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date: 20 October 2021

Discretion in the U.S. Parole Systemfree

Discretion in the U.S. Parole Systemfree

  • Benjamin J. MackeyBenjamin J. MackeyDepartment of Criminology, Law and Society, George Mason University
  •  and Danielle S. RudesDanielle S. RudesDepartment of Criminology, Law and Society, George Mason University

Summary

Parole in the United States serves as both a mechanism of early release from incarceration, as well as the period of supervision that may follow release, early or otherwise. Attached to the concept of parole, writ large, are multiple, seemingly irreconcilable perspectives regarding its purpose. Yet, evidence exists to suggest that all these perspectives are simultaneously reflected in the microlevel discretionary actions of parole practitioners and the macrolevel policies of the parole system. This is suggestive of a complex interplay between the individual discretion exercised by parole practitioners and the formalized legal reforms that, in some cases, attempt to limit such discretion. This article examines three stages of parole—release, supervision, and revocation—to explicate how practitioners use their discretion to resist or subvert reforms designed to curtail that discretion. Ultimately, these forms of resistance have both practical and theoretical implications for the future of parole and policies aimed at its reform.

Subjects

  • Corrections

An Overview of Perspectives on and Purposes of Parole

Parole in the United States is both a process by which an individual may be released from incarceration by discretionary decision or statutory requirement as well as the term of conditional supervision that follows this (potentially early) release. In many cases, parole also entails violation and revocation—a process by which an individual under parole supervision is returned to incarceration for a new criminal charge or a noncriminal violation of their conditions of release. However, parole—like community supervision in general (see article “Supervision in the Community: Probation and Parole”)—is contentious. This contention is reflected in the fact that no monolithic explanation exists for the purpose and desired methods of parole. Indeed, multiple perspectives on parole are held by its students and practitioners, of which perhaps the most common are (a) the rehabilitative perspective; (b) the punitive perspective; (c) the managerial perspective; and, for lack of a better label, (d) the Foucauldian perspective. Each of these perspectives is discussed in this section.

A Rehabilitative Perspective

The rehabilitative perspective on parole is evidenced by the rhetoric surrounding its origins. Although the concept of supervising individuals in the community is older (J. Simon, 1993), modern parole is typically portrayed as the brainchild of Alexander Maconochie, the superintendent of a penal colony on British-controlled Norfolk Island in the mid-19th century (White, 1976; Wodahl & Garland, 2009). Norfolk Island had been earmarked by British authorities as the site of particularly severe forms of carceral control, as it was intended to mete out “the extremist punishment short of death” (as cited in Maddox, 2012, p. 185). Against this punitive backdrop, the rehabilitative orientation of Maconochie’s early parole system stands in stark relief. Indeed, Maconochie used parole as a way of removing incarcerated persons from the prison environment, thereby returning them to the community where he believed they could be reformed with greater expediency and efficiency (Maddox, 2012; Petersilia, 2009, p. 57). Maconochie’s thinking in this regard was reflected in the ascendant rehabilitative ideal, which would come to be the dominant paradigm of the criminal legal system in the late 19th and early 20th centuries (Allen, 1981; Cullen & Gendreau, 2000; Wodahl & Garland, 2009). Thus, a rehabilitative perspective holds that with the concurrent proliferation of parole and the rehabilitative ideal across Europe and the United States in the early 20th century (Allen, 1981; Wodahl & Garland, 2009), the policies and practices of parole reflect an intent to reform the antisocial dispositions plaguing its subjects rather than to simply punish or incapacitate them.1

A Punitive Perspective

Although the early rhetoric surrounding parole is imbued with notions of rehabilitation and dispositional reform, observers note that “the degree to which these concepts were integrated into correctional practice remains suspect [as] parole only faintly resembled what progressive reformers had envisioned” (Wodahl & Garland, 2009, p. 89; see also Rothman, 1980; J. Simon, 1993). However, not even the ideal of rehabilitation as a valid paradigm of justice would survive under the onslaught of empirical critique it was subjected to in the mid-20th century, which rose to a crescendo in the 1970s (Cullen & Gendreau, 2000). With a growing body of research suggesting that “nothing works” to rehabilitate those who have violated the law (see Martinson, 1974), confidence in rehabilitation waned as a new, punitive model of parole developed. This punitive model was exemplified by two developments that occurred at different stages of the parole process. First, supporters of a retributive paradigm of justice advocated for what would become known as truth-in-sentencing laws, which would reduce the use of parole as a mechanism of early release (von Hirsch, 1976; see also Garland, 2001; Paparozzi & Caplan, 2009, pp. 404–406; Rhine, 2012). Second, parole as a mechanism of community supervision also came to reflect a more punitive orientation, as it increasingly presented those subject to it with numerous opportunities to violate conditions of release and be returned to incarceration—often with an enhanced sentence attached (Garland, 2001, pp. 60–61; Petersilia, 1999; Taxman, 2005, 2011; Travis & Stacey, 2010).

However, in contrast to the preceding history of rehabilitative origins superseded by punitive influences, some observers note that parole, since its inception, reflects neither the ideologies of treatment nor those of punishment but, rather, those of management and control. These perspectives hold that parole has advanced, instead of constrained, the capacity and reach of the penal state.

A Managerial Perspective

With respect to capacity, a managerial perspective concerning parole holds that its use is largely disconnected from the ideologies of rehabilitation or punishment. Rather, a managerial perspective focuses on the ways in which parole presents a cost-effective way to regulate and legitimate carcerality. This occurs in two ways. First, some argue that by continuously releasing individuals on parole in proportion with new intakes, prisons operate as “self-regulating systems” (Berk et al., 1983, p. 547), which, while not completely sacrificing control over their former subjects, are nonetheless able to ensure that their populations do not overwhelming exceed their capacity. Second, others suggest that by returning large numbers of “dangerous” individuals under parole supervision to prison, parole revocation processes legitimate and sustain carceral systems by providing evidence of their ability to (cost-)effectively manage these individuals (Feeley & Simon, 1992, pp. 455–457). In sum, then, a managerial perspective frames parole as a mechanism to regulate, legitimate, and, thereby, sustain the capacity of the penal state to control a “dangerous class” of individuals who, rather than being rehabilitated or punished, must simply be managed (Feeley & Simon, 1992, 1994; J. Simon & Feeley, 2003).

