On April 28, 2016 the New York Supreme Court Appellate Division for the Third Department released a ground breaking decision in the case of Dempsey Hawkins. In the decision, the Court sheds light on what has been characterized as the “morbid, harassing, and capricious” behavior of the New York State Parole Board in relation to its’ treatment of Dempsey Hawkins, who has since the age of sixteen spent thirty-seven years in state prison. The decision highlights the broader issue of how juveniles in New York have been locked away, in violation of their 8th Amendment Rights.


The Case of Dempsey Hawkins

Dempsey Hawkins was born in England, but moved to Staten Island as a child. At the age of sixteen, Dempsey was dating Susan Jacobson, and was for the most part a normal teenager. Things changed in 1976 once Susan became pregnant and had an abortion. After the abortion, Susan’s parents were insistent that she stop dating Dempsey.[2] In an interview with the New York Times, Dempsey stated that he was “unable to think about living without Susan, but the thought of her with another man was worse”.[3]

As a result of his tortured mind caused by the thought of losing Susan, Dempsey ultimately orchestrated her death. He led her to a secluded spot on the shore of Staten Island and strangled her with his shirt. Afterwards he hid the body, and even took part in the search for her, at points purposely misleading the search.[4] He did all of this at the age of 16, an age where one’s mind is often turbulent, unsettled, and largely still developing.

After Susan’s death, Dempsey moved to Chicago with his father. It wasn’t until two years later, in 1978 that Susan’s body was found, and Dempsey arrested.[5] In 1979, Dempsey Hawkins was convicted of second degree murder and sentenced to twenty-two (22) years to life in state prison.[6]

The Parole Board

After his conviction Dempsey Hawkins was sent to the now closed Mt. McGregor Correctional Facility in Saratoga County to serve out his sentence. He did not become eligible for parole until the year 2000.[7] When a prisoner becomes eligible for parole, they are not automatically released instead they are evaluated by a parole board to determine if they are able to be re-introduced to society. Since 2000 Dempsey has been denied release from prison by the parole board nine times.

At each parole hearing the board would re-hash the gruesome facts and specifics of the events that led to Susan Jacobson’s murder. The comments made by members of the parole board at each hearing always focused on the same thing, the actual events of the murder. Statements from board members over the years have included:

“After you strangled her to death, how did you get her body into the drum?”[8]

“And she just fit right in there? Did you put anything in the drum with her to affix her body to it, or did you just slip her right in?”[9]

“Did you ever take anybody around or near the area where the body was, where the skeletal remains were found?”[10]

In answering these questions Dempsey Hawkins at each parole hearing, expressed remorse, regret, saying that he feels terrible about what happened. But this was ignored by the parole board. Finally, after he was denied release yet again in 2014, Dempsey filed an Article 78 petition with the Supreme Court in Sullivan County, where he has been incarcerated since the state closed Mt. McGregor.[11] An Article 78 petition is brought when a state agency or officer is doing something illegal. Dempsey argued that he had been continually denied parole based on the facts of his crime alone, and that the board had not considered whether he was remorseful or rehabilitated.

Sullivan Supreme Court Justice, Frank J. LaBuda agreed with Dempsey’s argument, and had harsh criticisms of the parole board. Justice LaBuda faulted the board for obsessing over the details of the crime, and identified one board member in particular, Lisa Beth Elovich, as being particularly morbid. The Justice ruled in favor of Dempsey, ordering that he be given a new parole hearing, and also ruling that Lisa Beth Elovich not be allowed to participate.[12] The state appealed Justice LaBuda’s decision to the second highest court in the state, The Supreme Court Appellate Division.

Dempsey Hawkins 8th Amendment Rights

The issue of the parole board’s treatment of Dempsey Hawkins was heard in front of the Appellate Division in February 2016. In an astounding move, the Court ruled in favor of Dempsey, and added a procedural safeguard so that moving forward the issues surrounding the parole board in this case are not repeated. In the decision the Court stated (speaking about the parole board):

“The Board, as the entity charged with determining whether petitioner will serve a life sentence, was required to consider the significance of petitioner’s youth and its attendant circumstances at the time of the commission of the crime before making a parole determination. That consideration is the minimal procedural requirement necessary to ensure the substantive Eighth Amendment protections”[13]

Basically, the parole board was wrong when they repeatedly insisted on re-hashing the gruesome acts of the crime in order to justify Dempsey’s continued incarceration. The board at the same time, failed to consider that Dempsey was only sixteen when he committed the crime, that he had been a model inmate during his incarceration, and that he had repeatedly demonstrated qualities of remorse and rehabilitation. Furthermore, Dempsey is a native of the United Kingdom, and as a result would be deported immediately upon his release, meaning he would not even be in the general public after release.[14]

