Normative elements of parole risk.

• Author: Ball, W. David

INTRODUCTION

In prison systems employing discretionary parole release, prisoners are not granted automatic release into society at the end of an enumerated sentence of years. Instead, a parole board assesses whether eligible prisoners meet criteria for safe release. The upside to sentences terminating in parole release what I will call indeterminate sentences (1)--is obvious. First, states can use parole as a population safety valve without indiscriminately endangering public safety, since parole boards can release only those prisoners least likely to reoffend. Second, indeterminate sentencing gives prisoners incentives both to behave and to rehabilitate themselves, since misbehavior and untreated risk factors will prolong their stay in prison. Parole boards are ideally situated to make prerelease assessments of a prisoner's risk because they can do so shortly before release. A sentencing judge, on the other hand, can only hazard a guess at what risk an offender might present at the end of his or her term. Parole fits neatly within the wider move towards evidence-based sentencing, which involves the use of actuarial tools and risk assessments to guide officials in their decisions about sentencing and release.

Although California employs indeterminate sentencing for several types of crimes, the state's use of indeterminate sentencing is less a form of parole release than a form of parole retention: few prisoners are ever released. According to statute, parole shall "normally" be granted unless "consideration of the public safety requires a more lengthy period of incarceration," but this presumption of release is not observed in practice. (2) Just six parole-eligible murderers out of several thousand eligible were granted parole release during the tenure of Governor Gray Davis; by one recent estimate, each year the parole board finds only three percent of parole-eligible prisoners serving life sentences suitable for release, and only one percent are actually released after review by the full parole board and the governor. (3) Parole guidelines and expert assessments of risk are supposed to result in predictable and logical release decisions. In California, however, release decisions are predictably and illogically negative.

One reason for California's parsimonious release rate has to do with the fact that the parole board considers only the risks of release, not the benefits. Without analyzing the costs and benefits of release (or retention), however, we cannot assess whether release (or retention) is worth the cost. But even if we could calculate the costs and benefits more accurately, the parole board would still be faced with what I contend is a normative question: whether an offender should be released. How much risk is too much risk? How much cost is too much cost? Without clearly answering these questions ex ante, the state has backed into a policy commitment one individual release decision at a time.

In this Article, I argue that these normative questions are not ones that the parole board should answer. Parole board officials are experts at evaluating risk, but they are not experts at calculating how much society values (or devalues) those risks. Other bodies must set the policy, answering the "should" questions about how much risk reduction is worth what cost, leaving the parole board to implement these policies. So, while I will propose that the parole board be empowered to more accurately evaluate costs and benefits of release and retention, at the same time, l will propose that other bodies determine the policy questions of how much risk is too much.

I will propose two contradictory policies as means of exploring how these normative decisions might otherwise be reached. The first policy would involve a systematic, actuarial approach wherein legislation or regulation could more clearly set out the parameters of release and create mechanisms to ensure that these values drive parole release. Population or percentage targets, for example, would force individual parole decisions into a broader population context. These individual decisions would no longer result in unforeseen aggregate consequences; instead, the system as a whole would control the prison population more in line with system- and society-wide costs and benefits.

The second policy looks through the other end of the telescope, replacing actuarialism with a more normative, if less scientific, body: the jury. This would provide for greater normative legitimacy at the cost of transparency and systemic management, but it might also better reflect the idea that what constitutes a risk worth taking might be so situational that we can only be guided by standards. That is, the real issue in parole release might properly be framed as one of process, not outcome, and that, in the absence of social agreement on particular normative values, we might want to use the jury as a means of hashing out those values in each case as it comes along.

These suggestions are not meant as concrete policy proposals; after all, it would be foolish to suggest completely incompatible ideas. Rather, ! hope these suggestions frame different aspects of parole, illustrating how different goals might require different release (or retention) mechanisms. In some ways, each proposal tests a hypothesis about whether parole is inherently about risk or inherently about desert, or whether it is irreducibly about both.

The Article will proceed as follows. Part I explores ways in which we might better contextualize risk by looking at the costs and benefits associated with various outcomes. I conclude that California's failure to account for the benefits of parole release and the costs of parole denial results in denial decisions that do not accurately reflect social utility. If the costs of risk reduction are not part of the decision, then as long as an inmate poses any risk, he or she will be denied parole.

In Part II, I will explore the two contradictory proposals that seek to vest the normative aspect of parole release--who should be released--in the legislature or in a jury of citizens. Ultimately, these two proposals illustrate that parole mechanisms are tied to the purpose of parole, and that risk and desert in the parole context are not easily separated.

1. RISK ASSESSMENT REQUIRES COST-BENEFIT ASSESSMENT

   It seems obvious that deciding whether to reduce risks without evaluating the costs and benefits of reducing those risks is illogical. After all, society has a finite amount of resources and an infinite number of uses for them. Subpart A looks at the California parole equation and points out that it does not account for costs and benefits of the release/retention calculation. Subpart B suggests ways in which the costs and benefits of parole might be more accurately accounted for.

   A. California Parole Boards Consider Risks, Not Costs and Benefits

   California regulations require that parole boards evaluate whether an offender "will pose an unreasonable risk of danger to society if released from prison." (4) The board is to consider "[a]ll relevant, reliable information," but the enumerated examples of this information in the code of regulations--such as the offender's social history, criminal history, and commitment offense--are centered entirely around the individual prisoner. (5) There is no suggestion that the board look explicitly at whether this individual prisoner poses a greater or lesser risk than other prisoners. Officials are also not directed to look at the costs and benefits of continued incarceration; they are only directed to evaluate the risks of release. Even though the governing statute indicates that release should be presumptively granted (6)--which might be seen, in some ways, as a judgment that the average case will not present unreasonable danger--the presumption does no work, and few eligible prisoners are released. (7)

   Without considering the benefits of granting parole, there is no incentive for parole boards to vote in favor of release. The retention cost borne by the parole board is zero: parole boards are not rewarded for any of the social benefits of release and are not penalized for the social cost of continued incarceration. As long as the parole board's retention cost is zero, any potential release risk greater than zero will justify retention. At the same time, release potentially imposes significant reputational and political costs to the board. Parole board commissioners are appointed by the governor, and released parolees who kill are not good news for gubernatorial incumbents. The long-term costs of a swollen prison system are, of course, borne primarily by the governor's successors, particularly in states with term limits. (8)

   On the other hand, California recently took a step towards aligning the costs of retention with social costs and benefits, passing a statute enabling the board to grant "medical parole" for prisoners with huge medical bills. (9) The legislation's sponsor, Mark Leno, specifically identified the opportunity cost of keeping seriously ill inmates in prison, declaring that he "would rather keep 100 school teachers employed than continue to waste millions of taxpayer dollars on incarcerating 10 severely incapacitated inmates." (10) But even this tentative step applies only to extremely costly inmates who pose almost no public safety risk: only a prisoner who is "permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour care" is eligible for release, and even these incapacitated prisoners must nevertheless "not reasonably pose a threat to public safety." (11) The new legislation cannot be seen as part of a larger discussion about the cost of risk reduction; it simply accounts for cases where the cost is prohibitive and the risk is infinitesimal. The truth is that Leno's analysis...