America’s Legal Institution and Government Must Cooperate for Equality in Parole
American politicians frequently run for public office on anti-crime platforms, and the criminal justice system is a common topic of debate between Democrats and Republicans alike. Those running for elected office make promises about being “tough on crime,” or alternatively “reducing the prison population” [1]. One major method through which lawmakers seek to accomplish the latter is through parole. Parole by definition is the early release of prisoners into society under supervised watch with the attempt of rehabilitation and is similar to executive pardons in the sense that both are granted by the government and seen as “statutory privileges,” meaning they operate as “gifts” and rest outside the typical legal parameters of release [2]. Parole is handled under the Department of Justice’s Board of Pardons and Parole, and it uses the legal opinion of the case’s sentencing judge, prosecutor, and defense attorney to determine whether parole will be granted [3].
Though parole mainly falls under the congressional and executive branches of governments’ jurisdiction, it intersects with the legal field in a variety of ways, and these connections need to be emphasized further. The most obvious connection is through the actual sentencing of prisoners, but it is further connected through Greenholtz v. Nebraska Penal Inmates (1979), which found that due process in parole cases does not assume the possibility of parole for all inmates — parole is evaluated on a case-by-case basis by the Department of Justice’s Board of Pardons and Parole, a department chosen by the executive and congressional branches of government [4]. The intersection of government and law in parole is designed to regulate government “gifts” of parole to uphold the legal integrity of the criminal justice system while keeping the country safe from inmates prone to violent episodes that lead to recidivism, or reincarceration. The law also seeks to uphold that all Americans are held to the same standards for parole, thereby ensuring equal opportunity for due process and rehabilitation in the community.
In an age of increasing politicization of parole and the criminal justice system in the government, however, Americans are in danger of becoming campaign tools with an unequal opportunity of rehabilitation, especially people of color. Racial minorities have a one in six chance of being released on parole, as opposed to their white counterparts who have a one in four chance [5]. To challenge this concerning trend, the necessity of the legal institution’s cooperation with and monitoring of the congressional and executive aspects of the system, which will be referred to as executive-related, must be emphasized. When the legal system and executive-related branch of government embrace their different purposes, as given by the Constitution, to cooperate, the political system will be unable to take advantage of parolees attempting to successfully reenter society.
The judicial and executive systems were written into the Constitution with two different functions in mind, and therefore take distinct approaches to issues, such as sentencing laws, within the criminal justice system. The judicial branch, as stated within Article Three of the Constitution, was designed to hold “the Trial of all Crimes... by Jury,...” and “the judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made [6].” The Constitution clarifies that the judiciary has jurisdiction over sentencing, so naturally, the judiciary must also have valuable legal insight on the early release of sentencing through parole. Our current system just does not listen to it.
The American Constitution is not the only supporter of an objective assessment of parole. According to the philosophical writings of Aristotle, “the law is free from passion,” meaning an individual’s personal beliefs should not interfere with the facts of any case, and thereby promoting equality in sentencing. Despite its imperfect execution, Aristotle’s argument supports that the law should at least be designed with this principle in mind. Equality is a necessary aspect of parole, as every American in prison should be sentenced based on the severity of their crime, not identifiers such as age, race, or socioeconomic status. Thus, the execution of prison sentences should be reasonably free from personal bias, and so should the execution of parole.
Alternatively, government branches such as the Department of Justice’s Board of Pardons and Parole, are designed to manage the government’s extensive resources in an efficient manner. The Supreme Court has “generally recognized that Congress has the broad constitutional authority to establish and shape the federal bureaucracy,” so government agencies are under direct influence from Congress and its representatives [7]. The government and Congress were designed to represent the people, which has evolved to mean the individual politicians’ constituencies. When politicians are representing their respective regions, they are not always acting in the nation’s best interest, but rather appealing to the distinct preferences of their individual constituencies. Parole and release from prison are no exceptions to this phenomenon. Regardless of historical precedent or the law, Congress and government agencies are more inclined to do what is politically expedient for their careers and appetizing to the voters they represent. Whether that means widening the number of parolees or allowing fewer people out on parole, parole sentences should be given on merit, not constituency or politicians’ values.
For their aspirationally unbiased, objective nature, it seems reasonable that legal institutions have a significant influence over the determination of prison sentences and the following release of prison sentences through parole. In other words, the legal system must act as a check to government institutions involved in the criminal justice system, particularly parole. Checks and balances are a key concern of the Constitution, and there should be no exception in parole sentencing, mainly because despite arguments of increased politicization, the judiciary can exercise a more unbiased and unattached hand over legislative maneuvering that is in conversation with political trends and strategies. Without this check, it would be possible for government entities and lawmakers to pursue their political goals through parole in a variety of ways, the most relevant today regarding elections.
