Academic journal article Stanford Law & Policy Review

Note: Policing Parole: The Constitutional Limits of Back-End Sentencing

Academic journal article Stanford Law & Policy Review

Note: Policing Parole: The Constitutional Limits of Back-End Sentencing

Article excerpt

INTRODUCTION

Modern sentencing jurisprudence and punishment theory have largely overlooked issues raised by parole supervision and revocation. Yet parole is an integral dimension of the criminal justice system; today, nearly eighty percent of all prisoners are released into the community under some form of parole supervision. (1) Importantly, parole supervision not only places conditions on a parolee's liberty, it also provides administrative agents of the criminal justice system--not judges or juries--the opportunity to re-incarcerate the parolee. Parole revocation has the effect of retroactively imposing longer prison terms and periods under community supervision for the conviction offense. This form of sentencing--labeled by some as "back-end sentencing" to reflect its placement within the criminal justice system as well as its limited exposure to public and judicial scrutiny--has gained wide popularity in the last two decades. (2) Between 1980 and 2000, when the overall prison population increased fourfold, the parole population returned to prison increased sevenfold. (3)

An analysis of the purposes and policy of sentencing and punishment--deterrence, incapacitation, rehabilitation, and retribution--has yet to be applied to the parole revocation context* Incarceration as a result of a parole violation is not understood as a form of punishment in and of itself, or even as a sentencing enhancement. Instead, it is viewed as a reinstatement of the original sentence. (4) Yet characterizing re-incarceration for parole violations in this way reflects an under-inclusive and over-simplified understanding of the parole revocation process as well as punishment more generally. Parole revocation that results in re-incarceration or other restrictions on a parolee's liberty is designed to punish the parolee for the new violation--not the underlying conviction, despite the fact that it is the conviction offense that establishes the authority of parole administrators to revoke parole and re-incarcerate. Moreover, the current practice of parole revocations and returns to prison fundamentally alters the original sentence imposed by the judge and supported by the facts found by the jury. Parole violations affect not only the period of incarceration but also the duration of parole supervision, and therefore may ultimately increase the duration of custodial or community supervision beyond the scope of the sentence originally conceived of by the judge, or may retroactively impose the maximum sentence. Instead, as Jeremy Travis has suggested, it is our deeper impulse to create distinctions between us and them--the demonization of criminals--that supports an understanding of parole revocation only in terms of the original conviction. (5) Such an understanding thereby justifies additional punishment in the absence of public scrutiny and judicial oversight.

Travis characterizes the parole revocation process as a system of sentencing, which he has labeled back-end sentencing. He acknowledges that "the process of adjudicating parole violations is recognized as flowing from the original convictions and sentence." (6) However, he argues that "the conceptual and operational similarities between the two systems are ... so compelling that ... there should be little hesitation to call the process of adjudicating parole violations a form of sentencing." (7) These similarities between front-end and backend sentencing include: state enforcement agencies to detect violations of rules and laws; arrest and detention for those suspected of infractions; a neutral adjudicative entity (judge and jury or parole judge); an opportunity to present a defense through an adversarial process; and a determination of guilt and the imposition of sanctions, which can include the deprivation of liberty. Travis' understanding of parole revocation as a sentencing regime supports the underlying premise of this Note's inquiry--that recent sentencing jurisprudence should be applied to parole revocation hearings and back-end sentencing more generally. …

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