The Söring Parole Decision

Over at Soering Guilty as Charged, Holdsworth has an fine analysis of the decision to parole Soering and Haysom at the same time. As he points out, the decision makes zero sense from any perspective. The factors cited by the Parole Board in freeing Haysom and Soering apply to hundreds of prisoners who never get paroled; Haysom should have been paroled much earlier than Soering according to the Board’s own criteria, and Soering got special advantages because he has wealthy and prominent supporters such as Jason Flom (who donated $7,500 to help Virginia Governor Ralph Northam in 2017, even though Flom lives in New York). Soering even spoke in person to Northam for 10 minutes in Northam’s office!

Holdsworth is quite exercised about the decision, which he calls corrupt and unprincipled. I have a somewhat milder view, mainly because my expectations are much lower. Of course the parole decision was unprincipled, for exactly the reasons he states. But then again, most of them are. In the USA, parole and pardon decisions are not governed by strict legal requirements. The reason is simple: Unlike sending someone to jail, which requires a large amount of proof analyzed by logical criteria set out in advance, letting someone out of jail early is considered a much lower-stakes decision. Let’s say you’re serving a legally-imposed sentence of 15 years, and you apply for parole after 10 years and you are rejected. You have to spend another year in prison before you can apply for parole again. Has this infringed your rights? No, because there is a perfectly valid reason for keeping you in prison — you were sentenced to 15 years. The government is fully entitled, if it wishes, to keep you in prison for every second of that 15 years. Not a second longer, mind you — but every second. It’s decision to free you earlier is a gift which it can bestow at its discretion.

Thus, the US Supreme Court has decided that inmates have no constitutional right to parole, and that individual US states are free to administer their parole systems however they want, as long as a very low basic level of minimal fairness exist. The reason, according to a 1979 decision of the US Supreme Court, Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, is that parole and pardon decisions are necessarily arbitrary:

There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence. The natural desire of an individual to be released is indistinguishable from the initial resistance to being confined. But the conviction, with all its procedural safeguards, has extinguished that liberty right: “[G]iven a valid conviction, the criminal defendant has been constitutionally deprived of his liberty.”

A state may, as Nebraska has, establish a parole system, but it has no duty to do so. Moreover, to insure that the state-created parole system serves the public interest purposes of rehabilitation and deterrence, the state may be specific or general in defining the conditions for release and the factors that should be considered by the parole authority. It is thus not surprising that there is no prescribed or defined combination of facts which, if shown, would mandate release on parole. Indeed, the very institution of parole is still in an experimental stage. In parole releases, like its siblings probation release and institutional rehabilitation, few certainties exist. In each case, the decision differs from the traditional mold of judicial decisionmaking in that the choice involves a synthesis of record facts and personal observation filtered through the experience of the decisionmaker and leading to a predictive judgment as to what is best both for the individual inmate and for the community. This latter conclusion requires the Board to assess whether, in light of the nature of the crime, the inmate’s release will minimize the gravity of the offense, weaken the deterrent impact on others, and undermine respect for the administration of justice. The entire inquiry is, in a sense, an “equity” type judgment that cannot always be articulated in traditional findings.

So, to sum up: US states aren’t even obliged to offer any form of early release. They could simply abolish parole tomorrow, and that would be constitutional. If they do establish a parole system, therefore, it doesn’t need to meet high standards. You don’t have to give the inmate an in-person hearing, you don’t have to allow witnesses, you don’t have to explain your decision. Basically you can only win a claim for unfair parole standards by showing illegal discrimination in parole decisions, such as, for example, a parole board only releasing white inmates over a period of years.

The Greenholtz rule has been criticized over the years — especially since American courts hand down such long sentences. This article, for example, is just one of hundreds advocating for higher standards to govern American parole and pardon decisions. I, personally, fully agree with the critics: Parole decisions should be more formalized and transparent, and there should be a presumption in favor of granting parole once a prisoner has served a certain amount of their sentence. But that’s not where the USA is right now. Therefore, parole boards can decide based on pretty much whatever criteria they want — as long as they’re not explicitly discriminatory — and don’t have to provide any real explanation.

This also explains why Haysom was paroled so late. As Holdsworth pointed out, the parole guidelines, when she was sentenced, suggested that she should be considered for early release after only about 12 years. She was unlucky, however, in that her earliest bids for parole coincided with a massive nationwide crackdown on parole. As of the mid-1990s, violent crime in the USA had been increasing for three decades:

(source)

Voters were afraid and enraged, and demanded ever-longer sentences and — just as importantly — fewer parole grants. To someone who didn’t live through this era of American history, it’s impossible to capture how terrified people were of violent crime. Of course, much of this paranoid overreaction was the result of “if it bleeds, it leads” sensationalist crime coverage, but still, the numbers were real. It wasn’t all made-up.

Politicians were terrified of letting a violent criminal out on parole, only for him to commit another violent crime. Michael Dukakis, the 1988 Democratic presidential candidate, lost the presidency in part because of the the infamous “Willie Horton” ad:

Horton committed a brutal assault and rape while out on a “weekend pass” from prison in Massachusetts.

Although the vast majority of paroled offenders don’t commit further violent crimes, there were still hundreds of cases like Horton’s, and state governors realized that any one of them could end their political careers as surely as Horton ended Dukakis’ career. Therefore, governors in many states issued either formal or informal guidance to parole boards to stop granting parole in all but a tiny handful of cases. Only people who couldn’t possibly pose any further threat, under any circumstances, would be released.

Both Haysom and Soering ran into this whiplash political environment. There was no chance they were going to get parole until long after the American incarceration binge was over, and that binge lasted years after crime rates began declining in the early 2000s. Soering, typically, actually compared himself to Willie Horton after Governor Tim Kaine’s order permitting his transfer to German prison was overruled by the incoming Republican governor.

So politics kept Haysom and Soering in prison much longer than they would have if political factors hadn’t played a role. But once again, under American law, this is simply not a problem. The courts regard parole decisions as discretionary gifts which can be influenced by any number of factors, including partisan politics. If the voters don’t want violent criminals getting paroled before their criminal sentences expire, they deserve to get what they want. Even many American judges would say that this level of democratic responsiveness is not only not a bug, it’s a feature. Unlike people in most other countries, Americans get to participate directly in creating their country’s criminal-justice policy, and they do just that. Your political viewpoint will decide whether you consider this a welcome sign of democratic egalitarianism or a disastrous decision to put law and policy in the hands of untrained, uneducated masses.

American states can even completely abolish parole if they want, and some American commentators favor just that step:

Because parole’s focus on prediction misleads citizens and defendants about the purpose of criminal sentencing, what we need to do is end the fiction of parole and community safety, just as Congress did 20 years ago when it abolished parole for federal criminal cases. Federal felons serve the sentence that a judge gives, subject to a small discount only for good behavior while in prison. Sentences are based primarily on the seriousness of the crime and an offender’s criminal history. After federal felons pay their debt to society, they remain subject to terms of “supervised release,” usually for three years. They report to a probation officer and can quickly be returned to jail if they violate strict and mandatory conditions of release.

Conservative Britons have argued abolishing parole in that country.

So, to sum up: Pretty much all of Holdsworth’s critique is well-reasoned. Yet, in the United States, it will largely fall on deaf ears, because American courts have intentionally declined to accept responsibility for reviewing parole decisions. Perhaps they should, but until they do, it’s considered perfectly normal for parole decisions to be arbitrary and influenced by political factors.