By Maya Schenwar
t r u t h o u t | Special Report
Wednesday 28 November 2007
For federal prisoners, the prospect of early release expired in 1987. As prisons bulge and recidivism persists, why is the parole ban still in place?
In 1982, when George Martorano pled guilty to charges of marijuana possession and drug conspiracy, he was expecting ten years in prison, at most.
Today, after 24 years, Martorano holds the honor of longest-serving nonviolent first-time offender in the history of the United States. He's all too ready to forfeit that mark of distinction, but if his sentence plays out as issued, he'll be looking at several decades more: Martorano is serving a life sentence for three years of transporting and selling marijuana. Despite his spotless prison record - not to mention his suicide-prevention volunteer work, his yoga practice and the 20 books he's written while incarcerated - he has no hope of being released.
Martorano is just one of almost 200,000 inmates in federal prison, many of whom have no chance for early release, thanks to the Sentencing Reform Act of 1984, which abolished parole at the federal level. The toughening of prison legislation over the past 20 years has also meant longer sentences for nonviolent offenders, combining with the parole ban to prompt a sharp increase in the federal prison population. As it stands, the beefed-up federal prison system costs taxpayers $40,000 per year for every inmate, and it costs inmates whole decades of their lives.
"We're being warehoused," Martorano said in a phone interview. "It's taken a million dollars just to keep me in."
Since the parole ban took effect, the federal prison population has more than quadrupled, according to Bureau of Justice statistics.
In the past few years, the sentencing system has been slowly changing in other ways. For example, the US Sentencing Commission recently shortened its recommended sentences for crack cocaine offenses, and Congress has shown signs that it will consider bills addressing the disparity between penalties for crack and powder cocaine. The Supreme Court is deliberating whether judges should be able to grant sentences that dip below established guidelines for sentence lengths.
However, Congress has taken no steps toward reversing course on federal parole. Although a bill to revive parole for federal prisoners has been introduced repeatedly in the House over the past few years, it has never made it to the floor for a vote. And an official at the US Sentencing Commission, who asked not to be identified, said he was not aware of any impetus that would bring back parole anytime soon.
As the prison population continues to explode, many influential voices in Congress and the public sphere are still touting a hardline philosophy when it comes to criminal justice, according to Representative Danny Davis (D-Illinois), who has sponsored the federal parole reinstatement bill for the last two Congresses.
"People don't want to be characterized as being 'soft on crime,'" Davis said in an interview. "They are still afraid that characterization will follow them. You would think that a country that is supposed to be as progressive as ours would've recognized that this approach is not working."
Toward Sentencing "Truth"
In the 1980s, when the movement to abolish parole swept across state sentencing systems and reached the federal government, "tough on crime" was the mantra of the day. The federal parole ban, part of a broad Sentencing Reform Act, which also lengthened and standardized prison sentences, passed in 1984 and was enacted in 1987. It represented one step in a movement toward "truth in sentencing": Abolishing parole was intended to ensure that judges - and the families of victims - would know how much time defendants would actually be serving.
"Truth in sentencing" eliminated the authority of a third party, the Parole Board, which could substantially alter a sentence after the judge was out of the picture. A paroled prisoner might serve as little as one-sixth of his or her sentence. After the ban, a prisoner could only earn "good time," a subtraction of no more than 54 days a year.
At the time it passed, the parole ban seemed something of a panacea: It fulfilled the goals of not only the "tough on crime" crowd, but also of a group of Democrats pushing for "fairness in sentencing." They hoped the abolition of parole, along with clarified guidelines for sentence lengths, would help to overcome the justice system's glaring racial disparities in sentences.
The act passed, garnering little attention. No public hearings were held before it was debated.
Supreme Court Justice Stephen Breyer, who served on the US Sentencing Commission prior to his court appointment and, before that, participated in the shaping of the 1984 law, described the act as promoting "greater honesty in sentencing."
"Under previous law the Parole Commission determined (within broad limits) how much time an offender would actually serve," Breyer said in a speech at the University of Nebraska College of Law in 1998, of the thought process that went into the crafting of the legislation. "A judge might sentence an offender to 12 years, but the Parole Commission might release the offender after four. No one - not offender, judge or public - could say in advance what a 12-year sentence really meant."
