October 17, 2004
A Back Door Out of Rikers, Suddenly Famous
By BENJAMIN WEISER and KEVIN FLYNN, NY TIMES

The Local Conditional Release Commission was born more than a decade ago with seemingly the best of intentions. It would show mercy for certain nonviolent prisoners in New York City by freeing them from jail, an act that would also save money and reduce prison overcrowding.

And acting like a local parole board, that is just what the commission did. Hundreds of low-level criminals were freed each year.

But over time, as crime declined, jail populations slumped and the political environment shifted, the panel of mayoral appointees began to release fewer and fewer inmates, a tiny fraction of the thousands of cases it reviewed each year - so few that some prosecutors and the mayor himself lost track of the panel's existence.

Until a few weeks ago.

With its release of a former state senator, Guy J. Velella, only three months into a one-year jail term for public corruption, the panel, which has always lived in the backwaters of the city's criminal justice system, suddenly took center stage. Its rules, its criteria for release, its record keeping, its motivations and its political bent, or lack thereof, have all been the subject of much speculation and analysis in recent weeks.

What emerges from an examination of the commission's activities is a picture of a board that has had almost unfettered power to free prisoners and that continued to operate in the shadows of city government with little accountability and virtually no oversight.

Though the obscure body was served by a small staff and a director who was paid $135,000 a year, city officials were unable last week to explain whether the panel has written rules, the extent of its records on its deliberations, or whether it met in person to deliberate.

What is more, of the 15 people the panel freed early over the past five years, there are questions about whether, under the board's own informal guidelines, five were even appropriate candidates for release. For example, in 2000, the panel released Mark Gastineau, a former New York Jets player, even though he had been jailed for an assault on his wife and had prior arrests and probation violations. Two weeks later, the panel reconsidered and ordered Mr. Gastineau returned to jail. And in three cases - those of Mr. Velella and his two co-defendants in a bribery conspiracy- city investigators have stepped in to review whether favoritism was at work.

Indeed, some criminal justice officials are asking why the panel, which has a $386,000 yearly budget and employs several city workers, even continues to exist. "There's no public accountability," said Bridget G. Brennan, the city's special prosecutor for drug crimes, who said she believed that at least one of the defendants her office had prosecuted was later released by the commission.

"The way it's structured,' she said, "just belies the principles of openness and impartiality that are really critical to assure people that our system of sentencing is just."

Response to criticisms by Ms. Brennan and others has been hard to come by. The panel's chairman, its three other members and its executive director all resigned under fire in recent days. Besides some limited remarks several weeks ago, they have declined to comment or have not returned phone calls. City officials, too, have refused to comment, in part because of the continuing investigation and in part because they depict the panel as an independent, quasi-judicial body.

The new chairman appointed by the mayor last week, Daniel Richman, a Fordham University law professor and a former federal prosecutor, has said that it is not his place to discuss how the board might have performed in the past, and that he has not begun to ponder how he views the board's future.

"My job at this point," he said, "is to understand the statutory framework for the board and comply with it."

Mayor Michael R. Bloomberg, who said he had not even heard of the commission before Mr. Velella's release, even though his administration had appointed two of its members, has said that the panel has "outlived its useful purpose" and that he would support legislation to abolish it.

None of this controversy seemed likely when state lawmakers created local conditional release commissions in 1989. The panels in New York and in counties throughout the state were seen by the Legislature as a way to save money and relieve overcrowding in local jails. Under the law, prisoners serving sentences of 90 days to a year could apply for early release after serving 60 days.

"As originally envisioned, it definitely served a worthwhile purpose," said Jerome M. Becker, a former city criminal court judge who was the panel's chairman from 1990 to 1994.

In the early years, Mr. Becker said, the commission would not grant early release to an inmate with a long record or violent background. Prisoners who were released had to agree to strict conditions, like wearing ankle bracelets or entering drug treatment. A prisoner's release could be revoked if he or she violated the release terms, and recidivism was extremely low, Mr. Becker said.