A Foucauldian Perspective

With respect to the reach of the penal state, a Foucauldian perspective points out that parole extends the influence of state control by “insert[ing] the power to punish more deeply into the social body” (Foucault, 1975/1995, p. 82). This is reflected in the conception of the “punitive city” by Foucault (1975/1995, p. 113), wherein punishment—and, thus, the manifestation of state power—is not concentrated in a single entity (like the prison) but rather distributed throughout society in “hundreds of tiny theatres of punishment” (p. 113). Collecting and synthesizing Foucault’s often contradictory thoughts regarding the centrality of the power to punish—that is, whether it is concentrated in carceral institutions or distributed throughout this punitive city—Cohen (1985, p. 84) termed community control and supervision a “dispersal of discipline,” wherein boundaries between systems of care and control become blurred and the overall reach of the penal state expands. Blending care and control, parole under a Foucauldian perspective is both repressive and productive (Turnbull & Hannah-Moffat, 2009); it not only strips those subject to it of certain freedoms but simultaneously creates new, mandatory, and coerced responsibilities for them to fulfill (Cohen, 1985; R. J. Miller & Stuart, 2017; Phelps & Ruhland, 2021; Werth, 2012). Further, Cohen (1985, p. 66) found that this dispersal of discipline operates increasingly through the principles of coerced volunteerism, as “indigenous community residents are recruited as probation ‘aides’ or to voluntary ‘big brother’ schemes” of the state, thereby appropriating the community for the purposes of its own subjugation. Thus, a Foucauldian perspective on parole sees it as an expansion of carceral punishment. As formerly incarcerated individuals are transferred back to their communities, the state is newly empowered to control both them and their fellow community members, the latter of which the state coerces to supervise the former.

The Confluence of Perspectives

Although each of the former perspectives contains some unique elements, an empirical sketch of parole shows that it displays characteristics of all four perspectives. In line with a rehabilitative perspective, research indicates that individual parole officers strive to build a therapeutic relationship with their clients (Appleton, 2020), even if they view those clients as ultimately responsible for their own reformation (Lynch, 1998, 2000). However, this does not mean that the more punitive features of parole are absent. Indeed, even when policy attempts to limit their ability to do so (Rudes, 2012), these same officers frequently apply sanctions—sanctions that may be viewed by those who receive them as more severe than incarceration (Petersilia & Deschenes, 1994; Spelman, 1995; Wodahl et al., 2020).

Simultaneously, from a macro- and historical perspective, parole may reflect a managerial perspective through its initial satisfaction of political demands (Messinger et al., 1985) and, later, regulation of the prison population (Berk et al., 1983). Managerial features of parole persist in modernity, as parole functions as both a mechanism of release and a tactic of supervision largely based on “the language of probability and risk” (Feeley & Simon, 1992, p. 450) to more effectively aggregate and manage large numbers of individuals. This is exemplified by risk classifications, such as the risk-need-responsivity model (Andrews et al., 1990), which structure the intensity of supervision on the basis of actuarial predictions of risk and classifications of need (Andrews & Bonta, 2010). Concurrent with this rational strategy of management, however, parole may more deeply embed state power within marginalized communities. Indeed, in line with conception of parole as a Foucauldian “dispersal of discipline” (Cohen, 1985, p. 84), modern observers have noted how state actors increasingly devolve both the treatment and supervision of people on parole to the private sector—typically to nonprofit organizations situated in and drawing volunteers from the same communities from which those on parole originated (De Giorgi, 2017; R. J. Miller, 2014; R. J. Miller & Purifoye, 2016; R. J. Miller & Stuart, 2017, pp. 538–540). In other words, and in line with a Foucauldian perspective, parole may serve as a tool of state control of not only individuals on parole but all who inhabit their communities.

To some extent, overlap between these four ideal-type (Weber, 1904/1949) perspectives on parole is expected. Indeed, as with the criminal legal system in general, the history of community supervision is replete with changes and adaptations of both ideology and practice; a saga of sea changes such as this is likely to produce a variety of different perspectives regarding the purpose and desired methods of parole among its practitioners and policymakers (Appleton et al., 2021; Goodman et al., 2017). However, it is significant that multiple, contradictory perspectives on parole appear to manifest simultaneously. That is, parole officers simultaneously perceive and perform their duties as a balance between individualized and rehabilitative casework (rehabilitative perspective) and punitive supervision (punitive perspective; Clear & Latessa, 1993; J. Miller, 2015; West & Seiter, 2004; Whetzel et al., 2011). Similarly, although front-line parole officers continue to exercise human agency by pursing individualized rehabilitative strategies (rehabilitative perspective), parole administrators set an agenda of managerial control for these officers to follow (managerial perspective; Cheliotis, 2006; Lynch, 1998, 2000). Both of these examples demonstrate the interaction of individual practitioner perspectives with the organizational environment in which they work—what Clear and Latessa (1993) referred to as “personal philosophy and organizational policy” (p. 441), respectively. One might think of the former as the attitudes and dispositions of the individual, and the latter as the environmental context that surrounds them. Thus, to fully comprehend parole in its differing orientations and manifestations, it is essential to consider how individual characteristics and environmental context intersect to affect practitioner decision-making.

