The Legal Aid Society filed a mass writ of habeas corpus against the New York State Department of Corrections and Community Supervision (DOCCS) seeking the immediate release of 91 incarcerated clients currently held on a parole warrant and one dollar bail, because those clients have been denied their rights to a release hearing guaranteed by the Less Is More Act, a transformative piece of legislation that went into effect yesterday. Less Is More overhauls New York’s outmoded and punitive parole practices.
Under the Less Is More Act, DOCCS is required to ensure that every New Yorker held at Rikers Island on a parole warrant has a hearing within 24 hours to determine whether an individual should be released. DOCCS has agreed to hold such hearings on all new cases commencing March 01, 2022, and beyond but has refused to hold these hearings for pending cases, depriving incarcerated New Yorkers an opportunity for release and ignoring the Legislature’s intent to end mandatory detention.
Less Is More also explicitly requires that all of these parole violation hearings must now occur in community courthouses, as opposed to behind closed doors in secrecy at Rikers Island. As of yesterday, the day the law became effective, DOCCS has also failed to comply with this requirement.
Prior to Less Is More, a parole warrant automatically resulted in mandatory detention, resulting in unnecessary and arbitrary incarceration for thousands of New Yorkers every year, including for people accused of violating technical parole rules like missing a meeting or failing to report a change in address. Now, incarceration is permissible only if DOCCS establishes at a hearing that an individual is unlikely to appear at future parole proceedings. The legislation contemplates that, in most cases, the accused person will be released on their own recognizance back to their family and community.
“Ending mandatory detention is a central component of the Less Is More Act, and DOCCS is simply violating the spirit and explicit intention of this transformative law by refusing to hold these release hearings for everyone in its custody,” said Lorraine Mc Evilley, Director of the Parole Revocation Defense Unit at The Legal Aid Society. “If DOCCS is unwilling to afford our clients this due process, as clearly expressed by the law, then this litigation is the only remedy to protect our clients and their newly enshrined rights.”
Background
On September 17, 2021, Governor Kathy Hochul signed into law Less is More, a landmark act that restructures New York’s parole revocation process. Among its many transformative features, Less Is More establishes a recognizance hearing for release at the beginning of the process, thereby eliminating mandatory incarceration during the pendency of parole revocation proceedings.
Less Is More also increases burdens of proof at preliminary and final hearings, and, perhaps most significantly, dramatically reduces the potential punishment for technical violations of parole, entirely eliminating incarceration for very minor violations. To give DOCCS time to implement the many new changes required by the law, the Legislature set March 1, 2022 as the effective date for almost all the provisions of Less Is More.
Until recently, New York State incarcerated more people for technical parole violations than any other state, except for Illinois. To date, even after the signing of Less Is More, hundreds of people are still detained at Rikers on alleged parole violation charges.
These violations often included technical charges, like missing curfew, failing to report to a parole officer, and testing positive for substance use. An arrest on criminal charges, even minor ones, could also trigger an automatic parole violation warrant and could keep someone detained even when they are not held on any bail. Unlike in the criminal court context, where bail or release on recognizance is available following arrest, when someone was charged with committing a parole violation, their incarceration was mandatory and they were held in jail for the pendency of the revocation case. The entire violation hearing process also took place in makeshift jailhouse courtrooms shielded from the public eye. This often left people incarcerated for weeks and months in the absence of any finding that they had even violated any condition of their release.
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About The Legal Aid Society
The Legal Aid Society exists for one simple yet powerful reason: to ensure that New Yorkers are not denied their right to equal justice because of poverty. For over 140 years, we have protected, defended, and advocated for those who have struggled in silence for far too long. Every day, in every borough, The Legal Aid Society changes the lives of our clients and helps improve our communities.
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