Prosecutorial power comes in many forms. In some ways, District Attorneys’ ‘soft’ power—the influence they wield outside of the courtroom and inside other halls of power—can be equally damaging to both public policy and case outcomes as their use of discretion in courts. Over the past few years, excellent reporting and research has drawn attention to the outsized clout prosecutors have in legislatures all over the country. However, another manifestation of prosecutorial power has generally evaded public scrutiny: when DA’s offices block or discourage state boards and governors from granting applications for clemency or parole.
This topic has recently drawn some scholarly attention. Professor R. Michael Cassidy explains what parole boards do in a forthcoming article titled “Undue Influence: A Prosecutor’s Role in Parole Proceedings”:
states tend to agree on the basic “standards” for granting parole—that is, the questions parole board members are asked to consider. Most commonly, parole boards are allowed to grant release when 1) there is a reasonable probability that the inmate can live outside prison without reoffending, and 2) release would not be incompatible with public safety and welfare. In answering these two questions, jurisdictions typically require their boards to consider the prisoner’s criminal history, the nature and seriousness of the offense for which he was imprisoned, his department of corrections disciplinary record, any rehabilitative or educational programs in which he participated while in prison, and his prospects for employment and family/ community support upon release.
While states have a variety of rules governing whether and how prosecutors can participate in the process, prosecutorial input is permitted in nearly every jurisdiction. Sometimes they testify, other times they submit letters. In most instances, the anecdotal evidence suggests that they weigh in against granting an offender parole or a commutation.
Cassidy’s timely article also provides some telling examples of how prosecutors have shown up at parole hearings and recklessly thrown around their opinions. Consider this example, a fairly typical one:
In Massachusetts, Alfred Brown, who murdered his parents and sister when he was 16, was being considered for parole after the Supreme Judicial Court ruled that life sentences without parole for juveniles—whether mandatory or discretionary—violated the state constitution. The prosecutor in the murder case, John Doherty, appeared personally and testified that if Brown were released, “he will kill again.” Brown, who was 55 years old at the time of his hearing, was denied release on parole.
Nearly four decades after the trial, Doherty believed he had enough information about a man whom he had never even known as an adult to give a firm prediction of future dangerousness.
Parole boards should stop relying upon the views of prosecutors for the same reasons that legislatures should: (1) no matter what they claim, prosecutors are almost never experts on the issues that boards and legislatures confront; (2) prosecutors historically care about maintaining their power above all else, just like any special interest group; and (3) simply put, it is not their job. If one wants to argue that it’s sensible to at least consult District Attorneys just to get more information on which to base a decision, then one must also ask why defense counsel is not provided to offenders seeking parole or why expert defense attorneys are not asked to weigh in on a particular offender’s application. The system’s failure to balance the process reveals that its inclusion of prosecutors invites bias rather than reason.
The most compelling reason to limit prosecutorial input on decisions about whether incarcerated people deserve back-end relief is that their views are totally unreliable. They are not experts on corrections, rehabilitation, and an individual’s prospects for a safe and productive reintegration. Social workers, correctional officials, sociologists, psychologists, members of the community—so many other people have so much more to contribute. In honest moments, even retrograde “tough on crime” prosecutors admit they lack the expertise to meaningfully contribute to parole or commutation decisions. Consider what Orleans Parish District Attorney Leon Cannizzaro said in the juvenile-lifer context: “We’re basically guessing on these cases . . . . I think this is an unfair call for the district attorney.”
Nevertheless, District Attorneys continue to be consulted, their views far too often exalted and glorified.
Even in the refreshing cases in which a prosecutor’s views are ignored, they still have the chance to pollute the atmosphere. In some cases, they stand before members of the board and say outrageous things—for example, claiming they would fear for their lives if a physically-limited septuagenarian offender who has been given an extraordinarily low risk-assessment score is “let loose.” In others, they recite facts of a long-ago offense as if they occurred yesterday, providing zero new information to the board (or, worse yet, bringing in (mis)information from outside the record that was never tested in court). They bring the drama of a closing argument in the hopes they can drum up the emotions required to slam the door on an inmate’s chances for release. It can be an unsightly spectacle.
Even unthinking or unaware District Attorneys can spoil things. Prosecutors who do not want to challenge certain parole or commutation applications need to keep a sharp eye on their offices. In some cases, trial prosecutors will submit letters in opposition to parole applications without notifying their bosses. These letters can have a devastating and decisive effect.
Of course, we’ve gathered much of this information through experience and observation, but we’re a little blog in a little corner of the criminal justice universe. We implore journalists and the public to pay close attention to what is happening on the back-end. Mass incarceration will not end in the next generation or two unless we actually release people from prison. As one law professor wrote in a letter to the New York Times: “If prosecutors truly wanted to redress the last several decades of mass incarceration, they could start by declining the longstanding, knee-jerk practice of opposing parole and clemency for the countless number of people who should be released from prison.” For so many people in prison, the only hope is parole or a commutation.