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Parole Release Hearings: The Fallacy of Discretion, Article by R. Kyle Alagood, 2015

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5 T. MARSHALL L.J. GENDER, RACE & JUST. (forthcoming 2015)

PAROLE RELEASE HEARINGS: THE FALLACY OF DISCRETION
R. Kyle Alagood*
Despite nearly every U.S. state having created a parole system, incarcerated offenders do
not have a constitutional right to early release on parole, and parole hearings do not automatically
invoke due process. The resultant discretion afforded to parole decision-makers, coupled with the
administrative regime’s relaxed evidentiary standards risks erroneous, vindictive, or politically
motivated information tainting release decisions. Louisiana, the world’s prison capital, has recently
initiated parole reforms that may provide a model for reforms nationally. This article details the
evolution of Louisiana’s parole release structures, highlights problems with discretionary parolerelease decision-making, and proposes Louisiana pilot reforms that may transfer to parole release
systems nationally.
INTRODUCTION
I.

II.

III.

THE LOUISIANA BOARD OF PARDONS, COMMITTEE ON PAROLE

2

A.

Appointment and Qualification

2

B.

Education and Training

3

PAROLE RELEASE HEARINGS AND DECISION-MAKING CRITERIA

4

A.

Parole Committee Members and Release Criteria

5

B.

Victim Participation

7

C.

How Law Enforcement and Prosecution Participate

8

D.

The Offender’s Role

12

E.

Offender Counsel, If Any

14

REFORM CONSIDERATIONS

16

A.

Allow Offenders to Access Information within a Reasonable Time Before Hearings

16

B.

Provide Offenders with Counsel (or Provide with Representation when

C.

Prosecution or Victim Opposition is Expected)

17

Bifurcate Hearings at which Victims Appear to Oppose

17

CONCLUSION

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M.Sc., 2009, University College London; J.D./D.C.L. Candidate, 2015, Louisiana State University Law Center. This
article stems from the author’s observations as a student attorney representing indigent incarcerated felons in parole
hearings, pursuant to Louisiana Supreme Court Rule XX.
*

Electronic copy available at: http://ssrn.com/abstract=2564373

1] PAROLE RELEASE HEARINGS: THE FALLACY OF DISCRETION

INTRODUCTION
Louisiana’s parole release system is typical of those in other states. Parole release decisions
in Louisiana occur entirely within the executive branch. The Parole Committee of the Louisiana
Board of Pardons hears parole release cases in an “administrative, not adversarial” proceeding,
meaning the committee is inquisitorial and does not rely on parties jockeying to succeed in
establishing legal facts. 1 As administrative proceedings, parole release hearings “do not
automatically invoke due process.” 2 According to the U.S. Supreme Court, “[t]here is no
constitutional or inherent right of a convicted person to be conditionally released before the
expiration of a valid sentence.”3 That is, there is no constitutional right to parole release, and states
are not obligated to create a parole system. Nevertheless, nearly every state provides for parole,
and the Supreme Court has said states may create a due process interest in parole release.4 In
Bosworth v. Whitley, however, the Louisiana state supreme court ruled that “Louisiana parole
statutes do not create an expectancy of release or liberty interest in general,” which severely limits
due process in Louisiana parole release hearings.5
Whether an offender in Louisiana is eligible for parole consideration is generally
determined by statute.6 If an offender is statutorily eligible for consideration, the Department of
Public Safety and Corrections computes a parole eligibility date, which is the earliest date on
which an offender can be released on parole, and schedules a parole release hearing, if
appropriate.7 An offender’s parole release hearing can occur up to six months before the parole
eligibility date,8 which allows the committee to grant an offender’s parole with special conditions,
such as drug treatment, before the offender’s parole eligibility date. The Parole Committee,
however, suffers from seemingly arbitrary decision-making. Although its procedures and members’
qualifications have improved substantially over the past four years, much more reform is required
to promote fairness to offenders and ensure decisions are based on objective criteria. Part I
discusses the evolution of the Parole Committee and its membership over the past quarter century.
Part II explores the substance of parole hearings, key players, and issues arising from hearing
procedures. Part III briefly proposes two reforms that would increase transparency and promote
parole-hearing efficiency and fairness.

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Young v. U.S. Parole Comm’n, 662 F.2d 1105, 1111 (5th Cir. 1982).
Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979).
3 Greeholtz at 7
4 See Bd. of Pardons v. Allen, 482 U.S. 369, 379 (1987) (finding state’s mandatory language in parole legislation created
liberty interest in parole release).
5 Bosworth v. Whitley, 627 So.2d 629, 633 (1993).
6 See La. Rev. Stat. § 15:574.4 (2012). An offender’s eligibility may also be affected by the specific offense statute.
7 22 La. Admin. Code, pt. XI, §§ 301(A), 303(A)-(C).
8 22 La. Admin. Code, pt. XI, § 303(F).
1
2

Electronic copy available at: http://ssrn.com/abstract=2564373

5 T. MARSHALL L.J. GENDER, RACE & JUST. (forthcoming 2015) [2

I.

THE LOUISIANA BOARD OF PARDONS, COMMITTEE ON PAROLE
In Louisiana, an offender’s eligibility for parole consideration is set by statute. 9 An

offender’s eligibility for parole release, however, is at the discretion of the Louisiana Board of
Pardons, Committee on Parole.10 The Pardon Board is a five-member board appointed by the
governor and confirmed by the senate. Members serve concurrently with the governor who
appoints them.11 The Parole Committee includes two additional members, who serve only for
parole hearings.
A.

