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May 29, 2018

The Matthew Charles saga: another sad example of why complete abolition of parole was a mistake for federal sentencing

Matthew_charles-_march_2018_outside_wpln_1Last year I wrote an article in this special issue of the journal Federal Probation in which I explained why I believe the federal sentencing system has been disserved by the complete abolition of parole.  I have been thinking about that article in conjunction with the story that blew up my twitter feed over the weekend, the story of Matthew Charles described in this Nashville Public Radio piece.  Here are excerpts from a story that should be read in full:

It looks like a party — but Charles isn’t leaving for a big new job, or trying his luck in a new city. He’s going to prison. To finish out a 35-year term for selling crack to an informant in the 90’s.

Charles had already served 21 years before his sentence was cut short as a result of crack guideline changes passed by the Obama administration. But the U.S. Attorney’s office appealed his release on the grounds that Charles was legally considered a “career offender” due to a prior stint in state prison. They said the retroactive change in the law did not apply to him — and a Court of Appeals agreed.

“He’s rebuilt his life and now they’re coming to snatch it,” says "Wolf", who met Charles at a halfway house in 2016. They’ve volunteered together almost every Saturday since, long after fulfilling their community service requirements.  Wolf is talking to John Hairston, an old friend of Charles’ who flew in from Houston.  They’ve seen each other twice in over two decades — but for years, they wrote each other letters.  “The whole thing pisses me off to be honest,” he says, partly to Wolf and partly to the group of guests seated at another table across the lawn, who're listening intently and shaking their heads. “But it underscores how big a need there is for some reform in the justice system. I don’t care what they say.”

Since his release in 2016, Charles has held a steady job. He volunteers every Saturday, has reconnected with his family, and started a serious relationship. But really, his rehabilitation started years prior.

In prison, he took college classes and correspondence courses, he taught a GED program and became a law clerk. With his training, he helped other incarcerated men understand the judicial system long after their public defenders moved on to the next case.

Charles kept the secrets of those who were illiterate so they wouldn’t face ridicule or harassment — he read them letters from the court and drafted filings for them in the library. He organized bible studies and counseled newcomers. Two decades in federal insitututions — from maximum to low security — without a single disciplinary infraction.

Those that know Charles say they can’t understand why the justice system won’t recognize his rehabilitation. But the federal Bureau of Prisons did away with parole and most "good behavior" incentives years ago — even the best behaved must serve out the majority of their term.

Charles says the whole situation feels surreal. "I'm so tired” he says, after his hearing is postponed for the second time. “I am beyond tired. I always say to myself and others, ‘when is enough going to be enough?’”

Last time Charles faced time in prison, he was a drug dealer in his 20’s. At his sentencing in December 1996, a federal judge called Charles “a danger to society who should simply be off the streets.” Charles doesn’t dispute that. Until then, his entire life was embroiled in chaos....

Now in his 50’s, Charles has the support of friends and his community — and even the judge who ordered him back to prison. Everything is different. And yet, he says, nothing's changed.

On March 28, in a courtroom filled with more than two dozen of Charles’ friends, coworkers and loved ones, Judge Aleta Trauger called Charles’ case “sad” and commended his “exemplary rehabilitation.” But, she added that “her hands were tied” and reimposed his original sentence. She gave him 45 days to get his affairs in order.

The ruling from the Sixth Circuit explaining why Charles' sentencing reduction was improper is available at this link. It makes for an interesting read, as it notes that back in 1996 Charles' "recommended guidelines range [was] 360 months to life, but [the sentencing court] varied upward and imposed a 420-month sentence based on Charles’ background and misconduct." (I highlight this line because it itself reflects how the passage of time distorts reality: the original sentencing court did not quite "vary" upward because the concept of a "variance" did not exist prior to the 2005 Booker decision.) 

The initial decision to impose a prison sentence of 35 years rather than just 30 years on Charles may have made perfect sense circa 1996.  As explained by the Sixth Circuit, the district court had to consider "Charles’ many prior offenses: kidnapping a woman on two consecutive days 'for the purpose of terrorizing her'; burglarizing a home; and fleeing from a police interrogation, shooting a man in the head, and attempting to run off in the victim’s car."  But, obviously, Charles is now a much different man than the man he was when committing all these prior offenses.  But, just as obviously, modern federal sentencing law presents no way to give effect to changed realities because parole and other like mechanisms were vanquished through the Sentencing Reform Act of 1984.