In reaching its’ decision the Appellate Division addressed a long standing issue that has plagued New York, the treatment of juveniles who commit serious crimes. In fact, New York remains the only state other than North Carolina to treat youthful offenders as young as sixteen as adults.[15] New York has been repeatedly criticized for its imposition of life sentences for juveniles. This is especially demonstrated in Dempsey’s case, he has served 37 years in prison for second degree murder, while the average sentence in New York for those convicted of second degree murder is 24 years.[16]

The 8th Amendment to the U.S Constitution states:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”[17]

For purposes of sentencing juveniles to prison, the Supreme Court of the United States has interpreted the 8th Amendment as meaning that children are different from adults. The Supreme Court has explained this is due to essentially three factors: first, children are more impulsive and reckless; second, children are more vulnerable to negative pressures (family, friends, environment, substance abuse); third, children have less control over their environments. These factors mean that it is less likely, as the Court explains, that a child who commits a serious crime will forever be a danger to society. Essentially children have a much higher likelihood of being rehabilitated. As a result of these considerations, a juvenile who is being sentenced is entitled to a hearing to determine whether the crime was a result of the factors mentioned above, and if so then the juvenile is entitled to a meaningful opportunity for release, a.k.a parole.[18]

The Appellate Division in New York ruled that Dempsey Hawkins was deprived of both a sentencing hearing, and a meaningful opportunity for release due to the conduct of the parole board. As a result the Court ruled that parole boards are mandated, in the case of juveniles, to consider the factors associated with being a child, and whether or not those factors largely contributed to the crime, if so then the juvenile needs to be released at some point, and cannot be imprisoned for life.[19] Dempsey Hawkins will now get a fair parole hearing, where his age at the time of the crime will be considered, along with his model behavior while in prison. Thus it is likely that after the hearing Dempsey Hawkins will be released, and hopefully will be able to find a way to reconcile his new life, with his actions as a teenager.

The exclusive purpose of this article is educational and it is not intended as either legal advice or a general solution to any specific legal problem. Corporate offices for Nave + Associates (formerly Anelli Nave) are located at 432 N. Franklin Street, Suite 80, Syracuse, NY 13204; Telephone No.: 1-866-792-7800. Prior results do not guarantee a similar outcome. Attorney Advertising.

[1]In the Matter of DEMPSEY HAWKINS, Respondent, v. OPINION AND ORDER NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION et al., Appellants., No. 521536, 2016 WL 1689740 (N.Y. App. Div. Apr. 28, 2016)
[2] http://www.nytimes.com/2011/08/27/nyregion/a-teenage-killer-now-51-recounting-his-crime.html?_r=0
[3] Id.
[4] http://blog.timesunion.com/capitol/archives/248690/appellate-division-parole-board-must-weigh-convicts-age-at-time-of-76-slaying/
[5] http://www.nytimes.com/2011/08/27/nyregion/a-teenage-killer-now-51-recounting-his-crime.html?_r=0
[6] Id.
[7] http://blog.timesunion.com/capitol/archives/248690/appellate-division-parole-board-must-weigh-convicts-age-at-time-of-76-slaying/
[8] http://www.nytimes.com/2015/07/04/nyregion/a-crime-rehashed-and-parole-denied-again-and-again.html?_r=1
[9] Id.
[10] Id.
[11] In the Matter of DEMPSEY HAWKINS, Respondent, v. OPINION AND ORDER NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION et al., Appellants., No. 521536, 2016 WL 1689740 (N.Y. App. Div. Apr. 28, 2016)
[12] http://www.nytimes.com/2015/07/04/nyregion/a-crime-rehashed-and-parole-denied-again-and-again.html?_r=1
[13] In the Matter of DEMPSEY HAWKINS, Respondent, v. OPINION AND ORDER NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION et al., Appellants., No. 521536, 2016 WL 1689740 (N.Y. App. Div. Apr. 28, 2016)
[14] Id.
[15] http://blog.timesunion.com/capitol/archives/248690/appellate-division-parole-board-must-weigh-convicts-age-at-time-of-76-slaying/
[16] http://www.nytimes.com/2015/07/04/nyregion/a-crime-rehashed-and-parole-denied-again-and-again.html?_r=1
[17] https://www.law.cornell.edu/constitution/eighth_amendment
[18] In the Matter of DEMPSEY HAWKINS, Respondent, v. OPINION AND ORDER NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION et al., Appellants., No. 521536, 2016 WL 1689740 (N.Y. App. Div. Apr. 28, 2016)
[19] Id.