FALSE HOPE

New York, the only parole commissioner who is a person
of color recently retired. 265 Connecticut is unique in that
its parole board includes an individual who was previously
incarcerated. 266 Having the perspective of someone who has
been through the system is invaluable because people who
have not been through the prison system may not understand
the challenges in accessing programming, to personal
safety, and to finding reentry and community services in
preparing for parole. Two common recommendations from
prisoners interviewed by the ACLU were (1) that correctional
staff who see the individual seeking parole every day and
have monitored their conduct and progress over the years
be more involved in the decision; and (2) that community
members be a part of the decision.
Stephen Smith, now 43,
has been serving a life
sentence since he was 17.
Stephen Smith, a Black
man who was 16 at the time
of the murder of an older
man he believed to be bullying
other kids, for which
he is serving a life sentence,
said, “The parole process
should be something the
public is involved with….
People are going back to
the community and yet no
one from the community
is involved in the decision.
It should be community
leaders, clergy, even local
police.” 267 Huwe Burton,
who was 16 when he was arrested for the murder of his
mother (a charge he continues to protest even now that he
has finally been released on parole after 30 years in prison),
said, “Until there is involvement from the communities that
many of us came from, they are always going to send back
people who won’t do any good while people with degrees,
who’ve done what they can, are stuck in prison.” 268
B. PAROLE AND/VS. DUE PROCESS
In the Supreme Court’s seminal 1979 case on parole review,
Greenholtz v. Inmates of Nebraska Penal and Correctional
Complex, the court held due process rights are limited in
discretionary parole proceedings because the mere possibility
of release through parole did not create a liberty interest
(i.e., an interest in freedom from deprivation of liberty by
the government). 269 Absent statutory language creating a
presumption of or entitlement to parole, the court held, the
parole board has significant discretion to decide whether to
release, along with the factors to be considered and conditions
to be met before a person is granted parole. 270
As legal scholars and commentators have observed, the
court’s distinction between systems where parole is a matter
of right and those where it is discretionary—the first system
entitling an individual to a range of constitutional protections
and the second to virtually nothing—is not borne
out in practice. 271 There are few states that have some form
of “presumptive” parole (including Arizona, California,
Florida, South Dakota, and West Virginia 272 ) where release is
presumed and the burden is on the parole board to provide
reasons to the contrary. With the exception of South Dakota,
where the structure of the parole system reflects its commitment
to presumptive parole, the due process protections that
attach in these presumptive parole systems are still limited,
and courts defer to parole boards’ broad discretion under
both regimes. 273 Without due process rights to a meaningful
hearing with legal representation, an opportunity to present
and challenge evidence, and to be heard, individuals do
not have a real chance to demonstrate their suitability for
release. As a result, regardless of the parole system in place,
few eligible prisoners are actually released through parole. 274
The system the Supreme Court upheld in Greenholtz provided
prisoners with almost no information as to why they
were denied parole, and the hearings themselves lasted “an
average of five to ten minutes.” 275 The court nevertheless determined
that the individual “is permitted to appear before
the Board and present letters and statements on his own
behalf. He is thereby provided with an effective opportunity
first, to insure [sic] that the records before the Board are in
fact the records relating to his case; and second, to present
any special considerations demonstrating why he is an appropriate
candidate for parole.” 276
To pretend that this limited hearing provided prisoners
with a meaningful opportunity to inspect the evidence used
against them or to provide their own information in support
of release dismisses the critical issues at stake for prisoners
wholly dependent on those five minutes to plead their case.
Decades after Greenholtz, prisoners, advocates, and even
former parole board staff raise the same concerns about
parole processes around the country. Moreover, Greenholtz
continues to be relied upon to defend the lack of due process
in parole proceedings where there is no hearing at all. Even in
states without the nominal procedures the Supreme Court
pointed to in upholding Greenholtz, courts are unwilling to
intervene. 277
Instead, and despite the growing authority and caseloads
of parole boards, the Supreme Court and lower courts have
continued to defer to these boards, pointing to the significant
discretion afforded them by state legislatures. Courts and
legislatures continue to view parole as “an act of grace,” 278
rather than as a central part of penal policy, instrumental
to the reduction of mass incarceration. As legal scholar
Richard Bierschbach observed, the discretionary nature of
parole decision-making, rather than calling for more external
scrutiny, transparency, and guidance, “is reflected in a
constitutional doctrine that commits parole to the virtually
unfettered judgment of the states and their parole boards.” 279
C. PAROLE AS A SECOND
SENTENCING
The Supreme Court in Greenholtz and many subsequent
court decisions around the country have often insisted that
the parole release proceeding is not akin to sentencing and,
accordingly, that applicants have limited rights in parole
hearings. But in some states, the parole board’s authority
in setting the range and ultimate number of years a person
will spend in prison, often based on that individual’s offense,
operates like a sentencing.
In some states, parole boards set the range of years a prisoner
will be incarcerated. For example, in Hawaii, the parole
board has the unique authority to set the minimum term of
incarceration. 280 The court imposes the maximum sentence,
based on statutory options
aligned with the offense, 281
while the state Supreme
Court has held that the parole
board is authorized to
set a prisoner’s minimum
term “at a period equal
to his or her maximum
sentence,” effectively giving
a prisoner a no-parole
sentence. 282
In Utah, where length
of stay has contributed
significantly to the state’s
Jordan Calliham has been
serving a life sentence
since he was 16.
escalating incarceration rate, 283 the parole board has extensive
power to determine how long an individual spends in
prison. Under Utah’s entirely indeterminate sentence structure,
defendants face a limited sentence range imposed by
the court: 0-1 year, 1-5 years, or 5 years to life. 284 Defendants
can receive five years to life for a range of crimes from
possession with intent to distribute controlled substances
near a school to murder. 285 Thereafter, the parole board
decides when they first become eligible for parole, how long
they must serve in between reviews, and when they will
eventually be released. 286 Jordan Calliham, for example, a
33-year-old white man serving a life sentence in Utah for
the murder of his friend, was 16 at the time of his offense in
1999. In 2000, after he had been sentenced to a five-to-life
term of imprisonment, the Utah parole board scheduled his
first hearing for 2024—24 years later, at which time he will
be 42. 287
The parole board appears even more like a sentencing
authority when its power to set terms of imprisonment is
also explicitly tied to its assessment of the crime. As noted
by Kevin Reitz in his report for the Model Penal Code, and
discussed at length in Section V of this report:
Section 1.02 of the revised Code defines sentence
proportionality with reference to “the gravity of
offenses, the harms done to crime victims, and
the blameworthiness of offenders.” American
statutory schemes of parole release explicitly require,
or tacitly allow, parole boards to reassess the
seriousness of the offense. They are not bound by
40 AMERICAN CIVIL LIBERTIES UNION FALSE HOPE: HOW PAROLE SYSTEMS FAIL YOUTH SERVING EXTREME SENTENCES
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