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Why parole does not work in California

From sentencing to post-release practices, our criminal-justice system is 'broken,' says legal scholar Jonathan Simon

By Cathy Cockrell, NewsCenter | 06 May 2009

BERKELEY — California's criminal justice system was thrust into the national spotlight recently after the shooting deaths of four Oakland police officers by a recently released state prisoner. In this two-part Q&A, the NewsCenter speaks with UC Berkeley Law Professor Jonathan Simon about a system he has studied since the 1980s. The associate dean of the campus's Jurisprudence and Social Policy program, Simon is the author of two books — Poor Discipline and Governing Through Crime — each of which received a distinguished book award from the American Sociological Association.

Q. Four policemen and an ex-prisoner died recently in a bloody shooting in Oakland. What does this incident tell us about our criminal-justice system?

A. We're talking about the murder in March of four Oakland police officers by a man named Lovelle Mixon, who everyone now knows was on parole at the time that he was stopped. This tragedy has led to a huge amount of public discussion about parole. For those of us who believe that parole is broken, it's not a bad thing that parole is getting a lot of attention. On the other hand, I fear that having every media account begin by saying "Parolee Lovelle Mixon" will prompt a drive to be tougher with all parolees — and will raise people's fear of crime generally.

Right now, as Attorney General Jerry Brown and others have pointed out, approximately 5,000 to 6,000 men and women a year, mostly men, are coming out of state prisons into the city of Oakland as parolees. This statistic creates the image of thousands of potential cop murderers surrounding the rest of us. But we need to remember that the vast majority of people on parole — as is true of the vast majority of people in prison — are not violent criminals, and that serious criminals don't typically commit acts of mass or multiple killing.

The murder of those four Oakland police officers by Lovelle Mixon is not a revealing story about parole. Even if we had a much, much better parole system, it probably wouldn't stop someone as personally aberrant as Lovelle Mixon from doing what he did.

Nor is this tragedy an example of Oakland's "moral degeneracy." Lots of commentators have made it sound like the city of Oakland has gotten more and more dangerous every year, and "here is just another example." In fact, we've had some highly visible armed robberies of restaurants recently. But we have fewer homicides in Oakland now than we did in the '90s. And the first quarter of the year was less violent than last year, until this incident.

Mixon was a resident of Oakland; I don't mean to downplay that. But his personal transformation into an engine of death for four police officers is not very representative of the kinds of things that give Oakland a high-crime problem. It was very, very aberrational behavior that thankfully seems to happen only once every 40 years.

Q. You've written extensively about the criminal justice system and in particular about parole, which California uses to monitor ex-offenders in the community after their release from prison. How did you originally get interested in parole?

A. Largely by accident. As a graduate student here at Berkeley's law school in the 1980s, I was hunting around for a dissertation topic and was very interested in risk, dangerousness, and assessments of risk. (The French sociologist Michel Foucault, a visiting scholar here in 1983, had advised me to pursue those themes. And my Berkeley mentor, the late Sheldon Messinger — a leading scholar from the golden age of prison sociology in the 1960s — suggested that I consider looking at parole, since to some extent it's about assessing risk.)

But one of the things I soon realized, to my discouragement, was that California's parole authorities weren't very interested in risk in any very sophisticated sense — not the way people interested in medical risks, or even engineering risks (like nuclear power development or accident prevention) would be. In fact, the authorities were making very crude judgments about risk, resulting in lots of people going back to prison, regardless of their behavior or background.

In my dissertation and the book based on it (Poor Discipline: Parole and the Social Control of the Underclass, 1890-1990), I ended up telling the story of a system that has lost its ability to make precise risk distinctions, because it was, and is, so much in the thrall of being "tough on crime." And also because chronic unemployment and homelessness had left many ex-prisoners to lives of instability and danger.

Q. How has parole as an institution changed since its inception?

A. At the end of 19th century, parole was mostly tied up with the idea of getting people work, and of using the labor market's natural disciplinary quality to keep people under control. So if you or I, say, were on parole, our parole agents would know that we had jobs and that we were supposed to be at a certain place at a certain time. They could show up at your job; if they found that you weren't there, they would track you down and find out what you were up to. But because you had a job, the parole authorities wouldn't have to provide all the control over you; they just had to make sure you weren't evading the controls that were part of your daily life.

This system has worked with varying success over the years, depending on the state of the economy. It didn't work at all well during the Depression, when very few prisoners could rely on there being a job waiting for them when they got out.

Increasingly the people in our prisons are basically outside the labor market, whether or not they're locked up. So when they return to the community from prison, they aren't going back to jobs. Most are unemployed and many are homeless; some don't even have families to go back to. In that kind of situation, trying to manage people by periodically checking up on them doesn't make any sense. It really can't work — which you'll see if you look at the category of parolees who are simply of unknown whereabouts. These parolees are described as PAL, for "parolee at large," in official California statistics.

