAYNES:  I was actually going to

      10      ask you, how you had sit here for five hours, and

      11      haven't (speaker whispering/inaudible)...

      12                [Laughter.]

      13             SENATOR GALLIVAN:  I'm getting close right

      14      now.

      15             That's not part of the record.

      16             ELIZABETH GAYNES:  I should have brought

      17      energy bars.

      18             SENATOR GALLIVAN:  Funny that you should say

      19      that.  I was just given one.

      20             But I'm good for right now.

      21             So, thank you -- all joking aside, thank you

      22      for your patience.

      23             We've got you placed here because I -- from

      24      an earlier conversation, I had presumed, and that

      25      you would want to talk about -- provide testimony


       1      for both topical areas.

       2             So, this is truly a last but not least.

       3             And from my time on the parole board, and in

       4      my current position, I'm aware -- certainly aware of

       5      the work the Osborne Association does.

       6             And I know you do good work in the community

       7      against incredible odds, and so I just want to

       8      acknowledge that, and thank you for that.

       9             ELIZABETH GAYNES:  Well, I won't say a lot

      10      about the election because I think you just heard a

      11      lot.

      12             I don't think people should ever have their

      13      voting rights taken away.

      14             Many states, and most countries, don't.

      15             And to me, it's the obligation of the citizen

      16      to vote.

      17             And I'm more concerned, frankly, with how few

      18      people on parole registered and voted than about

      19      anything else in that process.

      20             But I also realize, when I try to go pick up

      21      my 8-year-old granddaughter at her school, I need to

      22      produce ID, do all of those kinds of things.

      23             And so, to me, I agree with the idea of

      24      having anybody walking in there.

      25             So -- but I would like to see us -- and by


       1      the way, the people that were given permission to

       2      vote were told to vote between 7 and 9 p.m.  There

       3      are generally not students there at that time.

       4             So I -- I think, going forward, does not have

       5      to continue to be an issue.

       6             I'm obviously more concerned about the other

       7      points.

       8             And, so, not burdening you with what I have

       9      in my testimony, because I am sure you'll be up all

      10      night reading it.

      11             So I want to focus on a couple of things.

      12             One, particularly things that were said that

      13      I think are not accurate.

      14             Certainly now, I know Mr. Ferguson hasn't

      15      been there for a while.  He seemed concerned that

      16      the COMPAS was controlling.

      17             And I also have problems with algorithmic

      18      risk scores.  But the reality is, that the parole

      19      board, as far as I can tell, would be releasing many

      20      more people if they were taking it into account.

      21             Virtually, all of the old -- we have a

      22      program called "Elder Reentry Initiative" for older

      23      adults in the prison system, and many of them are

      24      there for years and years.  That's how they got to

      25      be old in the system, serving life sentences on


       1      serious cases.

       2             And, most all of them have very low risk

       3      scores on COMPAS, and most of them are not being

       4      released.

       5             So, the notion that it's controlling

       6      anything, or that it's that much work for the

       7      deciders to have to explain why they departed from

       8      it, I have probably read a thousand decisions and a

       9      thousand transcripts over the course of the last few

      10      years.

      11             It is gratifying that, more recently, parole

      12      commissioners have been actually giving people an

      13      opportunity to speak about what they've

      14      accomplished, to really think -- talk about their --

      15      what it meant for them to take responsibility and

      16      express their remorse, and their efforts at doing

      17      that.

      18             In the past, generally, and particularly

      19      Commissioner Ferguson, started with the crime, and

      20      spoke about, and gave very little room to speak

      21      about anything else.

      22             It is a departure with the new regulations,

      23      that people are being asked about what they've

      24      accomplished in prison.

      25             I saw somewhere that -- where parole


       1      commissioners actually asked people, you know, Tell

       2      me what you're proud of.

       3             It is a way of, one, putting people at ease

       4      so that they can share, which is really important,

       5      because this video-conferencing business as a way of

       6      doing parole hearings, which I guess they don't have

       7      much choice with not a fully staffed board, it's

       8      terrible.

