Juvenile Offenders in New York Find Parole a Distant Hope

On October 24, 2017, 54-year-old Carlos Flores sat in front of a television screen and camera in a room at the Otisville Correctional Facility in Orange County, New York, while parole board commissioners Caryne Demosthenes, Walter William Smith, and Joseph Crangle watched via video conference in Poughkeepsie.

As at nine previous parole hearings, Flores expressed remorse for his role, at age 17, in a 1981 robbery-turned-murder. Though he wasn’t in the room when the killing occurred, he was convicted of second-degree murder and sentenced to 21 years to life in prison.

“At the time I was a follower, Commissioner,” he told Demosthenes. “All my life I’ve tried not to make people angry…I didn’t want to get my friend upset. I was afraid of being dumped.”

By October 2017, Flores had been incarcerated in several New York prisons for a total of 37 years — 16 years more than his minimum sentence requirement. His most recent disciplinary write-up, according to court documents, was in 1992, for disobeying an order to keep the mess hall line moving. By the time of last October’s parole hearing, he had earned a college degree, was approved to leave prison grounds to work on a cleanup crew, and received the lowest-risk score on the COMPAS Risk and Needs Assessment, a commercial tool used by the board to predict post-release success based on categories like “history of violence,” “family support,” and “re-entry employment expectations.” Flores’s 120-page parole hearing packet stated his intentions to live with family, and included a letter from a family friend promising employment, “commendable behavior reports” from a correctional officer and prison chaplain, and thirty-some certificates of completion from educational and vocational programs.

“Today, I’m compassionate,” Flores told the parole board. “I’m more able to think. I’m educated. I’m able to distinguish exactly what I couldn’t distinguish then.” At the conclusion of the interview, he asked the board to “please consider my application for the person I am today and not the kid I was then. I hope I can give back.”

The board commissioners made their decision when the conference call ended: “You have completed GED, obtained a bachelor’s degree, and have completed all of your programs,” they wrote in a report, which also noted Flores’s disciplinary record, low risk assessment score, and age at the time of the crime. Nevertheless, they said, “Your discretionary release at this time would not be compatible with the welfare of society, and would tend to deprecate the seriousness of the instant offense and undermine respect for the law.”

Flores had been denied parole a tenth time.

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Approximately 630 people in New York State are currently serving life sentences for crimes they committed between the ages of 13 and 17. And though 2012 and 2016 Supreme Court rulings made it unconstitutional to sentence a child to life without parole — unless he or she is the “rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible” — inmates and their attorneys say that New York’s parole board routinely denies parole to those convicted of crimes while juveniles, effectively making their life sentences permanent.

In March, Flores’s attorneys filed a lawsuit seeking class-action status in the Federal District Court for the Southern District of New York, alleging that the parole board’s repeated denials for these inmates violate their constitutional rights. The lawsuit, Flores et al v. Stanford, notes that the Supreme Court decisions Miller v. Alabama (2012) and Montgomery v. Louisiana (2016) are based on brain research showing that adolescent brains are not fully developed, particularly when it comes to impulse control, future planning, and risk avoidance. As a result of these two rulings, judges are now required to consider “fundamental differences between juvenile and adult minds” before sentencing someone to life without parole.

Murder convictions in New York carry an automatic upper limit of life in prison, and Flores’s lawyers argue that parole hearings for juvenile lifers are the only way out of an unconstitutional life-without-parole sentence. They are seeking a court order requiring parole commissioners to base parole decisions for juvenile lifers on demonstrated rehabilitation. They also want juvenile lifers to be provided legal counsel at their parole hearings, something no prisoners currently have, and the addition of a requirement that parole commissioners adequately read and consider their parole materials, with a chance for appeal if they did not.

Studies show that as former offenders age, they are less and less likely to commit another crime. In New York, 14.5 percent of all released prisoners return on a new conviction within three years, according to state data. This rate drops consistently as people age, down to 6.6 percent for those released between the ages of 50 and 64 (Flores’s age), and less than 4 percent for those 65 and older. And people convicted of murder are less likely to reoffend than any other group of offenders except for those convicted of business corruption: Of 325 convicted murderers released in 2012, less than 1 percent returned to prison for any new crime by 2015.