Appointment and Qualification
Until 2012, the Louisiana governor appointed, with senate confirmation, a seven-member

Board of Parole separate from the five-member Board of Pardons. Members of each board
received a statutorily provided salary, and there historically have been no academic or experience
requirements for board membership.12 As a result, Parole Board membership was a coveted
patronage position.13 The only check on the governor’s patronage appointments was senate
confirmation, which “furnish[ed] scant assurance of competent personnel.” 14 As a result, the
Louisiana Board of Parole had a history of being “ill-prepared for the parole release function.”15 In
1974, for example, only one Board member—a former probation officer—had any corrections
training or experience.16
Two recent phases of legislation began to provide for minimum parole decision-maker
qualifications. During the mid-to-late 1990s, the Louisiana legislature incorporated victims’ rights
into parole decision-making. As part of the victims’ rights legislative package, the 1995 legislature
created the first-ever qualification for Parole Board membership: “One of the seven members shall
be appointed from a list of at least three names submitted by Victims and Citizens Against Crime,
Inc.,” a victims rights organization.17 More than a decade passed before the legislature added any
other qualifications to Parole Board membership. In 2011, the legislature added an unpaid, non-

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9 See Holmes v. Louisiana Dept. of Public Safety and Corrections, 93 So. 3d 761 (La. Ct. App. 1st Cir. 2012); La. Rev. Stat.
Ann. 15:574.4 (Westlaw Next current through 2014 legislative session).
10 See id.; La. Rev. Stat. Ann. 15:574.4.1(B) (Westlaw Next current through 2014 legislative session) (“[P]arole shall be
ordered only…upon determination by the committee that there is reasonable probability that the prisoner is able and
willing to fulfill the obligations of a law-abiding citizen.”).
11 La. Const. Art. 4 § 5(E)(2).
12 See La. Rev. Stat. Ann. § 15:574.2(A)(7) (Westlaw Next current through 2014 legislative session) (parole members’ pay);
Roy Moreland, Model Penal Code: Sentencing, Probation and Parole, 57 KY. L.J. 51, 76 (1968) (discussing patronage and parole
membership).
13 See La. Rev. Stat. Ann. § 15:574.2(A)(7) (Westlaw Next current through 2014 legislative session) (parole members’ pay);
Moreland, Model Penal Code, supra note 12, at 76 (discussing patronage and parole membership).
14 J. Michael Veron, Comment, Parole in Louisiana: Theory and Practice, 48 TUL. L. REV. 332, 343 (1974).
15 Id.
16 Id.
17 Act 303, 1995 La. Acts 867-68 (codified as amended at La. Rev. Stat. § 15:574.2). The legislature amended § 574.2 in
2010 to allow nomination by any non-profit, non-political “victim’s rights advocacy organization.” See 2010 La. Sess. Law
Serv. Act 961 (S.B. 436) (West).

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3] PAROLE RELEASE HEARINGS: THE FALLACY OF DISCRETION

voting seat to the Parole Board for the warden or deputy warden of the correctional facility at
which an offender is incarcerated.18
Then in 2012, the legislature abolished Board of Parole and transferred parole
responsibility to a newly created Committee on Parole within the Board of Pardons. The five
Pardon Board members concurrently serve as Parole Committee members, but the Parole
Committee includes two at-large appointees who have no pardon functions.19 The warden or
deputy warden of an incarcerated offender’s facility serves as an uncompensated, non-voting
member of both boards. The 2012 restructuring also, for the first time, set minimum qualifications
for the governor’s pardon and parole appointees. Beginning with any member whose service
commences after August 1, 2012, all Pardon Board appointees and the two at-large Parole
Committee members are required to have at least five years of “actual experience in the field of
penology, corrections, law enforcement, sociology, law, education, social work, medicine, or a
combination thereof.”20 In 2014, the legislature again added qualifications to Parole Board and
Pardon Committee membership. Beginning with appointments after August 1, 2014, all members,
except the warden, must have either (1) seven years’ experience in one or a combination of the
listed fields, to which psychology and psychiatry were added, or (2) a bachelor’s degree plus five
years’ experience in the listed subjects.21
B.

Education and Training
Louisiana law’s historical lack of minimum qualifications for Parole Board appointees

contributed to the board’s ill-preparedness. That Parole Board members for decades were not even
required to undergo public safety or corrections training only exacerbated the problem.22 With no
mandatory education, experience, or public safety or corrections training, the Parole Board was
required to “consider all pertinent information…including the nature and circumstances of the
prisoner’s offense, his prison records, [and] the pre-sentence investigation report” to determine
whether an offender statutorily eligible for parole would get a parole release hearing.23 Then, once
deciding an offender would get a hearing, the Parole Board had to determine whether release
would be “for the best interest of society” and the “reasonable probability that the prisoner is able
and willing to fulfill the obligations of a law-abiding citizen so that he can be released without

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2011 La. Sess. Law Serv. Act 153 (S.B. 202) (West) (codified as amended at La. Rev. Stat. § 15:574.2).
2012 La. Sess. Law Serv. Act 714 (H.B. 518) (West) (codified as amended at La. Rev. Stat. §§ 15:572.1, 574.2).
20 Id.
21 2014 La. Sess. Law Serv. Act 305 (S.B. 472) (West) (codified as amended at La. Rev. Stat. Ann. 15:574.2(A)(3)
(WestlawNext current through 2014 Regular Session)).
22 See Veron, Parole in Louisiana, supra note 14, at 343 (“As written [in 1976]…there is no provision requiring even minimal
academic or vocational training in corrections.”). See also 2011 La. Sess. Law Serv. Act 153 (S.B. 202) (West) (codified as
amended at La. Rev. Stat. § 15:574.2) (adding paragraph (A)(5) (training)).
23 La. Rev. Stat. § 15:574.4(C) (1981).
18
19

5 T. MARSHALL L.J. GENDER, RACE & JUST. (forthcoming 2015) [4

detriment to the community an to himself,” both statutorily mandated prerequisites to release.24
Ultimately, the law traditionally required the Parole Board make a determination of recidivism
likelihood but did not provide assurances that board members would have adequate education,
experience, or training needed to consistently evaluate the probative value of the information
presented to them.25
The Louisiana legislature in 2011 added a new subsection to Revised Statute 15:574.2(A)
to mandate Parole Board appointees within ninety days of appointment “complete a
comprehensive training course” that comports with training offered by the National Institute of
Corrections or the American Probation and Parole Association. The training must include classes
on “elements of the decision making process, through the use of evidence-based practices for
determining offender risk,” “security classifications” used by the Department of Corrections,
“programming and disciplinary processes,” “the dynamics of criminal victimization,” and
collaboration with stakeholders “to increase offender success and public safety.”26 The new law
further requires each member complete eight additional hours of annual training.27
The adoption of requirements for members training and education will likely help curb
some political patronage appointments in the future. The Louisiana Committee on Parole, going
forward, will likely consist of some members who have experience in corrections and understand
the rehabilitation process. Furthermore, committee members will all have at least a minimum level
of critical-thinking skills sharpened by college education or long-time career experience. With such
training and education, the Parole Committee’s decisions will likely become more uniform, and
their inquiries better aimed at criteria related to the likelihood the offender will succeed on parole.
II.

