Victory in Lopez: Affirming A Fundamental Constitution Right
WEDNESDAY, APRIL 08, 2015

The Court of Appeals unanimous decision in Lopez, argued by Elon Harpaz, Staff Attorney in the Parole Revocation Defense Unit, highlights parole reform efforts.

The decision affirmed a fundamental constitution right, Harpaz told Capital New York. The State's High Court ruled that revoking the parole of a mentally incompetent person violates due process guaranteed in the State constitution.




Court of Appeals decision highlights parole reform efforts
By Luca Marzorati
Apr. 8, 2015

The New York State Court of Appeals ruled on Tuesday that revoking the parole of a man found mentally incompetent violates due process guaranteed in the state constitution, and suggested legislators should look to close a loophole in how the state's parole system treats mentally ill inmates.

But state legislators say they have already addressed the primary problem identified in Lopez v. Evans, and the broader effect of the case could be to prompt further legislative changes to the parole system.

The court's decision came in response to a case brought by Edwin Lopez, a parolee who was charged with assault and harassment in a psychiatric center in 2008. After Lopez was found mentally unfit to stand trial, the criminal charges were dropped. However, the Department of Corrections and Community Supervision (DOCCS) initiated proceedings to revoke Lopez's parole, and an administrative law judge ordered that Lopez return to prison.

In a unanimous decision authored by Judge Eugene Pigott, the Court of Appeals affirmed an appellate court decision that reinstated Lopez's parole and removed him from incarceration.

"It is only the parolee himself who is in the position to know the facts and assist in his or her defense," Pigott wrote. "When the parolee, by reason of mental incapacity, is unable to understand, recall, or express such vital information, it is inconsistent with due process for a parole board to proceed with a revocation hearing."

The Court's decision specifically pointed to logistical problems in the parole system, faulting the fact that the state Division of Parole has no power to involuntarily commit mentally incompetent parolees.

"As matters stand, a parolee who has been found mentally incompetent, and therefore unfit to proceed to a parole revocation hearing under our holding today, will likely be released into the community," Pigott wrote.

But Assemblyman Daniel O'Donnell, chair of the Assembly's correction committee, believes that state lawmakers already closed the loophole at the center of the Lopez case. Assembly Bill A10071—sponsored by O'Donnell and signed into law in December 2014—authorizes parole supervisors to initiate Article 9 proceedings to involuntarily admit parolees.

The legislation was created in response to an attack on two children by a Brooklyn man who had been released from prison just nine days before. The man's parole officer was purportedly concerned about his behavior but had no power to involuntary commit him.

The text of the Assembly bill appears to conflict with the court's statement that the Division of Parole does not have "its own authority to seek commitment under Mental Hygiene Law article 9." Asked for clarification, a court spokesman said that the court's decisions "speak for themselves."

Furthermore, parties on both sides of the case indicated that DOCCS has stopped the practice of revoking parole for mentally incompetent parolees for the past two years. In cases with parolees like Lopez—deemed to be a danger to themselves or others—DOCCS has honored the findings of mental incompetence in criminal proceedings, and allowed them to remain in mental institutions.

"We are aware of the decision and reviewing the matter," a DOCCS spokeswoman told Capital.

According to Elon Harpaz, the Legal Aid lawyer who brought Lopez's case to the Court of Appeals, the decision affirmed a "fundamental constitutional right."

However, confusion in parole legislation still exists. The Lopez case seems to decide the matter of mentally incompetent parolees who pose a risk to themselves or others, but questions remain as to the status of parolees who pose no danger but are still mentally unfit.

As the law currently stands, a mentally unfit parolee who commits a lesser violation—such as missing a meeting with their parole officer—can have their parole revoked.

This discrepancy is yet to be taken up by the Legislature. Harpaz noted that a case before the New York Appellate Division, First Department—Polzella v. Evans—rests upon this issue.