By JB Nicholas
April 30, 2019
New York City’s plan to close Rikers Island has hit a snag: New York State’s parole system, which sends more people back to prison for petty parole violations than nearly every other state in the country.
The plan to close the infamous jail hinges on reducing its population to under 5,000 people, a number that could fit into four new jails to be built near courthouses in Manhattan, Brooklyn, the Bronx, and Queens. Since Mayor Bill de Blasio announced the move two years ago, the city has made steady progress, slashing Rikers' average daily population from 9,400 to around 7,000.
But the number of people jailed on Rikers for violating the terms of their New York State parole is going up, according to the Mayor's Office.
Many of these are technical violators, not jailed for new crimes but for allegedly violating parole supervision rules, such as staying out past curfew, missing an appointment, absconding, smoking marijuana and even informal rules that parole officers sometimes just make up.
New York reincarcerates more technical violators than any other state except Illinois, according to a federal Bureau of Justice Statistics report that examined the 42 states that keep the data. Technical violators accounted for 29 percent of the 21,675 people sent to New York State prison in 2016, per the latest accounting available from the state agency that runs both New York's prison system and its parole apparatus, the Department of Corrections and Community Supervision, known as DOCCS.
"DOCCS is interested in only one thing: making sure they don't get blamed when a case goes bad," said one current New York State parole officer working in the city, who asked that their name not be published because they were not authorized to speak to a reporter.
"So their solution," the parole officer explained, referring to his DOCCS bosses, "is simply to lock everybody up that you can."
Criminal justice advocates have long argued that the parole system is slanted toward sending parolees back to prison. Now observers on Rikers Island say the troubling trend is made worse by the Chief Judge of the parole court on Rikers, a Cuomo appointee, who is pressuring her subordinates to send people back to prison.
A Supreme Court decision mandates that parolees taken to Rikers for technical violations are supposed to get impartial hearings before Administrative Law Judges.
But according to a current official on Rikers Island with first-hand knowledge of the parole proceedings, ALJs are afraid of setting parolees free for fear of crossing their superior, Rhonda Tomlinson, the Chief Administrative Law Judge at the Rikers Island Judicial Center, where the hearings are held.
“Things changed drastically" when Tomlinson was made Chief Judge at Rikers in 2017,” the official told Gothamist. “She's stripped the judges of their independence and discretion and biased the revocation system in favor of re-incarceration.”
“Everyone feels the pressure. And the pressure is on everyone. Violations have been ramped-up," said the insider, who asked to remain anonymous because they are not allowed to speak to the press.
There were 811 New Yorkers held on Rikers for technical violations in February 2019, the New York State Division of Criminal Justice Services reported. That's 80 more technical violators than were held on Rikers just one month before, and a 7.7 percent increase since February of 2018, according to the Division. In March, the number of technical violators dropped to 781.
Lorraine C. McEvilley, Director of the Legal Aid Society's Parole Revocation Defense Unit, confirmed the insider's account. She said that in February of 2019 the unit's attorneys reported "on several occasions" that ALJs paused on-going hearings "to step out of the hearing room and ask the supervising ALJ on site for permission" to restore parole.
In contrast, McEvilley says, ALJs don't have to ask Tomlinson's permission to impose prison time.
Documents reviewed by Gothamist also show that Tomlinson recently asked an ALJ to justify why they restored a person to parole supervision instead of returning the person to prison.
According to the documents, Tomlinson's order came in response to a complaint the chief ALJ received from Edward Del Rio, Chief of DOCCS' Parole Violations Bureau, whose members act as prosecutors in parole revocation proceedings. A prosecutor from the group asked the ALJ to return the parolee to prison. Unhappy that the ALJ overruled the request, Chief Del Rio complained directly to Chief Judge Tomlinson.
Instead of turning Del Rio's complaint away, Tomlinson took it seriously, and ordered the ALJ to respond, the documents show.
Vincent Schiraldi, co-director of the Columbia University Justice Lab and former Commissioner of New York City Probation, reviewed the documents and said that in his view, "That calls for an Inspector General investigation.”
"The judges," Schiraldi noted, referring to the ALJs, "are supposed to be objective."
Legal experts agreed. They said that if a supervising official pressured subordinate ALJs or vetoed decisions outside an agency's ordinary decision-making process it would violate the rule of law.
"That's not the way the process should work. There shouldn't be any lobbying, or discussions off-the-record or outside the hearing process," said Hon. Raymond E. Kramer, an ALJ and director of ALJ training in New York City's Office of Administrative Trials and Hearings.
