A man, who is an inmate at the correctional facility, is challenging his opponents about their failure to place him in a sex offender counseling and treatment program. The court then issued an order to show cause, and has received and reviewed the opponent’s answer and return, as well as the man’s reply.
In response to its letter order, the court has also received and reviewed an additional set of exhibits, submitted on behalf of the man’s opponents.
The man was then sentenced in Supreme Court to a controlling aggregate indeterminate sentence of 13 1/3 to 40 years upon his convictions of the crimes of sodomy in the first degree, attempted sodomy in the first degree, attempted robbery in the first degree, three counts of attempted sexual abuse in the first degree and sexual abuse in the first degree, all in New York County and attempted sexual abuse in the first degree, two counts of robbery in the first degree, sodomy in the first degree, attempted sodomy in the first degree and three counts of sexual abuse in the first degree, all in Bronx County.
Sources revealed that the department shall make available a sex offender treatment program for those inmates who are serving sentences for felony sex offenses. In developing the treatment program, the department shall give due regard to standards, guidelines, best practices, and qualifications recommended by the office of sex offender management. Moreover, the department shall make such treatment programs available sufficiently in advance of the time of the inmate’s consideration by the case review team, so as to allow the inmate to complete the treatment program prior to that time.
The man has apparently been assessed as a moderate to high risk for re-offending. According to the opponent’s answering papers, prison-based sex offender program has always been offered as close as possible to the time the offender is expected to be released. It is because the program’s focus is on providing the offender with the tools necessary to be successful upon release. It includes working with the offender to develop a discharge plan during the final phase of the program.
Based on criminal records, the mental hygiene law initially provides that the department of corrections and community supervision, as an agency with jurisdiction, shall give notice to the attorney general and to the commissioner of mental health when a detained sex offender is nearing an anticipated release from confinement. The law also provides, in relevant part, that the agency with jurisdiction shall seek to give a notice at least one hundred twenty days prior to the person’s anticipated release.
Even if the man first became eligible for discretionary parole, he will not reach his conditional release date. So, under the quoted program criteria set forth, the man will not be placed in the program.
Consequently, the petition is granted, without costs or disbursements, but only to the extent that the opponents are directed to enroll the man in the treatment as soon is possible.
Afterward, the man filed an inmate grievance complaint challenging the determination of the officials that he will not become eligible for placement in the program until he is within thirty-six months of his conditional release date. In his grievance complaint, the man asserted that when the department of corrections implied that the inmate must wait until such time, it simply means that the inmate could not be expected to be released until serving two thirds of his sentence. Moreover, the inmate also asserts that he was held twice already for the reason he needs to complete the program before he can be considered for parole.
On the other hand, the department of corrections by implying that the inmate must wait would imply he has no expectation of being released until he has served two thirds of his sentence. The inmate grievance complaint specifically requested immediate placement in the program.
By decision, the superintendent of the correctional facility denied the man’s grievance complaint, noting that the central office policy pertaining to the scheduling of inmates into the sex crimes offender treatment program states that moderate to high risk participants are placed in this program within thirty six months to their conditional release date.
The court begins its analysis with an understanding of the benefits associated with the opponents’ policy goal of placing criminal sex offenders in the treatment program as close as possible to the times such offenders are expected to be released. The implementation of the said policy goal, however, becomes problematic when a sex offender becomes eligible for optional parole release since the legal power to determine which inmates may be so released resides with the independent state board of parole rather than the department of corrections. Thus the department, the agency responsible for implementing the treatment program with the reasonable policy goal of placing sex offenders in the program as close as possible to the times such sex offenders are expected to be released, has no direct input in the determination as to when a particular sex offender will be granted discretionary parole release.
The man then appeared to three parole boards for discretionary parole release consideration. On all three occasions, the man was denied release with each board specifically noting, along with other factors, the man’s lack of sex offender/therapeutic program. More specifically, the parole denial determination stated the man have not been involved in sex offender therapy that could give valuable insight into his sexual related problems. The other parole denial determination stated the man lack therapeutic programs preparing him for release. The last parole denial determination stated the man still have not completed a much needed sex offender program. The man will presumably appear before three more parole boards before the earliest date he might be placed in the treatment program in accordance with the policy at issue in the proceeding.
The court also found that the policy of not placing moderate and high risk sex offenders in the treatment program until they are within thirty-six months of their conditional release dates effectively presumes that such inmates will not be granted discretionary parole release prior to their conditional release dates whether or not they have completed the treatment program. However, the court stated that the presumption may then become a self-fulfilling prophecy when a parole board denies discretionary parole release based, at least in part, upon the failure to complete sex offender program. Domestic Violence was not involved.
The court further state that the potential negative impact associated with the implementation of the policy denying treatment program placement until 36 months prior to conditional release date is particularly severe where the sentence structure produces a significant length time between an inmate’s initial parole eligibility date and his/her conditional release date.
While the court recognizes that each of the three parole denial determination issued to date specifically noted, in addition to the man’s lack of therapeutic/sex offender program, the serious nature of the multiple crimes underlying his convictions as well as his less than prison disciplinary record, it remains irrational and/or arbitrary and capricious for the opponents to continue to exclude the man from participation in the treatment program while he is denied to the discretionary release by parole board after upon the failure to complete sex offender program.
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