By: Rachel Cohen
April 3, 2020
Over 6,300 people who are incarcerated each year in New York, including some sent to Rikers Island, have not been jailed for committing a crime. They have not even been accused of violating a criminal statute. They have been put behind bars for behavior that “does not involve the alleged commission of a new crime,” yet they make up nearly 40% of everyone sent to state prison in New York each year.
How Could So Many People Be Locked Up For Noncriminal Behavior?
Under current New York State law, individuals who have served their time but “technically” violated their parole ‒ i.e. missing an appointment with their parole officer or being late for curfew ‒ can be immediately reincarcerated. As New York State Senator Brian A. Benjamin recently explained in a forum on ending mass incarceration: “A ‘technical’ parole violation is just that ‒ a technicality.”1New York State Senator Brian A. Benjamin, Speech at New York University School of Law Forum: Ending Mass Incarceration in New York State #LessIsMoreNY (Feb. 18, 2020). It can be something as mundane as missing an appointment, being late for curfew, changing one’s residence without approval, or failing to attend a mandated program. And it is highly racialized ‒ black individuals are reincarcerated for technical parole violations at more than 12 times the rate of whites in New York.
The Less is More: Community Supervision Revocation Reform Act, currently pending with the New York State Senate Committee on Crime Victims, Crime and Correction, seeks to rectify this injustice. If adopted, the Less is More Act would eliminate incarceration for most technical violations and create a system of “good time credits” to encourage good behavior. The Less is More Act is also one of the rare criminal justice reforms supported by bipartisan legislators, public defenders, and district attorneys alike.
As it stands today, New York’s parole infrastructure has mutated into a “set of trip wires” and functions as an unsupportable conduit of mass incarceration ‒ but it is also fixable. We must support the Less is More Act and demand that New York State legislators use their positions to advocate against locking people up for technical, noncriminal behavior.
What is Parole, Really?
Originally intended to help individuals transition back into the community after being incarcerated, parole in its current state is virtually unrecognizable today. The concept of parole stems from the French word “parol” (meaning “promise”), indicating the promise to live under certain circumstances after leaving prison, such as not using or possessing any alcohol or drugs, abiding by a curfew (e.g., being at your home by 8pm every evening), paying all required fees and surcharges, making office reports, and refraining from any new criminal conduct.2Joan Petersilia, Parole and Prisoner Reentry in the United States, 26 Crime and Just. 479, 487 (1999). These conditions are discretionary and set by the Board of Parole.
While similar, parole and probation are two different things. Probation refers to an “alternative to a sentence when somebody is charged with a crime.” Instead of serving jail time, a person is put on probation. Parole “is similar, but what it’s intended to do is help people who are returning home from prison.” It is a period of supervised release in the community after a prison or jail sentence has been served.
A popular misconception about parole is that those on it have been released “early” from prison. But this is not the case. In New York, an incarcerated individual is only eligible for parole after his or her minimum term of imprisonment is served in full. Simply put: “[T]here is no ‘early’ release on parole in New York State.” Rather, when facing an indeterminate sentence (i.e., sentenced to a range of time, such as 5-10 years), one needs to complete the minimum sentence before being considered for parole.
Nearly 40% of people sent to state prison in New York each year are incarcerated for a technical parole violation. Each day, an estimated 1,740 people are incarcerated in local New York State jails, including an average of 718 people per day in New York City, for technical parole violations, according to a report on 2018 data from the Independent Commission on New York City Criminal Justice and Incarceration Reform. New York State reincarcerates people for technical parole violations at six times the rate it does for new criminal convictions. The large number of people imprisoned on alleged technical parole violations has “impeded the City’s ongoing efforts to reduce the Rikers [Island] population and, ultimately, close the jail.” A snapshot of the New York State prison population on March 31, 2019, the most recent data publicly available, indicates that there were approximately 4,300 people incarcerated for technical parole violations at that time.
While usually considered a “progressive” state, New York State is a “distinct outlier when it comes to the numbers of people it sends to prison for technical parole violations.” New York reincarcerates more people for technical, noncriminal parole violations than any other state, except Illinois. The financial cost to the State (and taxpayers) is also significant. New York State spends approximately $359 million each year incarcerating individuals for technical parole violations.