"If somebody were to come to me and ask me to justify a decision, and to do that even once but to do that repeatedly, it has a chilling effect on my decisions going forward," Judge Kramer explained.
Louis J. Virelli III, an expert in administrative law and Stetson University law professor, agreed that "independence of ALJs is a very important part of the process" and that when "supervisors who do not have direct review authority interfere with the presiding ALJ's decision, it can do harm to the integrity of the decision and to the system itself."
New York law states that ALJs “shall function independently of the department regarding all of their decision-making functions,” and that they must “have the ability to conduct parole revocation proceedings fairly and impartially.”
Asked about the allegations against Tomlinson, DOCCS responded that part of Tomlinson’s job is to review the decisions of her subordinates to ensure that the law has been properly applied.
Once a parolee is sent back to jail for a technical violation, they can be held for up to 90 days on Rikers Island while DOCCS hearing officers decide whether to send them back to state prison.
Some are held for longer than 90 days, according to McEvilley of the Legal Aid Society.
"The law currently provides that if the parole officer issues a warrant against you for violating, they get to take you into custody and bring you straight to jail,” McEvilley said. "And there you remain, stuck in Rikers Island, waiting for a hearing that could happen in a couple of weeks, or it could happen in a month, or it could happen whenever they feel like scheduling you."
Before 1972, if a parole officer merely alleged a violation, parolees were automatically returned to prison. The Supreme Court's decision in Morrissey v. Brewer did not in practice change that, but it did require "preliminary" probable cause-type hearings soon after a parolee's arrest, followed by a “final" fact-finding hearing within 90 days.
The officials who conduct those hearings don't have to be full-fledged, elected judges but they do have to be fair and impartial. On Rikers, ALJs, who are appointed attorneys, conduct final revocation hearings, while former senior parole officers typically conduct preliminary hearings.
All parole revocation hearings—preliminary and final—in New York City are held at the Rikers Island Judicial Center, or RIJC, a secretive, quasi-judicial outpost. Opened at its current location on Rikers in 2012, the squat, square, two-story bunker is sheathed in striated metal and caged windows.
People and paperwork churn through RIJC Monday through Friday. Those mornings, Correction Department buses disgorge shackled prisoners at the base of a ramp in front of the center. The ramp allows them to amble up to the front door, through a sally port and into a bullpen.
Witnesses and other visitors walk up steel steps, through two secure doors and a metal detector before reaching a lobby and two small, cell-like rooms, where they wait for the hearings to begin. Most of the people waiting are parole and police officers. A few are significant others or family of parolees. All sit shoulder-to-shoulder.
Over the course of two days in February, Gothamist was allowed to observe nine hearings at the judicial center for a total of four hours. On the first day, three cases were adjourned without a decision and the parolees were kept on Rikers to be returned for more proceedings at RIJC at a later date. Only one person was restored to parole; another was sent to an inpatient drug treatment program for 15 to 24 months.
On the second day, we witnessed four final hearings that were all adjourned without a decision, all resulting in the parolees being kept on Rikers pending further proceedings. When we asked to observe preliminary, probable cause hearings, we were told that it was time to go.
“The chief judge has asked that you leave,” a Rikers press officer who had been our chaperone told us.
The New York City Department of Correction declined to comment on why we were asked to leave.
Tom Mailey, the DOCCS spokesperson, told us that Tomlinson did not ask Gothamist to leave, and that she does not have the power to because RIJC is on City property.
“We were aware that he was there as an observer and he started asking questions of a lot of people, and that was the issue, I understand,” Mailey said, referring to this reporter.
“He just started to overstep what he was there for,” Mailey said. “He came with the understanding that he was there to observe. He was in doorways and places—I mean, he was doing what a reporter does, I get that.”
Tomlinson was appointed Chief Administrative Law judge at RIJC in 2017, a taxpayer-funded job that pays her an annual salary of $121,225. Tomlinson also earned $11,000 as an adjunct law professor teaching criminal procedure at CUNY School of Law in 2018, according to Elizabeth Dickinson, a CUNY spokesperson.
The office of Governor Cuomo, who appointed Tomlinson, declined to comment on the allegations that she is placing pressure on her subordinates.
On two separate occasions after our visit, Tomlinson sent emails to Rikers parole judges ordering them to direct all media inquiries to the public information officer.
“You should not be speaking to the press,” Tomlinson wrote in one of the emails. “If you have been contacted by the press you are directed to notify me immediately.”
Tomlinson did not respond to our requests for comment.
Historically, parole officers have applied a social services model to their work, as this 1974 pamphlet for New York parolees explains. But as the focus of the criminal justice system shifted in the late 1970s from rehabilitation toward punishment, American parole officials likewise shifted their efforts from social work to surveillance.
