This article focuses on jurisdictions that have sentencing guidelines for judges on the “front end” of the punishment process but have also retained discretionary parole systems for the release of prisoners on the “back end.” As of this writing, there are eleven sentencing guidelines jurisdictions that have abolished discretionary parole. The remaining eight jurisdictions – Alabama, Arkansas, Maryland, Massachusetts, Michigan, Pennsylvania, Tennessee, and Utah – have retained discretionary parole release for most or all offenders serving felony sentences.
Background: The Relationship Between Sentencing Guidelines and Parole
At one time in the United States, most jurisdictions had discretionary parole release. In 1976, Maine was the first state to abolish parole, followed by Illinois in 1978 and Minnesota in 1982.1 As of 2017, 16 states have abolished discretionary release.2 Parole abolition was part of a movement towards “determinate” (fixed term) sentencing wherein policymakers focused on greater predictability in punishment.3 In the early 1980s, those who favored parole abolition argued that American prisons were not capable of rehabilitating prisoners and that board decisions were arbitrary and not based on indicia of rehabilitation.4 At the same time, the goal of incarceration shifted from rehabilitation to punishment.5 Parole release, which had often been viewed as a safety valve against expansion of prisons, was also critiqued as ineffective (in part because some Boards rarely released prisoners).6
During the same period (beginning in the mid-1970’s) many states formed sentencing commissions; most of those commissions promulgated sentencing guidelines (see Timelines of Commissions and Guidelines). Sentencing guidelines created a systematic way to sentence similarly situated defendants based on offense severity and criminal history. Goals of the guidelines included setting rational and consistent standards, increasing proportionality and uniformity, and ensuring public safety (see What are Sentencing Guidelines? and Why Have U.S. State and Federal Jurisdictions Enacted Sentencing Guidelines? ).
Table 1. Sentencing Guidelines and Parole in U.S. Jurisdictions
In some jurisdictions, adopting sentencing guidelines and abolishing parole went hand in hand. For example, Virginia’s 1994 crime bill abolished parole and created voluntary felony sentencing guidelines to address problems with violent crime and sentencing disparities. This reform was also designed to redirect non-violent offenders away from prisons. Under the new sentencing regime, Virginia’s offenders serve about 90% of their sentence, and guidelines sentence lengths are designed to be similar to the incarceration periods most offenders served when the state utilized parole release. Virginia policymakers claim that this shift (along with a national drop in crime rates) allowed them to curb their prison population and better meet several other correctional goals.7
The latest version of the Model Penal Code on sentencing has also taken the position that in an ideal guidelines-based system, parole should be abolished. This is based on a “preference for a determinate sentencing system over a system in which parole boards hold substantial authority to set actual lengths of prison terms.”8 The authors give several reasons for this decision, including that the judiciary is better positioned to determine a proportionate sentence, that parole systems offer prisoners few procedural protections and offer little transparency in decision-making, that boards are too susceptible to political pressure, and that they have contributed to prison growth.9
However, in the eight jurisdictions (shown in upper left cell of Table 1), sentencing guidelines and discretionary parole release still operate simultaneously. In some of the jurisdictions, this means that both the sentencing judge on the “front end” and the parole board on the “back end” of the punishment process follow guidelines that help to determine the length of the sentence. In other states, there may be sentencing guidelines for judges at the “front end,” but no guidance for the parole board’s release decision on the “back end.”
A More Detailed Look at Indeterminate Sentencing in Guidelines States
As Table 2 shows, there is variation among the eight jurisdictions that have both sentencing guidelines and discretionary parole release. Five states have purely advisory sentencing guidelines, two have mandatory guidelines, and Alabama has both (for more details, see Varying Binding Effects of Guidelines).
