United States District Court, S.D. New York
PAUL BETANCES, LLOYD A. BARNES, GABRIEL VELEZ a/k/a GABRIEL BELIZE, individually and on behalf of all others similarly situated, Plaintiffs,
BRIAN FISCHER, in his capacity as Commissioner of the New York State Department of Correctional Services (DOCS), and in his individual capacity; ANTHONY J. ANNUCCI, in his capacity as Deputy Commissioner and Counsel for DOCS, and in his individual capacity; LUCIEN J. LECLAIRE, JR., former Acting Commissioner of DOCS, in his individual capacity; GLENNS. GOORD, former Commissioner of DOCS, in his individual capacity; JOHN/JANE DOES 1-25 (DOCS Supervisory, Training, and Policy Personnel); ANDREA W. EVANS, in her capacity as Chair and Chief Executive Officer of the New York State Division of Parole (DOP), and in her individual capacity; MARK MANTEi, in his capacity as Executive Director of DOP, and in his individual capacity; ROBERT J. DENNISON, former Chair ofDOP, in his individual capacity; ANTHONY G. ELLIS II, former Executive Director of DOP, in his individual capacity; GEORGE B. ALEXANDER, former Chair and Chief Executive Officer of DOP, in his individual capacity; and JOHN/JANE DOES 26-50 (DOP Supervisory, Training, and Policy Personnel), Defendants.
Matthew D. Brinckerhoff, Esq., Hayley Horowitz, Esq., Emery Celli Brinckerhoff & Abady, LLP, New York, NY, Counsel for Plaintiffs.
Michael J. Keane, Anna Hehenberger, Christina Chinwe Okereke, James Brennan Cooney, Assistant Attorneys General State of New York, New York, NY, Counsel for Defendants.
OPINION AND ORDER
SHIRA A. SCHEINDLIN, District Judge.
Beginning in 1998, New York mandated that certain violent felonies be punished by a determinate prison sentence followed by a mandatory term of parole, known as post-release supervision ("PRS"). The governing statute did not require that the term of PRS be announced by the judge at sentencing. In thousands of cases where the judge did not impose a term of PRS at sentencing, the New York State Department of Correctional Services ("DOCS") imposed PRS on convicted felons either before or as they were released from prison and the Department of Parole ("DOP") then enforced those terms.
On June 9, 2006, in Earley v. Murray,  the United States Court of Appeals for the Second Circuit held that the administrative imposition of PRS by DOCS violates the federal constitutional right to Due Process. The court explained that "[o]nly the judgment of a court, as expressed through the sentence imposed by a judge, has the power to constrain a person's liberty, " and that "[t]he additional provision for post-release supervision added by DOCS is a nullity."
Plaintiffs in two related actions brought claims pursuant to section 1983 of Title 42 of the United States Code against current and former high-ranking officials at DOCS and DOP. Plaintiffs claim that in the years following Earley, state officials subjected them to various unlawful conditions and custody by continuing to impose the terms of PRS that had been declared unlawful.
Defendants moved to dismiss the complaint on the grounds that because plaintiffs' constitutional rights were not "clearly established" at the time that those rights were allegedly violated, state officials were entitled to qualified immunity for their actions. On February 10, 2012, I held that though some New York state courts were in disagreement over the reach of the Earley decision, there was never any disagreement or confusion about the core constitutional holding announced by Earley : terms of PRS imposed by the executive branch were nullified and if the State wished to re-impose them, it could seek resentencing before a judge. Therefore the defendants were not entitled to qualified immunity. Defendants appealed this ruling, and the Second Circuit affirmed.
Plaintiffs now move to certify a class pursuant to Federal Rule of Civil Procedure 23(b)(3) on behalf of individuals who were convicted of various crimes in New York State courts on or after September 1, 1998; were sentenced to terms of incarceration but not to terms of PRS; but were nonetheless subjected to enforcement by defendants of PRS terms after the maximum expiration dates of their determinate sentences after June 9, 2006.
At the class certification stage, district courts must engage in a rigorous analysis of the underlying facts in order to determine whether the plaintiffs have satisfied the requirements of Rule 23. The following factual findings, based on a preponderance of the evidence, are made only for the purpose of adjudicating this motion and will not be binding on the jury at trial.
