In 1987 the NY Legislature addressed prison overcrowding by enacting the Earned Eligibility Program, codified under Correction Law § 805. That section of law, in its currently existing form, reads as follows:

"Earned eligibility program. Persons committed to the custody of the department under an indeterminate sentence of imprisonment shall be assigned a work and treatment program as soon as practicable. No earlier than two months prior to the expiration of an inmate's minimum period of imprisonment, the commissioner shall review the inmate's institutional record to determine whether he has complied with the assigned program. If the commissioner determines that the inmate has successfully participated in the program he may issue the inmate a certificate of earned eligibility. Notwithstanding any other provision of law, an inmate who is serving a sentence with a minimum term of not more than six years and who has been issued a certificate of earned eligibility, shall be granted parole release at the expiration of his minimum term or as authorized by subdivision four of section eight hundred sixty-seven unless the board of parole determines that there is a reasonable probability that, if such inmate is released, he will not live and remain at liberty without violating the law and that his release is not compatible with the welfare of society. Any action by the commissioner pursuant to this section shall be deemed a judicial function and shall not be reviewable if done in accordance with law."

As the emphasized provisions above state, an eligible inmate who has been granted an Earned Eligibility Certificate (“EEC”) must be granted parole at his or her first appearance before the board, unless the board determines both that: (1) that there is a reasonable probability that, if such inmate is released, he or she will not live and remain at liberty without violating the law; and (2) that his or her release is not compatible with the welfare of society.

By employment of the operative word “shall” in the above statute, it conveys what is known as a constitutionally protected liberty interest expectation that parole release will be granted. This area of law was addressed in depth by the U.S. Supreme Court in both Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979), and later in Board of Pardons v. Allen, 482 U.S. 369 (1987), while reviewing similarly worded statutes conveying to inmates a reasonable expectation that discretionary release to parole supervision would be granted at a time certain.

Notwithstanding the high Court’s favorable decisions in both Greenholtz and Allen, the New York Board of Parole regularly denies discretionary release to inmates who have been awarded EECs. In doing so, in effort to circumvent the mandatory release provisions of § 805, it usually simply sets forth in its written decision that it is of the opinion that, if released, the inmate would not live and remain at liberty without further violating the law and that his or her release would be incompatible with the welfare of society. But, that is not enough; another body of decisional law suggests that such subjective findings must be based on some supporting tangible evidence. For example, while such a finding and conclusion might be reasonable in the case of an inmate who has a long history of burglaries or robberies for which he or she has served time previously, only to re-offend, such a determination and conclusion would be wholly unreasonable in the case of a first time offender who, prior to their incarceration, led an exemplary life.

The Board of Parole regularly denied presumptive discretionary release to inmates who have earned EECs. But, that is not to say that parole board members get away with doing so; many administrative parole appeals have been won raising these arguments.Remember always that the Parole Board does not want to give the courts the opportunity to hand down decisions that could later be used by other inmates against it. That being, in cases where the appeals panel believes the inmate would likely prevail against it before a court, it will usually grant the appeal, award a de novo hearing, and then afford the inmate applicant release to parole supervision. The single most determinative factor to success on administrative appeal is to put forth a compelling legal argument citing supporting statutes, case law decisions, the rules, and the board’s own rules, regulations, policies and procedures.

I believe that your argument is fatally flawed. The introduction of the word shall, in this instance, is nullified by the discretion given by the legislature to deny for the other 2 reasons. Even so, I did not write to ruin your day sir, I reply to your post because I think the very last sentence in that statute is unconstitutional.

The "act shall be considered judicial" (or something like that). Well, last time I checked, the D.O.C. was executive, not judicial. Separation of Powers? Just a thought that occurred to me while I was reading your post. It may be nothing.

By use of the phrase “shall be released,” versus “may be released,” the Legislature conveys to inmates granted earned eligibility certification a reasonable expectation that they will be released to parole upon service of their minimum terms. Again, this is what the USSC concluded in both Greenholtz and Board of Pardons when reviewing strikingly similarly worded statutes.

That the statute allows denial of release where the board concludes there is a “reasonable probability” that, if released, an inmate will not live and remain at liberty without further violating the law, and that his release would not be compatible with the welfare of society, is oftentimes inconsequential. Take, for example, a middle age inmate with no prior criminal history who stands convicted of unlawful possession of a controlled substance, acquired for his or her own use, who since imprisonment has addressed their addiction through rehabilitative programs offered by the DOC. In that case, to conclude he or she would not remain at liberty without further violating the law, and that their release would be incompatible with the elfare of society, would doubtless be irrational.

I do, however, agree with your thought that the wording “Any action by the commissioner pursuant to this section shall be deemed a judicial function” does indeed create a viable separation of powers argument.