In the area of federal criminal law, the next administration ought to undertake a number of initiatives: polish the Department of Justice’s tarnished image by ensuring that appointments to leadership positions are rigorously merit-based and by avoiding dubious prosecutions that appear politically motivated; make the federal criminal justice system a real leader and innovator in developing community-based alternatives to prison for nonviolent offenders; likewise, make the federal system a leader and innovator in implementing restorative justice and other processes that are more responsive to victim needs than conventional criminal case processing; seek the elimination of mandatory minimum sentencing statutes; and bring greater coherence and transparency to an executive clemency process that was extraordinarily kind to Scooter Libby, but that rarely does anything for offenders who are not politically connected. Although I regard all of these as matters of considerable urgency–and will perhaps blog about some of them at greater length later this month–I might put still another initiative at the top of the list: restore the possibility of parole release for federal prisoners.
Congress eliminated parole, a longstanding feature of the federal criminal justice system, in 1984. Prior to 1984, a parole board set the release date for federal inmates, usually at a time between one-third and two-thirds of the total length of the sentence imposed. By the early 1970’s, the parole system was drawing a great deal of criticism for its lack of transparency and the seeming arbitrariness with which release dates were set (much as the executive clemency system is criticized today). In point of fact, clear, sensible parole guidelines were adopted in the mid-1970’s, but the negative image of parole persisted.
In part, this was due to the perception that parole was “soft” on criminals. But there is nothing intrinsic to parole that requires it to be more lenient than the alternative (so-called “determinate” sentencing). Indeed, prisoners serve more time on average in states that have retained parole than in states that have eliminated it. In this regard, it is important to recognize that paroled offenders remain under criminal justice supervision and can be returned to prison through special expedited procedures if they commit fresh infractions.
There was also a perception that parole was anti-victim because victims could not be sure at the moment of sentencing exactly how long offenders would spend in prison. Parole opponents made a lot of hay with their “truth in sentencing” slogan–who can support a system that is implicitly labeled as dishonest? But I could never see the dishonesty in saying to victims, “Defendant X is getting a sentence of [say] six years of criminal justice supervision, of which at least two (and maybe more) will be spent in prison.” There is a difference between uncertainty and dishonesty. And even the level of uncertainty was reduced by the adoption of parole guidelines. Concerns regarding fairness to victims can be further alleviated by ensuring that victims are kept informed about parole eligibility and upcoming proceedings throughout the period of incarceration, and by affording them opportunities to participate in the decisionmaking processes.
So what are the benefits of parole? First, parole gives inmates greater incentives to behave themselves in prison and try to make real progress towards rehabilitation because these forms of good conduct can help to hasten their release dates. Second, parole helps to ensure more efficient use of prison resources, reserving them to a greater extent for the most dangerous offenders. Judges try to do this at sentencing, but they can’t realistically be expected to know in advance how offenders will adapt to prison life and change over the course of many years of incarceration. Imagine that you are a judge trying to pick a sentence somewhere between six and twelve years for a twenty-year old drug offender. Will the offender be safe to return to the community in six years? Eight years? Twelve years? This is little more than a guessing game. Parole sensibly defers the decision until more information is available. Moreover, in a time of ballooning budget deficits, it is especially important to ensure that the offenders who are good bets for release are in fact being released, and that adequate criminal justice resources are available to hold the offenders who are not good bets for release. Finally, parole helps to ensure greater uniformity in the treatment of similarly situated offenders. Without parole, the length of time that offenders spend in prison is determined almost entirely by the hundreds of different judges making sentencing decisions on a case-by-case basis. To be sure, their discretion is constrained by sentencing guidelines, but the guidelines are not binding and are subject to varying interpretations by individual judges. By contrast, parole redistributes some of the power of judges to a centralized executive agency, which is better able to ensure consistent treatment of offenders across cases.
So it’s time for the federal criminal justice system to go back to the future: let’s bring back parole . . . and let’s do it right this time from the start, with transparent guidelines and procedures that reassure victims, offenders, and the public at large that the system is genuinely committed both to fairness and to public safety.