No Place For Prosecutors At Parole

There’s a lot of confusion about what parole is, which is simply an interim period after service of a sentence of imprisonment during which a person remains under the supervision of the state as he transitions from incarceration to completion of a sentence. There is no such thing as federal parole anymore, although federal sentences include a post-incarceration period of supervised release.

But parole, the state beast, is generally granted at the end of an indeterminate sentence, such as 25 years to life, such that after serving the minimum period of imprisonment (25 years in this example), a defendant becomes eligible for parole. It is then up to the Parole Board, usually a highly political appointment with essentially no oversight whatsoever. It’s a system fraught with problems, many of which have been raised here in the past.

Newly-elected progressive LA district attorney George Gascón has directed his assistants to no longer appear for parole hearings, where traditionally they would show up and oppose parole for the same reasons they sought imprisonment in the first place. The LA Times supported this move in an editorial, which included some highly dubious, yet ignorant, arguments.

Prosecutors don’t belong there. They are experts in the facts and circumstances of the crime, including the victims and the witnesses and how they were affected. They are experts in criminal law and in the range of sentences available. They seek justice based on the offender’s actions leading up to the time of sentencing, which follows either a trial or, far more often, a plea bargain.

Apparently, the LA Times got a great deal on the word “expert” and feels no shame on using it promiscuously.

By the time of the parole hearing, the offender has spent a good chunk of his or her life in prison. The hearing is not a retrial of the inmate, a reconsideration of the offense or an extension of the prosecution. The Board of Parole Hearings is not a court of appeal. Its sole purpose under law is to determine whether the inmate is “suitable for parole” — meaning sufficiently rehabilitated to be released with minimal risk to the public and an opportunity to responsibly reintegrate into society. On that issue, and at that time, the prosecutor has no expertise, and is many years removed from the trial or the plea. The experts are now the warden, psychologists, educators, job training supervisors and others who monitor behavior in prison.

In a society where, after decades of being indoctrinated into the mindset that there is something magical about long and longer periods of incarceration to save us from criminals, the notion that the imprisonment portion of a sentence has come to an end doesn’t feel right. There are always “what ifs,” unknown scenarios at the time a judge utters the magical period of months or years that leave people with some vague sense of it not feeling right, not feeling harsh enough.

Yet, that’s how the deal works, that a sentence is imposed and then, years later, provided it isn’t a sentence of life plus cancer, it ends. But does it? Should it?

A concept that’s rarely considered is that the sentence imposed was too long to begin with. Whether because a judge was constrained by mandatory minimums or just had really bad sentencing instincts, maybe a defendant got 20 years when ten would have been more than sufficient to serve the putative purposes of imprisonment. We would do well to take a second look at long sentences, and perhaps that will be the law eventually, but for now, the only look is whether the sentence wasn’t severe enough. That’s where prosecutors at parole hearings come into play.

A parole hearing isn’t a “second sentence,” where a parole board gets to decide whether the judge’s sentence was as harsh as they would have imposed. The only variable at the time when the period of imprisonment has reached parole eligibility is whether the defendant is ready to walk out. Even this is a ridiculously awkward test, given that the defendant’s preparation to return to society is largely dependent on what happened in prison, whether he was rehabilitated, trained to engage in a lawful occupation, freed of the causes of addiction, physically and mentally intact, much of which has more to do with how the prison dealt with its inmates than what the inmates achieved on their own. You can’t get a high school GED if the prison doesn’t offer one. You won’t leave mentally sound if you’ve been regularly raped and beaten. But I digress.

What would a prosecutor have to say to a parole board that would be relevant to its limited inquiry? They could reargue the horror of the underlying crime, but that’s already been argued and decided when sentence was imposed. But what about the victim of the crime?

There is of course a role, both morally and at law, for those who were affected by the crime and who have reason to fear being affected by the offender’s release. Crime survivors — direct victims of violent crime and collateral victims, such as family members of people who were murdered — have a right under a 2008 ballot measure (known as “Marsy’s Law”) to be informed of and to attend parole hearings. Such proceedings can prolong and exacerbate their trauma many years after the crime. They frequently need advocates. But who?

Too often they are misled into believing that the deputy district attorneys who prosecuted the crimes are their lawyers, and that they represent them from the time charges are filed through the trial and up to and including parole.

While California has adopted the misguided Marsy’s Law conflation of victims having “rights” in a criminal proceeding, where crimes against the state, not the victim, are at issue, it’s true that prosecutors do not represent the victims, Whether there is a role, “morally,” for victims at parole is an argument for priests and philosophers, but what isn’t at issue is whether prosecutors represent them. They don’t. They shouldn’t.

Even assuming they should have any role to play, it is a factual one, to be present, to relate their feelings of pain and suffering as if they have any relevance to the inquiry. No advocate is needed for this, and certainly not a prosecutor whose duty is to the public, to do justice, and not to any individual who may want the defendant freed or drawn and quartered, as the case may be.

It’s understandable that this is an emotional sinkhole for most people. We’ve been told for generations that criminals are evil, disposable and irredeemable. But once a defendant has been sentenced by a judge, that aspect of a prosecutor’s duty ends. Parole isn’t an opportunity to reargue sentence, to resentence, to prolong the period of imprisonment for the same reasons it was imposed in the first place. When it’s over, it’s over. Even for defendants.

3 thoughts on “No Place For Prosecutors At Parole

  1. Kathryn M Kase

    The LA Times and its readers would be much better served by your explanation of parole, its purposes, and proper witnesses at parole hearings.


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