A few years ago I wrote an essay, titled "Reflecting on Parole's Abolition in the Federal Sentencing System," which in part lamented the federal sentencing system's decision to abolish parole back in 1984. That essay came to mind as I read this new New York Times commentary authored by Ben Austen and Khalil Gibran Muhammad headlined "Let the Punishment Fit the Crime." Here are excerpts:
Senate Bill 2333 would entitle people imprisoned in the state who serve at least 20 years to a parole review. There are 2,500 people who have already spent two decades in prison in Illinois; many thousands more will eventually surpass that mark. Under the proposed law, they wouldn’t be automatically released; a parole board would evaluate them, assessing the risks and benefits of restoring their freedom.
Both of us have visited and studied prisons in other Western countries, where 20-year sentences are considered extreme and are exceptionally rare. In Germany, according to a 2013 Vera Institute of Justice report, fewer than 100 people have prison terms longer than 15 years; in the Netherlands, all but a tiny percentage are sentenced to four years or less. In U.S. prisons, life sentences are routine.
The pending Illinois law, if passed, might lead other states to follow suit, chipping away at one of the many pillars of mass incarceration. The legislation is a hopeful sign of changing sensibilities about people whose transformed lives have meant very little in the machinery of mass punishment.
Parole has a complicated history in this country, one that helps explain how we got into the crisis of mass incarceration and maybe how we might find a way out. When it began in the United States in the 19th century, parole was envisioned as a means of rehabilitating people in prison by encouraging good behavior with the possibility of early release.
By the 1970s, though, parole boards were under attack. Conservatives pointed to rising crime and civil disorder and denounced parole as overly lenient. They said discretionary release invariably sent dangerous people back onto the streets and encouraged more crime, since soft punishments failed as deterrents.
On the other end of the political spectrum, people behind bars were busy protesting prison conditions. They said parole boards lacked transparency and systematically discriminated against petitioners of color. They and their supporters believed that clearly defined fixed prison terms would be less susceptible to a parole board’s bias, racism and indifference, and that as a result these sentences would be shorter. They were wrong.
Sixteen states and the federal government eventually got rid of or severely curtailed their existing parole systems. Other states soon restricted parole eligibility to a small subset of their prison populations. But eliminating and restricting parole turned out to be the first of the sentencing reforms in the country’s punitive turn.
The floodgates opened onto mandatory minimums, truth-in-sentencing, three strikes and you’re out. More people were sentenced to prison, and the fixed terms grew longer and longer. The number of people in state and federal prisons ballooned to a peak of 1.6 million in 2009 from 200,000 in the 1970s. The numbers have fallen moderately since.
A large body of evidence has documented the destruction caused by long prison terms. Not only are people over 50 the fastest-growing segment in U.S. prisons, but they are also exposed to ever-greater mental and physical health risks with each passing year — a crisis made even more apparent during the Covid-19 pandemic.
One of us was a contributor to a 2014 National Research Council report on the creation and consequences of mass incarceration. The report recommends a return to a principle of parsimony, the sensible idea that a punishment should be only as severe as is required to prevent future offending. Too much punishment, the report noted, can have the opposite effect, when “justice institutions lose legitimacy.”
Many legal scholars and criminologists now agree that whatever prisons are supposed to accomplish — whether it’s incapacitation, accountability, rehabilitation or deterrence — it can be achieved within two decades. The nonprofit Sentencing Project argues that the United States should follow the lead of other countries and cap prison terms at 20 years, barring exceptional circumstances. The Model Penal Code of the American Law Institute, a century-old organization led by judges, law professors and legal experts, proposes reviewing long sentences for resentencing or release after 15 years.
In Virginia, there’s also a movement to reinstate parole eligibility. A bill in New York State would grant those 55 and older who have served at least 15 years the right to a hearing. Expanding parole consideration in Illinois and elsewhere won’t be enough to roll back the destructive effects of mass incarceration. But it would be an important step in continuing efforts to reduce prison numbers, and it could usher in other necessary changes.
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