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August 6, 2007

A thought-provoking, NASC-inspired question

The first day of the 2007 Conference of the National Association of Sentencing Commissions has been very intriguing.  (The local AP provides coverage here and Corey Yung discusses one panel here.)  Among the thoughts provoked concerns the place of traditional parole mechanisms in modern sentencing systems.

As many readers surely know, the federal system eliminated traditional parole over 20 years ago in the Sentencing Reform Act of 1984.  And, in the 1990s, the feds also encouraged states to eliminate traditional parole systems as part of "truth-in-sentencing" reforms.  Nevertheless, a number of states have retained traditional parole in various forms. 

In the first plenary session at NASC, Kevin Reitz indicated that the ALI will soon debate whether parole has a place in its on-going revision of the sentencing portion of the Model Penal Code.  Kevin noted that he favors a system without traditional parole, but fellow panelist Steve Chanenson made a pitch for retaining parole mechanisms in some form.

So, dear readers, here is the NASC-inspired question of the day: Do you think an ideal sentencing structure should include or exclude a traditional parole mechanism? 

August 6, 2007 at 06:59 PM | Permalink


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Another way to pose the question is this: is truth in sentencing a good idea?

TalkLeft has the answer: Truth-In-Sentencing Laws Exposed.

What's the real deal? Corporate-Sponsored Crime Laws.

Posted by: George | Aug 6, 2007 8:08:47 PM

I believe the traditional, bifurcated in-or-out approach to sentencing is out of date. In its place a graded depriivation system should be adopted. I would be glad to send the framework for such a system to anyone who is interested. Contact me at mcgee2001@comcst.net

Posted by: Tom McGee | Aug 6, 2007 8:56:53 PM

The lack of parole makes prisons a much more dangerous place for COs and offenders alike because it's an incentive for good behavior while inside. Why would an offender bother to restrain their misbehavior when they know they'll do 100% of their term anyway?

Posted by: Gritsforbreakfast | Aug 7, 2007 9:04:50 AM

Key to this discussion will be identifying what you call "parole." For example, North Carolina's enactment of "structured sentencing" in 1994 abolished discretionary parole (as awarded or denied by a parole board). However, the legislation that did away with parole (and enacted an almost wholly-new sentencing scheme for the state) also enacted "post-release supervision" for the five highest non-capital felony offense classes. (There are four lower-level felony classes to which post-release supervision does not apply.)

Post-release supervision is a fixed period of 9 months built in to the tail end of every sentence in those 5 higher non-capital levels, and it is always suspended once the prisoner has served hte portion of the sentence that excludes those 9 months. The offender is always released, at the latest, 9 months before the expiration of his maximum sentence. He's supervised on traditional probation/parole terms for the first 9 months after release (it's five years for registered sex offenders). If he violates the terms of supervision, he can be reincarcerated to serve out the 9 months of incarceration that were 'lopped off' of his time. This process isn't discretionary; it's mandatory. It's also not for a discretionary time period; the supervision (and consequences) are the same for everybody in those felony levels. Does it fit your concept of "parole?"

Even more on point, the same sentencing system imposes a minimum and a maximum prison term (expressed in numbers of months) for every felony sentence. The maximum sentence is generally 120% of the minimum ("generally" because there are minor variations at the low end of the sentencing scale, where you can't express 120% of a 4-month sentence in whole months without rounding up to a 5-month max). If the sentence is imposed as active incarceration (whether immediately or as a later consequence if the active sentence was suspended and the offener violates the terms of probation), the offender must serve at least the minimum period imposed. Period, end of story. There's your "truth in sentencing."

But the NC Department of Corrections starts with the presumption that the offender will serve the *maximum* sentence, and their policies for 'earned time' permit him to work his way down to the minimum. If he earns down to the minimum and is released (and if it's an offense level to which post-release supervision doesn't apply), then he's free. End of sentence. (Yes, cue the arguments about collateral consequences, but that's not this post's topic.) Even if it's a post-release supervision offense, he can still be released 9-months-plus-his-earned-time before his maximum sentence. So is it "parole" if you can be released 'early' from the maximum sentence imposed? Does it matter in deciding whether or not to call it "parole" that a non-post-release offender released before his max time is free and clear and cannot be returned to serve out the remainder?

