By Vincent Schiraldi
May 07, 2019
Due process and judicial independence are among our bedrock legal principles established in the U.S. Constitution, case law and state law, so my colleagues and I are alarmed by news reports from Gothamist and NY1 News last week alleging Rikers Island Chief Administrative Law Judge (ALJ) Rhonda Tomlinson’s complete disregard for them.
Both stories allege Tomlinson is pressuring ALJs to rubber-stamp parole revocations and re-incarcerate men and women on technical violations like missing appointments, staying out after curfew or using drugs.
These allegations could constitute a potential due process violation of persons accused of parole violations, even if they do not enjoy the same due process protections as those not on parole. They also could violate New York State laws that establish judicial independence for administrative law judges in their decision-making process.
The Legal Aid Society and each of the county legal aid offices; Dr. Vanda Seward, the former director of reentry services for the NYS Department of Corrections and Community Supervision (DOCCS), and I have written to NYS Attorney General Letitia James and Inspector General Letizia Tagliafierro to request they open investigations into these practices.
We wrote James and Tagliaferro that “the integrity and fairness of the parole adjudication system is called into question as due process requires a fair, detached, and independent arbiter with the accused present at all stages of the adjudication.”
The allegations include that there is now a double standard in the adjudication process that improperly and, likely illegally, favors incarceration. ALJs are permitted to re-incarcerate people whose cases they are adjudicating with no scrutiny by or explanations to the supervising ALJs of their decisions.
However, if those same administrative law judges decide to return people found in violation of parole to the community, they must justify those decisions to their supervisor. Apparently, it is only liberty that requires an explanation.
These new reports also allege that ALJs are required to ask permission in a private consultation with their supervisor — off the record and away from the presence of the accused and parties — before releasing a person on parole.
It may be improper for one judicial officer to substitute their judgement for those ALJ’s who are assigned to a case and required to consider all of the facts and circumstances, including the exculpatory and mitigating evidence presented by the accused. If true, this extra-judicial supervisory role in the parole violation hearing process conflicts with bedrock principles of judicial independence and may have a chilling effect on fair and impartial judicial decision-making.
Finally, while the behavior described in these news stories would be alarming under any circumstances, it is especially concerning in cases in which the only accusation against the individual is a non-criminal, technical violation of parole rules.
According to the federal Bureau of Justice Statistics, New York State returned the second highest number of people to prison for technical violations in the country in 2016. New York City data reveals that the number of people held for technical violations in Rikers Island has increased 30% over the last five years. One out of 12 people now held in the jail complex on Rikers Island is accused only of a technical violation, not a new crime.
Given that both the prosecuting agency and the Parole Board-appointed ALJs are employed by the state’s Department of Corrections and Community Supervision, it is paramount to the administration of justice that hearing officers are seen as independent and fair. This is the law in New York State.
Given the high number of people incarcerated in city and state correctional facilities for technical violations, the level of judicial interference described in these articles is especially concerning and warrants independent scrutiny by New York State chief legal and investigative officers.