Parole Board Research Articles

Procedures for Proportionate Sentences: The Next Wave of Eighth Amendment Noncapital Litigation

With its 2010 decision in Graham v. Florida, the U.S. Supreme Court for the first time placed categorical Eighth Amendment limits on noncapital sentences. Graham prohibits life-without-parole sentences for juveniles in nonhomicide cases and requires states to provide these juveniles with a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” In 2012, in Miller v. Alabama, the Court again set a categorical Eighth Amendment limit — prohibiting mandatory life-without-parole sentences for all juveniles and requiring sentencers to give mitigating effect to youth-related factors when juveniles face life-without-parole sentences. Following Graham and Miller, 23 states have enacted statutes responding to the decisions and there has been extensive litigation nationwide. The first wave of litigation has largely focused on the scope of the Court’s categorical holdings, with lower courts considering questions such as: How long is a “life” sentence? Which crimes are “nonhomicides?” Do the decisions apply retroactively? A new wave of litigation is beginning to examine what procedures are required to ensure proportionate sentences under the Eighth Amendment. Across the country, states are using a range of approaches. In providing a “second look” for juveniles, some states are simply using existing parole systems, whereas other states have reformed their parole practices for juveniles or created special mechanisms for sentencing review through the courts. With respect to sentencing procedures, some states have adopted special procedures for serious juvenile cases. Other states have provided little guidance to sentencing courts. In the past several years, many individuals have been sentenced or resentenced under Miller, and parole boards have started holding hearings in some states. With these sentencing and second look proceedings underway, advocates have started to challenge the procedures that states are using. Are state parole boards in fact providing a “meaningful opportunity” for release to juveniles based on demonstrated maturity and rehabilitation? Are courts conducting sentencing hearings in compliance with Miller’s mandates? Eighth Amendment capital litigation has often focused on the procedures governing capital cases, and much can be accomplished by pushing for better procedures in the noncapital sentencing context. With hope, reforms to parole and sentencing processes for juveniles will not only improve outcomes for juveniles but will also lead to better procedures and outcomes for adults. Yet at the same time, advocates should not abandon efforts to push for further substantive Eighth Amendment limits on sentences — not only for children but for adults.

Lygtinio paleidimo iš pataisos įstaigų taikymo problemos Lietuvoje

Straipsnyje analizuojama asmenų lygtinio paleidimo iš pataisos įstaigų problematika Lietuvoje. Kokybinio tyrimo metu gilintasi į lygtinio paleidimo iš pataisos įstaigų komisijų darbą, taip pat buvo nagrinėjami teisėjų darbo ir sprendimų priėmimo ypatumai. Tyrimo tikslas: atlikus interviu su teisėjais ir lygtinio paleidimo iš pataisos įstaigų komisijų nariais nustatyti pagrindines priežastis, kodėl lygtinio paleidimo taikymas Lietuvos teismų praktikoje nuo 2003 m. iki 2015 m. nuolat mažėjo ir šiuo metu lygtinai paleidžiama mažiau asmenų, nei atlikusių visą bausmę. Straipsnyje pateikiamos išvados turėtų padėti teoretikams ir praktikams pamatyti lygtinį paleidimą teisėjų ir lygtinio paleidimo iš pataisos įstaigų komisijų narių akimis bei paskatinti dialogą tarp sprendimus priimančių teisėjų, pataisos namų darbuotojų, visuomenės atstovų.

Factors that Influence Parole Boards’ and Judges’ Decisions on Parole Application in Lithuania

Abstract This article examines problems of parole application in Lithuania. The research applies a qualitative study in order to learn the peculiarities of the work and decision-making of judges and parole boards. Additionally, this study analyzes social research reports, filled out by staff in correctional facilities. This study covers as many factors influencing parole application as possible, and takes into account the peculiarities of the particular parole stages. Conclusions of this study should help theorists and practitioners see parole application from the point of view of judges and parole board members. Moreover, this work should encourage dialogue between judges, prison staff and community members not only in Lithuania, but, also in other countries.

