Lammers Challenge: Isn’t Parole Really A Re-Sentence?

My favorite Virginia prosecutor, Ken Lammers, takes me to task for arguing that there is no place for victim impact in the determination to release a prisoner on parole.

Over at Simple Justice, Scott seems to think that the only time for the wife to put in her 2 cents worth is at the sentencing. He’s not happy that the NY Legislature has required the Parole Board to pay even minimal heed to victims such as the wife. If NY sentencing worked as Virginia’s does, I’d agree. Unfortunately, it does not. NY exists in the indeterminate zone (That’s the signpost up ahead.)

If a set sentence was given after the wife testified it would have all been concluded. Assuming the appeals process didn’t turn up a reversible error, the whole thing would have been settled and the wife could have gone on with her life as best she could.

Ken is correct, that New York uses, in part, an indeterminate sentencing scheme. In the case discussed, Herman Bell was sentenced to a term of imprisonment of 25 years to life. At the time of his sentence, the minimum could have been 15 years to life, with 25 to life as the maximum.

In other words, the legislature determined that a sentence for murder must begin at a minimum of 15 years to a maximum of 25 years before a defendant is eligible for release. The back end, life imprisonment, means that there is no mandatory period after which the defendant must be released. After the minimum period is served, the balance of the sentence is left in the hands of the parole board.

Anyway, baked into a system of indeterminate sentencing is a long term process of determining the sentence. The sentencing isn’t actually done by the judge. The legislature gives the judge parameters within which to sentence. In some cases, the judge may narrow the parameters of the sentence even further.

Again, Ken is correct to say that the sentence isn’t left entirely in the judge’s hands, and there are parameters imposed by the lege. But within those parameters, the decision is left to the judge. And since it’s indeterminate on the back end, long after the sentence has been imposed and the judge has moved on to a nice round of golf, who is left to clean up the mess?

The people who determine what the sentence should be within those parameters are those sitting on the Parole Board. Effectively, the Parole Board sentences. In the end, it is the organization which determines when the damage to victims and threat to society is overbalanced by how much the defendant has reformed or at least become less of a threat to society.

When it comes to determining whether a defendant presents a threat to society, that’s squarely and expressly within the Parole Board’s purview. But Ken introduces the notion of “balancing” the “damage to victims,” or what can delightfully be called retribution, with the defendant’s reformation, rehabilitation and likelihood of recidivism. But the nature of the crime, horrific or not, was already determined and fixed at the time of the actual sentence, when the judge determined where along the possible spectrum of 15 to 25 years mandatory minimum before parole eligibility this defendant, this crime, fell.

To say that the Parole Board, which is a political position by gubernatorial appointment, re-assesses the nature of the crime, the damage to the victims, so as to choose to deny parole not because of what the defendant has done since sentence, but because they don’t think the judge was harsh enough, misconstrues its purpose and power. It’s not there to replace the judge’s sentence with the Parole Board’s sense of retribution, as if it’s a super-appellate court. No matter how lenient they believe the sentence may have been, it’s not their province to be the second chance at vengeance.

But Ken rightly points out one detail that might call this analysis into question.

 It doesn’t look like the judge had any choice in his indeterminate sentencing.

By this, Ken means that the judge may well have chosen to sentence Bell to 50 years, 100 years, 1000 years, but the law establishes 25 years as the longest minimum sentence possible. His point is that my argument, that a judge already imposed sentence and the Parole Board should respect the court’s reasoned determination that the minimum sentence reflects the proper length of time necessary to punish the defendant for the crime, doesn’t work here. The judge sentenced the defendant to the longest minimum sentence possible by law, not because it was the right sentence but because he couldn’t be harsher.

On the one hand, the statutory limit of 25 years is fixed by law, meaning that the lege decided that no judge should be empowered to be more harsh than that. On the other hand, the judge maxed the defendant out, so we can’t assume that he wouldn’t have gone harder but for the limits imposed by law.

So we can’t assume that the 25-year minimum reflects a meaningful limit from the judge, or that ignoring it to re-evaluate the sentence and increase it’s harshness reflects a Parole Board exceeding the authority the judge imposed. For all we know from the terms of the actual sentence, the judge might be cheering the Parole Board on, applauding another 20 years on top of what the law allowed him to impose.

Ken’s got a point.

But the fact that the law limits the top and bottom of the sentence, which provide the parameters within which the judge must operate, doesn’t negate the significance of the actual sentence imposed. We start with a legislative determination that no one convicted of the crime of murder should be ineligible for parole for more than 25 years or less than 15. When the judge imposed the max of 25 years, it reflected the greatest retribution the law allows.

Just as the judge is constrained by the limitations placed on sentencing by the lege, so too should the Parole Board. When it comes to the harm caused by the crime, the damage to the victim, the societal lust for punishment, the law provides that 25 years is as harsh as it gets. It’s not 25 years imprisonment by the judge, but the Parole Board can re-sentence without limitation, even if it believes the crime so heinous that the slow death penalty is the right punishment.

3 thoughts on “Lammers Challenge: Isn’t Parole Really A Re-Sentence?

  1. Miles

    Whether it’s the legislature or the judge who concluded that 25 years was the right period of time before a prisoner becomes parole eligible, it’s not the parole board’s place to re-sentence ab initio. That a discretionary decision is being made doesn’t mean the victim gets a do-over of sentence, but that the discretion relates to parole considerations rather than sentencing considerations.

    I see Lammers’ point, particularly at the 25 year max, but victim impact piece ends with sentence, and what the parole board does is decide parole, not resentence. I’m not buying.

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