The Constitutionalization of Parole: Fulfilling the Promise of Meaningful Review

54 Pages Posted: 29 Apr 2020

See all articles by Alexandra Harrington

Alexandra Harrington

University at Buffalo Law School; Yale University - Law School

Date Written: March 4, 2020

Abstract

Almost 12,000 people in the United States are serving life sentences for crimes that occurred when they were children. For most of these people, a parole board will determine how long they will actually spend in prison. Recent Supreme Court decisions have endorsed parole as a mechanism to ensure that people who committed crimes as children are serving constitutionally proportionate sentences with a meaningful opportunity for release. Yet, in many states across the country, parole is an opaque process with few guarantees. Parole decisions are considered “acts of grace” often left to the unreviewable discretion of the parole board.

This article suggests a way to bring the current reality of parole closer to the Court’s promise that parole can render life sentences constitutional. This article considers how the Supreme Court’s decisions in Graham, Miller and Montgomery work to constitutionalize parole and change the conventional understanding of the board’s determination, and details the current standards of judicial review of parole board decisions. Because parole is now operating to make constitutional the sentences of people who were children at the time of the offense, the Eighth Amendment task placed on parole boards’ shoulders necessitates substantive standards for the parole board, as well as judicial scrutiny of the boards’ determinations.

The article proposes two essential reforms: first, a presumption of release on parole for people who were children at the time of the crime, absent a determination by clear and convincing evidence that they have not rehabilitated; and second, independent judicial review of the parole board decision to determine if the evidence supports defeating the presumption that life in prison is disproportionate for the vast majority of people who committed crimes as children.

Keywords: parole, sentencing, judicial review, eighth amendment, proportionality, juvenile justice, Graham, Miller, Montgomery

Suggested Citation

Harrington, Alexandra, The Constitutionalization of Parole: Fulfilling the Promise of Meaningful Review (March 4, 2020). Cornell Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3580225 or http://dx.doi.org/10.2139/ssrn.3580225

Alexandra Harrington (Contact Author)

University at Buffalo Law School ( email )

School of Law
528 O'Brian Hall
Buffalo, NY 14260-1100
United States

Yale University - Law School ( email )

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