       9             As I said in my -- my granddaughter thinks

      10      I'm a monster on FaceTime.

      11             So, I can sort of imagine what this is like.

      12             And then remember, that most of these older

      13      folks in prison who are now in front of this screen,

      14      you know, they went to prison before they wore these

      15      things.  They don't get the technology.  They're

      16      terrified by it.

      17             We had a guy who was denied parole because he

      18      seemed aggressive in the hearing, over the board,

      19      was because they had pushed him -- he was,

      20      typically, was in a bed.  And they had put him in

      21      this chair, that had him sort of forward.  And how

      22      he looked to the parole commissioners was, like,

      23      this (motioning).

      24             Plus, he had like a Tourettes, and he kept

      25      going like this (pounding on table).


       1             And there was nothing in the record that

       2      explained that his health was such, that, of course,

       3      he looked like a -- it was terrifying.

       4             In that particular case, and I really credit

       5      this -- the counsel to the parole board, we've been

       6      able to point out that when people with disabilities

       7      are being -- going before the board, that they're

       8      entitled to a reasonable accommodation, which

       9      sometimes includes having a social worker putting

      10      them on the calendar earlier in the morning, giving

      11      them some extra time.

      12             But, mostly, the board actually isn't even

      13      aware of the fact that this person is in -- has a

      14      cognitive impairment, or some of those other things.

      15             We're focused on this because we're working

      16      mostly with the older adults.

      17             And it's sort of in the file there,

      18      somewhere, but it's not noted --

      19             And I know, Senator Gallivan, you can

      20      remember this.

      21             -- it's, like, there's a million pieces of

      22      paper there, and it doesn't exactly come to the top.

      23             SENATOR GALLIVAN:  Not quite a million, but a

      24      lot.

      25             ELIZABETH GAYNES:  There's a lot, there's a


       1      lot.

       2             And, certainly, for the ones we're talking

       3      about, the older adults who have been in for 25,

       4      30 years, and, look, you're not -- nobody is in for

       5      30 years for singing too loud in church.  These are

       6      tough cases.

       7             And I appreciate this notion about, you know,

       8      what the victims are given as an opportunity.

       9             But, first of all, should be talking to the

      10      DAs, because they are -- they're making agreements

      11      on pleas, which allow people to go to the board, but

      12      they do not explain to victims.

      13             They say:  Oh, I got you a life sentence.

      14      I got you 25 years.

      15             And they are actually not explaining that,

      16      What I really did was, I got this guy, who's going

      17      to be able to go -- legally, is entitled to be

      18      considered for release.  And if he meets the

      19      standards, will be released after five or twelve, or

      20      whatever that number is.

      21             And then victims are numbed and surprised and

      22      angry, because this seems to be news to them, that

      23      now they think the person is being released early.

      24             Person's not being released early.  That was

      25      the sentence.


       1             And if the board is doing its job, and

       2      considers whether the person has met those

       3      requirements, that's the sentence.

       4             A lot of what I heard today makes it seem

       5      like the parole board is allowed to resentence

       6      people.

       7             It is not.

       8             There's a reason why the regulations say what

       9      they are.

      10             And by the way, I do not think that to --

      11      Mr. Ferguson is correct that the information is

      12      not available.

      13             We get this information routinely about

      14      releases, and things like that.  And I'm sure you

      15      could too.

      16             It's also not true that the victims and the

      17      DAs and the judges are not notified.

      18             They actually are.

      19             My goddaughter works for the Manhattan DA's

      20      Office, and she seems to spend her life being

      21      assigned to write letters every time somebody from

      22      that office is up for parole.  And they are given an

      23      opportunity to weigh in, she said, sometimes in

      24      cases that happened before she was born.

      25             And I have a colleague who was chief


       1      assistant in that office for many years.  And

       2      I said, Leroy, before you write these letters,

       3      opposing parole for people that you have had no

       4      contact with for 20 years, don't you think you

       5      should find out what they've done in that time?

       6      Because it seems that you always send the same

       7      letter, opposing parole.

       8             And he said, No, Liz.  We send -- we have two

       9      letters:  One to oppose, and one to strongly oppose.

      10             And so you can imagine that sometimes the

      11      parole board isn't taking it as seriously as it

      12      might because they're getting boilerplate letters,

      13      opposing parole in, virtually, every case.

