CHAPTER 33 - Columbia Law School

Ch. 33 TEMPORARY RELEASE PROGRAMS 909
follow the required procedures. However, the Supreme Court’s decision in Sandin v. Conner makes it
much more difficult for you to prove that your removal from the program has caused you harm that
is “atypical” of what you should expect as a prisoner. 98 Temporary release programs and work
release programs have not always been found to be interests protected by the Constitution for New
York state prisoners. 99
Unfortunately, the regulations governing temporary release leave much discretion to the facility
temporary release administrators. They will be able to make many decisions as they see fit, as long
as they are fair and impartial. You will only be entitled to the minimum due process requirements if
your temporary release is denied. The Dutchess County Supreme Court stated in Roman v. Ternullo
that correctional facility superintendents were required to extend procedural due process safeguards
outlined by the United States Supreme Court in Wolff v. McDonnell. 100 These requirements include a
hearing presided over by an impartial observer, notice of the hearing, help in preparing a defense,
and a copy of the decision made at the hearing. You may be able to call witnesses, but you will not
be able to cross-examine adverse witnesses. 101 However, you must be able to prove that the wrong
conclusion was reached in your TRC hearing, and that the procedure was incorrect. 102
If you feel that your rights have been violated in a revocation of temporary release, you can file a
lawsuit. However, you must base your complaint on a particular statute or law that will give a judge
power to hear how the prison authorities have treated you. There are several different ways that you
can do this.
The two ways to get a judge to hear your complaint about the revocation of your temporary
release are by using one of these statutes: (1) Article 78 of the New York Civil Practice Law and
Rules (called Article 78 of the C.P.L.R.) in New York courts, or (2) 42 U.S.C. § 1983 (called Section
1983) in state or federal court.
98. Sandin v. Conner, 515 U.S. 472, 486–87, 115 S. Ct. 2293, 2301–02, 132 L. Ed. 2d 418, 419 (1995) (holding that a
prisoner is not deprived of a liberty interest when he is removed from a temporary release program because he was placed
in segregated confinement because discipline by prison officials in response to misconduct falls within expected boundaries
of the prisoner’s sentence).
99. See Greaves v. New York, 951 F. Supp. 33, 36 (S.D.N.Y. 1996) (prisoner removed from work release program
had constitutional liberty interest, even after Sandin); Roucchio v. Coughlin, 923 F. Supp. 360, 370, 377 (E.D.N.Y. 1996)
(finding no federal constitutional interest in removal from work release program, but finding that New York may have
created a right to an individualized due process hearing when it created the Temporary Release Program). However, these
cases may not be good law as other cases have found no liberty interests of any kind, and the Roucchio case itself was later
dismissed. See Roucchio v. Coughlin, 29 F. Supp. 2d 72, 83 (E.D.N.Y. 1998); see also Romer v. Morgenthau, 119 F. Supp.
2d 346, 359 (D.N.Y. 2000) (holding that the denial of a prisoner’s application for work release participation did not violate
a protected liberty interest); Dudley v. Coombe, No. 96 Civ. 1665 (MGC), 1997 U.S. Dist. LEXIS 10883, at *6 (S.D.N.Y.
July 28, 1997) (unpublished) (holding that dismissal from work release program is not “atypical of prison life” and,
therefore, is acceptable). But see Friedl v. City of N.Y., 210 F.3d 79, 85 (2d Cir. 2000) (holding that due process protections
apply to work release participation revocation).
100. Roman v. Ternullo, 81 Misc. 2d 1023, 1025, 367 N.Y.S.2d 197, 198 (Sup. Ct. Dutchess County 1975); Wolff v.
McDonnell, 418 U.S. 539, 563–66, 94 S. Ct. 2963, 2978–80, 41 L. Ed. 2d 935, 936 (1974); see also Marciano v. Goord,
2006 N.Y. Misc. LEXIS 2656, at *17–19 (N.Y. Misc. 2006) (citing Wolff in discussion of due process requirements for
removal of a prisoner from a temporary release program, including requirements of prior hearing, notice, and opportunity
to be heard); MacCowan v. Cummings, 99 Misc. 2d 914, 916–917 (N.Y. Misc. 1978) (holding that “any removal [of the
prisoner] from the [work release] program should be as a result of a hearing following the rationale and procedures set forth
in Wolff v McDonnell”). See JLM Chapter 35, “Parole,” for a more detailed explanation of the due process rights guaranteed
under Wolff. The Supreme Court has also held that due process requires certain procedural protections for prisoners
participating in a state-created pre-parole conditional supervision program. See Young v. Harper, 520 U.S. 143, 146–47,
117 S. Ct. 1148, 1151, 137 L. Ed. 2d 270, 271 (1997).
101. See Morales v. Ward, 89 Misc. 2d 651, 653, 392 N.Y.S.2d 197, 199 (Sup. Ct. Albany County 1977) (stating that
prisoners are not entitled to the same degree of procedural due process as parolees for revocation of their privileges).
102. See Roucchio v. Coughlin, 29 F. Supp. 2d 72, 79–80 (E.D.N.Y. 1998).