By Anne Phyllis Pinzow

Staff Writer

Robert McCain, convicted of second degree murder of 15-year-old Paula Bohovesky in 1980, a confessed rapist, maintains innocence and recants confession, sentenced to 25 years to life, due for third parole hearing in June, 2009

Richard Labarbera, convicted of second degree murder (also of Bohovesky) in 1980, maintains innocence, sentenced to 25 years to life, third parole hearing in May, 2009

Joseph McGowan, convicted of rape and murder in 1973 of seven-year-old Joan D’Alessandro, sentenced to 15 years to life, boasts of his ability to make bombs, third parole denial, next parole period to be determined but could be a minimum of six to 20 years.

Edgar Smith, confessed to committing rape as a teenager, convicted of first degree murder of 15-year-old Vicki Zielinski in 1957, appealed on not receiving Miranda rights, offered a deal to confess to second degree murder and granted parole in 1971. 1976 convicted of kidnapping with intent to rob and attempted murder. Pled to attempted rape. Last denied parole in 2007, abandoned all further legal recourse due to failing health.

The crimes of McCain and Labarbera were committed in Pearl River, NY. McGowan committed his crime in Hillsdale, NJ and the original crime of Smith was committed in Ramsey, NJ.

New York State Parole Board spokesperson Heather Groll said the current parole system is explained in Executive Law 259 I.

She said an appearance before a parole board is not a hearing in the legal sense or a judicial process. It is an interview.

"The person who is in prison will meet with up to three members of the Board of Parole (of the 19 New York.) Only the inmate and the Parole Board members, as well as a court reporter are present. The Parole Board members have with them a file that they review prior to meeting with the inmate which contains all of the information about that individual. It has to do with their crime, (their history and conduct while incarcerated), letters of support for release, letters or petitions from outside who are against the release and transcripts of any meetings with people who are victims (and families of victims) of the crime."

Groll said a parole interview is not an adversarial procedure and there are no "due process" rights attached.

"Courts have long said that a parole eligible inmate has no rights to be released to parole supervision." However during the interview, parole eligible inmates do have the right to present any information to the parole board which is believed to assist in a pro-parole decision.

There are no rules that govern testimony in favor of an inmate.

New York law states that the longest period between parole interviews is two years.

Presently, and due to ongoing legislative efforts Groll said, victims and their family members who respond to being informed about upcoming parole interviews, have a meeting with a Parole Board Commissioner as well as someone from the state Victim Impact Unit. There may be a court reporter who records the meeting so that a transcript is included in the file being considered by the Parole Board.

She said this unit works to insure that the victim and family testimony is complete and that they are informed of the parole board decision.

When a decision is made, the first person notified is the inmate; the second is the victim or victim’s family.

"Considering the impact of the crime on the victim and the victim’s family is a huge part of what the parole board looks at." Any member of the Parole Board can meet with victims or family members and these meetings are generally scheduled before it is known who will be sitting on the panel for the inmate interview.

Neil Buccino, spokesperson for the New Jersey Parole Board did not respond to questions concerning the specifics of New Jersey parole procedure. However, from news articles and records, it appears that unlike New York, New Jersey parole boards are given discretion to set longer periods between parole board appearances though these can and have been challenged in the courts by the inmates.

According to Urban Institute, a nonpartisan economic and social policy research organization, "Despite its widespread use, remarkably little is known about whether parole supervision increases public safety or improves reentry transitions. Prior research (done by the Bureau of Justice) indicates that fewer than half of parolees successfully complete their period of parole supervision without violating a condition of release or committing a new offense, and that two-thirds of all prisoners are rearrested within three years of release.

"To date no national studies have compared the criminal activity of prisoners who are supervised after release to that of their unsupervised counterparts."

While it has been observed that for lesser crimes as well as some drug related crimes and robbery, parole can work, the study found that supervision bears little if any affect on the likeliness of paroled violent offenders to repeat their crimes.

