Down on parole: Defense attorney argues for abolishment of parole board

By Jo Mathis
Legal News

Defense attorney Steven Fishman is used to people disagreeing with him on all sorts of things.

But in the 12 years he’s been talking about doing away with Michigan’s Parole Board, nobody has said a negative word.

“I haven’t had anybody — including judges, prosecutors, attorneys general, lawyers not one person disagreed — say it’s a bad idea,” said Fishman. “I think everybody agrees that our system as we presently run it is absurd.”

Fishman  said the problem we have in the state of Michigan is that we allow unelected “bureaucrats” to determine when people get out of jail — a practice that serves the interests of no
one.

“The federal system is much cleaner and simpler,”  said the Detroit attorney.

Defendants convicted in federal court receive a determent sentence which results in X number of months or years.  (The maximum penalty is set by the legislature by statute. The minimum term is set by the judge.)

In most states, including Michigan, the indeterminent sentence could range, for example, from 5 to 10 years.

Under Michigan’s truth in sentencing law, Michigan prisoners must serve at least their minimum sentence. 

Parole boards determine if they need to serve more than that based on their conduct while in prison.

So a man could be convicted of Carrying a Concealed Weapon (CCW). The maximum penalty by statute is five years. The judge gives him two to five.

“The problem is, there’s no incentive for them to behave, because they’re going to do the entire 24 months,” said Fishman.  “And then there’s no guarantee as to when the person’s
going to get out … There’s all kinds of things the Parole Board could decide, because it’s indeterminate sentencing.”

“The parole board has this unfettered discretion, essentially, and nobody votes for the parole board,” said Fishman. “If a conservative governor puts conservative people on there, or a liberal governor puts liberal people on there, these are still unelected bureaucrats who are making these decisions. It seems to me that the legislature of this state ought to take a look at what they do in federal court.”

Fishman said he wouldn’t be a bit happier if the parole board was elected.

“The federal system has been working just fine for a good 20 years,” he said. “We don’t need a Parole Board — elected, appointed, or came from God.”

He said when there is no parole, everyone involved knows exactly how much time will be served from the day of sentencing and the uncertainty is removed.

In April, Michigan’s parole board was reduced from 15 to 10 members under a Snyder executive order aimed at saving about $500,000 a year in salaries and benefits.

“I’m sure all these people on these parole boards are all good people and all well meaning,” Fishman said. “But nobody voted for them and there’s no recourse for what they do. You
can’t challenge their decisions in court.”

About 16 states’ parole boards have either had the parole board abolished or have had their power greatly diminished, according to the Association of Paroling Authorities. 

Parole refers to the term of supervision that occurs once offenders are conditionally released to the community after serving a prison term.

Parolees are subject to being returned to jail or prison for rule violations or other offenses.

When health costs are considered, it costs Michigan about $35,000 a year to house a prisoner.

“I don’t think there’s ever a bad time to talk about reforming the criminal justice system if it’s something that makes a lot of sense — and it makes a lot more sense than what we’re doing
right now,” Fishman said. “I haven’t been able to do anything about it because I’m not elected ... This would be a major undertaking. Only the legislature can do something about this.”

Rep. Mark Meadows, an East Lansing Democrat who chaired the House Judiciary Committee in 2009-10, told the Legal News that determinate sentencing could lower corrections costs dramatically because it takes a while to process inmates out of the system after they serve their minimum sentence.

The Associated Press reports that 8,000 inmates have served more than their minimum sentences, a practice that’s costing Michigan taxpayers around $280 million annually.
It’s likely to take years for the parole board to consider those 8,000 cases, which make up nearly a fifth of the prison population, the AP noted.

Meadows said his conversations with prosecutors and judges have led him to believe that Michigan should consider determinate sentencing, which some states have adopted as a cost-saving measure.

For all but the most serious crimes, determinate sentencing eliminates the need for a parole and probation system that has been suspect in the public’s mind.
Meadows said that the parole system does provide an incentive for good behavior, however.

“What incentive would there be to learn a new skill or get your GED if you don’t have a parole system in place?” he asked.

Despite some struggles in Michigan over the last four years to come up with some comprehensive corrections reform, there is nothing happening legislatively now to change it, Meadows said.

“We need a result the public can buy into,” he said, noting that the current system is a great expense to Michigan taxpayers but does not rehabilitate prisoners into productive members of society.

Peggy Burke, principal of the Center for Effective Public Policy in Silver Spring, Maryland and author of “Abolishing Parole; Why the Emperor has No Clothes,” says there are good reasons to keep parole boards because they make our system of justice even more effective at protecting the community from future crime.

Burke said that while knowing exactly how much time a convict will serve has a certain common sense appeal, it leaves many important considerations in carrying out a criminal sentence unanswered.

Simply knowing or establishing the exact time a convict will serve, for instance, does not address the issue of how to assure that the time a convict does serve has the greatest chance of reducing his likelihood of re-offending when he returns to the community — which 93 percent of them will do.

She explained that parole boards are positioned to track an offender’s progress, create incentives for him or her to participate in risk-reduction programming, and — for those offenders who are at low risk to re-offend — to consider them for release as soon as the “punishment interest” has been served. 

First, the sentencing court is best positioned to determine the facts of the crime and to set the “limits” of punishment someone is expected to serve “at least so much time….or the seriousness of the crime would go unanswered.”

On the other hand, such an offense would not warrant any time served above a certain ceiling, or it would be unfair, and out of proportion for the seriousness of the crime. 

“That is one reason why sentences in many states are expressed in a range,” she said. “At a certain point the convict becomes eligible for parole until a later date when his sentence expires. And in that range the parole board has discretion.

In short,  “knowing exactly how much time the convict will serve” does not assure that the clear goals of community safety and wise use of resources are accomplished.

In 2002, 33 states had sentencing structures where most offenses were governed by indeterminate, rather than determinate sentencing provisions, Burke said, noting that over the last several decades, states have experimented with determinate sentences, revealing its many weaknesses.

She said that while the parole board in Michigan may be unelected, members work directly for the head of the Michigan Department of Corrections who is appointed by the governor, which means there is a line of accountability.
 

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