Why Granting Parole Helps Us Stay Tough on Crime

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>Massachusetts governor Deval Patrick recently secured the resignation of the executive director and five members of the seven member Massachusetts parole board, including its chair, after paroled career criminal Domenic Cinelli killed veteran police officer Jack Maguire during a botched robbery attempt in late December 2010. Not surprisingly the murder of a police officer by a parolee sparked widespread outrage and demands for drastic parole reforms, including an immediate suspension of parole hearings. After a subsequent inquiry found serious mistakes in the conduct of Cinelli's hearing and a serious failure of supervision when he was released, Patrick's shake-up of the agency, which was met with the surprised approval of his conservative critics and the dismay of liberal criminal justice advocates, seemed inevitable. When you hold a high-stakes, high-profile job, you should probably not expect political forgiveness for a series of fatal or near fatal mistakes -- unless you're a prosecutor.

Prosecutorial misconduct is a familiar if not common occurrence that results in the imprisonment of innocent people, the failure even to arrest the guilty, or lenient sentences for offenders when prosecutors are caught engaging in misconduct and enter into plea bargains to avoid exposure. (I wrote about it here some 10 years ago.) Yet, prosecutors continue to "commit misconduct with impunity," as Kathleen Ridolfi, Director of the Northern California Innocence Project remarked to USA Today, which published an extensive investigation of misconduct last year.

Reviewing federal cases, USA Today found 201 instances of prosecutorial misconduct confirmed by federal courts (in about a ten year period). In a study of the California justice system, the Northern California Innocence Project found over 700 cases (during a 10 year period) in which "courts explicitly found that prosecutors committed misconduct." Usually they get away with it (and some are repeat offenders), according to the Innocence Project report: The California state bar disciplined only a tiny fraction of prosecutors found by courts to have engaged in misconduct.

The prevalence of wrongful convictions, resulting from a range of systemic inequities including misconduct, isn't news to defense attorneys and shouldn't be news to the public, given widely publicized cases involving the post conviction exonerations of people who've been wrongly imprisoned and in some cases sentenced to die. (According to the Innocence Project, 17 people exonerated by DNA evidence had received death sentences; on average, exonerees served 13 year prison sentences before being released.)

Exposing abuses in the administration of the death penalty has helped deter its practice: In Illinois, which declared a moratorium on capital punishment in 2000, the legislature has voted to repeal the state's death penalty. Even in Texas, the number of death sentences has declined. (Texas probably executed an innocent man in 2004, as David Grann famously demonstrated in The New Yorker.) But in less dramatic cases, including those involving lengthy, wrongful imprisonments, prosecutorial misconduct is often tolerated, if not trivialized, as its persistence shows. The wrongful imprisonment of innocent people and ruination of innocent lives resulting from intentional government misconduct simply does not arouse the outrage and demands for reform that follow a fateful parole decision, resulting from unintentional mistakes.

In fact, the call for harsher penal laws sparked by a mistaken grant of parole can exacerbate the problem of misconduct by increasing the generally unaccountable, discretionary power of prosecutors through mandatory sentencing schemes, which (as I've noted here) effectively consolidate charging and sentencing authority in the prosecutor's office. In Massachusetts, police and some legislators are pressing for passage of an emotionally charged law (named for murder victim, Melissa Gosule) that would impose mandatory maximum penalties on many third time felony offenders, eliminating opportunities for parole.

But three strikes laws, popularized in the 1990s, are more reliably effective in increasing prison overcrowding than reducing violent crime (outside prison), and in an apparent effort to stave off passage of "Melissa's Law," Governor Patrick has proposed a compromise bill that would increase sentences for some repeat felons and limit but not abolish parole for them: Most offenders will be released eventually if only for a lack of resources to imprison all of them forever. Parole provides at least hope of supervising and easing their re-entry. Patrick calls his proposal a more "sensible," and smarter approach to crime control, although it may be less sensible than no proposal to increase already stiff sentences for felonies and impose new limits on parole, which parole board members will be more fearful of granting anyway, after the Cinelli fiasco. And, the Governor's bill obviously lacks the visceral appeal of a harsher law named for a young female homicide victim.

If only people were consistent in their mistrust of government: Parole board members are not to be trusted with discretion in granting parole, and judges are not to be trusted with discretion in sentencing convicted defendants; but prosecutors are invariably trusted with significantly increased discretion, despite their track records of abusing it. The illogic of popular, putatively tough anti-crime strategies has long frustrated death penalty opponents and other criminal justice reformers: People who tend not to trust the government with its civil, regulatory power, notably over business or health care, will trust it enthusiastically with awesome, inadequately checked prosecutorial power. They trust that it will prosecute and occasionally execute other people, (only very bad and guilty people) with consistent accuracy and fairness, despite all evidence to the contrary.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional, and a past recipient of a Guggenheim Fellowship. More

Wendy Kaminer is a lawyer and social critic who has been a contributing editor of The Atlantic since 1991. She writes about law, liberty, feminism, religion and popular culture and has written eight books, including Worst InstinctsFree for All; Sleeping with Extra-Terrestrials; and I'm Dysfunctional, You're Dysfunctional. Kaminer worked as a staff attorney in the New York Legal Aid Society and in the New York City Mayor's Office and was awarded a Guggenheim Fellowship in 1993. She is a renowned contrarian who has tackled the issues of censorship and pornography, feminism, pop psychology, gender roles and identities, crime and the criminal-justice system, and gun control. Her articles and reviews have appeared in The Atlantic, The New York Times, The Wall Street Journal, Newsweek, The American Prospect, Dissent, The Nation, The Wilson Quarterly, Free Inquiry, and spiked-online.com. Her commentaries have aired on National Public Radio. She serves on the board of the Bill of Rights Defense Committee, the advisory boards of the Foundation for Individual Rights in Education and the Secular Coalition for America, and is a member of the Massachusetts State Advisory Committee to the U.S. Civil Rights Commission.

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