Judges, lawyers, and legal advocates sign an open letter in support of would-be parolees languishing far too long.
By SCOTT RODD
Judge Mary Ellen Abrecht first became aware of D.C.’s dysfunctional parole system in “correspondences with prisoners,” she says. She served as a D.C. Superior Court judge from 1990 to 2003 and as a senior judge from 2003 to 2015. “[They] would write to me saying, ‘I expected to be eligible for parole by now.’…Those kinds of complaints became frequent enough that I started to credit them,” she says.
Abrecht is one of 17 judges, prosecutors, defense attorneys, and legal advocates who signed an open letter earlier this year arguing that many D.C. offenders serving parole sentences have languished behind bars for significantly longer than intended. The letter supports a petition before the Supreme Court, which was distributed this week, against the U.S. Parole Commission, a little-known federal agency under the Department of Justice. The Parole Commission assumed authority over 10,000 D.C. inmates with parole sentences after parole was abolished in the late 1990s. The transition of authority to the Parole Commission was rocky from the start: Court battles ensued, federal statutes were rewritten, and legal advocates began to question if the commission was adequately prepared to process D.C. inmates.
“I was surprised that the Parole [Commission] was sort of ignoring the judge’s sentence and establishing their own guidelines as to what kind of time the offense was worth,” Abrecht says. “When you’re a judge making a sentence, you expect that your sentence [will be] honored.”
The lack of access to rehabilitative programming, in particular, posed a significant risk of extending incarceration for D.C. offenders serving parole sentences. The Parole Commission regularly required participation in rehabilitative programming before granting parole, but extensive waitlists likely waylaid inmates who applied and some programs were only available at a handful of facilities. For inmates who committed serious crimes, like as sex offenses, the lack of access to rehabilitative programming not only significantly extended incarceration but also poses public safety concerns upon release.
The National Capital Revitalization Act of 1997 overhauled the criminal justice system in the District of Columbia, shutting down the local Lorton prison, transferring male felons to federal prisons around the country, and abolishing parole sentencing.
In 2000, after assuming authority over the remaining D.C. inmates with parole sentences, the U.S. Parole Commission established its own guidelines for granting parole and discarded the guidelines used by the D.C. Parole Board. The new guidelines set a higher bar for D.C. inmates to be released and afforded the Parole Commission greater discretion to deny parole. The new guidelines also allowed the Parole Commission to hold parole hearings up to five years apart, whereas the D.C. Parole Board held parole hearings yearly. Finally, the Parole Commission presumed an inmate would participate in rehabilitative programing, and not participating was often grounds for denying parole.
Some in the criminal justice system saw the new guidelines as a flag in the sand for the Parole Commission—an effort to establish its longevity. Before the Revitalization Act, the Parole Commission faced imminent closure. After Congress abolished federal parole in 1984, the commission shut down all five of its regional offices and significantly cut its staff. In 1996, Congress passed the Parole Commission Phaseout Act, which planned to shutter the commission by the early 2000s.
“If it wasn’t for the [Revitalization Act],” says Rob Haworth, a former parole hearing examiner, “I wouldn’t have been called back to the Parole Commission.” Haworth worked at the Parole Commission from 1978 to 1989 before he was transferred to Georgia’s parole board. He returned to the Parole Commission in 1998 until his retirement in 2010. “DC cases became the bulk of our work—federal cases dwindled to a very small number.”
Navigating the Parole Commission’s new guidelines proved a significant challenge for D.C. inmates—in part because they had virtually no access to legal counsel during parole hearings. Between 2001 and 2006, less than 1 percent of D.C. inmates had attorney representation at parole hearings. In 2002 alone, an attorney was present at only two of 1,754 hearings. By comparison, attorney representation at federal parole hearings for the same period averaged just under 10 percent.
Unlike criminal trials, attorney representation is not guaranteed at parole hearings. But D.C. inmates faced an outsized burden for attaining legal representation. Only an attorney familiar with D.C. code would be effective at parole hearings, but most D.C. inmates couldn’t afford private counsel. The legal groups that typically organized pro bono representation were stymied by the logistics of recruiting and coordinating attorneys to travel across the country for hearings scheduled throughout the year.
Over time, the legal community in D.C. took notice of the challenges facing inmates sentenced under the old parole system. Several suits were filed against the Parole Commission, and in 2008, the D.C. District Court found that the Parole Commission’s new guidelines posed a significant risk of extending inmates’ incarceration. The ruling compelled the Parole Commission to apply the older, less-stringent parole guidelines to inmates convicted after 1985. In 2010, the Parole Commission settled a similar suit that extended these guidelines to inmates convicted before 1985.
The Parole Commission denies that its practices extended incarceration, pointing to the drop in the number of D.C. inmates serving parole sentences. Between 2000 and 2014, D.C. inmates with parole sentences fell from approximately 7,500 to 1,500. If its practices extended incarceration, the Parole Commission argues, then the number of inmates behind bars would be significantly higher.
Stacey Litner, a prisoners’ rights advocate at Washington Lawyers’ Committee, disagrees.
“Those numbers, on the surface, are misleading,” she says. “No D.C. inmate has entered prison with a parole sentence [since 2000], so of course the number of inmates was going to drop. The question is whether the number of inmates would have dropped faster if the right guidelines were applied. I think it would have.”
Over the last 15 years, the Parole Commission routinely required D.C. inmates to participate in rehabilitative programming before granting parole, but these programs were often unavailable.