Dangerous Politics: Risk, Vulnerability, and Penal Policy (Clarendon Studies in Criminology) H. Annison. Oxford: Oxford University Press (2015) 288pp. £65.00hb ISBN 9780198728603

Dangerous Politics: Risk, Vulnerability, and Penal Policy (Clarendon Studies in Criminology) H. Annison. Oxford: Oxford University Press (2015) 288pp. £65.00hb ISBN 9780198728603

An impact assessment of machine learning risk forecasts on parole board decisions and recidivism

Objectives: The Pennsylvania Board of Probation and Parole has begun using machine learning forecasts to help inform parole release decisions. In this paper, we evaluate the impact of the forecasts on those decisions and subsequent recidivism.

No Mercy Here: Gender, Punishment, and the Making of Jim Crow Modernity by Sarah Haley

Reviewed by: No Mercy Here: Gender, Punishment, and the Making of Jim Crow Modernity by Sarah Haley Elaine Frantz Parsons (bio) No Mercy Here: Gender, Punishment, and the Making of Jim Crow Modernity. By Sarah Haley. ( Chapel Hill: University of North Carolina Press, 2016. Pp. 360. Cloth, $34.95.) Sarah Haley's No Mercy Here reveals the routine exploitation of black women's bodies and labor by the carceral state in Georgia in the late nineteenth through early twentieth century. Haley powerfully uses the story of black female incarceration to show "that gender is constructed by and through race, and that the production of woman and other stable gender categories required violence" (8). From the Reconstruction era through 1908, most incarcerated black women were sent to work camps under the convict leasing program. When convict leasing was abolished that year, they worked on the (state-run) chain gang and were often ordered to spend a probationary period as domestic servants. Haley traces the "queering" of incarcerated black women. The Progressive Era was the moment of the production of normative heterosexuality: marking incarcerated black women as queer was part of this project. Agents of the state labeled them as hypersexualized, mannish, and insufficiently domestic. In the convict leasing system, and then the chain gang, the women were forced to take on male work, sometimes even to wear men's clothing. State agents also displayed the women as hypersexual, punishing them by forcing them to appear partially naked in front of male guards and convicts, and subjecting them to sexual assault so regularly that when they became pregnant while incarcerated, the state treated their pregnancy as a natural event, asking no questions. Because the state imagined black women as outside of womanhood, forcing them to labor as men was natural, and their right to reject sex was unthinkable. Haley suggests that anxiety about white womanhood motivated this queering of black women prisoners. At a time when all women were claiming economic and political rights and sexual self-ownership, queer black [End Page 501] female prisoners became caricatures; by contrast, white women were rendered as domestic, modest, and compliant. White women who were arrested or incarcerated found both the public and agents of the state sympathetic to their claims that it was intolerable for them to be incarcerated alongside, or treated as though they were, black women. Black women through these years were approximately six times as likely to be arrested as were white women. Atlanta police arrested girls as young as twelve and women as old as sixty. Half were arrested for violent crimes (including infanticide, often on thin evidence), but some were arrested for even petty theft or vandalism. Arson convictions were also common. Standards of evidence to convict black women were demonstrably lower than those applied to white women. For instance, a white man accused a black woman of pickpocketing him on a city street in the dark. He was able to identify her as the culprit later, he claimed, because of the large size of her breasts. Haley catalogues the many physical abuses and deprivations that the white men who ran institutions like Milledgeville State Prison Farm regularly inflicted. In addition to being constantly subjected to sexual violence, incarcerated black women suffered physical injury from the grueling labor they were required to perform. They suffered sickness and early death from unhygienic conditions at the camps, exposure, lack of adequate medical care, and malnutrition. They were subjected to whippings that combined physical pain with a deliberately perverse display of gender role violation meant to underline their status as nonwomen. Even as it disciplined their bodies, the state constantly observed and labeled incarcerated black women: white people who worked in the prison system held themselves forth as experts who could explain black women's true natures and character. Incarcerated black women learned to explain themselves in terms that whites would find compelling. Unlike incarcerated white women, incarcerated black women had little success in asking for leniency on the grounds of their womanliness; courts and parole boards looked skeptically at black women's claims that they had committed crimes under duress, that they were too frail to do physical labor, or that...

