For federal prisoners, the prospect of early release expired in 1987.
As prisons bulge and recidivism persists, why is the parole ban still in place?
In 1982, when George Martorano pled guilty to charges
of marijuana possession and drug conspiracy, he was expecting ten years in
prison, at most.
Today, after 24 years, Martorano holds the honor of
longest-serving nonviolent first-time offender in the history of the United
States. He’s all too ready to forfeit that mark of distinction, but if his
sentence plays out as issued, he’ll be looking at several decades more:
Martorano is serving a life sentence for three years of transporting and
selling marijuana. Despite his spotless prison record - not to mention his
suicide-prevention volunteer work, his yoga practice and the 20 books he’s
written while incarcerated - he has no hope of being released.
Martorano is just one of almost 200,000 inmates in
federal prison, many of whom have no chance for early release, thanks to the
Sentencing Reform Act of 1984, which abolished parole at the federal level. The
toughening of prison legislation over the past 20 years has also meant longer
sentences for nonviolent offenders, combining with the parole ban to prompt a
sharp increase in the federal prison population. As it stands, the beefed-up
federal prison system costs taxpayers $40,000 per year for every inmate, and it
costs inmates whole decades of their lives.
“We’re being warehoused,” Martorano said in a phone
interview. “It’s taken a million dollars just to keep me in.”
Since the parole ban took effect, the federal prison
population has more than quadrupled, according to Bureau of Justice statistics.
In the past few years, the sentencing system has been
slowly changing in other ways. For example, the US Sentencing Commission
recently shortened its recommended sentences for crack cocaine offenses, and
Congress has shown signs that it will consider bills addressing the disparity
between penalties for crack and powder cocaine. The Supreme Court is
deliberating whether judges should be able to grant sentences that dip below
established guidelines for sentence lengths.
However, Congress has taken no steps toward reversing
course on federal parole. Although a bill to revive parole for federal
prisoners has been introduced repeatedly in the House over the past few years,
it has never made it to the floor for a vote. And an official at the US
Sentencing Commission, who asked not to be identified, said he was not aware of
any impetus that would bring back parole anytime soon.
As the prison population continues to explode, many
influential voices in Congress and the public sphere are still touting a
hardline philosophy when it comes to criminal justice, according to
Representative Danny Davis (D-Illinois), who has sponsored the federal parole
reinstatement bill for the last two Congresses.
“People don’t want to be characterized as being ‘soft
on crime,’“ Davis said in an interview. “They are still afraid that
characterization will follow them. You would think that a country that is supposed
to be as progressive as ours would’ve recognized that this approach is not
working.”
Toward
Sentencing “Truth”
In the 1980s, when the movement to abolish parole
swept across state sentencing systems and reached the federal government, “tough
on crime” was the mantra of the day. The federal parole ban, part of a broad
Sentencing Reform Act, which also lengthened and standardized prison sentences,
passed in 1984 and was enacted in 1987. It represented one step in a movement
toward “truth in sentencing”: Abolishing parole was intended to ensure that
judges - and the families of victims - would know how much time defendants
would actually be serving.
“Truth in sentencing” eliminated the authority of a
third party, the Parole Board, which could substantially alter a sentence after
the judge was out of the picture. A paroled prisoner might serve as little as
one-sixth of his or her sentence. After the ban, a prisoner could only earn “good
time,” a subtraction of no more than 54 days a year.
At the time it passed, the parole ban seemed
something of a panacea: It fulfilled the goals of not only the “tough on crime”
crowd, but also of a group of Democrats pushing for “fairness in sentencing.”
They hoped the abolition of parole, along with clarified guidelines for
sentence lengths, would help to overcome the justice system’s glaring racial
disparities in sentences.
The act passed, garnering little attention. No public
hearings were held before it was debated.
Supreme Court Justice Stephen Breyer, who served on
the US Sentencing Commission prior to his court appointment and, before that,
participated in the shaping of the 1984 law, described the act as promoting “greater
honesty in sentencing.”
“Under previous law the Parole Commission determined
(within broad limits) how much time an offender would actually serve,” Breyer
said in a speech at the University of Nebraska College of Law in 1998, of the
thought process that went into the crafting of the legislation. “A judge might
sentence an offender to 12 years, but the Parole Commission might release the
offender after four. No one - not offender, judge or public - could say in
advance what a 12-year sentence really meant.”