A. Lead Plaintiffs
1. Paul Betances
On July 20, 2004, Paul Betances pleaded guilty to robbery in the first degree and a violation of probation, and was sentenced to a determinate term of five years for the robbery, and a concurrent term of one to three years for the violation of probation. He was not sentenced to any term of PRS. He was released from prison on April 24, 2008 after serving six-sevenths of his sentence, and a five-year term of PRS was administratively imposed. The maximum expiration date of his sentence was January 14, 2009. On November 8, 2008, he was arrested on a drug charge. On December 15, 2008, while awaiting trial on this charge, he was charged with violating the terms of his PRS based on his alleged drug possession and violation of curfew. He pleaded guilty to a misdemeanor and was sentenced to a term that expired on July 9, 2009. Additionally, on February 23, 2009, DOP imposed a sentence of twelve months incarceration based on the violation of the terms of his PRS. On June 26, 2009, he filed a Petition for a Writ of Habeas Corpus seeking to vacate the administratively-imposed five-year term of PRS, as well as the twelve-month sentence of incarceration based on the violation of his PRS. While this Petition was pending, on July 6, 2009, counsel for DOP sent a notice to the sentencing court, seeking resentencing. However, on July 24, 2009, the habeas court granted relief and ordered him to be immediately released. He was released on July 29, 2009. Thus, Betances was incarcerated for twenty days solely for the violation of administratively-imposed PRS.
2. Lloyd Barnes
On August 15, 2000, Lloyd Barnes pleaded guilty to attempted burglary and attempted assault and was sentenced to concurrent sentences of five years and six years incarceration. He was not sentenced to any term of PRS. He was released on October 19, 2005, at the maximum expiration date of his sentence, and a five-year term of PRS was administratively imposed. On December 12, 2007, he was arrested on a drug charge and remanded to custody. He pleaded guilty on January 7, 2008 and was sentenced to thirty days in local custody, which would have resulted in his release on January 12, 2008. However, because he was also charged with violating his parole, he was not released until approximately February 19, 2008. He was then restored to PRS. On October 20, 2008, counsel for DOP sent a notice to the sentencing court requesting resentencing. The sentencing court resentenced Barnes on November 14, 2008 to the same determinate sentences imposed in 2000, and declined to impose any term of PRS. He was released from parole supervision shortly after November 20, 2008. Thus, Barnes was incarcerated for approximately thirty-eight days based solely on a violation of administratively-imposed PRS.
3. Gabriel Velez
Gabriel Velez pleaded guilty on February 20, 2001 to attempted robbery and was sentenced to a five-year determinate term of incarceration. He was not sentenced to any term of PRS. He was released from prison on July 2, 2004, after serving six-sevenths of his sentence, and subjected to an administratively-imposed PRS term of five years. On July 1, 2008 he was arrested and charged with drug possession (his fourth arrest since his release) and remanded to custody. On September 29, 2008, while he was still in custody based solely on his violation of PRS, he filed a Petition for a Writ of Habeas Corpus. On October 10, 2008, the court granted relief and directed that Velez be released. Although the DOP requested the court to transfer the matter to the sentencing court, the habeas court declined to do so.
B. Defendants' Policies of Imposition and Enforcement of PRS
In 1998, the New York Legislature enacted Penal Law § 70.45, which mandated PRS terms for individuals convicted of violent felonies. However, many judges did not include PRS as part of the sentence imposed. Between 1998 and 2008, if the commitment orders of an individual were "silent" regarding PRS, DOCS imposed the maximum period of PRS allowed by § 70.45.
On June 9, 2006, the Second Circuit held in Earley that the Due Process Clause prohibited administratively-imposed terms of PRS, because only a judge may impose a sentence. The court stated that any administratively-imposed PRS was a "nullity" and never a part of the sentence. The court directed the district court on remand to "excis[e] the term of post-release supervision... and reliev[e] [the plaintiff] of any subsequent penalty or other consequence of its imposition." The court added that the ruling did not preclude the state from moving to modify the plaintiff's sentence to include the mandatory PRS term.
Subsequent to this ruling, DOCS defendants analyzed records for approximately 40, 000 inmates who had been sentenced to determinate terms of incarceration to identify those who had been subjected to a term of administratively-imposed PRS. This analysis revealed approximately 8, 100 individuals whose sentence and commitment orders did not support the imposition of PRS, 1, 800 of whom had been released from custody. Of the entire group of inmates with administratively-imposed PRS, 546 were identified as incarcerated solely on the basis of PRS violations.
In July 2008, the New York State Legislature enacted Correction Law § 601-d, which provides in relevant part, "[w]henever it shall appear to the satisfaction of the department that an inmate in its custody or that a releasee under its supervision, is a [person without a judicially-imposed PRS sentence], the department shall make notification of that fact to the court that sentenced such person, and to the inmate or releasee." DOCS and DOP also launched a "resentencing initiative" pursuant to a Memorandum of ...