      14             The judge is also entitled.  But, of course,

      15      for some of these cases, where you're talking about

      16      20 years, those judges may no longer be sitting.

      17             Not only are the victims being notified prior

      18      to a parole, we recently had a participant in one of

      19      our programs, a man I have known personally for

      20      15 years, because he worked for Osborne in

      21      Sing Sing.  And we worked with his son, who we now

      22      have proudly in college.

      23             This man did everything one could expect

      24      anybody to do.  Major transformation of his life.

      25             Went to the parole board.  He was granted


       1      parole.  And then it turns out that the letter to

       2      the victim in that case hadn't arrived.

       3             So the victim then said "no."

       4             And the -- his parole was rescinded.

       5             The victim was given an opportunity to then

       6      make a statement.

       7             And I am sad to say that, subsequently, his

       8      parole was denied for two more years, obviously,

       9      based solely on this one new factor, which was the

      10      victim, who was -- would have been notified.  But,

      11      because it was 20 years ago, or 25 years ago, it did

      12      not -- it took a while for it to get routed.

      13             The thing that I -- that disturbs me, though,

      14      about the victim component of it is, we're using

      15      them.

      16             Victims -- you know, we did not wait until

      17      Osama bin Laden was caught before we did everything

      18      for those people victimized on 9/11.  We did, and

      19      should have, provided them with counseling, with

      20      medical care, with financial support.

      21             What we do now for most victims, is we offer

      22      them jail for the person who did it.

      23             And if that's all we're going to tell them

      24      is, our response to their pain, is we're going to

      25      put this guy in prison, and then leave them to


       1      believe that that's how that -- that that's their

       2      healing process, well, no wonder people are angry,

       3      20 years later.

       4             When I hear -- it makes me so sad to hear a

       5      widow saying, 20 years later, Every day I have to

       6      relive this.

       7             I'm not saying pain goes away.

       8             I -- you know, all of us have -- many of us

       9      have experienced loss.

      10             But I keep wanting to know, and I want to ask

      11      Patrick Lynch:

      12             What are you doing for these folks?

      13             Like, from day one, what are you doing, other

      14      than parading them back, and making a big

      15      (indiscernible) over this.

      16             And particularly what concerns me on that

      17      particular testimony, about wanting fairness, if

      18      Mr. Lynch wants fairness, he cannot say that no

      19      one convicted of killing an officer should ever be

      20      released.

      21             Fairness would require considering release.

      22             There's nothing fair about saying,

      23      automatically must be denied.

      24             That's not a hearing.  That's a resentencing.

      25             And I -- and you know that of those older


       1      folks, people who have done long time, we know that

       2      the recidivism rate is close to zero.

       3             And so it's not about public safety.

       4             And I don't know if you remember this,

       5      because you were there when I went, it was a couple

       6      of people who were on life parole, and a couple of

       7      former parole commissioners.  And we met with the

       8      board.

       9             And you were there.

      10             And the former commissioners were saying,

      11      this -- there's no threat to pub -- the issue we

      12      raised with you, actually, was whether people on

      13      life parole could get off parole.

      14             Which you, I think, were supportive of.

      15             And have -- and -- and -- and I know your

      16      record, and you've been supportive of a lot of

      17      people.  Jerome Wright, and other folks, that have

      18      been, you know, pardoned.

      19             So I'm not conflating things here.

      20             But at that moment, when we said, and the

      21      commissioners said, this is -- you know, there's no

      22      public-safety challenge here, Mr. Ortloff said,

      23      This isn't about public safety.  It's about

      24      punishment.

      25             And that's the remaining concern that I have


       1      about much of what I heard today, which is, it was

       2      not about following the law.

       3             It was about a resentencing.

       4             A rule of law -- believe me, I never thought

       5      I'd spend my life defending FBI agents and parole

       6      commissioners.

       7             But, in this -- there's one decision that has

       8      triggered this entire kerfuffle.  One person.

       9             And then going after the two commissioners

      10      who voted to release him, putting targets on their

      11      back, ending up with them having death threats.

      12             Mr. Ferguson made a very good point about

      13      wanting parole commissioners who had a certain kind

      14      of background.