The goal of this article is to explicate this intersection. The article presents an overview of the parole system at three stages: the release process, the supervision process, and the revocation process. Whereas the literature frequently treats each of these stages and the practitioners who populate them discretely, this article adopts a more holistic perspective by examining all three as they interrelate. In order to discuss how the personal philosophies of practitioners exert influence at each stage, the article next summarizes prominent theoretical perspectives regarding discretion and decision-making. These perspectives inform the subsequent inquiry into the ways that individual discretion interacts with legal policy, which often attempts to structure the decision-making of practitioners by curtailing their discretionary capacity. However, interspersed in this examination is evidence that practitioners are not passive in the face of policy change. Rather, at all three stages of parole, individual characteristics of practitioners and the environmental context that encompasses them intersect to facilitate their resistance to or adaptation of parole reform in ways that preserve their discretion. The article thus concludes with a discussion of the practical and theoretical implications for parole reform that arise from these forms of practitioner resistance and adaptation.

Overview of the Parole System

Although the parole process begins while an individual is incarcerated, its viability is determined by state law at the point of sentencing. Discretionary parole release hinges on the concept of the indeterminate sentence—so-called because an incarcerated person’s “date of release cannot be predicted with fair accuracy from the court’s sentence at the conclusion of a criminal trial” (Rhine et al., 2017, p. 291). Rather than a predetermined period of incarceration, then, the indeterminate sentence provides a range of time for which the individual will be incarcerated. The minimum end of the range marks the point at which the individual is eligible for parole, while the maximum end is the point at which they are released regardless of the outcome of any parole hearing(s). However, beginning in the mid-1970s, all 50 states revised or replaced their indeterminate sentencing codes, with many imposing so-called truth-in-sentencing laws requiring individuals to serve a substantial majority of their original sentence (Rhine, 2012). Appealing to both liberal and conservative reformers alike, this overhaul of the previously dominant parole release process rested upon arguments that, due to the discretion and disparities associated with the practice, indeterminate sentencing arbitrarily kept people convicted of low-level offenses incarcerated too long while individuals posing a risk to public safety were released arbitrarily (Paparozzi & Caplan, 2009, p. 405; Rhine, 2012). Although several states later reimplemented indeterminate sentencing, the practice remains prohibited in 16 states as of 2019 (Rhine et al., 2018). Currently, an individual subject to an indeterminate sentence in the 34 states where it is allowed may apply for parole release at any point within the minimum and maximum range of their sentence, although other factors such as good-time credits and participation in prison programs may also affect their date of release independent of discretionary parole release decisions (Reitz, 2012, p. 273).

When an individual is eligible for parole, they may apply for parole board consideration. The form and function of parole boards vary significantly by state. In the 34 state legal systems that use indeterminate sentences, parole boards often make both discretionary release and revocation decisions (Paparozzi & Caplan, 2009; Rhine et al., 2018). However, regardless of whether or not the state uses indeterminate sentences, 48 states and the District of Columbia maintain parole boards, which, if not allowed to make release decisions due to a determinate sentencing structure, may nonetheless hold revocation hearings for an individual if they violate the terms of their parole (Paparozzi & Caplan, 2009). As reported by Tewksbury and Mustaine (2012, p. 417), at the time of their study, there were 254 parole board members across the 48 state parole boards. These members served on the board in a part- or full-time capacity and were typically appointed by the state governor (Paparozzi & Caplan, 2009, p. 411); their tenure on the parole board was a function of both state statute and gubernatorial reappointment (Connor, 2016, p. 124), with most serving between three and seven years in each term (Paparozzi & Caplan, 2009, p. 415). Despite the tremendous discretion granted to parole board members in many states to determine the actual amount of time an individual serves in prison (Gottfredson, 1979, p. 77), members rarely need to meet any specific educational or professional requirements to receive appointment (Paparozzi & Caplan, 2009, pp. 416–417). It is thus not unusual for members to have backgrounds in politics rather than policing or corrections (Connor, 2016, pp. 112–113).

If an individual is released on parole—whether by discretionary parole board decision or as a product of state statute—they are next subject to parole supervision in the community. About 79.5% of those released from state and federal prison each year are required to report for parole supervision (Gelb et al., 2014, p. 4). However, there is wide state-level variation in this figure, with Oregon and California both mandating over 99% of formerly incarcerated individuals to supervision upon release (Gelb et al., 2014, p. 4). Thus, with more than 600,000 people released from state and federal prisons each year (Carson, 2020, p. 15), there are approximately 878,000 individuals under parole supervision on an average day in the United States (Kaeble & Alper, 2020, p. 1).

The form and structure of parole supervision are nearly identical to probation supervision as both require the formerly incarcerated individual to report to a probation or parole officer and meet certain conditions of supervision (Taxman, 2012b). In a survey of all 52 parole jurisdictions in the United States (50 states; Washington, DC; and the federal jurisdiction), Travis and Stacey (2010) found that the following conditions were most common:

comply with the law [100% of jurisdictions], restrictions on changing residence [98%], prohibition on weapons possession [96%], requirement of regular reporting [87%], restrictions on out of state travel [87%], allowing home and work visits by the parole officer [87%], and restrictions on possession/use of controlled substances [81%]. (p. 606)

Furthermore, comparing their results to previous surveys of parole conditions spanning over five decades (see Arluke, 1956, 1969; Travis & Latessa, 1984), Travis and Stacey (2010) concluded that the number of parole conditions have increased since 1956. As a result, several observers have noted that the numerous and onerous conditions of parole actively militate against successful reintegration into society and, in many cases, make it more likely than not that an individual on parole returns to incarceration (Jacobson, 2005; R. J. Miller & Alexander, 2016; R. J. Miller & Stuart, 2017; Taxman, 2005, 2011).