The issue of parole, early release, and incentives is an important part of the sentencing discussion. But let's be sure we're all clear on what constitutes a "traditional parole system" before we get too far into the debate. Even in the truth-in-sentencing states, rumors of parole's demise may tend to be exaggerated.

Posted by: | Aug 7, 2007 10:12:23 AM

I agree with Gritsforbreakfast, especially based on the experiences of some formerly incarcerated people with whom I have discussed this (although I realize it was rude of me to do so). If these people don't have any hope of good behavior getting them anything, and especially if they feel they are being treated unfairly, then the sanctions for bad behavior (the hole, "management loaf," pepper-spray, beatings) don't seem very effective in deterring them from bad behavior.

Now let's extrapolate this to the larger society. If people don't have any hope--they are poor, they are middle-class and can't pay the bills, they are addicts, they can't feed their families or get medical care--and they feel they are being treated unfairly--why would the threat of negative criminal justice sanctions (imprisonment) work any better with them than with those who are already in prison? Just a thought.

Posted by: disillusioned layman | Aug 7, 2007 10:41:37 AM

Yes, it is very important to distinguish the several distinct meanings of "parole" and parole "abolition." Like the North Carolina system described in the previous post, most states that have abolished traditional broad parole-release discretion have wisely retained a period of post-prison supervised release. Equally important, almost all of these states have retained "good time" credits, as an incentive for prisoners to behave in prison. How much credit is needed for this purpose, and when does a substantial credit defeat "truth in sentencing"? Equally important, when do such credits become so large and unpredictable that they defeat the degree of precision, in prison-bed-impact projections, needed to head off prison overcrowding at the front end, and set meaningful priorities in the use of limited prison space? Each state must find its own answers to these questions. In my state of Minnesota, inmates get up to 1/3 off for good behavior, and I believe that most of them earn all or almost all of the full credit. Those credits, along with loss of in-prison privileges, seem to be enough to manage the prisons while maintaining very accurate prison-impact projections. Those projections, in turn, have helped to avoid overcrowding in the state's prisons. And lack of overcrowding improves prison security, thus reducing the need for draconian sentence-reductions as an incentive to keep prisoners in line.

Posted by: Richard Frase | Aug 7, 2007 11:58:36 AM

Grits writes: Why would an offender bother to restrain their misbehavior when they know they'll do 100% of their term anyway?

As far as I know, prison authorities use other carrots and sticks, like solitary confinement (or not), televisions in the cells (or not), good and bad work assignments, visitation hours, etc.

Posted by: | Aug 7, 2007 12:22:51 PM

disillusioned layman writes: If these people don't have any hope of good behavior getting them anything, and especially if they feel they are being treated unfairly, then the sanctions for bad behavior (the hole, "management loaf," pepper-spray, beatings) don't seem very effective in deterring them from bad behavior.

This makes no sense to me. It could be that positive reinforcement is more effective in some situations than punishment alone, but that doesn't seem to be what disillusioned layman is arguing.

Posted by: | Aug 7, 2007 12:26:52 PM

So there has to be an incentive for these folks to not act violently or in disregard for established rules -- and that's your argument for establishing parole and letting them out in the public sooner? Seems like CO's might get a benefit while the other 99.99999% of the population gets violent offenders re-released that much sooner.

Posted by: JustClerk | Aug 7, 2007 12:45:26 PM

You know what bothers me? A lot of you folks have never experienced prison yet you guys talked out of your behind.
What ever happened to putting your foot in the other person shoes? Prisons has some sadistic, corrupted guards and whatnots. Let alone mixing non violent with violent criminals. Yes, I'm talking about people who don't belong in prison. I've met a federal judge who was serving time for bribery. This person was treated like shit and constantly being shakedown for money for so-called protection. You know what did judge said to me. "He had no ideal how bad the prison system was." Even though he was known for giving severe sentencing.

