Current due process law gives little protection to prisoners at the point of parole, even though the parole decision, like sentencing, determines whether or not a person will serve more time or will go free. The doctrine regarding parole, which developed mostly in the late 1970s, was based on a judicial understanding of parole as an experimental, subjective, and largely standardless art--rooted in assessing the individual "character" of the potential parolee.
In this Article we examine the foundations of the doctrine, and conclude that the due process inquiry at the point of parole should take into account the stark changes in sentencing and parole practice over the years. Since the development of the parole due process doctrine in the 1970s, two seismic shifts have occurred. First, the constitutional protections provided at the initial sentencing have vastly increased. Second, the parole process itself has been transformed by the move to evidence-based parole guidelines and the use of actuarial risk-assessment instruments as the norm in parole decision-making.
In this Article we document the changes in this under-scrutinized area and assert that the liberty interest in parole should more closely match the present-day legal account of the liberty interest that courts afford defendants at sentencing.
TABLE OF CONTENTS INTRODUCTION 214 I. EARLY PAROLE DEVELOPMENT AND DUE PROCESS PROTECTIONS 216 A. Parole Practice 216 B. Review Under the Due Process Clause 219 C. Due Process at Sentencing 228 II. CHANGES IN CONSTITUTIONAL PROTECTIONS AT SENTENCING 229 A. Sixth Amendment Protection for Facts that Increase a Defendant's Sentence 230 B. Eighth Amendment Protections 235 III. PAROLE AS WE NOW KNOW IT 238 A. Sentence Length Is Still Commonly Determined By A Parole Board 238 B. Use of Guidelines for Parole Release Decisions 241 C. Use of Risk and Needs Assessments for Release Decisions 244 IV. How MODERN PAROLE AND SENTENCING PRACTICE INFORMS THE LEGAL PROTECTIONS AVAILABLE UNDER MODERN PAROLE 249 CONCLUSION 251 INTRODUCTION
Sentencing and parole are two sides of the same coin. Both involve figuring how much risk the individual poses to the public, and then deciding how much time the person should serve. But when it comes to the due process protections afforded to defendants at sentencing and to prisoners at parole, defendants at sentencing get modern due process rights, while prisoners at parole get barely a horse-and-buggy. The foundational law of sentencing and parole, especially the stark differences in the level of due process protections afforded at the front end versus at the back end of the criminal justice system, is a product of the time when it was developed by the U.S. Supreme Court. We think that changes in sentencing and parole since then have made the asymmetry unwieldy and anachronistic, and that a correction is called for.
To be specific, the Court set the pattern for its parole due process cases back when parole was still viewed as something new and experimental. It was a time when parole boards engaged, at least according to the lore of that era, in a fine-grained assessment of the character of the potential parolee. This narrative about the art of granting parole was instrumental in the Court's framing of the extent to which due process protections attached to parole decision-making.
In 1979, in Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, (1) the Court first examined the due process protections that should be given to the parole decision. (2) In denying that there was a fundamental liberty interest in parole, the Court described the parole decision as a "synthesis of record facts and personal observation filtered through the experience of the decisionmaker and leading to a predictive judgment as to what is best"3--what the Court called a "discretionary assessment of a multiplicity of imponderables, entailing primarily what a man is and what he may become ...." (4)
Even at the time of Greenholtz, this system of broad parole discretion was coming under criticism. (5) To the extent that the Court's vision of parole was true at the time, it is not true now. Today, parole occurs in a different landscape, against a backdrop of a shift in sentencing systems, additional broad constitutional protections at sentencing itself, and a blurring of the line between sentencing and parole. Further, modern parole decisions are made with detailed guidelines and based on actuarial tables about the statistical likelihood that a person with the inmate's characteristics will reoffend.
In light of these shifts in sentencing protections and parole practice, this Article invites a re-examination of the foundations of the due process protections provided to prisoners at the point of parole, and posits an approach to the due process interest in parole that reflects these modern realities.
