PLAYING GOD

...And locking the prison door and throwing away the key, as some view determinate programs, would threaten appropriations for important, hard-won prison services...

...A determinate sentencing system would also enhance the power of prosecuting attorneys to affect the length of imprisonment...

...The only trouble is that for more than three decades no one in Louisiana obeyed it...

...Dray, accompanied by a law student, and two examiners from the Federal Parole Commission were the only persons permitted in the prison hearing room that January afternoon...

...Examiner...

...Few still believe in the naive old assumptions that people can be forced to "rehabilitate" themselves in prison and that an impersonal parole authority can identify the moment of rehabilitation...

...Examiner: Is the Government's version of the offense basically true, accurate...

...But the Parole Commission contends that the scores express no normative values...

...Americans called it "parole," after the French for the promise of a military prisoner not to fight again if released...

...Deborah Reilly is a free-lance writer andformer assistant editor of The Progressive...

...Members were given a rating sheet of offense severity as well as the pooled ratings of the group...

...Salient factor scores and offense severity ratings can be manipulated to include or exclude certain facts in a prisoner's history...

...Minority group members (who are more likely to be sent to jail than put on probation when convicted) and the poor (who are not likely to have been full-time students or who may not be able to verify six full months of employment) are at a disadvantage...

...Reformers liked the system because it gave prisoners a chance to show they were mending their wayward lives...

...The judge imposes a sentence within those limits...

...It would seriously undercut the judicial check on prosecutors who are less visible, who frequently act on less information than is available to a judge, and who sometimes bargain on the basis of how tight their schedules are or how the electorate will view their handling of cases...

...Dray reported that he was studying for his high school equivalency diploma, that he had a responsible job in the prison cable factory, and that he had a job offer back home...

...The examiner replied: "I'm certainly not going to say the B-2 number is no good...

...Prisoners have minimal due-process rights in an initial parole hearing...

...He's got a serious problem, and he thinks he has it licked, but he doesn't (2): O.K., then, we'll up it on multiple offenses...

...The movement spread rapidly...

...Eligible prisoners appeared before examiner boards, hoping they looked and sounded sufficiently redeemed by pointing to their enrollment in high school and college courses, Bible study groups, counseling groups, and other self-improvement endeavors...

...The Illinois system has received the most publicity...

...Some have been incarcerated for up to thirty-four years...

...Dray: 1 understand...

...Pardons were one tactic used to relieve overcrowding...

...Most significantly, the bill would have provided that decisions of a sentencing judge to apply or depart from the sentencing guidelines would be made with the full panoply of due-process rights and would be subject to judicial review...

...After a few preliminary remarks, the examiners began to review his file: Examiner: Did your central file include any presentence report...

...2): Looks to me like it's a moderate, unless you want to increase it because of multiples...

...Without guidelines or policies to follow — other than the vague Congressional mandate that parole release should not "depreciate the seriousness of the offense" or "jeopardize the public welfare" — examiners made their decisions about the "magic moment" for parole by individual judgment...

...But we do not treat B-2 sentences any differently when it comes to accountability...

...The decision means that Dray will serve the same amount of time before parole as someone who had been convicted of bank robbery...

...There are no quick fixes for the problem of prisons...

...Now it appears that we are basically talking about a bank robbery, right...

...The committee report accompanying the bill specified probation as the favored sentence...

...Hearings are not public...

...The structures set up by S. 1437 would not have been foolproof...

...Although the sentencing judge made him immediately eligible for parole, Dray waited nine months for his first parole hearing...

...An inmate loses points for previous convictions, previous incarcerations of fifteen days or more, being younger than twenty-six when first incarcerated, involvement in check forgery or automobile theft, probation or parole violations, having a history of heroin or opiate dependence, and not being able to prove employment or school attendance for at least six months of the last two years in the community...

...The British called their system "ticket-of-leave...

...Dray received only four points — one point for two prior incarcerations, one point for being within the eighteen to twenty-five year age limit when first committed, one point for never having violated probation or parole, and one point for proving six months of employment...

...In 1817, New York adopted the nation's first "good-time" law by which sentences were reduced for each month of good behavior...

...The representative may be a relative, The 'forgotten men' friend, or attorney who speaks briefly on the prisoner's behalf...

...Throughout the hearing, the burden is on the prisoner to prove any mistakes in the information used to calculate the score...

...1): I do...

...The "discretion" so freely exercised by the hearing examiners is part of a vast and powerful system of resentencing Federal prisoners subject to only limited review by the courts...

...But reductions would be more effective through legislation structuring the entire sentencing system than through the piecemeal effects of administrative agency guidelines...

...In fact, the guidelines have abolished much of the hypocrisy of the old system — but old problems remain and other, more serious issues arise...

...Each system is different...

...We don't just concern ourselves with whatever the commitment offense is...

...is to be avoided as much as possible...

...In California, the state legislature has provided judges with three sentence terms for each offense...