In many states, judges use the guidelines to set the maximum term of sentence. The minimum term that must be served before the individual is eligible for release is then set either by statute or by the parole board. In some states, however, the guidelines also dictate the relationship between the minimum and maximum term. For example, in Arkansas, for cases in which the guidelines apply, judges consult the sentencing grid to set the maximum term. The same grid establishes whether the minimum term that must be served before eligibility for parole will be 50% of the maximum term or some lesser percentage based upon the severity of the offense.10 In Massachusetts, judges who choose to follow the advisory guidelines must set the minimum term at 2/3 of the maximum.11
In Michigan and Pennsylvania, judges instead use the guidelines to set the minimum term. In Michigan, the maximum term is always the statutory maximum for first-time offenses but may vary for repeat offenses.12 In Pennsylvania, the law requires that the maximum be no more than twice the minimum, and in practice, the maximum term is always double the minimum term.13
Utah takes an entirely unique approach. The guidelines serve to guide the sentencing judge on the disposition (i.e. prison versus probation), but if the judge pronounces a prison disposition, the pronounced length of incarceration will equal the indeterminate range defined in statute (e.g., for a second-degree felony, the law provides for a sentence of 1 to 15 years) rather than the term stated on the grid.14 The duration on the grid, which falls within the statutory range, merely represents the typical time served for that offense, and serves as a recommended duration for the Board of Pardons and Parole.15
Four states currently have parole guidelines in addition to sentencing guidelines. These guidelines inform when the inmates who have become eligible for release are actually allowed back into the community. In Michigan, the guidelines are set by the Department of Corrections and the Board may not depart from them except for substantial and compelling reasons, stated in writing.16 As noted above, in Utah the sentencing guidelines provide direction for both the sentencing court and the parole board. The Board is “encouraged” to comply with the guidelines, which set forth the typical time served based on the seriousness of the offense and the criminal history of the offender.17 In Alabama and Maryland, the guidelines are developed by the parole board. In Alabama, the guidelines are in a preliminary phase of development, and are merely one of many factors the parole board can use in determining release.18 In Maryland, the parole guidelines take into account the current sentence and the inmate’s risk level; they are also advisory.19 Pennsylvania’s sentencing commission is mandated to produce parole guidelines but has not yet done so. If developed, they would be advisory.20
Table 2. Sentencing and Release Guidelines in U.S. Jurisdictions
|State||Binding Effect of Guidelines||How Trial Court Uses Sentencing Guidelines21||Release Authority of Parole Board||Parole Guidelines||Binding Effect of Parole Guidelines|
||Judge uses guidelines to set term of years (max. term) and disposition23
||Release possible after 33% of term or 10 yrs. served, whichever is less24
||Yes; in development by the Board25
|AR||Advisory||Judge uses guidelines to set disposition and term of years (max. term), offense severity dictates min. term26||Release possible after ⅓ term served27
|MD||Advisory||Judge uses guidelines to set term of years (max. term). Disposition determined by guidelines or by length of imposed sentence28
||Release possible after ¼ term served29
||Yes; created by Board30
|MA||Advisory||Judge sets max. term and disposition under guidelines, min. term set automatically at 2/3 of max31
||Release possible after min. or ½ of max. term served, depending on place of incarceration32
|MI||Mandatory||On first conviction, judge uses guidelines to set min. term; statute sets max term. On subsequent conviction, judge may set the max. term. Disposition under guidelines based on imposed sentence length33
||Release possible after min. term served34||Yes; created by Dept. of Corrections35
|PA||Mandatory||Judge sets min. term and disposition using guidelines, max. term is 2x minimum36||Release possible after min. term served37||Yes, mandated for Board (but have not been developed)38
||(Advisory when developed)|
|TN||Advisory||Judge sets term of years (max. term) using guidelines39
||Release possible after ½ term served40
|UT||Advisory||Judge sets disposition using guidelines; if disposition is prison, min. and max. term set by statute41
||Release possible after min. term served42
||Yes; created by sentencing commission43
States that have both sentencing guidelines and discretionary parole release have unique challenges because there is more than one decision maker in the sentencing process. In some of the states, parole release guidelines may ensure that there is some systematic thought concerning discretionary release on the “back end” of the sentence. In these states, policymakers shape sentencing by encouraging the judiciary and the parole board follow set decision-making processes. In other states, sentencing guidelines advise judges on the “front end” as to the length and disposition of the sentence but the parole board does not have internal or external guidelines on when to grant release on the “back end,” which can potentially (but not certainly) leading to difficulties in meeting broad sentencing policy goals.
