The High-Stakes ‘Game’ of Deciding Who to Release from Prison
Today, the presumption is to keep us in, for as long as possible
By Pam Bailey and Rob Barton
Earlier this year, Rob was given his first opportunity to petition for parole. We were under no illusions; we knew that like so many parole systems across the country, the U.S. Parole Commission (which handles D.C. residents) operates with a bias against release. In fact, although there were 661 individuals as of 2020 with indeterminate sentences (like Rob’s 30 years to life), we know of only several who have since been granted parole, despite the April 2020 law passed by the D.C. Council allowing Rob and the others credit for good conduct (up to 54 days a year).
The crazy thing is that there is no way to know if we’re right. Even though the USPC operates with taxpayer funds, and pretty much only handles only D.C. residents (since federal prisoners are not allowed parole), it will not share any statistics on its decisions. In any case, Rob was no different, even though the assessment tool used by the USPC indicated he should be released. His hearing examiner recommended he stay behind bars for now, and although the full commission has not yet weighed in, it’s rare for it to reverse course.
That’s why we are so glad there is agreement among D.C. Council members that control over parole must be brought back to the District. (Unfortunately, it seems as of this writing that action doesn’t necessarily follow from intellectual agreement. Mayor Muriel Bowser did not include sufficient funds in her 2022 budget to finance the transition and to date a disagreement on what shape the replacement should take [local board vs. judiciary] seems to have stymied the writing of enabling legislation by the judiciary committee. There is still time to for everyone to remember the human lives at stake, but that work must be done now.)
What is even more important to remember, however, is that whatever form a local parole process takes, the principles on which it is based are what defines how just it is. The Prison Policy Initiative, for example, has found that parole systems in states across the country err on the side of further incarceration.
“Since anyone going before the parole board has already completed their court-ordered minimum sentences, it would make sense for boards to operate with a presumption of release,” writes the PPI. “But state parole boards often deny the majority of those who appear before them.”
So, returning local control of parole to D.C. is only the first step. Even more important is how that decision is made. The Prison Policy Initiative has researched parole extensively and quotes three preeminent writers and thinkers: “The only ground for denial of release [on parole] should be the [body]’s finding, based on credible evidence, that a prisoner presents an unacceptable risk of reoffending if released.” No other criteria, says the PPI, should matter.
We agree. To us, that means takes off the table such consideration as the number of pre-incarceration arrests, the nature of the offense upon which conviction was based and, more controversially, the involvement of the victim or his/her family in the decision to release.
Researchers from three universities wrote in a recent journal report that historically, the participation of victims ended after the sentencing stage. But in the 1980s, victims’ rights advocates worked to change that, and the United States became the first country in the world to permit crime victims or next of kin to testify before parole boards. Today, American victims continue to have much greater impact on prison-release decisions than in Europe. In fact, more states consider input from the victim (94%) than from any other source. In contrast, in Europe, victim input is considered only during the verdict stage; it is precluded during sentencing and later decisions regarding release.
Think about it. Is it fair or realistic to ask victims or family members to “relive” a crime and then expect them to be able to put aside the trauma to consider who the prisoner is as a human today, often decades later? Even if that were emotionally possible, what knowledge or expertise do they possess to even make that judgement? In a previous post, Rob reflected on this fact. “Even people like me, who believe in second chances and understand so personally the inherent injustice and corrosive impact of the American carceral system, have an opposing, almost primal response when a crime is committed against a loved one… If my mother was raped or killed, I would feel the same way. And if we are all honest with ourselves, that visceral thinking is driven by a desire for retribution, not a belief that offenders can’t change for the good.”
So, what should parole decisions be based on? What constitutes “credible evidence that a prisoner presents an unacceptable risk of reoffending if released”?
Typically, it’s recommended that evaluators — no matter who they are — consider three dynamics: the extent to which individuals have participated in prison programming, the number and nature of disciplinary infractions they have committed, and the plan in place to support their successful release:
Participation in programming
Considering a prisoner’s participation in self-development opportunities makes sense, since evidence indicates they reduce the likelihood of recidivism. However, a constellation of factors make it difficult if not impossible for many residents of medium- to high-security prisons from accessing and benefitting such programming:
- Repeated and prolonged lockdowns, preventing access to programs.
- A very limited number of high-value programs designed to help individuals once they return to their community. This paucity of programming has increased over the last five years. Those that are available are often limited to certain institutions.
