Lots of studies and reports clutter the landscape of criminal justice reform where bold, simple laws are needed!
This comprehensive (long) article reflects the degree to which justice now is elusive, not routine, in the system, and it discusses many possible improvements.
IF YOU HAVE A SERIOUS INTEREST IN CRIMINAL JUSTICE REFORM READ IT; IF NOT SKIP IT, FOR YOU ARE LIKELY TO GET BOGGED DOWN AND CONFUSED!
Having been immersed in all of these issues for twelve years now, I am struck that the authors seem to have no idea about powerful forces which prevent reform, which dictate how parole and probation really work, etc. Let me sum it up again: the system today is a gravy train for millions of people – for every one person arrested 29 benefit financially (judges, cops, prosecutors, support staffs, PDs, prison personnel, probation and parole officers, and innumerable thousands of private contractors!). HEREIN LIES A HUGE PROBLEM BECAUSE MANY OF THE ABOVE SPEND MILLIONS OF DOLLARS LOBBYING LAWMAKERS AND DONATING TO THEIR CAMPAIGNS…. yet this report seems oblivious to this fact. 🙁
Excerpts from the Article:
After decades of explosive growth, prison populations have mostly flattened. Much of that is due to lawmakers lessening penalties for drug possession or low-level property offenses. While a welcome start, a bolder approach is necessary to truly begin to make a dent in the numbers of individuals who have served and will serve decades behind bars. This approach will take political courage from legislators, judges, and the executive branch of state governments.
Approximately 200,000 individuals are in state prisons serving natural life or “virtual” life sentences. And as of year’s end 2015, one in every six individuals in a state prison had been there at least for 10 years.
These are not merely statistics. These are people, sentenced to unimaginably long sentences in ways that do little to advance justice, provide deterrence, or offer solace to survivors of violence. The damage done to these individuals because of the time they must do in prison cells – as well as to their families and their communities – is incalculable.
People should not spend decades in prison without a meaningful chance of release. There exist vastly underused strategies that policy makers can employ to halt, and meaningfully reverse, our overreliance on incarceration. We present eight of those strategies below.
Understanding long prison terms and mechanisms for release
Too many state prisons hold too many individuals doing too much time. The goal of our eight strategies is to bring immediate relief to these individuals, by creating or expanding opportunities for their release. However, to discuss such reforms, we first need to understand the basic mechanisms by which someone is released from prison. In particular, it’s important to have a general idea of how parole works.
In general, when someone is convicted of a felony and sentenced, that person loses their liberty for a period of time. A portion of this period is typically served in a prison, and often a portion is served in the community under supervision, also known as parole. When parole boards have discretionary power, they periodically review someone’s case to determine if they should be released, beginning on their earliest release date. (One’s earliest release date may be well before the end of their punishment, or close to the end of their punishment, depending on state- specific statutes and requirements set by the judge.)
Discretionary parole, mandatory release, and determinate and indeterminate sentencing explained
There are two basic types of release systems. Most states say they have one or the other, but it’s more helpful to think of your state’s system as incorporating elements of both. Here we explain the two types.
For instance, someone convicted of aggravated robbery might be sentenced to a maximum of 30 years in prison, and in most states would be eligible for release after a certain period of time, let’s say 10 years. At that 10-year mark, this individual reaches their earliest release date, and the parole board considers their release on parole for the first time. If not released on parole, the parole board continues to consider release at regular intervals until that person is granted parole or maxes out their sentence.
Our 8 strategies
The eight suggested reforms in this report can shorten time served in different ways:
Several ways to make people eligible for release on parole sooner.
One way to make it more likely that the parole board will approve conditional release on parole.
Several ways to shorten the time that must be served, regardless of sentencing and parole decisions.
One simple way to ensure that people are not returned to prison.
Of course, states vary in many ways, most critically in how they structure parole eligibility (see sidebar above), and policymakers reading this report should anticipate tailoring our suggested reforms to their state systems. Each of the reforms laid out in this report could be effective independent of the others. However, we encourage states to use as many of the following tools as possible to shorten excessive sentences:
Presumptive parole ⤵
Second-look sentencing ⤵
Granting of good time ⤵
Universal parole eligibility after 15 years ⤵
Retroactive application of sentence reduction reforms⤵
Elimination of parole revocations for technical violations ⤵
Compassionate release ⤵
Presumptive parole is a system in which incarcerated individuals are released upon first becoming eligible for parole unless the parole board finds explicit reasons to not release them. This approach flips the current parole approach on its head, so that release on parole is the expected outcome, rather than one that must be argued for. Under this framework, an incarcerated person who meets certain preset conditions will automatically be released at a predetermined date.
