4 Parole and the Indeterminate Sentence

Transportation of Laborers to America Early seventeenth century, shortage of labor in colonial America led to the transporting of indentured poor, delinquents, and criminals Contractor was given “property in service” over prisoners Upon arrival in America, contracts sold to highest bidder Felons became indentured servants

Maconochie & Norfolk Island Parole, from the French parol, referring to “word of honor” Alexander Maconochie (1840) Superintendent of British penal colony in Australia Had a philosophy based on reforming the criminal

Maconochie & Norfolk Island Punished for the past and trained for the future Advocated sentences that were open ended or indeterminate Established a system of marks to be earned by the inmate based on good behavior Inmates passed through three stages on the way to release

Crofton and the Irish System Maconochie Criticized for being too lenient with offenders Influenced Walter Crofton

Crofton and the Irish System The Irish System consisted of four stages First stage involved solitary confinement for 9 months Second stage places the convict in a special prison to work with other inmates and earn marks to qualify for a transfer to the third stage

Crofton and the Irish System The Irish System consisted of four stages Stage three involved transportation to an open institution where the convict could earn release by showing signs of reformation Stage four allowed ticket-of-leave men to be conditionally released to supervision in community

Crofton and the Irish System The work of Maconochie and Crofton influenced the establishment of parole in the United States

Elmira Reformatory Elmira Reformatory (1876) Zebulon Brockway – superintendent Goal was to reform the inmate The inmate would enter Elmira in the second grade After six months of good behavior, the inmate would be placed in first grade

Elmira Reformatory Continued good behavior would mean a release - America’s first parole system Misbehavior could result in falling back to third grade The Elmira system included military-style uniforms, marching, and discipline

Early Use of Indeterminate Sentence and Parole By 1944, all 48 states had enacted parole legislation The Great Depression caused the expanded use of parole Economic conditions led to the popularity of parole

Auburn System Opened in 1819 Inmates divided into three classes Most difficult inmates were placed in solitary Less dangerous inmates spent part of the day in solitude and worked in groups the rest of the time Least guilty worked together during the day and separated only at night

Auburn System Believed that complete isolation was inhumane, unnatural, and cruel State provided all food, clothing, supplies, and materials to the prisoners Auburn became the prototype for American prisons This system successfully exploited inmate labor

Auburn System Made prisons self-supporting institutions and profitable enterprises Contract system Convict labor was sold to private entrepreneurs who provided necessary equipment and, in some cases, supervisory staff

Auburn System Contract system remained widespread until the Great Depression Hawes-Cooper Act (1929) Ashurst-Sumners Act (1935) Whitfield v Ohio (1936) - upheld the constitutionality of the Acts

Auburn System Curtailing of convict labor had two long-range effects: It increased the cost of imprisonment and encouraged the development of parole Forced prison officials to find other ways to deal with prisoner idleness by initiating programs to train and educate inmates

Positivism Positivism reemerges California reorganized its prison system toward the end of WW II System was organized not for punishment but around rehabilitation Used behavioral sciences to correct criminal behavior Not a prison but a correctional institution

Medical Model of Corrections Views criminals as sick and in need of rehabilitation The post-conviction process: Examination = PSI Diagnosis = Classification Treatment = Correctional program

Medical Model of Corrections Effects of a treatment program reviewed by the parole board Determine whether offender is sufficiently rehabilitated to be discharged from the correctional institution

Medical Model of Corrections Medical Model based on two assumptions Criminals are “sick” and can benefit from treatment The behavioral sciences can provide the treatment

Medical Model of Corrections New superintendents with extensive education in the behavioral sciences Problems encountered by the corrections approach were compounded by differences between corrections officers and the treaters The rhetoric did not match the reality

Attica Prison Uprising Racial makeup of prisons changed dramatically during the 1960s Radical political movements on the outside began top impact correctional institutions The inmate uprising at Attica in 1971 led to a concerted attack on the corrections model and the indeterminate sentence

Alternative Models Justice model Recommends a return to flat time and determinate sentences Limits sentencing discretion Eliminates parole boards

Alternative Models Just Deserts Indeterminacy and parole would be replaced Punishment should fit the crime Specific penalty for a specific offense

Alternative Models Presumptive sentencing First offenders receive presumptive sentence Succeeding convictions means an increase in presumptive sentence These proposals aimed at limiting judicial discretion, eliminating indeterminate sentencing, abolishing parole boards

Alternative Models Political left Political right Concern over discretion Excessive disparity Political right Concern about leniency Parole boards too eager to release inmates

Alternative Models Truth-in-sentencing Requires people convicted of violent crimes to serve at least 85 percent of their sentences Eliminates release discretion Eliminates “good time” Uses threat of additional punishment as incentive to behave

Indeterminate Versus Determinate Sentencing Indeterminate sentencing Offers a minimum and maximum length Parole board determines the actual release Good time Persons convicted of similar crimes could receive different sentences Argued that this created gross sentencing disparity

Indeterminate Versus Determinate Sentencing Determinate sentence Definite sentence/no discretion Specific sentence for each offense Definite sentence/wide discretion Range of sentences but is definite Presumptive/narrow discretion Takes into account aggravating and mitigating circumstances

Indeterminate Versus Determinate Sentencing Determinate sentence Presumptive/wide discretion Judge may change the sentence by significantly fixed amounts

Indeterminate Versus Determinate Sentencing Cunningham v. California (2007) SC found presumptive sentence used in California unconstitutional Fact finding process used for sentencing decision should be duty of jury not judge

Determinate Sentences, Prosecutorial Discretion and Disparate Justice Determinate Sentencing Usually include provision for good time, ranging from 15 to 50% off sentence Split sentencing used in place of parole in several states Prosecutorial discretion increases the ability to engage in plea bargaining

The “Why?” of Parole Used as a mechanism for maintaining discipline and reducing prison overcrowding Before parole boards, governors used pardons to reduce overcrowding

The “Why?” of Parole When prisons exceeded capacity, parole boards lowered the threshold of eligible inmates Parole is understood as risk management

Key Terms Auburn/New York system Indentured servant Irish System Ticket of leave Reformatory Indeterminate sentence Determinate sentence Presumptive sentence

Key Terms Plea bargain Total institution Pennsylvania system Justice model Just deserts Medical model Contract system Truth in sentencing

Key Terms Inmate labor Parole board Positivism Courtroom workgroup Split sentencing