...The Committee warned, "This approach to rehabilitation efforts For more than fifty years — until its repeal this year — Louisiana has had a law making life-termers eligible for parole after serving ten years and six months in the state penitentiary...

...Both the political Left and Right complained that unbridled examiner discretion, coupled with judicial discretion, created too much disparity in prison sentences...

...As a result, the state penitentiary at Angola now has seventy-eight "forgotten men" — life-term prisoners who never came up for consideration after completing ten-and-a-half years in prison...

...After hearing the panel's decision, Dray questioned the value of his special "B-2" sentence...

...According to Dray's presentence report, about $48,000 was taken from a Michigan bank in 1975...

...However, you are entitled to another hearing two years from now, January of 1981...

...Dray: Yes, sir...

...On one axis is the "salient factor score," a composite number of points based on a prisoner's history...

...They then discussed the ratings and voted on what they felt would be the appropriate severity level for each offense...

...The guidelines, under which Dale Edward Dray was denied parole, consist of a matrix which determines the total time a prisoner must serve before parole will ordinarily be granted...

...they are merely predictive...

...On the other axis of the guidelines is an attempt to quantify the statutory requirement that "release would not depreciate the seriousness of the offense...

...The hearing lasted about fifteen minutes...

...Good-time schemes are still a part of the Federal penal process, but by the end of the century states had also begun experimenting with a British program in which an inmate's willingness to reform could be tested by supervised release into the community for a portion of the sentence, thus allowing a faster turnover in the prisons...

...The guidelines discriminate in favor of white-collar criminals — usually older, first-time offenders whose crimes are more sophisticated than stealing a car or forging a check and who have no problem verifying employment...

...By 1900, twenty states had some version of parole...

...Judges in that state impose sentences fixed only by statutory maximums...

...Dray: Yes, sir...

...Various offenses are listed in seven categories of severity ranging '. . . he thinks he has (the problem) licked, but he doesn't' from "low" (possession of a small amount of marijuana for personal use) through "moderate" (possession of less than $20,000 of counterfeit money) to "greatest I" and "greatest H" (aircraft hijacking, kidnapping...

...Whenever a prisoner "so conducts himself as to merit the approval of the general manager of the state penitentiary," the law said, "he may apply for a commutation of his sentence and upon approval of the said general manager, the same shall be forwarded to the Board of Pardons, and upon their approval, the same shall be forwarded to the Governor____" It was a model law...

...Despite the fact that Dray's judge selected a special option providing for immediate parole eligibility, his examining board applied the same guidelines which would be applied to an inmate who was not eligible for parole until the one-third point of his sentence...

...From 1910 to 1973, the parole system remained basically the same...

...Senate Bill 1437 — the criminal code reform opposed by civil libertarians for its establishment of an Official Secrets Act and for incursions into the right to assemble and protest — would have mandated the creation of a sentencing commission to promulgate Congressionally approved guidelines for appropriate punishments...

...Indiana provides a specific presumptive sentence for each felony but permits judges substantial leeway...

...Members of a project studying the parole system in 1975 reported the following discussion, published in the Yale Law Review: Examiner (2): Is his total sentence just five years...

...We should not jump mindlessly . . . into determinate sentencing...

...Two years later, Dray's uncle was arrested, convicted, and sentenced to fifteen years...

...Ohio, for example, handed out pardons whenever the state accumulated more than 120 prisoners...

...Where should we rank his offense severity...

...Examiner recommendations are sent to one of five regional commissioners in Philadelphia, Atlanta, San Francisco, Dallas, or Kansas City, where officials who have never seen the inmates review the cases and make the final decisions...

...The legislature also established a criminal sentencing commission to review and limit judicial discretion...

...There are eleven possible points...

...The robbers escaped in a stolen car...

...another form of population control had to be found...

...Examiner: I feel it necessary to point out to you and [to your representative] at this point that the Parole Commission has the discretion to consider the total offense behavior...

...usually only the prisoner, two hearing examiners, a prison caseworker, and a prisoner representative are allowed in...

...To "promote a more consistent exercise of discretion," the board announced adoption of a set of "guidelines for decisionmaking...

...The examiners then asked him about his former addiction to heroin and discussed his prior convictions...

...An attorney may provide information requested by the examiners but may not act as a prisoner's legal representative during the hearing because initial hearings are not considered adversary proceedings...

...Judges have sometimes deliberately imposed sentences that place the offender's fate beyond guideline control...

...The Board of Parole abandoned the goal of prisoner treatment and rehabilitation as studies revealed that the longer prisoners were incarcerated, the more likely they were to be convicted of other crimes...

...The severity table represents, at best, a questionable application of social science methodology...

...The intersection of Dray's scores on the matrix indicates an incarceration range of forty-eight to sixty months, and his parole date was set accordingly...

...Prison officials were also attracted to the system because good time was an effective carrot to dangle in front of prisoners to control behavior...

...The Commission has no effect, for instance, on such sentences as probation, fines, or prison terms with minimum parole dates beyond the guideline range...

...There was not enough evidence to convict Dray of bank robbery, and the judge agreed that the lesser charge was appropriate...

