An Uncertain Participant: Victim Input and the Black Box of Discretionary Parole Release

By Noah Epstein

Little is understood about the parole release process, as state parole boards predominately operate with incredible discretion and keep their deliberations and rationales hidden from public view. Even less is understood about the intersection of the inscrutable parole release decision-making process and victim rights. As the victim rights movement mobilized in the 1970s, victims, instead of remaining passive witnesses, came to wield significant influence over the release decision process. Today, victim participation in parole proceedings is increasing as most parole boards proclaim how important victims’ voices are and, in turn, actively incorporate victim input into their release calculus.

Yet, it is not entirely clear what role, if any, victims should have in the release process because it is not entirely clear what purposes parole release should serve more generally. Rather than resolving these pressing questions that are at the heart of the release decision, the current system gives individual parole board members a great degree of discretion when it comes to how they approach victim input and the role it should serve. This approach has resulted in a release process that treats victim input in a troubling and inconsistent manner, which is unfair to inmates, victims, and parole board members alike.

To make sense of this situation, this Note identifies four analytical frameworks for understanding discretionary parole release, which reveal board members’ options for approaching victim input. Ultimately, this Note proposes that parole boards should approach the release decision as an evaluation of both the inmate’s rehabilitation and the extent to which sentencing’s retributive and deterrent goals have been met. In this vein, victim input should only influence the release decision if it provides information, not emotion, that the inmate is not rehabilitated or that the judge’s minimum sentence did not accurately reflect the impact of the crime and that retribution or deterrence has not been met. In recognition of the implications of such an approach, this Note proposes procedural changes to the release decision and structural changes to parole boards. These recommended reforms are animated by principles of equity, transparency, and procedural justice. Applying this Note’s approach to victim input in the parole process and implementing the corresponding procedural changes can hopefully create a system that is fairer for inmates, minimizes risks of secondary harms to victims, and protects board members from improper external pressures.