Budget cuts, increased arrests and convictions and escalating prisoner populations in deteriorating facilities have been considered by the public, and law enforcement professionals as being incentives to parole some prisoners despite the violence of their offenses.

Aware of this, the families of the victims have petitioned the public, their elected officials and testified to prevent release of inmates from whose hands they’ve suffered. These tactics have generally worked. Yet due to the ex post facto aspect of the State and US Constitution, their victories are short lived and their efforts must be repeated along with the pain and horror, when they are allowed to offer testimony for a parole board’s consideration.

Since the 50s, more so in recent years, there has been legislation proposed insuring stricter prison sentences and parole parameters including longer minimum periods between periods of eligibility for parole for convicted criminals whose crimes and victims have been in certain classes.

A sampling of those laws in New York are:

A926 sponsored by Richard L Brodsky authorizes a sentence of life imprisonment without parole for multiple or serial rape offenders. The law was referred to the Committee on Codes on January 3, 2007 and January 9 of 2008

S6825 sponsored by Andrew Lanza requires that all family members of a crime victim and all interested parties who want to give a victim impact statement to parole board members be allowed to do so

It passed the senate on March 4, 2008 and was referred to the Assembly Committee on Codes on March 4, 2008

S 425 sponsored by Kenneth P. Lavalle was introduced on January 7, 2009. It increases from 24 to 60 months, the time for which reconsideration for parole shall be determined.

A182 (Erin’s Law) sponsored by Joan Christensen January 7, 2009 establishes a Class A-1 Felony (rape, intentional murder, criminal sexual acts or incest, depraved indifference) of a child (under 14) for which the sentence will be life imprisonment without parole.

Rosemarie D’Alessandro (mother of Joan) is fighting for a 35 year parole eligibility requirement for murder/rapists where the victim is under 14.

One of the most well known pieces of legislation concerning parole is Joan’s Law, passed in 1997 in New Jersey and signed by then governor Christie Whitman. It was made a federal law in 1998 when it was signed by President Bill Clinton.

The law was sponsored in New York by Senator Tom Morahan (R-C-I, New City), and signed into law in 2004 by Governor Pataki. The law mandates a minimum sentence of life in prison without parole for criminals who kill children under age 14 while committing a sex offense.

Morahan has also sponsored a law (S 2671) that prohibits the parole of any inmate convicted of homicide unless five members of the parole board are present at the interview (now it is three.)

As to legislation to aid victims and their families in fighting parole of inmates convicted before these recent laws were passed, Morahan said in a phone interview it would take massive legislative measures.

Presently, "Other than notification and guaranteeing their rights (to testify) unless you change the whole concept of parole…any law you would enact would only go forward, not retroactive."

Morahan said there are bills insuring that victims and victims’ families are informed by the District Attorney when their assailant is up for parole and that they have the right to be heard.

S 2671 is being expanded to give the right to be heard to victims and their families when their assailant is up for parole and that the whole board would have to hear that testimony. They are only heard by courtesy now.

Morahan said in response to his shock when Kathy Boudin convicted of her involvement in the 1981 Brinks Robbery was released in August of 2003, he proposed S 2672 on February 26, 2009. This would require "the division of state parole to issue a detailed written explanation including the factors and reasons considered in the decision to release an inmate from prison within one week of such determination." Presently explanations are only made when parole is denied.

Morahan said that parole decisions should be made on a case by case basis, without strictures limiting the Parole Board’s discretion concerning the length between hearings for the inmate being interviewed.

"We understand fully the agony of the families who have to appear every two years to keep these killers in prison…I think the judges should make these indeterminate sentences more permanent." Instead of 25 years to life, it should be life, he said.

He said those who constructed the parole system felt that people in prison would have no motivation to reform themselves if there was no chance to be released.

"I really don’t have a clear cut answer…My job is to make sure that whatever parole system we have, it’s open to the families to make their case, open to anyone else who wants to make their case and that there are sufficient numbers of people there (at least five), and that if they put forward the information they based the decision on to release them so they (the Parole Board) would stand more accountable."