      15             The guy on the parole board who denies parole

      16      to everybody, Marc Coppola, is a real-estate agent

      17      with no background in criminal justice.

      18             The two people who voted to release

      19      Mr. Bell, one of them was assistant commissioner

      20      at the department of corrections, and a crime

      21      survivor; and the other one was a parole officer,

      22      and not an easy parole officer.

      23             I know this, because he supervised -- when he

      24      was -- when (indiscernible) was a parole officer, he

      25      supervised some of the staff at Osborne, because we


       1      like to hire people who've done these long

       2      sentences, because they're credible messengers,

       3      they're role models in the community.  They've

       4      learned, they've developed, they've grown.

       5             So, I mean, you could not have had two

       6      commissioners who were better prepared to actually

       7      judge the case in front of them.

       8             And you may notice that they didn't exactly

       9      come to a decision the day of the hearing.

      10             They must have -- I mean, I don't know,

      11      but -- and I had never met Mr. Bell, and wasn't

      12      involved in that case, other than writing our

      13      standard "reasonable assurance" letter.

      14             But, I'll bet you there were eight boxes of

      15      files that they went through.

      16             And the courage that it must take, knowing

      17      that, I mean, Mr. Ferguson said it, and it was

      18      obvious with Mr. Lynch, those unions put huge

      19      pressure on parole board members.  They are

      20      terrified to make those decisions.

      21             So, to me, "rule of law" means that we should

      22      be -- when people who have been vetted, and

      23      confirmed by you, and investigated up the wazoo

      24      before they get to serve on the parole board, make

      25      that decision, I believe that they deserve, by the


       1      Senate and the Legislature and the Governor, should

       2      have supported them, saying:

       3             They were the ones who were looking at all

       4      that information.

       5             They're the ones that read the victim impact

       6      statements.  They read the sentencing minutes.  They

       7      read everything.

       8             Like, I don't know what I would have done had

       9      I been a parole commissioner, or what others would

      10      have done.

      11             If anybody says that they for sure know that,

      12      automatically, based on that, without reading all

      13      the information, without interviewing Mr. Bell,

      14      what they would have voted, that's not fairness.

      15             That's prejudging something.

      16             And part of what we heard today was, that's

      17      not what we're supposed to be doing.

      18             We're supposed to be giving people a fair --

      19      not a resentencing.  Following the regulations, as

      20      they exist, and making those considerations.

      21             So, somebody thought the police should have

      22      an impact based on arrests that they made 20 years

      23      ago?

      24             I know you were a sheriff.

      25             I know, I used to work in Buffalo for a


       1      brilliant lawyer, Judge Vinny Doyle.  And I know his

       2      sons, and they were sheriffs.

       3             I don't think any of them would have said,

       4      gee, I want to be deciding, after a DA, a defense

       5      lawyer, and a judge make a deal in a case, or,

       6      there's a trial and then there's a sentence.

       7             Particularly, there are people that are

       8      sentenced to less than 25 to life.

       9             19 to life.

      10             There's a guy that came to work -- has worked

      11      for us, we worked inside.

      12             Because he was a -- the victim was an

      13      off-duty police officer, Samuel Hamilton was a

      14      lookout, the judge gave him 19 to life at age 19,

      15      because he said, I believe this guy is redeemable.

      16             And then the police unions came, and he

      17      was -- went 19, 21, 23.

      18             He was 50 years old by the time he was

      19      released, even though the judge had indicated,

      20      I think this is a redeemable person.

      21             But according to the fairness, that the union

      22      said, one, they should be able to put pressure on

      23      board members, and, two, he should have never been

      24      released.

      25             Since he's been released, he works for


       1      (indiscernible) defenders.  He gets up in the

       2      morning, he's serving people.

       3             People are redeemable.

       4             And I know that you know that,

       5      Senator Gallivan.

       6             I don't know you so well.

       7             I assume you are good people.

       8             We know that people can change.

       9             SENATOR GALLIVAN:  He is.

      10             ELIZABETH GAYNES:  And, so, one is, I think

      11      you should put pressure on the DAs to stop misusing

      12      victims and misinforming them about the future.

      13             I think we need to offer victims a lot more

      14      than incarceration.