Mr. Becker said that the commission, which has operated out of an office at 33 Beaver Street in Lower Manhattan, met regularly, issued annual reports and consulted with prosecutors, judges and others on prisoner releases. "We got opinions from everybody," Mr. Becker said. In those early years, Mr. Becker recalled, about 200 prisoners a year were released.

"It was not a secretive commission," he added. "The defense bar was aware of it. The district attorney's office was aware of it. The judges were aware of it."

Former Mayor David N. Dinkins recalled, "At the time, it seemed to make a lot of sense."

In recent weeks, the commission has refused requests from The New York Times for copies of its annual reports, as well as other documents that could help illuminate its inner workings, including statistics on the precise number of cases reviewed and the number of prisoners freed. In a terse statement, the commission said that in 1991, it was advised by the City Law Department that it was not required to make public the rules that govern its decision-making.

It is clear, though, that the number of releases dropped sharply in the end of the administration of Mayor Rudolph W. Giuliani, with 15 releases from 1999 to 2004, according to the limited data provided by the panel. One city official said that the drop was due in part to the use of more restrictive criteria in assessing cases. One change, for example, was that prisoners could be considered only if they had no prior record, the official said.

Mr. Giuliani's spokeswoman, Sunny Mindel, said there had been no policy by Giuliani's administration to tighten the release criteria because the board was independent.

The board was "not high on everyone's radar," she said.

"There was knowledge of its existence," she said, "and a view that it might be somewhat anachronistic to the extent that it was created to solve the problem of overcrowding, which had been eased."

But she said it was no surprise that the prisoner releases fell. "Mayor Giuliani's successful approach to crime reduction was widely known and shared by many," she said.

Steven M. Fishner, a former assistant district attorney who was the city's criminal justice coordinator in Mr. Giuliani's second term, was critical of the commission's role, which he called a "backdoor way to get people out of jail."

He noted that the commission typically reviewed cases just months after a judge had already decided the sentence, based on information from prosecutors, lawyers and probation officers.

Of the Velella decision, he said, "It's bad public policy that's given birth to a bad individual decision that is rightly getting the attention it's getting because it undermines confidence in government."

Michael Jacobson, who directed criminal justice agencies under Mayors Dinkins and Giuliani, said that given the city's once crowded population of prisoners, which peaked at more than 20,000 in the early 1990's, "even when they were releasing a lot, it was still a little."

"It's not like it ever really served any purpose as a prison-population valve," Mr. Jacobson said. "It served a purpose of at least letting some folks go who could clearly be handled just as well, if not better, in the community."

Besides the trickle of prisoners now being freed, 18 more inmates were offered early release in the past year but did not take it, Jack Ryan, the spokesman for the city Probation Department, has said. That is because accepting early release requires an inmate to agree to one year of supervision by a probation officer, and inmates facing only a month or two on their sentences may choose to serve their time and avoid the year of probation.

Earlier this year, there was a move in Albany to abolish the panels, spurred by outrage after an upstate panel released Mary Beth Anslow three months into a one-year sentence for operating an illegal day care center where a 3-month-old girl died. But it fell victim to the political and policy differences between the State Senate and the State Assembly.

In February, the Senate, which is dominated by suburban and upstate Republicans, and tends to take a hard line on law and order, voted 59 to 0 to abolish the commissions. A memorandum in support of the bill noted "the lack of standards in determining eligibility for release."

Among those voting was Senator Velella, who had not yet resigned. And the main sponsor of the Senate bill, Michael F. Nozzolio, an upstate Republican, wrote a letter last summer advocating Mr. Velella's release by just such a commission.

But in the Democratic-controlled Assembly, which tends to advocate shorter prison terms and more alternatives to prison for nonviolent inmates, the bill went nowhere. It was referred to the corrections committee and died without being introduced.

