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August 3, 2012

Split Second Circuit panel rejects varied constitutional attacks on NY parole practices

An interesting split circuit panel ruling comes today from the Second Circuit in Graziano v. Pataki, No. 11-116 (2d Cir. Aug. 3, 2012) (available here).  Here is how the majority per curiam opinion gets started:

Plaintiffs-Appellants Peter Graziano, James Buckley, Mark Malone, Robert A. Harris, William Walker, Aaron Talley, Maurice Murrell, Steven Ho, and Brian Jacques (collectively, “Plaintiffs”) filed this class action against Defendants-Appellees George Pataki, the Governor of the State of New York; Robert Dennison, the Chairman of the New York State Division of Parole; and the New York State Division of Parole (collectively, “Defendants”) on behalf of themselves and all other New York State prisoners convicted of violent felony offenses.  Plaintiffs allege that they have been denied parole as a result of an “unwritten policy” to deny parole to violent felony offenders, and that this unofficial policy violates three provisions of the federal constitution: (1) the Due Process Clause of the Fourteenth Amendment; (2) the Equal Protection Clause of the Fourteenth Amendment; and (3) the Ex Post Facto Clause.  Because we conclude that Plaintiffs have failed to state a claim for violation of their rights under any of these provisions, we affirm the December 10, 2010 judgment of the United States District Court for the Southern District of New York granting Defendants’ motion to dismiss Plaintiffs’ complaint pursuant to Rule 12(c) of the Federal Rule of Civil Procedure.

Here is how the dissenting opinion by Judge Underhill, a district judge sitting by designation, gets started:

The allegations in this case are staggering: According to plaintiffs, the former Governor of New York and the head of the State Parole Commission conspired to convert hundreds of indeterminate sentences into determinate sentences of life in prison without the possibility of parole.  The complaint alleges that the defendants adopted an unwritten policy to deny parole to all prisoners convicted of class A-1 felonies, no matter their record of rehabilitation or fitness for release. They did so to advance their own “political and economic agenda.”  First Amended Compl. ¶ 2.  Their purported scheme circumvented the commands of both legislators and judges; the legislature instructed the Parole Board to consider eight factors when determining whether offenders are ready to rejoin their communities and judges imposed open-ended sentences believing that the Parole Board would do so.  But the Governor’s purported policy flouted these directives.  It allegedly turned parole hearings into sham proceedings -- inmates could present evidence and call witnesses, but they would waste their breath because the policy tied the commissioners’ hands.  As a result, the Governor and the Parole Board consigned hundreds of people to life in prison.

At least, that is what the complaint requires us to assume.  But the majority downplays these factual allegations in the complaint and reframes the plaintiffs’ legal claim for relief.  Because, when viewed in the proper light, the complaint states a plausible claim for a violation of substantive due process, I respectfully dissent.

August 3, 2012 at 03:32 PM | Permalink


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Posted by: Legal CV | Aug 4, 2012 4:38:50 AM

The opinion is flatly wrong on its Ex Post Facto analysis. The decision relies on case law that has been pretty obviously overruled by Garner v. Jones, 529 U.S. 244 (2000), which held (contrary to the Ex Post Facto case this decision relies on)that the Ex Post Facto Clause does indeed apply to parole regulations. It's a shame so many of these cases are litigated without the help of an attorney. The panel in this case and the panel in the case it relied on just missed Garner.

Posted by: anon | Aug 4, 2012 9:34:05 PM

Wonder if experts ever calculated the probability of panels of mostly former prosecutors (appellate courts) ruling against the brotherhood.

Because it appears that filing an appeal in America amounts to an optimistic act akin to buying a lottery ticket.

Posted by: John K | Aug 4, 2012 10:37:04 PM

Any thoughts on how the outcome in Duffy v. Evans, 2012 WL 4327605 (S.D.N.Y. Sept. 19, 2012) can be reconciled with the Second circuit's decision in Graziano?

Posted by: Duffy | Dec 19, 2012 3:30:41 PM

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