Parole in America

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Leonard: From the nation’s capital this is DC Public Safety I’m your host Leonard Sipes. Ladies and gentlemen today’s show is Parole in America and today’s guest is Beth Schwartzapfel. She is a staff writer for the Marshall product www.themarshallproject.org. Beth welcome to DC Public Safety.

Beth: Thanks for having me.

Leonard: The Marshall project give me a quick overview.

Beth: We’re a nonprofit, nonpartisan news organization that covers the criminal justice system. We’re very much like a traditional newspaper magazine where all of us come from a world of newspapers and magazines but we don’t rely on advertisers we just rely on foundations and readers to support us.

Leonard: To my listeners I go to the Marshall Project every single day. They give us a nation of news throughout the United States and throughout the world, it’s extraordinary interesting again www.themarshallproject.org. You wrote an article Life Without Parole and I’ve read it several times give me a quick summation.

Beth: Basically we took a look at the system of parole boards across the 50 states in our country and what we found was we’re in this area where there seems to be this political consensus from both sides of the aisle perhaps there is a temporary pause in that consensus as the Republican Presidential candidates battle it out. In any case, until the primary season heated up there seems to have been a political consensus from both sides of the aisle and from all walks of life in this country. That our criminal justice system has gotten out of control. There’s too many people in prison, that when they go they go for too long. That there’s this net that ensnares too many people for way too long for low-level crimes. There’s even been some talk that even for more serious crimes people are there for too long, there’s not enough rehabilitation and they’re not getting out with enough tools to succeed in the outside world.

As we’ve sort of began to examine each step in the process we are having this national conversation about policing, we seem to be having a national conversation about sentencing. There is this giant part of the Criminal Justice System that nobody had really taken a look or accounted for and that’s parole boards. Because in so many cases in this country how long a person serves in prison is actually not decided by a judge or a jury but actually by a parole board.

Leonard: For the initiated, give me a definition of parole and why it’s different from maxing out which we know is mandatory release and probation. What is parole?

Beth: In many states when someone is given a sentence for a crime or in some states it varies what type of crime whether they’re given this type of sentence but it’s called an indeterminate sentence. That means they might be sentenced to five to ten years, or 25 years to life. What that means is they could be released at any time in that window. In a five to ten years sentence they could be released at 5 years, 6 years, 7 years, 8 year, 9 years, 10 years. The decision about when in that window they get released is made by a parole board.

Leonard: Now let me see if I can summarize this, my impression is this, is that during the 1950s and 1960s and 1970s parole was used a lot and the whole concept was isn’t it better to have this person prepared. Ordinarily the person in the prison system goes through GED courses, vocational courses, substance abuse courses if they are available. They behave themselves while in prison and the parole board rewarded them with an early out in lopping in some cases a significant number of years off of their sentence and releasing them under parole supervision. That at one time was the mainstream method of getting out of prison in the United States and that has shrunk considerably, do I have that right?

Beth: That’s precisely correct. The one thing I will say is at that time it wasn’t even really considered early release because when a judge would sentence somebody that judge would sort of in the back of their mind know that it was in all likelihood that the person would be released at some early point in their sentence if they could prove that they were rehabilitated because that’s just kind of how the system works. Early release is often used interchangeably with parole but I would say that since parole is built into the sentence anyway it is not necessarily early.

Leonard: Good point. But you agree with me that it’s declined and declined dramatically throughout the years and now we are re-examining the use of parole now.

Beth: Considerably. In the 1970s somewhere in the neighborhood of three quarters of all American prisoners were released by parole boards. The number now is somewhere in the neighborhood of 1 quarter.

Leonard: What happened?

Beth: A number of things happened, the short answer is the 1990s happened, the tough on crime era. During the tough on crime era there seemed to be this political move towards parole being seen as soft on crime. Parole being seen as we just talked about as early release. Governors who were looking for a way of posturing that they were not soft on crime, would move to abolish parole, not just governors of course legislators too. During this time period parole was abolished in more than a dozen states. In other states that maintain their parole board’s, parole became increasingly hard to get. Part of the reason for that is parole board members are by and large political appointees. In 44 States they are appointed entirely by governors and then almost all of the remaining States they are appointed at least in part by governors.