According to research by Dr. Laurence Steinberg, a leading expert in adolescent brain biology at Temple University whose amicus briefs were cited in the 2012 and 2016 Supreme Court rulings, about 10 percent of juveniles who commit serious offenses go on to become “chronic adult criminals.” However, he noted, it is impossible to predict which adolescent offenders will belong to this 10 percent, based on their crimes alone.

Despite the fact that most juvenile offenders grow out of crime, last year the New York parole board approved just 23 percent of first-time eligible parolees convicted of “youth offenses.” Other states have similar, or even lower, parole rates for juvenile offenders. In Missouri, an ongoing class-action lawsuit alleges that just 2 out of 23 people previously sentenced to juvenile life without parole were granted parole in 2016 and 2017. In Maryland, where the governor must sign off on parole for lifers, not a single juvenile lifer has been paroled in twenty years. And Florida’s parole board granted release to just 2 of the state’s 366 parole-eligible juvenile lifers in 2015. These low grant rates keep thousands of youthful offenders incarcerated into old age, despite scientific studies and court rulings that these sentences should be rare. The ACLU recommends that states make youthful offenders eligible for parole after ten years, with the “presumption in favor of release.”

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Flores moved from Puerto Rico to Brooklyn with his mother and two younger brothers in 1970, when he was six years old. The family was poor and moved around Brooklyn frequently. According to court and parole documents, Flores stayed out of trouble with the law and at school. His mother remarried when he was 10, and when Flores was a teenager, two young cousins moved into their Bushwick home. In order to help with expenses, Flores dropped out of high school and worked full-time at a pizzeria.

At that time, Flores spent many evenings with a 24-year-old neighbor, Vincent DeNicolantonio, who taught him how to drive, took Flores and his girlfriend roller skating and to Coney Island, and generally acted as an older brother figure.

On January 12, 1981, DeNicolantonio picked up Flores from work. Two other teens from the neighborhood, Richard Rivera and Jose Rojas, were in the car. The three were planning to rob a bar and wanted Flores’s help.

Flores agreed to participate and was given a gun and a pair of stockings to wear over his head. Flores, Rivera, and Rojas entered the BVD Bar and Grill in Maspeth while DeNicolantonio waited outside with the getaway car. Flores headed to the back of the bar. Rivera and Rojas went to the front, where they encountered off-duty police officer Robert Walsh, who had just finished a shift. According to witnesses, Rivera shot Walsh in the shoulder shortly after he had identified himself as a police officer, and then shot him again point blank in the temple while the officer lay on the ground. All four suspects were arrested two days later.

Flores, Rivera, and DeNicolantonio were tried together and convicted of robbery and second-degree murder. The shooter, then-16-year-old Rivera, was sentenced to thirty years to life and remains incarcerated. The getaway driver, DeNicolantonio, was paroled in 2016. The fourth accomplice, Rojas, who was 15 at the time of the crime, was sentenced to five years to life, and was paroled after serving six years in juvenile and adult facilities.

“This wasn’t supposed to happen, Commissioner,” Flores said at his October hearing. “I didn’t go in there with malicious intent, or to hurt anybody, or to take a life, but my participation played a role in this robbery and in the death of Officer Robert Walsh.”

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The Flores complaint attempts to build on a precedent-setting 2016 New York State Supreme Court decision in Hawkins v. New York State Department of Corrections and Community Supervision, which ordered the state’s parole board to consider youth as a mitigating factor in its decisions. Flores’s lawyers contend that the board’s procedural changes do not go far enough to comply with either the Hawkins court order or the Supreme Court’s ban on juvenile life-without-parole.

In 2016, Dempsey Hawkins, then 56, was serving a sentence of 22 years to life for killing his 14-year-old ex-girlfriend, Susan Jacobson, when he was 16. Hawkins had been denied parole multiple times in the sixteen years after he had served his minimum sentence, despite maintaining a clean disciplinary record and earning a college degree.

“The parole board’s mind-set is basically, you’re incorrigible,” Hawkins told the Voice. “Because you committed a crime when you were an adolescent, this means you are prone to criminality for the rest of your entire life? You’re saying that that this person is beyond redemption, beyond change, that you can somehow read this person’s entire mind and foretell his future like you’ve got a crystal ball.”

In 2014, Hawkins filed an Article 78 petition, which is used to appeal the decision of a state or local agency to the New York courts. He argued that the board was violating its own guidelines by repeatedly focusing on his original crime while ignoring his rehabilitation and future potential. A State Supreme Court judge agreed, granting a new hearing and ordering the board to consider Hawkins’s youth at the time of the crime. The decision was upheld by an Appeals Court in 2016. Hawkins was granted release at his court-ordered hearing and was immediately deported to his native United Kingdom in 2017.

