Document Type

Article

Publication Date

Spring 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.


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