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Sentencing by Parole Board: an Evaluation Anne M Journal of Criminal Law and Criminology Volume 67 | Issue 1 Article 1 1976 Sentencing by Parole Board: An Evaluation Anne M. Heinz John P. Heinz Northwestern University School of Law Stephen J. Senderowitz Mary Anne Vance Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Anne M. Heinz, John P. Heinz, Stephen J. Senderowitz, Mary Anne Vance, Sentencing by Parole Board: An Evaluation, 67 J. Crim. L. & Criminology 1 (1976) This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. THE JOURNAL OFCRIMINAL LAW & CRIMINOLOGY Vol. 67, No.'1 Copyright 0 1976 by Northwestern University School of Law Printedin U.S.A. CRIMINAL LAW SENTENCING BY PAROLE BOARD: AN EVALUATION* ANNE M. HEINZ,** JOHN P. HEINZ,*** STEPHEN J. SENDEROWITZf AND MARY ANNE VANCEt The paroling process is now under attack on a voiced by persons with more direct access to the broad front. In recent years, an increasing number of levers of power; an influential member of Congress, prison reformers, such as the American Friends the Chairman of the House Judiciary Committee's 1 Service Committee, have given up on parole and subcommittee on corrections, has co-authored an have endorsed fixed, determinate sentences in its article4 that calls into serious question the assump- stead. Academic criminal lawyers have published tions on which parole decisions are based, and the 2 both popular and scholarly' attacks on parole. Governor of Illinois has proposed to eliminate parole Criticism of the parole decision process has also been from his state's correctional system. 'The focus of all * Mr. Senderowitz and Ms. Vance collected the data for these attacks is not the after-care services provided by this article while enrolled as students at the Northwest- parole officers, inadequate as those services may ern University School of Law, from which they both re- often be, but rather the parole release decisions ceived the J.D. degree in 1974. No part of this article is intended to represent the views of the United States De- themselves, and the ignorance, pure caprice, bigotry, partment of Justice nor of the State of Illinois, by whom or other abuses of discretion that are alleged to they are now employed respectively. influence those decisions. This study was conducted pursuant to a grant from the These attacks on the parole decision are an CNA Foundation. The authors wish to thank the Founda- outgrowth of the same, developing skepticism that tion for making the research possible and to absolve the Foundation from responsibility for any of the statements has in the past few years called into question our made. The authors also wish to express their appreciation pursuit of the "rehabilitative ideal."' The parole to Peter Bensinger, then Director of the Illinois Department decision', as a key element of a system premised on of Corrections, and to David Sturges, then Acting Chair- rehabilitation or "correction," is seen as a judgment man of the Illinois Parole and Pardon Board, for their (usually made by inadequately informed decision- cooperation inithis study and for permission to use the Board's files. We also acknowledge, with gratitude, our makers) of whether an inmate meets some subjective, debt for the valuable advice and assistance of Ralph largely unarticulated standard of "reformation" or 8 Knoohuizen, Research Director of the Chicago Law En- "recovery" from mental or social illness. And it has, forcement Study Group, of William V. Kauffman, Jr., Executive Secretary of the Illinois Parole Board, and of the "Representative Robert Kastenmeir, co-author of Kas- staff of the John Howard Association of Illinois. tenmeir & Eglit, Parole Release Decision-Making: Reha- ** Assistant Professor of Political Science, University bilitation, Expertise, and the Demise of Mythology, 22 AM. of Illinois (Chicago). U.L. REV. 477 (1973) [hereinafter cited as Kastenmeir & *** Professor of Law and Urban Affairs, Northwestern Eglit]. University. 'See press release (mimeo), Office of the Governor, State f Assistant United States Attorney for the Northern of Illinois, release date February 18, 1975, at ad. 4 District of Illinois. [hereinafter cited as press release]. t Legal Staff, Consumer Advocate Office, State of Illi- 'See, e.g., press release, supra note 5, at Fact Sheet I. nois. See also Foote, The Sentencing Function, in Roscoe 'See AMERICAN FRIENDS SERVICE COMMITTEE, STRUG- POUND-AMERICAN TRIAL LAWYERS FOUNDATION, A GLE FOR JUSTICE: A REPORT ON CRIME AND PUNISHMENT PROGRAM FOR PRISON REFORM 17, 24, 32 (1972); IN AMERICA (1971). Kastenmeir & Eglit, supra note 4, at 481-91, for a 2 See Schwartz, Let's Abolish Parole, READER'S DIGEST, summary of critical views of parole. Aug. 1973, at 185. 