The Model Penal Code: Sentencing project may appear before ALI membership at the 2017 Annual Meeting in May for final approval.  This project tackles some of the most difficult policy and procedure questions that are at the forefront of debate across the U.S.

As we look toward the final draft of the project, we’d like to share some Sections from various drafts, beginning with this post about Parole-Release Authority.

A study by Reporter Kevin Reitz appeared in the 2011 Tentative Draft No. 2 (link to the full study is provided below).  From this research, he concludes that the sentencing court should determine the length of time of incarceration rather than a parole board. Removing the parole board’s discretion on timing of release does not cast doubt on the desirability of post release supervision programs. Reintegration of offenders is made easier when release dates are known well in advance. Sentencing courts are better positioned to impose appropriate sentences tied to the gravity of offense, harm to victims, and offender blameworthiness, and they are aided by sentencing guidelines and subject to appellate review. There is no credible evidence that a parole board can separate those inmates who have been rehabilitated from those who have not or that they can better assess the risk of future offending in individual cases.

From the most recent draft of the Sentencing project, Council Draft No. 6:

§ 6.06. Sentence of Incarceration

 (9) Offenders sentenced to a term of incarceration shall be released after serving the prison term imposed by the sentencing court reduced by credits for time served and good behavior as provided in §§ 6.06A and 305.1, unless sentence is modified under §§ 305.6 and 305.7.

 [(10)  For offenses committed after the effective date of this provision, the authority of the parole board to grant parole release to incarcerated offenders is abolished.]

Comment:

Subsections (9) and (10) express the Institute’s preference for a determinate sentencing system over a system in which parole boards hold substantial authority to set actual lengths of prison terms. The new Code’s recommendation of removal of parole release discretion—going to the timing of release—casts no doubt on the desirability of postrelease supervision programs for releasees. On the contrary, the Code identifies the “reintegration of offenders into the law-abiding community” as a central purpose of the sentencing system, see § 1.02(2)(a)(ii) (Tentative Draft No. 1, 2007); § 7.09 (Tentative Draft No. 3, 2014). Determinacy in sentence duration is not at war with this goal; some corrections experts have even suggested that planning for post-incarceration services is made easier when prisoners’ release dates are foreseeable well in advance.

The elimination of parole-release authority is a fundamental decision about the design and operation of a sentencing system as a whole. For prison cases, it represents a major reapportionment of sentencing discretion from the parole board to sentencing courts. To a large degree, the policy choice turns on analysis of the relative competencies of these two decisionmakers to fix the severity of prison sanctions.

The Institute’s recommendation on this question follows extensive study and debate. Much relevant background is contained in Appendix B, Reporter’s Study: The Question of Parole-Release Authority (Tentative Draft No. 2, 2011). The principle reasons for favoring a determinate rather than an indeterminate structure may be summarized as follows:

     (1) A parole board is more poorly positioned than a sentencing court to determine proportionate lengths of prison terms in specific cases in light of offense gravity, harm to victims, or offender blameworthiness. Judicial determinations of proportionality, especially when aided by sentencing guidelines and subject to appellate review, should not be supplanted by a parole board’s different view.

     (2) There is no credible evidence that a parole board can better effectuate the utilitarian goals of the sentencing system than a sentencing court. In particular, there is no persuasive evidence that parole boards can separate those inmates who have been rehabilitated from those who have not. Likewise, there is no persuasive evidence that parole boards can assess the risk of future offending in individual cases with greater accuracy than sentencing courts on the day of original sentencing.

     (3) The procedural protections available to prisoners in the parole-release context are unacceptably poor when compared to those attending judicial sentencing decisions. The parole process lacks transparency, employs no enforceable decision rules, often generates little or no record of proceedings, generally requires only that boilerplate reasons—or none at all—be given for decisions, includes no guarantee of appointed counsel, and provides no meaningful avenue of appeal. Even if all else were equal, considerations of fairness and regularity would favor the placement of prison-length decisionmaking authority in the courts.

     (4) Research, historical inquiry, and the firsthand experience of practitioners support the judgment that parole boards, when acting as prison-release authorities, are failed institutions. During the drafting of the revised Code, no one has documented an example in contemporary practice, or from any historical era, of a parole-release system that has performed reasonably well in discharging its goals, and would provide a salutary real-world basis for model legislation.

     (5) In the last three decades, parole boards have shown themselves to be highly susceptible to political pressure. There are many instances in which the parole-release policy of a jurisdiction has changed overnight in response to a single high-profile crime. Increasingly, parole release decisions have been skewed by risk aversion, as the institutional structure of parole holds individual board members responsible for the crimes committed by prison releasees—but no such risk follows decisions to refuse release.

     (6) Parole-release discretion cannot be sponsored as an ostensible check on prison population growth. Over the past 30 years, the leading prison-growth states in the United States have been those operating with indeterminate sentencing systems. In contrast, two-thirds of the states that have adopted determinate structures have experienced below-average prison growth when compared with other states. Every state that has operated with sentencing guidelines, while also eliminating the release authority of the parole board (the proposed sentencing structure of the revised Code), has experienced below-average prison growth.

     Although there are fundamental differences between sentencing systems with and without parole-release mechanisms, no sentencing structure can be absolutely determinate. All existing American sentencing systems, even those that have long ago eliminated parole release, make room for a number of later-in-time official decisions—some of them after judicial imposition of sentence—that may alter the durations of prison stays. Subsection (4) cross-references the most important of these in the revised Code: § 6.07 (“Credit Against the Sentence for Time Spent in Custody”) (Council Draft No. 5, 2015), § 305.1 (“Reductions of Prison Terms for Good Behavior”) (Tentative Draft No. 2, 2011), § 305.6 (“Modification of Long-Term Prison Sentences; Principles for Legislation”) (Tentative Draft No. 2, 2011), and § 305.7 (“Modification of Prison Sentences in Circumstances of Advanced Age, Physical or Mental Infirmity, Exigent Family Circumstances, or Other Compelling Reasons”) (Tentative Draft No. 2, 2011). Under the institutional philosophy of the revised Code, provisions of this kind—pockets of indeterminacy within a generally determinate structure—have been crafted to advance their underlying purposes without upsetting the Code’s broad preference for a determinate system in which judges are the primary sentencing authorities.

Kevin Reitz

Reporter, Model Penal Code: Sentencing

Kevin Reitz is the James Annenberg La Vea Land Grant Chair in Criminal Procedure Law at the University of Minnesota Law School. In 1993, he organized the pilot meeting of the National Association of Sentencing Commissions, which has gone on to become a nationwide resource for states contemplating or undertaking the process of sentencing reform. He continues to work with NASC and with state sentencing commissions nationwide.

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