The issue of parole has historically been utilized for campaign strategy, especially the question of whether parolees deserve the right to vote. For instance, H.R.1, the legislation passed by the House of Representatives in March 2021, would expand the right to vote to parolees in all states by rescinding the measures in state law that ban former convicted felons from voting [8]. H.R.1 has become a hugely debated topic in Congress and passed in the House on party-line votes [9]. When the executive-related branch of government and its politicians looking for reelection can control whether parolees can vote, as well as who parolees are in the first place, they can exercise political influence over the roughly 3.6 million people on parole [10]. In this case, politicians would theoretically be able to manipulate voting populations by strategically handing out parole sentences to prisoners. Additionally, a Gallup poll from March 2021 found that 50 percent of Americans are worried a “great deal” about crime [11]. Parole can also be politicized in the exact opposite way, to pander to the constituency. Because a high percentage of the population wants politicians to be tough on crime, politicians in the executive-related branch of government are incentivized to limit the granting of parole to appease constituents.
Whether increasing or limiting parolees is irrelevant; individuals should not be released on parole because politicians want more voters or votes, but rather because they have earned their releases through demonstrated readiness to reenter society based on the legal institution’s parameters and recommendations. This is not to say that the legal institution’s parameters are infallible, as many argue that the parameters criminals are judged on by legal institutions are unjust. However, in that case, the issue is changing the laws criminals are judged under, not fixing discrepancies of execution or implementation of the laws.
Thus, the prosecutors, defense attorneys, and judges of cases eligible for parole should amplify the weight of their opinions when the executive-related branches of government try to change the implications of parole. The legal institution’s interference in the matter has the potential to protect Americans looking for a chance to reenter society successfully from being exploited for political strategy.
As determined from historical precedent and constitutional intent, the executive-related branch of government and the legal system are not mutually exclusive in parole functions, and they must cooperate to keep the process fair and effective. The legal system and executive-related government branches each have unique functions and perspectives to contribute to the parole process, and both must be utilized. The executive-related cannot slowly phase out the nation’s legal institutions from the parole process, and Americans should object to that possibility if and when it occurs in order to preserve equality in this crucial legal process.
References:
[1] Natasha Camhi, “Criminal Justice Reform Has Made It into Both Party Platforms. That's a Big Deal.,” Brennan Center for Justice, August 1, 2016, https://www.brennancenter.org/our-work/analysis-opinion/criminal-justice-reform-has-made-it-both-party-platforms-thats-big-deal.
[2] “Probation and Parole.” Legal Information Institute. Legal Information Institute. Accessed October 10, 2021. https://www.law.cornell.edu/constitution-conan/amendment-14/section-1/probation-and parole#fn1298amd14.
[3] “Parole and Executive Clemency.” Parole and Probation Administration, November 15, 2020. https://probation.gov.ph/parole-executive-clemency/.
[4] “Probation and Parole.” Legal Information Institute. Legal Information Institute. Accessed October 10, 2021. 5 “The 3rd Article of the U.S. Constitution.” National Constitution Center – The 3rd Article of the U.S. Constitution. Accessed October 10, 2021. https://constitutioncenter.org/interactive-constitution/article/article-iii.
[5] Michael Schwirtz, Michael Winerip, and Robert Gebeloff, “The Scourge of Racial Bias in New York State's Prisons,” The New York Times (The New York Times, December 3, 2016), https://www.nytimes.com/2016/12/03/nyregion/new-york-state-prisons-inmates-racial-bias.html.
[6] Department of Justice. “Frequently Asked Questions.” The United States Department of Justice, September 29, 2015. https://www.justice.gov/uspc/frequently-asked-questions#q15.
[7] Garvey, Todd, and Daniel J Sheffner. “Congress’s Authority to Influence and Control Executive Branch Agencies,” May 12, 2021. https://sgp.fas.org/crs/misc/R45442.pdf.
[8] “Text - H.R.1 - 117th Congress (2021-2022): For the People Act.” Congress.Gov. Accessed October 10, 2021. https://www.congress.gov/bill/117th-congress/house-bill/1/text?r=29.
[9] Kenneth A. Gross et al., “H.R. 1 Passes in House, under Consideration in Senate: Insights: Skadden, Arps, Slate, Meagher & Flom LLP,” Insights | Skadden, Arps, Slate, Meagher & Flom LLP, April 21, 2021, https://www.skadden.com/en/insights/publications/2021/04/hr1-passes-in-house-under-consideration-in-senate.
[10] Initiative, Prison Policy. “New Data: Low Incomes – but High Fees – for People on Probation.” Prison Policy Initiative. Accessed October 10, 2021. https://www.prisonpolicy.org/blog/2019/04/09/probation_income/.
[11] Gallup, “Crime,” Gallup.com (Gallup, August 13, 2021), https://news.gallup.com/poll/1603/crime.aspx.