Giving Compass' Take:

• R. Michael Cassidy explains how prosecutors exercise undue influence on the justice system, hurting people in the parole system. 

• How can funders work to make the criminal justice system more equitable? 

• Learn about more recommendations for improving parole. 

Professor Cassidy explores what it means for a prosecutor to act as a “minister of justice” in the context of parole proceedings. He argues that prosecutors should not perceive themselves as zealous advocates in what is essentially an administrative setting, and that prosecutors should not oppose release simply because they believe that the nature and circumstances of the crime warrant continued incarceration. Rather, Cassidy argues that prosecutors ordinarily should refrain from personally testifying at parole hearings, and should submit written comments to the parole board only in those rare situations where the prosecutor is in possession of otherwise unavailable information pertaining to an inmate’s post-conviction behavior that would assist the board in making an accurate legal and factual determination. Cassidy surveys the approaches taken by parole board statutes and regulations in fifty states and discusses which of those approaches properly calibrate the scope and limits of a prosecutor’s input in release decisions.

For two reasons, the topic of prosecutors and parole has become especially salient in recent years. First, Supreme Court decisions subject states to a new constitutional requirement to provide a “meaningful opportunity to obtain release” for some categories of juvenile offenders. In Graham v. Florida, the Supreme Court ruled that a sentence of life without parole for a juvenile offender in a non-homicide case violates the Eighth Amendment ban on cruel and unusual punishment. In Miller v. Alabama, the Supreme Court built upon the foundation of Graham and ruled that mandatory life without parole sentences for juvenile murderers also violate the Eighth Amendment. Thus, juvenile rapists, murderers and habitual violent criminals who were once sentenced to effective or constructive terms of life imprisonment in the 80’s, 90’s, and first decade of the 21st century are now seeing parole boards. Second, the political pendulum has swung away from the “Truth in Sentencing” movement of the 1980’s and 1990’s toward meaningful opportunities for early release, even for adult defendants. Whether due to prison over-capacity, the budget-busting costs of lengthy prison terms, or the political realization that mass incarceration has failed as a social experiment, several states that once had abandoned parole have reinstated it by statute, while others are debating taking such a step.

My goals in this essay are twofold. First, I hope to spur legislative action to limit the role of prosecutors in parole hearings. I recognize that this is an uphill battle, given the political clout prosecutors wield before state legislatures and the many other urgent reforms needed in our criminal justice system. Nevertheless, a secondary goal of this essay is to urge prosecutorial restraint. Each of the 38 states now providing some form of discretionary parole for adult prisoners allows prosecutors to give input in some fashion to the parole board. Unless prosecutors in those jurisdictions possess highly relevant, post-conviction information unavailable from documentary materials or the testimony of victims, I urge prosecutors to stay home and keep quiet. Empirical studies have shown that notwithstanding the nuances of state parole procedures and standards, release decisions turn primarily on crime severity, criminal history, incarceration length, the inmate’s behavior in prison, mental illness, and victim input. In light of these studies, prosecutorial input at parole hearings is likely to accomplish very little beyond either grandstanding for the media or intimidating the parole board into being risk averse in close cases. Both objectives are inconsistent with a prosecutor’s role as minister of justice.