Michael Hilton had been back in New York City for two years, after serving a 17-year sentence for robbery at an upstate prison, when the coronavirus pandemic struck. His only daughter died of the virus in the spring, and at 64 and with a host of medical conditions, including HIV, Hilton feared for his health at the homeless shelter where his parole officer had ordered him to stay. “The shelter is the last place I need to be,” he told me in an interview. “Guys are very irresponsible in those types of situations, they don’t wear masks and none of that.”

So Hilton found a room elsewhere and informed his parole officer of his new address. A warrant squad arrested him there in September for violating the conditions of his parole. It was Hilton’s third violation: Each time, he was accused of refusing to stay at a shelter, even though each time he had alerted his parole officer to his change of address. The officer told Hilton that he could only move to a residence the officer had approved — simply announcing a new address was not sufficient. “I wasn’t violent, I wasn’t committing no crime,” Hilton told me. “They came and got me where I was staying. I wasn’t running from him.”

Hilton spent the next month at Rikers Island, one of 7,295 people to face arrest over a parole violation from January to October of this year, according to figures from the Department of Corrections and Community Supervision, which runs both New York state’s prisons and its parole system. Many are charged with what are known as “technical” violations, which involve no new allegations of criminality but rather a failure to abide by a sweeping series of restrictions that are imposed on those living under supervision. People on parole can face a technical violation charge for failing to check in with a parole officer, failing to report a change of address, violating a parole-imposed curfew, or testing positive for alcohol, among other infractions. “I violated my parole condition, I’m not arguing that,” Hilton said, defending his choice not to live in a shelter system where a disproportionate number of New Yorkers have died of Covid-19. “But it’s a violation that didn’t require me going back to Rikers.”

Even as New York’s incarcerated population has decreased significantly over the years, along with the number of people reincarcerated because of parole violations, the state has continued to reincarcerate parolees at almost twice the national average, according to an analysis by Columbia University’s Justice Lab. In New York City, hundreds of people have landed at Rikers Island over noncriminal behavior even as the pandemic made the jail, at one point in the spring, one of the largest Covid-19 hot spots in the country. But the coronavirus only exacerbated a broken parole system that has long served as one of the greatest drivers of incarceration in New York state, sending thousands of people back to jails and prisons every year, and setting them back in their efforts to readjust to life after incarceration.

“I violated my parole condition, I’m not arguing that. But it’s a violation that didn’t require me going back to Rikers.”

Rachel Connors, a DOCCS spokesperson, confirmed that parole officers can and do charge with violations individuals who refuse to stay at housing that has been approved by DOCCS, but argued that parole officers try not to place people in shelters until all other options are exhausted.

“The parole revocation process is not one that the Department takes lightly, and to insinuate that parole violations are issued for any other reason than the best interest of both the parolee and the public is an afront [sic] to the hardworking men and women who work to support the successful reentry of individuals under community supervision across New York State,” she wrote in an email. “It is unfortunate that some have chosen to misconstrue and weaponize the parole revocation process to imply that individuals under community supervision are unfairly and unjustly sent back to prison for minor mistakes, forgetfulness, or misunderstandings.”

Participants holding a banner reading COVID BEHIND BARS = DEATH at the rally in Rikers Island on June 19, 2020.

Participants holding a banner reading, “Covid Behind Bars = Death,” at the rally at Rikers Island on June 19, 2020.

Photo: Erik McGregor/LightRocket via Getty Images

Before the pandemic temporarily reduced admissions to New York City jails, parole violators were the only segment of the population that was increasing, making up about 16 percent of the overall city jail population in 2018. Across the state, some 1,600 people were held in jails on any given day awaiting the resolution of a technical parole violation charge. And the first two people who died last spring after contracting Covid-19 while incarcerated at Rikers were there on technical parole violations. The men — Michael Tyson and Raymond Rivera — had been arrested, respectively, for failing to report to a parole officer and for leaving a residential drug treatment program and not checking in with a parole officer. They contracted the virus as their cases languished amid a sluggish bureaucracy that was further bogged down by the pandemic.

“That’s how the system works, you’re running on their time.”

