By Jorge Renaud
February 26, 2019
From arrest to sentencing, the process of sending someone to prison in America is full of rules and standards meant to guarantee fairness and predictability. An incredible amount of attention is given to the process, and rightly so. But in sharp contrast, the processes for releasing people from prison are relatively ignored by the public and by the law. State paroling systems vary so much that it is almost impossible to compare them.
Sixteen states have abolished or severely curtailed discretionary parole,1 and the remaining states range from having a system of presumptive parole — where when certain conditions are met, release on parole is guaranteed — to having policies and practices that make earning release almost impossible.
Parole systems should give every incarcerated person ample opportunity to earn release and have a fair, transparent process for deciding whether to grant it. A growing number of organizations and academics have called for states to adopt policies that would ensure consistency and fairness in how they identify who should receive parole, when those individuals should be reviewed and released, and what parole conditions should be attached to those individuals. In this report, I take the best of those suggestions, assign them point values, and grade the parole systems of each state.
Sadly, most states show lots of room for improvement. Only one state gets a B, five states get Cs, eight states get Ds, and the rest either get an F or an F-.
|Indiana||F-||New Mexico||F-||West Virginia||D|
To assess the fairness and equity of each state’s parole system, we looked at five general factors:
In addition, we recognize that some states have unique policies and practices that help or hinder the success of people who have been released on parole. We gave and deducted up to 20 points for these policies and practices. For example, we gave or deducted some points for:
|Helpful factors||Harmful factors|
|Does not prohibit individuals on parole from associating with each other or with anyone with a criminal history (5 pts.);||Explicitly prohibiting individuals on parole from associating with others under supervision, or with anyone who has a criminal record (5 pts.)|
|Capping how long someone can be on parole (5 pts.) or allowing individuals to earn “good time” credits that they can apply toward shortening their time on supervision (5 pts.)||Allowing the board to extend the period of supervision past the actual end of the imposed sentence (5 pts.)|
|Does not require supervision or drug-testing fees. (5 pts.)||Requiring individuals on parole to pay supervision or drug-testing fees (5 pts.)|
Parole boards can only review individuals who the legislature (and sometimes judges) say they can. Sixteen states passed laws effectively denying the possibility of parole for almost everyone committing crimes after those laws went into effect. To be sure, many of the remaining 34 states deny parole for individuals committed of certain crimes, but still offer discretionary parole to the majority of incarcerated individuals at some point in their sentence. Those 34 states all received 20 points. The states that have abolished discretionary parole received zero points and their procedures (for people convicted under the old law) were not evaluated further.
Unlike what happens in the movies, most parole hearings don’t consist of a few stern parole board members and one sweating, nervous incarcerated person. Most states don’t have face-to-face hearings at all, and instead do things like send a staff person to interview the prospective parolee. The staff person then sends a report to the voting members, who each vote (perhaps in isolation), and the incarcerated individual never has a chance to present their case or present their parole plans to the voting members, or perhaps to speak to their crime, or to rebut any wrong information the board may have. On the other hand, most states, by legislative mandate, give prosecutors and crime survivors a voice in the process. I have five metrics by which I rate whether or not a state has robust practices when it comes to parole hearings.
Certain principles should be present in a fair parole system. Do all incarcerated individuals have a chance to earn parole? Do they understand what is expected of them? If they fulfill all the criteria expected of them, does the parole board grant parole or deny parole for other, more subjective reasons? And if the board denies parole, how often are individuals reviewed again? I graded states on the extent to which their parole systems reflect those principles.
A parole hearing could be someone’s only shot at freedom for years. If they don’t know what programs the board expects them to take, or what information they may have to challenge, and if they can’t prove to the board they have possible employment and a place to stay, the board isn’t going to let them go. Preparation matters, and I suggest two metrics to judge states by how well they help people prepare for their parole hearings:
One of the strongest critiques of state parole systems is that they operate in secret, making decisions that are inconsistent and bewildering. Neither the individuals being considered for parole nor the general public understand how parole boards decide who to release or who to incarcerate further. When parole systems reject people for arbitrary or capricious reasons, they unintentionally, but to devastating effect, tell incarcerated people that their transformation does not matter. And the public, who is paying for the criminal justice system, deserves to know how it works and how well it works.