I am a strong supporter of the FIRST STEP Act in part because it includes some parole-like features to enable the early release of offenders who have demonstrated rehabilitation potential in various ways.  (In my Federal Probation article, I describe certain prison reform efforts by Congress as a kind of "parole light.")  But I continue to think the federal system would be even better served by considering a more general return of parole, at least for sentences of a decade or longer, or at least considering the kind of second-look resentencing provisions (allowing judicial modification after serving 15 years of prison sentence) that have been put forward in the new American Law Institute's revised Modern Penal Code sentencing provisions (discussed here and here by leading academics).

May 29, 2018 at 05:13 PM | Permalink


Prof. on this we agree. The abolition of federal parole (even with all its associated problems) was a serious mistake. I very much like your idea: permitting eligibility (and I emphasize eligibily) for parole after a certain number of years. I would make it 5 instead of 10, but that's negotiable!

Posted by: Michael R. Levine | May 29, 2018 6:23:30 PM

Wow. We have a federal criminal justice system that deals with thousands upon thousands of criminal cases per year and deals with serious criminals. Apparently, Mr. Charles was one of them given his violent criminal history. So what was to be done about him? Was the lengthy sentence unfair at the time? No.

So now, Doug, you seem to think this anecdote somehow calls the whole abolition of parole into question? Wow. Well, let's look at this guy's criminal history--seems that the kidnapping for purposes of terrorizing a woman should have gotten a stiffer sentence, as should shooting someone in the head. I can point to this very same guy and argue that he's the poster child for harsher sentences.

I agree that this guy probably should have his sentence commuted to time served. But this is because we seem to know that he has, in fact, turned his life around and that the mistaken release turned out to be correct. But if we go back in time, there seem to be a lot of victims that would not have been victims had the book been thrown at this guy.

Be careful of your poster children, Doug,

Posted by: federalist | May 29, 2018 6:27:09 PM

Federalist, the value of a system of parole is that we can throw the book at bad guys and then reconsider the decision later (often much later) based on additional information. Parole decision making will never be perfect, but it enables improved decision making over time based on additional information. My point in this post is that 35 years looked right in the 1990s, but now in 2018 you note that 21 years proved sufficient. A system with parole of extreme sentences can make sense of these competing realities, a system without cannot.

Posted by: Doug B | May 29, 2018 11:07:55 PM

Obviously, Doug, lenient treatment of this guy earlier in his criminal career led to increased victimization. How can you trust parole boards to make the right decisions? You never answer the risk-allocation issue.

And you did choose the wrong person to make a poster child.

Posted by: federalist | May 30, 2018 6:14:37 AM

Doug. You will be the foster parent for this guy. He is coming to your house, on parole. What do you want the Parole Board to do? If he does not qualify for your home, why does his risk qualify him for anyone else's, especially in a poor neighborhood with little political clout?

He has slowed with age. He has not change in personal quality with age. If you have him in your home, I suggest you give him what ever he asks for.

Posted by: David Behar | May 30, 2018 8:23:38 AM

All advocates for decarceration should be forced to attest to the willingness to take in as many released felons as their home will hold.

Posted by: David Behar | May 30, 2018 8:42:45 AM

federalist: can you not understand that parole eligibility for persons serving a decades-long prison term is very different than "lenient treatment" on the front end? I do not "trust" parole boards any more than I "trust" prosecutors or judges or juries or anyone else with the challenge of predicting future behavior. But a parole board has the benefit of additional (imperfect) information about an offender collected over time. Again, you tellingly acknowledge that "time served" of 21 years is "probably" the right sentence here. Based on this observation, why are you not troubled that federal prosecutors have gotten this case so wrong to the tune of 15 years of excessive incarceration?