Without parole, Breyer explained, he and the other crafters had hoped the sentencing system would be "transparent, more candid, than before."
However, when the new guidelines were enforced, some began to question whether the power to discriminate was simply being shifted from the Parole Commission to the prosecutors, according to Nora Callahan, executive director of the November Coalition, a nonprofit organization working for drug sentencing reform.
The prisoners getting the longest sentences, Callahan said, were not necessarily the ones who had committed the most egregious crimes. They were often the ones who didn't know much about judicial system, since they had less money, less education and less access to legal aid.
Take Danielle Metz, a nonviolent first offender and mother of two, who was sentenced to three life sentences plus 20 years for helping her husband distribute cocaine. She pled innocent despite evidence of her guilt. Later, she discovered her public defender was primarily a traffic lawyer.
"When you lack knowledge of the law, they can do whatever they want to you," Metz said in a phone interview. "No one explained to me what was going on until it was too late."
Soon, thousands of cases like Metz's were cropping up: nonviolent first offenders sentenced to life in prison, without a hope of early release.
Another such prisoner, David Correa, who was incarcerated 18 years ago for transporting 495 grams of powder cocaine, pointed to the way the strict-guideline sentencing system can still trip up defendants in court, depending on which aspects of their crimes are highlighted and which legal moves they choose.
"Because I really had nothing to offer the prosecutor, because I took my case to trial, because in order for me to take a plea deal I had to say I was guilty of gun charges that I never had, and because I had to give names that I didn't have either, I am now doing a life sentence," Correa wrote in a letter to me.
Parole Forgotten
Once the parole ban was in place, though, it did not budge. Most people - outside of prisoners and their families - had no idea it had happened, noted parole activist John Flahive, who was first clued in when he accidentally received a wrong-number call from a prisoner: George Martorano.
The two began chatting on a regular basis, and Flahive began to lobby in Washington to bring back parole.
"As I got more involved, I found out there were thousands like Georgie," Flahive said, noting that about 60 percent of federal inmates are currently incarcerated for nonviolent crimes.
In 2002, the first bill to revive parole, introduced by Rep. Patsy Mink, made its way to the House - and died in committee when Mink died of chicken pox and pneumonia. Since then, Davis has proposed the bill twice. Both times, it died in the Judiciary Committee, then headed by Rep. James Sensenbrenner, who has consistently voted to toughen sentences, maintain the death penalty and reduce opportunities for appeals.
With a Democratic majority now in Congress, parole advocates hope for a victory sometime soon. However, a restoration of parole in the near future would be surprising, according to Mark Bransky of the Federal Parole Board, which remains in operation for prisoners sentenced prior to 1987, some of whom are still eligible for parole.
"Things tend to go in cycles, so I'm not sure," Bransky said. "But for now, there doesn't seem to be much unhappiness in Congress with the new system."
Jeralyn Merritt, a Denver criminal defense attorney and drug law analyst, concurred, adding that lobbying for an increase in "good time" might be the only route for earlier release.
"Federal parole won't be instated as long as we have these guidelines," Merritt said. "They're not looking at changing these guidelines."
However, unlike in the Reagan era, the parole ban is not riding on the wave of "tough on crime" fever. Public sentiment has softened to a certain extent, and, according to Callahan, most of the liberal advocates of parole abolition have long since changed their stance.
In a 2003 Dan Jones survey in Utah, widely held to be the most conservative state in the nation, almost two-thirds of respondents favored the return of parole - once they were informed it had been banned.
"It's something a lot of people don't think about until it personally touches them," Davis said.
Parole may not be a highly contentious issue; it's just an invisible one.
No More Carrots
Despite lawmakers' original rationale of the parole ban as a "tough on crime" measure, it has hit the lives of nonviolent offenders much harder than it has hit crime, according to Callahan. Although prisoners now do more time, she said, without a tangible motivation to "do good," they may actually be less likely to change their ways.
"In 1987, all the incentives for corrections to work in a rehabilitative way were taken away," Callahan said. "This affects violent crime, because so many people are getting out with nothing but bitterness."
According to FBI statistics, violent crime increased steadily in the five years after the parole ban was established.
