Should Parole Hearings Be Off-Limits to Prosecutors?

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"Courtroom" painting by Phillip Guston (1970). By Sharon Mollerus via Flickr

Prosecutors should “stay home and keep quiet” when individuals they have helped convict appear at parole hearings, according to a research paper published in the Ohio State Journal of Criminal Law.

Noting that many states already prohibit prosecutors from testifying in person at discretionary parole hearings—although they can submit written statements—Boston College Law School Professor R. Michael Cassidy argues that similar practices should be extended to all states.

“I recognize that this is an uphill battle, given the political clout prosecutors wield before state legislatures, and the many other urgent reforms needed in our criminal justice system,” Cassidy wrote in a paper for the Boston College Law School Legal Studies Research Paper Series, based on remarks presented at a symposium.

But he said some degree of “prosecutorial restraint” would be welcome to counteract the “undue influence” prosecutors now have in determinations of whether to parole prisoners, particularly those convicted of serious crimes like murder.

Such influence undermines the purpose of Supreme Court rulings that paved the way for individuals sentenced to life without parole for crimes committed when they were juveniles to seek release from prison.

As an example, he cited a stiff warning from a prosecutor that a Massachusetts inmate who was granted a parole hearing after spending over 40 years behind bars for the murder of his parents and sister “will kill again” —a warning that apparently convinced parole board members to deny release.

This was an example “of a prosecutor offering a prediction of future behavior that as a professional matter he is simply unqualified to make,” Cassidy wrote.

Prosecutors should be zealous advocates on behalf of the state during a trial, but continuing their adversarial role once an individual has been sentenced is inimical to the goal of serving justice, the paper argued.

Once a defendant has been convicted and sentenced, the prosecutor should act as a “minister of justice,” providing only factual and legal assistance to parole boards, wrote Cassidy.

Some 38 states now provide some form of discretionary parole for adult prisoners.

Prosecutors are entitled to give input in some fashion to the parole board in those hearings, particularly if they possess “highly relevant, post-conviction information unavailable from documentary materials or the testimony of victims,” Cassidy wrote.

But if they do not possess that information, “I urge prosecutors to stay home and keep quiet,” he continued.

Once a case closes and an individual is sentenced, Cassidy argued, prosecutors should not act as advocates in the administrative setting of a parole hearing, and put their “thumbs on the scale” of parole decisions.

Citing the work of Pace University Prof. Bennett L. Gershman on prosecutorial ethics, Cassidy said prosecutors have the power and discretion to “threaten, intimidate and bully other actors in the criminal justice,” including “defendants, witnesses, attorneys, and even judges.”

“Parole board members are no exception,” he wrote. “Since most chief state prosecutors in the United States are elected, they have political constituencies of their own to bolster their influence.”

Ideally, Cassidy believes, prosecutors should not be allowed to testify at a parole hearing and should only be able to submit written comments in rare circumstances in which he or she has information otherwise unavailable to the parole board.

He observed that the Supreme Court has recognized that a parole decision is meant to be a “discretionary assessment of a multiplicity of imponderables, entailing primarily what a man is and what he may become rather than simply what he has done.’

Cassidy described this as a risk assessment, arguing prosecutorial testimony can be “unhelpful” at that stage, particularly when information is readily available elsewhere to assist in making such an assessment.

For example, a prosecutor may have information on a defendant’s feelings of remorse or willingness to accept responsibility, but this information also would be available through other means, such as post-arrest statements or trial testimony.

Cassidy noted that 14 states now allow the prosecutor to submit written materials, but not to testify personally. Many states have already begun enacting further limits on prosecutorial engagement in parole proceedings. Texas and Wyoming, for instance, allow written testimony from the prosecutor only if requested by the parole board.

“Requiring the prosecutor to seek permission to intervene is a step in the right direction that could act as a prophylactic against reflexive prosecutorial opposition at release hearings,” Cassidy wrote.

“It will require the prosecutor to think carefully about what unique contribution she can make to a parole proceeding that is consistent with her obligation as a minister of justice.”

The complete article is available here.

This summary was prepared by TCR news intern Lauren Sonnenberg. Readers’ comments are welcome.

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