The Future of Parole Release

AbstractAmerican parole boards have played a critical role in the formulation and administration of states’ prison policies in recent decades—and could play an equally important part in helping end mass incarceration. Long neglected by academic, research, and policy communities, systems of discretionary prison release are in need of improvement, if not “reinvention.” A plan for revitalization of parole release should lay out a comprehensive and aspirational model for the future. It must address the institutional structure of parole boards, how much release discretion they are given, the substantive grounds for release decisions, the use of risk assessments in the decisional process, decision-making tools such as parole release guidelines, the requirements of fair and reliable procedures, victims’ rights at parole hearings, the need for parole supervision in some but not all cases, the intensity of parole conditions, and the length of parole supervision.

The irrational hungry judge effect revisited: Simulations reveal that the magnitude of the effect is overestimated

AbstractDanziger, Levav and Avnaim-Pesso (2011) analyzed legal rulings of Israeli parole boards concerning the effect of serial order in which cases are presented within ruling sessions. They found that the probability of a favorable decision drops from about 65% to almost 0% from the first ruling to the last ruling within each session and that the rate of favorable rulings returns to 65% in a session following a food break. The authors argue that these findings provide support for extraneous factors influencing judicial decisions and cautiously speculate that the effect might be driven by mental depletion. A simulation shows that the observed influence of order can be alternatively explained by a statistical artifact resulting from favorable rulings taking longer than unfavorable ones. An effect of similar magnitude would be produced by a (hypothetical) rational judge who plans ahead minimally and ends a session instead of starting cases that he or she assumes will take longer directly before the break. One methodological detail further increased the magnitude of the artifact and generates it even without assuming any foresight concerning the upcoming case. Implications for this article are discussed and the increased application of simulations to identify nonobvious rational explanations is recommended.

“Rack ‘em, Pack ‘em and Stack ‘em”: Decarceration in an Age of Zero Tolerance

This article traces the recent history of prison population growth in Australia, discusses its causes, costs and benefits, and suggests ways in which the growth in Australian imprisonment rates may be contained or reversed without threat to public safety. Several options are discussed. They include abolishing short sentences, restoring discretion to the courts to set the relationship between the aggregate sentence and the non-parole period, giving Parole Boards greater discretion to deal with breaches of parole, reform of community corrections, and bail reform.

The language of parole: sex offenders’ discourse strategy use in Indeterminate Sentence Review Board hearings

Discourse analysis of 19 video-recorded Indeterminate Sentence Review Board hearings in the State of Washington Department of Corrections revealed that sex offenders used 45 distinct linguistic strategies. We found that discourse strategy use among offenders who were subsequently paroled differed from those offenders who were subsequently not paroled. Offenders who were subsequently paroled used apology, withholding information, and topic management strategies; in contrast, offenders who were not subsequently paroled used minimization, denial, rejecting the Parole Board’s concern, courtesies, repair, self-repair and other repair, and use of “I mean” as turn-grabbing and forewarning strategies.