If an individual on parole violates a condition and that violation is discovered by the parole officer, the officer may initiate a revocation process under certain circumstances (see section “Parole Revocation”; see also Ruhland et al., 2017, p. 39). This may result in a revocation hearing, which can occur in a traditional courtroom setting or, in many cases, before the parole board (Lin et al., 2012; Ruhland et al., 2017). Furthermore, whereas defendants in traditional criminal proceedings are granted due process rights, individuals subject to parole revocation hearings frequently lack robust protection, as the evidentiary standard for conviction is lower than in traditional proceedings, and revocation proceedings are typically closed to the public (Lin et al., 2012, pp. 350–351; Ruhland et al., 2017, p. 41; Steen & Opsal, 2007, pp. 347–348; see also Morrissey v. Brewer, 1972). This is especially salient as, increasingly, parole revocation is a driver of mass incarceration (Lin, 2010). Known as “back-end sentencing” (Travis, 2005, p. 51), growth in parole revocation outstripped the substantial growth in the per capita incarceration rate between 1973 and 2000; as of 2000, revocation accounted for 34% of U.S. prison admissions (Travis, 2007, p. 631). The contribution of back-end sentencing to carceral populations is especially severe in certain areas, with more than 60% of prison admissions in California coming from parole revocation in 2005 (Lin et al., 2010, p. 761).

Given the immense influence that the parole process at each stage has over the life of a currently or formerly incarcerated individual, it is essential to understand how practitioners exercise this influence. That is, what factors affect their substantial discretionary decision-making to release people from prison, to supervise them in the community, and to subsequently revoke their parole and potentially return them to incarceration? The remainder of this article examines factors associated with practitioner discretion, reforms designed to limit this discretion, and subsequent practitioner resistance to these reforms. To frame this examination, the article first presents an overview of relevant decision-making theory.

Review of Decision-Making Theory

As summarized earlier, discretion is embedded within each stage of the parole process. Whether they are parole board members or parole officers, and whether they are considering the release, supervision, or revocation of the individual on parole, practitioners have significant leeway in determining both the application and the form of punishment. The extant literature on decision-making theory provides a useful framework for examining how such determinations are made. Although early scholarship advanced a purely rational view of decision-making—one in which every choice was made through careful and deliberate consideration of all relevant factors (H. A. Simon, 1947/1976, pp. 61–78, 80)—most views of decision-making theory in modernity spring from the behavioral decision-making model via the work of Herbert Simon and his theory of bounded rationality. According to H. A. Simon (1947/1976, pp. 81–84), decision-making in the real world was not grounded in a rational calculus of all possible options, as this would require knowledge not only of all relevant factors but of all alternative options available to the decision maker. Rather, the theory of bounded rationality according to H. A. Simon (1947/1976, pp. 84–92) held that decision-making is a product of reason that is structured and constrained; these constraints include influences such as docility, previous experience, habit, limited information, and presence of positive stimuli. The result is a limited “menu of choices” determined by context, from which the decision maker must select.

A number of factors influence the menu of choices available to decision makers in the criminal legal system. These are generally partitioned into two categories: (a) individual-level “sociopolitical characteristics” (Nardulli et al., 1984, p. 912) of legal actors and (b) influences from the environmental context in which they exist. With respect to the former, research finds that disparate individual-level factors—such as perceptions of law, attitudes toward punishment, and political leanings—affect not only how legal actors interpret the evidence before them (Kahan et al., 2009; Nardulli et al., 1984) but how they conceptualize and interact with individuals involved in the criminal legal system (Conley & O’Barr, 1990; Clair & Winter, 2016; Nardulli et al., 1984; Terrill et al., 2003; Ulmer & Kramer, 1996). Essentially, then, rather than being passive to the context surrounding them (Cheliotis, 2006; Rudes & Magnuson, 2018), legal actors filter this context “through varied emotional valences” (Berrey et al., 2012, p. 29) of their personal experience and perspectives to make boundedly rational decisions.

That individual-level sociopolitical characteristics affect legal actors’ interpretations of their surrounding context also highlights the influence of this context; in essence, the influence of individual-level characteristics cannot be understood independently of external factors (Nardulli et al., 1984). Indeed, evidence suggests a complex interaction between environmental context and sociopolitical characteristics, with the later oftentimes conditioning the influence of the former on decision-making (Gibson, 1980; Terrill et al., 2003). The literature concerning the influence of environmental context on decision-making is extensive and long-standing, with the general consensus being that both organizational culture (Paoline & Gau, 2018; Terrill et al., 2003) and the surrounding political culture in which that organization exists (Hagan, 1977; Mastrofski et al., 1987) affect the decisions of legal actors. In the language of bounded rationality, it is the environmental context that provides the limited menu of choices available to the decision maker.

However, to choose the apparently optimal choice in a given situation, decision makers must draw upon past experience which they interpret in a process of “sense making” (Weick, 1995). In sense making, individuals label and categorize their past experiences to better understand their current situation (Weick, 1995; Weick & Sutcliffe, 2015; Weick et al., 2005). As individuals label and categorize their past experiences, they organize them into coherent templates that they can apply to their present circumstances. In essence, then, sense making is the process of “perceptual organization through sorting out demands and prioritizing them” (Weick & Sutcliffe, 2015, p. 39). Thus, although sense making is retrospective inasmuch as its inputs are past experiences, it is prospective in the sense that it works to inform subsequent action (Weick et al., 2005, pp. 411–412).

As legal actors prioritize often competing demands, scholars of legal decision-making adhering to the focal concerns perspective hold that certain of these demands become more salient (see Huebner & Bynum, 2006, 2008; Johnson et al., 2008; Ulmer & Bradley, 2006; Ulmer & Johnson, 2004; Ulmer et al., 2008). First explicated by Steffensmeier et al. (1998; see Lynch, 2019, p. 1148), the focal concerns perspective explained disparate sentencing outcomes as a product of the interaction of race, gender, and age, and how these characteristics interface with the focal concerns held by judicial decision makers. Steffensmeier et al. (1998, pp. 766–767) identified three specific focal concerns that drive judicial decision-making: (a) the perceived blameworthiness of the defendant, (b) the perceived threat to public safety posed by the defendant, and (c) practical constraints and consequences arising from sentencing decisions. Yet, the focal concerns perspective is not without its flaws. Namely, Lynch (2019, pp. 1154–1164) argued that it ignores the effects of local judicial practice norms, incorrectly frames judges as solely responsible for sentencing decisions, and inadequately models or specifies sources of bias. Nonetheless, the focal concerns perspective is central to the present examination of both parole release and revocation decisions as it has been used to provide a cogent explanation of why these decisions are made, and why they frequently depart from policies designed to structure them (see, e.g., Huebner & Bynum, 2006, 2008; Lin et al., 2010, 2012). Furthermore, and notwithstanding criticisms by Lynch (2019), the focal concerns perspective contains useful elements (e.g., the influence of practical constraints such as prison capacity on parole release/revocation decisions), which help inform scholarly understandings of these complex decisions.

