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August 10, 2013

"Parole: Corpse or Phoenix?"

The title of this post is the title of this very interesting looking new paper authored by Paul Larkin Jr. of The Heritage Foundation and now available via SSRN.  Here is the abstract:

For most of the twentieth century, the federal government used an indeterminate sentencing system at the front end of the correctional process and a parole system at the back end in order to determine when an offender should be released from prison. In 1984, Congress sought completely to revise the federal sentencing and correctional processes. Congress adopted a mandatory sentencing guidelines system in order to restrain the discretionary sentencing authority that federal courts traditionally had enjoyed. Congress rejected an advisory guidelines system because Congress believed that such a process would not eliminate the sentencing disparities that had plagued the federal criminal justice system for decades. Because the new mandatory guidelines would both regularize the sentencing decision and determine when a prisoner would be released, Congress repealed the federal parole laws as being unnecessary. The Supreme Court upheld the constitutionality of the new system over separation of challenges in Mistretta v. United States, 488 U.S. 361 (1989), and parole seemed to have passed into history.

Sixteen years later in United States v. Booker, 543 U.S. 220 (2005), however, the Court held that the same mandatory sentencing guidelines system upheld in Mistretta violated a defendant’s rights under the Sixth Amendment Jury Trial Clause. Booker and later decisions have made the federal sentencing guidelines advisory. The problem is that Congress rejected an advisory guidelines system and would not have repealed the parole laws if the federal sentencing process did not strictly constrain district courts’ sentencing authority. One of the consequences of the Booker decision, accordingly, is that federal sentencing now is susceptible to the same disparities that Congress sought to remedy with mandatory determinate sentencing guidelines in 1984. The article discusses the question whether the Booker decision has breathed new life into the federal parole laws now that the condition precedent for their repeal, adoption of a mandatory sentencing guidelines system, is no longer in effect.

August 10, 2013 at 01:51 PM | Permalink


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Not a chance in hell. This is the law student/professor equivalent to college freshmen staying up until 4 a.m. in their dorm lounge, passing around a joint and/or bottle, and solving all the world's problems. It does not even pass the laugh test.

Posted by: anon | Aug 10, 2013 6:56:15 PM

I would expect Congress to fix the mandatory nature of the guidelines by providing for jury findings of sentencing factors BRD before I would expect the return of federal parole.

Posted by: Soronel Haetir | Aug 10, 2013 8:59:38 PM

Whether you call it parole or compassionate release or something that sounds more neutral, it seems to make dollars and sense for the authorities to make a "risk assessment" of some kind subsequent to the initial sentencing to look at what things might have changed.

Posted by: alan chaset | Aug 11, 2013 9:42:21 AM

Because Congress shifted the parole responsibilities for D.C. inmates to the U.S. Parole Commission when it shut down the D.C. Parole Board and moved D.C. inmates into the Federal BOP, from the notorious Lorton Penitentiary in Virginia, the U.S. Parole Commission remains in existence and operation, just in case Congress ever decides to reinstitute the possibility of parole for Federal inmates, as a means of unwinding the mass incarceration that has been in place for more than 15 years, since the SRA of 1984 was implemented in November 1987.

Posted by: Jim Gormley | Aug 11, 2013 10:03:46 AM

Alan makesa very good point. Determinate sentences seem inherently irrational compared to indeterminate sentences with real parole possibilities. In sentencing -- an area rife with potential for error in either direction -- why would a rational system declined to consider relevant information down the road? Error could be greatly decreased. This seems like an easy one if one were to apply basic error cost principles. I don't find arguments that victims or their families deserve "closure" or finality very compelling when set against the very real prospects for improving decisionmaking outcomes. Do we find ourselves where we are because victims' rights advocates and political responses thereto have distorted the system? Would be very interested in what Professor Berman and others think about whether determinate sentencing is inherently irrational.

Posted by: Mark | Aug 11, 2013 4:55:07 PM

the problem mark is the current govt is not even willing to look at ACTUAL INNOCENCE down the road as it were. They sure as hell are not going to look at a REAL CRIMINAL's history.

Short of walking through our govt from local all the way to the national lvl and shooting every other person. That is not going to change!

The rot has went too far.

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