Parole Protests Are Hurting The Legitimacy of The Entire Parole System

I have been representing prisoners before the Texas Board of Pardons and Paroles since 2007.  One complaint I have heard many, many times from inmates and their families is that some of the very best behaved “model” inmates are repeatedly denied parole, while some of the “knuckleheads” seem to get paroled very quickly.  I have also witnessed this phenomenon myself on many occasions.

Obviously, this type of complaint by inmates and their families about perceived unfairness in the parole process is a generalization, and it often completely fails to account for the true nature of the crime, the inmate’s own past failures above and beyond the major failure for which he/she is incarcerated, among other things. These complaints also fail to account for the list of static and dynamic variables that go into a parole guideline score.

This concern of perceived unfairness, however, becomes much more valid when you compare inmates who committed similar crimes and who have similar guideline scores, and who both demonstrate a great deal of positive transformation as a result of the valuable lessons learned in the years following the criminal behavior.  In these “apples to apples” scenarios, it is completely arbitrary that one person makes parole, and the other does not, especially if the person denied is repeatedly denied.  And the greater the difference in the length of the term of incarceration ultimately required of two such similarly situated inmates, the more arbitrary and unreliable the parole system as a whole becomes. Victim protests are, in my opinion, a huge part of the reason for such arbitrary and unbalanced results.  It is my opinion that the extreme reverence presently given to parole protests undermines the legitimacy of the entire parole system.

I have blogged before that a victim protest likely equates to a denial of one’s parole, period, with little or no exception, period.  I must qualify my firmly held belief by openly admitting that I cannot prove that this is what is happening, and there is a very good reason I cannot. Namely, the Texas Board of Pardons and Paroles strictly adheres to its policy of never revealing the existence (or non existence) of a protest on any particular file, in any given offender’s parole review.

Before anybody starts thinking that I have no sympathy for crime victims, let me first say that I am a compassionate person by nature, and I am always looking for ways to bring peace and serenity into my life and the lives of those with whom I come into contact in my daily life.  I do not like conflict or unkind behavior, and I loathe unnecessary human suffering.  Therefore, I am naturally sympathetic and I have genuine empathy towards anyone who suffers.  Some victims of crime are forced to endure unspeakable suffering because of the extreme and completely outrageous nature of the criminal behavior inflicted upon the victim and his/her family.

When a crime occurs in which innocent people are victimized unnecessarily, we all lose. But, generally speaking,  nobody loses more than the victim and the victim’s family.  Just because I see suffering of inmates and their families on a regular basis, it does not mean I am oblivious to the victim’s suffering.  The most obvious example of such suffering occurs when a person is murdered.  Yet, there are many, many other crimes that are less extreme that, nonetheless, cause a large amount of temporary or permanent suffering.

When you really stop and think about it though, a parole vote should have little or nothing to do with whether a victim is protesting a prisoner’s release from prison.  The decision whether to parole a person is supposed to be objective, made by a qualified group of people who can objectively consider the relevant information.  Objectivity.  That’s what we, as a society expect from any governmental decision-making body.  In fact, jurors in every civil and criminal trial in the state of Texas are expressly instructed by the judge not to let bias, sympathyor prejudice play any part in their deliberations in important matters such as guilt or innocence in a criminal case, or in determining the amount of damages to award a party that seeks money damages in a civil trial.  Yet, this objectivity is openly challenged at the courthouse by involving crime victims, which is quite common in this age of increasingly popular “victim’s rights” programs.  To allow victims of crime even more power by affording them future opportunities to negate the objectivity of the parole system makes the opinions and experience of parole officials seem completely irrelevant.

A protest by a person who still carries the anger and pain of a past crime is perhaps about the most subjective opinion one could possibly seek out concerning whether a particular inmate has a) been adequately punished for a given criminal act, and b) whether an inmate has been rehabilitated and demonstrates the requisite maturity and character to be trusted to re-enter society and live a crime free life.  In fact, most crime victims could care less about anything other than their own pain and their own desire to see the perceived wrongdoer punished. It stands to reason, therefore, that a crime victim is the least qualified person to be able to address whether an offender has been properly punished, and whether that same inmate has been rehabilitated.