Assemblyman Jeffrion L. Aubry, a Queens Democrat who is chairman of the corrections committee, said that the Assembly had "a different view, institutionally, on what should be done" with the commissions. He cited the early goal of easing overcrowding in jails, and the desire to give municipalities bearing the brunt of the costs of housing inmates a chance to release nonviolent or ill prisoners.

Mr. Aubry said that although the Assembly was troubled by allegations that the commissions' power had been abused in some cases, it did not believe that the commissions should be abolished.

Starting next month, he said, he plans to hold hearings to study the commissions and how they work, the requirements for winning release, and how involved local officials are.

Until last week, the members of the panel in New York City included its chairman, Raul Russi, and Amy Ianora, who were both appointed by Mr. Giuliani. Mr. Bloomberg appointed the other two members, Irene Prager and Jeanne Hammock. The vote to release Mr. Velella was three in favor and one, Ms. Hammock, abstaining. Mr. Russi has said that the release was granted as a compassionate measure because Mr. Velella was a broken man who was calling commission staff members from jail.

Not surprisingly, the commission's relatively few current defenders include some former prisoners who were released by the commission.

Judith Smiley, who pleaded guilty in 2002 to custodial interference for her role in the abduction of a baby boy in 1980, was serving a six-month sentence in the Rikers Island infirmary because she had health problems and was in a wheelchair. A probation officer from the commission got in touch with her, she said.

"I asked how they got my name, because I had not applied for it," Ms. Smiley said by phone from Albuquerque, where she lives. "He said that in essence, one of the commissioners was following the case in the paper and thought that I was a candidate for the program."

Ms. Smiley added, "It was a godsend." She pointed out that she had expected to serve four months (a prisoner's sentence is typically reduced by one-third for good behavior), and the early release meant that she had to serve only two months - "not that I was counting," she said.


Michael Cooper contributed reporting from Albany for this article

November 9, 2004
Freeing Ex-Senator Violated the Law, City Panel Is Told
By JENNIFER STEINHAUER, NY TIMES

LINK

The New York City Law Department has determined that an obscure mayoral panel acted illegally when it released former State Senator Guy J. Velella from jail three months into his yearlong sentence, paving the way for Mr. Velella and four other Rikers Island prisoners who were released by the commission this year to be sent back to jail, the commission announced yesterday.

Mr. Velella and the others have been informed that they must reapply for early release by next Tuesday, and that three days later the board will decide whether to grant the requests. If it does not, the five are likely to be ordered back to jail.

The September decision to let Mr. Velella out of jail was an embarrassment for Mayor Michael R. Bloomberg, who said he had never before heard of the panel, the Local Conditional Release Commission, even though his office appointed two of its four members. Mr. Bloomberg quickly ordered an investigation and forced all the commission members to resign, replacing them with the five members who would consider Mr. Velella's new application.

The commission had worked in relative obscurity for years in the depths of the City Department of Probation, considering whether to grant early release to first-time offenders serving short sentences in city jail.

Its release of Mr. Velella, who was sentenced to Rikers Island for conspiracy to commit bribery, ignited outrage among elected officials and others who thought it smacked of favoritism for a politically connected former lawmaker and his associates.

Mr. Velella, a Republican, and two other inmates connected to his case, Manual Gonzales and Hector Del Toro, were 3 of only 13 people released by the panel in the last six years; thousands of inmates have been denied such release.

The City Department of Investigation determined last week that the commission had violated numerous procedures when it released Mr. Velella and most of the others whose applications it had considered. The department found that the commission often did not have the necessary quorum of three members present when it granted an early release, and that the panel allowed Mr. Velella to make a second application for release too soon after it rejected his first application; state rules require a 60-day period to reapply.

Based on those findings, the city's Law Department determined that Mr. Velella, Mr. Gonzales and Mr. Del Toro were released on applications that were invalid, and the new members of the commission have concurred.

