Questioning the Conventional Wisdom
of Parole Release Authority
Kevin R. Reitz
This essay examines the advisability of including parole release discretion within the design of American sentencing systems as an important means for fixing the length of prison terms actually served by offenders. U.S. jurisdictions divide sharply on this question today. Sixteen states and the federal system have abolished the release authority of parole boards, including a majority of sentencing guideline jurisdictions. There is a slow but long-term trend in the direction of abrogation. Four states cancelled their parole boards' release authorities in the 1970s, six jurisdictions did so in the 1980s (including one that later changed its mind), and eight more took the step in the 1990s (Petersilia 2003, figure 2.1). In 1994 the American Bar Association endorsed the movement, recommending that time served in prison should be determined by sentencing judges subject only to formulaic good-time reductions, all within a framework of sentencing guidelines (American Bar Association 1994, Standards 18–2.5, 18– 3.21(g), and 18–4.4(c)). The American Law Institute, now in the early stages of a revision of the Model Penal Code, must likewise confront this policy issue (see American Law Institute 2002a). It is possible that a new Model Code will seek to add momentum to the abrogationist tendency, or the ALI may seek to slow or reverse the trend. Strong views on both sides have already been aired in the Institute's debates.
Norval Morris's work stands at the center of this controversy. In The Future of Imprisonment in 1974, he mounted an influential attack on the theory and practice of back-end release decisions as entrusted to parole boards. He argued that such discretion should be eliminated or, where this was politically unfeasible, reconfigured (Morris 1974, pp. 31–45). In contrast with many other critics of the day, however, Morris did not claim that a perceived collapse of rehabilitation theory should be the underlying motivation for removal of the boards' authority (compare Wilson 1975; Frankel 1973; von Hirsch and Hanrahan 1979). Instead, Morris wanted to preserve as much room as possible for rehabilitation, or “facilitated change, ” inside prison walls (Morris 1974, p. 27, ch. 2). He posited