In the half century since the beginning of mass incarceration, population numbers of lifers alone have surpassed the entire prison population count from the 1970s. In the U.S., California has one of the largest shares of life sentences.
The Prison Policy Initiative’s report “Eight Keys to Mercy: How to shorten excessive prison sentences” from Nov. 2018, authored by Senior Policy Analyst Jorge Renaud, listed eight ways to reduce long sentences.
“People should not spend decades in prison without a meaningful chance of release. There exist vastly underused strategies that policymakers can employ to halt, and meaningfully reverse, our over-reliance on incarceration,” the report said.
Renaud’s report presented eight strategies that would increase eligibility for release, heighten the possibility of parole board approval for conditional release on parole, and shorten time to serve. It also presented a simple way to cut recidivism.
The first concept of presumptive parole presented an innovation that would turn the parole system on its head. The current standard of presumptive confinement has traditionally treated a continuation of confinement as the default. Presumptive parole would turn the default to release.
Renaud wrote, “Logically, parole should only be denied if the board can prove that the individual has exhibited specific behaviors that indicate a public safety risk,” such as repeated violent episodes in prison or refusal to participate in programming. An absence of violations would result in automatic release.
PPI listed as the second innovation the concept of second-look sentencing, which would give judges legal mechanisms to review and to modify sentences. “The most effective way to do this is described in the 2017 revisions of the Model Penal Code, published by the American Law Institute,” Renaud wrote. At least two-thirds of American statutory-writing bodies used the Code as a blueprint and followed the Code’s suggested structures and vocabulary.
According to Renaud, the Model Penal Code recommended that after 15 years of incarceration, a panel of retired judges would conduct automatic reviews of long sentences with the aim of sentence modification or release. This PPI proposal would also require informing incarcerated persons of the review and provide resources to help with preparation.
The next proposal involved improving the treatment of good time. PPI called states “unnecessarily frugal in granting good time and irrationally quick to revoke it.” Renaud wrote that states should make every incarcerated person eligible for good time. They also should fully fund programs that would result in good time and make such programs available to everyone. Only serious violations should result in loss of good time, the report recommended.
Renaud’s fourth idea again used the Model Penal Code’s 15-year time line, which would make all incarcerated persons universally eligible for parole after 15 years. “While many states will retain the option of imposing long sentences, their sentencing structures should presume that both individuals and society transform over time.”
If sentence reforms applied to new crimes only, anyone sentenced under old laws would continue to serve sentences considered unjust. The fifth proposal of universal retroactive application of sentence reduction reforms would correct unequal justice for persons failing to benefit from progressive justice reform that has usually applied only to future convictions.
Renaud wrote, “Our statutes should be kept current with our most evolved understanding of justice, and our ongoing punishments like incarceration should always be consistent with that progress, regardless of when the sentence was originally imposed.”
The sixth reform Renaud proposed would cut recidivism by changing the roles of parole agents from enforcement toward support. Technical violations of parole, such as missing a parole meeting or crossing state lines without permission, returned 60,000 parolees to prison in 2016, according to the report. Such violations “represent no threat to public safety and may simply indicate that a person on parole needs more assistance, or less stringent rules, not more incarceration.”
Renaud’s solution would use recommendations from the Robina Institute of Criminal Law and the Columbia University Justice Lab. One such solution would make available supervision resources immediately after release, a period in which parolees would most likely need support. PPI’s idea would also match conditions to individual parolees, limit the length of parole, and shorten parole terms through good time for compliance.
Compassionate release, covered by Renaud’s seventh recommendation, has remained “plagued by many shortcomings,” primarily the requirement that such releases depended on medical professionals pronouncing candidates having only six to nine months to live. Reluctance by medical personnel to make such exact prognoses would typically result in the default of “it’s safer just to not let this person go.”
Renaud again referred to the Model Penal Code’s concepts on compassionate release and also consulted Mary Price’s 2018 report “Everywhere and nowhere: Compassionate release in the states,” published by Families Against Mandatory Minimums. FAMM recommended limiting the ability of prison officials to overrule a recommendation of release by medical professionals. The report also suggested streamlining of processes to set reachable deadlines so that petitioners would not die before release.
Finally, concerning commutation, Renaud’s eighth idea stated that despite the absence of comprehensive data on granted commutations, “it appears that clemency in general and commutation in particular are used far less than they have been in years past.”
He continued, “Executives should consider using commutation in a broad, sweeping manner to remedy some of the extremes of the punitive turn that led to mass incarceration.” Renaud broadly suggested repeating “the unique strategies of President Gerald Ford, who granted clemency to tens of thousands of men for evading the Vietnam War.”
Renaud concluded, “If states are serious about reversing mass incarceration, they must be willing to leaven retribution with mercy and address the long sentences imposed during more punitive periods in their state’s history.” Whether utilitarian or Utopian, PPI’s list of innovations would bring about profound changes in criminal justice.