In many of those states they’re also confirmed by legislators. The parole board members were and are explicitly sensitive to political wins let’s say. During this era when the public was calling for more cops, more prisons, more jails, locking more people up, the parole board was very sensitive to that. So here if somebody came before that would have been a shoo-in for parole, somebody who had really cleaned up their act and did a really good job in prison the parole board would say no way I’m letting out a murderer because this is going to be in the paper tomorrow and the Governor might boot me off the parole board.

Leonard: In the state of Maryland about 20 years ago where I was Director of Public Relations for the Maryland Department of Safety and Correctional Services. Some of my agencies were a piece of cake like the law enforcement agencies, the correctional agencies were a bit tougher but I also represented the parole board in the state of Maryland. I spoke to the various chairs of the parole board, the parole commission throughout my years there. We were all startled buy all the headlines throughout the country about the parole board getting in trouble because this person went out and committed another violent crime. The fear and the acknowledgement of the political liability of releasing folks with history of violence became real. My guess is that if we experienced that in the state of Maryland that experience transcended the state and one throughout the country.

Beth: Certainly and continues to this day. I heard from an inmate in Ohio who went to a little in-service training that the parole board put on for inmates who are eligible for parole to sort of help them to understand what to expect. A large part of the training was this news clip they all had to watch about this guy who got parole and went out and killed somebody. The parole board members as part of this presentation talked about what a very complicated position they are in politically speaking. How they are public servants accountable to the public and the public doesn’t want to see people like them released. Certainly this is a reality every where you go.

That said when you talk to experts who study the issue they all say look you’re dealing with human behavior it’s impossible to expect a parole board to never make a mistake. It’s even incorrect a lot of the time to call them mistakes. Sometimes the parole board does overlook some major red flags or doesn’t have processes in place to get paper or some kind of paperwork that would have indicated the presence of a red flag. More often than not the person really does seem in the board’s best estimation to be rehabilitated.

Nobody has a crystal ball and every parole board member that I spoke with told me this. It’s just impossible to think that they’re never going to release somebody who goes on to commit a crime. It’s just human nature. When a criminologist at Temple University sort of did this post-mortem of the parole board there after one of these incidence, he looked at it and he said the board was just doing their job, they didn’t do anything wrong and it’s unreasonable to say that we should no longer parole people because occasionally somebody goes out and commits another crime. That’s just going to be if you’re going to have parole then that’s just inevitably unfortunately, going to happen from time to time.

Leonard: We’ve been in agreement throughout the program let me try something else. I’ve spoken to a lot of people in the criminal justice system. My counterpart’s spokespeople throughout the country over the course of last 10, 20 years. This is something that I think is somewhat accurate that every Governor has spoken to every Secretary of Public Safety, every Director of Corrections in every state throughout the country saying we are spending way too much money on corrections. I need money for roads, I need money for universities, I need money for education. I need money for all sorts of things and all I see from the corrections budget is that it goes up and up and up. Somehow some way you’ve got to figure out a way of operating and decreasing your budget what can you do. Part of that decreasing of that budget, the decreasing of the prison population would be a reliance upon the parole board to release more people, am I right?

Beth: Certainly. I think there has been instances in recent years of positive ways to implement that kind of strategy and not as positive ways to implement that strategy. For instance, the parole board chair in Nebraska testified to the legislature there that she felt pressure to release inmates that she didn’t feel comfortable releasing. Because the Department of Corrections was leaning so hard on the board to release as many people as possible. These of course were back room hints dropped and meetings where there was subtle or not-so-subtle pressure applied. An alternative way that I’ve seen an approach like that that is in Texas where there was very public hearings where the board through help with some kind of committee adopted a set of target release rates where it was clearly laid out for them that inmates with a certain risk score who had done certain crimes the board should expect to parole X percentages of those people.

