Matthew T. Mangino
The Pennsylvania Law Weekly
May 6, 2014
Prison is a terrible and lonely place. As a former member of the Pennsylvania Board of Probation and Parole, I have visited many of Pennsylvania's prisons and have spent countless hours in correctional facilities interviewing inmates who are eligible for parole. Not everyone who is eligible for parole is granted parole.
There are many legitimate reasons to deny parole. Ongoing and persistent failure to conform conduct to prison rules; refusal or failure to complete rehabilitation programs; failure to take responsibility for one's criminal conduct; a pattern of past failures on parole; or a poor parole interview.
There is little an inmate can do to immediately correct a majority of the reasons for denying parole. Other than the passage of time along with a persistent effort to complete programming and a genuine commitment to planning a meaningful reintegration into society, inmates cannot easily undo a board action denying parole.
The passage of time means a longer period of incarceration. As a result, a two-to-four-year sentence becomes a three-to-four-year sentence. Is there anything an inmate can do? Prepare as thoroughly for a parole interview as a defendant prepares for trial. Seek the guidance of a skilled professional to assist in the preparation.
When I worked as a prosecutor, I was acutely aware of the time and effort that went into preparing for trial. Hours were spent preparing witnesses. Defense counsel spent an equal amount of time with witnesses and the defendant preparing for the hours, days or even weeks needed to try a case.
A half-century ago, the U.S. Supreme Court confirmed that the Sixth Amendment provided, "In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense."
Fifty years later, the focus has evolved from merely the right to counsel to the right to effective representation. That representation has turned from ensuring a fair trial to ensuring effective assistance on matters such as plea bargaining and the collateral consequences of sentencing.
Why? A defendant's liberty is at stake.
The effective assistance of counsel can be the difference between two years in prison or five years; the difference between a felony conviction or the conviction of a misdemeanor. The effective assistance of counsel can be the difference between a favorable plea bargain or the wrath of a judge unimpressed with a defendant's presentation at sentencing.
In Pennsylvania, the assistance of counsel has not yet reached prospective parolees facing an interview with the board. Even though there are significant liberty issues at stake, offenders are not entitled to legal counsel.
In fact, the Commonwealth Court has said that the parole interview is not an adjudication. In Reider v. Pennsylvania Board of Probation and Parole, 514 A.2d 967 (1986), the court held that "parole, being a matter of administrative discretion and determination, is nonjudicial and not subject to judicial review under the law of Pennsylvania."
A defendant might have spent hours with his attorney preparing for sentencing in the hope of shaving a year or two off guidelines used for sentencing in Pennsylvania. The defendant may call witnesses and have letters of support to offer the judge.
The Pennsylvania sentencing guidelines permit a judge to impose a sentence outside the guidelines accompanied by a written explanation for the deviation. In Commonwealth v. Holiday, 954 A.2d 6 (2008), the Superior Court found that the sentencing guidelines have no binding effect and create no presumption in sentencing. They are advisory guideposts that must be respected and considered.
A lawyer can be the difference between an aggravated sentence or a mitigated sentence. A deviation from the guidelines can be compelling.
The board also utilizes guidelines in making parole decisions. Yet a parole interview, which could result in incarceration being extended a year or more, or even a board action requiring an inmate to serve the maximum sentence, is often conducted with little or no preparation and without the aid of legal counsel.
With an inmate's continued liberty at stake, shouldn't the system do more? There is no doubt that having counsel present during a parole interview would slow down an already overburdened system. However, encouraging legal counsel or parole counselors to assist inmates in their preparation for parole interviews could have an important impact on the process.
Getting inmates out of prison who deserve to be out could have an enormous impact on managing the size of Pennsylvania's prisons. As of Dec. 31, 2013, the Department of Corrections was housing 51,512 inmates in 26 state correctional institutions and community correction centers—109.7 percent of capacity.
During 2012 and 2013, the board cited the interview as one of the reasons for refusing parole in nearly one in three cases. As a result, the interview played a role in more than 5,500 refusals during that period.
Working with an inmate in preparation for a parole interview should include the following five-point plan:
• Enhance the inmate's ability to articulate the benefit from programming.
• Demonstrate thoughtful consideration of the crime and take responsibility.
• Convey empathy for the victims and society.
• Prepare and present a viable home plan.
• Assemble a written reentry plan and support group.
Each point of the plan should be examined and discussed in detail. This does not include the general advice about appearance, demeanor, eye contact and additional interview skills that any would-be job seekers should hone, let alone an inmate who could be left in prison for another year due to inadequate interviewing skills.
An inmate would benefit by a mock interview, sitting down face-to-face with someone familiar with the process who will take the inmate through the rigors of an interview.
Preparing an inmate for a parole interview is not coddling a criminal. Parole preparation is not providing an unfair advantage to a convict. Parole preparation is a smart way to get inmates out of prison who might otherwise stay behind bars because they cannot effectively articulate what they've learned and how they've changed.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book, The Executioner's Toll, 2010, was recently released by McFarland & Co. Reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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