The Appeals Court also ruled that a juvenile offender’s age at the time of the crime must be considered in future parole hearings, writing that the “parole board is no more entitled to subject an offender to the penalty of life in prison…than is a legislature or sentencing court.”

“We thought that we had sort of won the issue, and gained recognition from the board of parole and from the executive branch that what they had been doing was illegal and out of step with constitutional requirements,” said Issa Kohler-Hausmann, one of Flores’s attorneys, who also represented Hawkins.

But the state board, while changing its procedures to include youth as a mandatory factor, retained discretion over how heavily to weigh each factor — and continued to place the most weight on nature of the crime.

“They still have all the discretion in the world to deny people based on one factor, regardless of their age, regardless of change, regardless of re-entry plan — really, regardless of everything,” Dave George, associate director of Release Aging People in Prison (RAPP), told the Voice.

The Hawkins lawsuit came amid a larger effort to reform the New York parole board. Commissioners serve six-year terms, and are often reappointed multiple times. In 2016, five of former governor George Pataki’s appointees were still on the board, nearly ten years after he had left office. But last June, after pressure from formerly incarcerated people and advocacy groups, Governor Andrew Cuomo appointed six new commissioners and let the terms of three others expire. Several of the new commissioners have backgrounds in psychology, mental health, and substance abuse treatment, a departure from commissioners’ traditional backgrounds as prosecutors, corrections administrators, and parole officers.

Reform efforts, lawsuits, and the new commissioners appear to be making a slight difference in parole board decisions. The release rate for potential parolees convicted of violent offenses increased from 23 percent in 2015, to 30 percent in 2016, to 34 percent last year. And in March, a parole panel voted to release Herman Bell, a 70-year-old convicted of murdering two New York police officers in 1971. Some parole advocates worry the subsequent backlash to Bell’s release from the NYC Patrolmen’s Benevolent Association (the NYPD labor union) could intimidate commissioners into making more punitive — and politically safe — decisions in a process that already seems to work against eligible prisoners.

Every Tuesday and Wednesday, panels of two or three commissioners meet with 20 to 35 potential parolees over the course of eight hours, usually via video conference. In letters to the court in support of Flores and Lawrence Bartley — a former co-plaintiff in Flores’s lawsuit who was granted parole after the suit was filed, despite having been denied just three months previously — three former New York parole commissioners explained how the lead commissioner for each hearing is the only one in possession of the full parole packet, which he or she usually sees for the first time that morning. Hearings last about twenty minutes, with another five minutes for deliberations. Though the board is tasked with overseeing 12,000 hearings a year, Cuomo has left seven of nineteen possible board positions unfilled. (The governor’s office did not respond to Voice queries about the unfilled positions.)

“What really needs to change here is the standard that the board is using to evaluate candidates for parole release, and their procedures,” said Kohler-Hausmann. “We need binding law that says, this is how the board can use its power.”

Kohler-Hausmann said that despite the Hawkins ruling, the parole board has never conceded that denials based on the original crime violate the constitutional rights of juvenile lifers.

“The governor and the AG are defending this,” she said. “The attorney general has the power to not defend something he thinks is unconstitutional. He’s chosen not to. The governor has the power to decide to not fight something he thinks is unconstitutional. He’s sticking by this. They’re fighting us tooth and nail. And I think they should both be ashamed of themselves.”

In documents filed on Friday, acting New York attorney general Barbara Underwood asked the court that it not give the parole board an order regarding Flores’s upcoming appeal hearing. Underwood argues Flores has not suffered irreparable harm and already has a meaningful chance at release.

The Department of Corrections and Community Supervision declined to comment on Flores’s pending lawsuit, and the governor’s office did not respond to a request for comment.

Flores, now serving his 37th year for a murder in which he did not pull the trigger, will soon have his eleventh hearing. In the October hearing, Flores said that if he is ever released, he hopes to volunteer with youthful offenders, offering advice to possibly help them avoid the mistakes he made.

“It doesn’t stop hounding me, the memories, the horror,” he told the board then. “I know what I did was wrong. I am truly sorry and remorseful. I know I am a changed man. Through the education, and through the programs, I have learned a lot. I don’t see that 17-year-old boy no more.”