Parole: corpse or phoenix?

• Author: Larkin, Paul J., Jr.

TABLE OF CONTENTS INTRODUCTION I. THE BIRTH, MATURATION, AND SENESCENCE OF PAROLE A. The Birth of Parole B. The Maturation of Parole C. The Senescence of Parole II. THE DEATH OF PAROLE III. THE POSSIBLE RESURRECTION OF PAROLE A. The Apprendi and Booker Cases B. Severability 1. Can the Remainder of the SRA Operate Independently of the Provision That Made the Sentencing Guidelines Mandatory? 2. Would Congress Have Passed the SRA if the Sentencing Guidelines Were Merely Advisory? 3. Does It Matter That No One Asked This Question Until 2013? C. It's Alive! It's Alive! IV. A POSTSCRIPT CONCLUSION INTRODUCTION

Remember parole? It was a fixture in the criminal justice system of every state and the federal government for most of the twentieth century. What happened to it? Congress and the states adopted parole in the nineteenth and twentieth centuries as a means of releasing inmates who had been deemed "rehabilitated." Over time, the federal and state governments became disenchanted with parole, later using it (or so the story goes) just as a means of relieving prison overcrowding and, in many cases, eventually eliminated it altogether in favor of one or another determinate sentencing regimes. For those jurisdictions, parole is just another artifact in a criminal justice museum.

The federal government was a leader in this movement. Almost three decades ago Congress passed the Sentencing Reform Act of 1984. (1) The SRA created the United States Sentencing Commission and chartered it to devise, and revise as necessary over time, (2) a mandatory, determinate Sentencing Guidelines regime that would replace the indeterminate sentencing regime traditionally used in the federal system. As part of that reform, Congress sought to abolish parole. Parole would be available for prisoners who committed their crimes before the Sentencing Guidelines went into effect, but from that day forward, like the white-hatted cowboy in old west movies, parole gradually would fade away into the west. (3) Five years later the Supreme Court gave its blessing to the new determinate sentencing system and upheld the constitutionality of the Sentencing Guidelines in Mistretta v. United States. (4)

How did that mandatory Sentencing Guidelines system work? Not so well, it turned out. The Supreme Court upheld the constitutionality of that system in 1989 in Mistretta, but only 16 years later reversed course and held the system unconstitutional in United States v. Booker. (5) Does that mean parole is back in use in the federal system? Of course not. It is accepted wisdom that once the Sentencing Reform Act of 1984 became law, and certainly once the Supreme Court decided Mistretta, the abolition of parole was a done deal. Everyone--e.g., the federal judiciary, the Parole Commission, the Sentencing Commission, the Justice Department, the defense bar, the academy, and the community of prisoners--agrees. (6) As far as the legal and political communities go, parole is history.

But is it? The Justice Department argued in Mistretta that Congress' decision to abolish parole in favor of Sentencing Guidelines was contingent on the operation of a mandatory Guidelines system, one that cabined the discretion district courts had enjoyed at sentencing for more than 200 years. (7) Congress did not want only advisory Sentencing Guidelines; in fact, Congress expressly rejected that option. The reason was advisory Sentencing Guidelines are, well, advisory, not mandatory, obligatory, or binding on the judges who would need to implement them, and Congress concluded advisory Sentencing Guidelines would not eliminate the nationwide sentencing disparities that embarrassed the system and put the lie to the notion that ours is a government of laws, not men. (8) Accordingly, the Justice Department argued, if the mandatory Sentencing Guidelines system were held unconstitutional, the SRA provisions abolishing parole should be treated as null and void. (9) Otherwise, there would be no legal mechanism, as well as no legal institution, that could do something about nationwide sentencing disparities. The Supreme Court upheld the mandatory Sentencing Guidelines in Mistretta, so the Court did not need to address the federal government's fallback position. The question remained a purely academic one as long as a mandatory Sentencing Guidelines system was valid.