PAROLE RELEASE HEARINGS AND DECISION-MAKING CRITERIA
Although parole release hearings may be subject to limited due process rights, the

Supreme Court in Greenholtz recognized that parole determinations generally require “very broad
discretion,” because there is “[n]o ideal, error-free way to make parole-release decisions.” 28
Rather, the decision to grant early release “differs from the traditional mold of judicial
decisionmaking in that the choice involves a synthesis of record facts and personal observation
filtered through the experience of the decisionmaker and leading to a predictive judgment as to
what is best both for the individual inmate and for the community.”29 Such broad discretion

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La. Rev. Stat. § 15.574.4(E) (1981).
See Veron, Parole in Louisiana, supra note 14, at 344-45.
26 La. Rev. Stat. § 15.574.2(A)(5)(a) (2012).
27 La. Rev. Stat. § 15.574.2(A)(5)(b) (2012).
28 Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 13 (1979).
29 Greenholtz at 8
24
25

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5] PAROLE RELEASE HEARINGS: THE FALLACY OF DISCRETION

results in parole release hearings that often focus on criteria unrelated to recidivism or
rehabilitation.
A.

Parole Committee Members and Release Criteria
Louisiana law retains parole decision-makers’ discretion over whether to release offenders

on parole, but lawmakers provide the Parole Committee with no discretion over an offender’s
eligibility for parole consideration. The lack of discretion over eligibility for parole dovetails with
Louisiana law’s general prescriptions for minimum and/or maximum sentences, which limits
judicial discretion at criminal sentencing, to strongly suggest public policy favors uniformity in the
state’s sentencing and early release decisions. After all, when parole release determinations lack
uniformity or consistency, offenders who will become eligible for parole consideration are likely to
have a cynical outlook on the likelihood of actual release. As a result, some offenders may focus on
appearing rehabilitated—telling the committee what the offender thinks it wants to hear—instead
of actually embracing rehabilitation programming.30
Per the legislature’s parole reform, the Parole Committee promulgated new regulations
that further promote uniform decision-making. The Parole Committee adopted a new mission
statement and committed itself to “[u]sing evidence based research” in making release
determinations. 31 According to its mission statement, the committee “shall render just
determination[s]” that “maximiz[e] the restoration of human potential while restraining the
growth of the Louisiana prison population.”32 The committee’s policy is “to give every offender
meaningful consideration for parole” and make “decisions that promote fairness, objectivity, and
public safety….”33 The new regulations further provided specific criteria the Parole Committee
“shall apply…as a basis” for parole release decisions: the nature and circumstances of the crime;
the offender’s prior criminal record; the offender’s character, social background, and emotional
and physical condition; the offender’s institutional adjustment; police, judicial, and community
attitudes toward the offender; the offender’s parole plan; the offender’s participation in
rehabilitation programming; and the offender’s risk assessment score.34 Despite the statutory and
regulatory policy of uniform decision-making, advancements in members’ training, education, and

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30 See Note, Observations on the Administration of Parole, 79 Yale L.J. 698, 699 (1970) (discussing offenders’ views of parole
decision making as arbitrary).
31 22 La. Admin. Code, pt. XI, § 108 (2013).
32 22 La. Admin. Code, pt. XI, § 108(B)(1) (2013); La. Board of Pardons, Committee on Parole, Mission Statement, available
at http://www.doc.la.gov/wp-content/uploads/2009/10/Mission-Statement.pdf.
33 22 La. Admin. Code, pt. XI, § 701(A)
34 22 La. Admin. Code, pt. XI, § 701(C).

5 T. MARSHALL L.J. GENDER, RACE & JUST. (forthcoming 2015) [6

experience, and the committee’s commitment to evidence-based decision-making, Louisiana
parole release hearings are often unpredictable and seemingly arbitrary.35
Requiring the Parole Committee at least consider prescribed criteria in parole release
hearings helps ensure decision-makers are consistent in the factors they evaluate; however, the
regulation providing those criteria adds that the guidelines are “not…the exclusive criteria,”36
ultimately leaving committee members’ discretion fully intact and undermining the progress
toward uniformity. The Parole Committee’s decisions in two recent release hearings illustrate the
unpredictability problem.37 Both hearings occurred on the same morning in November 2014. The
two offenders’ charges were substantively similar, but the Parole Committee’s release decisions are
difficult to reconcile with objective factors. Offender A had been incarcerated for eight years for
habitual possession of heroin, during which the offender had completed dozens of rehabilitation
certificate programs, including drug treatment, worked as a trustee, and gotten a GED and
associate's degree. Offender A had secured a job to begin upon release, and his parole eligibility
date had passed, meaning he statutorily could be released immediately if the committee so decided.
Offender B was a first-time offender who had been incarcerated eight months for possession of
heroin and possession of a controlled dangerous substance in a school zone. Offender B was also a
trustee, but he had completed only the statutorily mandated pre-release rehabilitation course.
Offender B had a job plan but had not secured specific employment before the release hearing.
Even if granted parole, Offender B’s parole eligibility date was four months after the hearing, so he
would have to remain incarcerated until that time passed.
Although the Parole Committee granted both offenders’ parole, the conditions imposed
on Offender A appeared inconsistent with Offender B’s unconditional release. Offender A, whom
the committee had commended for taking advantage of rehabilitation and whose parole eligibility
date had passed was granted parole contingent upon working six months at a transitional work
release program, despite the offender's having secured a full-time job immediately upon release.
Offender B, who would not actually leave prison for another four months and who had completed
only the mandatory minimum rehabilitation programming was granted unconditional release on
his parole eligibility date. To an objective observer, the committee’s decision appears inconsistent.
The committee effectively set a higher bar for Offender A’s release—to first participate in

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35 This assertion and many observations that follow are based on the author's participation in and observation of parole
hearings while working at a student attorney under Louisiana Supreme Court Rule XX.
36 22 La. Admin. Code, pt. XI, § 701(C)
37 The following narrative is based on the author’s recollection of the hearings in question. Both offenders were clients of
the LSU Law Center Parole and Reentry Clinic. The author represented one offender. Although the hearing is public
record, clients’ names have been anonymized for confidentiality.