A report conducted by the Columbia University Justice Lab exposed the extent to which those incarcerated for technical parole violations (and parole violations generally) have increased in New York, despite a reduction in overall prison populations. The report found a 10.4% increase in the average daily population of individuals incarcerated for technical parole violations in New York State between 2016 and 2017. In addition, while New York City reduced its overall jail population by 21% from January 1, 2014 to January 1, 2018, the number of people held on technical parole violations grew by 15%.
In New York State, there are currently about 35,000 people under active parole supervision, who “at almost any time can see their efforts to successfully rejoin the workforce and reintegrate” jeopardized by reincarceration for a technical violation. And by one measure, that will become a sad reality for 33% of them within three years.
The Human Cost
The human cost of reincarcerating individuals for technical, noncriminal parole violations is both enormous and tangible. A person accused of a technical violation can be immediately jailed and spend up to 105 days in prison awaiting adjudication“regardless of the seriousness (or lack thereof) of the alleged violative conduct.”3This includes “15 days pending a preliminary hearing to determine probable cause… and up to 90 additional days while the alleged violation is adjudicated in the final hearing stage.” In that time, formerly incarcerated people struggling with reentry can easily lose their job or their housing. It has been noted that “even a brief period of incarceration on a technical parole violation…can result in the person losing his or her job and housing and can render both them and their families homeless and with no viable source of income.”
The substantial barriers to reentry for formerly incarcerated individuals have been well documented ‒ from the lack of job prospects to the inability to receive public benefits and housing (not to mention the effects of the psychological trauma). With technical violations, the problem is exacerbated because it criminalizes activities many would consider to be immaterial and innocuous behavior. Imagine going to a family barbeque, only to realize a cousin has a criminal record and that you could be deemed as “fraternizing with people with criminal records” ‒ a technical parole violation. Or imagine that the subway is delayed on your way home from work, and you suddenly find yourself late for a curfew that you had no ability to set or negotiate. Both of these are technical parole violations. Under current New York State law, all of these could result in imprisonment and the destabilization of families and communities. We also cannot ignore the bleak reality that this grossly impacts individuals of color at an unjustifiably higher rate than white individuals.
The Less is More Act & Conclusion
The parole system is not helping people succeed, nor is it helping to keep people safe. In fact, studies have shown that it is “counterproductive,” that it doesn’t reduce recidivism, and that it actually “mak[es] the reentry process much more difficult.”
The Less is More Act seeks to rectify the existing injustice by eliminating incarceration for a number of technical violations, including missing curfew, fraternizing with people with criminal records, receiving a positive alcohol or drug test, failing to notify the officer of a change in employment or residence, failing to pay surcharges and fees, and obtaining a driver’s license (which is often necessary in areas of the state where driving is needed to meet other conditions of parole). The Less is More Act also encompasses other necessary and beneficial parole reforms, including creating a system of earned time credits, capping the amount of time a person may be incarcerated (for the few technical violations which are still punishable by incarceration), and establishing recognizance hearings.
Reducing imprisonment for technical, noncriminal parole violations is a common-sense reform. However, while there currently appears to be bipartisan support for the Less is More Act, it is far from a done deal. The bill failed to make it to the floors of the State Senate or Assembly last year when it was introduced, possibly due to a lack of priority over other high-ticket items or opposition mounted by the parole officers union. We must advocate and push New York State legislators toward swiftly approving the Less is More Act, as it will not only greatly reduce the swollen prison population and save taxpayer money, but it will also vastly improve the lives of individuals who have served their time and make it easier for them to be productive members of society.
Rachel Cohen, J.D. Class of 2020, N.Y.U. School of Law
Suggested Citation: Rachel Cohen, Common Sense Parole Reform with the Power to Reshape Lives and Reduce Prison Populations: #LessIsMoreNY, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2020).
- 1New York State Senator Brian A. Benjamin, Speech at New York University School of Law Forum: Ending Mass Incarceration in New York State #LessIsMoreNY (Feb. 18, 2020).
- 2Joan Petersilia, Parole and Prisoner Reentry in the United States, 26 Crime and Just. 479, 487 (1999).
- 3This includes “15 days pending a preliminary hearing to determine probable cause… and up to 90 additional days while the alleged violation is adjudicated in the final hearing stage.”