I wanted to say a few words about my recent “pro bono” legal work after celebrating “National Pro Bono Week” (October 21-27) several weeks ago. “Pro bono” is shorthand for the Latin phrase “Pro bono publico”, meaning “for the public good”. It’s work undertaken voluntarily and without payment, or at a reduced fee, as a public service.

Pro bono service, unlike traditional volunteerism, uses the specific skills of professionals to provide services to those who are unable to afford them. Such work, I’m proud to say, is most commonly associated with the legal profession. [1]

Our state bar ethics rules say that lawyers “should aspire to provide at least twenty hours of pro bono legal services each year to poor persons” and “contribute financially to organizations that provide legal services to poor persons”. However, this is a voluntary goal, unlike most other ethics rules and Court regulation of professional obligations. [2]

While pro bono work doesn’t pay the bills, it is still one of the most satisfying aspects of being a lawyer. The inherent “good karma” of helping those unable to afford legal representation, and the gratitude they and their families express is, in the words of the credit card ad, “priceless”.

In June, I took some training and volunteered to do pro bono work with a well-established pro bono organization, Prisoners Legal Services of New York, Inc. (“PLSNY”). PLSNY was formed in 1976 partially as a response to the 1971 Attica prison riot and the conditions that spawned it. PLSNY is funded by both the State government and private donations, and is headquartered in Albany where it has a sizeable staff. PLSNY also has three regional offices which together provide services to indigent prisoners in New York’s vast, far-flung prison system of 60 facilities, most in rural upstate towns, in which about 56,000 inmates are incarcerated.

Much of the assistance PLSNY provides to prisoners relates to Court review of punishment for disciplinary infractions resulting in their being segregated in “Special Housing Unit” cells, known as “SHUs” (pronounced “shoes”) or, more informally, in prison parlance, “the Box”.

According to the NY ACLU, at any one time, about 4,500 prisoners are segregated in “the Box”. About half are double-bunked and half are placed in solitary confinement for 23 hours a day in a small, windowless cell, with little human contact, often for years at a time.

Although most pro bono work PLS does with private attorneys relates to these disciplinary appeals, I was fortunate to have an opportunity to litigate a test case against the state Board of Parole regarding its denial of “medical parole” under a new law expanding opportunities for such parole.

In 2009, as part of the harsh “Rockefeller Drug Law” reforms, the “medical parole” provisions were broadened from releasing only “terminally ill” inmates – those with less than six months to live – to also allow very sick inmates convicted of non-violent crimes to be paroled if an inmate “…has been certified to be suffering from a significant and permanent non-terminal condition, disease or syndrome that has rendered [him] so physically or cognitively debilitated or incapacitated as to create a reasonable probability that he … does not present any danger to society”. [3]

While there was no Legislative History or preamble of Findings stated in the Bill or the new 2009 statute, it can readily be inferred that the principal impetus for enacting this law was not a just a newfound sympathy for elderly, sick prison inmates, but rather a desire to downsize the population and cost of the State prison system and its consequent burdens to taxpayers. Aged prisoners who need expensive medical care and special accommodations are obviously among the most expensive to incarcerate.

The way the “medical parole” program operates is that first the medical staff of the State Department of Corrections and Community Supervision (“DOCCS”), which state agency operates the prisons, certifies a prisoner as potentially eligible for medical parole. The inmate’s parole application is then referred to the state Board of Parole, a separate, quasi-independent State agency of nineteen members appointed by the Governor (which board was administratively merged with DOCCS in 2011). The Board of Parole is then supposed to apply the standards of the new “medical parole” law to determine whether the DOCCS‑certified inmate is so “debilitated” as to not pose a “threat to society”, and can therefore be released to parole supervision usually residing with his family.

I was assigned to represent “D” [4], a 72 year old inmate who has been incarcerated for over six years in an upstate prison for convictions on several white‑collar felonies: Grand Larceny in 2nd and 3rd degrees (for an investment “Ponzi scheme”). D is blind, diabetic and can not walk, leave his cell, or take insulin or blood monitoring without assistance, and is on a special diet. The prisoner had been certified by the DOCCS staff as potentially eligible for “medical parole” up to the level of the statewide office of the DOCCS’ Deputy Commissioner for Corrections and Chief Medical Officer.