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7] PAROLE RELEASE HEARINGS: THE FALLACY OF DISCRETION

transitional work release—despite his objective demonstration of rehabilitation. Meanwhile,
Offender B, who had not completed drug treatment, secured post-incarceration employment, or
pursued education courses was granted release contingent only upon his good behavior for the
remaining four months until his parole eligibility date.38
B.

Victim Participation
Victims have a role in parole release hearings in all fifty states.39 Everywhere except

Pennsylvania allows victims to attend parole release hearings and make a statement, which parole
boards consider when deciding whether to release an offender. In Pennsylvania, victims can only
make a written or videotaped statement for the parole board’s consideration.40 At least threequarters of the states do not allow offenders full access, if any, to victim input.41 The restriction on
inmate access to victim impact statements in most states presumably extends to a represented
offender’s lawyer, as is the case in Louisiana for written victim impact statements.42
Victim input has a significant impact on parole board decision-making.43 In 1997, social
scientists at the University of Alabama at Birmingham analyzed the parole release decision-making
process and found that victim participation had a statistically significant relationship with parole
hearing outcomes. Ultimately, the study found victim input had a greater effect on parole decisions
than any other factor, including the seriousness of the offense, an offender’s number of felonies,
time served, disciplinary record, and number of completed rehabilitation programs.44 Although
other variables cannot be discounted as affecting parole-hearing outcomes, the only statistically
significant factors were victim and offender input, with victim input having the greatest overall
predictive value. 45 That study verified earlier studies’ conclusions that victim participation in
parole release hearings greatly affected the likelihood of an offender’s release.46 Then, in 2005, two
of the scientists who conducted the earlier study reexamined Alabama’s parole system and the

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Information relating to Offenders A and B is public record.
Sarah French Russell, Review for Release: Juvenile Offenders, State Parole Practices, and the Eighth Amendment, 89 IND. L.J. 373, 404
(2014);
Oklahoma
Board
of
Pardon
and
Parole,
Victim
Services
Guidelines,
http://www.ok.gov/ppb/Victim_Services/Guidelines/index.html (accessed Nov. 19, 2014); Indiana Parole Board, Parole
Board Hearings, http://www.in.gov/idoc/2324.htm (accessed Nov. 19, 2014); Mississippi Parole Board, Parole,
http://mpb.state.ms.us/Parole%20Board%20Parole.htm (accessed Nov. 19, 2014); Arizona Board of Executive Clemency,
Victim Information, https://boec.az.gov/content/information-victims (accessed Nov. 19, 2014).
40 Russell, Review for Release, supra note 39, at 404.
41 Id. at 405.
42 See La. Rev. Stat. Ann. § 574.2(C)(12) (Westlaw Next current through 2014 legislative session) (empowering the Parole
Committee to exclude anyone to protect victim privacy).
43 See, e.g., Parsonage, et al., Victim Impact Testimony and Pennsylvania’s Parole Decision Making Process: A Pilot Study, 6 CRIM. J.
POL’Y REV. 187 (1994) (finding victim participation was the strongest predictor for outcome in parole release decisions).
44 Brent L. Smith, Erin Watkins & Kathryn Morgan, The Effect of Victim Participation on Parole Decisions: Results from a
Southeastern State, 8 CRIM. J. POL’Y REV. 57, 68-69 (1997).
45 Id.
46 See Maureen McLeod, Getting Free: Victim Participation in Parole Board Decisions, 4 CRIM. J. 12-15, 41-43 (1989); Parsonage, et
al., Victim Impact Testimony, supra note 43, at 187-206.
38
39

5 T. MARSHALL L.J. GENDER, RACE & JUST. (forthcoming 2015) [8

relationship of variables against one another. Once again, the analysis concluded that victim
participation had a significant relationship to the parole release decision, with only the warden’s
recommendation having a greater effect.47
The strong—nearly determinant—effect of victim opposition to parole release is
heightened by confidentiality. In many states, including Louisiana, protest letters are kept
completely confidential, thereby denying the offender a chance to access and prepare a response to
the victim’s opposition.48 An offender in Louisiana may not even know there is victim opposition at
all and is never given access to the contents of victim opposition. The Louisiana Committee on
Parole also allows victims who make an in-person or telephone statement to request their
statement be outside the presence of the offender, which only further limits the offender’s ability to
adequately present his or her case for release.49 Of course, victim-opposition confidentiality has a
rational basis: States recognize the vital role victims and survivors may have in the criminal justice
system, and confidentiality helps reduce the possibility of retaliation against a victim who protests
release.50 Nevertheless, prohibiting offenders from accessing information provided by the victim—
one of the most significant influences on parole release decisions—prevents the offender from
rebutting the victim’s descriptions of the crime and other adverse information the victim may
present to the Parole Committee. 51 By denying offenders a meaningful opportunity to rebut
victim-provided information, the Parole Committee risks weighing erroneous, inaccurate,
vindictive, or politically motivated victim-provided information in its release decision.52
C.

How Law Enforcement and Prosecution Participate
Nearly every parole decision-making body in the United States considers input from

prosecutors in the release decision.53 As a threshold matter, where state parole release decisionmakers have access to and consider an offender’s criminal history or offense record, law
enforcement and prosecution information will necessarily impact the release determination. In
Louisiana, for example, the Department of Public Safety and Corrections prepares a consolidated

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47 Kathryn Morgan & Brent L. Smith, Victims, Punishment, and Parole: The Effect of Victim Participation in Parole
Hearings, 4 CRIMINOLOGY & PUB. POL’Y 333, 355-56 (2005).
48 See Jennifer S. Bales, Equal Protection and the Use of Protest Letters in Parole Proceedings: A Particular Dilemma for
Battered Women Inmates, 27 SETON HALL L. REV. 33, 41 (1996).
49 La. Board of Pardons & Parole, “Victims-Parole Panel Hearings,” Policy No. 05.509 (2012), available at
http://www.doc.la.gov/wp-content/uploads/2013/07/05-509-POL-VICTIMS-Parole-Panel-Hearings.pdf.
50 See generally La. Rev. Stat. § 46:1844 (victims’ rights in Louisiana); U.S. Dep’t of Justice, Office of the Attorney General,
Combating Violent Crime: 24 Recommendations to Strengthen Criminal Justice, 55 (1992) (discussing victims fear of revictimization
upon an offender’s release); Bales, Equal Protection and the Use of Protest Letters in Parole Proceedings, supra note 48, at 40-41
(overviewing victim roles in parole release hearings).
51 Russell, Review for Release, supra note 39, at 424.
52 See Bales, Equal Protection and the Use of Protest Letters in Parole Proceedings, supra note 48, at 42.
53 Russell, Review for Release, supra note 39, at 403 (noting that 43 of the 46 parole boards that responded to the survey
allowed prosecution input).