Almost twenty years after Mistretta, however, the Supreme Court reversed course and held the mandatory nature of the Sentencing Guidelines unconstitutional in United States v. Booker. (10) Unlike Mistretta, which involved separation of powers challenges to the mandatory system, Booker approached the issue via the Sixth Amendment Jury Trial Clause. The result, now, was to hold invalid the identical mandatory Sentencing Guidelines system the Court had sustained in Mistretta and the lower federal courts had applied in hundreds of thousands of cases since then. The scenario the Justice Department had anticipated in Mistretta eventually did arise, just sixteen years later and dressed in different garb. Ironically, then, the Supreme Court's decision in Booker raises the question whether its recent Sixth Amendment case law has breathed new life into parole.

I must confess it is a daunting task to ask whether parole has risen like the phoenix by operation of law and serves as an available option for federal prisoners today. The Department of Justice, the U.S. Sentencing Commission, the U.S. Parole Commission, and the federal judiciary, including the Supreme Court of the United States, each have considered sentencing issues on numerous occasions since the Court's 2005 decision in Booker--which itself never considered the renewed availability of parole--and that unanimity is quite intimidating. It is difficult to believe so many learned, experienced criminal justice decision makers all had amnesia about one of the hallmarks of twentieth century American criminal justice.

But the question is no longer just an academic one. For nearly eight decades parole served valuable functions. Parole softened the rigors of onerous sentences. It ameliorated the nationwide disparities that inevitably resulted from the sentencing decisions of hundreds of federal judges spread across all 50 states. And it offered inmates the opportunity for a second chance by granting them early release if they showed remorse, rehabilitation, or perhaps just that their sentences were unjust. To be sure, parole was a flawed institution--what isn't?--but it did lessen the pain the criminal justice system inflicts on inmates, their families, and whoever else cares about them. If parole has not "gone to a better place," it could once again serve those legitimate, useful purposes. And if parole truly has flatlined, at least we can say we took a good, hard, last look at the matter.

With that introduction, let me lay out the route. Part I describes the birth, maturation, and senescence of parole. Part II discusses why and how the criminal justice system decided to bury parole. Part III examines whether the Supreme Court's decision in Booker has given parole new life. Part IV closes out by asking whether there are any lessons that we can learn from this potential rebirth.

1. THE BIRTH, MATURATION, AND SENESCENCE OF PAROLE

   1. The Birth of Parole

      The origin of the term "parole" is the French word parol, meaning "word." The implication was that the state would release a prisoner before the expiration of his term of confinement only if he gave his word that he would walk the straight and narrow. (11) As the Supreme Court put it, "[t]he essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence." (12) Parole was a conditional form of clemency, (13) a second chance with strings attached, "a means of restoring offenders who are good social risks to society; to afford the unfortunate another opportunity by clemency--under guidance and control of the [Parole] Board." (14)

      Parole did not exist at common law. (15) It is a relatively modern invention that came into being in the nineteenth century along with use of a discretionary sentencing system to promote the rehabilitation of offenders. (16) In 1877, New York became the first state to adopt parole when Zebulon Brockway instituted the system at the Elmira Reformatory in upstate New York. (17) The other states eventually followed suit. Every state but three had adopted parole by 1927, (18) and fifteen years later every state had a parole process in place. (19)

      Throughout the eighteenth and nineteenth centuries federal prisoners were not eligible for release on parole under federal law. In fact, there were no federal prisons. (20) Federal courts would sentence convicted defendants to confinement in any state prison in the state of conviction that was willing to accept them. (21) In other states, the First Congress and later Congresses permitted the federal marshal, under the direction of the federal district judge, to "hire a convenient place to serve as a temporary jail" until permanent arrangements could be made. (22) Congress did not adopt any special rules governing incarceration of federal prisoners in state institutions. Congress directed receiving states to confine federal prisoners for the exact length of their sentences, no more and no less. (23)

      By the turn of the twentieth century, most federal inmates were concentrated in a few state facilities, leading to overcrowding. (24) Some states stopped accepting federal prisoners not convicted in their own state, and one state refused to accept any new federal prisoners at all. (25) To deal with that problem, Congress finally authorized construction of the first federal facilities in 1891, (26) and construction of Leavenworth prison in Kansas began in 1896. (27)

      It was not long before the federal government followed New York's lead and adopted a federal parole release...