      15             I've got data in my testimony, victims

      16      actually want more.  They do want restorative

      17      practices.  They want to see rehabilitation.

      18             We have a program with guys who -- just

      19      homicide cases, called "Coming to Terms," where they

      20      begin to talk about their lives, and the crime that

      21      they committed.

      22             And we bring in someone who's a survivor,

      23      whose sister was murdered by a serial killer.

      24             But they start by talking about their own

      25      lives.


       1             You know, the first time we did this class

       2      with 12 men, first one said -- and we asked about

       3      their early lives, the first one had seen his mother

       4      murdered in front of him when he was 3 years old.

       5             Do you know what services and support he got?

       6             Nothing.

       7             He went into foster care.  He was abused by a

       8      foster parent.

       9             And then, yes, down the road, he committed a

      10      homicide, and he was sentenced for it.

      11             But we can't just think of the victim of the

      12      crime he committed.  He was also a victim.

      13             Every single one of the men in that class had

      14      been exposed to serious violence; had either

      15      witnessed it, had a family member murdered, in their

      16      early lives.

      17             And if we don't push this support for victims

      18      earlier on, well, this is what we know:  Hurt

      19      people.  Hurt people.

      20             We know this is gonna happen.

      21             So, I really appreciate all of the work that

      22      you guys do, going forward, to make this a fairer

      23      process.

      24             But please don't roll back all the reforms

      25      and the efforts that are being made by the board now


       1      because of one case that people disagree with.

       2             Thank you.

       3             SENATOR AKSHAR:  Thank you.

       4             SENATOR GALLIVAN:  Thank you.

       5             I would -- I would agree that one case

       6      started a tremendous amount of focus on the parole

       7      board.

       8             I'd suggest, though, and I want to ask you

       9      about this, that while some of -- some of their

      10      decisions -- well, all of the decisions, they have

      11      to make subjective decisions based on where they

      12      came from, according to the law.

      13             And from my experience -- and from where

      14      I sit now, and from my experience, no question,

      15      they're difficult, especially in the tougher cases,

      16      the violent-crime cases.

      17             But, nonetheless, I've always thought, when

      18      I was there, and now, and my advice to the

      19      commissioners as we interview them, when they come

      20      through the Committee is:  Follow the law.  Forget

      21      whatever bias you might have about, this, or that,

      22      or the other, and follow the law.

      23             And, clearly, people are going to disagree in

      24      some cases.

      25             In some cases, I don't think they did, and


       1      that's where I'm coming from on this.

       2             And my effort is for them to follow the law.

       3             You talked about something, I forget exactly

       4      how you said it, but, if somebody holds somebody

       5      100 percent of the time, they're the same as

       6      somebody you're releasing somebody 100 percent of

       7      the time.

       8             They're not doing their job.

       9             And part of it, I think, is part of --

      10      I mean, part of where we go from here is, some

      11      things I think the best pursuit is in changing the

      12      law.

      13             And so, the "deprecate the seriousness"

      14      that's translated into the community standard, some

      15      people think it should exist, some people think it

      16      shouldn't exist.

      17             But, anyway, I'm kind of moving off of where

      18      I started.

      19             But the concern -- when I made the comment

      20      that, shedding a light on them, I think, is a good

      21      thing, what I think has been consistent, from

      22      whether it's law enforcement, whether it's very

      23      conservative people, whether it's very liberal

      24      people, whether it's inmate advocates, or whatever

      25      it might be, and you just briefly mentioned it at


       1      the beginning of your written testimony, is the

       2      transparency.

       3             And we've got something there that the

       4      collective "we" are raising questions, despite the

       5      differences of opinion.

       6             And I know in your recommendations, the

       7      digitizing some things, making more information

       8      available to the public, making more information

       9      available to people, probably answers a lot of

      10      questions.

      11             The release rates, I think -- I don't know if

      12      this is what you meant when you talked about

      13      Commissioner Ferguson, about -- the not getting the

      14      information about the releases.

      15             He might have said it in a couple of areas,

      16      but the one that I took, and my experience was

      17      always the same, I would have liked to have, as a

      18      commissioner, information on what happened to the

      19      person that was held or released.