The Intersection of Individual Discretion and Legal Reform in Parole

This section examines the intersection of individual-level discretion and legal reform at each stage of the parole process: release, supervision, and revocation. At each stage, a specific legal reform designed to curtail practitioner discretion provides evidence of practitioner resistance to or adaptation of the reform. The conclusion of each subsection examines the individual sociopolitical characteristics and environmental contextual factors that may contribute to such tactics of resistance and adaptation.

Parole Release

Discretionary parole release decisions vary by state, although they typically entail a parole board tasked with determining if release will be granted. Traditionally, the parole board has extensive discretion to make release decisions (Gottfredson, 1979; Rhine, 2012; Ruhland, 2020). In response to long-standing critiques regarding the seemingly “unfettered” (Palacios, 1993, p. 568) discretion exercised by parole boards, the majority of U.S. states have adopted risk assessment instruments or release guidelines to structure parole board decisions (Caplan & Kinnevy, 2010; Rhine et al., 2017). These instruments and guidelines are intended to curtail parole boards’ “arbitrary, closed, and abusive use of discretion” (Rhine, 2012, p. 634), although the extent to which this occurs is a point of contention (Ruhland, 2020). Further, members of parole boards report overwhelming disagreement with the notion that parole guidelines contribute to greater fairness or consistency in release decisions, and instead they generally agree that guidelines place excessive limitations on their discretion (Burkes et al., 2017, p. 16).

Perhaps as a result of these negative perceptions, parole board members continue to consider factors outside official guidelines. In some cases, this occurs when members consider demographic factors, which are not supposed to influence their decisions according to the guidelines. Most studied among such factors is race. Several studies find that racial disparity exists in release decisions, with individuals belonging to racial and ethnic minority groups less likely to be granted parole and more likely to serve longer sentences before receiving parole than their White counterparts (Bynum & Paternoster, 1984; Huebner & Bynum, 2008; Hughes et al., 2001, pp. 7–8; Ireland & Prause, 2005; Proctor, 1999), although the effect may vary by state (Petersilia, 1985). However, other studies find that race does not exert a direct influence on parole decisions, but it may have an indirect effect through (a) its influence on legal factors—such as length of the initial sentence and likelihood of receiving staff recommendations—that are considered by the parole board (Elion & Megargee, 1979; Morgan & Smith, 2008; Petersilia, 1985); (b) the weight the parole board assigns to such factors, which varies for White versus Black individuals (Carroll & Mondrick, 1976); or (c) “statistical discrimination” against minority parole applicants (Anwar & Fang, 2015, p. 31). Still other research suggests that Black individuals are not less likely to receive parole than their White counterparts (Huebner & Bynum, 2006; Mechoulan & Sahuguet, 2015; Scott, 1974; Young et al., 2016), although some of this research fails to consider the indirect effect of race, described previously, or uses dichotomous classifications of White and non-White, which may mask race effects.

Beyond outright departures from official guidelines via consideration of unauthorized factors (e.g., race), parole boards also resist attempts to structure their discretion by defining or weighting authorized factors in such a way as to reflect their “preexisting views and values” (Ruhland, 2020, p. 655). For example, they may construct a cognitive template of the “rehabilitated offender” which they compare with the applicant before them. In some cases, these cognitive templates are based on notions of an applicant’s demonstration of dispositional change and, thus, their ability to “effectively cope with ‘freedom’” (Turnbull & Hannah-Moffat, 2009, p. 548). For example, through interviews with 17 parole board members in four states, Connor (2016) found that for the parole board to find in their favor, applicants need a clear, realistic, and convincing narrative of what their life would look like if they were released.

In many cases, however, the ways parole board members interpret such narratives is structured by extralegal factors outside official guidelines. The gender of the parole applicant is one such factor. For example, one study on Canadian parole board decisions for female applicants found the parole board attached gendered notions of rehabilitation to the applicants (Hannah-Moffat & Yule, 2011; Turnbull & Hannah-Moffat, 2009). That is, the women had to prove they had changed their lives by demonstrating their ability to manage the notions of criminogenic victimhood attached to them by the parole board, as well as their willingness to defer to therapists and other “experts” for their rehabilitation (Hannah-Moffat & Yule, 2011, pp. 164–168). Gendered notions of rehabilitation also play a role for male parole applicants, as indicated by Greene and Dalke (2020) in their analysis of 109 parole hearings. In this study, the parole board required successful male applicants to showcase not only their ability to manage anger and show remorse but to demonstrate their potential to be self-sufficient upon release (Greene & Dalke, 2020, pp. 9–16). Thus, these men were required to conform to traditional notions of masculinity, which elevate the qualities of stoicism and individualism.

In addition to the characteristics of parole applicants, environmental factors sometimes exert influence on parole board decisions. For example, studying rural parole decisions in California, Young (2020) found that parole board members took note of the dearth of rehabilitative programming in rural prisons, causing them to treat individuals held in these prisons as incomparable to their counterparts in urban prisons. Thus, rurality structured parole decisions in an indirect way, despite the fact that geographic factors are not authorized for consideration under parole release guidelines (Ruhland et al., 2017, p. 26; Young, 2020, p. 5). Parole boards also exercise discretion in their disregard for certain environmental factors. That is, although many states authorize parole boards to consider input from the public, evidence indicates that nonvictim input has no significant effect on release decisions, even though such input may be indicative of strong social support networks available to the applicant should they be released (Hail-Jares, 2019; Ruhland et al., 2017, pp. 27–29; but see Proctor, 1999, for conflicting evidence). Instead, parole boards prioritize input from victims, which has been found to have a strong effect on release decisions in several studies (Hail-Jares, 2019; Morgan & Smith, 2005; Parsonage et al., 1992; but see Caplan, 2010, for conflicting evidence).