In Part I, we describe aspects of early parole practice and the law of due process that developed around parole. We look closely at Greenholtz, which specifically examined the due process interest in parole release, but we also look at the cases leading up to and following Greenholtz.
In Part II, we outline shifts in the due process protections provided to defendants at sentencing, particularly the increased legal and constitutional constraints placed on the sentencing process.
Taken together, Parts I and II reveal that today there are two disparate regimes--a front-end sentencing regime which gets significant constitutional scrutiny, and a back-end sentencing regime (parole) which gets little. Instead of being viewed as a unitary or overlapping process that determines how long people who commit crimes should serve, today, sentencing and parole have become disconnected, functionally and analytically.
In Part III, we describe modern parole practices, with a focus on the decision whether or not to parole. This Part first looks at the prevalence, even in the modern sentencing era, of parole. Second, this Part examines two interrelated moves in parole practice--the use of parole guidelines and the use of risk and needs-assessment instruments. Some important points emerge. First, parole still matters. Although indeterminate sentencing may have fallen out of favor in recent decades, most prisoners are still subject to parole because that is the regime under which they were sentenced. Second, the types of parole guidelines, and the types of risk-assessment tools that parole boards use today, are quite different from the ones that were in place when the U.S. Supreme Court laid down the doctrines that contributed to the "deregulation" of parole. Today, most parole boards rely at least in part on actuarial-based studies, and not on the more subjective, nuanced predictions of human behavior that were the norm when the Supreme Court moved to a more hands-off approach to parole.
In Part IV, we advance the idea that the due process inquiry into the parole release decision should take into account the changes in the reality of sentencing and parole practice. The liberty interest in the parole release decision should more closely reflect the current legal account of the liberty interest at sentencing; a fundamental liberty interest in parole should be recognized.
EARLY PAROLE DEVELOPMENT AND DUE PROCESS PROTECTIONS
For most of the eighteenth and nineteenth centuries, parole as we know it today did not exist. (6) Criminal defendants were typically sentenced to fixed prison terms, and early release was a matter of executive clemency. (7) In the late nineteenth and twentieth centuries, penology became more scientific, and the insights of psychology began to be applied to it. (8) In the twentieth century, to encourage good behavior and to foster rehabilitation, corrections professionals requested, and legislatures passed, new laws permitting indeterminate sentencing (with minimum and maximum terms, for example ten to fifteen years). (9) The theory was that inmates should be given the chance to earn their way to freedom. (10) Indeterminate sentencing was coupled with reward structures like good-time or disciplinary credits, which could shorten both the minimum and maximum terms of well-behaved inmates. (11)
But by far the most innovative and effective reward was release on parole. (12) Parole's main virtue was that it provided a powerful inducement for inmates to conform to social norms in order to win early release. (13) An additional virtue of parole was that it extended that inducement even beyond release, via the threat of re-incarceration for a parole violation. (14) By the second half of the twentieth century, parole was becoming a ubiquitous feature of American penal law, in both the state and federal systems. (15) By the late 1970s, parole boards exercised authority to release more than 70% of all the people leaving prison. (16)
For most of the twentieth century, parole boards maintained relatively unfettered discretion when paroling prisoners. (17) Or, as it was described in 1976, "The parole decision, as a key element of a system premised on rehabilitation or 'correction,' is seen as a judgment (usually made by inadequately informed decisionmakers) of whether an inmate meets some subjective, largely unarticulated standard of 'reformation' or 'recovery' from mental or social illness." (18)
REVIEW UNDER THE DUE PROCESS CLAUSE
The due process rights of people convicted of crimes vary with the setting and have changed over time. The key case as to parole--both in terms of the Court's examination of the parole release decision under the Due Process Clause, and in terms of the Court's explanation of its understanding of parole is Greenholtz. (19) But the Court's parole-related decisions before and after Greenholtz give a fuller understanding of how the doctrine came to be what it is today.
Oddly, we start with a case that is not a parole case, but that is foundational for modem due process...