- 1. U.S. Dep’t of Just., 1996 National Survey of State Sentencing Structures, 15 (1996) https://www.ncjrs.gov/pdffiles/169270.pdf.
- 2. Andres F. Rengifo & Don Stemen, The Unintended Effects of Penal Reform, 61 Crime & Delinquency 719–41, 736 (2012), http://journals.sagepub.com/doi/pdf/10.1177/0011128712443218. Note also that Colorado, Connecticut, and Mississippi abolished discretionary parole and then reinstated it.
- 3. Kevin R. Reitz, Don’t Blame Determinacy: U.S. Incarceration Growth Has Been Driven by Other Forces, 84 Tex. L. Rev. 1787-1802 (2006).
- 4. Thomas B. Marvell & Carlisle E. Moody, Determinate Sentencing and Abolishing Parole: The Long-Term Impacts on Prisons and Crime, 34 Criminology 107-128 (1996).
- 5. Joan Petersilia & Kevin R. Reitz, Introduction, Oxford Handbook of Sentencing and Corrections 3 (2012).
- 6. Reitz, supra note 3.
- 7. Dean Hickman, Senate of Va. Fin. Comm., Parole Abolition and Sentencing Reform: A 20-Year Retrospective (Aug. 2015), https://parolecommission.virginia.gov/resources/august-27/parole-abolition-and-sentencing-reform-presentation.pdf.
- 8. Model Penal Code §§ 6.06(5), 6.06 cmt. a (Am. Law Inst., Proposed Final Draft Apr. 2017).
- 9. Id.
- 10. Ark. Code Ann. § 5-4-401 (2017); Ark. Sentencing Standards Grid Offense Seriousness Rankings & Related Material 3 (Oct. 2015) (describing the Transfer Eligibility Line which demarcates what fraction of a sentence must be served).
- 11. Mass. Gen. Laws ch. 279, § 24 (2017); Mass. Sentencing Guidelines 9 (1998).
- 12. Mich. Comp. Laws. §§ 769.8—769.11 (2018); Mich. Sentencing Guidelines Manual Steps I-III (May 1, 2016).
- 13. 42 Pa. Cons. Stat. § 9756 (2017); 204 Pa. Cons. Stat. §§ 303.2, 303.9(g) (2017); Penn. Comm’n on Sentencing, Sentencing Guidelines Implementation Manual (7th Ed. 2012).
- 14. Utah Code Ann. § 76-3-203 (West 2017).
- 15. Utah Adult Sentencing & Release Guidelines at 5 (2017).
- 16. Mich. Comp. Laws § 791.233e (2018).
- 17. Utah Sentencing Comm’n, 2016 Adult Sentencing Guidelines (2016), https://justice.utah.gov/Sentencing/Guidelines/Adult/2016 Adult Sentencing Guidelines.pdf.
- 18. Ala. Bd. Pardons & Paroles, Parole Guidelines Released for Public Comment 12-17-15 (effective Jan. 30, 2016), http://pardons.state.al.us/PDFs/PHASE_I_PAROLE_GUIDELINES_12-17-15_for_Public_Comment.pdf.
- 19. Correspondence with Ruth Ogle, Md. Parole Comm’n Program Manager (May 10, 2017); Md. Parole Comm’n, Policy: Departmental Risk Assessment (July 1, 2010).
- 20. See 42 Pa. Cons. Stat. § 2154.5 (2017).
- 21. Note that in states with advisory sentencing guidelines, judges are not obligated to impose a sentence per the guidelines and may impose any sentence that is legal under the state’s criminal statutes.