The preceding evidence suggests a complex interaction between the sociopolitical characteristics of parole board members and the environment in which they operate; this interaction works to structure release decisions in ways largely aligned with the focal concerns perspective. With respect to the perceived blameworthiness of the applicant and the applicant’s threat to public safety, the sociopolitical characteristics of parole board members may influence who they see as blameworthy and/or dangerous (Ruhland, 2020). In some cases, it appears that these assessments of blame and danger are based on the racial or ethnic background of the applicant (Bynum & Paternoster, 1984; Hughes et al., 2001; Ireland & Prause, 2005; Petersilia, 1985; Proctor, 1999). Furthermore, by shaping members’ cognitive templates of the ideal rehabilitated individual, sociopolitical characteristics indirectly determine factors such as blameworthiness and dangerousness independently of the guidelines or risk assessments that are often designed to assess these very concepts (Hood et al., 2002; Rhine, 2012). The third factor posited by the focal concerns perspective—practical constraints and consequences arising from release decisions—also exerts influence to the extent that environmental factors such as rurality (Young, 2020) and victim input (Hail-Jares, 2019; Morgan & Smith, 2005; Parsonage et al., 1992) are differentially considered. In sum, parole board members continue to exercise discretion in the face of guideline-based attempts to structure it. This resistance largely occurs through members’ consideration of factors outside formal guidelines, or through their ability to define and weight guideline-authorized factors to reflect their conceptions of the ideal “rehabilitated individual.”

Parole Supervision

Once a formerly incarcerated person receives parole release, they are supervised for a predetermined period of time in the community. Parole officers are responsible for the supervision of these individuals, as well as making decisions relating to sanction and/or revocation recommendations. Across these aspects of parole supervision, agency administrators and policymakers in many jurisdictions throughout the United States have advanced evidence-based tools and models that aim to structure officer-level decision-making (Taxman, 2012a). One of the most prominent of these models is the risk-need-responsivity (RNR) model developed by Andrews et al. (1990). The RNR model structures discretion by defining the inputs (risk and needs) officers should consider to produce a case plan that accounts for the characteristics of the “client” before them (responsivity). However, as originally conceptualized by Andrews et al. (1990), discretion was a fourth component in the model. The discretionary component of the RNR model, which Andrews et al. (1990, p. 20) termed “[p]rofessional override,” allowed officers to make decisions “as appropriate under present conditions” (Andrews et al., 1990, p. 20)—provided they had adequately considered risk, need, and responsivity. Thus, although discretion is incorporated into the RNR model, it appears as something of an afterthought; it is only intended to be used after the other three components dictated by the model have structured a decision. Furthermore, officer discretion, as briefly described by Andrews et al. (1990, p. 44), is intended more as a safety mechanism to prevent situationally inappropriate decisions rather than as an encouragement for officers to exercise discretion.

Parole officers employ a variety of tactics to resist decision-structuring aspects of the RNR model, perhaps because they may be perceived as limiting discretion.2 Based on her ethnographic study of probation officers’ use of the RNR model, Viglione (2017) found that officers continue to exercise discretion by using the model only with specific clients and in specific situations, rather than applying it across the board. In some cases, international studies have even found officers to entirely neglect certain elements of the model, such as actuarial assessments designed to determine a client’s risk level and criminogenic needs (Schaefer & Williamson, 2018). Even when officers adhere to the model inasmuch as they complete actuarial assessments, they often differ in the extent to which they use the results to develop case plans for clients (Ballucci, 2012; Schaefer & Williamson, 2018; Viglione, 2019; Viglione et al., 2015). Indeed, some officers take a more “holistic” approach to case plan development—one that considers risk in conjunction with other factors and sometimes relegates it to a relatively minor role (Ballucci, 2012). Other times, officers may actively deviate from the recommendations produced by the assessment (J. Miller & Maloney, 2013). In many cases, then, officers privilege professional knowledge and gut instinct over the actuarial outputs of risk tools (Werth, 2017).

Yet, even when officers complete assessments and incorporate the results into their subsequent case plans, they exercise forms of resistance that allow them to maintain discretionary authority in the face of the tool’s efforts to constrain it. This is because, as Hannah-Moffat et al. (2009) pointed out, officers retain considerable discretion in identifying the sources of information they input in risk assessments. For example, officers may complete assessment tools to favor a particular outcome—often one in line with their personal perspectives, values, and beliefs regarding a client—or otherwise rely on the professional override component of the RNR model (Hannah-Moffat et al., 2009; J. Miller & Maloney, 2013). In their study of 75 Australian community supervision officers’ compliance with risk assessment tools, Schaefer and Williamson (2018) found that 33% of respondents reported using the tool carelessly, and 25% minimized, exaggerated, or otherwise manipulated the information they entered into the tool. In sum, the extent of supervision officer noncompliance with the RNR model and its risk assessment tools appears widespread and persistent; officers not only resist using the tools in some instances, but they adapt or manipulate the tools to produce a desired outcome. Thus, rather than obviating discretion, risk assessment tools often obscure officers’ decision-making processes within a “black box” where it is less visible to observers (Hannah-Moffat et al., 2009, p. 407).