Many states have begun to rely on parole guidelines and validated risk assessments as a way to step back from the entirely subjective decision-making processes they have been using. These instruments have their own deficiencies, but states that use them and provide the public access to that decision-making process were graded higher than states that refuse to pull back the parole-decision curtain.
Transparency can be measured in three ways:
Subsequent to publication of this report, we learned that:
This report relies heavily on the publications of the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota, which centralize many important details about parole eligibility, hearings, and post-release policies and conditions.
Our list of 16 states that have abolished discretionary parole is based on the Robina Institute’s classification of states as having either largely a determinate — without discretionary parole — or indeterminate — with discretionary parole — system. (See sidebar)
Our policy suggestions — and the relative point values — are our own, but the data for 27 of the states is based on the Robina Institute’s excellent series Profiles in Parole Release and Revocation: Examining the Legal Framework in the United States.5 For the seven states with indeterminate sentencing systems that the Robina Institute has not published profiles for (Mississippi, Montana, North Dakota, Tennessee, South Carolina, South Dakota, and West Virginia), Prison Policy Initiative volunteers Eva Kettler, Sari Kisilevsky, Joshua Herman, Simone Price, Tayla Smith and I delved into statutes and parole board policies to collect the necessary data. The sourcing for each state is in Appendix A. Additional data about how these policies are reflected in grant rates, technical violaton rates and other outcome metrics are available in the appendix to my earlier report Eight Keys to Mercy: How to shorten excessive prison sentences.
Our intent with the scoring was to make it possible to compare systems that are both very different and very complex in a way that will make sense across state lines. In particular, we tried to give factors that we felt were more important a greater weight. Other advocates — and some state leaders — may disagree with some of our findings of fact or with the weights that we gave to various factors that make up a fair and equitable parole system. We welcome new information and factual corrections, and encourage our readers with different ideas on how parole should work to publish alternative analyses with their own scoring systems.
Four of the sections require more comment:
We also gave extra credit — and sometimes took away points — for post-release policies. All too often, states that offer programs to incarcerated individuals to help them succeed then allow that work to be undone by harmful post-release policies.7 State parole authorities returned to incarceration approximately 60,000 individuals on parole for technical violations in 2016 without those individuals committing a new offense.8 The conditions placed on those leaving prison are rarely in and of themselves violations of law. If an individual on parole leaves the county without permission, buys a car without telling a parole official, or tests positive for drugs, those behaviors should be dealt with through collaboration between parole officials and community agencies. At no time should a non-criminal violation subject someone on parole to re-incarceration.
I thought three post-release conditions were worthy of singling out:
Re: association. This prohibition is based on a belief that merely being in the company of another person on parole — or who has a criminal record, regardless of how long ago the actual crime occurred — will invite criminal behavior. This policy ignores the widely-accepted idea that the mentorship and guidance of someone who has gone through a negative experience — be it incarceration, cancer, divorce, substance abuse, the death of a spouse or child — is affirming and positive. Lastly, denying those leaving prison the right to associate with others like them ignores the powerful impact on local, state, and national criminal justice policy reform by groups of formerly incarcerated individuals, many of whom are on parole, all of whom have criminal histories.
Re: time limits. I gave points to states that provide one or more mechanisms to shorten parole because there is no evidence that unending supervision results in anything other than higher recidivism rates. (Recall that currently people are rarely granted parole unless they are deemed a low risk of committing another crime.) Meaningful supervision when someone first leaves prison can be positive, if it is not overly restrictive and goal-oriented instead of sanction-oriented.9 However, many states issue a boiler-plate set of conditions that are not tailored to individual needs, and thus do not contribute to successful reentry. As Massachusetts officials readily admit, “by virtue of being under supervision in the community, an inmate may have a higher likelihood of re-incarceration.” Shockingly, a few states even give parole boards the power to extend supervision past the end of the imposed sentence10 — a devastating policy with dubious legality.
Re: fees. Finally, very few individuals have the economic means to comply with the array of fees that some states impose. While these states usually claim to waive fees depending on the released individual’s capacity to pay, in truth, parole officials pressure newly released people to pay as much and as quickly as possible and threaten to impose sanctions otherwise. That ignores two truths:
Individuals should not bear the cost of their incarceration. Supervision is simply an extension of that cost.
To be sure, some states have quirky11, mostly punitive, conditions of supervision that might warrant point deductions, but we choose not to do that because it was not possible to have a comprehensive review of these conditions that would allow for truly fair comparisons between states.