Callahan also links prisoners' decreased motivation to rehabilitate to recidivism.
One element of the logic behind the parole ban was "many prisoners released on parole were committing new crimes," Bransky said.
Yet ex-prisoners were significantly more likely to be rearrested in 1994 than in 1983, according to the Federal Bureau of Justice Statistics.
Since 1987, the atmosphere within prison walls has changed, too, according to Martorano, who has witnessed life in multiple federal prisons firsthand since the parole ban kicked in.
"The institutions were much less violent [before 1987], because there was a light," he said. "If you've got ten life sentences, with no chance of parole, there's no carrot."
Lack of parole also makes life tougher for prison guards, according to Alan J. Williams, a former prisoner who is now chair of the Delaware branch of the advocacy organization, Citizens United for Rehabilitation of Errants, Federal Prison Chapter (FedCURE). Without the incentive of getting out on good behavior, there's no substantive reason to treat guards well. Additionally, no chance of early release breeds anger toward the prison system, which often takes the form of violence, according to Williams.
Williams also pointed to the frustration-provoking divide between prisoners sentenced prior to 1987, many of whom still eligible for parole, and prisoners sentenced after the ban kicked in - a rift that triggers fights among inmates.
"We've been going about this the wrong way, emphasizing incarceration rather than rehabilitation," Davis said. "We're not reducing crime or recidivism. Since that's not the case, why do we continue to follow a flawed policy?"
Parole and Electoral Reality
Although some '80s-style tough-on-crime Congress members remain, the persistence of the parole ban may have less to do with hard-line philosophy and more to do with political priorities, according to Callahan. Between federal prisoners, ex-federal prisoners and their families and friends, millions of Americans are seriously impacted by federal prison policy. However, those millions are, by in large, not policymakers.
"The 'war on crime' is just as insidious as the war in Iraq," Callahan said. "But a war like this is different from an Iraq War. The middle class doesn't see this war."
Not many prisoner advocates were surprised the last two bills to revive federal parole never made it out of committee. Sensenbrenner chaired the Judiciary Committee, which was also stocked with such stalwarts as Randy Forbes, who led the successful movement to abolish parole in his home state of Virginia in the 1990s. Both still hold places on the committee, with Forbes as its ranking member.
When a Democratic majority won Congress last year, the shift did not prompt a face-off with tough-on-crime Republicans.
The issue doesn't always break down in line with the party divide, according to policy analyst Ryan King of the Sentencing Project. Just as the original Sentencing Reform Act was a bipartisan venture, the maintenance of the sentencing status quo requires the consent - at least implicitly - of members of both parties.
Lawmakers have to pick their battles, and picking parole is not a politically savvy move.
"I've never seen anyone lose an election for being tough on crime," King said. "You might see a candidate say they would overturn every parole board decision in the state. But I doubt a candidate would set sentencing reform as the centerpiece of a campaign. No candidate wants the public to think they would let individuals off easy."
Shying away from sentencing and parole reform basically boils down to fear, on the part of both the public and politicians, according to King. People are afraid of early-released prisoners wreaking havoc on their communities. Lawmakers are afraid that, should they push for reform, a high-profile case of a parolee committing a crime could sabotage their campaigns.
The fear is grounded in precedent: 1998 Democratic presidential candidate and Massachusetts Governor Michael Dukakis supported his state's "furlough" program, which allowed inmates temporary leaves of absence from prison as part of a rehabilitation plan. When Massachusetts prisoner Willie Horton committed armed robbery and rape while on furlough, the incident became a major issue in the 1988 election and a basis for attack ads against Dukakis.
In Connecticut last July, two parolees committed a triple murder and arson. In September, Connecticut's attorney general ruled that parole-ineligible sentences could not be commuted to parole-eligible, and a Quinnipiac University poll in early November showed 72 percent of Connecticut voters thought the parole system let prisoners out too soon.
"It's a cost-benefit analysis," King said. "There's not a lot of benefit for those politicians to step out and support parole, but the costs could be enormous."
As with many prison issues, convincing lawmakers to take a stand on parole is an especially tough sell because many of the people to whom parole is most important - prisoners and felons - can't vote.