In July 2011, however, the Parole Board denied the prisoner’s parole application after a shockingly brief 15 minute hearing, issuing a terse one paragraph decision the next day, opining that the prisoner was “faking” his illness, casting doubt on the medical expertise of the certifying DOCCS Deputy Commissioner, and brushing off the balancing test of the Executive Law provisions about him being a “danger to society”, determining that the crime committed by the inmate was especially heinous and that (in the Board’s opinion) the inmate had demonstrated insufficient “remorse” (a factor not even mentioned in the relevant statute).

In August, after researching the existing and new statute and case law, legislative history, the record of the Board hearing, and correspondence with the inmate and his previous attorney, I filed a lawsuit against the Board of Parole in State Supreme Court, seeking a new hearing and the inmate’s release. Under New York’s Civil Procedure Law and Rules (“CPLR”), that lawsuit is called a “special proceeding” under “CPLR Article 78” which allows for review of an administrative agency decision under a streamlined, expedited procedure.

While I’m not an experienced criminal lawyer or previously familiar with the many state criminal statutes regarding parole, I did have a lot of practice experience with CPLR Article 78 in many years of environmental law practice, usually defending the actions of state or local permit-granting agencies, and being on the same, rather than opposite sides of the case as the State’s defending Assistant Attorney Generals.

Under Article 78 Court review, a board or agency, much like a referee making a questionable call, is given significant leeway, in that their decisions must be shown to not just be possibly erroneous, but rather that the decision was “arbitrary and capricious”. In the case of the Parole Board, under extensive case law, it’s even a higher hurdle than the normal standard of review for challenging Petitioners to overcome: the Parole Board must have acted not only in an “arbitrary and capricious” manner but one “bordering on impropriety”. However, even despite this daunting standard of review, “D’s” family and I are hopeful that our Court appeal met that statutory test, and that the case will be remanded to the Parole Board to properly reconsider “D’s” application for “medical parole” under the balancing test set forth in the new statute.

The Parole Board’s hearing and the Attorney General’s papers defending their actions seemed especially ironic that the Board could be sanctimonious about the inmate’s breaking the law, while ignoring with total impunity their own legal obligations to focus on the inmate’s medical condition and balancing that against whether he posed a “risk to society”. (The AG’s brief termed the Board’s failure to follow the law’s standards and procedures as a mere “technicality” which could be presumably fixed with another, possibly token, hearing and decision).
We are awaiting a Decision from the Albany County Supreme (trial‑level state) Court in which “D’s” Article 78 appeal was filed in August (and I will update this blog when a decision is rendered and possible appeal is taken to the State’s mid-level appeals court, the Appellate Division).

During Pro Bono Week, on October 25th, I was pleased to be recognized for my work along with other volunteers at a PLSNY reception held at Albany’s venerable Fort Orange Club. The reception featured actors reading heart-rending letters from inmates confined to “the Box”, most suffering mental distress from their isolation and sensory deprivation.

I want to compliment the pro bono coordinator for PLSNY, Samantha Howell, who read the drafts of my papers and provided excellent editorial input and assistance, and also to the PLSNY’s Executive Director Karen Murtagh‑Monks who led the disciplinary appeal training sessions in June.

If you are interested in the work of PLSNY, or are a fellow attorney who can volunteer to do pro bono work, I urge you to send donations to PLSNY at 41 State St., Suite M112, Albany NY 12207 or call their offices at (518) 445-6051.

[1] http://en.wikipedia.org/wiki/Pro_bono

[2] See, NYS Rules of Professional Conduct at 22 NYCRR Part 1200, Rule 6.1 at http://www.nycourts.gov/rules/jointappellate/NY Rules of Prof Conduct_09.pdf, or http://bit.ly/UJcYMF.
Under a recently enacted proposal, however, law students seeking initial admission to the NYS Bar must complete at least fifty hours of mandatory pro bono work, presumably to both gain clinical experience, as well as performing public service.

[3] Executive Law §259-s, added by Chapter 56 of the Laws of 2009, which was a “program” or “budget” bill proposed by the Governor and introduced in both houses of the Legislature.

[4] Inmate “D” and his wife granted me permission to write about his case in this blog but requested that I not identify him by name or his place of incarceration.