Leaving Prison Early, Part III: When Violating Parole is a Good Thing

originally published March 30, 2009

Antwon Witherspoon was on parole for felony assault when he was arrested and convicted for carrying a handgun, for which he got five years in prison without parole.

But as I explained in Part I of this series, five years—even "without parole"—doesn’t mean five years. The moment Witherspoon was sentenced he faced only 4 years, 3 months in prison, with a chance to reduce that even more through diminution ("good-time") credits.

So a normal citizen would think that Witherspoon would at least have his parole revoked and serve out the rest of his assault sentence. But Parole Commissioner David Blumberg continued Witherspoon’s parole instead. And in the perverse world of Maryland’s sentencing and prison laws, that made sense. The new gun sentence and the old assault sentence ran "concurrently," meaning at the same time. By continuing parole, Blumberg ensured that no good-time credits from Witherspoon’s prior sentence could be applied to his new sentence. So while Witherspoon escaped the consequences of violating parole, at least he didn’t reap the windfall of having his prior crime reduce his new sentence.

I have seen dangerous offenders sentenced to five years "without parole" released in less than two years. In fact, according to parole commissioners, parolees have actually sued the Parole Commission for not revoking their parole.

Maryland legislators have made some adjustments to this system and are contemplating more. But the laws are so convoluted that it is difficult to grasp them. Some reforms apply to regular parole but not to mandatory release on good-time credits. Others require that both the old and new crimes be "violent" (which excludes guns, drug-dealing, and misdemeanor assault.) And most don’t apply to offenders who have been in prison for many years and are being released now. The whole thing needs a comprehensive review, not the annual legislative tinkering with the hot issue of the moment (guns, child sex offenders, etc.)

But even without an overhaul, and even if new laws have limited impact or fail to pass, two things can be done immediately to help.

First, when parolees have violated other rules of parole besides committing a new crime, parole commissioners should stop waiting for the new cases to resolve. Parole commissioners behave like many judges who regard anything short of a serious new conviction as nothing to bother about. Instead of assessing risk based on the prior crime and holding parolees accountable for misbehavior, parole commissioners and judges routinely wait until the new case is over before deciding what to do.

If parole commissioners revoked parole on other violations before a new sentence is handed down, then judges could make their sentences in the new cases consecutive to the old sentence. A criminal would serve out the old sentence and then begin the new sentence. Old credits could not be applied to new sentences, and parole violations would actually be punished, not ignored or rewarded.

But in the vast majority of cases I monitored in the War Room, the program that tracks violent offenders, sentences ran concurrently. This allows a criminal not only the ability to serve two separate sentences at the same time, but a chance to have the new sentence reduced by the first.

Maryland law requires judges to say whether their sentences are concurrent or consecutive to other sentences. In reality, in Baltimore anyway, most judges don’t say anything unless they are handling multiple cases at the same time. They simply set the start date for the new sentence, which automatically makes it a concurrent sentence. Judges need to make their sentences consecutive as a matter of course. And Maryland legislators ought to make consecutive sentences the default action, rather than the other way around.

For those offenders whose only parole violation is a new crime, a little extra work could also avoid concurrent sentences for dangerous offenders. For example, parole revocation hearings could be conducted after a new conviction but before the sentence is imposed. The parole could be revoked, and the new sentence then made concurrent. Of course that would take initiative, cooperation between agencies, and focus on violent offenders. From what I saw in the War Room, most of those within the state system are so focused upon their own narrow job and so flooded with cases that they just want to move on. Move on to the next case. Move the inmate out of prison to make room for another.

And so we live in a universe where logic dictates that the Parole Commission not revoke the parole of violent criminals who carry guns. Is it any wonder they recycle through the system over and over?

Two Guiding Principles

David Blumberg, an amiable man with a self-deprecating sense of humor, is a librarian by training who worked within the prison library system. He also chaired Baltimore’s Republican state central committee and was extremely active in Republican circles, leading to his appointment as chair of the Maryland Parole Commission after Robert Ehrlich’s election as governor. Blumberg’s handling of War Room offenders was typical of most commissioners: not as lenient as Candace Beckett and Perry Sfikas, not as willing to consistently revoke all good-time credits as Jasper Clay. (See Part II.)

So while he avoided giving Antwon Witherspoon a windfall by revoking his parole, he regularly follows the two unstated rules of the Maryland Parole Commission:

Don’t bother to revoke parole if the parolee is within a few months of the expiration of his sentence. Over and over again, Blumberg (and the other parole commissioners) would simply close parole cases for offenders arrested near the end of their terms rather than attempt to revoke their parole.

If the courts don’t do anything to the parolee for committing another crime, don’t you bother to, either.

a. Clyde Tatum was on parole for armed robbery when he was convicted of drug-dealing and sentenced to probation by the Baltimore Circuit Court. Blumberg allowed 5 ½ years of street time (although Tatum had a prior revocation hearing during that time) and enough good-time credits to allow Tatum to be released the same day. "Street time" is the time a parolee spends out of prison that is credited towards his sentence

b. Albert Bethea, on parole for murder, got "time served" in court for a new felony burglary. Blumberg continued his parole.

c. Alex Hilton was on parole for three cases of drug-dealing and was charged with carrying a gun and dealing drugs again. He was convicted of the drug-dealing charge and put on probation. Blumberg revoked his parole, allowing enough street time and credits to allow Hilton’s release eight days later. Hilton had also been revoked three years earlier for which he was allowed two years street time and all of his good-time credits.

d. On parole for robbery and drug-dealing, Heaven Godley (a real name) had not been reporting consistently to his parole agent. When his new domestic violence case was dropped, Blumberg continued his parole. Godley had also been continued on parole two years earlier despite a new conviction.

e. Nathan Hargrave was arrested for drug-dealing while on parole for manslaughter and drug-dealing. He got one year in his new case. Blumberg revoked parole but took away so few credits away that Hargrave was released 4 days after the hearing and less than 7 months after committing the new crime.

f. On parole for murder, Donald Knight was convicted of drug-dealing and sentenced to 12 years, all of it suspended. Blumberg allowed nine months street time and enough credits that Knight was released three days later. Knight had been revoked before and was allowed four years street time.

g. Terry Faison, on parole for a violent sexual offense, got two months (time served) in court for failing to register as a sex offender. Blumberg allowed him 11 months of street time (which included the time he had failed to register) and let him keep enough good-time credits to allow his release three months later. This, by the way, is typical of the punishment given to sex offenders who fail to register.