Rivera, 55, who was battling depression and addiction, was arrested at his family home in August 2019, and spent the next eight months at Rikers waiting for his violation charge to be resolved. His partner of 30 years, who asked not to be named to protect her privacy, still does not understand why his case dragged on for so long. “I’d ask him, ‘What’s going on?’ and he’d say, ‘I have to go to court again,’” she told me. “I said, ‘What’s taking so long? It shouldn’t take so long.’ But he could only tell me what he could tell me, because he had to wait for his court date. He said he would have one in October, then it went from there to another date, and by that time it was March, and then April.”

“They just kept prolonging it, I really don’t know why it took so long,” Rivera’s son, Raymond A. Rivera, told me. “He’d just say, ‘That’s how the system works, you’re running on their time.'”

In the early days of the pandemic, Rivera had complained to his partner that precautions were lax at Rikers. “ ‘Guys don’t cover their mouth when they cough,’ he was telling me things like that,” she said. “Next thing you know, he wasn’t feeling well.” Rivera went to see a nurse about his worsening cold and fever, “but they thought he was OK,” his partner said. When his condition deteriorated, he was moved to the Bellevue Hospital Center, where people who become seriously ill at Rikers are hospitalized.

It was there that his partner, who didn’t visit Rivera at Rikers because of the anguish it caused her to see him incarcerated, saw him for the first time since his arrest. As he got sicker, she took off work and spent days on the phone with lawyers and doctors, who first learned that Rivera had Stage 4 cancer and then told her that he had contracted the coronavirus.

Then on April 3, parole officials signed off on Rivera’s release while he was still at the hospital. “All of a sudden, the paperwork came through,” his partner said. “He wasn’t going to die in there a prisoner.”

Rivera’s son went into his room to tell him the news. “He just said, ‘Yeah?’” his partner recalled. “But he was tired, he had to go to sleep.” He died at 4 a.m. the following morning — “a free man,” she said. 

Because he had technically been released a few hours earlier, Rikers does not count Rivera’s death as having happened in custody, his son said. The New York City Department of Correction, which runs the jail, did not respond to a request for comment. Connors, the DOCCS spokesperson, said that Rivera’s case is still under investigation.

New York Gov. Andrew Cuomo speaks during the daily media briefing at the Office of the Governor of the State of New York on July 23, 2020 in New York City.

New York Gov. Andrew Cuomo speaks during the daily media briefing on July 23, 2020 in New York City.

Photo: Jeenah Moon/Getty Images

“A Tripwire Back Into Incarceration”

Justice reform advocates, as well as a growing number of parole and probation officials, have denounced the parole system as both costly and harmful, and a proposed bill aiming to reform parole in New York — known as the “Less Is More Act” — has sat before state legislators for two years. But while other efforts to reduce incarceration have prompted backlash from police, prosecutors, and some elected officials, including a bail reform law that was passed and then rolled back earlier this year, there seems to be growing consensus that New York’s current parole system just does not make sense.

Dozens of community groups, as well as prosecutors, former corrections officials, and elected leaders — including Mayor Bill de Blasio and the New York City Council — have thrown their support behind the proposed parole reform legislation. And while advocates fear that the backlash around bail reform has caused “criminal justice fatigue” in Albany, they hope the growing consensus around parole reform will help move the bill to a vote in the upcoming legislative session. New York Gov. Andrew Cuomo said in 2018 that “New York jails and prisons should not be filled with people who may have violated the conditions of their parole, but present no danger to our communities.” And last month, the top prosecutors in the Bronx, Brooklyn, and Manhattan signed a joint op-ed endorsing Less Is More and calling on the probation and parole systems in New York to be “substantially downsized, less punitive, and more hopeful, equitable, and restorative.”

“Community corrections has become an overly burdensome and punitive driver of mass incarceration,” wrote the prosecutors — Darcel Clark, Eric Gonzalez, and Cy Vance — referring to the supervision of people convicted of crimes outside a correctional setting. “Rather than being a rehabilitative alternative to incarceration (in the case of probation) or a release mechanism from prison for good behavior (in the case of parole), community corrections too often serves as a tripwire back into incarceration.”