“What masquerades as success is the unobtainable standard of perfection, all the time,” Dr. Joel M. Caplan observed in a 2006 report entitled Parole System Anomie: Conflicting Models of Casework and Surveillance. This is true, Caplan wrote, even though there is “no evidence that the surveillance style of supervision decreased recidivism."
Active and former parole officers Gothamist spoke to say New York's numbers are being driven up by the way DOCCS is managing the parole system, which encourages parole officers to send people back to jail for minor parole violations.
Supervisors, the current parole officer says, treat "everyone like inmates, including the parole officers. It’s this atmosphere, just like a prison, of pervasive bullying and threats."
Leo Fernandez, a state parole officer in the city for 20 years before he retired in early April, agreed: "It's a very hostile work environment."
Referring to his supervisors, Fernandez said, "all they're waiting for you to do is slip, and hang you out there to dry. I can't work in a place like that."
Both agreed that weighing the individual circumstances of their parolees’ cases was all but impossible because DOCCS assigns officers too many parolees to supervise.
"They give you 70 or 80 cases and they expect you to work magic," Fernandez said. "Some people have a 120, some people have 140."
DOCCS parole "staffing reports" for three separate months of 2019, reviewed by Gothamist, confirmed that some parole officers are assigned more than 100 parolees to supervise. One parole officer was responsible for supervising 139 parolees in February alone, according to the documents.
Another was assigned more than 60 high-risk parolees to supervise in April, even though DOCCS' guidelines call for a maximum of 40 high-risk parolees, according to a written DOCCS policy directive reviewed by Gothamist. When that officer didn't meet with all of them in time afforded by DOCCS' policy, disciplinary proceedings were initiated against them, the active-duty parole officer said.
"It's a disgrace," Fernandez, the recently-retired parole officer, said. "We're not getting the resources we need to get the job done."
DOCCS insists that they use best practices to ensure that a proper the number of parolees are assigned to each parole officer, but that staffing issues sometimes requires officers to take on bigger caseloads. The agency maintains that staffing levels are regularly monitored, and that they maintain a safe and productive working environment.
Jonathan Lippman, former Chief Judge of the New York Court of Appeals and chair of the independent commission that recommended the closure of Rikers Island, has argued that parole reform, among other criminal justice reforms, could reduce the population of New York City’s jails by 3,000.
"Reforming parole so that significantly fewer people are jailed for alleged technical violations is not only the right thing to do, but it is also hugely important to the goal of putting an end to the misery of Rikers," Lippman told Gothamist.
Lippman added, "Sending so many people back to prison for non-criminal behavior is neither fair nor productive, and only interrupts the already difficult process of rejoining society.”
A bill introduced by Manhattan State Senator Brian Benjamin called The Less is More Act, would strip parole officers of the power to take parolees straight to jail for alleged technical parole violations. For serious or non-technical alleged violations that might warrant being sent back to prison, the bill requires that local criminal courts to conduct bail hearings before someone is locked up for a parole violation.
A spokesperson for the de Blasio administration told Gothamist that “the City supports parole reform at the state level and the proposed Less Is More Act to further reduce the number of people detained in City jails and create a fairer justice system.”
In his 2018 State of the State address, Governor Cuomo pointed out that “thirty-three percent of individuals released in 2012 were returned to prison within three years due to technical parole violations.”
“New York jails and prisons should not be filled with people who may have violated the conditions of their parole, but present no danger to our communities," Cuomo said at the time.
Today, Cuomo’s office said that while the governor supports parole reform, they could not comment on the Less Is More Act because it was pending legislation.
Donna Hylton knows first-hand what it's like to be under parole supervision in New York. Hylton served 27 years in prison for murder and kidnapping. Since her parole in 2012, she's penned a memoir, collaborated with Rosario Dawson, spoken at the 2017 Women's March in Washington, D.C., facilitated the provision of medical care to the formerly incarcerated and become Director of the Women and Girl's Project of the Katal Center.
But it almost never happened, she said, because New York's parole system seemed designed to create failure: "We're never seen as people who deserved a second chance. We're always seen as a person who has a number."
Parole officers were always threatening to send her back to prison. “If I'm five minutes late for my curfew, then I'm being threatened [with a violation].”
Perversely, she said, the more accomplishments she racked up the more she was threatened. “And one of the things that's disheartening. When you're doing good, they want to threaten you even more,” Hylton said.
The constant threat of arrest and reincarceration, Hylton said, "creates a lot of stress. And that's a concern. How much stress can a person on parole take?”
"They would trip up even Jesus,” Hylton added.