How parole boards make decisions
Parole decisions are often tricky to predict or interpret. We explain the (often faulty) logic that informs parole decisions.
Currently, parole boards treat continued confinement as the default and must justify why someone should be released. Logically, parole should only be denied if the board can prove that the individual has exhibited specific behaviors that indicate a public safety risk (repeated violent episodes in prison, refusal to participate in programming, aggressive correspondence with the victim, etc). But parole board members – who are almost exclusively gubernatorial appointees – may lose their jobs for merely considering to release someone sentenced to life, or for releasing someone who unexpectedly goes on to commit another crime. As a result, many parole boards and their controlling statutes routinely stray from evidence-based questions about safety (see sidebar, right).
The subjectivity of the current process is powerfully illustrated by the tremendous variations in the rate at which states grant parole at parole hearings, which vary from a high of 87% in Nebraska to a low of 7% in Ohio, with many states granting parole to just 20% to 30% of the individuals who are eligible.
Graphic showing parole grant rates in every state.Figure 3. Not all states make their parole grant rates available, but the existing data – collected by the Robina Institute – shows a tremendous variation between states (often resulting from the differences in state parole systems). In a few states, the data is more complicated for other reasons. Washington State, for example, eliminated discretionary parole in July 1984, leaving that option only to individuals who committed crimes before that date. However, Washington’s Indeterminate Sentence Review Board says it also reviews for release on parole anyone convicted “of certain sex offenses on or after Sept. 1, 2001” along with “persons who committed crimes prior to their 18th birthday and were sentenced as adults.” Therefore, it’s unclear how to report the parole grant rate for Washington.
An effective parole system that wants people to succeed will start with the assumption that success is possible. Instead of asking “why” the parole board should believe in the person coming before them, it should ask “why not” let that person go, then outline a plan that includes in-prison program participation and post-release community-based programming to help the potential parolee overcome barriers to release.
Changing this presumption would also create powerful new incentives for the entire system. The Department of Corrections would have an incentive to create meaningful programs, and incarcerated people would have an incentive to enroll and successfully complete them.
An effective presumptive parole system would have elements like those often found in Mississippi, New Jersey, Michigan, and Hawai’i:
Give clear instructions to incarcerated people on what they need to do in order to be released on a specific date.
Give clear instructions to incarcerated people, if they are denied release, on what they need to do to be released at the next hearing.
Require re-hearings in no more than 1 or 2 years.
Provide case managers to help incarcerated people develop a plan to be successful at parole decision time.
Provide transparency to incarcerated people by sharing as much information as possible about how the parole board reached its decision.
Provide transparency and accountability to the legislative branch by requiring annual reports on the numbers of, and reasons for, denials of parole, especially denials of individuals whose release has been recommended by guidelines supported by validated risk assessments.
Of course, those four state models have limitations that other states should be cautious about repeating:
Limiting presumptive parole to only certain offenses or for certain sentences.
Allowing parole boards to set aside official guidelines and deny release for subjective reasons.
Second look sentencing
Second-look sentencing provides a legal mechanism for judges to review and modify individual sentences. The most effective way to do this is described in the newly revised Model Penal Code, published by the American Law Institute.
The reality is that people and societies change, as do views about punishment.
The Model Penal Code recommends a process by which long sentences are automatically reviewed by a panel of retired judges after 15 years, with an eye toward possible sentence modification or release, and for subsequent review within 10 years, regardless of the sentence’s minimum parole eligibility date. This proposal also requires that state Departments of Corrections inform incarcerated people of this review, and provide staff resources to help them prepare for it.
The reality is that people and societies change, as do views about punishment. Second-look provides the opportunity for judges to weigh the transformation of an incarcerated individual against the perceived retributive benefit to society of 15 incarcerated years.
Second-look is the only proposal in this report in which the judiciary would play a leading role, and that makes it particularly powerful tool in a reformist toolkit because polls show that people trust the judiciary much more than they trust the legislative or executive branches of government.