...As the hearing examiner told Dray, the guidelines have not eliminated discretion...

...Parole would be available only in a small minority of cases "where a purpose of the sentence is rehabilitation and the judge finds that the sole method of providing a correctional program designed to meet that purpose is through a term of imprisonment...

...John Schmolesky is a staff attorney for the Legal Assistance to Inmates Project at the University of Wisconsin Law School...

...by 1922, the number had risen to forty-four...

...Dray's score placed him in the "fair" prognosis category...

...Examiners can make parole decisions outside the guidelines for some of the same reasons they can reduce an inmate's salient factor score...

...PLAYING GOD Inmates at the mercy of the parole board JOHN SCHmOLESKY AND DEBORAH REILLY Dale Edward Dray entered the Federal Correctional Institution — the Government's current euphemism for prison — at Oxford, Wisconsin, in April 1978 and began serving an eight-year sentence for possession of an unregistered sawed-off shotgun...

...To create the table, members of the Board of Parole sorted fifty-one index cards, each with one label of an offense, into six piles representing different levels of severity...

...The curious history of Louisiana's unenforced life sentence legislation has been compiled by the Lifers' Association of the Louisiana State Prison in a booklet dedicated to "the families, relatives, loved ones, friends, and countrymen of the Angola 'Forgotten Men.' " For copies, and for further information about their plight, write to Nancy Goodwin, Director, Louisiana State Coalition on Jails & Prisons, 2010 Magazine Street, New Orleans, Louisiana 70130...

...Administrators working within the letter but not the spirit of the law could create a de facto parole system by making greater use of transfers to prisons with different security classifications...

...New York enacted the first modern parole statute in 1877, permitting release, "when it appears to said managers [of the reformatory] that there is a strong and reasonable probability that any prisoner will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society...

...Guidelines setting sentencing that are too harsh — a problem in the Indiana system — would only bring the penal system back full-circle to the Eighteenth Century conditions that spurred adoption of indeterminate sentencing and parole...

...But the spectacle of judges and the Parole Commission working at cross purposes frequently penalizes the prisoner, who is caught in the middle...

...The parole system has its roots in the Nineteenth Century, when liberal reformers first publicly demanded that punishment fit the criminal, not the crime...

...But we should not jump mindlessly into a determinate sentencing program, assuming it will be a panacea...

...In 1910, Congress incorporated parole into the Federal penal system...

...Offenses for which a prisoner was indicted and counts that were dismissed can be considered in determining offense severity...

...The examiners denied him the auto theft point because even though he was not convicted of auto theft, did not steal the robbery getaway car, and maintained he did not know the car had been stolen, they reasoned that he was equally responsible for the actions of the others involved in the robbery...

...During the parole hearing, Dray confessed that he had been involved in the robbery...

...The Parole Commission maintains that the guidelines do not consider sentences so that they will be better able to reduce sentence disparity...

...Maine was the first state in the 1970s to abandon indeterminacy and parole...

...Concerned about the warehousing of prisoners — many of them immigrants who had found that American roads were not paved with gold after all — such groups as the Boston Prison Discipline Society publicized overcrowded and unsanitary prison conditions and lobbied for penal reform...

...The legislature sets minimum and maximum limits for each class of felony...

...Federal legislation scrapping indeterminate sentencing and severely limiting parole — a system similar to the Illinois plan — was rejected last year by the House Judiciary Committee on Criminal Justice...

...In 1973, the system changed...

...The guidelines fail to take the sentence given by the judge into account...

...By contrast, in only 7 per cent of parole release decisions are paroles granted before the guideline term expires...

...Prison is not the only response to offenses against society...

...The co-director of the National Council on Crime and Delinquency, which developed the guidelines, has praised them for implementing a "revolutionary philosophy...

...The number of decisions above the guidelines has significantly increased in recent years to about 14 per cent...

...Determinate sentencing, however, limits a judge's sentencing options for a given offense...

...Thus, Dray's examining board decided his offense was bank robbery, an offense with a "very high" rating...

...unless there are aggravating or mitigating circumstances, the limits of which are set by the other two terms, an offender will receive the presumptive sentence...

...But pardons were too easily available by bribery and extortion...

...The examiners took only a few minutes more to make their decision, announcing in part, "We have recommended that you be continued to a presumptive parole on April the 7th of 1982, with placement in a community treatment center recommended and drug after-care as special conditions...

...Under the present system, prosecutors have the power to promise a defendant a shorter sentence in return for a guilty plea, but judges can modify any unreasonable "plea bargains" in their sentences...

...The middle term is "presumptive...

...Four states have turned to determinate sentencing as an alternative to the inequities of the past...

...Examiner (1): Yes...

...The only thing it really does in a case such as yours is to afford you an earlier hearing than you would have gotten had you not received a B-2...

...The "Act of June 25," similar to the New York state statute, made parole available to all Federal prisoners with sentences of more than one year who had good institutional records and who had served at least one-third of their sentences...