Evaluating the Effectiveness of the National Curriculum and Training Institute’s “Cognitive Life Skills” Program among Parolees Supervised by Pennsylvania’s Board of Probation & Parole

Recently, cognitive-behavioral approaches for rehabilitation have shown measured success for reducing recidivism rates among offenders after release from prison. The present analysis utilized data provided by Pennsylvania’s Board of Probation & Parole about offenders who completed the Cognitive Life Skills program developed by the National Curriculum and Training Institute. Propensity scoring techniques were employed to match a group of offenders who completed the program (treatment) with a statistically equivalent group who did not receive it (control). Matching variables included location and year of release, risk level, gender, age, race, offense category, and history of violent offending. General findings from a Cox proportional hazard model revealed gender, age, and criminal history impacted future incidents of recidivism, measured as re-incarceration. More importantly, the hazard model revealed, on average, a 24 % reduction in recidivism among the treatment group offenders and, on average, a 31 % reduction among high risk offenders exclusively. Policy implications will be discussed.

Evaluating reentry programming in Pennsylvania’s Board of Probation & Parole: An assessment of offenders’ perceptions and recidivism outcomes

ABSTRACTPennsylvania’s Board of Probation & Parole recently developed a reentry program that provides intensive supervision and oversight to offenders during their reintegration back into the community. The present analysis examined findings gathered from 261 surveys and 226 interviews with program participants across four counties in Pennsylvania. Participants discussed topics related to substance abuse, program characteristics, and perceptions of program staff. Findings highlight program benefits and recidivism outcomes. Results indicate short-term effectiveness with diminished returns overtime. Improvements to the program are needed to ensure better long-term outcomes. Policy implications for offender reentry in Pennsylvania will be discussed.

New Title VII Litigation in Disparate Impact Ex-Offender Employment Cases

Employers that refuse to hire ex-offenders can be liable under federal and state law if unable to properly assess hiring risk. Employers that refuse to hire ex-offenders on the basis of criminal background risk violating anti-discrimination laws and employers that hire ex-felons risk liability for negligent hiring. In light of the legal restrictions that demand employers make decisions about conflicting goals over the inclusion and exclusion of ex-offenders and the lack of guidance provided in making such decisions, risk-averse employers are not prepared to make unbiased employment decisions. Case law, legislation, and reforms that address conflicts related to ex-offender employment provide protections to employers and ex-offenders that can ease the tension between employer liability and ex-offender employability. Several federal and state programs provide rehabilitation, certificates of relief, bonding insurance, and other provisions limiting employer liability for negligent hiring suits that reduce employers’ risks when hiring ex-offenders. Similarly, the reduction of employer hiring risk effected by such federal and state programs also serve to remove an employer’s litigation defense for business necessity under Title VII of the Civil Rights Act. Not only do the employer protections provide employers with incentives to hire ex-offenders without fear of economic repercussion, but they also facilitate the enforcement of anti-discrimination laws by removing the viability of the employers’ best litigation defense - business necessity. The courts can decide on a motion for summary judgment that the employer has no business risk that justifies denial of employment when employer protections are sufficient to show that there is no additional risk incurred in hiring an ex-offender as compared to hiring an average person.Although various laws in different state jurisdictions offer different protections, many states fail to provide one or more of a full set of legal protections that would ultimately help to remove employment barriers, reduce employer risk, and provide avenues of successful Title VII litigation. The following programs and legislative proposals could help resolve the mutual problems faced by employers and ex-offenders alike:1) Certificates of Employability - issuing certificates certifying an ex-offender’s rehabilitation including job types for which an individual’s criminal background would present low risk and which complies with business necessity; 2) Bonding Program - using the Federal Bonding Program or state counterparts that insure employer monetary losses due to employee misconduct for the duration of a job; 3) Exclusionary Rule/Limited Liability - limiting employer liability for those employers that hire certified and bonded ex-offenders by excluding the criminal record at trial or by precluding negligent hiring suits; and 4) Updating Ban-the-Box - updating Ban-the-Box to restrict searching or questioning an applicant’s criminal background until a conditional job offer that offers employment pending the results of a criminal background check is made. An appropriate expert body such as a parole board could properly assess job risk and an ex-offender’s rehabilitation certificate can provide guidance to employers. Limited liability laws and insurance programs could protect employers from resulting consequences of employee misconduct. Such legal protections reduce business risk. Under current case law, employers that discriminate on the basis of criminal background would be subject to Title VII when refusing to hire individuals that pose no business risk. Any laws that reduce employer risk in hiring ex-offenders, also provide a higher risk of legal liability if an employer wrongfully discriminates. The proposed legal protections, therefore protect employers and ex-offenders alike and also provide for a new avenue of Title VII litigation.