Granting of good time
States can award credit to incarcerated individuals for obeying prison rules or for participating in programs during their incarceration. Commonly called things like “good time,” “meritorious credit” or something similar, these systems shorten the time incarcerated people must serve before becoming parole eligible or completing their sentences.
Conceptual graphic showing how good time impacts time served.Figure 5. This schematic of time served shows how a good time system can make people eligible for release on parole sooner and how it can make the ultimate completion of their sentence shorter. As this section describes, states vary greatly in how much good time they award and in what circumstances they award it.
States are unnecessarily frugal in granting good time and irrationally quick to revoke it. Good time should be granted to all incarcerated individuals, regardless of conviction and independent of program participation. Prisons should refrain from revoking accrued good time except for the most serious of offenses, and after five years, any good time earned should be vested and immune from forfeiture.
As the name implies, good time is doled out in units of time. Good time systems vary between states, as the National Conference of State Legislatures has previously discussed. In some states, the average amount of good time granted is negligible (North Dakota) or non-existent (Montana and South Dakota.) But in others, administrators are empowered by statute to award far more. For example:
Alabama can award up to 75 days for every 30 days served;
Nebraska can award six months per year of sentence, and can grant an additional three days per month for clean disciplinary records;
Oklahoma can award up to 60 days a month, plus additional credits for various kinds of positive disciplinary records, and a number of one-time grants for various educational or vocational accomplishments.
Procedures will vary from state and incarcerated people may not automatically be awarded the statutorily authorized maximum. In Texas, for example, the statute authorizes up to 45 days per 30 served, but the more typical amount awarded is 30, with the full amount reserved for people with non-violent sentences assigned to work outside the fence or in close proximity to correctional officers.
The most robust good time systems will:
Make good time eligible to every incarcerated person regardless of conviction, and ensure that every incarcerated person can apply good time toward initial parole or discharge. (For instance, Rhode Island prohibits individuals convicted of murder, sexual assault, child molestation, or kidnapping a minor from earning good time. And while Texas allows all individuals to earn good time, people with certain convictions are not allowed to apply it in the only two ways allowed – to lessen the time they must serve before initial parole eligibility or to shorten their actual time served.)
Fully fund any programs in which participation can result in receiving good time. For example, if drug treatment or educational classes make someone eligible for additional good time credits, there should not be a significant waiting list.
Avoid the common pitfall of restricting valuable rehabilitative programs to only those close to release and low-risk and justifying those restrictions by pointing to lean budgets. This runs contrary to best practices, which say that “targeting high-risk offenders for intensive levels of treatment and services has the greatest effect on recidivism, and low-risk inmates should receive minimal or even no intervention.”
Grant additional good time to people who are physically or mentally unable to take advantage of a program that gives good time. Many incarcerated people are mentally or physically incapable of engaging in programs, and anyone in that category should be awarded the maximum offered to those who can engage in programs.
Allow good time to be forfeited only for serious rule and law violations and allow forfeited good time to be restored. Texas, for example, prohibits the restoration of forfeited good time, while Alabama allows restoration by the Commissioner of the state Department of Corrections upon the warden’s recommendation. Finally, states should not allow one incident to result in a loss of good-time accrued over years, by vesting earned good-time after a certain period. We again rely on the Model Penal Code, which suggests good-time credits earned over five years be vested and untouchable.
Universal parole eligibility after 15 years
While many states will retain the option of imposing long sentences, their sentencing structures should presume that both individuals and society transform over time. This proposal uses the same 15-year timeline as proposed by the Model Penal Code for Second Look Sentencing discussed above.
States will vary in how they structure sentences and how parole eligibility is calculated, but states should ensure that people are not serving more than 15 years without being considered for parole.
Retroactive application of sentence reduction reforms
Sentences are determined based on the laws in place at the time the crime was committed. Unfortunately, when sentencing reform is achieved, it almost always applies only to future convictions. This means people currently incarcerated experience unequal justice and fail to benefit from progressive reform. Our statutes should be kept current with our most evolved understanding of justice, and our ongoing punishments like incarceration should always be consistent with that progress, regardless of when the sentence was originally imposed.
For example, one significant sentencing reform that was not made retroactive was Congress’ modifications to the Anti-Drug Abuse Act of 1986, which created the infamous crack cocaine/powder cocaine disparity that treated possession of small amounts of crack cocaine as equivalent to possession of 100 times as much powder cocaine. Congress recognized that this law was based on irrational science and resulted in disproportionate arrests for people of color and changed it in 2010, but the reform was for new drug crimes only. People sentenced under the old law were forced to continue to serve sentences that were now considered unjust.