      20             ELIZABETH GAYNES:  Yes.

      21             SENATOR GALLIVAN:  And it would -- and it's

      22      available, you can chase it down, they have all the

      23      data.  But it never comes together on one report, so

      24      you can't even FOIL it, because it's not kept in the

      25      report.


       1             ELIZABETH GAYNES:  I totally agree.

       2             SENATOR GALLIVAN:  But that's something that

       3      could help to guide the commissioners as -- so my --

       4      I guess my point being, and then I want to come back

       5      to transparency, and give you a chance to comment,

       6      is, there are a lot of concerns that people have,

       7      regardless of where they come from, about the parole

       8      board.

       9             And I think, for all of us, they started the

      10      transparency part before we even disagree.

      11             But I guess the transparency is, to what

      12      extent?

      13             So, from your perspective, I mean, do you

      14      have any thoughts about, I mean, that transparency

      15      part of it?  And what recommendations you can

      16      make --

      17             ELIZABETH GAYNES:  Well, certainly, I --

      18             SENATOR GALLIVAN:  -- (indiscernible) out

      19      there?

      20             ELIZABETH GAYNES:  -- certainly, I would love

      21      to see commissioners get feedback, because I think

      22      people would release, frankly, more people if they

      23      saw how well people that they took -- I mean,

      24      because I know, it concerns them.

      25             I know that there are people that always want


       1      to hold -- they may not turn down parole for

       2      everyone, but certain categories.  Like, you know,

       3      they're never going release a drunk driver, or

       4      they're never going release certain cases.

       5             I don't know that there are any who release

       6      everyone.

       7             And if you had a full parole board, and you

       8      had three people making these decisions, then even

       9      if you had someone who was, in your view, too far

      10      one way or the other, there would be two other

      11      people.

      12             So, having three makes sense.

      13             Having it be in person, makes sense, so that

      14      you really get more of a feel for the person, and

      15      not a 20-minute video.

      16             And then not being able to really look at the

      17      records because of the way they are.

      18             But, when you go to transparency versus this

      19      idea that a victim should be able to appeal a

      20      decision, our legal system is, The People of the

      21      State of New York versus "Patrick Gallivan."

      22             Never going to happen.

      23             But, the point is, we don't -- victims are

      24      represented by the State; and in this case, by the

      25      parole board.


       1             We don't have a system of frontier justice,

       2      of people being able to control that process.

       3             And that's a good thing.

       4             And as I said, we should give victims a

       5      platform, we should give them support.

       6             But saying that they could control the

       7      outcome, particularly the non-victim

       8      representatives, to say -- that makes no sense.

       9             But in terms of the information being

      10      available, I'm not sure exactly which information.

      11             I understand, for instance, we --

      12             SENATOR GALLIVAN:  That's why I asked.

      13             ELIZABETH GAYNES:  -- we -- well, one thing

      14      is, we think that the victims should be given much

      15      more information about what the person did while

      16      incarcerated.

      17             Because, one of the things that I know from

      18      talking to the victims' people, is they very often

      19      ask, Well, what did this person do?

      20             Like, does he -- there's an Apology Bank.

      21             Do you know that?

      22             SENATOR GALLIVAN:  No.

      23             ELIZABETH GAYNES:  So it's illegal for an

      24      incarcerated person to contact the victim directly,

      25      no matter how much they want to apologize, no matter


       1      how much they've come to understand the impact of

       2      what they did.

       3             But they can write an apology letter that

       4      goes to a website that DOCS has, called the

       5      "Apology Bank."

       6             And so if a victim wants to see if someone

       7      has posted something there, they can, they have a

       8      way of doing that.

       9             And it's a safe way for them to be able to

      10      get that, because, like in the programs we do, most

      11      of the -- most of the people we worked with, by the

      12      time they go through this process of actually

      13      beginning to understand the harm that they've

      14      caused, because, when you have really hurt somebody,

      15      you don't really want to face it.

      16             And people in prison don't -- nobody ever

      17      asks you when you're in, by the way, why are you

      18      here?

      19             There's no work directly on coming to terms

      20      with the crimes that they've committed.

      21             And nobody feels good about harming another

      22      person.

