Issa Kohler-Hausmann is a member of the Justice Collaboratory at Yale Law School and the Law and Society Fellow at the Simons Institute for the Theory of Computing at the University of California at Berkeley. Avery Gilbert is director of the Strategic Advocacy Clinic at Yale Law School and a partner at Engage Strategies.
Maryland took a key step toward reforming the parole process when it revoked the governor’s power to veto parole for individuals serving life sentences. Yet the use of parole denials as an opportunity to resentence individuals according to subjective retributive views or to garner political support continues to happen in Maryland and on parole boards throughout the country. And, as it has throughout history, this dangerous collision of politics and punishment is particularly harming Black Americans, who are incarcerated in state prisons at nearly five times the rate of White Americans and account for 71 percent of Maryland’s prison population.
Parole decisions — the decision to grant someone’s freedom on completion of a minimum sentence — should be an evidence-based assessment of rehabilitation and current risk to society. Minimum sentences are set by a democratically elected and accountable legislative body, and sentencing judges can select sentences within the range of authorized minimums. Unfortunately, all too often parole decision-makers take it upon themselves to resentence for the crime — only in the absence of due process protections. The parole process is often marked by abuses of power, rushed and uninformed assessments of the crime, and political considerations.
Several factors promote this abuse of power among parole boards, including vague and overly broad statutes that parole bodies have interpreted to give them the authority to resentence, as well as a lack of training on how to assess rehabilitation or understanding that the legislature and judges — not parole boards — are entrusted with determining punishment. And too often the abuses stem from political pressures on the parole commission — in most states, including Maryland, an appointment by the governor. As former Maryland governor Parris Glendening (D) recently admitted, some of his parole decisions were guided by politics rather than public safety.
Maryland’s statute, like that of New York, Wisconsin and 31 other states, is wrongly interpreted to allow a parole commission to do two things that are beyond the legitimate authority of an administrative body. First, these statutes invite the parole commission to consider the “seriousness” of the offense in making parole determinations. As a result, the parole commission revisits the same information presented to the jury and sentencing court only without the protections of due process and overrules the determination of the sentencing court to impose more punishment for the same crime. Often, parole commissioners make administrative findings of facts beyond what would have had to be proved beyond a reasonable doubt to a jury (or admitted by the defendant) for the conviction and base their denial on these newly found facts without any evidentiary standard whatsoever.
Second, parole bodies make release decisions under legal standards that are so vague and overbroad that they amount to no guidance at all. They may deny release if release would be “incompatible with the welfare of society,” but individual commissioners feel free to choose whose “welfare” should be considered or how competing interests should be weighed. For example, an aggrieved victim might feel that his or her welfare is served if the parole applicant is incarcerated for life without parole, but the children of the applicant might feel that their welfare is enhanced if their parent comes home to care for them. This leaves parole bodies to operate with almost unfettered discretion over one of the most consequential decisions an agency can be entrusted with: a person’s liberty.
If Maryland is serious about reforming parole, it should revisit its parole release statute to ensure that the parole commissioners make decisions based on rehabilitation and maturity, not on their own subjective assessments of the seriousness of the crime, and then it should train parole board members to competently make public safety decisions.
Arbitrary and subjective parole decisions are antithetical to the very principles on which this nation was founded: separation of powers, right to due process and representative democracy. Such decisions also perpetuate racial bias in our justice system. For example, a Times Union analysis found that a White inmate in a New York prison is significantly more likely on average to be released on parole than a Black or Hispanic person.
Parole decisions are constitutional only if they make no attempt to resentence a person for a crime but instead focus on a professional assessment of rehabilitation and reform founded on evidence to determine one thing: whether that individual poses a risk to society.
With every parole decision, a person’s liberty is at stake. The difficult decision of how to punish crimes — about which many people in our society have deeply held and widely divergent views — should be made in the manner our constitutional system has set forth: by the democratically elected and accountable legislative body. Sentencing judges can select sentences within that range, but they would never be allowed to exceed the minimum terms provided for by the legislature based on their own subjective views of punishment or to garner political support. Why should a governor or parole body be allowed to do so?
As this nation comes to grip with the enduring consequences of mass incarceration spurred by years of “tough on crime” policies and politics, it’s time to remove political agendas and personal biases from decisions about who deserves freedom and who does not.