You have indicated before and you show it again here that you see no real cost to excessive incarceration. I do not see it that way, and I think this case is a good poster child for the risks of excessive incarceration being enhanced in a system without parole or some kind of general second-look resentencing provisions. Of course, there is a risk of recidivism for any and every offender released from prison. But the only way to eliminate that risk is through mass executions and/or mass LWOP. If you are not endorsing that, then the issue is what are the best sentencing decision-making systems to balance risks/harms. I think a system with some parole mechanism (as in states like Texas) is generally better than a system with no parole (as with the feds). Notably, the American Law Institute disagrees with me, as they advocate eliminating parole, but they have urged creation of a 15-year resentencing mechanism to reduced the risk of excessively severe sentences.

David: Based on this account of Mr. Charles, I would welcome him to my home. But it appears he has family members and friends who would prefer to have him in their midst. Many (but still not enough) released prisoners return to friends and family who are happy and eager to have them home. Notably, sentencing systems with parole often usefully are concerned with home placement and reentry upon release, see, e.g., http://www.pbpp.pa.gov/Understanding%20Parole/offendersfams/Pages/default.aspx. A system like the federal system without parole give little or no attention to placement and reentry because release dates are essentially fixed at the time of sentencing.

Posted by: Doug B | May 30, 2018 10:23:13 AM

If you take as a baseline assumption that there is some appropriate limit to the number of people in prison, then I don't understand why you wouldn't want to decide whether someone belongs in prison or the street closer to the time that they might actually go to the street. Why commit yourself to incarceration beyond the point when a person might demonstrate rehabilitation? If you got parole right, you could have both reduced incarceration and more effective incapacitation

Posted by: RW | May 30, 2018 11:22:00 AM

Makes the case better than I did.


I was originally persuaded on this point by Levitt's discussion of mandatory release orders producing increased crime. As I recall, he found the effect mitigated in states that parole boards, who could choose the least dangerous subset of the prison population

Posted by: RW | May 30, 2018 11:43:01 AM

Doug. If you would welcome him into your home, that is good enough an argument for me. I support release. What I do not support is the advocacy of some to send the released felons to other people's neighborhoods, especially people with less political clout.

I would bring up even the Exception Fallacy if a release felon went on a crime spree, but the majority did not, if verified by an immunized confidential survey. That study has not been done.


Posted by: David Behar | May 30, 2018 1:02:48 PM

Fed. The Dose Response Curve applies to all substances taken in to the body. Dilute the strongest poison, it has 700 medical benefits. Drink more water than the kidneys can put out, the water swells brain cells and crushes then against the skull, causing seizures then death.

I also believe it applies to all remedies. It was never mentioned in any discussion of Remedies. Too little does not work. Too much is toxic. Air pollution was like in India, EPA regs cleared the sky, dropped deaths from air pollution. Regs are excessive, their toxicty killed manufacturing. That means really hard work to get the points on the Dose Response Curve of legal remedies. The death penalty is on the too little side. I can see the arguments that the carceration level is on the high end, and toxic, especially to minorities. They are genetically the same as far the genetic tendency to crime. They are not dealing with the legal system effectively.

Posted by: David Behar | May 30, 2018 1:12:26 PM

Doug, I "admit" that we have good knowledge about this particular guy because he was let out (apparently mistakenly) and seems to be a person for whom release was, a posteriori, a good idea. The problem, of course, is that the decision is made a priori.

My point about not trusting parole boards is that we have mandatory minimums for a reason--namely, that parole boards and lenient judges were letting people back out on the street far too early, and criminals like Mr. Charles were committing preventable crimes. Mr. Charles is, in fact, a poster boy for revolving door justice.

And, while I am at it, I find it interesting that you seem to favor a "wait and see" approach with respect to letting people out in this case, but didn't criticize the Supreme Court's decision that the LWOP vs non-LWOP decision had to be made at the time of sentencing.

Posted by: federalist | May 30, 2018 7:41:26 PM

Interesting debate. I find it hard to understand how an optimal system could prefer set sentences to permitting opportunities for review based kn more information with the passage of time. The question almost answers itself. Sure a system with lost-hoc review will make srrors, but why in the world would one think there would be more error than in a system with a one-shot fixed sentence. The contrary view is akin to saying one would prefer to bet on a game at the outset when one could get the same odds with a free shot at seeing what happened in the first half. I also find arguments that the inmate somehow must bear the cost of error nonsensensical. There is a right answer — taking into account the public and private costs of incarceration versus costs of crime— error costs go to society. It individuals. I think this whole debate is warped by overvaluing the bad outcomes from leniency and undervaluing both human and economic costs of incarceratikn. For example, Bill Otis will argue unti he’s blue in the cace that a single horrible incident in Ohio means all early release is ill advised. Finally, doesn’t the dact that we have many times the rate of imprisonment than other industrialized countries with much lower crime rates —by itself— suggest at the least cause for reexamination and question of sacred cows like parole abolution?