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9] PAROLE RELEASE HEARINGS: THE FALLACY OF DISCRETION

summary record for each offender, which the Parole Committee considers in its release decision.54
The consolidated summary record contains information a local parole officer prepares as part of a
pre-parole investigation, which generally includes arrest records from every encounter the offender
has had with law enforcement, and may include court records or pre-sentence investigations, if
any.55
The committee is supposed to use law enforcement information to “evaluate and consider
the circumstances of the crime” and determine “whether the particular conditions that contributed
to the commission of the crime are likely to reoccur.”56 Additionally, state regulations require the
committee “consider the seriousness of the offense, the offender’s role in the offense and the degree
of his involvement.” 57 But the regulations do not prescribe the basis upon which the Parole
Committee must evaluate the offense circumstances and offender’s culpability. As a result,
particularly in cases that resulted in a guilty plea, the Parole Committee’s primary sources for
evaluating the circumstances of the crime are the arrest record and other information prepared by
the state in its pre-parole investigation. Because it almost always has access to the state’s version of
events and exercises broad discretion in release decisions, the Parole Committee’s evaluation of the
nature and circumstances of the crime, the offender’s role in the offense, and the offender’s
culpability is effectively de novo.
Forty-three states also allow prosecutors a role in the parole release hearing itself.
Thirteen of those states allow prosecutors to present in writing, by telephone, or through a video
recording, but not in person.58 Thirty states, including Louisiana, provide for in-person statements
by prosecutors.59 Unlike criminal court, where the offender would have access to the prosecutor’s
evidence before trial and would have a chance to cross-examine, parole release hearings are
administrative. Because they are administrative hearings, traditional evidence rules do not apply to
parole release hearings, and the hearings are inquisitorial, not adversarial. These aspects of
administrative hearings aid the Parole Committee’s goal of “consider[ing] all pertinent
evidence,”60 as they allow the committee to elicit whatever information it feels necessary to the
instant hearing. However, the lack of evidence rules may allow legally irrelevant or inaccurate
information, such as unverifiable hearsay, into the Parole Committee’s decision-making process;

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54 See 22 La. Admin. Code, pt. XI, § 701(B); Russell, Review for Release, supra note 39, at 404 (discussing case history and
summary information).
55 See LA. BOARD OF PARDONS & PAROLE, PAROLE IN LOUISIANA 2, available at http://www.doc.la.gov/wpcontent/uploads/2009/10/PAROLE-IN-LOUISIANA.pdf.
56 22 La. Admin. Code, pt. XI, § 701(C)(1)(a).
57 22 La. Admin. Code, pt. XI, § 701(C)(1)(b).
58 Russell, Review for Release, supra note 39, at 403.
59 Id. at 403
60 22 La. Admin. Code, pt. XI, § 701(B)

5 T. MARSHALL L.J. GENDER, RACE & JUST. (forthcoming 2015) [10

and the inquisitorial system inhibits one party’s ability to respond or rebut information provided
by another party. Even if the offender is allowed to respond to a prosecutor’s in-person
presentation, Louisiana offenders are never allowed to access—and, therefore, rebut or respond
to—written information provided by the prosecutor to the parole committee.61 Resultantly, the
Parole Committee risks applying inaccurate or incorrect information when evaluating the offender
for release.62
A Louisiana parole release hearing in August 2014 for an offender convicted of attempted
second-degree murder illustrates how inaccurate information may creep into Parole Committee
decision-making. Offender M had served more than two decades in prison for attempted seconddegree murder stemming from an altercation in which he brutally beat a female acquaintance to
near death.63 The victim survived the attack and testified at Offender M’s trial. She later died of
complications from Acquired Immune Deficiency Syndrome. When Offender M appeared before
the Louisiana Parole Committee in August 2014, however, the Parole Committee focused its
hearing from the outset on a crime Offender M did not commit—murder.64 That single erroneous
fact determined the scope of the entire parole release hearing.
Offender M had gone to trial and been convicted of attempted second-degree murder in
1991. He appealed to a state circuit court, and his conviction for attempted second-degree murder
was affirmed.65 Thus, facts about the offender’s crime and conviction were clear, public, and
available. State regulations require the Parole Committee “evaluate and consider the
circumstances of the crime based upon the official version of the offense, as well as the victim’s and
offender’s versions of the offense.” 66 By leading with the “official” version and inserting the
offender’s and victim’s versions in a clause, regulations imply the “official” version of the offense is
prime. What regulations fail to do is clarify what version of an offense is “official” and what weight
the committee should give law enforcement or prosecutor statements if they add to, conflict with,
or are unsubstantiated by court records. In Offender M’s case, that conflict surfaced.
According to the trial and appeals courts—sources of information one could argue are the
most official of all “official” sources—Offender M’s victim did not perish. Nevertheless, the Parole

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Rusell, Review forRelease, supra note 39, at 404
See Bales, Equal Protection and the Use of Protest Letters in Parole Proceedings, supra note 48, at 64 (discussing the inability to
“verify, add to, or rebut” information if offenders are denied access).
63 Although the facts of the case are public record and the offender’s appeal of his conviction was reported, the offender is
anonymized for privacy.
64 Narrative of the August 2014 hearing is based on the author’s recollection. The Louisiana Department of Public Safety
and Corrections mistakenly deleted the record for Offender M’s August hearing. As a result, the offender, this time
represented by outside counsel, was able to successfully apply for a rehearing. Offender M’s parole was granted in
November 2014.
65 State v. [Offender M], [__ So.2d __], 414 (La. App. 5th Cir. 1994).
66 22 La. Admin. Code, pt. XI, § 701(C)(1)(a) (emphasis added).
61
62

