From Grace to Grids: Rethinking Due Process Protection for Parole

41 Pages Posted: 25 May 2017  

Kimberly Thomas

University of Michigan Law School

Paul D. Reingold

University of Michigan Law School

Date Written: May 2017

Abstract

Current due process law gives little protection to prisoners at the point of parole, even though the parole decision, like sentencing, determines whether or not a person will serve more time or will go free. The doctrine regarding parole, which developed mostly in the late 1970s, was based on a judicial understanding of parole as an experimental, subjective, and largely standardless art — rooted in assessing the individual “character” of the potential parolee.

In this Article we examine the foundations of the doctrine, and conclude that the due process inquiry at the point of parole should take into account the stark changes in sentencing and parole practice over the years. Since the development of the parole due process doctrine in the 1970s, two seismic shifts have occurred. First, the constitutional protections provided at the initial sentencing have vastly increased. Second, the parole process itself has been transformed by the move to evidence-based parole guidelines and the use of actuarial risk-assessment instruments as the norm in parole decision-making.

In this Article we document the changes in this under-scrutinized area and assert that the liberty interest in parole should more closely match the present-day legal account of the liberty interest that courts afford defendants at sentencing.

Keywords: Due Process, Parole, Sentencing, Constitutional Protections, Criminal Law

JEL Classification: K00, K14, K49

Suggested Citation

Thomas, Kimberly and Reingold, Paul D., From Grace to Grids: Rethinking Due Process Protection for Parole (May 2017). Journal of Criminal Law and Criminology, Vol. 107, No. 2, 2017; U of Michigan Public Law Research Paper No. 555. Available at SSRN: https://ssrn.com/abstract=2973894

Kimberly Thomas (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

Paul D. Reingold

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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