Aug 5, 2010

Understanding Parole Revocations: My Interview with Parole Revocation Specialist, Elaine Kallinikos

The New York State Division of Criminal Justice Services recently released its 2009 Crimestat Report which included the rates of return to prison for formerly incarcerated individuals over the period of three years, beginning in 2006 and ending in 2009. In 2006, 24,520 individuals were released from NY State prisons. After three years of release, 41.2 %of them had returned to prison. While many may assume that most individuals on parole return to prison because they have committed a new offense, the vast majority are actually sentenced to a term of prison due to a violation of the conditions of their parole. In fact, between 2006 and 2009 only 10.7% of released individuals returned to prison because they were convicted of a new felony offense. The vast majority, 30.5%, were returned to prison due to a violation of the conditions of their parole or what is referred to as a “technical violation.” A technical violation occurs when an individual on parole fails to abide by the rules set out for him by the Parole Board at the time of release. These include, reporting to a Parole Officer, abiding by a curfew, refraining from associating with others on Parole, and staying off drugs, to name a few.

To learn more about what happens when someone is taken into custody for a technical violation of parole, I sat down with Elaine Kallinikos, a Parole Revocation Specialist for the New York State Division of Parole, Manhattan Six, Special Offenders Unit. Ms. Kallinikos is responsible for prosecuting parolees serving a term of parole after a conviction for a sex offense, parolees who have a mental illness, or parolees involved in a special reentry program (including the Reentry Programs at the Harlem Community Justice Center) when they are accused of violating the conditions of their parole. Ms. Kallinikos prosecutes these individuals in front of an Administrative Law Judge at what is called a “Parole Revocation Hearing.”

What is a parole revocation hearing and what is your role in that hearing?

When a Senior Parole Officer makes the determination to issue a warrant for an individual because he has violated the conditions of his release, he is taken into custody and entitled to two hearings. The first is a preliminary hearing, the second is a final hearing. The preliminary hearing is to determine whether the Division of Parole had probable cause to issue a warrant for violating the conditions of his release. This preliminary hearing can be, and often is, waived. If the parolee decides to have the preliminary hearing, and the hearing officer determines that there was probable cause to issue the warrant, the parolee will remain in custody.

When the preliminary hearing is completed, the case is sent to me. We then have an arraignment process where I take the charges into consideration and may offer a plea. If the parolee pleads guilty his parole will be revoked and he can be sent back to prison or he may be “revoked and restored” and sentenced to a program in the community and continue on parole. Otherwise, he may have a contested hearing, a Parole Revocation Hearing, in which I bring witnesses to prove the charges and an attorney representing the parolee brings witnesses to dispute the charges.

How do you decide what type of sentence to recommend when someone accepts a plea or has a contested hearing and loses?

First, the law guides what type of sentence a parolee is eligible for. The first category is a “Category One” which means that the parolee is a “Violent Felony Offender” and he can face up to 15 months. The second, “Category Two Violators” are “Non-Violent Felony Offenders” and are eligible for programs. “Category Three Violators” are exempt from “Category Two” because they have some sort of psychiatric or medical exclusion. A “Category Four Violator” is a persistent violator, someone who has violated Parole more than two times. They can be sentenced up to 12 months.

The Revocation Specialists considers what category the parolee falls under as well as a range of other factors: whether or not this is the individual’s first parole violation, his criminal history, if he turned himself in or if he absconded. We look at whether the individual has a drug condition, whether he suffers from a mental illness, and whether he has had an opportunity for programming before. Individuals may also violate on different phases on parole. Some may have never made their arrival report so there has never been any adjustment to supervision. Some may have just relapsed from drugs or many have decompensated mentally.

for clarification, can you take me through a scenario, one that includes a new misdemeanor offense and some technical violations? An individual is on parole for a non-violent offense, a drug sale. He is accused of shoplifting at 12am (past their curfew), arrested by the police, and brought into criminal court. What happens?

First, just because an individual is arrested on parole doesn’t mean he is going to be violated by his Senior Parole Officer. The Parole Officer must do a thorough investigation. He must speak to witnesses--police officer, store security, a complaining witness—and based upon that, make a determination as to whether there is enough evidence to sustain a charge. In this scenario, there are three potential “technical charges” that the individual can be violated for. I am not referring to the new separate criminal case that will be taken care of separately. The “technical charges” are having broken the law, staying out past curfew, and possibly not reporting police contact to his Parole Officer

Cases are conferenced between the Parole Officer and the Senior Parole Officer and it is determined whether it is necessary to issue a warrant because either the individuals is a danger to community, himself, or he is in violation of his parole conditions. Alternatives to incarceration at that juncture are deemed inappropriate. Not to say that they may not be considered later on in the process, but at the point that the individual is taken into custody, generally, all other alternatives should have been exhausted and sanctions should have been imposed.

