Proportionality and parole.

• Author: Bierschbach, Richard A.

Commentators analyzing the Supreme Court's watershed decision in Graham v. Florida, which prohibited sentences of life without parole for juveniles convicted of nonhomicide crimes, have generally done so in substantive proportionality terms, ignoring or downplaying parole in the process. This Article challenges that approach, focusing on the intersection of proportionality and parole as a jumping-off point. Taking parole seriously makes clear that Graham is difficult to understand solely in terms of substantive proportionality concepts like individual culpability and punishment severity. Instead, the decision can be seen as establishing a rule of constitutional criminal procedure, one that links the validity of punishment to the institutional structure of sentencing. By requiring the State to revisit its first-order sentencing judgments at a later point in time, Graham mandates a procedural space for granular, individualized, and ultimately more reliable sentencing determinations. I expose this procedural and institutional side of parole's constitutional significance, situate it within the constitutional landscape of sentencing, and sketch some of its implications for the future of sentencing regulation.

INTRODUCTION I. PAROLE AND PROPORTIONALITY A. Parole in Context B. Parole 's Puzzle for Proportionality II. PAROLE AND PROCEDURE III. PAROLE AND THE FUTURE OF SENTENCING REGULATION A. Linking Checks and Balances to Punishment Legitimacy B. Breaking Down Sentencing Barriers C. Increasing the Importance of Sentencing Explanations CONCLUSION INTRODUCTION

When the Supreme Court in Graham v. Florida prohibited sentencing juvenile nonhomicide offenders to life in prison without the possibility of parole, (1) commentators hailed the case as a watershed deci-decision. (2) Eighth Amendment proportionality challenges to sentences of imprisonment, long viewed as dead, (3) had been resurrected. Legal scholars have showered attention on Graham in the two years since it was decided. (4) But despite an ever-expanding literature, the significance of parole to the decision remains almost entirely unexplored. (5)

On one level, this is mystifying. After all, parole was the distinguishing factor in Graham between a constitutional and unconstitutional life sentence. On another level, it is hardly shocking. Criminal law scholarship has long neglected parole and other "back-end" mechanisms. (6) This is due in large part to criminal law theo-sentencing fists' traditional view of sentencing as an overwhelmingly substantive concern, divorced from questions of procedural or institutional design. (7) Sentencing has largely been treated as a static, unitary act of punishment, the validity of which can be judged at the moment the sentencing gavel falls. Because courts and academics widely view Eighth Amendment proportionality as a substantive sentencing principle, these same tendencies--the tendency to evaluate sentences at a single slice in time, and by reference to familiar substantive debates about culpability, punishment severity, and how well a sentence deters, incapacitates, rehabilitates, and delivers retribution--dominate doctrine and scholarship in that area as well. Commentators, taking their cues from the Court, have thus seen Graham as an extension of the substantive proportionality principles of cases like Roper v. Simmons (8) and Atkins v. Virginia. (9) They have analyzed Graham as a substantive rule, ignoring or downplaying parole in the process. (10)

This Article challenges that approach, focusing on the parole-proportionality intersection as a jumping-off point. Doing so is fruitful because, as this Article shows, the intersection of parole and proportionality strikes at the heart of the larger substance-procedure divide that infects sentencing law generally. By substance-procedure divide, I mean the divide between questions concerning the "what" and "why" of sentences (what sentence may be imposed, and why), on the one hand, and questions concerning the "how" and "who" of sentences (how do we make sentencing decisions, and who sentences), on the other. The former concerns the substantive results of sentences; the latter concerns the procedural rules that govern sentencing. Taking parole seriously makes clear that Graham cannot be understood solely-or even primarily--as a purely substantive limit on punishment, concerned only with the question of "what." Instead, it makes sense to see Graham as equally concerned with the question of "how." The decision establishes a rule of constitutional criminal procedure, one that links the validity of punishment to the institutional structure of sentencing. By requiring the State to revisit its first-order sentencing judgments at a later point in time, Graham mandates a procedural space for granular, textured, and ultimately more reliable sentencing determinations. In doing so, it underscores the importance of institutional design to the constitutional regulation of punishment beyond the Sixth Amendment context of Apprendi v. New Jersey. (11)