      23             So part of this process we go through is for

      24      them to actually get to this place.  Like, oh, my

      25      God, how do I make amends?  How do I apologize?


       1             Whether it results in their release or not is

       2      not necessarily the point.

       3             So I do think that, very often, victims want

       4      to know, and should be able to know, as should the

       5      DAs writing the letters as well:

       6             Did this guy go to the yard every day, and do

       7      nothing, and, basically, not participate?

       8             Or, did this guy, like, go from having a

       9      fifth-grade education when he came to prison, and

      10      then he went and got his GED, and then he went to

      11      college.  And now he's part of this youth program,

      12      where people come in, and being able to talk to

      13      young people about, why?

      14             I mean, you'll notice corrections people are

      15      not lined up here saying, don't release these folks.

      16             The only reason corrections people don't want

      17      lifers out is because they're depending on them to

      18      run all the programs in the prisons, because they

      19      have so transformed their lives that they are

      20      leaders inside.

      21             That's why you'll see, if they would allow

      22      corrections people to write letters in support of

      23      people coming on parole, you would see a lot of

      24      them.

      25             I was just -- did a tour of Sing Sing the


       1      other day, and correction officer was pointing to

       2      some guys who had been there for 20 years.

       3             He said, what is he doing here?

       4             These guys have a master's degrees.

       5             So the -- so it's right to give victims that

       6      information.

       7             They would want to know:

       8             Did this guy just do nothing, and get in

       9      trouble the whole time, and doesn't give a rat's

      10      ass, frankly, about what he did to me?

      11             Or, has he been doing all this work trying to

      12      atone for that?

      13             So I think that's one part of transparency.

      14             I also think that the people in -- the people

      15      coming up for parole would benefit from knowing a

      16      little bit more about what's in their files, because

      17      they can't -- you know, they -- the -- they -- you

      18      don't get -- they don't get -- they don't share with

      19      them their presentence reports from years ago.

      20             So they may not necessarily know, unless

      21      their defense lawyers --

      22             And defense lawyers are as bad as

      23      prosecutors, in terms of telling people what the

      24      impact of sentencing is.

      25             -- they may not know how to contradict


       1      something that's in the record that might be

       2      incorrect.

       3             So they don't even necess -- they don't

       4      necessarily know what the parole board is looking

       5      at.

       6             There may be other kinds of information like

       7      that.

       8             So I think that if there's transparency, it

       9      would be good at many levels.

      10             I think the parole commissioners clearly

      11      should be able to see things.  Victims probably

      12      should be able to see more.

      13             And, definitely, the outcomes.

      14             I know, you know -- a couple of times, I know

      15      Mr. Ferguson said there's no training.  But we've

      16      actually -- several organizations I know have gone

      17      to meetings of the parole board and brought lots of

      18      information.

      19             We did things about geriatrics, because

      20      I know they're seeing older people, medical.

      21             A lot of people have provided that.

      22             And in every one of those meetings, the chair

      23      would read a letter that she would have gotten from

      24      somebody who was released on parole, saying all the

      25      things that they had done since they were released.


       1             And I think she did that as just a proxy for

       2      being able to give people some encouragement for the

       3      fact that, very often, when you finally release

       4      somebody, they're -- they really have turned their

       5      lives around.

       6             So, I don't know what other information you

       7      seek.

       8             But as long as we haven't -- please put money

       9      in the budget to digitize those records.

      10             It's insane.

      11             Do you know that these poor commissioners

      12      have to go to Buffalo, even to just do a video

      13      conference if they live in New York City, because

      14      there's only one copy of the paper?

      15             (Speaker continues in a whisper) Like, that's

      16      crazy.  That's crazy.

      17             SENATOR GALLIVAN:  Well, I think they do that

      18      for more than just that reason.

      19             But nonetheless --

      20             ELIZABETH GAYNES:  Oh, because they just love

      21      being together?

      22             SENATOR GALLIVAN:  No, I think it has to do

      23      with the randomness of assignments.

      24             ELIZABETH GAYNES:  No, that's true.

      25             SENATOR GALLIVAN:  And, you know, who is


       1      being interviewed, and where, and ensuring some type

       2      of rotation so it's not regular.

       3             ELIZABETH GAYNES:  No, no.  I don't mean just

       4      go to the closest place.