Our statutes should be kept current with our most evolved understanding of justice.
Delaware passed a justice reform package in 2016 that not only reformed three- strikes laws but allowed those convicted on three-strikes statutes to apply for a modification of their sentences. Delaware took the common-sense step of making its reforms retroactive, but far too few legislatures do.
Historically, when sentencing reforms do grant relief to individuals already serving lengthy sentences, it is more often the result of a judicial order. (Courts make their decisions retroactive either by requiring states to change their laws, or by having the states erect frameworks for incarcerated people to apply for resentencing.)
When the U.S. Supreme Court reversed an earlier decision and declared in 1963 that it was unconstitutional to put poor people on trial without first appointing them a lawyer, the Supreme Court ignored the State of Florida’s plea to not make the ruling retroactive. The Supreme Court did so knowing that it would apply to many thousands of people serving prison sentences in five southern states, including a substantial portion of Florida’s prison population.
In 2002, the U.S. Supreme Court reversed its earlier decision and, in Atkins v. Virginia barred the execution of the intellectually disabled — the Court used the term “mentally retarded” — instructing that the Eighth Amendment’s prohibition against cruel and unusual punishment should be interpreted in light of the “evolving standards of decency that mark the progress of a mature society.” The Court did not define “mentally retarded,” leaving each state to devise its own standards. Over the next 11 years, at least 83 individuals condemned to die instead had their sentences reduced because of a finding of “mental retardation” stemming from Atkins.
The Supreme Court has made other improvements in sentencing retroactive as well, including barring execution for offenses committed before age 18 and barring mandatory life without parole sentences for offenses committed before age 18.
State courts have also made changes retroactive. For example, in 2012 the Maryland Court of Appeals ruled in Unger v. Maryland that that jury instructions in capital murder convictions prior to 1981 were flawed and ordered new trials for the approximately 130 individuals still incarcerated with life sentences. (Most of those people were released by the state and placed on probation to great success.)
Elimination of parole revocations for technical violations
Parole supervision should focus on strengthening ties between individuals on parole and their communities. Unfortunately, the emphasis is more often on pulling parolees out of the community and returning them to incarceration at the first sign that they are struggling, with parole officers intent on “catching mistakes through surveillance and monitoring, rather than on promoting success via rehabilitation and support.” Parole officers have the power to return people to prison for “technical violations” that represent no threat to public safety and may simply indicate that a person on parole needs more assistance, or less stringent rules, not more incarceration.
Approximately 60,000 parolees were returned to state prisons in 2016 not because they were convicted of a new offense, but because of a “technical violation” such as missing a meeting with a parole officer or traveling to another state to visit a relative without permission. (Parole officers in Massachusetts can even re-incarcerate a parolee if they believe the person “is about to” engage in criminal behavior.) For people who have already served years in prison and worked hard to earn their release, states should make sure that parole officers are supporting their reentry, rather than sending them back.
Parole revocations for technical violations are a problem in most states, but 10 states in particular were responsible for a majority of such revocations in 2016:
Graph showing that in 2016, 10 states were responsible for 69% of all parolees sent back to prison for technical violations of parole.Figure 7. These ten states accounted for over two-thirds of all returns to incarceration for technical violations of parole conditions in 2016, according to the Bureau of Justice Statistics (BJS). See an alternate view of how much parole revocations for technical violations cost these states annually. Note that Wisconsin is not included in these graphs, because the state did not report any revocations to BJS; however, it reports 2,923 “revocation only” admissions to prison in 2016 (and even more in 2017) on its Department of Corrections website.
States should stop putting parolees behind bars for behaviors that, were the individual not on parole, would not warrant prison time. If a parole condition is itself a law violation, it can be dealt with by the criminal justice system. For example, a parole condition common to all states prohibits parolees from possessing firearms. Since states make it a criminal offense to be a felon in possession of a firearm, traditional criminal justice procedures can be brought to bear when a parolee is found with a firearm. All other, non-criminal violations should be addressed through community intervention and should never subject someone on parole to re-incarceration.
How often does your state re-incarcerate people on parole for technical violations?
See state-by-state data from 2016.