Drug offenders seeking parole, for example, were typically required to complete theResidential Drug Abuse Program (RDAP). The BOP, however, prioritizes inmates at the end of their sentence for admission to RDAP. Drug offenders with parole sentences, as a result, were left at the bottom of the waitlist—which ballooned in the 2000s. Between 2006 and 2011, the waitlist for RDAP averaged over 10,000 inmates per year. Additionally, until 2013, RDAP was not offered at any high-security facilities, which is where most D.C. inmates are housed by default.
If an offender was denied parole at his initial hearing and required to participate in programming, his next hearing would typically be held three years later. If he was unable to gain admission to a required program in that time, his next parole hearing may not be for another three years. Additional years of incarceration, as a result, could easily add up.
According to Diana Maurer, Director of Homeland Security and Justice Issues at the Government Accountability Office, the BOP has improved the availability of RDAP in recent years by reducing the waitlist and offering the program at four high-security facilities.
For violent offenders, the Parole Commission regularly requires participation in a program called Challenge. While the program is offered at most high-security facilities, the waitlist jumped from 284 to 482 inmates between 2008 and 2012. The criteria for admission into Challenge can also be limiting. According to one inmate, the Parole Commission required him to participate in Challenge but he did not have a demonstrated history of drug abuse or mental illness, which is required for admission. He applied for the program but was ultimately denied as a result.
The lack of available data from the Parole Commission and BOP makes measuring the severity of extended sentences difficult. Both agencies denied numerous requests for detailed data on incarceration for D.C. inmates and declined to comment for this story.
Rob Haworth acknowledges that some inmates get trapped in this catch-22 of programming and parole, but claims it impacts only a small number of inmates.
“I have seen it be an issue, [but] I’ve never viewed it as a serious problem,” he says. “I’ve had inmates complain about it at hearings…[but] often times it was greatly exaggerated by the prisoner [who] understandably just wanted out of prison.”
Avis E. Buchanan, director of Public Defender Services in D.C., disagrees.
“We know that this happens, because we have witnessed it in individual cases,” she says. “[When] there is a breakdown in access to programs, the inmates are left with … prolonged incarceration, further alienation from support systems at home, and the loss of hope for success.”
The Parole Commission requires virtually every sex offender to participate in sex offender treatment programming in order to be considered for parole. But inmates are unable to participate in sex offender programing until the very end of their sentences, making release on parole nearly impossible. Some D.C. inmates may reach their release date and not participate in the program at all. Not only does the lack of access to sex offender programs extend incarceration upwards of a decade in some cases, it can impact an inmate’s rehabilitation, successful reintegration, and likelihood of recidivism, which raises significant public safety concerns.
In 2006, Congress passed the Adam Walsh Act to “protect the public from sex offenders … and vicious attacks by violent predators.” The law required the Bureau of Prisons to establish a residential and non-residential sex offender program in each of its six regions. Sex offender programs, according to the BOP, have “proven effective in reducing inmate recidivism” by promoting “values and behaviors that are needed in the outside community.”
The BOP has had difficulty establishing the required number of sex offender programs set out in the Adam Walsh Act. At a 2010 Oversight Committee hearing, Harley Lappin, former BOP director, stated that the agency had established the six sex offender programs required by Congress. In fact, this was only half the number of required programs—and only one was a residential treatment program. Residential programs are intended for serious and repeat sex offenders—arguably those who need rehabilitation most. Today, only two of the 100-plus BOP facilities have residential sex offender programs.
Lappin, who now works at Correction Corporation of America, did not respond to a request for comment.
Inmates who apply for sex offender treatment “are prioritized for placement based on their projected release date” in order to reduce the likelihood of recidivism. Inmates are typically admitted to the program in the last three years of their sentence. Program applicants who are not in the last three years of their sentence—which includes most inmates eligible for parole—are left at the bottom of the waitlist. Between 2008 and 2012, the number of inmates on the waitlist for sex offender programs increased nearly five-fold, from 381 to 1,776. The BOP is supposed to expand sex offender programming based on demand, but thus far has failed to do so.
When a sex offender serving a parole sentence approaches his mandatory release date and becomes eligible for the program, the incentive to participate is gone. An inmate will be released at his mandatory date regardless of whether or not he participates in the sex offender program.
Jessica Steinberg, Associate Professor of Clinical Law at Georgetown University, is dismayed by the handling of this issue.
“If [they] think that programming aids an offender’s rehabilitation,” she says, “then wouldn’t we want inmates to participate before being released?”
Gladys Mack, former chairwoman of the D.C. Parole Board and a signatory of the open letter, agrees. “If treatment or programming is the reason a person is being kept incarcerated … the [BOP] has a responsibility in making sure that person has access to it. You can’t say someone needs [programming] and then make no effort to see that they have it.”
Incarceration is perhaps the most crucial time for sex offenders serving a parole sentence to receive rehabilitative treatment. If a sex offender reaches his mandatory release date without participating in programming in prison, he may only have one or two years of low-intensity sex offender aftercare following his release. If he reaches his maximum sentence in prison without participating in programming, then he will be released into the community without any rehabilitative treatment.
By comparison, a D.C. sex offender sentenced after parole was abolished may be required to participate in aftercare treatment for the duration that he is on the Sex Offender Registry—in serious cases, up to the rest of his life. For sex offenders with parole sentences, however, the same safety net isn’t guaranteed.