MEDWED_TRANSMITTED.DOC2 2/26/2008 1:51 PM The Innocent Prisoner’s Dilemma: Consequences of Failing to Admit Guilt at Parole Hearings Daniel S. Medwed∗ INTRODUCTION ....................................................................................... 493 I. THE THEORY AND PRACTICE OF PAROLE ................................................ 497 A. HISTORICAL ORIGINS AND PURPOSES OF PAROLE ................................ 497 B. PAROLE RELEASE DECISION-MAKING: CONTEMPORARY STANDARDS AND POLICIES .................................................................................... 504 II. THE EFFECT OF PAROLE RELEASE DECISION-MAKING NORMS ON THE INNOCENT ............................................................................................... 513 A. PAROLE: AN INNOCENCE OPTION OF LAST RESORT ............................. 518 B. PRESSURE ON INNOCENT INMATES TO “ADMIT” GUILT ........................ 523 III. ADMISSIONS OF GUILT AND THE PAROLE RELEASE DECISION RECONSIDERED ....................................................................................... 529 A. THE DANGER OF ASSUMING THE LITIGATION PROCESS ACCURATELY FILTERS THE GUILTY FROM THE INNOCENT ......................................... 530 B. POTHOLES ON THE PATH TO REDEMPTION THROUGH THE PAROLE PROCESS ........................................................................................... 532 IV. SUGGESTIONS FOR REFORM .................................................................... 541 A. LIMITATIONS ON THE SUBSEQUENT USE OF STATEMENTS FROM PAROLE HEARINGS ............................................................................ 542 ∗ Associate Professor of Law, University of Utah-S.J. Quinney College of Law; J.D., Harvard Law School, 1995; B.A., Yale College, 1991. I would like to thank Robert Adler, Jensie Anderson, Adele Bernhard, Paul Cassell, Leslie Francis, Sharissa Jones, Erik Luna, Alice Ristroph, George Thomas, and Manuel Utset for their thoughtful comments on previous drafts of this piece. Moreover, I am grateful for the financial support provided by the S.J. Quinney College of Law Summer Stipend Program and the outstanding research assistance conducted by Utah law students David Everitt, Tara Harrison, Jordinn Long, Helene Simvoulakis, and Tyler Williams. Finally, I am indebted to Curt Garner, a member of the Utah Board of Pardons and Parole, for facilitating my access to the Board’s records and for answering all of my many (and varied) questions with grace and aplomb. 491 MEDWED_TRANSMITTED.DOC 2/26/2008 1:51 PM 492 93 IOWA LAW REVIEW [2008] B. DISENTANGLING ADMISSIONS OF GUILT FROM EXPRESSIONS OF EMPATHY ......................................................................................... 543 C. ALTERING THE APPROACH OF PAROLE BOARDS TO MATTERS OF GUILT OR INNOCENCE ........................................................................ 546 1. Modifying the Structure of Parole Release Hearings ........... 547 2. Enhancing Factual Investigative Powers ................................ 549 3. Encouraging Parole Boards to Refer Innocence Cases to Other Agencies or Organizations .......................................... 549 a. Innocence Projects ................................................................ 550 b. Prosecutorial “Innocence” Departments ................................. 552 c. Innocence Commissions ........................................................ 553 CONCLUSION .......................................................................................... 555 MEDWED_TRANSMITTED.DOC 2/26/2008 1:51 PM THE INNOCENT PRISONER’S DILEMMA 493 INTRODUCTION The granting of parole in the criminal justice system is often viewed as an act of grace: the dispensation of mercy by the government to an individual prisoner deemed worthy of conditional release prior to the expiration of his sentence.1 Yet the criteria upon which state parole boards base these acts of grace remain something of a mystery.2 Denials of parole are largely unreviewable,3 and courts have held that due process imposes only a minimal burden upon parole boards to reveal the rationales for their decisions.4 Nevertheless, surveying state parole release decisions demonstrates that a prisoner’s willingness to “own up” to his misdeeds—to acknowledge culpability and express remorse for the crime for which he is currently incarcerated—is a vital part of the parole decision-making calculus. That is, admitting guilt increases the likelihood of a favorable parole outcome for an inmate whereas proclaiming innocence serves to diminish the chance for release.5 The main objective of this Article is to consider whether this practice is wise. Should a prisoner’s assertions of innocence be held against him in the parole process? On the one hand, several arguments suggest that parole boards are correct in disregarding an aspiring parolee’s claim of innocence and, in fact, holding it against him. The primary argument in support of the current practice relates to the issue of institutional competence. Factual questions of 1. See, e.g., Mary West-Smith et al., Denial of Parole: An Inmate Perspective, FED. PROBATION, Dec. 2000, at 3 (“Parole is legally considered a privilege rather than a right; therefore, the decision to grant or deny it is ‘almost unreviewable.’”). For an overview of parole and how it differs from probation, see generally NEIL P. COHEN, THE LAW OF PROBATION AND PAROLE § 4:1 (2d ed. 1999). 