Some states take great care to avoid sending people to prison on technical violations, but other states allow high rates of re-incarceration. In order to increase the likelihood that individuals on parole succeed, and to lighten the load on overwhelmed parole officers, states should adopt suggestions advanced by the Robina Institute and Columbia University Justice Lab:
“Front-load” supervision resources immediately after release, when individuals released from prison are most likely to need support;
Tailor conditions to individual parolees instead of using boiler-plate language intended to cover every possible situation;
Limit the length of time an individual can be on parole regardless of sentence, and shorten parole terms by granting good-time for compliance with conditions.
Compassionate release is the release of incarcerated individuals, usually but not exclusively aged, who are typically facing imminent death, and who pose no threat to the public. This process is often lengthy and cumbersome, which is unfortunate given that people recommended for compassionate release are almost always terminally ill or profoundly incapacitated and the complicated nature of this process means many die before their cases are resolved.
All states but Iowa have a framework for compassionate release, but currently few states use compassionate release to a meaningful degree. The processes vary tremendously, but the basic framework is the same: An incarcerated person is recommended for release on compassionate grounds to prison administrators, who then solicit a medical recommendation, and then administrators or members of the parole board approve or deny a conditional release. These programs are plagued by many shortcomings, including:
Requirements that a person be extremely close to death, or so incapacitated that they do not understand why they are being punished.
Requiring medical professionals to attest that someone is within six months, or nine months, of death. Health professionals are reluctant to give such exact prognoses, which means prison officials will default to the “it’s safer just to not let this person go.”
Allowing prison personnel to overrule medical prognoses.
To be sure, some states do certain facets of compassionate release better than others, but states would be wise to implement the recommendations of the Model Penal Code on compassionate release, along with FAMM’s excellent suggestions. Particularly robust compassionate release systems will:
Be available to all incarcerated people regardless of the underlying offense.
Streamline all processes and set reachable deadlines so that petitioners don’t die due to bureaucratic bottlenecks before they are released.
Limit the ability of prison officials to overrule, on medical grounds, a recommendation of release by medical professionals.
Commutations are modifications of a sentence by the executive branch to either make someone eligible for release before they otherwise would be, or to release them outright. These decisions are usually made by the governor, or some combination of the governor and a board, whose members are themselves often appointed by the governor. (For a detailed description of the process and structure in each state see The Criminal Justice Policy Foundation’s helpful summary.)
Definitions: “Pardons” vs. “clemency”
“Commutation,” “pardon” and “clemency” all mean slightly different things. We explain pardons and clemency and how they relate to commutation.The procedures are often very similar, but the outcomes vary greatly between the states. Typically, an incarcerated individual submits a petition to the governor’s office, who reviews the petition or forwards it to whatever board must make the initial recommendation. At that point, the petition is approved or denied based on whatever criteria that state uses.
There is not a comprehensive data source on the numbers of commutations granted across the 50 states, but it appears that clemency in general and commutation in particular are used far less than they have been in years past. Notable recent exceptions are former Illinois Gov. George Ryan (R), who in 2003 commuted the death sentences of all 167 individuals on death row to either life or a sentence of years, and Mike Huckabee (R), who as Arkansas governor issued 1,058 acts of clemency, many of them commutations and pardons to individuals with violent crimes.
Executives should consider using commutation in a broad, sweeping manner to remedy some of the extremes of the punitive turn that led to mass incarceration. Many executives have the power to shorten the sentences of large numbers of incarcerated individuals or to release them altogether. It will be tempting for governors to take caution from President Barack Obama’s methods, which were bogged down by bureaucratic, structural and political cautiousness. We suggest following the unique strategies of President Gerald Ford, who granted clemency to tens of thousands of men for evading the Vietnam War.
If states are serious about reversing mass incarceration, they must be willing to leaven retribution with mercy and address the long sentences imposed during more punitive periods in their state’s history. This report provides state leaders with eight strategies to shorten overly long prison sentences. All that is left is the political will.
About the Prison Policy Initiative
The non-profit, non-partisan Prison Policy Initiative was founded in 2001 to expose the broader harm of mass criminalization and spark advocacy campaigns to create a more just society. The organization is known for its visual breakdown of mass incarceration in the U.S., as well as its data-rich analyses of how states vary in their use of punishment. The Prison Policy Initiative’s research is designed to reshape debates around mass incarceration by offering the “big picture” view of critical policy issues, such as probation and parole, pretrial detention, and reentry outcomes.