Parole: Corpse or Phoenix?

Paul J. Larkin Jr.

The Heritage Foundation

July 28, 2013

American Criminal Law Review, Vol. 50, p. 303, 2013

For most of the twentieth century, the federal government used an indeterminate sentencing system at the front end of the correctional process and a parole system at the back end in order to determine when an offender should be released from prison. In 1984, Congress sought completely to revise the federal sentencing and correctional processes. Congress adopted a mandatory sentencing guidelines system in order to restrain the discretionary sentencing authority that federal courts traditionally had enjoyed. Congress rejected an advisory guidelines system because Congress believed that such a process would not eliminate the sentencing disparities that had plagued the federal criminal justice system for decades. Because the new mandatory guidelines would both regularize the sentencing decision and determine when a prisoner would be released, Congress repealed the federal parole laws as being unnecessary. The Supreme Court upheld the constitutionality of the new system over separation of challenges in Mistretta v. United States, 488 U.S. 361 (1989), and parole seemed to have passed into history. Sixteen years later in United States v. Booker, 543 U.S. 220 (2005), however, the Court held that the same mandatory sentencing guidelines system upheld in Mistretta violated a defendant’s rights under the Sixth Amendment Jury Trial Clause. Booker and later decisions have made the federal sentencing guidelines advisory. The problem is that Congress rejected an advisory guidelines system and would not have repealed the parole laws if the federal sentencing process did not strictly constrain district courts’ sentencing authority. One of the consequences of the Booker decision, accordingly, is that federal sentencing now is susceptible to the same disparities that Congress sought to remedy with mandatory determinate sentencing guidelines in 1984. The article discusses the question whether the Booker decision has breathed new life into the federal parole laws now that the condition precedent for their repeal, adoption of a mandatory sentencing guidelines system, is no longer in effect.

Number of Pages in PDF File: 38

Keywords: Parole, Sentencing Reform Act of 1984, Mistretta, Booker

Open PDF in Browser Download This Paper

Date posted: July 29, 2013  

Suggested Citation

Larkin, Paul J., Parole: Corpse or Phoenix? (July 28, 2013). American Criminal Law Review, Vol. 50, p. 303, 2013. Available at SSRN: http://ssrn.com/abstract=2302412 or http://dx.doi.org/10.2139/ssrn.2302412

Contact Information

Paul James Larkin Jr. (Contact Author)
The Heritage Foundation ( email )
214 Massachusetts Ave NE
Washington, DC 20002-4999
United States
202-608-6190 (Phone)
Feedback to SSRN

Paper statistics
Abstract Views: 343
Downloads: 53
Download Rank: 278,649

© 2016 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollobot1 in 0.203 seconds