Connors, the DOCCS spokesperson, dismissed growing criticism that New York’s parole system is costly and counterproductive as “opinion, and in no way based in fact.”

She noted that the number of people charged with parole violations has decreased by about 47 percent so far this year, as compared to last year. This follows an overall downward trend, with parole violation warrants resulting in reincarceration declining by 14 percent between 2015 and 2019. The department issued 15,696 parole warrants in 2019, including 4,466 for technical violations; of this year’s 7,295 parole warrants, as of October, 1,108 were for technical violations. Connors also said that in response to the pandemic, the department began to release low-level technical parole violators from local jails and cancel warrants for people meeting certain criteria, resulting in the early release of 3,449 people.

She said that technical parole violations are not issued after a first infraction but as “the result of consistent and escalating violations of an individual’s parole.” “This is simply not true,” said Laura Eraso, a staff attorney at the Legal Aid Society’s Parole Revocation Defense Unit, which represents the vast majority of people detained on parole violations in New York City. Two clients Eraso recently represented received a technical violation at the first infraction, she said, noting that officers’ propensity to issue a violation can vary widely.

“Regardless of what DOCCS’s numbers show in terms of a decrease in parole violations, it’s still too many.”

DOCCS does not count as technical violations warrants that were issued for “absconding,” which is defined as intentionally avoiding supervision by failing to maintain contact with one’s parole officer. Absconding is considered a more serious violation than failing to check in with a parole officer, but in practice, critics of the parole system say there is little that distinguishes the two charges, and parole officers have wide discretion when choosing between them. In 2019, absconding accounted for 38 percent of parole warrants issued, while technical violations accounted for 28 percent, according to DOCCS figures.

Eraso noted that a significant number of check-ins between parolees and their parole officers are taking place by phone this year because of the pandemic, which means that fewer people have been missing them and are receiving violations for failure to report. “Regardless of what DOCCS’s numbers show in terms of a decrease in parole violations,” she added, “it’s still too many.”

Kendra Bradner, director of the Probation and Parole Reform Project at Columbia Justice Lab, said that the decrease in the number of parole violators incarcerated during the pandemic was driven by New York City, where city officials strongly advocated for it — an effort consistent with that of other states during the pandemic. Still, she noted, the decrease did not happen consistently across the state.

“That’s the bare minimum that we should be doing in a global pandemic, not putting people in congregate care settings for noncriminal violations,” Bradner said. “And the fact that there’s such a big discrepancy between New York City and the rest of the state is not a good sign for continued engagement in this way after the pandemic.”

“A Foot on Your Neck”

People on parole say that the constant threat of reincarceration is a burden that makes adjusting to life outside that much harder, and that rather than support them, the parole system appears to be designed to force their failure.

“It’s causing a big strain on a lot of guys,” said Shawn Dunn, who was sent back to jail this fall for a technical violation of his parole. “The same people that are supposed to be helping you are the ones that are pushing you away and threatening you, that’s all they do. All they say is, ‘If you don’t do this, you’re going back to jail.’”

Dunn said that he had just over a year left on his five-year parole, no police contact since his release, and a job. But he had received multiple parole violation charges, once for being outside after curfew and two more times because his parole officer wanted him to stay at a shelter and he did not. When Dunn moved in with his girlfriend recently, his parole officer objected because of a two-decade-old domestic violence charge. The shelter, he told me on a call from Rikers, felt like prison. “The shelter system is designed just like a corrections system. The same setup, there’s officers in the hallway, it’s like you’re in a correctional facility all over again,” he said. “It’s like it never ends, it’s a never-ending cycle.”

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Dunn has spent the last three months in jail as his case moves slowly through the adjudication process. “The correctional system right now is clogged up with guys that are on parole,” he said. “Most of the violations that they are charging people with are nonsense: You failed to report because you didn’t get there on time, or they came by and you went to the store and weren’t inside the house at 8 o’clock. I am a grown man, 58 years old, but I have to be in the house by 8 p.m. and I can’t come out before 8 a.m. What if I have to be at an interview at 8 a.m.? If I leave the house before 8 a.m. I’m in violation. That doesn’t make any sense.”

