originally published March 13, 2009
I’m an anti-bureaucrat. By nature and temperament I prefer flexibility and discretion to rigid rules and layers of review. Bureaucracy impedes initiative and sometimes individual justice.
But experience has also taught me that bureaucracy has its proper place in restraining corruption, extending opportunity to those outside the “old boy” network, and reigning in those who abuse their discretion.
So I understand why, in the context of criminal justice, legislators react to judges who appear too easy on criminals by imposing mandatory sentence laws. This, in theory, restricts the discretion of judges by forcing them to impose certain sentences for certain crimes.
In practice, these laws mostly serve as a plea-bargaining chip for prosecutors, who are free to avoid mandatory sentences by pursuing lesser charges as part of a plea bargain. And even if prosecutors do pursue mandatory penalties, some Baltimore city judges have been known to subvert this by inviting defendants to choose a trial by judge instead of a trial by jury—a not-too-subtle and completely unethical hint that the defendants won’t be found guilty of the charge that carries a mandatory penalty.
But if anything tempts me to support a mandatory restriction on discretion it’s the behavior of the Maryland Parole Commission when it conducts hearings on violent criminals accused of violating parole. When I refer to “parole” in this article, I am talking about those on “mandatory release” due to the accumulation of diminution (or “good-time”) credits in prison, as well as those on regular parole. Regular parole is when offenders are released by the Parole Commission after serving a minimum portion of their sentence but before they have enough credits for mandatory release.
Parole revocation hearings are conducted by individual parole commissioners who function very much like judges. They hear evidence, decide whether or not the offender violated parole, and choose whether to continue parole or revoke it. One might think that “revoking parole” means that an offender has to go back and do his time. The War Room, the program that tracked violent offenders through the system, taught me differently. It revealed to me what one parole commissioner labeled “the Parole Commission’s dirty little secret.”
When commissioners revoke parole, they have to decide what to do about the diminution credits that offenders accumulate while in prison. They also in most cases have the authority to award “street time,” which means counting the time an offender spends on parole as prison time. Diminution credits and street time are subtracted from the prison time remaining. Commissioners can, and regularly do, manipulate street time and credits so that offenders do very little prison time when their parole is revoked.
Let’s take War Room offender Kevin Cosby, for example. He was on parole for robbery, never reported to his parole agent upon his release from prison, was arrested several times, and finally received one year for a new assault he committed. Parole commissioner Candace Beckett revoked his parole but failed to take away all of his diminution credits, and allowed him credit for nine months that he spent on the street despite his multiple arrests and failure to report. As a result he was released from prison only six weeks after she revoked his parole.
For the 29 violent War Room offenders revoked by Beckett, she took away all credits only seven times—and two of those came after one offender received a new federal life sentence and another a new state 25-year sentence. In 12 of her cases the offender was released within two months of parole revocation, and half of those within one week.
The parole commissioner most unwilling to revoke all credits for War Room offenders was Perry Sfikas, an extremely nice man and former state senator who stepped aside for Senator George W. Della, Jr. when legislative redistricting put them into the same voting district. He was then appointed to the Parole Commission, a place where ex-legislators and political-types often land. In revoking the parole of 38 War Room offenders, Sfikas revoked all credits only once. Eighteen offenders were released within 6 months, and half of those within a week.
The revocation of diminution credits has, like the accumulation of credits, been tinkered with in piecemeal fashion by the Maryland General Assembly. For example, those paroled on violent crimes who commit a new violent crime cannot get street time any longer, though many violent criminals are grandfathered in and can still get street time from willing parole commissioners. And those with handguns and those dealing drugs—a dangerous group of offenders when other risk factors are present--can also get street time from parole commissioners who don’t take them seriously.
The only parole commissioner to regularly revoke diminution credits and disallow street time for War Room offenders was Jasper Clay, a former federal parole commissioner. Maybe that’s no accident. Perhaps it’s time to professionalize the position of parole commissioner, rather than treat it as a political favor. And perhaps we should require reports from the Maryland Parole Commission on its revocation hearings.
But for now, revoking parole is more often a symbol than a consequence for dangerous offenders who violate their parole. If that doesn’t change, maybe we’ll see more mandatory laws from legislators, and I can’t say I would blame them.
Notes on Part 1In my prior article I explained how inmates accumulate diminution credits but failed to note how internal policies have a direct bearing on how fast inmates can accumulate them. For example, by starting inmates out at the lowest levels of security the Division of Correction can make inmates eligible more quickly for programs in which they can accumulate credits.
Security levels are determined by assessing an inmate’s history of violence, but misdemeanor assault, a crime often plea-bargained down from a felony, isn’t counted as violent. An assault can be a push (unlikely to result in jail time) or it can be a severe beating, yet the beating wouldn’t count as violent.
Handgun violations don’t count towards a history for violence unless the charge is for a felon in possession of a gun, and the risk value assessed for drug-dealing has gone down. So a gun-toting drug dealer might not be treated as the significant threat he in fact poses to public safety.
I also commented on only one of several bills that are pending this legislative session that affect diminution credits. A couple of the bills would restrict the credits that child sexual offenders can accumulate, and another would eliminate credits for offenders who commit crimes of violence while on parole. Perhaps the best of the lot in its simplicity and focus is Senate Bill 354, which would require offenders who commit crimes of violence to serve at least 85% of their sentences if they are not paroled by the Maryland Parole Commission.
All the bills contain some merit and some gaps. But the best of each could be achieved by a comprehensive approach that first identifies the goals of diminution credits and evaluates those goals in the context of public safety. The desire to control prison population must come out of the closet so that it no longer secretly drives the awarding and revoking of diminution credits.