       5             What I mean is, if we had electronic records,

       6      then three people could be in three different

       7      places.

       8             SENATOR GALLIVAN:  Exactly.

       9             No, no, your point is extremely well taken.

      10             But I don't think that's the only reason that

      11      they go.

      12             But we would have the enhanced technology.

      13             And the other thing I would say about the

      14      budget, excellent point, budget process does start

      15      with the Executive.

      16             And to date, or at least in my time in the

      17      Senate in this Committee, we haven't seen any

      18      initial -- the Governor's presentation of the

      19      budget, anything like that included in there.

      20             It can start with us.

      21             ELIZABETH GAYNES:  So if we put forward a

      22      proposal, a bill that says, that the -- there should

      23      be full funding to fully staff 19 parole board

      24      members, and, by the way, could you digitize the

      25      records? we could get some support from the


       1      Legislature, added.

       2             SENATOR GALLIVAN:  Well, let's just go one at

       3      a time.

       4             ELIZABETH GAYNES:  I'll ask the Governor

       5      first.

       6             SENATOR GALLIVAN:  That would be good.

       7             But as far as the 12 out of -- 12 sitting out

       8      of 19, we haven't had a nomination from the

       9      Executive's Office since June of 2017.

      10             ELIZABETH GAYNES:  I'll get to work on that.

      11             SENATOR GALLIVAN:  So, I mean --

      12             ELIZABETH GAYNES:  Yes.

      13             SENATOR GALLIVAN:  -- now -- I guess --

      14             ELIZABETH GAYNES:  I wasn't blaming you for

      15      not putting the names forward.

      16             I was just saying, as I think it's -- it

      17      would make a big difference to have a fully staffed.

      18             SENATOR GALLIVAN:  I'm not throwing it -- I'm

      19      not --

      20             ELIZABETH GAYNES:  And I agree.  And --

      21             SENATOR GALLIVAN:  -- I'm not just completely

      22      shirking our responsibility.

      23             ELIZABETH GAYNES:  -- the Governor should be

      24      putting names forward.

      25             SENATOR GALLIVAN:  Both of us can do it, but


       1      the budget process starts with him.

       2             Both of us can attempt to do it, as you know,

       3      so I didn't want to completely -- when it comes to

       4      the budget, to say it's all him.

       5             ELIZABETH GAYNES:  Well, I will talk to them.

       6             But, you know, I'm still going to come back

       7      to you about opening an office in Western New York,

       8      and asking the Senate and the Assembly to help if

       9      the Governor doesn't.

      10             SENATOR GALLIVAN:  We can meet separately

      11      about that.  I have had that conversation, though.

      12             Not with you, but with the people out there.

      13             ELIZABETH GAYNES:  Okay.

      14             SENATOR GALLIVAN:  Senator?

      15             All right.  Thank you very much for your

      16      patience, and your time again.

      17             ELIZABETH GAYNES:  Oh, thank you.

      18             SENATOR GALLIVAN:  And the work that you do.

      19             ELIZABETH GAYNES:  Thanks.

      20             SENATOR GALLIVAN:  I guess it wasn't so bad

      21      after all.

      22             We will conclude our hearing at this point.

      23             Remember, this is the first -- for everybody

      24      who's here, the first of two.

      25             The rules do require, this was streamed


       1      online, I neglected to say it.

       2             Tomorrow, because of the actual location, and

       3      the technological incapabilities, it will not be

       4      streamed online.  But it will be made available

       5      within 24 hours of tomorrow's hearing.

       6                (Pause in the proceeding.)

       7                (The hearing continued.)

       8             SENATOR GALLIVAN:  And it looks like we may

       9      stand corrected on that.  That may be streamed

      10      online.

      11             In any event, both hearings will be on the

      12      Senate website.

      13             And then, ultimately, all the written

      14      testimony, the ultimate information that we get from

      15      the Executive Branch and the different departments,

      16      what we have to date, and, what we continue to get

      17      regarding information, will all be included in the

      18      official record and the ultimate report.

      19             Thanks, everybody.


      21                (Whereupon, at approximately 5:10 p.m.,

      22        the public hearing concluded, and adjourned.)

      23                           ---oOo---