Posted by: | Aug 7, 2007 1:20:52 PM

No one seems to be asking why it even matters whether the nominal sentence is the amount of time actually served.

Obviously these truth-in-sentencing acts came about because when inmates resumed their lawbreaking ways after release, it was galling to find out that they earned parole based on "good behavior" in prison. The logic was that if the judge thought you deserved 20 years, then you ought to serve something darned close to that.

Of course, the flaw was that judges are no better at predicting the future than parole boards. In fact, they are probably worse. So the next step was mandatory minimums and three-strikes, transferring the requirement for clairvoyance from the judge to the legislature.

But legislatures aren't clairvoyant either. The sentencing laws they enact are driven primarily by the emotion around the worst cases. Defendants who should serve a long time are bunched indiscriminately with those who should not.

Hopefully some sanity will return to the system, but I'm not holding my breath.

Posted by: Marc Shepherd | Aug 7, 2007 1:38:36 PM

So the next step was mandatory minimums and three-strikes, transferring the requirement for clairvoyance from the judge to the legislature.

But legislatures aren't clairvoyant either.

About those three strikes laws... if we're talking about the ability to predict recidivism, I don't think we have any stronger indicator than past behavior. No one can tell the future with absolute certainty, but when two criminal convictions and their accompanying punishment don't deter a person from committing crimes, you can be fairly confident that a third won't either.

Posted by: | Aug 7, 2007 1:51:08 PM

In general, I would agree that someone who has failed to be deterred twice won't be deterred a third time. But even with three-strikes laws, there have been cases where the punishment didn't really fit the crime --- for instance, where the first two strikes were minor offenses a very long time ago, and not really related to the third strike.

Posted by: Marc Shepherd | Aug 7, 2007 2:23:30 PM

Mr. Shepherd makes a fair point, but that's where the political problems arise.

It's reasonable--I think--for legislatures to enact mandatory minimum laws and three-strikes laws, but to allow for judges to catch the outliers and smooth out the rough edges, e.g., where the first 2 strikes were minor offenses in the distant past or unrelated to the third strike (I'm not so sure about that latter part, but that's not important).

The problem with that sort of a system--again, this is my opinion--comes when the judges get away from smoothing out the rough edges and disagree with the legislature's policy judgments, e.g., when they give light sentences based on their opinion that drug possession shouldn't be a crime, that 3-strike laws are unjust when applied to nonviolent criminals, etc.

Once that happens a few too many times in a public way, the voters stop trusting the judges and proposals to take away the judges' discretion (through mandatory minimums, three-strike laws, and binding "Guidelines") become popular.

Posted by: | Aug 7, 2007 3:19:57 PM

Also worth noting is that in states with the initiative (e.g., California), ill-considered proposals sometimes get on the ballot and get approved because the other side is so successful at killing better thought out and better drafted bills in the Legislature.

I sometimes see comments in this blog to the effect that the tough-on-crime crowd owns the legislature and gets anything it wants. The reverse is largely true on the Left Coast, so large portions of the criminal law must be made by initiative.

Posted by: Kent Scheidegger | Aug 7, 2007 5:00:31 PM

Kent is wrong and probably knows it, which would make it propaganda, to put it politely.

Politics and Plea Bargaining: Victims' Rights in California, By Candace McCoy.

Cruel Justice
Three Strikes and the Politics of Crime in America's Golden State, by Joe Domanick

It was always politics.

Posted by: George | Aug 7, 2007 6:09:05 PM

George, as I understand Mr. Scheidegger's point, it's that California would have better thought out criminal laws if the Legislature functioned better. He says that better laws, which are largely in line with public opinion, are proposed to the legislature, but get killed there, and that because of this the bills' supporters use the initiative process. That's 2 opinions: (1) the bills proposed in the legislature are better than the initiatives, and (2) that the sponsors of those bills sincerely want them to pass and use the initiative process as a backup.

