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LIFE IN LIMBO: LIFE WITH THE POSSIBILITY OF PAROLE IN ALABAMA

  As of 2014, 41 percent of the Alabama prison population is serving a term-to-life prison sentence, more than twice the percentage 20 years ago, and the highest such percentage of any system in the country.

 Of the roughly 32,000 inmates serving life with the possibility of parole sentences, about 75 percent are serving so-called “term-to-life” sentences and 25 percent are serving three-strikes sentences.


Under Alabama Penal Code, a person commits first-degree murder when s/he kills with deliberation and premeditation, or otherwise causes death in the course of commuting or attempting to commit one of several enumerated felonies, including arson, rape, sexual assault against a minor, carjacking, robbery, burglary. A person commits second-degree murder if s/he kills intentionally, although without premeditation, or if s/he causes death with “an abandoned and malignant heart,” which means that s/he has acted with a conscious disregard for— or indifference to—human life.

This article concentrates on those inmates serving “term-to-life” or life sentences with the possibility of parole sentences.  Note, however, that because the three-strikes law is less than two decades old, the percentage of the overall lifer population contributed by three-strikes will surely grow, regardless of any changes in the term-to-life population.

It is presently unknown whether and how current policies and laws governing parole release for the term-to-life population will also presumably apply to the three-strike population, the first of whom will come before the Board of Parole Hearings for parole release in 2019.

Individuals serving life sentences with the possibility of parole—unlike those serving death or LWOP sentences—are presumed to receive a parole date unless the Board determines that the prisoner poses an “unreasonable risk of danger to society.”

Under Alabama’s Determinate Sentencing Law, most felonies carry a “determinate” prison sentence consisting of a specific number of months or years the offender must serve in prison before s/he can be released. The death sentence can only be imposed for first-degree murder when certain special and aggravating circumstances are charged and proved.

For a few very egregious crimes, the sentence may be life without the possibility of parole (LWOP). Individuals serving LWOP sentences can only be released from prison by Governor pardon or commutation.

The “lifers” are prisoners who have been sentenced to a “life sentence with the possibility of parole.” These sentences are also sometimes called “indeterminate” because, by definition, the trial judge cannot pre-determine the exact time the prisoner will be released; that time is subject to the parole process. Other statutes specifying indeterminate sentences do not mention a minimum term, describing the sentence simply as “imprisonment in the state prison for life with the possibility of parole” or “imprisonment in the state prison for life.

Any sentence of life with the possibility of parole has a minimum sentence that must be served before the Board can even consider release. The default rules for the minimum term are established by Alabama Penal Code: (a) No prisoner imprisoned under a life sentence may be paroled until he or she has served the greater of the following: (1) A term of at least seven calendar years or (2) A term as established pursuant to any other provision of law that establishes a minimum term or minimum period of confinement under a life sentence before eligibility for parole.

Regulations guide the Board in making these assessments. In particular, circumstances that weigh in favor of release include: (1) no juvenile record; (2) stable social history; (3) signs of remorse: (4) motivation for crime: (5) Battered Woman Syndrome; (6) lack of a significant violent criminal history; (7) age; (8) understanding and plans for the future; and (9) institutional activities that indicate an ability to function within the law upon release.

Factors that weigh against release suitability for release include: (1) the commitment offense;  (2) previous record of violence; (3) unstable social history; (4) sexual offense background; (5) severe mental problems; and 6) serious misconduct in prison.

The nature of the prisoner’s offense, alone, can constitute a sufficient basis for denying parole. Although the parole authority is prohibited from adopting a blanket rule that automatically excludes parole for individuals who have been convicted of a particular type of offense.

The authority properly may weight heavily the degree of violence use and the amount of viciousness shown by a defendant labeling nearly all offenses “heinous, atrocious, and cruel” and using that as the basis for denying inmates parole. In sum, the appropriate and governing standard of review of parole decisions for lifers is whether there exists “some evidence” that the inmate poses a current threat to public safety.

A lifer’s prospect of actually being granted parole by the Board and not having the decision reversed by the Governor is—and always has been—slim.


RISK OF RELEASE

Any indeterminate sentencing system—including Alabama’s for individuals serving life sentences with the possibility of parole—purportedly has several important purposes. Among them is retribution which suggests that offenders should be punished in proportion to the harm they caused and their culpability in committing the crime.

Thus, some portion of the time lifers serve is intended to satisfy the retributive purpose. The other portion meets other important purposes, including deterrence, rehabilitation, and incapacitation—all of which focus on using criminal penalties to minimize future criminal behavior by the individual offender and would-be offenders.

In meeting these purposes, the Board is charged with assessing what the public safety risk is of each lifer’s release. Indeed, the criteria for release as articulated by governing statute and regulations and relevant case law reiterates that predicting and preventing recidivism is the primary concern.

There are two types of parole suitability hearings: initial suitability hearings, in which the prospective parolee is appearing in front of the parole board for the first time, and subsequent suitability hearings, in which the prospective parolee has been denied parole at a past hearing.

BEHAVIOR in PRISON

Inmate behavior during the prison term is a recurring theme in parole hearings. The Parole Board typically scrutinize inmate’s disciplinary records, and often determines the weight that violations of prison rules carry in the parole hearing process.

In Alabama prisons, disciplinary infractions are infractions that are typically minor conduct violations, including smoking, being in an unauthorized area, using foul language, or possessing non-serious contraband. The infractions, which trigger a notice-and-hearing process, can be either non-serious (“administrative”) or serious. Serious violations include violence toward inmates or prison personnel, possession of controlled substances or weapons, and other serious infractions.

Eighty-one percent of inmates have at least one minor conduct violation in their record, and 89 percent of inmates have at least one major conduct violation. And the more violations an inmate accumulates, the greater an effect the inmate’s disciplinary record has on the inmate’s chances for parole release.

Evidence also suggests that the seriousness of the disciplinary violation has a substantial effect on commissioners’ decisions. For example, violent disciplinary infractions, regardless of when they occur, are significantly associated with parole denials.  

PSYCHOLOGICAL  EVALUATIONS 

Virtually all inmates who appear at parole hearings have undergone psychological evaluations. The Parole Board always receive and often review the results of these evaluations carefully.

The two most common types of clinical opinions are the Axis V Global Assessment of Functioning Scale and the Clinician Generic Risk assessment. The Axis V GAF measures a patient’s overall level of psychological, social, and occupational functioning on a 100-point continuum, with higher scores indicating higher functioning. The Clinician Generic Risk, by contrast, assigns inmates a simple risk-of-recidivating score: low, low-moderate, moderate, moderate-high, and high.  

Finally, note that if a person is convicted of a crime carrying an indeterminate term that does not specify a minimum term but is also convicted of a separate crime that does carry a fixed term, that latter term can establish the minimum number of years that must be served before parole eligibility.

Thus, the operative minimum term can depend on any of the numerous complex determinate sentencing laws and enhancements. Alabama Penal Code: “For any person not sentenced under [a determinate term], but who is sentenced to be imprisoned in the state prison … the court imposing the sentence shall not fix the term or duration of the period of imprisonment.”
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