Post-Conviction Advocacy: Supporting Clients and Patients Under Community Incarceration

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1 Post-Conviction Advocacy: Supporting Clients and Patients Under Community Incarceration REBEKAH C OLEMAN, L MSW ALLISON BERGER, LMSW THE LEGAL AID SOCIETY POST-CONVICTION AND FORENSIC LITIGATION UNIT 199 WATER STREET, 5 TH FLOOR NEW YORK, NY 10038

2 Goals Enhance understanding of pre-entry and re-entry processes and obstacles Define Parole in New York State and its impact Provide suggestions for engaging and supporting people who have post-conviction/post-custody supervision requirements Provide suggestions for engaging and supporting people who have involvement with mandated treatment Skills for practice

3 Who are we? We represent the Post Conviction and Forensic Litigation Unit at The Legal Aid Society in New York City PAROLE REVOCATION DEFENSE UNIT (PRDU) Assigned counsel in the 5-boroughs of NYC for any person accused of a parole violation 21 attorneys 3 social workers 1 yearly rotating social work intern 2 paralegals 3 support staff Primary and satellite office REBEKAH COLEMAN, LMSW Social Work Supervisor of the Post-Conviction and Forensic Litigation Unit CRIMINAL APPEALS BUREAU (CAB) Largest provider of appellate and postconviction legal services in the 5-boroughs of NYC attorneys 1 social worker 1 yearly rotating social work intern paralegals support staff ALLISON BERGER, LMSW Mitigation Specialist

4 Who are our clients? YOUR clients Any person who has been convicted of a felony offense facing postconviction consequences which include supervision and registration in New York City Vulnerable client population facing supervision by bureaucratic agencies Generally, over the age of 16 Age of criminality in NYS is 16 (with the exception of several serious felonies, age could be 13) Raise the Age

5 Mass Incarceration and Community Incarceration

6 New York State Sentencing

7 Jail vs. Prison JAIL New York City Department of Corrections (NYCDOC) Detainment centers Cannot make bail Waiting for trials or resolution Misdemeanor convictions (less than 1 year) city year Unstructured and chaotic PRISON Department of Corrections and Community Supervision (DOCCS) Sentence of confinement lasting longer than 1 year Felony convictions (non-violent and violent) More programming, structure, and routine

8 Probation vs. Parole WHAT IS PROBATION? Probation is a period of community supervision imposed by a court. Probation is an alterative to incarceration. In New York State, the Office of Probation and Correctional Alternatives is operated by the Department of Criminal Justice Services. WHAT IS PAROLE? Parole is a discretionary period of community supervision that is served before the completion of an indeterminate sentence after release from incarceration. Post-Release Supervision (PRS) is a period of community supervision that is imposed by the court and served after the completion of a determinate sentence. In New York State, parole is operated by the Department of Corrections and Community Supervision.

9 How Does Sentencing Effect Parole Eligibility? DETERMINATE SENTENCING Certain drug convictions, certain violent felony offenses Example: 7 year sentence Must serve 85% of sentence before eligible for Conditional Release (CR) No Parole Board eligibility Community supervision is called Post-Release Supervision INDETERMINATE SENTENCING All other convictions Example: 4 8 year sentence Parole Board eligibility at minimum of range Must serve 2/3 of maximum before eligible for CR Indeterminate sentences result in release from prison, but remainder of complete sentence is served on parole

10 Board of Parole Board of Parole consists of 14 members who are appointed by the Governor and confirmed by the Senate for six-year terms. The Board determines which people serving indeterminate sentences may be released on Parole by conducting interviews, reviewing packets prepared by interviewee, and reviewing reports prepared by facility parole officers. If denied, see Board every 2 years until CR is reached Use of COMPAS to assess risk onotch: Nature of the Crime Holds

11 Barriers to Release In some cases, people are eligible for release by the Board of Parole or by reaching their CR date and are not released. Why? If you refuse to sign your conditions of release, you can be held past your CR. The State may seek to civilly confine a person convicted of sexual offense or whose instant offense was sexually motivated or included a sexual element. The person being released is a registered sex offender, on parole, and subject to housing restrictions.

