April Volunteer Feature: Kaye Scholer; O'Melveny & Myers; Paul, Weiss, Rifkind, Wharton & Garrison Help Former Inmates Who are Vulnerable to Reincarceration

Friday, April 18, 2008

  • The Legal Aid Society

In 1998 the New York State Legislature created a period of "parole" for violent felony offenders with the addition of a period of post release supervision ("PRS"). PRS required submission by former inmates to a period of supervision following release with restrictions placed on various activities. Many sentencing judges failed to inform the defendant of the PRS component and the court's commitment papers did not indicate its existence. Standard practice for the State Department of Correctional Services ("DOCS") has been to add PRS onto the sentence when the prisoner reached the state correction facility. In 2005 The NY Court of Appeals ruled in People v. Catu, 4 N.Y.3d 242 (2005) that the court's failure to mention PRS made the plea constitutionally defective, and the following year the Second Circuit ruled that only a sentencing judge could impose PRS. Early v. Murray, 451 F.3d 71 (2nd Cir. 2006).

Notwithstanding these decisions, hundreds of former inmates still are re-incarcerated or remain at risk of re-incarceration for failure to comply with PRS. Legal Aid's Parole Revocation Defense Unit (PRDU) has challenged successfully many of the illegally imposed PRS administrative determinations but is able to represent only a fraction of this population. To expand its limited resources the PRDU established a pro bono partnership with Kaye Scholer, O'Melveny & Myers, and Paul Weiss to initiate Article 78 and Writs of Habeas Corpus Petitions. In just a few months, the firms' attorneys have commenced litigation on behalf of fifteen (15) former inmates.

In addition to its lead role in individual representation, Kaye Scholer by former chair David Klingsberg has been appellate counsel in a definitive Court of Appeals case. Acting as amicus curiae, the firm argued that PRS that is not pronounced nor judicially entered by the sentencing judge is constitutionally and statutorily infirm. We are awaiting the Court's decision knowing that success will mean that 8400 former inmates, hundreds of which are incarcerated, no longer will be vulnerable to PRS and its punitive features.