Posted by: Mark | May 30, 2018 10:07:35 PM

The problem, Mark, is that, of course, theoretically (once you figured out how much retribution is needed and what sort of deterrence is needed) Doug is right. And so, assuming that we think that Charles' previous crimes were vindicated by his 21 years or, for that matter, let's assume that a murderer getting 15 years is somehow enough justice, the problem is that we don't have a crystal ball and there are a lot of too lenient judges (Olu Stevens for example) who have no business handing out sentences. Parole boards screw up--see Kenneth Macduff. So that's why we take the decisions out of their hands---it's risk allocation.

To be somewhat off-topic, take a look at that twice-deported illegal who killed the young woman in Houston. He was told to leave, and he didn't. Now a young woman is dead.

Posted by: federalist | May 31, 2018 7:35:09 AM

Any thoughts, Mark, on Kenneth Macduff or Komisarjevsky?

Posted by: federalist | May 31, 2018 7:48:12 AM

federalist, even if we fully accept the assertion that in the 1970s "parole boards and lenient judges were letting people back out on the street far too early," that does not mean that we perfectly recalibrated the federal sentencing system by abolishing parole forever in 1984 or that we could not do a lot better circa 2018. And even if Mr. Charles is a "poster boy" for the need to get a harsh sentence early in his criminal career, that can still be achieved in a system that permits at least some limited parole or second-looked resentencing after a decade of incarceration.

I appreciate you saying I am "theoretically" right, so now the key now is turning good theory into good practice rather than saying because we did it poorly 40 years ago there is no way we can do better now. Even if we do better we still will, of course, make mistakes --- some dangerous people will get released too soon and some not-so-dangerous people will not get released. But there are obvious costs to the status quo in terms of risk allocation just as you see costs from possible reforms. (As you often note, using prison beds for less dangerous persons means this always "scarce" resource is less available for the truly dangerous. California's reform failings for decades resulted in that Plata decision you love so much and a set of echo effects that many think have contributed to crime increases.)

I like Mark's betting metaphor on a day the NBA finals are starting. I am not against placing a huge bet on the over/under before the game starts, but I would much rather place that bet at a shop that will allow me to tweak my bet at halftime. To abuse this metaphor, you are saying essentially that because 40 years ago "parole boards and lenient judges" too often made bad bets on "the under" (in terms of prison time), it now makes sense to have a system titled (against good theory) to systematically play "the over." I am saying that within a system that now so often plays the over in terms of prison time, I want to get back to allowing parole boards to tweak the bet so that we can better adjust to obvious "over" mistakes like Weldon Angelos.

And, this is logically consistent with SCOTUS saying we should not have mandatory LWOP decisions about teenagers around the time of the crime. LWOP (like the death penalty) is the ultimate "over" bet. I do not think it should be mandatory for anyone AND I am generally against all LWOP sentences because it is the most costly (for society and the individual) of all bets. Requiring life with parole simply help ensure that if we are going to make a costly life-sentence "over" bet, we get some chance to reconsider the bet decades later (and that the sentenced defendant has some incentive to become a better person).

Posted by: Doug B | May 31, 2018 8:30:18 AM

I hope for the day that sentencing is fair, blind to race and other factors which defendants have no control over. This is someone who we should not be trumpeting for parole or relief of his proper original sentence. He kidnapped someone...twice...and shot someone in the head. I am sure these two victims were not happy with his release.

But this blog post is about parole. I have unfortunately had a lot of grief in my life as my Father and Brother were both murdered. I have had to testify at parole hearings to keep the murderers in jail as they tried for early release. This blog speaks from a distance, not attached to the people involved. Let me tell you from experience that sitting in a room with the person who took the life of your loved one, and listen to him speak of his "rehabilitation" and "finding God" while I grew up from the age of 10 on without my Father and the last 29 years without my Brother is not an easy thing to do. That is why I have always favored the federal 85% rule, the victims know how long the criminals will be behind bars and you don't have to subject yourself to that situation. I firmly believe if Mr Berman and other had to sit through such an experience five times (which I had to do), your views on parole would be different. If you want to advocate for shorter sentences, that's one thing, but parole hearings are not good for the victims of crimes.

