Policing parole: the constitutional limits of back-end sentencing.

AuthorMcBride, Elizabeth C.

INTRODUCTION

Modern sentencing jurisprudence and punishment theory have largely overlooked issues raised by parole supervision and revocation. Yet parole is an integral dimension of the criminal justice system; today, nearly eighty percent of all prisoners are released into the community under some form of parole supervision. (1) Importantly, parole supervision not only places conditions on a parolee's liberty, it also provides administrative agents of the criminal justice system--not judges or juries--the opportunity to re-incarcerate the parolee. Parole revocation has the effect of retroactively imposing longer prison terms and periods under community supervision for the conviction offense. This form of sentencing--labeled by some as "back-end sentencing" to reflect its placement within the criminal justice system as well as its limited exposure to public and judicial scrutiny--has gained wide popularity in the last two decades. (2) Between 1980 and 2000, when the overall prison population increased fourfold, the parole population returned to prison increased sevenfold. (3)

An analysis of the purposes and policy of sentencing and punishment--deterrence, incapacitation, rehabilitation, and retribution--has yet to be applied to the parole revocation context* Incarceration as a result of a parole violation is not understood as a form of punishment in and of itself, or even as a sentencing enhancement. Instead, it is viewed as a reinstatement of the original sentence. (4) Yet characterizing re-incarceration for parole violations in this way reflects an under-inclusive and over-simplified understanding of the parole revocation process as well as punishment more generally. Parole revocation that results in re-incarceration or other restrictions on a parolee's liberty is designed to punish the parolee for the new violation--not the underlying conviction, despite the fact that it is the conviction offense that establishes the authority of parole administrators to revoke parole and re-incarcerate. Moreover, the current practice of parole revocations and returns to prison fundamentally alters the original sentence imposed by the judge and supported by the facts found by the jury. Parole violations affect not only the period of incarceration but also the duration of parole supervision, and therefore may ultimately increase the duration of custodial or community supervision beyond the scope of the sentence originally conceived of by the judge, or may retroactively impose the maximum sentence. Instead, as Jeremy Travis has suggested, it is our deeper impulse to create distinctions between us and them--the demonization of criminals--that supports an understanding of parole revocation only in terms of the original conviction. (5) Such an understanding thereby justifies additional punishment in the absence of public scrutiny and judicial oversight.

Travis characterizes the parole revocation process as a system of sentencing, which he has labeled back-end sentencing. He acknowledges that "the process of adjudicating parole violations is recognized as flowing from the original convictions and sentence." (6) However, he argues that "the conceptual and operational similarities between the two systems are ... so compelling that ... there should be little hesitation to call the process of adjudicating parole violations a form of sentencing." (7) These similarities between front-end and backend sentencing include: state enforcement agencies to detect violations of rules and laws; arrest and detention for those suspected of infractions; a neutral adjudicative entity (judge and jury or parole judge); an opportunity to present a defense through an adversarial process; and a determination of guilt and the imposition of sanctions, which can include the deprivation of liberty. Travis' understanding of parole revocation as a sentencing regime supports the underlying premise of this Note's inquiry--that recent sentencing jurisprudence should be applied to parole revocation hearings and back-end sentencing more generally. (8)

In a recent and important line of cases, the United States Supreme Court breathed new life into the Sixth Amendment right to a jury trial, interpreting it to bar any consideration of facts legally essential to punishment that are not pleaded and found by a jury beyond a reasonable doubt. In Apprendi v. New Jersey, (9) the Supreme Court held that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. In Blakely v. Washington, (10) the Supreme Court explained that "the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose based solely on the facts reflected in the jury verdict or admitted by the defendant." (11) Similarly, in United States v. Booker, (12) the Supreme Court again reaffirmed its holding in Apprendi: "Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." (13) And the Court revisited this issue just two years later in Cunningham v. California. (14) Again citing Apprendi and Blakely, the Court held that California's Determinate Sentencing Law violates a defendant's right to a jury trial to the extent that it permits a trial court to impose an upper term, even within the statutory maximum, based on facts found by the court rather than by a jury.

Blakely has been described as a revolution in the criminal justice system given its "potential to impact every case in which a defendant is convicted of a crime and subject to punishment." (15) The Court's theory of sentencing in these cases is grounded not only in an expansive role for the jury in determining punishment for criminal defendants--but also in a broadly defined concept of punishment, which I argue includes back-end sentencing practices. In addition to the Blakely principle--that only a jury's findings can support the imposition of punishment--the Court has also advanced a broader due process norm that has significant implications for who has authority to affect, enhance, or modify a convicted offender's sentence. (16) This norm reflects the spirit of Blakely.

The goal of this Note is to explore the implications of Blakely's animating principle for parole supervision--both in the context of parole revocation proceedings as well as in back-end sentencing more generally. The focus of this Note is California's parole system, both because parole supervision is mandatory for nearly every released state prisoner in California, and because California relies heavily on re-incarceration to sanction parole violations. In the first part of this Note, ! briefly describe how parole supervision is administered in the state of California, outlining the ways in which parole is revoked and examining trends in revocation over the past thirty years.

In the second part of the paper, I apply the Blakely principle to parole revocation hearings, exploring whether this principle requires factual findings by a jury beyond a reasonable doubt to revoke parole and return parolees to prison. Next, I apply the Blakely principle and the spirit of Blakely more broadly to back-end sentencing. I explore whether the imposition of maximum sentences and increased custodial and community supervision periods that result from the parole revocation process is aligned with the due process norms and central jury role in punishment that Blakely promotes.

Finally, I offer a framework for future empirical analysis in light of these questions. In so doing, I hope to encourage research in this area to calculate the impact that parole revocation and back-end sentencing have not only on the criminal justice system at large, but also on individual offenders who are shuffled through the system's revolving door. Such measurements will hopefully expand the national dialogue around Blakely and sentencing jurisprudence in the area of parole.

PAROLE IN CALIFORNIA

Parole supervision is a component of the vast majority of criminal sentences in most states. (17) As such, it functions as an integral part of corrections and more broadly of the criminal justice system. Parole supervision aims to enhance public safety at the critical moment of a prisoner's transition back into free society. (18) Supervision in theory deters new crime with enhanced surveillance and monitoring; it also supports the offender's reintegration into the community by providing links to social services, health care, housing, and other immediate needs that prisoners face upon release. At year-end 2007, nearly 825,000 adult men and women were under parole supervision in the United States, (19) nearly four times the number on parole in 1980. (20) And of those on parole in 2007, roughly 183,000 returned to prison, with nearly seventy-one percent of those returning due to parole revocation. (21)

California is the subject of this Note's inquiry because nearly every state prisoner is released to parole supervision, as mandated by law. (22) California's parole population has increased tenfold since 1980, and today nearly one in every five parolees in the nation lives in California. (23) On any given day, California supervises roughly 120,000 parolees, meanwhile six out of ten admissions to California prisons are returning parolees. (24) In fact, California's parole population now grows at a faster rate than its prison population--eight percent in 2007 for parole compared to only 0.4 percent for prison. (25)

Typically, when the state releases an individual from prison and onto parole, his period of supervision is assigned, along with conditions of his supervision. The period of parole supervision is mandated by the state's penal code, and extends between one and three years (for those serving determinate...

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