So if the Senior Parole Officer decides to issue the warrant, the parolee is taken into custody, and held on Riker’s Island [one of New York City’s jails]. A preliminary hearing must occur within 15 days from which the warrant is lodged. If the parolee waives the preliminary hearing, he must have a final hearing within 8 business days of the lodge of the warrant.

Who presides over these hearings?

The preliminary hearing determination (of probable cause) is made by hearing officers. Hearing Officers do not have law degrees. (Who are they employed by?)

The State Division of Parole.

The arraignments and final hearing are presided over by an Administrative Law Judge (ALJ). At these proceedings, I make my recommendation, the parolee’s attorney makes his and in non-board [Parole Board] reviewable cases, the ALJ’s decision is final.

What is the difference between Board-Reviewable cases and Non-Board Reviewable cases?

Board Reviewable Cases are cases where the individual who is being adjudicated for a technical violation is a violent felony offender. For example, a sex offender or someone who has committed a homicide. For example, you have someone on parole for rape and it is his first violation. Let’s say he has been out on parole a year and up until the point of the violation he was doing well. Let’s say what brought him back into custody was that he wasn’t attending his program and missed two reporting days. I make a recommendation, the parolee’s attorney makes a recommendation and the ALJ makes a decision. So for a sex offender first violation, if I recommend twelve months in prison and the Judge agrees with me, that case then goes to the Parole Board. The Board doesn’t have to go along with it. They can turn around and say they are going to give him more time [or less].

You work in the Special Offenders Unit. so you prosecute people with mental illnesses who I imagine have more difficulty complying with the rules of parole. How do you think about this when making your recommendation to the judge or Parole Board?

I do find that people with mental illness do have more difficulty complying with the rules. Hopefully, at the point in which that individual is brought to their final hearing, they are stabilized on medication.

The parolee’s attorney will offer mitigation regarding their mental health issue and why they were violating their condition of parole. I may argue that even though the client was mentally ill, they still understood that they had to abide by conditions of a release or that at the time they were violated they were stable.

The judge will make the determination. If the individual has committed a violent act, for which they have been violated, generally that will go to a contested hearing and then I will have to bring victims to testify. If it is just a matter of technical violation and they don’t believe the individual is a danger to community, that individual will generally end up in a program. Sometimes, I may argue that I feel the individual is a danger to the community. I may point that out to the judge, but it’s the judge’s decision. If the person is sentenced to a program, the person waits in jail until they find a program—a lot of the mentally ill individuals will be waiting in jail because there is a lot of paperwork that need to be approved.

We hear a lot about being indeterminate sentences such as “fifteen to life.” Does anyone ever serve a life sentence on parole?

“Life” is not life as we know it. Individuals who receive a life sentence are eligible for discharge from parole after 3 years. The Parole Officer submits a report to the Board for consideration. This is only their recommendation. The Parole Board makes a final decision. Individuals who have life on parole that keep on violating their parole can wind up on parole for life. They make their “life sentence” a life sentence because they keep getting technical violations and lose time.

A few questions about you. What do you like about your work?

I feel that I make a difference, that I am protecting a community. I felt like that as a Parole Officer and as a Senior Parole Officer. We work very hard and I just want to impress that it is not all about sending these guys back to prison. What sends them back to prison is their behavior and our main concern is the protection of the community. Sometimes it may be in the best interest of the community for that individual to reenter society with the supports that he needs and that is also what we try to do in the violation process as well. It’s a balance. It is not just about sending everyone back, it is also about helping them to make a successful reentry into the community.

What is your day to day like?

When I am in the office, I am preparing cases, speaking with Parole Officers, doing investigations, and speaking with police officers, ADAs, Legal Aid attorneys. I am reading through databases; I want to know the history of how the guy came to violate his parole. That is basically what I do when I’m in the office.

When I am at court, I am presenting my cases, either conferencing cases or having contested hearings.

How often do you have contested hearings?

Infrequently, only because I work very hard to resolve the cases. I really save the fight for the fight.

Is there anything else you’d like to share about your work?

The Revocation Specialists work very hard and we are not a separate entity from our Parole Bureau. We do ask the Parole Officers for their recommendations and take them into consideration. It is very important for us to work together as a team. The bottom line is community safety. Even though our focus is on reentry, which is important, we should not lose sight of our mission. We should be focusing on reentry, but we should always keep the protection of the community in mind.