ORDER DENYING PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION Plaintiffs Michael Bergamaschi and Frederick Roberson bring this civil rights action on behalf of all New York City persons on parole who are or will be accused of violating conditions of parole and mandatorily detained pending their final hearing on a parole warrant, as required by 9 N.Y.C.R.R. §8005.7(5) and §8004.3. The defendants are Governor Andrew M. Cuomo and Tina M. Stanford, Chairperson of the New York State Board of Parole (“Parole Board”), sued here in their official capacities. Plaintiffs allege that the mandatory detention regulations violate their right to due process under the United States and New York Constitutions — specifically, in that they are constitutionally entitled to a hearing on their suitability for release pending adjudication of the alleged parole violation. Plaintiffs seek a preliminary injunction, ordering to afford all members of the plaintiff class “an immediate evaluation” on “their suitability for release” by a “a neutral decisionmaker” based on an assessment of the “seriousness of their alleged parole violations, likelihood of returning for the final hearing” and whether they “pose[] a public safety risk.” (Pls.’ Mem. of Law in Supp. (“Pls.’ MOL”), Dkt. No. 19 at 20, 24-25). Plaintiffs’ motion for a preliminary injunction is DENIED. BACKGROUND I. New York’s Parole Revocation Procedures New York, like every other state, has a procedure known as “parole,” pursuant to which certain prisoners who have not yet completed their sentences of incarceration are released into the community on conditions and under the supervision of a parole officer. If a parolee violates the terms of his parole — that is, if s/he does something that is not permitted by the rules that restrict his/her liberty, or fails to do something that is required by those rules — s/he is subject to having parole revoked, and being returned to complete the rest of his/her sentence behind bars. New York Executive Law §259-i(3) and 9 N.Y.C.R.R. §§8004 and 8005 set out the procedures involved in parole revocation hearings. Within three days of being arrested on a parole warrant, the parolee must be given notice of the charges and of his rights. N.Y. Exec. Law §259-i(3)(c)(iii); 9 N.Y.C.R.R. §8005.7. Within fifteen days after the execution of the parole warrant, a preliminary hearing must be held before a hearing officer who has not had “any prior supervisory involvement over the alleged violator.” N.Y. Exec. Law §259-i(3)(c)(i). At the preliminary hearing, the parolee’s parole officer must establish probable cause that a violation of a parole condition in an important respect occurred. N.Y. Exec. Law §259-i(3)(c)(i) & (iv). The parolee has the right to appear and to present witnesses and evidence on his own behalf, as well as the right to confront and cross-examine adverse witnesses. N.Y. Exec. Law §§259-i(3)(c)(iii) & (iv); 9 N.Y.C.R.R. §8005.3(c). A parolee can waive his/her right to a preliminary hearing, which results in an automatic finding of probable cause. After the preliminary hearing, the hearing officer must issue a written decision, stating the reasons for the determination and citing to the evidence upon which the determination was based. N.Y. Exec. Law §§259-i(3)(c)(iii). If there is a finding of probable cause to believe that a violation has occurred, or if the parolee waives his right to a preliminary hearing, a final revocation hearing must be scheduled within 90 days. N.Y. Exec. Law §§259-i(3)(f)(i). At the final revocation hearing, the parolee is entitled to a number of due process protections, including: (i) the right to compel witnesses to appear at the hearing and provide testimony; (ii) the right to subpoena and submit documentary evidence; (iii) the right of confrontation and cross examination; (iv) the right to submit mitigating evidence for the purpose of being restored to supervision; and (v) the right to representation of counsel. N.Y. Exec. Law §259-i(3)(f)(iv) and (v). In the event the alleged violator is indigent and cannot afford counsel, an attorney will be assigned. N.Y. Exec. Law §259-i(3)(f)(v). If the hearing officer concludes that the parolee did not violate the conditions of his/her release “in an important respect,” the charges are dismissed and the parolee is released back into the community. N.Y. Exec. Law §§259-i(3)(f)(ix); 9 N.Y.C.C.R. §8005.20(a). (See generally, Tomlinson Decl., Dkt. No. 25
2-3.) If the hearing officer concludes that the parolee violated the conditions of release in an important respect, the parolee is returned to prison to serve the remainder of his or her sentence. II. New York’s Mandatory Detention Regulations Since 1978, pursuant to N.Y. Exec. Law §259-i(3), if the parole officer has probable cause to believe that the parolee has violated a condition of his parole, a warrant may be issued for his temporary detention, in accordance with the rules of the Parole Board. The statute expressly provides that the detention of any such person may be “further” regulated by rules and regulations of the Parole Board. N.Y. Exec. Law §259-i(3)(a)(i). The Parole Board’s regulations mandate the detention of the alleged violators once there is probable cause to find that the alleged violator has violated one or more of the conditions of parole “in an important respect.” 