McCoy's book appears to express no opinion on (1) (at least she doesn't seriously discuss it), but takes a different view of (2). She provides no evidence for her view of (2), only citations to people who share her opinion, so I think it's fair to say that she and Scheidegger merely have different opinions.

Domanick's book--from what I can tell from the link you provided--agrees with Mr. Scheidegger that the initiatives are often ill-considered and not as well thought out as a typical bill in the Legislature. The link only hints at what Domanick thinks of the motivations of the people who used the initiative process. Domanick thinks that the legislators used scare tactics (anecdotes about murdered children) to market their inititive. But that says nothing about whether the legislators "really" wanted a better thought out version of the 3 strikes laws and were frustrated by the Legislature. So I think Domanick's book is beside the point.

So to say that "Kent is wrong and probably knows it" is kind of silly when you're talking about a difference of opinion.

Posted by: | Aug 7, 2007 9:07:18 PM

My characterization of McCoy's book is based on Chapter 2.

Posted by: 9:07 | Aug 7, 2007 9:08:12 PM

Chapter 2 does not reveal the argument though. McCoy frames her argument as the war between due process vs. crime control. Crime control won, of course, since 1994 when the book was published. That is why we now have sentencing based on acquitted conduct. At the time, the big buzz word was "plea bargaining" as permitted by activist judges. The Right set out to create an army of their own reactivist judges, but they had to set the foundations of law first.

You can read her introduction here.

You mention laws demanded by "public opinion," but as both McCoy and Domanick argue, that public opinion is manufactured. The claim is compassion for victims, but it is really a covert attack on due process and liberalism:

"Criminal justice policies fit on a continuum between the two values
of due process and crime control. Under certain conditions, there are more activities demonstrating due process; under other conditions, there are more crime control actions. Nobody seriously proposes abolishing either, but advocates mold political debate and action so as to push the pendulum in one direction or the other. This book describes the development of conditions that pushed the pendulum away from due process.

"Those conditions include manipulation of public opinion by a dedicated group of law and order conservatives. Recognizing a powerful image -- the victim of crime, doubly victimized first by the criminal and then by the criminal justice system -- they claimed the image as their own and offered it as the antithesis to due process, which they defined as "defendants' rights." They used the unfortunate and emotionally laden plight of crime victims to justify their campaign to pass legislation overturning due-process-oriented case law and to institute court procedures which offered little opportunity for evidentiary challenge. 'Thus although the call for victims' rights has been described as a populist movement reacting to perceived or real injustices in the processing of cases, in reality the victims' movement agenda has been co-opted by that of the supporters of the crime control model of criminal justice.'"

McCoy supports her argument with the consequences of Proposition 8, which though promoted as victim's rights actually turned out to be nothing more that due process limits that did little for victims.

Kent or no one else offers any solid argument that proposed bills in the legislature were bills the public wanted, were good bills that would make good law. Indeed, if that were true as claimed, why have the Democrats controlled the legislature for so many years rather than being voted out? No, the truth is that the Republicans in California have little else to attack the Democrats with, so they use crime and are very good at it.

Republican lawmaking for years has been little more that emotive sound bites based on rare but powerfully emotional cases. It is effective, but it is what it is. That is, until to comes to one of their own, like Libby. Then the laws are too tough.

Posted by: George | Aug 7, 2007 10:40:54 PM

What is an acceptable risk? Transferring someone from prison to parole involves taking a risk that the individual will re-offend. Parole boards use risk assessment instruments and in some cases they are used as part of a pre-sentence investigation. Such instruments are fairly reliable but they are far from perfect. Some members of the public insist that no risk is acceptable and they want to keep the offenders in prison for life. We can't afford that so we forced to take risks.

