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Freeing Morgan Freeman: Expanding Back-End Release Authority in American Prisons

41 Pages Posted: 6 Dec 2013 Last revised: 11 Dec 2013

Frank O. Bowman III

University of Missouri School of Law

Abstract

This article, written for a symposium hosted by the Wake Forest Journal of Law & Policy on “Finality in Sentencing,” makes four arguments, three general and one specific.

First, the United States incarcerates too many people for too long, and mechanisms for making prison sentences less “final” will allow the U.S. to make those sentences shorter, thus reducing the prison population surplus.

Second, even if one is agnostic about the overall size of the American prison population, it is difficult to deny that least some appreciable fraction of current inmates are serving more time than can reasonably be justified on either moral or utilitarian grounds, and therefore American criminal justice systems ought to adopt mechanisms for identifying both individuals and categories of prisoners whose terms should be shortened.

Third, it is impossible, or at least unwise, to try to make “final” decisions — at least good final decisions — about how long someone should spend in prison at the beginning of the prison term, at least if that term is supposed to be very long. Thus, in cases where a long sentence is imposed, one ought not make the initial, front-end, judicial sentencing decision “final,” but should instead create mechanisms for one or more later second looks.

After exploring these contentions, I conclude that discretionary early-release mechanisms should be restored where they have been abandoned, and reinvigorated where they have languished. In particular, I propose instituting a discretionary back-end release mechanism for some categories of both federal and state long-sentence prisoners and I explore the political and institutional difficulties of doing so.

Keywords: parole, criminal law, sentencing, criminal sentencing, parole commission, parole board, back-end release, federal sentencing, over-incarceration, prison

JEL Classification: K14, K4, K40, K42

Suggested Citation

Bowman III, Frank O., Freeing Morgan Freeman: Expanding Back-End Release Authority in American Prisons. 3 Wake Forest Journal of Law & Policy (2013); University of Missouri School of Law Legal Studies Research Paper No. 2013-25. Available at SSRN: https://ssrn.com/abstract=2363625

Frank O. Bowman III (Contact Author)

University of Missouri School of Law ( email )

Missouri Avenue & Conley Avenue
Columbia, MO 65211
United States
573-882-2749 (Phone)

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