Statewide, 14.6 percent of all parolees were PAL in 2005; in large cities like Oakland and Los Angeles it's probably closer to 25 percent. This sounds alarming, although authorities have little basis for knowing the status of these people. Is the parolee-at-large wandering around homeless and has he forgotten to come in for an appointment, or to take his medications if he or she is on psychiatric treatment? Or, as with Lovelle Mixon, has the person gone back to doing some very serious crimes and is he evading detection? We're fooling ourselves if we think that this century-old method of surveilling people in the community, through periodic contacts, can work with a population as isolated and marginalized as the one upon which we now focus our penal attention.

Q. Is this primarily what you're referring to when you write in your blog that parole is 'broken'?

A. A lot of people think parole is broken. But what exactly is wrong with it, and how it could be fixed — there the consensus breaks down enormously. I would say that the system is broken because it isn't really designed to work. California releases 95 percent or more of its offenders from prison after they've served a "determinate sentence." That is, there's no discretionary decision — by a parole board or other administrative authority — over when someone is "ready" to come out on parole. We used to have that, but in 1976 we changed the law.

But unlike many other states that also eliminated early release through parole, California continued to require parole supervision in the community for all released prisoners. And that, I think, is a big part of what's broken. People are sent to California prisons for a determinate amount of time, based upon the seriousness of their crime. After they've served this sentence, it's neither justified nor effective to add up to three years of parole supervision for each and every ex-offender — without making any distinction between those whose criminal record or psychological profile suggest they'll commit a crime that will harm the community, and those who pose no such threat.

So the parole system has little real capacity to monitor and protect us from those who pose a danger of committing serious new crimes. And it exposes ex-offenders — many of whom pose little threat of committing such crimes — to the likelihood of being sent back to prison. (This is a really big problem, when you think of our prison overcrowding and our budget crisis).

Parolees are required to consent to searches of their person and property. If officers stop a car in Oakland, and somebody in that car is on parole, police have a lot of leeway to disregard normal constitutional limits on search-and-seizure authority. They can use any evidence collected in this situation against the parolee — and also, of course, can attempt to use the coercion of plea bargaining to get evidence against other people in the car.

In recent years, as many as 70 percent of those on parole in California have been sent back to prison — only a small percentage of whom have committed a new crime (14 percent in 2007); more than half were sent back for what are called "technical" parole violations. These parolees are "returned  to custody" by the Board of Prison Terms, very often for conduct that would not earn them (or other California citizens) prison time in a court. Turning in a positive drug test is an example; even missing an appointment with parole staff can result in re-imprisonment.

Q. Would you like, then, to see California return to indeterminate sentences, to provide more flexibility as to when prisoners can be released?

A. That's a "fix" I'd be pretty opposed to. When California passed the determinate-sentencing law in the 1970s, it was a very ideological, philosophical discussion about the purpose of prison — whether it should be about rehabilitation or about punishment. I don't have strong ideological or philosophical views on that. But as a pragmatic observer of the system for many years now, I have a lot of concerns about indeterminacy. Indeterminate sentencing would give an administrative body discretion as to when to release a prisoner within a very broad range, such as 5 years to life. In the current political climate, I fear that such a body would face great pressure to keep people in prison for the maximum length of time. Determinate sentences at least have an end date; nobody has to take heat for letting someone out.

Q. What about the category of prisoners who are 'lifers'?

A. "Lifers" are the five percent of offenders still covered by what remains of California's indeterminate sentencing. They include, for example, prisoners convicted of first-degree murder (who automatically get 25 years to life) and second-degree murder (15 years to life), as well as those with a "third strike" — which infamously can apply to any felony, even a victimless crime, after two prior serious or violent felonies.

After lifers have served their mandatory minimum, California's parole board, the Board of Prison Terms, is supposed to determine when these prisoners get released. But the process is so politicized that the Board almost never agrees to set a parole date. Voters made the matter worse by passing Proposition 89 (in 1988), which requires the Governor to personally approve each lifer parole decision. So if a prisoner somehow manages to get a parole date from the Board — which is stacked usually with very strong law enforcement and victim's-rights advocates — the Governor is almost certain to turn them down.

We now have approximately 30,000 lifers in California prisons. Every year about five of them come out and about 1,000 go in. You do the math. With 30,000, we already have more lifers in the system than there were total prisoners when I started here at Cal as an undergraduate in 1977. And by the time I retire, we could easily have 100,000 lifers, who would never get out. That would be a very frightening kind of prison system to try to run.

See Q&A part 2: Why do we tolerate a massive prison system that produces 70% recidivism rates? Our 'tough on crime' approach lets both government and criminals off the hook.