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11] PAROLE RELEASE HEARINGS: THE FALLACY OF DISCRETION

Committee panel’s lead inquiries characterized the offender’s crime as murder and sought details
about the circumstances of murder, not attempt. Because the victim was deceased and court
records clearly found Offender M guilty of attempt, the erroneous information likely came from
documents provided by either a Department of Public Safety and Corrections officer who helped
prepare the offender’s record for the committee, or a statement from law enforcement or
prosecution.
An Assistant District Attorney for Jefferson Parish testified at the hearing and focused on
the crime scene and victim’s injuries. His testimony ultimately implied the victim had perished.67
The ADA described the crime scene as covered in blood from one end of the apartment to the
other. He went on to discuss how Offender M had broken a vase and used its shards to slice the
victim’s face and body. The ADA even said Offender M pushed the victim from the second-floorapartment balcony and onto a fence below, where the victim suffered severe injuries and lay
motionless when paramedics arrived. He only obliquely noted the victim had survived, but that
fact surfaced after the word picture was already painted. The committee honed in on the ADA’s
description of the crime scene, particularly his assertion that Offender M had definitively pushed
Victim from the balcony onto a fence, and implication that the victim had perished. The Parole
Committee then proceeded to quiz Offender M about the crime. One member asked the offender
how he would feel if someone had beaten and cut a female family member of his, then shoved her
off a balcony to her death. Another member repeatedly asked questions about how Offender M
would feel if someone in his family had been killed by a drug addict and whether he thought about
how the victim’s family must have felt after learning the victim had been killed. Louisiana State
Penitentiary Assistant Warden Angie Norwood, who testified at length in favor of Offender M’s
release and served as the ex officio panelist for Offender M’s hearing, interjected and attempted to
correct the committee’s characterization of Offender M’s crime as a completed murder, not an
attempt. The committee appeared to brush off the distinction between a nearly killed and actually
killed victim as unavailing and, with its broad discretion, in effect retried Offender M for the death
of a victim who had died from AIDS years after Offender M was incarcerated.
Because the Parole Committee commenced its hearing with questions to Offender M
about a completed murder, erroneous or inaccurate information must have been present in the
materials provided to panelists in advance of parole hearings. The testimony by prosecution in
opposition to Offender M’s release did little to refute the committee’s inaccurate understanding of
the crime; in fact, prosecution’s statement focused on the crime’s brutality, which likely reaffirmed

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67

Author’s recollection.

5 T. MARSHALL L.J. GENDER, RACE & JUST. (forthcoming 2015) [12

the committee’s assumption that Offender M’s victim had died. Whether the committee’s initial
inaccurate information relating to Offender M’s crime came from a similar, written statement by
prosecution is unverifiable, since prosecution statements are private. However, clear discrepancies
between the prosecutor’s verbal statement and the appeals court ruling affirming Offender M’s
conviction for attempted second degree murder circumstantially support a conclusion that
prosecution either provided the inaccurate information to begin with or later took advantage of the
committee’s misunderstanding. While the prosecutor’s description of the victim’s injuries largely
comported with the state appeals court’s recital of facts in its decision affirming Offender M’s
conviction, the prosecutor’s assertion that Offender M had pushed the victim from the balcony did
not. According to the appeals court, the responding officer testified he did not observe Offender M
on the apartment balcony with the victim, and the Victim appeared to have jumped from the
balcony to escape Offender M. Nevertheless, the ADA’s focus on crime-scene gore and his
apparent embellishment with the details of the victim’s fall left the parole committee and listeners
to infer the victim’s demise.
Offender M’s case raises serious questions about Parole Committee release criteria: Do
vague release criteria coupled with broad discretion actually inhibit the Parole Committee’s
mission to “make reasonable, relevant and evidence based decisions”?68 Did the panel rely on a
prosecutor’s misleading-at-best, inaccurate, or overtly untruthful assertion that Offender M
definitively pushed the victim over the balcony and the resultant inference that the victim died as a
result? Is the prosecutor’s statement the “official” version of the offense? Is the prosecutor’s version
more “official” than a court’s statement of facts? How should the committee weigh different
“official” versions of offenses?
Although Offender M’s hearing is an outlier, where anything that could go wrong did, it
illustrates how participation by prosecution in a non-adversarial hearing where participants are not
allowed access to information provided to the decision-makers may lead to inaccuracies that are
hard, if not impossible, to correct.
D.

The Offender’s Role
Offenders are allowed to participate in the parole release process in all but two states—

Alabama and North Carolina.69 Louisiana is one of eight states in which offenders’ interaction

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68 See
La. Board of Pardons & Parole, “Vision and Mission,” Policy No. 01-101 (2013), available at
http://www.doc.la.gov/wp-content/uploads/2013/07/01-101-Vision-and-Mission-of-the-Board.pdf.
69 Russell, Review for Release, supra note 39, at 400

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13] PAROLE RELEASE HEARINGS: THE FALLACY OF DISCRETION

with parole decision-makers occurs exclusively by videoconference or telephone.70 In Louisiana,
offenders appear before the Parole Committee by videoconference.71
When offenders appear before the Louisiana Parole Committee, panelists generally
expect total capitulation to authority. When considering “all pertinent information,” including
“the circumstances of his offense…[and] conduct in prison,” 72 the committee presumes the
offender is guilty and poses questions to evaluate his or her willingness to accept responsibility and
express repentance. The committee’s expectancy of full capitulation, however, may lead to
confusion; and an offender's honest answer may appear to the committee as obfuscatory. For
example, a common question in parole hearings for drug offenders is, “What is your drug of
choice?” The question itself is vague and may lead an offender to answer the implied specific
question, “What drug did you most regularly use,” when the committee member, expecting full
capitulation, actually wants the offender to air a laundry list of drugs the offender used and was
involved with. Resultantly, an offender who only used marijuana but sold cocaine and was arrested
for possession with the intent to distribute cocaine may fully and honestly answer the committee's
inquiry—that marijuana was his drug of choice—but get pinged as dishonest for not also including
cocaine as a drug of choice.73
Offender M’s case further illustrates the difficulty total capitulation creates for an offender
when responding to committee inquiries. The Parole Committee will consider an offender’s
description of events, but since parole hearings are inquisitorial, not adversarial, the Parole
Committee is left to its own devices when determining the veracity of competing information.
Offenders (and offenders’ counsel, if any) are not necessarily allowed to rebut, explain, or correct
another party’s information. As a result, when confronted with a conflict between offenderprovided data and information provided by “official sources,”74 meaning the state’s version of
events, the Parole Committee is likely to give greater weight to the state’s information, even if it is
incorrect. And if given the opportunity to respond at all, offenders who persist in trying to correct
the state’s information risk appearing to not accept responsibility or capitulate to authority, both of
which negatively impact parole release decisions.