The remainder of this Article proceeds in three Parts. Part I sets out parole's puzzle for proportionality and explains the limits of viewing Graham--and the Eighth Amendment significance of parole--through a classic proportionality lens. Part II explores the overlooked procedural and institutional side of Graham. It shows how the interaction of substance and procedure that drives the constitutional significance of parole makes Graham more the cousin of Woodson v. North Carolina, (12) Lockett v. Ohio, (13) and other "super due process for death" cases than that of Roper, Atkins, and other proportionality cases. Like Graham, and unlike Roper and Atkins, those cases do not foreclose any actual punishment; rather, they aim at morally reliable sentences by laying down a procedural requirement of individualized, textured sentencing, roughly analogous to how parole functions in Graham. Part III sketches some implications of this account. Recognizing parole's procedural significance illuminates how Graham continues Apprendi's project of linking institutional design to punishment legitimacy, breaks down traditional barriers within sentencing, and lays the foundation for the increased importance of sentencing explanations at the back end of the sentencing process.

1. PAROLE AND PROPORTIONALITY

   Parole presents a puzzle for proportionality. Proportionality eschews any one purpose of punishment and weighs the severity of sentences against the characteristics of the offense and the offender at the time of the offense. Parole turns on notions of rehabilitation and risk-management and involves highly discretionary release decisions based heavily on post-offense developments. This Part shows how mixing the two scrambles conventional proportionality principles for concepts like culpability and punishment severity. Section I.A provides a brief definitional, historical, and constitutional context of parole. Using Graham as a foil, Section I.B explores the difficulties with trying to fit the constitutional significance of parole into the proportionality box.

   1. Parole in Context

      "Parole" has multiple meanings, but I use it here in a particular way--as did the Court in Graham--as referring to a discretionary early release decision, made by a parole board or similar authority, based upon its review of an individual prisoner's circumstances. (14) When American criminal justice reformers introduced this vision of parole over a century ago, rehabilitation was the dominant approach to sentencing and corrections. (15) In the indeterminate sentencing regimes of the time, parole boards--which were then and still are largely executive branch agencies--were critical institutional players in determining a sentence's length. (16) They did so by deciding on a case-by-case basis whether and when each individual offender was ready to be returned to the community. (17) The factors governing those decisions were broad and varied and involved a wide range of both forward- and backwardlooking considerations. They included things like the offender's participation in prison programs; infractions of prison rules; job opportunities upon release; family ties; the seriousness of the original offense; expressions of remorse and repentance; the risk of recidivism; and the views of victims, community members, prosecutors, or sentencing judges. (18)

      Parole fell from favor as sentencing discretion came under attack in the 1970s, determinate sentencing systems replaced indeterminate ones, and retribution replaced rehabilitation as a favored aim of punishment. (19) Modern day parole boards began to focus their release decisions more on managing dangerousness than anything else. (20) But even then, the individualized, contextual, and ultimately normative nature of the inquiry remained the same, with most boards continuing to consider some mix of the sorts of factors just described. (21)

      The deeply discretionary nature of parole release decisions is reflected in a constitutional doctrine that commits parole to the virtually unfettered judgment of the states and their parole boards. Courts view parole decisions as "equity-type" determinations that involve "predictive judgment[s]" about "what is best both for the individual inmate and for the community." (22) They are "discretionary assessment[s] of a multiplicity of imponderables, entailing primarily what a man is and what he may become rather than simply what he has done." (23) Courts accordingly afford parole only the most anemic procedural due process protections. Parole release decisions require the most minimal opportunity to be heard, the barest statement of reasons, and the weakest evidentiary support on appellate review. (24) The upshot, as David Ball puts it, is that "a parole board is free to deny parole for whatever reason, on whatever facts, for however long." (25) There is no enforceable substantive constitutional right to...