- Prisoners assigned to higher-security institutions, as well as those with indeterminate sentences (Rob on both counts), are frequently excluded from educational programming altogether. Although they are or will be eligible for parole at some point, they are treated as lifers and thus not “worth” the investment.
So, yes, initiative taken to improve and prepare oneself should be considered, but so should environmental constraints and the extent of informal leadership they show — such as books read, mentor relationships, etc.
Disciplinary infractions
At first blush, it also seems reasonable to consider whether a petitioner gets into fights or engages in other potentially dangerous behavior such as drug peddling. But even here, there are some caveats.
As Rob explained earlier, people are forced to “live differently in the woods than they do in a mansion.” What happens when the foreseeable future is only more of the same? What happens when the days, months, years that stretch ahead are only more time in prison, with each day numbingly the same? From where does the motivation come to behave the way society expects? Rob can tell you the answer: Life becomes debased to an animal’s instinct for survival. In prison, that means using violence to show you can stand up for yourself, conforming to a gang culture that demands that members of one geographic or racial group stick up for each other, and making money any way possible so you can buy items from the commissary and afford expensive phone calls. Over time, you can learn to separate from the madness — but to do that you need hope. Hope for a future.
The main point: It’s nearly impossible to survive in prison for very long without doing something that gets you into trouble — even things that might seem shocking on the outside. And the prison system as it currently operates, especially in high-security institutions, doesn’t encourage or support those who try to rise above.
Ultimately, the entire orientation of prison, and the type of people hired for officers, needs to transition from punishment to positive reinforcement and rehabilitation. But until then, decision-makers should be familiar with and consider the prison environment when weighing recent disciplinary infractions. (This is an argument in favor of a board, which could include returned citizens. In fact, that’s the position taken by about 100 D.C. residents still behind bars.)
Release plan
It’s a fact that individuals who have a support network in place, including family members ready to take them in and provide emotional support and initial financial backing, are most likely to not only survive but eventually thrive on the outside. Of course, not everyone has that, and it’s not fair to penalize those who don’t. This is when government and nonprofits must step up and work to provide a social safety net. Pam learned this firsthand while working to help an individual who was released after 35 years.
When someone has been “gone” for decades and has no supportive family members to guide them, it takes a comprehensive case-management approach — not a hodgepodge of services they must navigate on their own. That’s the least we as a society should offer.
The D.C. Reentry Task Force and the ReThink Justice D.C. Coalition have proposed that this process begin six months before the parole hearing with the assignment of a “parole release investigator” to eligible individuals. In addition to assessing applicants’ history, strengths and challenges and reporting back to the hearing officer (or judge), the investigator would help them connect with family and community-based resources, as well as identify those with medical, mental health or physical disabilities and introduce them to the support services they would need.
How do we put this all together?
Many states try to remove subjectiveness from the parole process by using an actuarial-based risk-assessment tool to balance all these factors. According to the paper by the three university professors referenced earlier, 88% of parole authorities report using a prediction instrument to guide decision-making. The USPC does too. But the most widely used and researched instruments produce “false positives” about 30 percent of the time — meaning that many individuals labeled “high risk” do just fine. Actuarial tools, write the professors, are better at predicting low- rather than high-risk behavior.
What does this mean? Grid-based tools provide needed structure to parole decision-making, and when they score someone as low-risk, decision-makers should grant release. Rob would be free today if the USPC hearing examiner had adhered to the commission’s own guidelines. However, when the score appears to indicate a petitioner is high risk, a holistic look at the totality of a person is needed — tapping into the “art” of parole decisions, along with the science.
Does a preponderance of the evidence indicate that a petitioner poses a threat to society? If not, the presumption should be release. It’s financially the best decision (incarceration is expensive!), it’s best for the community (imprisoned people means disrupted families) and it’s ethically right (the petitioners have already paid their debt to society with most of their lives).
Ultimately, as one member of the D.C. Council has argued, the best solution may be to abolish parole altogether, replacing it with automatic credit for “good time.” (The PPI has found, states are unnecessarily frugal in granting good time and irrationally quick to revoke it. Good time should be granted to all incarcerated individuals, regardless of the nature of their conviction and independent of program participation.) However, that would require reasonable sentences (itself a subjective determination), or a mandated “second look” after, say, 15 years.
Yes, this is a complicated, many-layered discussion. But it’s one we must have. Too many lives depend on it.