When the system is working correctly Texas actually releases a report at the end of each year to show how well they’re meeting these expected benchmarks. Are they actually paroling say, I’m making this number up, but 75% of drug offenders. Are they actually paroling say 25% of violent offenders. Again, I’m making those numbers up but the point is there was this transparent process where the expectations were laid out for the board of how many people in the different categories they were expected to parole each year. Now there are a lots of complaints about how untransparent the Texas system is so I don’t mean to say that they’re doing an awesome job as far as transparency is concerned. What I am saying is that there have been states that have tried to use the parole board positively as a way easing the burden on the number of people that are incarcerated and the millions of dollars that the state is spending on that.

Leonard: Beth I think we’ve nicely set up where the state-of-the-art is now in terms of the parole in terms of the United States. Then I want to get on to a series of questions about the problems in terms of implementing parole. If we have States that are saying to their Secretaries of Public Safety, to their Directors of Corrections you need to decrease the budget, we can no longer pump endless amounts of money into corrections. If we agree to that and we agree that parole is one method amongst many that people are advocating that we use to decrease the pressure on prison systems and to release other people who are deemed not to be a significant risk to public safety then why isn’t it happening, why isn’t it occurring?

Beth: My reporting seems to indicate that it’s largely because of politics. Because the system is set up the way it is, because so many board members are appointed by Governors and confirmed by legislators they are ultimately beholden in some way to public sentiment. Look the average person on the street does not want to see a murderer released from prison. That’s just a sort of knee jerk totally natural reaction of the public. It does not square with the data right of all categories of inmates, murders are actually the very least likely to re-offend probably followed by sex offenders who are also extremely, extremely unlikely to offend. Yet those two categories of offenders are the most despised by the public.

If you have a body that’s responsive to public misinformation, then they’re going to act on that and they’re going to say look it looks to me like you committed this crime in the heat of the moment when you were 20 you’re now 45 you have grandchildren. You have a home to go home to, you have a GED, you have a journeyman’s certificate in plumbing or whatever it is. Get out of here you’re costing us a lot of money and you’re going to cost us even more money as you age. That is sort of the rational evidence-based move for a parole board to take. When you fear that your job is on the line if you make a decision that would be unpopular on the pages the next day then that’s not how you’re going to make decisions.

I did see a number of states that were trying to get away from this model, there are a handful of states where parole board members are civil servants for instance. Where they’re sort of insulated from the political process. There are a couple of states, Hawaii comes to mind where there is a nomination process where it is separate and I think the governor does the ultimate appointing but the names that are floated up to the governor are chosen by this very interesting panel that’s comprised of people from a real mix of backgrounds. Somebody from the state Social Worker Association, somebody from the state’s DA Association. The people who end up in the pool for the governor to choose from have been extremely well bedded and have really deep backgrounds in the subject matter.

Another really interesting system I found was in I believe it was in South Dakota where the coming into prison all inmates have to make a plan for themselves. They sit down with a social worker, there is a system set up where by they layout a map, a road map for their time in prison. They set certain goals and the person works with them to make sure they are realistic goals, such as I will get my GED, or I will complete this anger management class or I will attend AAA every week or whatever that is. If you are found at the end of your incarceration to have been “substantially” compliant with this plan that you made and again the rules of what substantially compliant are clearly laid out. Then you never go to the parole board you just get paroled. If you are not substantially compliant then you go before the parole board and if there are good reasons you weren’t compliant then you can make your case to the board. If you were substantially compliant then there is no deliberation, there is no politics you just get out.

Leonard: Our guest today is Beth Schwartzapfel she is a staff writer with The Marshall Project www.themarshallproject.org. Beth you wrote this article Life Without Parole it’s an extraordinarily interesting article and I’ll put it in the show notes for DC Public Safety so others can get to it. You and I have been having a running e-mail conversation about the effect of the parole. I took a look at the data and it’s aged data I will admit from the Source book of Criminal Justice Statistics. It indicates that those people who successfully complete their time under supervision that people paroled do better than those people who are mandatorily released. Do you have thoughts on that?