How to Get Out of Prison: Views from Parole Board Members

ABSTRACTConvicted lawbreakers sentenced to prisons do not always serve their entire terms inside correctional institutions. Instead, many inmates rejoin society as parolees, before their maximum sentences expire. Prior to receiving a discharge on parole supervision, however, an inmate often must be granted early release by a parole board. Utilizing semistructured qualitative interviews with 17 parole board members across four jurisdictions, this exploratory study examines what it takes to get out of prison and back into society from the perspectives of these parole gatekeepers. Policy implications, limitations, and directions for future research are discussed.

The ‘Focal Concerns’ of Parole Board Decision-Making: A Thematic Analysis

Following the high-profile murder of Jill Meagher in Victoria in 2012, parole is once again a provocative topic in Australia. While there is a developed scholarly literature on decision-making in other criminal justice areas, less attention has been paid to parole board decision-making. The study discussed in this article begins to address this gap in the literature through a thematic analysis of publicly available parole release decisions made by the Prisoners Review Board of Western Australia in 2013. Specifically, this study tests the viability of the focal concerns perspective as a conceptual framework for understanding parole board decision-making. Its analysis reveals that focal concerns relating to offender blameworthiness, community protection and practical constraints are evident in parole release decisions, albeit in a modified form from sentencing research to reflect the backend process of parole. In particular, decisions consistently project a strong sense of offender change. This article presents the study and discusses implications of these findings with respect to the use of the focal concerns perspective in parole research.

The Automatic Early Release and Supervision of Prisoners in Scotland

The Prisoners and Criminal Proceedings (Scotland) Act 1993 allowed for long- term prisoners – those subject to determinate sentences of four years or more and life sentences – to apply for release on parole at the half-way stage or to be “automatically” released on non-parole licence at the two-thirds stage of their sentence. Any decision to release prisoners before the two-thirds stage was taken by the Parole Board for Scotland, which also set all licence conditions, including statutory supervision in the community until the end of the sentence (unless otherwise revoked). Released prisoners who breached their licence conditions could be recalled to prison to serve the remaining period of their sentence, but otherwise the aim was for a period of monitoring and supervision in the community prior to sentence completion.