2. See, e.g., Ronald Burns et al., Perspectives on Parole: The Board Members’ Viewpoint, FED. PROBATION, June 1999, at 16–17 (“Despite both the pivotal role and dynamic nature of parole in the criminal justice system, few research efforts have been directed at understanding parole board decision-making processes.”). 3. See, e.g., Scarpa v. U.S. Bd. of Parole, 477 F.2d 278, 280–81 (5th Cir. 1973) (“The courts are without power to grant a parole or to determine judicially eligibility for parole. Furthermore, it is not the function of the courts to review the discretion of the Board in the denial of the application for parole or to review the credibility of reports and information received by the Board in making its determination.”); see also William J. Genego et al., Parole Release Decision-making and the Sentencing Process, 84 YALE L.J. 810, 842 (1975). 4. See, e.g., Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1, 14–16 (1979) (holding that due process merely requires notice regarding a parole hearing, a hearing at which the inmate may present his case, and if parole is denied, a description of the reasons for the rejection). 5. See infra notes 91–93 and accompanying text; see also Richard A. Rosen, Reflections on Innocence, 2006 WIS. L. REV. 237, 282 (“It is not uncommon for parole boards to require an admission of guilt before considering an inmate for release.”); Bryan H. Ward, A Plea Best Not Taken: Why Criminal Defendants Should Avoid the Alford Plea, 68 MO. L. REV. 913, 932 (2003) (noting that many states “include consideration of the inmate’s remorse, or lack thereof, for the offense committed” in their parole decisions). MEDWED_TRANSMITTED.DOC 2/26/2008 1:51 PM 494 93 IOWA LAW REVIEW [2008] guilt or innocence ordinarily stand outside the scope of parole commissioners’ delegated duties and, rather, fall within the province of juries and judges.6 Moreover, without the resources to conduct extensive field investigations, parole boards simply lack the capacity to verify a prisoner’s claim of innocence. Thus, parole boards normally presume the guilt of the inmates seeking release before them and leave it to the post- conviction litigation process to conclude otherwise.7 The second major justification for the existing norm lies in the parole board’s understandable desire to minimize the risk of discharging individuals who are likely to re- offend.8 Prevailing psychological doctrine maintains that taking responsibility for one’s actions is crucial to mental health.9 According to 6. See, e.g., James Kimberly, Parole Board Often Deaf to Claims of Innocence, HOUS. CHRON., Feb. 6, 2001, at A5 (“‘The argument about guilt or innocence should rest with the courts.’” (quoting the chairman of the Texas Board of Pardons and Parole)). British corrections authorities, in fact, are extremely explicit about this. A booklet published by the Prison Reform Trust and HM Prison Service, which is given to prisoners describing the parole process, contains a series of questions and answers. The response to the hypothetical prisoner question “What if I say I am innocent?” is illuminating: “Prison staff must accept the verdict of the court, even if you say that you did not commit the offence for which you are in prison.” See Michael Naughton, Why the Failure of the Prison Service and the Parole Board to Acknowledge Wrongful Imprisonment is Untenable, 44 HOW. J. CRIM. JUST. 1, 2 (2005). 7. See, e.g., Stuart G. Friedman, The Michigan Parole Board: A Smoldering Volcano, 77 MICH. BUS. L.J. 184, 187 (1998) (observing that in Michigan, the Parole Board “has adopted an administrative policy of treating all allegations contained in the presentence report as true (with the exception of the offender’s description of the offense)”). Parole boards often penalize inmates who maintain their innocence—even inmates who plead guilty under an “Alford plea” agreement in which they agree to the sentence but do not acknowledge their factual guilt. See North Carolina v. Alford, 400 U.S. 25, 168–69 (1970) (holding that a trial court may accept a guilty plea even where the defendant maintains her innocence,