- 22. In Alabama, guidelines are mandatory for violent crimes.
- 23. Ala. Code § 13A-5-6 (2018); Ala. Presumptive & Voluntary Sentencing Standards Manual at 32-34, 41-47, 55-63, 71-80 (2016).
- 24. Ala. Bd. Pardons & Paroles, Rules, Regulations and Procedures art. 1(3), (4).
- 25. Ala. Code § 15-22-26 (2018).
- 26. Ark. Code Ann. § 5-4-401 (2017); Ark. Sentencing Standards Grid Offense Seriousness Rankings & Related Material (Oct. 2015).
- 27. Ark. Code Ann. §§ 16-93-615(b)(1), 16-93-620(a) (2017).
- 28. See, e.g., Md. State Comm’n on Criminal Sent’g Pol., Maryland Sentencing Guidelines Manual ver. 8.2 (Nov. 2016), http://www.msccsp.org/Files/Guidelines/MSGM/guidelinesmanual.pdf. Under Md. Code Ann., Corr. Servs. § 9-105, the court can impose a jail (rather than prison) sentence if the sentence is under 18 months in length Under § 9-104, the court can impose a prison sentence if the sentence is over 12 months in length.
- 29. Md. Code Ann., Corr. Servs. § 7-301(a). Inmates may also be released earlier in certain circumstances.
- 30. Interview with David Blumberg, Chair, Md. Parole Comm’n (Apr. 25, 2017).
- 31. Mass. Gen. Laws ch. 279, § 24 (2017); Mass. Sentencing Guidelines 9 (1998).
- 32. Mass. Gen. Laws ch. 127, § 133 (2017); 120 Mass. Code Regs. 200.02 (2012). If sentenced to state prison, inmates are eligible after serving a minimum sentence. If sentenced to a house of correction, inmates are eligible after serving ½ of the maximum term or two years, whichever is shorter.
- 33. Mich. Comp. Laws. §§ 769.8–769.11 (2018); Mich. Sentencing Guidelines Manual Steps I-III (May 1, 2016). Under § 769.8, the judge must set a minimum term on a first felony offense and the maximum term is the statutory maximum for the crime. Under § 769.10, the judge may set a maximum term of imprisonment of up to 1.5 times the longest term prescribed for a first conviction or for a lesser term.
- 34. Mich. Comp. Laws § 791.234 (2018).
- 35. Mich. Comp. Laws § 791.233e (2018).
- 36. 42 Pa. Cons. Stat. § 9756 (2017); 204 P.A. Admin. Code §§ 303.2, 303.9(g); Penn. Comm’n on Sentencing, Sentencing Guidelines Implementation Manual (7th Ed. 2012).
- 37. See, e.g., Commonwealth v. Ulbrick, 341 A.2d 68 (Pa. Super. 1975).
- 38. Pa. Bd. Prob. & Parole, Parole Decisional Instrument (2012), http://www.pbpp.pa.gov/Understanding Parole/Documents/PDI 361 09-2014.pdf. Under 42 Pa. Cons. Stat. § 2154.5, the Pennsylvania Commission on Sentencing is mandated to create parole release guidelines but as of this writing they are not in use.
- 39. Tenn. Code Ann. §§ 40-35-210—211 (2017).
- 40. Tenn. Code Ann. § 40-28-115(b)(1) (2017). Note that offenders must serve no less than one year before release.
- 41. Utah Code Ann. § 77-18-4 (West 2017); Utah Adult Sentencing & Release Guidelines at 26 (2017).
- 42. Utah Code Ann. § 77-27-9 (West 2017). Note that the Board can release a parolee earlier than the minimum date if it finds mitigating circumstances which justify this.
- 43. Utah Bd. Pardons & Parole, FAQ: Hearings: What is the Guideline/Matrix Score (2018), http://bop.utah.gov/index.php/faq-top-public-menu (click “FAQ,” “Hearings”).