'See, e.g., F. ALLEN, THE BORDERLAND OF CRIMINAL IN. MORRIS, THE FUTURE OF IMPRISONMENT 28-50 JUSTICE: ESSAYS IN LAW AND CRIMINOLOGY 25-41 (1964) (1974) [hereinafter cited as MORRIS]. Morris does not argue (chapter: Legal Values 'and the Rehabilitative Ideal); for outright abolition of parole (in part, at least, because Martinson, The Paradox of Prison Reform, a four-part "the politics of penal reform strongly favor reform recom- article in THE NEW REPUBLIC, Apr. 1, 1972, at 23; mendations that make use of existing personnel," id. at 36), Apr. 8, 1972, at 13; Apr. 15, 1972, at 17; and Apr. but his proposals would certainly alter radically the 29, 1972, at 21. functions of parole boards, restricting their discretion 'H. E. Barnes once opined: greatly and determining the parole release date "within the The diagnosis and treatment of the criminal is a first few weeks" of the inmate's imprisonment. Id. at 35. highly technical medical and sociological problem for HEINZ, HEINZ, SENDERO WITZ AND VANCE [Vol. 67 by now, been quite well established that our efforts to boards has, in fact, been exercised by one of those predict "dangerousness"-to discriminate between boards, the Illinois Parole and Pardon Board-that the persons who will commit crimes in the future and is, we identify the factors that appear to influence those who will not-are woefully inaccurate, consist- Board decisions, and thus, perhaps, shed light on the ently erring on the side of over-prediction. 9- If, then, allegations that the Boards "abuse" their discretion. parole boards are unable to distinguish the inmates Second, we assess the various possible alternative loci who have been rehabilitated from those who are of sentencing discretion and consider the broader likely to sin again, and if, in any event, rehabilitation scientific and policy issues involved in the techniques 6 is a vague, largely mythic standard that may provide and objectives of senten ing decisions. To anticipate the rationale for prolonged, inefficacious institu- our conclusion, very briefly, our analysis suggests tionalization, the premises on which the parole that the popular issue of who should hold the system traditionally rested 0 have been destroyed- sentencing discretion is less important than the or so the argument goes. question of how the sentencing decisions are Thus, the policy issue on which the current made-not "how" in the sense of "procedural due literature critical of parole tends to focus is the issue process," the right to hearing and to counsel and the of which decision-maker should exercise the sentenc- like, but rather in the sense of the nature of the ing discretion. Most of the parole critics suggest that evidence taken into account, the manner in which the modern trend toward vesting increasing amounts that evidence is weighed, and the nature of the of sentencing discretion in parole boards should be values and objectives that the decisions are intended reversed, returning that discretion to the judiciary. " to implement. Some of the critics would, in the alternative or in PART I: THE PAROLING DECISION addition, vest a more sizeable portion of the discre- tion in the legislature through the use of mandatory The Existing Literature sentence statutes. 12 In addressing the issues raised by Research pertinent to the parole decision-making these proposals, this article attempts two separate, process has moved in two directions. The first has but related tasks. First, we examine the question of focused on predicting parole outcomes; the second, how the discretion currently vested in the parole on evaluations of the paroling system. Formulae designed to predict parole success have come primar- which the lawyer is rarely any better fitted than a real ily from corrections professionals. The work has had estate agent or a plumber. a practical orientation-trying to find a parsimoni- H. BARNES, THE STORY OF PUNISHMENT 265-66 (1930), ous but accurate way of deciding whom to recom- quoted, not with approval, in M. FRANKEL, CRIMINAL SENTENCES: LAW WITHOUT ORDER 54 (1973) [hereinafter mend for parole-with little explicit theoretical cited as FRANKEL]. See also MORRIS, supra note 3, at 4, underpinning. The major product of this concern has 17-20; O'Leary & Nuffield, Parole Decision-Making been various kinds of prediction tables; that is, based Characteristics: Report of a National Survey, 8 GRIM. L. on examination of the success and failure of past BULL. 651 (1972); Comment, ParoleRelease Decisionmak- ing and the Sentencing Process, 84 YALE L.J. 810, 826 parolees, a set of categories is organized so that one (1975) (hereinafter cited as YALE L.J.). can assess the likely risk that a prisoner would violate 9See text accompanying notes 175-81 infra. For a parole. The development of prediction tables started review of the prediction literature, stressing the inaccuracy in the 1920's, and Illinois prison officials adopted and overprediction see Von Hirsch, Prediction of Criminal them in 1933.13 These expectancy tables have been Conduct and Preventive Confinement of Convicted Persons, 21 BUFF.
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