9 N.Y.C.R.R. §8005.7(a)(5). A parole violation for conviction of a crime, whether felony or misdemeanor, qualifies as being a violation “in an important respect” and leads to mandatory detention. Detention continues until the final revocation hearing has concluded. New York’s policy of mandatorily detaining alleged parole violators pendente lite is not unique or unusual. In thirty states, alleged parole violators who are taken into custody by the police or corrections officers on a parole warrant are detained pending their final revocation proceedings. Cohen, Law of Probation & Parole §1:1 (2d ed.) (available on Westlaw at LAWPROBPAR §18:5); see e.g., Mo. Rev. Stat, §217.720 (West 2018); Ark. Code Ann. §16-93-705 (West 2020); see also Compl. 47 (listing 20 states that do not have mandatory detention for parole violators pending the final revocation hearing). Plaintiffs allege that the Parole Board regulations requiring detention pending a final revocation hearing (1) upon a finding of probable cause at the preliminary hearing; (2) when the parolee waives the preliminary hearing; or (3) where the parolee is convicted of a misdemeanor violates due process. Plaintiffs do not challenge as unconstitutional the mandatory detention of someone convicted of a felony, because a felony conviction warrants parole revocation. See N.Y. Exec. Law §259-i. III. Procedural History The instant action was filed on Friday, April 3, 2020. The complaint alleges two causes of action: one under the United States Constitution and one under the New York State Constitution. The claims are parallel: each count asserts that the mandatory detention of accused parole violators between the time probable cause is found and the end of their revocation hearings violates the Due Process Clause of the relevant constitution. (Docket #1) Plaintiff’s motion for a preliminary injunction was filed the following Monday, April 6. The Attorney General appeared immediately for Defendants and the parties agreed to an expedited briefing schedule. The motion was fully submitted on April 13. The court held a telephone conference with the parties on Tuesday, April 7, at which time I expressed the view that the preliminary and permanent injunction motions should be consolidated and heard on a fuller record, albeit on an expedited basis. The parties insisted that this was neither necessary nor desirable. The Attorney General expressed the view that the case presented a straightforward question of law that could be decided on the papers. Plaintiffs’ counsel echoed that view — although having presented evidence in support of the motion, he could not possibly have meant that the case presented nothing but a straightforward question of law. I interpreted his comments to mean that Plaintiffs wanted the motion for preliminary relief to be decided immediately and on the papers in view of the COVID-19 (“COVID”) crisis, which had precipitated the filing of this action. I take the case as it is handed to me. This is a decision on a motion for a mandatory preliminary injunction that would give plaintiffs, pendente lite, all the relief they are seeking from this lawsuit— nothing more. IV. What This Case Is — And Is Not — About Before turning to the merits of Plaintiffs’ motion for a preliminary injunction, it is imperative to clarify what this case is about — and what it is not about. This case challenges the lawfulness of a New York State regulation that requires the mandatory detention of an alleged parole violator between the time when it is determined that there is probable cause to believe a violation was committed (either at a preliminary hearing, because the preliminary hearing was waived, or because the parolee has been convicted for the misdemeanor that causes the parole violations) and the time when his/her final revocation hearing concludes. It alleges that such detention violates the Fourteenth Amendment’s Due Process Clause. Plaintiffs contend that due process requires that an alleged parole violator be given an opportunity — ideally, at the preliminary hearing — to demonstrate that detention is not required despite the finding of probable cause because he presents neither a risk of flight nor any danger to society. In brief, Plaintiffs argue that due process requires that an alleged parole violator be offered the opportunity to establish an entitlement to something that looks and sounds very much like bail pendente lite. That is all this case is about. This case is not about the COVID pandemic, or the wisdom of incarcerating any particular group of people in a high-risk location (a correctional facility) during said pandemic. The lawsuit was brought against the backdrop of that pandemic, and apparently the threat posed by COVID has “concentrate[d] the mind wonderfully” on a provision of New York law that has been in place, its constitutionality unchallenged, for over four decades. But COVID has nothing to do with whether the mandatory detention regulation is or is not constitutional. If due process requires that alleged parole violators be given access to the equivalent of a pre-trial arrestee’s bail hearing, then that constitutional flaw has existed in New York State’s parole revocation process from the beginning. And if the regulation adopted is those many years ago was not unconstitutional then, the pandemic does not make it unconstitutional now. This case is also not about conditions of confinement during the pandemic on Rikers Island, or in any other facility where alleged parole violators are housed. If it were, federal injunctive relief would not be appropriate, since any prisoner at any time is free to bring a petition for a writ of habeas corpus in the New York State Supreme Court, pursuant to Article 70 of New York’s Civil Practice Law and Rules, on the ground that the conditions of his/her confinement are unlawful. The record reflects that numerous such petitions have been brought, and many granted by justices of the New York State Supreme Court. (Amer Decl., Dkt. No. 27, at
