The Idiot’s Guide To Fixing Parole

Just when it appeared that the New York Times’ Room for Debate was finding its way back to relevance, it veered off a cliff and fell to its brutal, painful death.  This happened in a “debate” it calls “The Parole Paradox.”

The question posed:

With the increasing notoriety of cases in which prisoners have proved their innocence, some parole boards have permitted the release of inmates without the traditional requirement that they admit their guilt, if there is strong evidence of wrongful convictions.

Should prisoners for whom there is substantial evidence of innocence be required to admit guilt to be granted parole?

This question is filled to the brim with irony.  We’ve been told forever by prisoners that they were innocent, but we didn’t know.  And then DNA exonerations changed everything, so that we now know, with certainty, that it happens.  But there was no “substantial evidence of innocence.”  There was the same evidence of guilt as in the cases of most others, except for the tiny detail that it was wrong.

As any trial lawyer knows, when you ask the wrong question, you get the wrong answer.  But then, it also matters who you ask.

Only Fernando Bermudez speaks to being wrongfully convicted, but he was fortunately found actually innocent before he went before the New York State Parole Board. Unlike Samuel Hamilton, for example.  Bermudez explains:

My wrongful conviction stole over 18 years of happiness for my family and I until Justice John Cataldo of State Supreme Court in Manhattan dismissed the charges and declared me actually innocent in 2009. He ruled that the police and prosecutors had used perjured testimony and illegal identification.

Would he have fallen within this imagined group of prisoners for whom there was “substantial evidence of innocence”?  Nope. Not even close.  He would have languished in prison forever for asserting his innocence, and no one at the New York Times would have lost a moment of sleep over him.

But if this isn’t enough irony, consider that the debaters in favor of parole for prisoners who maintain innocence includes Leslie Crocker Snyder, a former judge and self-appointed societal scold of the most outrageous vehemence. No one elected her scold. In fact, no one elected her anything, ever.  But here she is, champion of the prisoner:

It is dangerous to think of a parole board relitigating the facts and evidence in any case – that is not its function. However, if an inmate is ready to be released in every way but claims he did not commit the crime, it clearly makes sense not to use this claim to prevent an otherwise suitable candidate from release.

So “it makes sense” may fall below the threshold of reasoning, but Leslie’s never found it necessary to explain herself. If it made sense to her, it was sufficient.  That was all that ever mattered.

That said, we should always remember that the overwhelming majority of defendants have been convicted legally and fairly, their case proven beyond a reasonable doubt.

And there’s the hanging judge, wrapped up in official power, secure in the knowledge that the system, her personal judgment, was sufficient.

There is Bill Otis, who still can’t understand why life plus cancer isn’t an available sentencing option.

At issue here is the basic premise of parole, if not the entire criminal justice system: We can have either a regimen of continual review or a regimen that places a premium on finality.

To his credit, Otis is nothing if not consistent.

No rule should apply utterly without exception. A rule requiring candidates for early release to acknowledge their wrongdoing is, however, a valuable protection for the overall integrity of the parole system and the public’s safety.

We can’t devise a foolproof system. Rules that are too stern will produce instances of injustice — but so will rules that are too lenient.

Which ultimately means absolutely nothing. Added to this morass is Paul Cassell:

It has been clearly established that some tiny percentage of prisoners refuse to admit guilt at parole hearings because they are, in fact, innocent.

Has it been “clearly established” that the percentage is “tiny”? Cite? Nah, come on. As Cassell says, “parole boards do their best, with limited information,” and why focus so much attention on prisoners rather than the poor folks on parole boards.  But Cassell has a plan to make this work for the “tiny” percentage:

One way to create a safety valve is to change our parole rules so that a refusal to admit guilt is not an absolute bar to obtaining parole. But at the same time, we should require that a prisoner refusing to admit guilt must provide a compelling reason for his failure to do so. We could require, for instance, that a prisoner sign a statement under penalty of perjury that he is asserting a claim of actual innocence. And such prisoners could be required to provide significant factual reasons for casting doubt on their convictions. Prisoners could also be warned that, while the parole board will consider such claims of innocence, if the board concludes that their claim is being made in bad faith, that will be a factor weighing against release.

Plus, if the parole board, who does its best, finds that the claim is made in bad faith, not only can they refuse parole, but prosecute for the new charge of perjury and filing a false instrument. Sneaky, Paul.

The underlying notion that parole boards are akin to some father confessor, offering prisoners their “come to Jesus” moment to confess their sins as a sign of redemption, rendering them worthy of being “allowed” to return to law-abiding society because their good behavior for the 27 years for a drug sale imposed by Crocker along with a vicious harangue isn’t sufficient, remains intact.  They served their sentence, whether they were guilty or not. They behaved in prison.  And yet the New York Times continues to promote the idea that it’s insufficient, unless these prisoners prostrate themselves before the Parole Board and admit to a crime they have denied they committed since the moment of their arrest.

But then, it’s not like the system makes mistakes, or the cops and prosecutors lie, bury evidence, suborn perjury, fabricate proof, coerce false confessions or facilitate phony IDs, except in that tiny percentage of cases, and when that happens, wouldn’t there be “substantial evidence of innocence”?  Because that’s how the system is supposed to work, right?  Nobody is every wrongfully convicted. The system is never just plain wrong. Irony.

 

5 thoughts on “The Idiot’s Guide To Fixing Parole

  1. Nigel Declan

    I’m amazed that Bill Otis acknowledges the theoretical possibility that there could exist a rule that he recognizes as too stern and that Cassell didn’t find a way to include the ostensible victims in the process. Will wonders never cease?

    1. SHG Post author

      It’s hard even for Otis to deny it happens. The good news is that it really isn’t worth worrying about, since it’s so rare. As for Cassell, play out his solution, if kinda sounds nice except that it’s just a circle that goes nowhere.

      1. Patrick Maupin

        Meh. Cassell’s solution could work, but only if the parole board is smart enough to recognize that “I didn’t do it” is a significant factual reason.

  2. Colin Linsenman

    Nate Silver’s site had an interesting article about rethinking parole:
    {Ed. Note: Link deleted per rules.]

  3. Matthew I

    “The Fugitive” should’ve had a scene where Harrison Ford is offered parole if only he’ll admit to killing his wife.

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