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Id.
22 La. Admin. Code, pt. XI, § 511(C).
72 La. Rev. Stat. § 15:574.2(D)(6) (Supp. 2014).
73 The author observed this scenario on more than one occasion.
74 22 La. Admin. Code, pt. XI, § 701(C)(1)(a).
70
71

5 T. MARSHALL L.J. GENDER, RACE & JUST. (forthcoming 2015) [14

E.

Offender Counsel, If Any
One of Louisiana’s prison-law experts and a regular advocate in parole hearings, Keith

Nordyke, describes the role of counsel in parole hearings as four-fold.75 First, the attorney preps
clients. An attorney gets to meet with clients before their parole hearings and prepare them to
answer the kinds of questions the Parole Committee is likely to ask. For the many offenders who
have limited educations or mental disabilities, having an attorney is key to their ability to even
articulate answers to the committee’s questions. Furthermore, an experienced parole attorney will
draw on his or her experience practicing before the committee to help clients understand what
information the committee will be looking for at the release hearing. For example, the parole
committee may look for signs of rehabilitation and drug treatment in a non-violent drug offender
but may focus on indicators of successful reentry in the case of an armed-robber. Second, the
attorney can gather facts and assemble them to cast the offender in a better light than the offender
would be able to convincingly do without representation. An attorney’s legal training and
experience writing convincing arguments, coupled with the attorney’s access to facts and witnesses,
allows counsel to better build a case that convincingly portrays the client-offender as rehabilitated
and safe to reenter society. Third, attorneys build records, and having an attorney representing an
offender at a parole release hearing can mean the difference in preserving the offender’s rights for
appeal or waiving them. Fourth, an attorney’s role in parole is also to be a watchdog and help
move the parole system forward by observing and reporting systemic problems in parole release
hearings or suggesting reforms to help advance parole.
Although attorneys may have important—even outcome determinant—roles in parole
release decisions, an attorney’s role in parole will vary by state. Based on a recent survey by a
Quinnipiac University law professor, Louisiana appears more permissive than many states
regarding the role of an offender’s privately retained counsel. For example, six states do not
consider attorney input at all. Of the thirty-nine state parole release authorities that at least
consider attorney input, only thirty-two allow counsel to make an in person statement. And state
procedures on attorney input vary: Some states only allow counsel input at a meeting separate
from the offender’s hearing. Other states only allow attorney input in writing, by phone, or via
teleconference. In Florida and Alabama, the offender is not allowed to attend the parole release

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75

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Discussion with author.

15] PAROLE RELEASE HEARINGS: THE FALLACY OF DISCRETION

hearing, but counsel is allowed to appear and speak. Fourteen states, including twelve that
otherwise consider counsel input, prohibit an offender’s counsel from attending the hearing at all.76
The Louisiana Committee on Parole is accommodating to offender’s counsel and
considers attorney input in the parole release decision. In advance of an offender’s parole release
hearing, an attorney can file a written statement and exhibits with the committee. The Parole
Committee distributes the attorney’s statement to members on the offender’s hearing panel, which
those members consider alongside the state’s consolidated summary record and any other
information provided, such as a victim impact statement or law enforcement opposition.
An offender’s counsel is also allowed to be present at the parole release hearing, but
regulations require counsel be present with the offender by video-conference from the penal
institution. The Parole Committee allows counsel to make a statement, but procedures vary
depending on which member is chairing the panel. Some members allow counsel to make a brief
opening statement and a closing or summary statement. Other members prefer counsel only
provide either an opening or a closing. Sometimes the panel will address a question directly to the
attorney, usually for clarification. And in rare instances, counsel may politely interject to clarify or
correct inaccurate information.
Despite Louisiana’s cooperative approach to attorney input in parole hearings, hearings’
non-adversarial nature often puts attorneys representing offenders at a disadvantage. First,
attorneys who have not practiced before the Parole Committee regularly—and few in Louisiana
have—may not fully understand that parole hearings are not trials. There are no crossexaminations, rules of evidence, or rebuttals. The attorney’s fact-gathering and counter-facts role
are primarily presented to the committee in the pre-hearing filing. Second, even an attorney who
understands the Parole Committee’s procedures is hindered from adequately preparing an
offender’s case for release, because procedures prohibit attorneys from accessing some of the most
heavily weighted data upon which the committee relies. The Parole Committee does not
automatically provide offenders’ attorneys with any information before the hearing. The Louisiana
Department of Public Safety and Corrections, upon request, provides attorneys representing
offenders with the same information an unrepresented offender gets: the offender’s Master Prison
Record or “rap sheet” detailing the offender’s classification, offense, sentence, time served, parole
eligibility date, etc. Prosecutors are allowed, however, to access the offender’s record since
incarceration and has access to the offender’s risk assessment score, a heavily-weighted criterion

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76 Russell, Review for Release, supra note 39, at 402. For the twelve states that consider attorney input but prohibit attorneys
from attending parole release hearings, compare footnotes 189 and 190 (states that consider attorney input) with footnote
191 (states that do not allow the attorney to attend client-offender’s hearing).