A risk assessment error of the first kind keeps people in prison who are not a threat to public safety and a error of the second kind lets people out of prison who are a threat to public safety. I live in Iowa and the Iowa BOP makes errors of the first kind in order to reduce the number of errors of the second kind. In my view this is a regrettable but necessary policy because making errors of second kind to avoid keeping people in prison longer than necessary would probably end parole and then everyone would stay in prison longer.

As a number of persons have noted the political climate determines what the corrections policies of the state will be.

Posted by: JSN | Aug 7, 2007 10:57:05 PM

I have been thinking about Professor Berman's question about parole but wanted to run it by someone who's actually been in prison before resonding.

Our state has a system where inmates sentenced years ago are still subject to parole, whereas inmates sentenced more recently are not. The recently sentenced inmates can, through participation in programs, earn a maximum of one day per month of participation off their sentences.

Traditional parole, as I understand it, involves going before a parole board whose members decide if the inmate is ready for release. If not, the inmate is told to come back after a period of time to be reconsidered. If parole is granted, it can in some cases still be overruled by the governor, which tends to be a political decision--he/she thinks it will look bad if they let this person go.

For an inmate, repeated cycles of attempting to behave in a way that will achieve parole, getting their hopes up, and then having those hopes smashed can cause questions about the fairness of the system, frustration and anger. These are not necessarily conducive to continued good behavior.

On the other hand, being able to earn a specified amount of time off your sentence that will not be taken away unless you misbehave is much more predictable and, I think, is perceived as more fair. The only problem in our state is that one day a month just isn't much, and the programs available for earning the credit sometimes have long waiting lists.

It seems to me that something like the systems described above in North Carolina and Minnesota would be better options. On the one hand they provide inmates with a concrete objective to work toward and hope for which will only their own behavior can either attain or lose. The amount of time it is possible to get removed from the sentence is large enough to be valued by inmates. For administrators, knowing that, on the average, inmates will have their sentences reduced by a certain percentage should provide predictability of bed availability. If shorter sentences reduce overcrowding, then you would achieve that objective as well.

As I understand it, the purpose of using some form of parole would be to improve inmate behavior and everyone's safety within the prison as well as provide predictability for those planning the future of the system. Another benefit might be encouraging inmates' families and friends to stick with them if there is a good chance they will be released sooner. I think the systems described in Minnesota and North Carolina come closer to that objective than traditional parole.

Of course, there are going to be people in the system, some of them mentally ill, who simply cannot or will not behave. Parole availability probably will not help with them.

As to recidivism, that is really a separate issue, unless you argue that developing more positive behavior patterns in prison will help once the person is released. Someone can be a "model prisoner," but if upon release they are homeless, jobless, and still have substance abuse problems, then the prognosis for staying out of prison is not good. It seems to me that in-prison programs and supportive (as opposed to merely punitive) supervision following release are more relevant to this issue.

Posted by: disillusioned layman | Aug 8, 2007 7:46:02 AM

I found out that the relationship between original charge and sentenced charge is very complex. I have a table that lists the original charge type and the sentenced charge type for about 8,200 Iowa prison inmates. I constructed a cross table with the original charge type as the row in descending order of severity and the sentenced charge type as the column with severity decreasing to the right. If there were no change between original and sentenced charge type all of the prisoner counts would be on the diagonal and if plea bargaining were the only factor there would be counts below the diagonal. The were charge types with no counts on the diagonal and there were counts above and below the diagonal in all columns.

The original charge may not be the only charge and some of the charges may be added later as the investigation proceeds. We had a prisoner in our jail charged with public intoxication, a parole violation (public intoxication) and possession of burglar tools for several weeks before he was charged with two counts of first degree murder. The county attorney may also revise the original charge after reviewing the evidence.

I did see a number of cases where robbery became assault, burglary became theft and drug trafficking became drug possession. Most Iowa possession charges are class D felonies (maximum sentence 5 years) and a first time offender would normally be sentenced to probation. If they are in prison on a drug possession charge the original charge may have been more serious or more likely they had violated probation.

Posted by: JSN | Aug 8, 2007 9:27:53 PM

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