The bureaucratic intransigence of a system ostensibly intended to help people reintegrate into society was also in display in the case of Kareem, a man at Rikers who asked to be identified only by his first name. Kareem, a father of five young children, was arrested in October for failing to report to his parole officer. At a preliminary hearing, an administrative judge agreed to resolve the charge by ordering Kareem to attend a program by the Fortune Society, an organization that works with formerly incarcerated people. But on the day Kareem was scheduled to call into his release hearing from Rikers, jail staff failed to take him to a phone booth — something attorneys say happens frequently. Because Kareem wasn’t on the call, the judge rescheduled the hearing to the end of December, six weeks later. Knowing that the judge had already agreed to his release, Kareem had told his children that he would be home by Thanksgiving. “They were expecting me to come home this week,” he told me on a call from Rikers a few days before the holiday. “I didn’t tell them yet.”

Even the many people who are ultimately released end up spending significant time in jail, endangering their jobs, homes, and relationships.

Kareem was set to also spend Christmas at Rikers, but after what Eraso, who represented him, described as “a ridiculous amount of email harassing” on her part, the judge moved up Kareem’s release hearing. He left Rikers on December 1, two months after his arrest. It was a rare, belated win, but also an indictment of the arbitrariness and cruelty of the parole system. Connors said that it is jail staff’s responsibility to bring people held at Rikers to their hearings and that it is DOCCS policy to adjourn hearings when that doesn’t happen. DOC did not respond to a request for comment.

“It’s the absurdity of it: How do you tell a person that you represent that this is what’s holding you, and yes, the judge said that they would release you, but I’m sorry, you couldn’t be brought to a phone, so now you have to sit in for six more weeks?” said Eraso. Because of the long process of having a parole violation charge litigated — about 100 days — even the many people who are ultimately released end up spending significant time in jail, endangering their jobs, homes, and relationships and significantly damaging their efforts at reintegration.

“It has catastrophic consequences and it’s so avoidable,” said Eraso. “You don’t need to destroy someone’s life to get them back on track. This shows you in so many ways that DOCCS has no consideration for somebody’s successful reintegration — because if they did, they would not put people in this situation.”

“The only way to describe it is like they have their foot on your neck, they want you to do things their way,” said Hilton, who was ultimately released from Rikers, just days before his mother’s death. “I was back on track, but you are already set up to come back to prison, even before you get out.”

EG-Parole-Spot-Edit

Illustration: Evangeline Gallagher for The Intercept

A Grim Record

The parole system is supposedly intended to provide a transition phase for people who were released from prison after serving the minimum time required by their sentence or those who were sentenced to a period of post-release supervision in addition to their prison time. But in practice, parole has morphed into a “back-door” incarceration system, said Lorraine McEvilley, director of Legal Aid ‘s Parole Revocation Defense Unit. “People’s understanding of parole is that this is going to be a service that can help people reacclimate out of incarceration and become stable members of the community and therefore, never fall back into the criminal justice system,” she said in an interview. “Instead what we have is a system that hangs the jail’s keys over the person’s head.”

Nationwide, there are some 4.4 million people under some form of supervision like probation or parole — double the country’s incarcerated population, which is already the largest in the world. The U.S. parole and probation system costs $2.8 billion annually, but rather than keeping people from returning to prisons and jails, the system has funneled them back into them at staggering rates. In 2017, 1 in every 4 people incarcerated in the country was sent back to prison over a technical violation.

“What we have is a system that hangs the jail’s keys over the person’s head.”

New York state holds one of the country’s grimmest records when it comes to reincarcerating people for technical violations of parole, second only to Illinois. And New York’s system is at odds both with nationwide efforts to reform parole and with the state’s own push toward a reduction of its incarcerated population. There are about 35,554 people currently under supervision in the state — roughly equal to the overall number of people incarcerated in state prisons.

Reincarcerating parole violators cost New York taxpayers more than $600 million last year. And overall, technical parole violations make up nearly one-third of all prison admissions in the state. Racial disparities in the parole system are also stark: Black New Yorkers are between 50 and 100 percent more likely to be charged with parole violations. And Black and Latino New Yorkers remain under supervision longer than white New Yorkers, and they end up at Rikers over parole violations at 12 and four times the rate, respectively, of white New Yorkers.

