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Saturday, March 28, 2009

Parole Or Pay

A few months ago, I received a phone call from the mother of one of my former clients. He had been convicted of aiding in a second degree murder and was serving a potential life sentence but now was eligible for a parole hearing. The mom wanted my help. She sent me a packet of documents of her son’s behavior while in prison which convinced me that he had done everything he could to earn his release.

The public still thinks that the justice system is a revolving door that is too lenient. The truth is that for thirty years, the California prison population has exploded because of harsh sentencing laws and the plitically motivated policies of governors pandering to the tough on crime climate of the times. On one end of the spectrum are the disproportionate sentences for non-violent crimes, like drug possession and street sales. The three strikes law is another example, resulting in life sentences or petty crimes committed by repeat offenders.

On the other end are the life sentences imposed for violent crimes for which the law prescribes a possibility of future parole. Governors regularly appoint members of the parole board who are disinclined toward parole. Guidelines for release have been stiffened, reducing the emphasis on rehabilitation and focusing on the evil of the crime itself.

In recent years, however, the pendulum has begun to swing the other way. Abused women serving life sentences for second degree (non-premeditated) murder were the first beneficiaries of the new attitude. In some instances, the parole board recognized the mitigating fact of the newly recognized "battered women syndrome" as mitigation. When the governor overturned his own board’s recommendation in favor of parole, the political winds blasted him. He dropped his objections. The law was changed, requiring consideration of the defense in parole consideration.
The second seismic event was the rumbling caused by DNA evidence that led the public to doubt the infallibility of the system. Recently, the appellate courts have begun to act. Appeals of denial of parole have criticized denials based solely on the facts of the crime. The standard should be whether the inmate currently poses a threat to society. Appellate oversight of the parole system which has been lacking for many years is an encouraging sign.

But now there is likely to be a backlash. The Oakland police officers were killed by a parolee. The Biography Channel has a new series called Parole Board which tells the horror stories about criminals seeking release. There is no doubt that the high rate of recidivism is a strong argument against parole. But the response is not necessarily continued warehousing. If the emphasis of imprisonment was on rehabilitation rather than mere punishment, lives could be redeemed, recidivism reduced, and crime rates managed.

The biggest problem is that reform of the prison / parole process would demand a commitment greater than the Wall Street bailout or Afghanistan nation building. I am less than sanguine about the chances.

In response to the plea from my client’s mother, I sent a lengthy letter to the parole board:
"... At the time of his arrest in this matter, Mr. P was eighteen (18) years of age, with no prior criminal history either as a juvenile or adult. My impression of him at the time I was appointed by the court was that he was an immature young man who became involved in the crimes charged through a misguided sense of loyalty to friends, but that he was not, as so many of my clients have been, irretrievably committed to a gang or habitual criminal life style.
"His culpability in the crimes was based on aiding his friend in the mistaken belief that to do so would be in his friend’s defense. He thus foolishly provided his friend with a knife and, with others, accompanied him to a confrontation with people who he was led to believe had wronged and injured his friend. The jury’s verdict confirmed the fact that P, himself, was not personally armed with a weapon during the encounter, and that his culpability was in fact as an aider-abettor, having provided a weapon which he should have known might be used to kill another.
"After Mr. P’s sentence to prison, I kept in touch with his mother, who continued to apprise me of her son’s progress toward rehabilitation. She has provided me with documentation of his strenuous and sincere efforts to change his life and to prepare himself for a future date when he might be freed from prison.
"I have been impressed that Mr. P has taken every opportunity while incarcerated to prepare himself for life as a responsible citizen. He has pursued an education, participated in vocational training programs to insure his employability, and perhaps most importantly, has taken every opportunity to achieve psychological understanding that will insure that he will be a mature and lawful member of society upon his release. The extent of the documentation of his actions convinces me that his efforts at rehabilitation constitute much more than a mere paying of "lip service" to the concept of rehabilitation, but in fact represents proof that he sincerely and diligently used his "time" productively in a serious effort to change his life.
"I believe that during his incarceration in every institution to which he has been placed, he has achieved a flawless disciplinary record, cooperating with staff in every respect, and avoiding associations with any troublesome groups or individuals. The comments of staff supervisors who closely monitored his behavior at each institution testifies to his continuing commitment to that goal.
"All of these considerations support a strong sense of confidence that Mr. P would not, if released on parole, pose a threat to society. It is clear that he is not the same impulsive, immature young man he was at the time of committing the offenses that resulted in his incarceration. He has shown a willingness and ability to conform to the rules of society, no matter how difficult his circumstances, and to keep his focus on leading a productive and useful life.
"I believe that he has matured, is remorseful about his involvement in the offenses and the harm that his actions caused. He has accepted his punishment for those actions without resentment, and made every effort to make up for his errors.
"If ever there was an appropriate subject for parole, I believe that Mr. P has shown that he has earned that trust."

A couple of days ago, his mother called. P was denied parole, apparently on the rationale that he hadn’t expressed enough remorse for his crime. He can re-apply in five years.

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