Without parole, Breyer explained, he and the other
crafters had hoped the sentencing system would be “transparent, more candid,
than before.”
However, when the new guidelines were enforced, some
began to question whether the power to discriminate was simply being shifted
from the Parole Commission to the prosecutors, according to Nora Callahan,
executive director of the November Coalition, a nonprofit organization working
for drug sentencing reform.
The prisoners getting the longest sentences, Callahan
said, were not necessarily the ones who had committed the most egregious
crimes. They were often the ones who didn’t know much about judicial system,
since they had less money, less education and less access to legal aid.
Take Danielle Metz, a nonviolent first offender and
mother of two, who was sentenced to three life sentences plus 20 years for
helping her husband distribute cocaine. She pled innocent despite evidence of
her guilt. Later, she discovered her public defender was primarily a traffic
lawyer.
“When you lack knowledge of the law, they can do
whatever they want to you,” Metz said in a phone interview. “No one explained
to me what was going on until it was too late.”
Soon, thousands of cases like Metz’s were cropping
up: nonviolent first offenders sentenced to life in prison, without a hope of
early release.
Another such prisoner, David Correa, who was
incarcerated 18 years ago for transporting 495 grams of powder cocaine, pointed
to the way the strict-guideline sentencing system can still trip up defendants
in court, depending on which aspects of their crimes are highlighted and which
legal moves they choose.
“Because I really had nothing to offer the
prosecutor, because I took my case to trial, because in order for me to take a
plea deal I had to say I was guilty of gun charges that I never had, and
because I had to give names that I didn’t have either, I am now doing a life
sentence,” Correa wrote in a letter to me.
Parole
Forgotten
Once the parole ban was in place, though, it did not
budge. Most people - outside of prisoners and their families - had no idea it
had happened, noted parole activist John Flahive, who was first clued in when
he accidentally received a wrong-number call from a prisoner: George Martorano.
The two began chatting on a regular basis, and
Flahive began to lobby in Washington to bring back parole.
“As I got more involved, I found out there were
thousands like Georgie,” Flahive said, noting that about 60 percent of federal
inmates are currently incarcerated for nonviolent crimes.
In 2002, the first bill to revive parole, introduced
by Rep. Patsy Mink, made its way to the House - and died in committee when Mink
died of chicken pox and pneumonia. Since then, Davis has proposed the bill
twice. Both times, it died in the Judiciary Committee, then headed by Rep.
James Sensenbrenner, who has consistently voted to toughen sentences, maintain
the death penalty and reduce opportunities for appeals.
With a Democratic majority now in Congress, parole
advocates hope for a victory sometime soon. However, a restoration of parole in
the near future would be surprising, according to Mark Bransky of the Federal
Parole Board, which remains in operation for prisoners sentenced prior to 1987,
some of whom are still eligible for parole.
“Things tend to go in cycles, so I’m not sure,”
Bransky said. “But for now, there doesn’t seem to be much unhappiness in
Congress with the new system.”
Jeralyn Merritt, a Denver criminal defense attorney
and drug law analyst, concurred, adding that lobbying for an increase in “good
time” might be the only route for earlier release.
“Federal parole won’t be instated as long as we have
these guidelines,” Merritt said. “They’re not looking at changing these
guidelines.”
However, unlike in the Reagan era, the parole ban is
not riding on the wave of “tough on crime” fever. Public sentiment has softened
to a certain extent, and, according to Callahan, most of the liberal advocates
of parole abolition have long since changed their stance.
In a 2003 Dan Jones survey in Utah, widely held to be
the most conservative state in the nation, almost two-thirds of respondents
favored the return of parole - once they were informed it had been banned.
“It’s something a lot of people don’t think about
until it personally touches them,” Davis said.
Parole may not be a highly contentious issue; it’s
just an invisible one.
No
More Carrots
Despite lawmakers’ original rationale of the parole
ban as a “tough on crime” measure, it has hit the lives of nonviolent offenders
much harder than it has hit crime, according to Callahan. Although prisoners
now do more time, she said, without a tangible motivation to “do good,” they
may actually be less likely to change their ways.
“In 1987, all the incentives for corrections to work
in a rehabilitative way were taken away,” Callahan said. “This affects violent
crime, because so many people are getting out with nothing but bitterness.”
According to FBI statistics, violent crime increased
steadily in the five years after the parole ban was established.
