Law Requires Board to Assess Rehabilitation in Parole Rulings – John Caher, NY Law Journal

Nearly half a century after the Kitty Genovese murder shocked the conscience of New York City and became a national symbol of urban apathy, her killer is coming up for parole for the 15th time. But this year the deal is a bit different for Winston Moseley, her assailant.
For the first time since he became eligible for parole in 1984, Mr. Moseley will appear before a parole board that now is being directed to look beyond his crime and criminal record, and consider if the 76-year-old who committed hideous crimes 47 years ago is the same person seeking freedom.
Nestled into budget legislation this year was a revision of Executive Law §259(c) that requires the parole board to establish and apply “risk and needs principles to measure the rehabilitation of persons appearing before the board” and the likelihood of success should the offender be released. In the past, the board “could” consider those factors; as of today it “must” consider them.
Mr. Moseley will be among the first inmates evaluated under the revised system when he meets the parole board the week of Oct. 31. Advocates who have long promoted parole reform are watching the process closely.
“We have always had a list of factors the board was supposed to consider, such as the seriousness of the crime, criminal history and participation in [rehabilitative] programs,” said Philip M. Genty, a professor at Columbia Law School and director of its Prisoners and Families Clinic who has written about the new law for the New York Law Journal (“Changes to Parole Laws Signal Potentially Sweeping Policy Shift,” Sept. 2).
The new law requires the parole board to adopt procedures that incorporate a growing body of social science research about assessing post-release needs and recidivism risks, according to Mr. Genty.
“The devil is in the details and it will depend on what regulations actually get written, but the change both rationalizes and modernizes the parole laws in ways that are long overdue,” said Mr. Genty.
The risk assessment tool is under development and is expected to be in use by November, according to Peter K. Cutler, a spokesman for the new Department of Corrections and Community Supervision, which was created this year through the merger of the prison and parole systems.
Mr. Moseley is hardly a sympathetic figure.
Records indicate that in the early morning hours of March 13, 1964, he was cruising the streets of Queens when he confronted Ms. Genovese, the 28-year-old manager of a Jamaica Avenue sports bar, after she got out of her red Fiat and began walking the 100 feet to her Kew Gardens apartment. Ms. Genovese attempted to escape, but Mr. Moseley caught her and stabbed her in the back twice as she screamed for help.
Mr. Moseley fled briefly, but when no one came to Ms. Genovese’s aid he resumed his hunt, following her trail of blood. He found her collapsed in a hallway, where he raped and robbed her, and then stabbed her another 15 times, including several times in the throat in an effort to silence her, according to the prosecution.
The New York Times, in an account that is disputed but nevertheless bred a legend, reported at the time that more than three dozen New Yorkers heard and ignored Ms. Genovese’s continual pleas for help as Mr. Moseley chased her down and attacked her again and again.
A month earlier, according to the prosecution, Mr. Moseley broke into a home, shot a 24-year-old woman six times and had sex with her dead body. He later explained that he had an “uncontrollable urge to kill” and claimed to have committed at least five rapes and 35 burglaries before his encounter with Ms. Genovese, according to the Queen’s District Attorney’s Office.
Mr. Moseley was sentenced to the death penalty, although the sentence was reduced to 20 years to life.
Then, in 1968, while Mr. Moseley was serving time at Attica state prison, he was brought to nearby Buffalo for minor surgery and escaped. He broke into a home in Buffalo, tied up a man and raped his wife.
At his most recent parole interview, in 2009, the board cited Mr. Moseley’s “heinous” offense, “total disregard for the life of another human being” and apparent lack of insight into why he killed Ms. Genovese or committed the rape in Buffalo, although he did stress that he sent letters of apology to The New York Times for the Genovese murder and to the Buffalo News for the rape.
The board noted in passing that Mr. Moseley has a good disciplinary record, and made “positive use” of his time in prison by earning a bachelor’s degree in sociology and working as a teacher’s assistant. But the panel, basing its decision on Mr. Moseley’s violent past, concluded that his release would be “incompatible with the welfare and safety of the community.”
New Procedures
Advocates welcome the new paradigm and are eagerly awaiting the first batch of parole board determinations based on the revised standards.
