Tuesday, November 13, 2007


Prison sentences and parole

The New York Times gives us a story about a lifer in Michigan, Gerald Hessell, who has just been released on parole, many years later than he’d expected. It was the custom in Michigan when he was sentenced, that someone with a life sentence could expect to be paroled in 15 years, give or take, if he kept his nose clean. But Michigan changed its parole system, and Mr Hessell did 31 years instead:

Mr. Hessell was released the other day, thanks in part to a decision from a federal judge in Detroit last month ruling that the state had violated the ex post facto clause of the Constitution when it changed the parole rules. The clause says the government cannot increase punishments retroactively.

Now, early release — perhaps much earlier than what wound up happening — might have been the right answer for Mr Hessell. Yet the case brings up the general issue of what one can, or should, expect from sentences. Should the sentencing judge not be taken at her word? If the sentence is ten years, should the convict not expect to serve ten years? If it’s “life”, why should there be an expectation of ever being free?

Parole is a good idea... but it should be considered a privilege, not an expectation. And yet our expectation for early release is so strong that a federal judge has decided that when the parole system changes, it creates an unconstitutional change in the prisoners’ sentences. That seems wrong to me.

And note, as I say this, that I’m a strong believer in alternative sentences, and in reduced reliance on prison sentences for many crimes.

If a judge doesn’t want a criminal to spend ten years in prison, she shouldn’t hand down a ten-year sentence. If a judge doesn’t intend a life sentence, she shouldn’t give one. And in the end, justice, mercy, fiscal responsibility, or any other consideration might make us decide on parole (or commutation, or pardon)... but it should not be expected, and failure to choose it shouldn’t be considered an ex post facto alteration of the sentence.


Dr. Momentum said...

The law has to take into account the reality of what a life sentence means, and that includes parole.

Imagine if white people got paroled almost exclusively. If we were to accept that there should be no statistical expectation of parole, then there would be no basis for a complaint that a racist policy was causing black people to serve longer sentences. A racist could argue that every inmate should expect to serve out his full sentence, and therefore there is no basis for complaint.

I think it makes sense that rules regarding sentences should not be changed after the fact, whether we call it a privilege or not. The idea is to keep the state from unjustly extending sentences.

It would cause a loophole around constitutional protection, since sentences on the books could all be increased for future prosecutions and then paroles could be routinely granted. Then paroles could be systematically denied for whatever corrupt reason -- race, political affiliation, religion, etc.

Barry Leiba said...

James, I don't buy what you say in the second paragraph. There's always a basis for review if people in different classes are treated differently. If it really turned out that, say, 90% of white lifers were released in < 15 years, and 90% of black lifers served > 25, we could certainly challenge the release system as being unfairly biased, regardless of what the parole rules were.

I don't like the idea that the sentence is stated as one thing, but there's a "wink-wink" that says that the reality is different. If we expect that people will be considered for release after 15 years, then the sentence should be stated as "15 years to life", and the rules should be well defined, not subject to whim.