If the entire justice system is premised on the notion that decisions must be made as objectively as possible, the first question we should all ask ourselves is whether the stated desire of a victim ought to play any role in the justice system.  Even if the answer to that question is “yes”, that we do, in fact, want to introduce the subjective will of crime victims into our society’s justice system, the second question that naturally follows is whether we want to place some reasonable limits on the will of the victim.  If there is to be a limit on the will of the victim, at what point must we stop looking to the victim for guidance as to what to do with a person who committed a crime in the past?

The above question is extremely important.  Another way to state the question is this:

When do we move beyond subjectivity (sadness, anger, hatred, desire for revenge) and seek to remain objective about the dual purposes (punishment and rehabilitation) in every criminal justice system?

There are really only three possible answers to this question.

The first possible answer is that we should  seek a system where the law punishes criminal behavior itself, without regard to anyone’s personal opinions, least of all the victim, who is almost certainly biased, and understandably so.

The next possible answer is that we allow the subjective will of a crime victim to play a limited role, but we set up a system where that subjective role, while allowed, is still subservient to the more objective will of those whose job it is to be as fair and objective as possible.

The third possible answer to the important question above is to set up a system where the objective decision making ability of judges, juries, and parole officials is pretty much disregarded, and the subjective will of crime victims is the basis for all important decisions. I’m afraid that the present way of handling crime and punishment in Texas is leaning more and more towards this third scenario.

Most crime results in victims.  This inappropriate victimization is precisely why many criminal statutes are enacted in the first place. So, when a person is arrested and is suspected of having committed a crime, a victim centered system dictates that we ought to go ask the crime victim what punishment ought to be imposed upon the person being charged with crime, without regard to anything else, and then we’ll keep asking the crime victim how he she feels into the future.

When an offender sits in prison, he or she is being punished.  However, while the punishment is underway, the long term goal is to always seek growth and rehabilitation, real positive change in the mindset of the offender.  Ultimately, we want to know that the offender has learned valuable lessons about life, about the terrible consequences of crime, and about the acceptable limits of human conduct, such that they will never commit crime after being released.  By having a system that uses the victim’s protest and ignores everything else, we rightfully have less trust and faith that the “system” is anything even resembling fair.

I doubt most members of the general public share my views about this topic.  Most people tend to focus on punishment, to the complete exclusion of rehabilitation.  Strangely, however, individuals always feel quite differently about the role of forgiveness and rehabilitation when it is their loved one sitting, suffering, in prison.  The lack of empathy on the part of those who have never seen a loved one suffering in prison is precisely why the popular “will” of the people is so easily manipulated by politicians, victims rights groups, and of course, the popular media, always for their own benefit, of course.

Perhaps a way of allowing the victim of crime to impact the prosecution and incarceration of an offender is to set reasonable limits.  For example, we could have a system where a criminal is sentenced, and then a victim’s input is allowed to be considered and this input could result in the addition of up to 10% onto the term of incarceration.  Similarly, when the prisoner becomes eligible for parole, we could allow the victim to protest the offender’s initial parole eligibility date, and the victim is given the satisfaction and the power to dictate that the perpetrator will remain in prison up to 2 additional years as a result of the victim’s will.  However, after that, the victim is barred from having any input into any subsequent parole eligibility opportunities.

The Parole Board is quite capable of seeing a serious offense for what it is, and the inmate who wishes to make parole is still going to have to overcome plenty of challenges in order to make parole.  It just seems completely absurd to me that we would ever have a system wherein we keep the prison door locked for as long as a crime victim thinks it ought to stay locked.  Yet, I am firmly convinced that this kind of absurd system is exactly what we have today in Texas.

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