“This has the potential to really make a difference,” said JoAnne Page, president and chief executive officer of The Fortune Society, a social services and advocacy group that promotes successful re-entry from prison.
“Static facts—what a person’s record was, the nature of the crime—should not be the only things looked at when someone is appearing before the parole board,” she said. “What [the new law] does is require looking at rehabilitation and likelihood of success on release and use of risk guidelines. If this is actually implemented, it will make an enormous difference.”
Robert N. Isseks, an attorney in Middletown who has for years pursued a federal class action alleging that the parole board ignores current criteria and effectively acts as a re-sentencing body, said he has doubts.
The parole board routinely states in its determinations that it has considered requisite statutory criteria, and courts generally accept its assurances when inmates challenge a denial of parole release.
“I’d like to be optimistic,” Mr. Isseks said. “I hope [the new law] will force them to do what they are supposed to do, but I can’t predict. In the hundreds of decisions I have seen, there is plenty of reason to be skeptical.”
An annual report issued by what was then the Division of Parole late last year stated that in the 2009-2010 fiscal year, 40 percent of the eligible inmates were released on parole (22 percent at the first opportunity) but only 9 percent of violent felony offenders.
The 2006 federal case filed by Mr. Isseks in the Southern District, Graziano v. Pataki, 7:06-cv-00480, was dismissed last December by Judge Cathy Seibel. Mr. Isseks is appealing and also attempting to reinstate a state court action pending before the Appellate Division, Third Department.
Mr. Isseks said the new requirements may put a heavier burden on the parole board to establish that it has performed more than a cursory review.
“These new guidelines might help the judges make more informed decisions, and give them something more to look at and consider,” Mr. Isseks said.
Ms. Page agreed.
“This provides grounds for challenging a parole board hit on the basis of not having looked at evidence of rehabilitation or not having administered a recent risk assessment,” she said. “It opens doors, provides a basis from which to challenge [a denial of parole]. It is a step in the right direction, and something that has been needed for many, many years.”
Ms. Page said the new criteria may force the parole board to take into consideration that A-1 felons released on parole are at an extremely low risk of re-offending. In fact, state figures show that offenders who serve a sentence for murder are the least likely to commit a felony once they are paroled.
“People change,” Ms. Page said. “If there is anything I know from my 22 years heading Fortune, it is that people who have been menaces to the community have the capacity to become good neighbors and make a positive difference in the world. And the people who committed the most horrific crimes and served decades [in prison] are beyond the age when people tend to recidivate.”
At the age of 76, Mr. Moseley is statistically unlikely to re-offend, but the Queens District Attorney’s Office opposes his release and maintains “there is no question that if Winston Moseley is released he will again commit crimes against society and the citizens of New York.”
In a March letter to Mr. Moseley’s parole officer, Executive Assistant District Attorney Charles A. Testagrossa described the inmate as a “callous, vicious, violent man who is a serial rapist, burglar and multiple murder,” and who has no “compassion or sorrow for his victims and is not capable of living a law-abiding life.”
The letter, written before the change in law, references nothing that occurred since 1971, when Mr. Moseley took part in the Attica prison riot.

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2 Responses to Law Requires Board to Assess Rehabilitation in Parole Rulings – John Caher, NY Law Journal

  1. lori says:

    if a man can do all those awful murders, get taken to a hospital and breakout to commit yet another murder what gives him the right to even get out of prison, regardless of his damb age.. let him rot in hell!!!!!! He should have been sentenced to LIFE WITHOUT PAROLE.

    • CURE-NY says:

      Can a man of 76 years old, still be a threat to society??… costs more to keep our elderly in prison….it is costing millions of tax dollars to the state of NY… they age, they get sick…especially in prison where health care is the worse…..not saying his crime was not awful….just saying, how long before we forgive and atone for the crimes committed??…and how long do we pay for the elderly and sick….Lifers have the lowest recidivism rate of any incarcerated individuals….less than 4 per cent…..however, your viewpoint taken….and respected..

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