On April 3, a day before Rivera’s death, Legal Aid and the New York Civil Liberties Union filed a federal class-action lawsuit against Cuomo and DOCCS, demanding the release of more than 1,000 people held at Rikers on parole violations. The groups argued that automatically detaining people while they waited for their parole violation hearings was unconstitutional because DOCCS regularly failed to hold a hearing within the required 90 days. Because of the pandemic, they added, those hearings had been suspended almost completely. The DOCCS spokesperson declined to comment on the litigation, which is pending, but said that, in 2019, the average time between a parole warrant being issued and a final hearing was 67 days.

Meanwhile, Rikers’ overall population is once again growing, after a temporary effort to reduce it because of the pandemic, even as the city faces a second wave.

After his death, Rivera’s partner and son filed a complaint with Rikers and tried to understand why it had taken months, and his illness, for his charge to be resolved. “They did not give us any answers whatsoever,” said his son. “He was doing fine, he was a nonviolent offender. … He kept saying, ‘I’m coming home soon.'”

“For something technical, something like you just missed a date, I’m not saying that’s not irresponsible, but there should be something less, something not so harsh,” Rivera’s partner said. “You can still violate them but just do it in a different way, where they are not just put away and left there without a key, and everyone turns their back.”

Less Is More

Until 2011, the New York parole system was run by the state’s Board of Parole, an administrative body separate from the Department of Corrections. But under the current system, DOCCS adjudicates parole violations and also oversees incarceration. That creates “an institutional resistance from the same agency that locked you up to let you out,” said McEvilley.

That setup is not unique to New York, yet the high levels of parolee reincarceration indicate that DOCCS is more inclined to resort to incarceration than departments in other states, Brander noted. “The department has clearly made the decision that incarceration is an appropriate response to noncriminal activity,” she said. “And other departments have made different choices.”

Unlike in other circumstances in the criminal justice system, like misdemeanor cases, there is little room for flexibility around parole violation adjudication. People accused of violating the terms of their parole can have warrants issued for their arrest and be detained without bail for an indefinite period of time, even when the violation is merely technical. At a preliminary appearance, within 15 days of one’s arrest, a DOCCS officer often rubber-stamps a parole officer’s claim of “probable cause” that the terms of the parole were violated. The person then remains in custody until a final hearing can take place, within 90 days, before an administrative law judge, who can decide to revoke the person’s parole and sentence them to further incarceration or release them.

“You are stuck in this rigid and unforgiving sentencing scheme,” said Eraso. “It just really sets people back.”

The reforms would merely bring New York in line with what other states are already doing.

The Less Is More Act currently before state legislators would eliminate the use of incarceration for most technical parole violations and cap at 30 days incarceration for more serious violations. It would allow those accused of violating parole to see a judge upon detention and ask to be released back into the community while awaiting further adjudication. And those who do end up detained on a violation charge would be entitled to a speedier hearing. The proposed legislation would also allow people to earn credits off their parole — reducing their time under supervision by 30 days for every 30 days spent without violations, similarly to how incarcerated people can earn time off their sentence for good conduct.

The reforms would transform New York’s parole system but merely bring the state in line with what other states are already doing, advocates noted.

“That’s a thing that’s been done in deep, deep, deep red states,” said Bradner, referring to the credits off one’s parole time. She also argued that the reforms must be accompanied by a larger investment in post-release support that should be run at the community level, rather than through the parole agency itself. “There needs to be investment in actual services and support for folks who are coming home from prison,” she said. “Having a parole officer ask you the same five questions every week is not the answer to make that a less difficult transition.”

The proposed legislation would have made it unlikely for Rivera to end up at Rikers because of his addiction or to remain there for as long as he did. “He had a family, he had a home,” his partner said. “He was supposed to come home.”

For Kareem, it would have meant spending Thanksgiving with his children, rather than waiting in jail for two months for a release that a judge had already agreed to grant. “The way the system is going right now isn’t working,” he told me from Rikers. “Everyone’s waiting for them to figure it out.”