Court Supervised Institutional Transformation in South Africa

The traditional adversarial model of litigation in South Africa operates on the basis that two or more parties approach the court, each with its own desired outcome. The court is then obliged to decide in favour of one of the parties.
 A different model of litigation is emerging in South African law. This model involves actions against public institutions that are failing to comply with their constitutional mandate. In this type of litigation there is seldom a dispute regarding the eventual outcome that is desired. Both the applicant and the state, in its capacity of the respondent, have a broad consensus about the manner in which the institution should operate or be transformed. There is accordingly agreement regarding the eventual outcome and the shortcomings that should be addressed. The primary issue relates to the details of the implementation of the transformation of the institution in question, in order that the constitutional mandate of the institution in question will be met.
 An example of this form of litigation can be seen in litigation concerning the conditions in which prisoners are detained in South African prisons. The constitutional mandate for the imprisonment of offenders is contained in the Correctional Services Act.
 Ongoing human rights violations often take place in prisons. These include staff shortages, shortages of medical staff and facilities, prison overcrowding, inadequate staff development, the prevalence of HIV/AIDS, infrastructure defects and maintenance problems, gangsterism, requests for prisoner transfers and problems associated therewith, the ineffectiveness of parole boards, staff development needs that are not addressed, an excessive focus on security, lack of rehabilitation and vocational training programmes and assaults of prisoners.
 The courts have on occasion issued a structured interdict as an appropriate remedy. However, problems arise when violations are widespread and no single order can cause the problems to be properly addressed or where the executive fails to implement or even ignores court orders.
 Thus, the wrong which is complained of is not a wrong done to a particular person, but the constitutional wrong is the manner in which the institution executes its mandate vis-a-vis the vulnerable beneficiaries of the public service in question. The transformation thereof is designed to bring the institution within its constitutional duties and bounds. There is usually no dispute about the failures of the organisation and court orders are often taken by consent.
 The question which arises is how it can be ensured that a public institution such as a school, welfare department, hospital for the mentally disabled, home for the elderly or prison, which is designed to serve or accommodate the vulnerable may be brought into conformity with its constitutional mandate where there are continual and persistent failures to do so.
 Even where court orders are obtained, there are often significant problems with the implementation thereof. In the case of prisons, a possible solution, which has been employed in the United States of America and which may be adapted for use in the South African context, is that of a post-trial special master or court appointed supervisor, who supervises the transformation of the public institution until such time as the non-compliance has been appropriately resolved.
 In this article the role and functions of the American special master will be set out. The feasibility of importing such an office into the South African context will be evaluated.

Studying Parole in the “Spotlight”: Lessons from a Large American Jurisdiction

In September 2008 the Governor of Pennsylvania, USA, imposed a moratorium on all parole (early conditional) releases from the state prisons, which lasted until March 2009. As a political measure, the moratorium was triggered by a series of violent incidents involving recently released parolees culminating with the killings of several police officers. This paper documents the impact of the moratorium on the parole and correctional processes in the state and discusses its implications for the legitimacy of the two justice agencies affected, the Board of Parole and the Department of Corrections. The paper also describes the research undertaking of the team tasked with conducting the comprehensive review of parole and corrections at the Governor’s request, which circumscribed the lifting of the moratorium on the results of the investigation. In addition to qualitative data, the study employed quantitative methods to investigate through predictive analyses both parole decisions and parolee performance upon release. The challenges of conducting action research in the “spotlight” are also highlighted. The nature of the study and its setting in a large state in the United States should provide a useful illustration of problems and potential approaches to dealing with them that similar crime prevention tasks may face in other jurisdictions around the world relying on conditional release as a means of prison release.

Looking Beyond Risk in Paroling Denying Prisoners

This paper offers an additional theoretical perspective to the “Catch-22” problem as discussed in Assy and Menashe’s article, which appeared in the December 2014 issue of Criminal Justice and Behavior. It offers to look beyond risk in the discussion about parole of denying prisoners. By focusing on the retributive meaning of the problem, the paper offers an additional framework to discuss the magnitude of the problem (via proportionality analysis), and the overt and covert forces that influence a parole board’s discretion in action (via character retributivism analysis).

Influence of the HCR-20, LS/CMI, and PCL-R on decisions about parole suitability among lifers.

Among 5,181 inmates indeterminately sentenced to life in California who were evaluated for parole suitability between January 2009 and November 2010, 11% were granted parole. After administration of the HCR-20, LS/CMI, and PCL-R, psychologists judged most inmates (78%) to be at low or moderate risk for future violence. This overall risk rating (ORR) was significantly associated with parole suitability decisions. Moderate to large associations were observed between the ORR and all risk indices. The HCR-20 Clinical and Risk Management scales demonstrated the strongest associations with parole suitability decisions. Among the LS/CMI scales, Procriminal Attitudes and Leisure/Recreation were most predictive of failure to obtain parole. PCL-R scores had little influence on parole suitability decisions beyond the HCR-20 and LS/CMI. Overall, findings suggest parole board members' decisions were consistent with empirically supported practice, in that individuals assessed to be at relatively low risk were far more likely to be granted parole than those assessed to be at moderate or high risk for future violence.