Parole Boards Within Indeterminate and Determinate Sentencing Structures
Parole boards make release decisions today that carry significant implications for correctional populations across the country. There is no question that they have experienced dramatic challenges to their operations with a sizeable number of states abolishing or curtailing the discretionary authority of parole boards to grant release, especially during the last quarter of the twentieth century. Yet several states that at one point abolished discretionary release on parole later restored it (Connecticut). Another state did the same, albeit after doubling sentencing lengths for criminal offenses (Colorado). More recently, Mississippi expanded its parole granting function for non-violent offenders. Since the turn of the century, no parole board has been abolished outright.
In terms of sentencing structures, a review at the state level shows there is no such thing as a purely indeterminate sentencing system in which the full duration of a prison sentence is left to the discretion of a parole board. Nor can a pure determinate sentencing system be found. Most jurisdictions exhibit features of both for designated categories of crimes or offenders.
In classifying the status of paroling authorities, it is helpful to begin by noting the essential structure of these contrasting types of sentencing systems (Rhine, Petersilia, and Reitz 2017: 291).
An “indeterminate” prison sentence is one for which an offender’s date of release cannot be predicted with fair accuracy from the court’s sentence at the conclusion of a criminal trial. The length of term will be fixed by one or more decision makers who exercise later-in-time release discretion in a way that is neither routinized nor reasonably knowable in advance.
A “determinate” prison sentence is one for which an offender’s date of release can be predicted with fair accuracy from the court’s judgment at the conclusion of a criminal trial. The length of term may be adjusted by one or more decisionmakers who exercise later-in-time release discretion in a way that is routinized and reasonably knowable in advance.
What these definitions suggest is that to some extent designating a sentencing system as one or the other involves judgment. In fact, different sources arrive at varying decisions relative to which states reflect an indeterminate or determinate sentencing structure (Lampert and Weisberg 2010; Lawrence 2015; Stemen et.al. 2006). The distinction carries consequences for assessing parole boards and the authority they possess relative to determining offenders’ release dates.
The chart below titled “Status of Parole Boards by State and Sentencing Structure for Most Offenses” illustrates which states have retained their paroling authority within an indeterminate system of sentencing. It is assumed that if half or more of non-violent and/or violent offenders are eligible for discretionary parole, that particular state may be categorized as indeterminate. States that have abolished their parole board or dramatically curtailed its discretionary authority to grant release are also classified noting the year legislation was enacted or became effective resulting in a largely determinant sentencing structure.
As the chart shows, a majority of states, a total of 34, have retained the function of parole release housed within indeterminate sentencing systems in which judges impose a maximum sentence and parole boards determine release dates for most inmates. In the other 16 states which exhibit determinacy in sentencing parole boards do not decide most offenders’ release dates. They may, however, exercise discretionary authority over “old code” offenders, that is, those convicted prior to the effective date of the determinate sentencing statute, and/or inmates serving life sentences. Under both types of sentencing structures, corrections officials exert an impact through decisions affecting good time provisions or their equivalent, unless such credits were rescinded in the transition to greater determinacy in sentencing.
Paroling authorities in states which retain discretionary authority to grant release typically do so tied to the expectation that a period of parole supervision will follow. In determinate sentencing jurisdictions, two additional pathways for exiting prison, likewise involving post-release supervision, are available: mandatory release from prison, and supervised release. Those leaving incarceration via these pathways do so after serving a fixed period of their original sentence, minus good time or other credits accrued during confinement. The decision regarding release and subsequent supervision is not made by a parole board, but by judges and the peculiarities of the determinate sentencing structure by which they are bound.
The most recent information available on those offenders subject to these contrasting forms of post-release supervision is provided by the BJS report on probation and parole for yearend 2015 (Kaeble and Bonczar 2017). Across the states, an estimated 332,543 offenders entered parole under one of these three options. The largest number, 194,631 (59%) exited prison to parole supervision. Mandatory releases accounted for 97,426 (29%), while the smallest grouping, supervised releasees, totaled 40,486 (12%).1 It is noteworthy that mandatory and/or supervised release are found in at least 16 states with indeterminate sentencing and discretionary release on parole. (See Kaeble and Bonczar 2017, Appendix Table 5 for definitions of parole supervision and mandatory release/supervised release, as well as for the sorting of each by state.2 )
Chart: Status of Parole Boards by State and Sentencing Structure for Most Offenses
|State||Indeterminate Sentencing||Determinate Sentencing||Date Abolished|
Danielle Kaeble, and Thomas P. Bonczar. 2017. “Probation and Parole in the United States, 2015.” Washington, D.C.: U.S. Department of Justice. Bureau of Justice Statistics.
Lampert, Alexandra and Robert Weisberg. 2010. Discretionary Parole Release in the United States. Unpublished manuscript. Palo Alto, CA: Stanford University Law School.
Lawrence, Alison. 2015. Making Sense of Sentencing: State Systems and Policies. National Conference of State Legislatures. Retrieved at: http://www.ncsl.org/documents/cj/sentencing.pdf.
Rhine, Edward E., Joan Petersilia, and Kevin R. Reitz. 2017. “The Future of Parole Release.” In Reinventing American Criminal Justice in Michael Tonry and Daniel S. Nagin. Eds. Crime and Justice. Volume 46. Chicago: University of Chicago Press.
Stemen, Don, Andres Rengifo, and James Wilson. Of Fragmentation and Ferment: The Impact of State Sentencing Policies on Incarceration Rates, 1975-2002, at 11 (U.S. Department of Justice, Washington, D.C., 2006).
- 1The U.S. Parole Commission is not included in this discussion. Within the federal system, and in alignment with the Sentencing Reform Act of 1984, supervised releases constitute the predominant mechanism by which offenders are monitored subsequent to their transition from prison to the community. A total of 49,665 occupied this status at yearend 2015, exceeding the number of those subject to supervised release across all 50 states.
- 2These figures do not include four states for which data were missing: Alaska, California, Oregon, and Wisconsin. Three out of four of these represent determinate sentencing jurisdictions, thus underreporting the figures for those states relying on mandatory and/or supervised release.