Should prosecutors and survivors have a voice in shortening long sentences?

It’s become habit to consult prosecutors and victims during the release process. States should break that habit.

by Jorge Renaud, October 25, 2018

While working on an upcoming report about how to shorten long prison sentences, I was disappointed to see that the same experts urging reform are reflexively endorsing part of the status quo. Criminal justice researchers are urging states to change how they consider release for individuals with lengthy prison sentences. However, these reformers continue to recommend that states solicit the input of prosecutors and survivors when making release decisions.

These recommendations reflect established practice rather than progressive policy. States should leave decisions about an individual’s release to professionals who understand that person’s behavior and needs.

Why should prosecutors have a role in the “mercy” process?

The deference shown to prosecutors reaches every aspect of the criminal justice system. Even the reformers who recommend consulting prosecutors on parole decisions and second-look sentencing, however, fail to explain why their involvement is needed in these post-sentencing processes. It strikes me as counterintiuitive that the official responsible for seeking someone’s lengthy sentence should be consulted about that person’s release, yet those recommendations continue.

For example, in the recently approved revision to the Model Penal Code, The American Law Institute recommends a “second-look” provision that would provide review and possible relief to incarcerated individuals who have spent at least 15 years in prison. However, it also recommends that “notice of the sentence-modification proceedings should be given to victims, if they can be located with reasonable efforts, and to the relevant prosecuting authorities.”

I found it almost impossible to find a policy that would mitigate the time a convicted individual must serve, or a parole decision to be made, where it is not recommended – and in some cases mandated – that the deciding officials give prosecutors a chance to weigh in:

• When asked what “sources of input” were considered in release decision-making, 34 of 38 respondents from state parole decision-making bodies said “district attorneys.”
• In 12 of the 24 states profiled by the Robina Institute, state parole decision-making bodies must notify the prosecuting attorney when an individual is being considered for parole; one state mandates a prosecutor’s input must be solicited when an individual with a life sentence is being considered for parole; and 11 states require that the decision-making bodies provide information to the prosecutors upon their request.

This deference toward prosecutors is uncalled for, especially when the only information prosecutors can provide relates to the crime – not to the more important question of whether the person under review has undergone a transformation while incarcerated. Prosecutors are particularly unfit to determine whether individuals they have not seen in years or decades still pose a threat to public safety. As Prof. R. Michael Cassidy at Boston College Law School puts it in a forthcoming paper, “prosecutorial input at parole hearings is likely to accomplish very little beyond either grandstanding for the media or intimidating the parole board into being risk-averse in close cases.”

Recall that between 95 and 97% of all felony convictions are the result of plea bargains between defendants and prosecutors. In offering and accepting a plea bargain, a prosecutor determines when the defendant may be eligible for release and accepts that possibility in exchange for the certainty of a conviction. Whether individuals thus convicted are actually released at that first eligibility date should not be the prosecutor’s concern, only that of the parole board, commutation official, or judge taking a second look.

Finally, there is a strong argument that prosecutorial overreach is responsible for explosive prison growth, both in the numbers of individuals in prison and the astonishingly long sentences many of them have. Although there has been movement toward a progressive prosecutorial approach, exemplified by D.A. Larry Krasner in Philadelphia, it remains to be seen if that approach extends beyond those charged with drug possession and non-violent property crimes. In any case, states should reconsider their choice to include prosecutors in the “mercy” process, given that the punitiveness of prosecutors has created a prison boom.

Should the release process include the views of survivors?

The voices of survivors have become a welcome part of criminal justice proceedings, as they should be. Survivors have an intimate stake in what happens after individuals are sent to prison. But this valuable perspective should be channeled towards advising prison programming, not release. The decision to release an individual should be informed exclusively by an understanding of that individual’s behavior and needs – information that survivors, like prosecutors, simply do not have.

Many people assume that all survivors of violence fit their image of a bereaved family member angrily demanding that a convicted individual be sentenced to life in prison. While many survivors do ask for lengthy prison terms for their attackers, a more accurate picture is presented by a 2016 national survey of survivors of violence commissioned by the Alliance on Safety and Justice. The survey revealed that:

• 60% of victims preferred shorter prison sentences and more spending on prevention and rehabilitation to longer prison sentences;
• Victims were three times more likely to prefer holding people accountable through options other than prison, such as rehabilitation, mental health and drug treatment, and community supervision;
• Victims were also three times more likely to believe that prison makes people more likely to commit crimes than to rehabilitate them;
• And perhaps most poignantly, seven out of 10 victims of violent crimes preferred that prosecutors focus on solving neighborhood problems and stopping repeat crimes through rehabilitation, even if that meant fewer convictions and prison sentences.

To that end, survivors are uniquely positioned to push state departments of corrections to implement programming that focuses on transformation – on nourishing remorse that is grounded not in shame, but in recognition of harm and responsibility. Survivors’ rights groups should be consulted when policymakers are deciding which programs to offer to incarcerated individuals to prepare them for their eventual release.

However, the decision to release an incarcerated individual, or to mitigate that person’s sentence, should be made by professionals with an understanding of that person’s behavior and needs. It should also include input from those who have been in contact with those individuals throughout their incarceration.

Rather than critique the involvement of survivors outright, reformers have proposed meaningless compromises that effectively insult survivors. Reformers suggest, paradoxically, that survivors be allowed to speak at parole hearings but not to recommend approval or denial of parole. That ignores the emotional weight any testimony of a survivor of violence will have on decision makers.

Restorative justice may find a place in our criminal justice system, allowing survivors of violence to heal in ways besides demanding long prison terms for those who have wounded them. Prosecutors may realize that a truly progressive approach means not seeking unimaginably long sentences rooted in retribution. Until then, neither prosecutors nor survivors should have a meaningful voice deciding whether or not to deny freedom to an individual who has served a lengthy sentence.