Callahan also links prisoners’ decreased motivation
to rehabilitate to recidivism.
One element of the logic behind the parole ban was “many
prisoners released on parole were committing new crimes,” Bransky said.
Yet ex-prisoners were significantly more likely to be
rearrested in 1994 than in 1983, according to the Federal Bureau of Justice
Statistics.
Since 1987, the atmosphere within prison walls has
changed, too, according to Martorano, who has witnessed life in multiple
federal prisons firsthand since the parole ban kicked in.
“The institutions were much less violent [before
1987], because there was a light,” he said. “If you’ve got ten life sentences,
with no chance of parole, there’s no carrot.”
Lack of parole also makes life tougher for prison
guards, according to Alan J. Williams, a former prisoner who is now chair of
the Delaware branch of the advocacy organization, Citizens United for
Rehabilitation of Errants, Federal Prison Chapter (FedCURE). Without the
incentive of getting out on good behavior, there’s no substantive reason to
treat guards well. Additionally, no chance of early release breeds anger toward
the prison system, which often takes the form of violence, according to
Williams.
Williams also pointed to the frustration-provoking
divide between prisoners sentenced prior to 1987, many of whom still eligible
for parole, and prisoners sentenced after the ban kicked in - a rift that
triggers fights among inmates.
“We’ve been going about this the wrong way,
emphasizing incarceration rather than rehabilitation,” Davis said. “We’re not
reducing crime or recidivism. Since that’s not the case, why do we continue to
follow a flawed policy?”
Parole
and Electoral Reality
Although some ‘80s-style tough-on-crime Congress
members remain, the persistence of the parole ban may have less to do with
hard-line philosophy and more to do with political priorities, according to
Callahan. Between federal prisoners, ex-federal prisoners and their families
and friends, millions of Americans are seriously impacted by federal prison
policy. However, those millions are, by and large, not policymakers.
“The ‘war on crime’ is just as insidious as the war
in Iraq,” Callahan said. “But a war like this is different from an Iraq War.
The middle class doesn’t see this war.”
Not many prisoner advocates were surprised the last
two bills to revive federal parole never made it out of committee.
Sensenbrenner chaired the Judiciary Committee, which was also stocked with such
stalwarts as Randy Forbes, who led the successful movement to abolish parole in
his home state of Virginia in the 1990s. Both still hold places on the
committee, with Forbes as its ranking member.
When a Democratic majority won Congress last year,
the shift did not prompt a face-off with tough-on-crime Republicans.
The issue doesn’t always break down in line with the
party divide, according to policy analyst Ryan King of the Sentencing Project.
Just as the original Sentencing Reform Act was a bipartisan venture, the
maintenance of the sentencing status quo requires the consent - at least implicitly
- of members of both parties.
Lawmakers have to pick their battles, and picking
parole is not a politically savvy move.
“I’ve never seen anyone lose an election for being
tough on crime,” King said. “You might see a candidate say they would overturn
every parole board decision in the state. But I doubt a candidate would set
sentencing reform as the centerpiece of a campaign. No candidate wants the
public to think they would let individuals off easy.”
Shying away from sentencing and parole reform
basically boils down to fear, on the part of both the public and politicians,
according to King. People are afraid of early-released prisoners wreaking havoc
on their communities. Lawmakers are afraid that, should they push for reform, a
high-profile case of a parolee committing a crime could sabotage their
campaigns.
The fear is grounded in precedent: 1998 Democratic
presidential candidate and Massachusetts Governor Michael Dukakis supported his
state’s “furlough” program, which allowed inmates temporary leaves of absence
from prison as part of a rehabilitation plan. When Massachusetts prisoner
Willie Horton committed armed robbery and rape while on furlough, the incident
became a major issue in the 1988 election and a basis for attack ads against
Dukakis.
In Connecticut last July, two parolees committed a
triple murder and arson. In September, Connecticut’s attorney general ruled
that parole-ineligible sentences could not be commuted to parole-eligible, and
a Quinnipiac University poll in early November showed 72 percent of Connecticut
voters thought the parole system let prisoners out too soon.
“It’s a cost-benefit analysis,” King said. “There’s
not a lot of benefit for those politicians to step out and support parole, but
the costs could be enormous.”
As with many prison issues, convincing lawmakers to
take a stand on parole is an especially tough sell because many of the people
to whom parole is most important - prisoners and felons - can’t vote.