Money Motives
Many Americans who can vote benefit from prisoners staying behind bars with no chance of early release, noted both Martorano and Metz.
Though keeping millions of people in prison is a drain on taxpayer dollars, inmates bolster the economy by working for less than $1 an hour for companies like Microsoft and AT&T. ("Most of the time when people call directory assistance, they don't realize they're speaking with an inmate," Metz said.)
Noah Robinson, the half-brother of Congressman Jesse Jackson Jr. and a federal prisoner serving a life sentence in Terre Haute, Indiana, points out as private prisons expand, a growing sector of the small-town vote will have the preservation of the parole ban at heart. The local economies of "prison towns" benefit from the lack of parole, since a guaranteed (and increasing) number of prisoners means a constant source of jobs for guards, administrators, food service workers, cleaning people and suppliers of everything from toilet paper to office supplies.
"With prisoners confined forever (i.e. no parole), job security [is] totally unaffected by inflation and recession; contracts for local businesses are ongoing," Robinson wrote to me.
Even more directly, some of the lawmakers who could most influence the prospect of the parole bill - Judiciary Committee members - take campaign money from corporations that build and maintain private prisons.
The two largest private prison companies, Corrections Corporation of America (CCA) and Wackenhut Corporation (now the GEO Group), entered the business in the mid-80s, when, due to tougher drug laws and the loss of parole, government-run prisons were bursting at the seams. The corporations' expansion paralleled the continued Congressional reinforcement of hard-line prison policies.
According to the Center for Responsive Politics, in the 2006 election cycle, the CCA contributed thousands of dollars to the campaigns of six House Judiciary Committee members, including Sensenbrenner, who kept the parole bill off the floor every time it was proposed. He now sits on the Homeland Security subcommittee, which deals most closely with sentencing and parole.
Sensenbrenner's office did not return repeated calls for comment.
The CCA also funded the campaign of ranking member Lamar Smith, who, in this Congress alone, has introduced two bills which would increase prison terms.
In the Senate, the CCA financed the campaigns of four out of the nine Republicans on the Judiciary Committee.
Wackenhut, on the other hand, developed a reputation for giving to both the Democratic National Committee and the Republican National Committee. Its new incarnation, the GEO Group, also contributes to both parties. In fact, for the 2008 election, GEO has so far contributed more to the campaigns of Democratic legislators than to Republicans, and has donated to the campaigns of both Hillary Clinton and Bill Richardson.
Even Democratic Congressman Bill Nelson of Florida, to whom both John Flahive and David Correa's mother have appealed for help in reviving parole, took $10,000 from GEO in 2006, according to data from Capitol Advantage.
"Financial drive is such a huge factor for both sides of political aisle," said King, who noted economic pressure from prison employees' unions plays a large role in pulling Democrats away from parole and sentencing reform.
The American Federation of Government Employees, to which federal prison workers belong, gives almost exclusively to Democratic candidates.
Nevertheless, according to King, prisons are at a breaking point. Contractors and government funding aren't keeping up with the demand for new prison facilities, and overcrowding is rampant. For policymakers, King said, dwindling resources and their effect on profit - not a realization of the system's injustices and ineffectiveness - will likely be the turning point for parole and sentencing reform.
Though King does not foresee a vote to reinstate parole right away, he argues measures like Davis's parole bill are still necessary to put the idea "on the radar screen," triggering momentum toward sentencing policy change. As resources become scarcer, he reasons, more lawmakers may get behind such legislation.
As for Davis, he has been cooperating with FedCURE and other organizations on a new bill to revive parole. He hasn't yet introduced it, he said, because he did not want people to confuse it with his less controversial Second Chance Act, a bipartisan-supported bill that just passed the House, which provides resources for prisoners reentering society.
The passage of the Second Chance Act may begin to pave the slow road to a criminal justice system that emphasizes rehabilitation over punishment, according to Davis. He hopes someday parole will follow.
Until then, for prisoners like Metz, it's becoming increasingly difficult to fight off despair.
"My kids grew up while I was in prison, but I've been stuck in time," Metz said. "If they don't bring back parole, I'll be stuck until I die."
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Posted November 28, 2007 | 12:50 PM (EST)