"The findings in the Department of Investigation report and the legal opinion that we've been given by the Law Department make at a minimum a prima facie case for the legal invalidity of all releases done as a result of illegal voting procedures by this commission," said Daniel C. Richman, the new chairman of the commission.

Yesterday, the new commissioners sent letters to the five people released this year, notifying them that they must reapply. The other two cases concern a person who served time for criminal possession of drugs and another who was convicted of forgery.

If the commission determines that the release of these former prisoners should not be upheld, they are likely to be told to turn themselves in. However, lawyers for at least two of the three released in the Velella case said they would fight any attempt to return their clients to jail.

"Guy Velella did absolutely nothing wrong to obtain his conditional release," said Charles Stillman, Mr. Velella's lawyer. "The fact of his eligibility to be released in as little as 60 days was fully known to the district attorney and the court. Every step taken on his behalf was in accordance with procedures set down by the Local Conditional Release Commission and oral advice from its senior staff. Guy Velella has paid and is paying for his wrongdoing."

Frank Ortiz, who represents Mr. Gonzales, said: "Every time you don't like the way a decision comes out, do you put in a new commission to change it?" Mr. Del Toro's lawyer, Steven R. Kartagener, had no comment.

Perhaps hinting that the commission has already determined how it will vote on at least some of the cases, Kerri Martin Bartlett, a member of the commission, said, "It is fair to say these matters will be litigated."

Creation of the boards around the state was authorized in 1989 to help relieve jail overcrowding, a problem that has since abated. Some lawmakers and other elected officials, including Mr. Bloomberg, would like to see the boards abolished.

Prior court cases suggest that New York City could prevail in sending Mr. Velella back to jail.

In one recent case, an inmate's application for early release in Rensselaer County was initially rejected, but the inmate reapplied less than 60 days later and won release. Because the law states that inmates must wait 60 days after being rejected to apply again, the State Supreme Court found the release invalid and the inmate was sent back to jail. Mr. Velella and Mr. Del Toro each reapplied for release shortly after their first requests were denied.

In a case resembling Mr. Velella's, a member of the commission in Livingston County decided to release a politically connected inmate without consulting the panel's two other members. In that case, the inmate was returned to prison.

The members of the New York City board said yesterday that they would discontinue the practice of automatically considering every prisoner who qualifies for release and instead require an application from anyone who wants consideration. That process is actually required by statute, the commissioners said, yet one more way in which the former commissioners failed to observe the law.

Without having applications and supporting materials, the board members said, they had nothing to base their decisions on outside of what the sentencing judge already used in the case. To make the process more open to those without education, connections or legal savvy, Mr. Richman said, the commission would reach out to jail inmates to let them know the commission exists and how to apply. "We suspect what will happen is that we will get fewer applications," Ms. Bartlett said.

Yesterday, Mr. Bloomberg said he did not want to prejudice the board's decision. "I didn't think he should have been released to begin with," he said of Mr. Velella, "because I think elected officials should certainly not be treated better than anybody else."

Go to parentadvocates.org on Velella

October 19, 2004
Vote Releasing Velella May Be Illegal, Council Report Says
By MIKE McINTIRE, NY TIMES

The little-known commission that released former State Senator Guy J. Velella from jail most likely violated state law by voting without enough of its members present, an informal practice that it apparently followed for years, according to a City Council report released yesterday.

The Council report, based largely on the accounts of two former members of the Local Conditional Release Commission, throws into question the legality of Mr. Velella's release three months into a one-year sentence. It also provides the most detailed picture yet of the workings of the commission, a mayoral-appointed panel that operated with little oversight for 15 years. Now, though, its decision to release Mr. Velella has prompted calls that it be abolished, led to the departure of its members and executive director, and brought inquiries by the city and the Manhattan district attorney.

In fact, the Council report reveals that Raul Russi, the chairman at the time, warned the commission members that releasing Mr. Velella, a powerful Republican from the Bronx, could prove controversial, but that he was worried that the disgraced former senator might commit suicide if forced to remain at Rikers Island.