Beth: I have not found any consensus in the community of academics who study this on whether people who are released on parole do better than those who max out. I’ve seen studies that say they do, I’ve seen studies that say they don’t. I’ve seen very passionate academics use data to make the case in both directions. I will say that it makes intuitive sense that people who are released on parole do better but not for the reason you would think. I think advocates for parole board say that people who are released on parole do better than those who max out because the parole board is very good at only releasing people who are bound to do well on the outside. To me it seems clear that the parole board’s are so very conservative that they’re really only going to release people who they know are not going to come back to bite them.

Therefore, of course the people who they release are going to do better. Because they’re just not taking chances. If they have somebody who is sort of a jump call, a jump ball somebody who looks like they might do well but they might not, the way the system is set up right now they’re probably more likely to keep them in then to let them out.

The numbers are going to be higher on parole, excuse me the recidivism numbers may turn out to then be lower among people who are released on parole then people who max out. I definitely heard skeptical people say is this really the measure we want to be using. What do we mean when we say recidivism does somebody say committed a sex crime did they commit another sex crime or do they commit, did they rob the corner store. That’s not to say one is better than the other of course but it is to ask what do we want from our parole boards and what do we want from our criminal justice system?

Leonard: Inst that a question across-the-board I do want to touch upon that for the rest of the program. It is a matter of perception if we have this sense that we’ve got to decrease pressure on prison systems. Some suggest that we over incarcerate it is true that we have the highest rate of incarceration in the world. People are saying what can we do and there is a variety of discussions on a variety of issues talking about ways to reduce the reliance upon incarceration. Many at the front-end many at the back end. People are saying parole you should be doing a better job of releasing more people going back to the models during the 60s, 70s and 80s when most people got out on parole. People don’t seem to have a lot of confidence in the parole process and my guess is that because we’re so secretive about what is parole, how decisions are made, how it operates, what it does. I think people lack confidence in the paroling process and I wanted to get your opinion.

Beth: I think that’s 100% true. As the board chair in New Hampshire told me people can’t trust what they can’t see. The interesting thing is the clip that I was mentioning earlier, the news clip that the Ohio Parole Board shows to people to sort of demonstrate why they’re in such an uncomfortable position. What struck me when I watch that news clip is that the television reporter who did that segment was incredibly frustrated by not being able to get an answer from the board about why they released this guy. They weren’t even calling the board out for releasing him. They were calling the board out for not being able to explain why they released him. I really think and this is what emerged in the course of that Temple University study that I told you about earlier, that when the board can explain why they made the decision that they made when they have really clear guidelines they follow consistently and that they’re transparent about.

I think the people have a lot more empathy towards them and understanding for the reason that they make the decisions that they make. In our democratic society if people understand why the boards are doing what they’re doing and they don’t like it they can pressure their legislators or they can pressure their governor to sort of change the way the system works. If we don’t know what they’re doing, if they’re just hiding behind these sort of veils of secrecy then yeah people are going to be extremely frustrated.

Leonard: Here I go back to my Maryland experience in all states of our national … and we have Federal Privacy Acts but every state has a Privacy Act and in every state medical and psychological information are required prohibitions. I could lose my job and go to prison if I gave out information on an offender that dealt with medical and psychological information. Some states such as Maryland had a sociological provision which what is sociological. If you have all of these privacy laws and all of these restrictions on what you can give regarding a particular offender, how can the parole board’s be open and honest.

You can have a person with a raging substance abuse history, or raging cocaine history and maybe through the process he has gone through the prison system he’s no longer testing positive, he’s been through all of the courses so he seems to have his drug substance abuse problem under control. That may be a really decent reason as to why the parole board chose to parole him considering that there’s very strong evidence correlating the degree of substance abuse and criminal activity. There’s a good reason for moving this person along giving, this person an opportunity but you can’t talk about that.

Beth: I would say that’s never prevented our criminal justice system from transparency before. That kind of material is routinely introduced into evidence in criminal trials and all of the records for criminal trials are public records. I don’t see why the parole board needs to operate under different rules than any other players in our criminal justice system.

Leonard: Because a Judicial System operates under a different set of rules than the executive system. The executive branch of government which we all belong to make these required prohibitions.