A report of this scope cannot be written without the help of others. I am deeply indebted to the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota for their invaluable series on state parole polices which centralize many important details about parole eligibility, hearings, and post-release policies and conditions. Eva Kettler, Sari Kisilevsky, Joshua Herman, Simone Price, and Tayla Smith helped dig through parole policy and statutes to fill in details from states not yet covered by the Robina Institute and Mack Finkel prepared the analysis of the National Corrections Reporting Program data to show how many people in each state are currently eligible for parole hearings.
One challenge with writing a report like this is keeping it centered on the experience of people hoping for release on parole while also making sure that this report is relevant in all states, and to this end I am particularly thankful for the feedback of Laurie Jo Reynolds and Alex Friedmann who helped improve this report on a very short deadline.
Finally, I thank my Prison Policy Initiative colleagues for support and encouragement, especially Peter Wagner for patiently editing and helping me develop the scoring system and organize the state-by-state data in a form that will be useful to other advocates.
Jorge Renaud is a Senior Policy Analyst at the Prison Policy Initiative. He holds a Masters in Social Work from the University of Texas at Austin. His work and research is forever informed by the decades he spent in Texas prisons and his years as a community organizer in Texas, working with those most affected by incarceration. His most recent report was Eight Keys to Mercy: How to shorten excessive prison sentences (November 2018).
For example, Wisconsin changed its sentencing structure in 2000 to eliminate the option of discretionary parole for all offenses committed after that date. But in California and Washington, discretionary parole was eliminated for most offenses, although it is still available for life and certain other offense/sentencing types. Of course, the federal constitution did not allow states to remove parole for offenses committed prior to the law change, so some people are still reviewed for discretionary parole. For how discretionary parole release differences from the systems of "mandatory parole" used in many of those 16 states, see the methodology. ↩
The willingness of some states to interview applicants for parole via video may reduce costs at the expense of fairness. Judge Amiena Khan, the executive vice president of the National Association of Immigration Judges, said that videoconferencing “does not always paint a complete picture” of a detained immigrant, referring to the growing use of videoconferencing in detention hearings. The judge said “it’s more difficult to interact, to judge eye contact and nonverbal clues like body language.” While the judge was specifically referencing immigrants in detention, incarcerated individuals interviewed by video face the same barriers when trying to persuade a parole board to grant them parole, barriers that resulted in higher deportation rates for those whose cases were heard via video. See Goldbaum, Christina. “Videoconferencing in Immigration Court: High-Tech Solution or Rights Violation?” The New York Times. (Feb. 12, 2019.) ↩
We have seen certain states deny someone for parole but promise immediate release when a certain program is completed. This should happen more often. ↩
Unfortunately, the transparency of parole systems in those 16 states has declined since they abolished discretionary parole, though it's not clear if there is a causal connection. ↩
We are not, at this time, proposing a specific measure. But it is important to distinguish the sentencing practices of states that give out sentences of 10 to 30 years with parole eligibility starting at the 10th year from the states that give out sentences that range from 20 to 21 years. ↩
For example, Nebraska granted parole to 87% of the individuals who were eligible for discretionary release in 2014, then turned around in 2016 and returned 416 individuals on parole to prison for technical violations without committing new offenses. ↩
“Supervision periods should have a relatively short maximum term limit — generally not exceeding two years — but should be able to terminate short of that cap when people under supervision have achieved the specific goals mapped out in their individualized case plans.” From “Toward an Approach to Community Corrections for the 21st Century.” Program in Criminal Justice Policy and Management. Harvard Kennedy School. (July 2017.) ↩
See Arkansas Code Title 5. Criminal Offenses S 5-4-107. Extended supervision and monitoring for certain sex offenders. (b)(1). Kentucky Revised Statutes. Chapter 532-043 Requirement of postincarceration supervision of certain felonies. (1)(a). ↩
Alaska prohibits an individual on parole from changing residence without notification and considers an overnight stay a change of residence, punishable by parole revocation. Colorado specifically prohibits anyone under “criminal supervision” from attending a meeting at the Legislature that concerns the Parole Board. In Idaho, the risk assessment and parole guideline instruments are exempt from public disclosure. In Pennsylvania, all life sentences are Life Without Parole. On the other hand, Montana should be applauded for requiring that their parole board members have “expertise and knowledge of American Indian culture.” ↩