Still, the political storm ignited by his release appears to have caught the commission off guard; one member told Council investigators that she had been "unaware of the extent of Mr. Velella's public prominence."

Although three of the commission's four members are needed to act on an inmate's application for release, the report found that just two members met on Sept. 22 and voted to release Mr. Velella and a co-defendant in his corruption case, Hector Del Toro. One of those members, Mr. Russi, later telephoned a third member, Amy Ianora, who concurred with the decision; the fourth member abstained.

After a hearing on the report yesterday at City Hall, council members said they believed there was legal cause to reverse the early release of Mr. Velella and his co-defendants.

"We believe that it's likely that there are grounds for either the commission or the courts to really annul the release of these gentlemen," said Yvette D. Clarke, a Brooklyn Democrat who is chairwoman of the Committee on Fire and Criminal Justice Services.

At the same time, Ms. Clarke said, the Council inquiry has turned up no evidence of what she called "widespread collaboration for corruption in this case." She suggested that while the commission may have acted imprudently, there did not appear to have been a conspiracy involving all four of its members to skirt the law to benefit Mr. Velella.

The crux of the Council's report is its determination that the commission probably broke the law when it failed to assemble at least three members. In addition to Mr. Russi, the only other member present was Irene Prager. Another member, Jeanne Hammock, abstained and was not in attendance, and neither was the fourth, Ms. Ianora.

That even a few of the commission's members met in the same room seems to have been a break from its custom. The report said that for years staff members simply circulated standard forms to the members, who checked a box indicating approval or disapproval of a release without ever getting together for a formal vote. Over the last five years, the commission has released 15 people out of thousands of eligible inmates.

Yesterday, Daniel C. Richman, a Fordham Law School professor tapped by Mayor Michael R. Bloomberg to take over as commission chairman, said he concurred with the Council's view that state law dictates "there ought to be three members sitting there voting" when a release is considered.

"My reading of the statute seems to suggest that there should be three people present," Mr. Richman said, adding that not having a quorum, "doesn't sound like a good idea, it doesn't sound like the way a commission ought to be run, it doesn't sound like the way I would run the commission."

The Council chose not to subpoena the commission's former members after being told that doing so could jeopardize the criminal inquiry already under way, so it was left to Mr. Richman to answer questions from council members, who expressed anger at the release of Mr. Velella and frustration over their inability to get clear answers to how it happened.

Councilman David Yassky, a Brooklyn Democrat, said Mr. Velella's early release confirmed for many New Yorkers "their most cynical suspicions about government." He belittled the rationale offered by Mr. Russi that he felt sorry for Mr. Velella, and noted that no similar explanation has been offered for the commission's decision to release Mr. Velella's two co-defendants, Mr. Del Toro and Manuel Gonzalez. The commission voted to release Mr. Gonzalez a month earlier, in August, at a meeting whose legality has also been called into question.

"It seems to me unlikely that the three people most worthy of compassion in Rikers Island were these three people who happened to be co-conspirators in this bribery case," Mr. Yassky said. "I think there is very, very good reason to suspect that something else went on here."

Mr. Richman studiously avoided commenting on the commission's past actions, but he said he was attuned to criticism that the commission, created in 1989 as a way to relieve prison overcrowding and save money, has devolved into little more than an escape hatch for the famous and well-connected.

Mr. Richman, who was questioned by council members on how he was selected to replace Mr. Russi, said he had two brief telephone conversations with Mr. Bloomberg, as well as discussions with Rose Gill Hearn, the Department of Investigation commissioner. At one point, after saying that the mission he was given was to "keep this thing out of the newspapers," Mr. Richman caught himself and did some backpedaling.

"Actually, no, that wasn't the mandate I was given," he said. "My goal, personally, is to keep it out of the newspapers. I would like to be a little-known commission once again."