FALSE HOPE

sought out programs, counseling, and any opportunity to
rebuild his relationship with his family. 309 Mr. Parkhurst has
now developed a relationship with both of his parents, who
wrote to the parole board in support of his release. His sister
has offered her home to him when he is finally released. 310
Mr. Parkhurst turned to education, completing his GED,
associate degree, and bachelor’s degree through Adams State
University, as well as additional courses through a Brown
University program. 311 He is now working on his master’s
degree. Not only has Mr. Parkhurst pursued education for
himself, but his parole packet is filled with letters of support
from college and community programs discussing his commitment
to supporting other prisoners in achieving education.
Much of Mr. Parkhurst’s time in prison has been spent
training service dogs for people with disabilities through the
facility’s dog training program. (One of the dogs he trained,
Rescue, was placed with a survivor of the Boston Marathon
bombing. 312 ) Mr. Parkhurst is also an avid artist and has
developed art and related materials for Rhode Island reentry
programs, domestic violence groups, and other trainings
and programs for at-risk youth. 313
Mr. Parkhurst served 21 years before he first came up for parole
in 2014. The parole board commended him on his program
participation, but it denied him “due to the seriousness
of the offense” and set his next hearing for 2023—nine years
later. 314 Having now spent 23 years in prison and completed
all available programming, it is unclear what more Mr.
Parkhurst is expected to do to. “I have the most support I’ve
ever had,” observes Mr. Parkhurst, who says he understands
that he deserved prison for his offense but wants a chance
to be productive in the community: “The main witnesses in
the case have completed victim/offender reconciliation with
me. My remorse and regret are genuine; my mind and spirit
are still positive and intact. . . . At some point, if not already,
prison will do more harm than good for me.” 315
Brian Stack is a 56-year-old white male prisoner serving a
life sentence in Utah for the murder of a police officer a few
weeks after Mr. Stack turned 18 years old. Mr. Stack was last
reviewed in 2006, after he had served almost 28 years in prison.
By that time he had earned his GED, associate degree,
and a Bachelor of Science degree; had participated as a student
and a facilitator in several institutional rehabilitation
programs; and had numerous letters of support from community
members and former counselors and caseworkers,
In most states, there is
virtually no review of parole
denials.
as well as a letter of forgiveness from the victim’s widow. 316
The Utah parole board denied Mr. Stack parole and scheduled
his next hearing for December 2018—12 years after his
2006 review. 317
Proposing their reforms to parole release policies, legal
scholars Edward Rhine, Joan Petersilia, and Kevin Reitz
suggest states curb the power of parole boards over sentence
length by restricting the amount of time beyond
the court-imposed minimum sentence that parole boards
control. 318 Such limits could also encourage parole boards to
think of the minimum sentence not as a starting point but as
a meaningful limit absent continued need for incarceration.
D. LACK OF JUDICIAL REVIEW /
INDEPENDENT OVERSIGHT
In addition to the lack of strict and enforceable guidance for
parole decision-making, there is little oversight, transparency,
or review of those decisions. According to the ACLU’s research,
approximately eight states currently have some form
of administrative procedure for reviewing the parole board’s
initial decision to deny parole under any circumstances. 319 This
review, however, is very limited and often means reconsideration
by the same individuals who made the prior decision to
deny parole. In Texas, for example, a prisoner may receive a
“special review” by a different panel only if (1) a parole board
member requests it or (2) a prisoner cites information that
was not available at the time of the parole review. 320 Prisoners
in Massachusetts and New York described their frustration
that the appeal went back to the board instead of to a fresh set
of independent eyes.
In most states, there is virtually no administrative review,
and parole denials can be reviewed in court based only on a
“gross abuse of discretion” standard. In light of the significant
discretionary authority of parole boards in many states,
an abuse of discretion standard is almost insurmountable
for the prisoner. In some states, judicial review is granted
only on constitutional grounds during post-conviction reviews.
321 When granted, courts tend to emphasize the parole
board’s “absolute” or “near absolute” discretion under the
state statutes. 322
When courts have been called upon to examine state parole
boards’ procedures, they have almost universally declined to
censure boards for their lack of guidance or to confine their
discretionary authority. Instead, Bierschbach writes, courts
“afford parole only the most anemic procedural due process
protections. Parole release decisions require the most
minimal opportunity to be heard, the barest statement of
reasons, and the weakest evidentiary support on appellate
review.” 323 Laura Cohen, a law professor who also represents
prisoners in parole proceedings, writes that “the combination
of highly subjective decisional standards and limited
reviewability affords parole board members virtual carte
blanche to deny release for almost any reason, as long as they
mouth the correct statutory language in doing so.” 324
Not only do courts rely on the fact that most authorizing
statutes give the parole board huge discretion in what to
consider and how to conduct a review, they also tend to allow
parole boards to ignore what guidance and procedures do
exist, including the tools parole boards develop themselves.
For example, in 1988, several prisoners in Georgia filed a
pro se lawsuit, claiming that the parole board had violated
their rights to due process and equal protection by departing
from its own release calculations. 325 The court, finding for
the parole board and pointing to its discretionary authority,
held that “the Georgia statutes actually create a presumption
against parole.” 326 Dissenting from this decision, Senior
Circuit Judge Thomas Clark recognized why due process is
so important in the parole decision-making process:
Due process protects prisoners entitled to parole
consideration from decisions of a paroling authority
mistakenly made, infected by discrimination or
lack of equal protection, resulting from bribery or
political influence, or from some other unjustifiable
cause. Due process provides protection from unaccountable
arbitrary action on the part of government
(invisible people), which is what this country
is all about. 327
The huge amount of authority placed in the hands of (so
few) parole board members, as suggested by Judge Clark, is
particularly problematic given the lack of transparency in
these boards and that the individuals making release decisions
are not generally regulated or supervised.
E. PAROLE GRANT RATES
The lack of fair procedures and transparency in the system,
along with the primary focus on the seriousness of the offense,
has dire consequences for who and how many people
are approved for parole. Parole grant rates vary dramatically
across the United States. Due to the states’ move to
determinate sentencing, states with a relatively low number
of parole-eligible prisoners still approved few people for
release on parole, suggesting that the problem is not solely
an overburdened parole process.
In Florida, which essentially eliminated parole in 1983 for
new sentences and moved to a determinate sentencing
model, only 23 of the 4,626 parole-eligible prisoners (0.5
percent) were granted parole in FY 2013-2014. 328 According
to the Florida Commission on Offender Review, in 2015,
366 individuals in Florida were serving a parole-eligible life
sentence for an offense committed when they were under
18 years of age. 329 Two (0.5 percent) were granted parole. 330
In the same year, 1,897 individuals were serving a parole-eligible
life sentence for an offense committed between the
ages of 18-25; four (0.2 percent) were granted parole. 331 Also
in 2015, 73 individuals who were 25 or younger at the time
of their offense were serving sentences of 50 years or more
and were reviewed for parole. Ten (13.7 percent) of those
individuals were granted parole, three of whom were under
age 18 at the time of their offense. 332
In 2015, Ohio’s parole board, which also has authority over
individuals serving an indeterminate sentence for an offense
committed before July 1, 1996, decided 1,130 parole cases
44 AMERICAN CIVIL LIBERTIES UNION FALSE HOPE: HOW PAROLE SYSTEMS FAIL YOUTH SERVING EXTREME SENTENCES
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