Beth: Well what some people would say, what I heard from some people who are calling for the abolition of parole boards for instance the model penal code which is this very influential document written by legal scholars and is revised every number of years. The most recent revisions of the model penal code calls for ending the system of parole and instead implementing a second look system. The Colson Task Force also recommended a system like this a second look system that transfers the function of the parole board back to the Judiciary where after people have served a long portion of a long sentence, they can go before a judge who can evaluate whether circumstances have changed enough to warrant a changing of their sentence. It’s for precisely that reason that our judicial system has all these rules in place to protect and safeguard people’s constitutional rights. Since parole board’s don’t operate under those same safeguards they’re feeling, the feeling of these critics is those kind of decisions really belong in the courtroom.

Leonard: We are going to be doing to radio shows in the near future on the Colson Task Force called reforming Federal Corrections. We’re going to be touching upon all of that in the near future with people, with members of the task force. In the final analysis what we need is a way of mechanism for taking individuals who are of reasonable risks and moving them through the criminal justice system, assuming that they’ve done well on prison. Assuming they’ve taken the proper courses. Assuming that there has been victim input, assuming that they have bettered themselves as much as you possibly can considering the lack of services within a lot of prison systems. They become reasonable risks and society should expect those reasonable risks to take place as we did again, throughout the 50’s, 60’s, 70’s and 80s. Am I right?

Beth: I know as a reporter I’m not here to make policy prescriptions but yes that’s what many people who are calling for the reform of parole board’s are calling for precisely that.

Leonard: The whole idea is as you said a set of specific criteria that if they meet that criteria the presumption would be the presumption to release. If a person went infraction free in the prison system and considering how crowded our prison systems are, that’s very important in terms of running safe and sane institutions. If a person had no infractions, went to his GED courses or completed them, got his plumbing certificate, completed substance abuse. Then the presumption at a certain point from a statutory point of view this is something and acted from a general assembly would be that unless there was a compelling reason that person probably would be released.

Beth: Correct, that is the system in South Dakota and what I will also say is that if you talk to wardens and correctional administrators they all say that a predictable parole policy is a really great behavior management tool. Because if people know and trust that if they follow the rules that they will be awarded parole accordingly. Then they’re much more likely to follow the rules and do what they’re supposed to do. Whereas in states where parole feels arbitrary, like some guys who follow the rules get it and other guys don’t for reasons nobody can’t quite discern. Then it no longer seems like a good incentive to do the right thing. It’s kind of a crap shoot if you do the right thing whether you’re going to get parole or not.

Leonard: Where do you see parole in the next 10 years along the lines of the model that we’ve been discussing?

Beth: That is a really good question. I’ve seen the one place that there seems to be some movement on changing their parole system is Virginia. Governor Terry McAuliffe called a some kind of commission to study whether the state should reinstate it’s parole board. Virginia was one of the states that abolished parole during the 90s. That commission is currently hearing testimony and studying and I honestly don’t know what they’re going to decide to do. Because there is a really big debate going on, if you can call a handful criminologist studying this tiny corner a big debate. But among those that study it there really is a debate of whether it makes sense to rely more heavily on parole as a way to control prison populations.

Assuming you can reform the lack of transparency and the lack of accountability and sort of systematized the way parole board’s do business. Then on the other side of the debate there’s people that just say there’s not enough constitutional protections, there’s just no way to not have the whole process be tangled up in politics. It’s better to just jettison it altogether and build a second mechanism into the judiciary. I really don’t know what direction it’s going to go in.

Leonard: Transparency becomes the key because the average citizen sees a transparent process and understands where they’re going with it, they’re going to be more prone to accept it.

Beth: I certainly think so and one thing I will say is there is this researcher in Canada his name is Ralph Ceron and he’s piloting this structured decision making model that really allows for a new and interesting level of transparency.

Leonard: Our Guest today has been Beth Schwartzapfel she’s a staff writer for The Marshall Project, www.themarshallproject.org. Ladies and gentlemen this is DC Public Safety we appreciate your comments we even appreciate your criticism and we want everyone to have themselves a very pleasant day.

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