“A Reflection on Offenders and Parole” by Joe Giarratano

”Distrust all in whom the impulse to punish is powerful.” – Nietzsche
”Compassion is the basis of all morality” – Schopenhauer

In 1995 the Commonwealth abolished the possibility of parole for all offenses committed
after July of that same year. Prisoners in incarcerated prior to that new law
remain eligible for parole in accordance with the operative statutes that were
in place at the time they were convicted and sentenced. As a general rule, a
state has no duty or obligation to establish a parole system, and a state
prisoner has no federally protected constitutional right to be released on
parole prior to the expiration of a valid sentence. Nevertheless, once the state
chooses to establish a system of parole a very narrow liberty interest is
created that warrants some minimal due process protections; and the procedures
used in that system must be fundamentally fair. This is minimal requirements as
federal courts have consistently held is generally satisfied when the prisoner
is fairly considered for parole and notified of the reason for denial.

For those prisoners sentenced prior to July 1995, the Commonwealth created a
parole system whereby prisoners might be released at the sound discretion of the
Virginia parole board. Though Virginia prisoners sentenced before 1995, clearly
have no right to be paroled, by creating that parole system the General Assembly
did create a right for those prisoners who remain eligible to be considered
fairly for parole release in accordance with the statues governing their parole
eligibility. It cannot be disputed that the pre-1995 Virginia scheme for
discretionary parole consideration created substantive rights for those
prisoners still eligible for consideration. Those substantive predicates are
clearly defined unlimited to legislative direction as to when the prisoner
becomes eligible, the timing of the parole review and the factors to be
considered. The actual grant or denial is left to the sole discretion of the
board. Under the federal Constitution the courts have consistently held that the
Virginia scheme for discretionary parole consideration does not create an
expectation of release and thus, does not create a liberty interest under the
Federal due process cause. In short the federal courts conclude that if the
parole board may grant a prisoner parole under certain specified conditions, a
federal liberty interest is not created because the officials still have the
discretion not to grant parole.

Though the Virginia parole board has implemented its own procedural rules whose
purpose is ostensibly ”to assist the parole board members to make consistent,
objective, and accountable parole decisions” such procedural rules by themselves
do not create a federally protected liberty interest (only an actual restriction
on the decision-makers discretion will do so). The Virginia parole statute
requires that (pre-1995 cases) prisoners should become eligible at certain
prescribed times, but does not restrict the grounds upon which the prisoner may
be granted or denied parole; and thus does not create a federally protected
liberty interest protected by due process even when the board violates its own
regulations. Under the federal standard mere procedural changes in parole
consideration that do not affect substantive rights do not offend the federal
Constitution. Thus parole boards may lawfully change their guidelines for
rendering the parole decision without violating federal constitutional
prohibitions because those guidelines are purely discretionary and prisoners
have no legitimate expectation that the guidelines will be followed. Simply
stated, such administrative guidelines are not considered to be or carry the
force of substantive laws.

The Virginia parole board has not implemented any procedures that that abolish
parole eligibility. The only recourse open to Virginia prisoners to enforce the
boards procedural guidelines, if they can be enforced at all, will be a state
court action. A Virginia prisoner’s only procedural protection in the parole
release process will be derived from state law and state constitutional

A few years ago a chairman of the Virginia parole board openly acknowledged
that those prisoners sentenced under the law in effect prior to 1995 are in
fact serving longer sentences than that which was expected at the time of their
sentencing. He further acknowledged that since the abolishment of parole,
parole decisions for those still eligible will keep those prisoners
incarcerated longer than those individuals sentenced under the 1995 law. Many
objective observers agree that the judicial intent in the pre-1995 cases is
being ignored, and that the process in effect is fundamentally unfair. The
standard refrain issued by the Virginia parole board as the reason for the
decision not to grant parole is ”serious nature of the offense”: the one factor
that no amount of time served in prison can ever alter.

Parole, like punishment itself, is essentially an issue with profound moral
ramifications. In our constitutional democracy where we profess to be, at least
in theory, committed to the protection of human rights and the values of
individual liberty, privacy and autonomy, it has always been recognized that
punishment requires justification. The goals and purposes of a system of
punishments, though often quite diverse, can generally be stated along these
lines: vindication of the law, crime prevention, and offender rehabilitation.
Disputes over punishment generally center on which goal is to take priority over
the others and why. Because there are different types of crime, because crimes
are committed by different types of people, all of which usually require
different and innovative kinds of responses; we should always tread carefully
and not generalize about the issues concerning crime and punishment.
Nevertheless, there has been one common sense consensus that all agree on:
punishment can function properly, i.e. serve it’s legitimate moral function,
only if it comes to an end. Punishment’s moral function is to help reform the
offender’s character, and it necessarily follows that it makes little sense to
punish someone who has actually reformed him or herself. Thus it has been
recognized that the duration of punishment is not to be a measurement of the
exchange value of the offense, i.e. there must be a valid just means of
adjusting the duration of the punishment to the useful reformation of the
prisoner during the term of his or her imprisonment. The primary aim, once an
offender has been convicted and sentenced to prison, of the penalty that
deprives of liberty is the reformation and social rehabilitation of the
prisoner. Once that aim is realized further incarceration becomes useless,
inhumane to the person being punished, and a burdensome waste of societal
resources. Thus, unless the benefit of parole is meaningfully extended to all
penalties involving a term of imprisonment, we are defeating the legitimate
purpose of punishment and subjecting ourselves to a detrimental exercise in
futility. The feeling of injustice that such an arbitrary and capricious process
invokes in the prisoner is one of the major factors that retards and/or negates
self reformation.

When the prisoner sees him or herself exposed to this form of suffering, a
suffering that the law has neither ordered nor envisioned, a sense of
resentment can set in and justice itself becomes the accused.

When punishment degenerates to base revenge then we, as a society, must honestly
reevaluate what our ultimate vision of what human society should be. If we
punish offenders so that they will pay their ”debt to society”, then we must
also honestly consider whether we have met our obligations to them. The reality
is that the issues of crime ,punishment, victimization, immorality, amorality,
etc. cannot be separated from the broader questions about the justice or
injustice of the social order. In order to develop it is important that
offenders function in a context that they perceive as fundamentally fair. It is
extremely difficult for individuals to develop in a context that is seen to be
injust and hypocritical. That applies to any system of punishment and parole.