Money
Motives
Many Americans who can vote benefit from
prisoners staying behind bars with no chance of early release, noted both
Martorano and Metz.
Though keeping millions of people in prison is a
drain on taxpayer dollars, inmates bolster the economy by working for less than
$1 an hour for companies like Microsoft and AT&T. (“Most of the time when
people call directory assistance, they don’t realize they’re speaking with an
inmate,” Metz said.)
Noah Robinson, the half-brother of renowned activist
Jesse Jackson and a federal prisoner serving a life sentence in Terre Haute,
Indiana, points out as private prisons expand, a growing sector of the
small-town vote will have the preservation of the parole ban at heart. The
local economies of “prison towns” benefit from the lack of parole, since a guaranteed
(and increasing) number of prisoners means a constant source of jobs for
guards, administrators, food service workers, cleaning people and suppliers of
everything from toilet paper to office supplies.
“With prisoners confined forever (i.e. no parole),
job security [is] totally unaffected by inflation and recession; contracts for
local businesses are ongoing,” Robinson wrote to me.
Even more directly, some of the lawmakers who could
most influence the prospect of the parole bill - Judiciary Committee members -
take campaign money from corporations that build and maintain private prisons.
The two largest private prison companies, Corrections
Corporation of America (CCA) and Wackenhut Corporation (now the GEO Group),
entered the business in the mid-80s, when, due to tougher drug laws and the
loss of parole, government-run prisons were bursting at the seams. The
corporations’ expansion paralleled the continued Congressional reinforcement of
hard-line prison policies.
According to the Center for Responsive Politics, in
the 2006 election cycle, the CCA contributed thousands of dollars to the
campaigns of six House Judiciary Committee members, including Sensenbrenner,
who kept the parole bill off the floor every time it was proposed. He now sits
on the Homeland Security subcommittee, which deals most closely with sentencing
and parole.
Sensenbrenner’s office did not return repeated calls
for comment.
The CCA also funded the campaign of ranking member
Lamar Smith, who, in this Congress alone, has introduced two bills which would
increase prison terms.
In the Senate, the CCA financed the campaigns of four
out of the nine Republicans on the Judiciary Committee.
Wackenhut, on the other hand, developed a reputation
for giving to both the Democratic National Committee and the Republican
National Committee. Its new incarnation, the GEO Group, also contributes to
both parties. In fact, for the 2008 election, GEO has so far contributed more
to the campaigns of Democratic legislators than to Republicans, and has donated
to the campaigns of both Hillary Clinton and Bill Richardson.
Even Democratic Congressman Bill Nelson of Florida,
to whom both John Flahive and David Correa’s mother have appealed for help in
reviving parole, took $10,000 from GEO in 2006, according to data from Capitol
Advantage.
“Financial drive is such a huge factor for both sides
of political aisle,” said King, who noted economic pressure from prison
employees’ unions plays a large role in pulling Democrats away from parole and
sentencing reform.
The American Federation of Government Employees, to
which federal prison workers belong, gives almost exclusively to Democratic
candidates.
Nevertheless, according to King, prisons are at a
breaking point. Contractors and government funding aren’t keeping up with the
demand for new prison facilities, and overcrowding is rampant. For
policymakers, King said, dwindling resources and their effect on profit - not a
realization of the system’s injustices and ineffectiveness - will likely be the
turning point for parole and sentencing reform.
Though King does not foresee a vote to reinstate
parole right away, he argues measures like Davis’s parole bill are still
necessary to put the idea “on the radar screen,” triggering momentum toward
sentencing policy change. As resources become scarcer, he reasons, more
lawmakers may get behind such legislation.
As for Davis, he has been cooperating with FedCURE
and other organizations on a new bill to revive parole. He hasn’t yet
introduced it, he said, because he did not want people to confuse it with his
less controversial Second Chance Act, a bipartisan-supported bill that just
passed the House, which provides resources for prisoners reentering society.
The passage of the Second Chance Act may begin to
pave the slow road to a criminal justice system that emphasizes rehabilitation
over punishment, according to Davis. He hopes someday parole will follow.
Until then, for prisoners like Metz, it’s becoming
increasingly difficult to fight off despair.
“My kids grew up while I was in prison, but I’ve been
stuck in time,” Metz said. “If they don’t bring back parole, I’ll be stuck
until I die.”
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