Daniel S. Medwed: Associate Professor of Law, University of Utah-S.J. Quinney College of Law; J.D., Harvard Law School, 1995; B.A., Yale College, 1991. I would like to thank Robert Adler, Jensie Anderson, Adele Bernhard, Paul Cassell, Leslie Francis, Sharissa Jones, Erik Luna, Alice Ristroph, George Thomas, and Manuel Utset for their thoughtful comments on previous drafts of this piece. Moreover, I am grateful for the financial support provided by the S.J. Quinney College of Law Summer Stipend Program and the outstanding research assistance conducted by Utah law students David Everitt, Tara Harrison, Jordinn Long, Helene Simvoulakis, and Tyler Williams. Finally, I am indebted to Curt Garner, a member of the Utah Board of Pardons and Parole, for facilitating my access to the Board's records and for answering all of my many (and varied) questions with grace and aplomb.
The granting of parole in the criminal justice system is often viewed as an act of grace: the dispensation of mercy by the government to an individual prisoner deemed worthy of conditional release prior to the expiration of his sentence.1 Yet the criteria upon which state parole boards base these acts of grace remain something of a mystery.2 Denials of parole are largely unreviewable,3 and courts have held that due process imposes only a minimal burden upon parole boards to reveal the rationales for their decisions.4 Nevertheless, surveying state parole release decisions demonstrates that a prisoner's willingness to "own up" to his misdeeds-to acknowledge culpability and express remorse for the crime for which he is currently incarcerated-is a vital part of the parole decision-making calculus. That is, admitting guilt increases the likelihood of a favorable parole outcome for an inmate whereas proclaiming innocence serves to diminish the chance for release.5 The main objective of this Article is to consider whether this practice is wise. Should a prisoner's assertions of innocence be held against him in the parole process?
On the one hand, several arguments suggest that parole boards are correct in disregarding an aspiring parolee's claim of innocence and, in fact, holding it against him. The primary argument in support of the current practice relates to the issue of institutional competence. Factual questions of Page 494 guilt or innocence ordinarily stand outside the scope of parole commissioners' delegated duties and, rather, fall within the province of juries and judges.6 Moreover, without the resources to conduct extensive field investigations, parole boards simply lack the capacity to verify a prisoner's claim of innocence. Thus, parole boards normally presume the guilt of the inmates seeking release before them and leave it to the post- conviction litigation process to conclude otherwise.7 The second major justification for the existing norm lies in the parole board's understandable desire to minimize the risk of discharging individuals who are likely to re- offend.8 Prevailing psychological doctrine maintains that taking responsibility for one's actions is crucial to mental health.9 According to Page 495 many psychologists, upon whom parole boards frequently rely, refusing to acknowledge one's guilt signals mental instability or immaturity.10 These attributes, in turn, may reflect that the inmate has not been rehabilitated during his incarceration and may also portend recidivism, the reduction of which is a central goal and measure of success for parole.11
On the other hand, the slew of post-conviction exonerations of innocent prisoners in recent years proves that juries and judges do not always effectively sort the guilty from the innocent at the trial level and indicates that perhaps parole boards can (and should) fill this void to facilitate the release of the innocent. Over the past nineteen years, 212 prisoners have been exonerated through post-conviction DNA testing,12their innocence proven to a scientific certainty, and states have freed over 300 other inmates on grounds consistent with innocence during that period.13 As I have argued elsewhere, these cases represent the proverbial tip of the innocence iceberg in light of (1) the scarcity of biological evidence suitable for DNA testing in criminal cases;14 (2) the bewildering array of obstacles to relief contained in most state post-conviction procedures in Page 496 regard to non-DNA cases;15 and (3) the waning availability of federal habeas corpus.16 Furthermore, with all due respect to psychological theory, inmate expressions of remorse in applying for parole may not reflect genuine acknowledgment and acceptance of the criminal act-a true coming to terms, if you will. The prison grapevine has presumably informed the parole hearing-bound population that remorse is essentially a quid pro quo for release, casting doubt on the sincerity of many pleas of repentance before the board, however contrite they may seem.17 In reality, considering the profound disincentive to claim innocence at parole hearings, logic suggests those assertions should be taken quite seriously.18
Part I of this Article briefly discusses the origins of parole in the United States as well as the contemporary features of parole release decision- making. Next, Part II explores how a parole board's reliance on prisoner admissions of guilt in the parole release decision intersects and potentially interferes with the efforts of innocent inmates to win their freedom. Part III then critically examines the theoretical and normative implications of the current parole system's emphasis on remorse and responsibility. Finally, Part IV recommends several reforms concerning the treatment of inmate claims of innocence at parole hearings. These reforms include limiting the use of parole hearing transcripts at subsequent post-conviction proceedings, Page 497 distinguishing statements of remorse from those of responsibility, and reconceiving the role parole boards play in entertaining questions of guilt and innocence at the release decision stage.
To put it bluntly, innocent inmates currently face a true "prisoner's dilemma"19 when encountering parole boards. Choice A consists of proclaiming innocence and consequently hindering the possibility of parole; Choice B involves taking responsibility for a crime the prospective parolee did not commit and bolstering the chance for release, albeit with dire effects for any post-conviction litigation involving the underlying innocence claim.20This type of choice is one that no actually innocent prisoner should be forced to make.21 Ultimately, parole boards should be mindful of the possible legitimacy of some innocence claims and, at the very least, not reflexively hold those assertions against the prisoner in the release decision.
The name coined for the conditional release of a prisoner before completing a sentence derives from the French phrase parole d'honneur, loosely translated as "word of honor."22 From the outset, the concept of parole was aimed at the rehabilitated prisoner-the inmate who had exhibited model (or "honorable") behavior while incarcerated, professed to be a reformed person, and accordingly proved to be a safe candidate for Page 498 discharge.23 Specifically, parole emerged in nineteenth-century English and Irish prisons through a process in which inmates earned release upon the accumulation of a certain number of "marks" for adhering to institutional rules and progressing toward self-improvement.24 This precursor to the modern parole system migrated across the ocean to the United States in the late nineteenth century at a time when rehabilitation comprised the dominant punishment theory in state correctional facilities.25 Borrowing heavily from medical jargon, the rhetoric in penal circles during this era tended to refer to prisoners as "sick" and the goal of punishment to "cure."26 Page 499 Indeed, the first American penal institution to utilize a parole-like system, a state reformatory in Elmira, New York, in 1876, alluded to rehabilitation as its underlying principle in embracing the new archetype from abroad:
Criminals can be reformed; that reformation is the right of [convicts] and the duty of the State; that every prisoner must be individualized and given special treatment adapted to develop him to the point in which he is weak-physical, intellectual, or moral culture, in combination, but in varying proportions, according to the diagnosis of each case; that time must be given for the reformatory process to take effect, before allowing him to be sent away, uncured; that his cure is always facilitated by his cooperation, and often impossible without it.27
Despite this optimistic portrayal of the potential...