5 T. MARSHALL L.J. GENDER, RACE & JUST. (forthcoming 2015) [16

never shared with offenders or counsel.77 An offender’s attorney may request other public records
and information, but defense attorneys, unlike prosecutors, are prohibited from accessing the file
D.O.C. will provide the Parole Committee. Some information—virtually all of which is negative
toward the offender—is never accessible to an offender’s attorney. For example, an attorney may
not even know about victim, law enforcement, or prosecutorial opposition at all, much less have
access to the opposition statements’ content. Attorneys in Louisiana are left to speculate about
what information the Parole Committee has before it, and it is up to the attorney to attempt to
locate and access the information that may be available in public records. Given most offenders’
limited means, an attorney representing an offenders before the Louisiana Committee on Parole
will likely have to rely primarily on the client’s version of events and can only speculate as to what
information, if any, will have been provided by law enforcement, prosecution, or victims.
Resultantly, the attorney is incapable of adequately preparing to represent the offender.
III.

REFORM CONSIDERATIONS
Although some potential reforms would require significant action by the Louisiana

legislature, particularly those relating to greater access to information and representation,
lawmakers’ string of reforms over the past four years suggests reform is possible. Since state policy
appears to favor uniformity in parole-release decisions, the following suggestions serve both
fairness and outcome uniformity.
A.

Allow Offenders to Access Information within a Reasonable Time Before Hearings
The Louisiana Committee on Parole should, at least a week in advance of a release

hearing, automatically provide offenders and counsel with any information the committee receives
that would be subject to a state public records request. Without access to such information,
offenders and attorneys are unable to prepare to dispute, affirm, clarify, supplement, or rebut
information that may be vital to the committee’s decision. By providing such information, the
committee would allow offenders and their attorneys to better prepare for parole hearings and
reduce the likelihood of the Parole Committee’s release decision being based on inaccurate or
incorrect information. Furthermore, parity requires the Parole Committee provide defense counsel
with the same information available to prosecutors in advance of the hearing—particularly the risk
assessment score and offender’s incarceration record.
For the same reasons, the Parole Committee should go further and provide offenders and
counsel with some level of access to opposition statements. Protest letters, including those by
victims, are generally not investigated or verified, which means inaccurate, vindictive, or politically

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77

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See La. Board of Pardons & Parole, “Powers and Duties of the Parol.e Committee,” Policy No. 01.102 (2014) § (A)(5)(a).

17] PAROLE RELEASE HEARINGS: THE FALLACY OF DISCRETION

motivated information may enter the Parole Committee’s decision.78 Even sharing opposition
statements in redacted form or as a summary would serve the ends of justice by allowing for
preparation and ensuring the committee’s information is accurate. Alternatively, if providing
offenders with access to all information available to the Parole Committee is not feasible, the
Committee should provide offenders with a summary of that information. Summarizing the
information available to the Committee in its decision-making process would allow the Committee
to, on a case-by-case basis, balance the offender’s need to correct or prepare to mitigate potentially
false or damaging information with victims’ need for privacy and safety.
B.

Provide Offenders with Counsel (or Provide with Representation when Prosecution or Victim Opposition is

Expected)
The Sixth Amendment right to counsel does not reach state parole release hearings.
Nevertheless, states can provide a right to counsel for indigent offenders. Ensuring all offenders
have attorney representation at parole hearings will further the state’s interest in uniform and
predictable parole-release decisions. Having counsel perform the four functions Nordyke posited
would promote procedural fairness for offenders, ensure parole release hearings are meaningful,
and streamline parole. Given the Louisiana Public Defender Board’s perennial budget problems,
requiring a public defender represent offenders in release hearings is unlikely. To test the efficiency
of appointed counsel in parole release hearings, the defense bar could take initiative and partner
with civil rights foundations and organizations to pilot a representation program. Through
partnerships with organizations like the Vera Institute, defense counsel could systematically
represent Louisiana offenders and build statistics to support state or national funding for
representation.
C.

Bifurcate Hearings at which Victims Appear to Oppose
Victim opposition in the form of in-person testimony before the Parole Committee is

often emotional. Victims explain to the Committee not only the crime but also how it has affected
their lives. Currently, the Parole Committee hears victim opposition testimony, conducts the
offender’s hearing, and renders its decision in the same hearing. As a result, the Committee
renders its decision in the presence of the victim, which risks unduly pressuring the Committee to
deny release, even in cases where the Committee might otherwise grant.
The Parole Committee should bifurcate hearings at which victims will appear in
opposition to release. At the preliminary hearing, the Parole Committee would hear testimony
from victim and law enforcement opposition, if any. The bifurcated hearing would serve two

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78 See Johnson v. Texas Dep’t of Crim. Justice, 910 F. Supp. 1208, 1219 (W.D. Tex. 1995), rev’d in part, vacated in part 110
F.3d 299 (5th Cir. 1997).

5 T. MARSHALL L.J. GENDER, RACE & JUST. (forthcoming 2015) [18

purposes. First, where the offender is represented, counsel will be able to hear victim or state
opposition testimony and prepare the client to appropriately respond to the Committee’s inquiry
in light of the opposition. Second, the passage of time between opposition testimony and the
release decision would allow the Committee to give sober consideration to the opposition
testimony and the offender’s achievements, free from the immediate emotional reaction to the
victim’s statement. If a two-hearing process proves unworkable, the Parole Committee could, at
the least, conduct pre-hearings with offenders, at which Department of Corrections staff meet with
offenders to explain parole hearing procedures, go over the offender’s Master Prison Record, and
orally share with the offender any expected victim or state opposition.
CONCLUSION
Louisiana has improved its parole release decision-making body significantly. Gone are
the days when governors could hand out the paid positions to any supporter without regard to the
person’s qualifications. The Parole Committee has moved forward in its training and incorporated
research-backed decision-making into parole release determinations. Nevertheless, Louisiana law,
particularly as it relates to victim statements and confidentiality, is fundamentally unfair to many
offenders and their counsel. Parole Committee determinations remain disorganized, and offenders
and counsel face an uphill climb to gather information and appropriately prepare for release
hearings. By providing offenders with greater access to information and appointing counsel to
represent indigents, even if through a pilot program partnering with the defense bar and outside
organizations, Louisiana can improve fairness and stream-line parole release hearings to the
benefit of everyone involved. In doing so, the “world’s prison capital” will serve as a nation-wide
model for parole reform.79
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79 Cindy Chang, Louisiana is the World’s Prison Capital, TIMES-PICAYUNE, May 13, 2012,
http://www.nola.com/crime/index.ssf/2012/05/louisiana_is_the_worlds_prison.html.

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