There is evidence to suggest that parole officers’ sociopolitical characteristics and the organizational environment in which they work might intersect to influence their fidelity to the RNR model. With respect to sociopolitical and attitudinal characteristics, scholars have long noted that parole officers must balance the role of social worker with that of enforcer or supervisor (Klockars, 1972). However, rather than representing a dichotomy, the roles of social worker and enforcer are often integrated in practice (Lynch, 2000; Miller, 2015; Skeem & Manchak, 2008; Studt, 1972; Werth, 2013; Whetzel et al., 2011), although officers may identify with one role more so than the other (Clear & Latessa, 1993). When officers are unbalanced in their approach, and, in particular, when they favor an enforcer role over a social worker role, they may actively resist efforts to implement evidence-based practices such as the RNR model (Whetzel et al., 2011). These findings align with more general findings at an organizational level, which suggest that aggregate correctional employee attitudes toward rehabilitation are positively related to their use of evidence-based practices (EBPs) that could structure their discretion (Friedmann et al., 2007; Henderson et al., 2009; Prendergast et al., 2017).

However, demonstrating the aforementioned interplay between individual characteristics and organizational environment, Clear and Latessa (1993) found that organizational policy influences officers’ differential identification with the roles of “law enforcer” or “social worker.” Specifically, organizational policies that reflect rehabilitative or punitive orientations affect the extent to which officers perform their duties as “law enforcer” or “social worker,” as they “translate these identities into supervisory tasks through a filter of organizational philosophy” (Clear & Latessa, 1993, p. 456). Organizational policy thus appears to exert an indirect effect—mediated by its effect on individual officer attitudes toward their professional roles—on EBPs designed to structure officer decision-making, like the RNR model. Organizational policy may also influence officers’ use of EBPs in other indirect ways. Several studies find that, to the extent that it affects officers’ commitment to and positive perceptions regarding their supervision agency, organizational policy shapes officers’ attitudes and subsequent usage of EBPs (Viglione & Blasko, 2018; Viglione et al., 2018). However, independent of officers’ perceptions of the agency, organizational policy does not appear to have a direct effect on EBP usage (Viglione et al., 2018).

Parole Revocation

Parole revocation decisions are an especially intricate area of study as they involve discretion from multiple parties: They require parole officers to violate a client (issue a violation for rule/law breaking), district attorneys to select a venue for a revocation hearing, and the parole board—or, in some cases, a formal courtroom workgroup (Lin et al., 2012)—to determine whether to return the individual to prison. However, very few studies examine how the discretionary decisions of these parties may interact with one another (see Lin et al., 2012; Steen et al., 2013). In absence of a sizable vein of literature to this effect, the present discussion examines each of these discretionary decisions independently of one another.

Discretionary decision-making in the parole revocation process begins with parole officers, although these decisions are often “hidden and difficult to systematically track” (Steen et al., 2013, p. 87). Within the limited body of work which examines parole officer sanctioning decisions (see Dembo, 1972; McCleary, 1978; Lynch, 1998, 2000; Rudes, 2012; J. Simon, 1993), several studies forefront how officers use their discretion to resist decision-structuring reform efforts. In her examination of a parole agency in California, Rudes (2012) documented parole officers’ continued use of technical violations to revoke clients after a state-wide reform effort discouraged the use of custodial sanctions. Specifically, Rudes (2012) found that officers would (a) partner with local law enforcement who, not bound by reform efforts discouraging custodial sanctions, were empowered to arrest parole clients; (b) allow charges against a client to accumulate, thereby justifying a custodial sanction that would not be appropriate if each charge were handled individually, and (c) collaborate with other parole officers to write violation reports, oftentimes using the same language that other officers had previously used to successfully revoke a client.

Although findings by Rudes (2012) showcased how parole officers resist official reform efforts and continue to revoke clients through the use of technical violations, other research examined the ways in which officers resist any attempts to structure their discretionary sanctioning authority. With respect to sanctioning reform in general, probation and parole officers are particularly resistant to efforts to structure their ability to sanction and revoke clients—perhaps more so than other judicial actors due to their close contact with clients (Steiner, Travis, & Makarios, 2011; Steiner, Travis, Makarios, et al., 2011). One decision-structuring measure that officers have shown particular resistance to is the sanction grid, which attempts to structure officers’ sanctioning decisions based on the client’s risk score and the characteristics of their violation (Turner et al., 2012). However, examining the implementation of one such sanctioning grid in California, Turner et al. (2012, p. 291) found that it did not curtail parole officer use of revocations—in fact, officers were more likely to revoke low-risk clients for low-severity violations in sites where the grid was implemented. However, officer attitudes toward and, by extension, fidelity to sanction grids are also somewhat dependent on organizational policy. Some evidence suggests that officers who hold positive attitudes toward organizational control structures and upper-level administrators in those structures are more likely to positively value sanctioning grids (Makarios et al., 2012).

After a client is revoked by their parole officer—whether with or without the use of a sanction grid—they are then subject to a revocation hearing. However, discretion continues to structure this process, even in the selection of the venue in which these hearings are to occur. Indeed, Lin et al. (2012) found that legal actors weigh an aforementioned set of focal concerns to determine whether to hold the hearing in a traditional, public courtroom setting or in a private venue presided over by the parole board. When the hearing occurs in front of a parole board, similar discretionary concerns in the initial release decision are apparent. In fact, several scholars argue that the limited constitutional protections and presence of public oversight entailed in parole revocation (see section “Overview of the Parole System”) is especially conducive to the exercise of unrestrained parole board discretion (Knapp, 1993, p. 689; Steen & Opsal, 2007). Relative to release decisions, though, more consistent evidence exists to suggest that parole boards at the revocation stage amply consider extralegal factors. Although revocation decisions are subject to fewer empirical studies than release decisions, a small but growing body of work indicates that race exerts a strong influence on revocation, with Black and Hispanic individuals more likely returned to prison than their White counterparts (Henry, 2020; Lin et al., 2010; Steen & Opsal, 2007). The finding that extralegal factors such as race may influence revocation decisions has severe consequences given the wide degree of discretion granted to parole boards in determining a new sanction, as they are often empowered not only to return the individual to prison to complete their original sentence but to add additional time and penalties (Ruhland et al., 2017, pp. 43–44).

