Jail Breaks

By David Feige

Like a lot of New Yorkers, I was gratified to see the Local Conditional Release Commission come under scrutiny last month, though perhaps for a different reason. The commission is a great idea gone horribly wrong. That's not because its erstwhile members freed Guy J. Velella, the former state senator convicted of conspiracy and bribery - but because they freed so few of the thousands of ordinary people who qualify for conditional release.

Indeed, the worst mistake in the Velella episode is the talk of disbanding the commission, not Mr. Velella's early freedom. The solution to the panel's improper procedures and favoritism of late is not the elimination of conditional release, but its expansion.

Conditional release in New York State is essentially a year of probation in lieu of the balance of a jail sentence. The program, created 15 years ago by the State Legislature in part to ease crowding in jails throughout the state, is open to inmates who have served more than 60 days of a jail sentence that exceeds 90 days. (Jails, as opposed to prisons, generally hold people serving sentences of a year or less.)

In fiscal year 2004, 6,832 inmates in the city's jails were eligible for conditional release, according to the city's Department of Investigations. Three were released. A year earlier, two inmates were released. A year before that, one. And in fiscal year 2005, which began in July, just five inmates have been released. Indeed, Mr. Velella and his co-defendants counted toward a disgraceful total of 13 people released by the panel in the last six years.

Had the commission been more active, had it taken its role seriously, and had it been courageous enough over the years to release more eligible inmates, its decision to release Mr. Velella wouldn't have seemed so nakedly political.

I say courageous, because in New York being tough on crime has become such a reflex that we've lost our perspective on criminal justice. Freeing an inmate, no matter how deserving his or her case, can be a political hot potato. Most politicians, judges, parole board members, and conditional-release commissioners will opt to safeguard their careers rather than grant early release, parole or clemency.

The commission's actions over the past 10 years reflect this loss of perspective. In 1990, the panel granted conditional release to 206 of 1,326 applicants. As the decade progressed, however - and with it Mayor Rudolph W. Giuliani's crackdown on minor, quality-of-life offenses - the number of yearly releases dwindled. The commission became little more than a patronage perk for the wealthy and an empty promise for the indigent.

Meanwhile, the city's jails are still disproportionately full: In the last 10 years, the crime rate has plummeted by 66 percent, according to the Police Department. Our jail population, however, has decreased at only one-third of that rate, because the system is filled with people serving ever-longer sentences for ever more minor offenses. As a result of Mayor Michael R. Bloomberg's "Operation Spotlight" program, even habitual fare-beaters, public marijuana smokers and shoplifters (including those who steal food) can spend months behind bars. Jail sentences for these petty offenses were up by 48 percent last year, with sentences of more than 30 days up by 75 percent.

Tonight, nearly 14,000 people will be sleeping in New York City jails. Many are mentally ill, some have AIDS, a few are elderly and infirm. Thousands are first-time offenders; the conditional-release commission's newly appointed members estimate that 18 percent of Rikers Island inmates have no prior criminal record. Many deserve conditional release from the harsh sentences doled out by some criminal court judges. After all, there is a legitimate question as to whether it makes sense to spend thousands of taxpayer dollars to incarcerate someone who has stolen $7 worth of Advil, to cite a sentencing I witnessed.

Sending Mr. Velella back to jail won't even the score, even if it is accompanied by a review of all the applications rejected by the panel's former members. Most of those who may have been wrongly rejected have completed their sentences by now. The focus should be on creating a strong, independent and reputable Local Conditional Release Commission.

It is reasonable to be angry that a politician got special treatment. But it is wrong to join the chorus of condemnation without understanding that eliminating the commission will also end one of the few avenues of post-conviction relief left to poor people behind bars.

The solution is a compassionate conditional-release panel that will listen to the reasonable pleas of indigent, incarcerated New Yorkers - not the hollow gesture of sending Guy Velella back to jail.

David Feige, a public defender in the Bronx and Soros Justice Media Fellow, is the author of the forthcoming book "Indefensible."

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