I think this blog often forgets the victims!!!

Posted by: Kelly | May 31, 2018 10:22:41 AM

Kelly -

I am terribly sorry for your losses and ask the folkowing with great respect. Why should the system put the most focus on how a victim or his or her family feel about the oucome in a particular case? We are trying to find rational outcomes, and outcomes can be distirted if we guve undue weight to victim’s wishes. Why should the parole decision depend on how you feel about forgiveness? Some victims take a view that extending incarceration for the perpetrator will not erase the crime (or bring back their loved one), and that can be an admirable sentiment also. Victims have the option of not attending parole gmhearinds. And, again, I’m not sure a fair or rational system should turn on the victim’s decision in this regard. People who are incarcerated have loved ones also. And not all perpetrators —even tose who did horrible things —are irredemabe, whatever the view of the victim (however understandable).

I don’t mean to be insensitive, but these are important points for improving our criminal justice system.

Fed, the examples give are horrible incidents. But, again, does a rational system properly turn on anecdote?

Posted by: Mark | May 31, 2018 11:03:01 AM

I very much appreciate your perspective, Kelly, and I am grateful for your thoughtful and personal contribution to this discussion. You make an especially important point about sentence certainty having particular value for victims and the unique challenges that confronts victims through a parole process.

That said, one reason I am a supporter of at least some limited parole is because there are at least a few victims whose views on proper punishment also change over time. There may be many more victims whose views never change, but a parole process that ensures victim participation will allow all victims to have their (fixed or changing) views included in the process of any punishment adjustments. Still, your point is quite an important one: any process of possible sentence revision creates its own distinct problems for crime victims.

Of course, particularly with a focus on the federal system, there are lots of modern crimes subject to extreme punishments that do not have any clear victims. Half of all federal prisoners are incarcerated for drug offenses (though many, like Mr. Charles, may have prior offenses with victims). In the federal system, a good number of defendants could and should have access to sentence review without there being any obvious victim to be troubled by that process.

Posted by: Doug B | May 31, 2018 11:09:33 AM

In a determinate system, the victim's loss has been taken into account and they can move on with their lives. There is a definitive beginning and end to the process.

In an indeterminate system, the victim is periodically being re-victimized. Of course, the victim may choose to walk away from the situation and not testify, but we chose not to. Of course, people may be rehabilitated but, in my case, my loved ones don't have that opportunity, they are gone forever. No chance for redemption (depending on your religious beliefs).

I would be okay with a system for parole for non-violent crimes, but not one for violent crimes. Until you sit in that room, you truly can't understand.

Posted by: Kelly | May 31, 2018 12:11:07 PM

Kelly —

It is sadly true that your loved ones cannot be redeemed. But that is true whether or not the perpetrator is paroled. This is not a zeronsum game. To be sure, I am not a victim. But i simply don’t get it. Why create more misery and cost with more (unnecessary) incarceration if it doesn’t bring anyone back. I believe many victims see it tgat way also.

Posted by: Mark | May 31, 2018 3:15:03 PM

Just to add to your name list of people that should be given Clemency I would like to add CODY TYLER MCKINNEY , who was given a 16 year sentence at the age of 18. He turned 2o years old today...

Posted by: Linda Mckinney | Jun 8, 2018 10:15:21 PM

I want to ask a different question. In light of those priors, how was he out "in his 20s" to sell crack to an informant? Had he done 10 years for kidnapping the woman, perhaps he would have grown up sufficiently to decide not to burglarize the home? If not, perhaps in a sane world he might have served at least 5 more years for that one. If he was indeed reformed in his 30s, he then would not have shot a man in the head. Alternatively, in a sane world he might have served at least 10 years for the shooting (and been awfully lucky the victim survived), and, in light of the chronology, he would at that point have reached the age of 18+10+5+10=43, and been reformed at that point, would not have sold crack to an informant, and would therefore today be free.

Posted by: William Jockusch | Jan 1, 2019 10:29:31 PM

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