Conclusion

The preceding evidence suggests that discretion is embedded at every decision point in the parole process. Beginning with the release decision and extending to the supervision and possible revocation of a formerly incarcerated individual in the community, legal practitioners make decisions regarding the application and form of punishment. Yet, practitioners do not make these decisions in a vacuum. Rather, at every phase of the process, the individual characteristics of practitioners interact with the characteristics of their environment to shape discretionary decision-making. In many cases, this interaction is most apparent with respect to practitioner efforts to resist legal reforms designed to limit their discretion. Thus, the complex interaction of individual and environmental characteristics has both practical and theoretical implications for the process of parole specifically and the modern practice of punishment more broadly.

Practical Implications

The ways in which practitioners continue to exercise discretion despite attempts to restrain it has implications for legal system reform. Large-scale legal changes (e.g., parole release guidelines, risk-based case planning models, and parole officer sanctioning restrictions) are typically propagated by entities external to the organizations they affect. Even when they are implemented at an organizational level—for example, when an individual parole agency adopts the RNR model primarily of its own volition—these reforms are frequently developed by outside organizations. In the case of the RNR model, to continue the example, this reform was developed by a team of academics, not officers (see Andrews et al., 1990).

That legal reforms are often exogenous to the organizations they affect has implications for their adoption, as indicated by the evidence summarized above. On the one hand, practitioners may perceive these reforms to be foreign and disconnected from the realities they face in their work. This can result in resistance to such reforms, as practitioners employ their discretion to circumvent any restraints thereon—for example, when parole officers fail to incorporate the RNR model into case planning or use professional override to nullify it (J. Miller & Maloney, 2013; Schaefer & Williamson, 2018; Viglione, 2019). On the other hand, even when practitioners adopt the reform, the ways in which such adoption occurs are shaped by individual and environmental factors. At an individual level, for a reform to successfully curtail practitioner discretion, officers must agree with it to some extent; there is an element of “consent of the governed” (see generally Arendt, 1969; Gramsci, 1971; Milton, 1649/2018) in this process of reform adoption, as the preceding evidence indicates that practitioners maintain human agency to resist and adapt reforms if they disagree with them. Yet, the preceding evidence also indicates that practitioners’ agreement with such reforms is contingent upon their individual perspectives, dispositions, and characteristics. Furthermore, from an environmental perspective, exogenous legal reform must be applied in an organizational setting wherein local practices are preexisting. Such local practices can shape the ways in which reform is adopted even if individual officers agree with it. Thus, as Lynch and Omori (2014) aptly described, “local legal practices [. . .] become entrenched over time such that top-down legal reform is largely reappropriated and absorbed into locally established practices” (p. 411).

In sum, individual and environmental characteristics are likely to shape both the likelihood that parole practitioners will adopt a legal reform and the ways in which they will subsequently perform that reform if they do adopt it. This may manifest as gendered parole board evaluations of risk, which diverge from parole guidelines in principle if not entirely in practice (Greene & Dalke, 2020; Hannah-Moffat & Yule, 2011; Turnbull & Hannah-Moffat, 2009). Or, it may manifest in the manner in which parole officers, while still using the risk assessment tools of the RNR model, modify and adapt those assessments to conform to their a priori notions of the parole client (Hannah-Moffat et al., 2009; J. Miller & Maloney, 2013; Schaefer & Williamson, 2018). Regardless of the particular manifestation, however, this suggests that parole reform is not a linear process wherein guidelines and risk assessment tools are developed and implemented directly in local settings. Rather, these measures are likely to be accepted and reinterpreted to varying degrees depending on the local setting and the characteristics of the practitioners who populate it.

Theoretical Implications

The conclusion that different local contexts, and even different practitioners within each context, may interpret legal reform in differing ways has further implications for the practice of punishment more broadly. Indeed, as summarized at the beginning of this article, practitioners hold a variety of divergent perspectives regarding the purpose of parole (e.g., rehabilitation vs. punishment). At a macrolevel, the practice of parole similarly evinces seemingly conflicting goals and motives. It can operate as a Foucauldian dispersal of discipline, extending and embedding the supervisory prowess of the carceral throughout the social body (Cohen, 1985, p. 85; Foucault, 1975/1995, pp. 85, 113); or, it can reflect a model of “low-cost management” (De Giorgi, 2017, p. 92) of marginalized communities when it is used to supervise the underclass at the lowest cost to the state (Feeley & Simon, 1992).

Returning to the question posed at the beginning of this article—how these contrasting perspectives, practices, goals, and motives can exist simultaneously in parole—some answer may be found in the fact that as the parole process evolves, it has been subject to repeated attempts at reform (see generally Andrews & Bonta, 2010; Rhine, 2012; Rhine et al., 2017; Wodahl & Garland, 2009). Rather than cohesively reshaping parole, each reform may have further diversified the ways that parole is practiced in local contexts, as practitioners in each context interpret and practice the reform differently. The result is a crisis of identity—a “basic turmoil in the theory, practice, and aspirations of penality” (J. Simon, 1993, p. 1)—that, although present throughout the field of modern punishment (Garland, 1990, pp. 1–10, 2001, ch. 3; J. Simon, 1993, pp. 1–8), is particularly apparent in parole. It is essential for future research to continue to probe the ways that this “crisis of penological modernism” (Garland, 1990, p. 7) manifests in parole—both to develop a more coherent understanding of the ways that individual practitioners make discretionary decisions throughout the process and to ensure that equitable results arise from this decision-making.

Further Reading

References

Notes

  • 1. We use the term “reform” to indicate a legal policy designed to change some aspect of the parole process. We do not use the term in a normative sense—that is, we do not mean to imply that reforms are necessarily intended or able to limit the reach of the penal state or promote more positive outcomes for those affected by it (see generally Foucault, 1975/1995).

  • 2. A preponderance of this literature focuses on probation officers rather than parole officers. However, the duties of these two types of officers are largely similar with respect to supervision and sanction (Taxman, 2012b), and there is currently no indication that findings would be different for different types of officers. As such, this literature is presented in its entirety rather than selectively focusing on that which pertains specifically to parole officers.