12 SORA Registration Levels

13 Preparing for Reentry from Prison RELEASE TO COMMUNITY SUPERVISION Person must submit viable addresses to their Offender Rehabilitation Counselor (ORC). ORC submits addresses to the assigned Field Office and addresses are investigated. Submitted addresses range from private residences, to programs, ¾ houses, and the Department of Homeless Services (DHS). Release conditions are established. FOR ALL PEOPLE BEING RELEASED DOCCS Transitional Services Program DOCCS Reentry Coordinators OMH mandatory discharge planning DMV Identification Program

14 Preparing for Reentry from Prison What should people be released with? Vital documents: birth certificate, social security card, and DOCCS photo ID Personal clothing can be sent to a person to wear upon their release Personal items that you can carry Personal items can also be mailed to family and friends prior to release DOCCS will not hold personal items for more than 90 days after release People from the New York City area are released with a bus ticket(s) to the Port Authority and approximately $40 in cash

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16 Community Incarceration

17 Community Incarceration About 70% of people who are released to parole supervision complete it without violations each year. However, the remaining 30% struggle to remain in the community and will be re-incarcerated on a parole violation. And a portion of the 30% will be reincarcerated on parole violations more than once. What could interfere with a person s ability to successfully comply with parole guidelines?

18 What Is Required to Complete Parole

19 Re-entry Issues Period of time removed from society, family, and community Improper or lack of discharge planning from upstate facility to the five boroughs of NYC Perception of parole and the role of the parole officer Collateral consequences Civil (jury, voting) Education Employment Family Rights Gun Control Passport and Driver s License Immigration Public Benefits Public Housing SARA restrictions

20 Reasons for Violations Clients can face both criminal charges as well as technical violations of parole conditions. Some common violations are: Not reporting to parole when instructed Giving a positive urine toxicology Not attending or completing a designated program Missing curfew New arrest for possession of drugs, trespassing, or petit larceny Domestic violence incident Changing a parole approved residence without authorization Not reporting police contact, even if an arrest does not happen

21 The re-entry gap EXPECTATIONS Parole will help me find housing Parole will understand/support me if I relapse Parole will want me to work Parole will respect my personal relationships Parole will consider my medical and/or mental health conditions REALITY Parole will approve of deny presented addresses, will always approve shelter Parole will test urine, mandate treatment after relapse, or violate Parole can mandate programming that does not allow for employment Parole can order that they meet your significant other and enforce conditions to keep you apart Unless you are on a specialized caseload, most parole officers do not have adequate training for working with individuals with severe mental illness What services could enhance a person s ability to successfully comply with parole guidelines?

22 Who Is Accused of Violating Parole All of our clients are people convicted of a felony and are charged with violating theirparole conditions in any of the five boroughs of New York City Male (~80%) Documented Age range of years old Majority are African American and Latino All are detained in Rikers Island 80% are diagnosed with a mental illness 50% are diagnosed with a severe mental illness

23 Parole Violation Process

24 Parole Revocation Process Administrative Law-the legal codes governing parole procedures are not under criminal law Differences from Criminal Court: Administrative Law Judges-appointed by the Board of Parole Clients can face both criminal charges as well as technical violations of parole conditions Clients convicted of violent felony offenses automatically face a minimum of 12 months of prison time regardless of their charges The burden of proof is much lower Preponderance of evidence, not beyond a reasonable doubt Incapacitated Parole Violator Statute NYC parole violations account for 85% of all of New York State parole violations

25 Outcomes: New York State Community Supervision Legislative Report 2016, New York State Department of Corrections and Community Supervision s/2016/2016_legislative_report.pdf

26 Realities of Community Incarceration People on parole supervision have a lot of mandated responsibilities Many of our clients live in Department of Homeless Services shelters Many of our clients have histories of trauma (untreated), are over-diagnosed and medicated (easy way to track our clients in the carceralsystem), have been involved in multiple systems including the child welfare system Many of our clients have been in solitary confinement (days to years) Many of our clients have learned survival skills---rethinking malingering and manipulation Many of our clients are well educated, talented and underemployed Living in the community is very hard

27 Practice Tips for Treatment Providers Do you engage differently with clients under post-conviction mandates? Do not be judgmental, reentering the community is not easy They are an not an extension of parole (caveat: Federal probationers) HIPAA Incidents and how they are defined and documented and reported to all legal entities Speaking to parole officers owho, What, Where, Why, and How Client is on Sex offender Registry- level is not always an accurate predictor of recidivism Do not fear your client

28 Practice Tips for Advocates Know the role and purpose of every party involved: o You o Attorney o Treatment team o Parole/Probation Officer o Sex Offender Management Unit (SOMU) Inform client of all collateral consequences of their conviction or plea Know the supervision conditions Law enforcement always has a paper trail Be mindful of the barriers that can be created by our own mitigation and advocacy Sometimes less is more Client is on Sex offender Registry-advise your client to report new address within 10 days Remember the resiliency of your practice and know your limits and boundaries Your position as an advocate is a luxury

29 Words of Wisdom We delight in the beauty of the butterfly, but rarely admit the changes it has gone through to achieve that beauty. -Dr. Maya Angelou Rebekah Coleman, LMSW Allison Berger, LMSW Parole Revocation Defense Unit Criminal Appeals Bureau