Abstract

Excerpted From: David M. N. Garavito, Amelia Courtney Hritz and John H. Blume, Caged Birds and Those That Hear Their Songs: Effects of Race and Sex in South Carolina Parole Hearings, 27 University of Pennsylvania Journal of Law and Social Change 99 (2024) (200 Footnotes) (Full Document)

The United States prison system is one of the largest in the world. With nearly 1.3 million people incarcerated in state prisons alone, the United States accounts for one-fifth of the global incarcerated population. Given both the sheer size of the prison population and the readily apparent racial disparities plaguing it, researchers have been primarily focused on the front end of criminal procedure, such as police stop and frisk practices, overcharging, guilty pleas, and prosecutors failing to disclose exculpatory information. Other work has centered around disparities in the demographic makeup of the ballooning prison population. On the other hand, relatively little research has been conducted on the back end of the criminal justice system, and this is especially true of the decision whether to release an incarcerated person on parole. What happens when people attempt to prove that they have paid their debt, are deserving of release, and should be given the opportunity to reenter society? Given that 1 in 55 adults in the United States were either on parole or probation in 2016, this empirical void is glaring. Further investigation of the latter portion of the criminal justice system, including parole outcomes, will shed light on the functions of the criminal justice system in its entirety.

Parole is the release of prisoners after a term of imprisonment but before the end of their sentencing period. A parolee is technically still serving out the sentence, however, so parole is quite different from commutation (the shortening of a sentencing period via an order from the head of the government) or probation (court-imposed supervision in place of imprisonment). Parole plays an interesting and unique role in our criminal justice system. First, if the system functions as intended, then discretionary parole--that is, a system where a board of people vote, at their discretion, on whether people deserve to leave confinement before the end of their sentences--can offer a great incentive for good conduct while incarcerated and encourage incarcerated people to participate in programming. Nevertheless, discretionary parole is not universally available in the United States, and the popularity of discretionary parole as a whole has fluctuated over the last few decades. Currently, out of the 50 states, 16 have no form of discretionary parole whatsoever. The federal government, too, removed discretionary parole for federal prisoners in the Sentencing Reform Act of 1984. Jurisdictions who turned away from discretionary parole system have instead opted for determinate sentencing systems, whereby a person is sentenced to a fixed period of confinement, which may be reduced for good behavior. These shifts have been driven, in part, because states that utilize a discretionary parole system, despite varying in their rules and procedures, generally have little transparency in the factors actually guiding release decisions. This lack of transparency makes it harder for people trying to advocate for their release, and the wide discretion in release decisions drew a considerable amount of criticism from people and groups across the political spectrum in the late 20 century.

For some, the discretionary nature of that system drew concerns that racial minorities were receiving disparate treatment. Critics on the other side of the political spectrum claimed that discretionary parole resulted in non-reformed criminals being released back into the community. In response to criticism from both sides, many states began shifting away from discretionary parole, with at least 20 states either abandoning that system completely or restricting the role of parole boards. This shift coincided with other policies that further increased the growth of the prison population, including the decline of other early release options, the introduction of mandatory minimum sentences, and the enactment of three strike laws that increased the imposition of life sentences. However, in the past two decades, the momentum has reversed and some states have begun to reimplement parole systems or expand the power of parole boards. This response is due, in part, to the growing and aging prison population caused by the removal of early release options, mandatory minimum sentences, and the large number of people serving life sentences. Consequently, prisons have become overcrowded, and the increasing amount of aging prisoners require medical care and other services.

In this Article, we will review the state of research on parole decision making and provide contemporary data from a decade of parole outcomes in South Carolina. This Article proceeds in five parts. Part I will provide an overview of parole in the state of South Carolina. We break down South Carolina's discretionary parole system, including criticisms of the system and any limitations on the parole board. Part II will describe the existing state of parole research and highlight variables that have routinely been included in research on parole decision making. We will also discuss limitations and shortcomings in existing research, particularly those concerning methods and the lack of consistency regarding inclusion of demographic variables, such as race and biological sex, which may cue stereotypes of parole-related characteristics, such as dangerousness. In Part III, we outline the present study, including our sample, data processing procedure, and analytical plan. We use data supplied by the South Carolina Department of Probation, Parole, and Pardon Services from 2006 to 2016. For each parole hearing during that timeframe, we had information on the demographics of the person in the hearing, the crime(s) the person had been convicted of, and other data of interest. Part IV describes the results of our tests, including all relevant statistics. Overall, the strongest predictors of parole hearing outcomes were the presence of violent crimes, a person's sex offender status, subsequent convictions while incarcerated, and demographic variables such as biological sex and race. Finally, in Part V, we interpret our results within the context of previous research and draw several conclusions.

[. . .]

In this study, we conducted a statistical examination of a decade of parole board decisions from South Carolina. We found that multiple institutional and noninstitutional variables influenced a person's likelihood of being granted parole. Perhaps most concerningly, we found that race and sex significantly predicted whether a person was granted parole. Based on these findings, some may argue that discretionary parole should be abolished to prevent the unequal distribution of justice. This type of claim is not a new one in the world of criminal law. In fact, the death penalty was temporarily abolished in the United States because states arbitrarily enforced it, mostly to the detriment of minority defendants. Further, as stated in the introduction, states shifted away from discretionary parole systems in the latter half of the 20 century, partially because of such concerns. However, the solution is not necessarily to do away with discretionary parole, which 16 states have already done. Such a shift could disincentivize people from bettering themselves through programming, despite the fact that the participation in said programs has also been shown to improve the safety of carceral environments. In a recent amicus brief filed within the South Carolina Court of Appeals, a group of former correctional agency heads, correctional administrators, and prison wardens voiced their concern with the operation of South Carolina's parole system and how the current state of the system diminishes the benefits gained by a discretionary parole system focused on rehabilitation:

The Board's refusal to reward participation in programming is especially egregious given SCDC's efforts to provide a wide range of rehabilitative programs ... [T]hese programs are not only vital to the secure day-to-day functioning of SCDC facilities but to the success of SCDC's broader rehabilitative mission .... A dysfunctional, arbitrary parole process, as clearly evidenced in this case, is counter-productive to all those efforts.

To combat these shortcomings, new ideas must emerge that attempt to mitigate or remove the effects of noninstitutional, and specifically demographic, variables on parole decision making. These reforms will likely have to go beyond the simplest response, like ensuring that parole boards have the resources to fully consider each parole case and that the boards themselves are composed of people from diverse backgrounds. To support these reforms, additional research is also necessary. Improving data management will be paramount for such research. As stated earlier, this study suffered from several limitations that could have been alleviated with more accurate records, clearer data management guidelines, and increased public access to records. Further, experimental research, including those involving hypothetical parole cases, may allow for the testing of potential procedural changes on smaller scales. Such research would allow for state actors to see potential consequences, good and bad, from alternative parole schemes or procedures. Increased research, legal challenges and effective policymaking could, together, illuminate and work to eliminate these effects. This work would, of course, require an abundance of time and resources from many different actors (researchers, lawyers, politicians, etc.). And, perhaps most importantly, there would need to be states that are willing to attempt potential solutions. However, this work is undoubtedly worthwhile; as the late Maya Angelou famously said, “equal rights, fair play, justice, are all like the air: we all have it, or none of us has it. That is the truth of it.”

Assistant Professor, University of Washington School of Law.

Attorney in private practice; Visiting Scholar, Department of Psychology, Cornell University.

Samuel S. Leibowitz Professor of Trial Techniques and Director, Cornell Death Penalty and Juvenile Justice Projects, Cornell Law School.