The Kickham Comment - Boston Criminal Attorney Blog
In my previous post, I discussed the arrest last week on rape charges of a recent Massachusetts prison parolee, one Richard Flowers, released two months ago in July. While this year isn’t an election year in Massachusetts for statewide offices such as Governor, you can be assured that if it were, this case would be the “Willie Horton” of 2008. For readers who may not know, Willie Horton was a Massachusetts prison parolee who went on to kill someone after being paroled in 1988. The case was used by then-President George H.W. Bush, in the 1988 Presiential election race, as a centerpeice argument against voting for Massachusetts Governor Michael Dukakis, who came to embody charges of liberal prison parole policies.
Did the Parole Board make a mistake in this matter? Should Flowers’ application for parole have been granted? Critics of his release will probably argue that his release is an example of a system gone bad; that too many violent convicts are released on parole, when they should be kept in prison to serve their full sentence. In essence, that the corrections and parole system are too lax. But was that the case here? It doesn’t appear that way. To begin with, it needs to be understood that when anyone has been convicted and sentenced for a crime, that person cannot normally be held beyond the longest range of that sentence. For example, if the sentence is for 8 to 10 years in state prison, that convict cannot, under typical circumstances, be held for longer than ten years. Such prisoners cannot usually be held indefinitely. Secondly, predicting the behavior of any one individual, is often a complex process, taking into consideration a number of different factors, psychological assessments and behavioral history. Using all those tools, parole officials make the best decision they can, as human beings, to assess the likelihood of recidivism or future criminal behavior of the applicant. That is all anyone can do.
In this case, Flowers had served 12 of 12 to 15 years for his robbery conviction in 1995. In those 12 years, he received only a few minor disciplinary infractions. He had no history of violent behavior in prison. He had no history of sexual violence either in prison, or outside of prison. The Parole Board appeared to expended a considerable amount of time and reflection, between the time it first began reviewing Flowers’ application for parole in August 2007, and when the Board finally granted his release with the conditions that he wear an electronic monitoring bracelet, stay indoors from 10:00 PM to 6:00 AM, and report for mandatory alcohol and drug testing, in May 2008. Those conditions, in my opinion, were prudent and reasonable, given Flowers’ non-violent history for the previous 13 years in prison, as well as his criminal history preceding that prison sentence.
Doubtless the victim in this case, and many people, are enraged by this incident – and they want “something done”. But what? Refuse to ever release all prisoners on parole? Our criminal justice system is designed to offer prisoners the opportunity to rehabilitate themselves in prison, and show that they can change for the better. If you or someone you cared about were convicted of a crime, would you insist that no opportunity for parole ever be allowed? Most people don’t understand the various realities that guide and govern these situations. One of these realities – though it should not be the controlling one – is the reality of prison overpopulation in Massachusetts. The simple fact is, more people are convicted of crimes carrying prison sentences each year, than there is space to house those prisoners. A great deal of this problem has stemmed from mandatory minimum sentencing (mostly involving non-violent and relatively minor drug offenses,) which I’ve blogged about before and which has resulted in thousands of persons going to prison every year in this state, who should not be taking up space needed for violent offenders. While some might argue “that’s another debate”, the fact is, prison overcrowding is central to why parole officials are under such presuure to create more space for violent offenders..
Convicts cannot normally be held forever after they have served their sentences – absent clear and compelling evidence that they pose a threat to a particular person or the public in general. Yes, we could insist that convicts serve the maximum of their terms, not less, and in some cases, they do. But the vast majority of criminal prison sentences provide a range of terms, minimum to maximum. Once the minimum is served, it is up to corrections officials and the state Parole Board to determine if the applicant is fit for release – and that is an imperfect science, at best. When an applicant who has been a problem prisoner, exhibited violence and shown little concern for his or her rehabilitation applies for parole, it is relatively easy matter to deny the application. But when, as here, the applicant was essentially a model prisoner, incurring only a few slight administrative violations, and had exhibited efforts to rehabilitate himself while in prison, is it unreasonable to grant him early release with the conditions that he wear an electronic monitoring device and be tested regularly for alcohol and drug use? I don’t think so.
This was a terrible, but I believe unpredictable, result here. To quote a spokesman for Suffolk County District Attorney Daniel Conley who was quoted in a Boston Globe story on this arrest: “It is appalling when (a crime like this) is committed. But there is nothing to suggest that it could have been avoided by any means other than the defendant’s own restraint.” There appears to be no indication that either Massachusetts state prison or Parole Board officials overlooked any signs that Flowers continued to pose a threat to the public. This incident should serve to do two things: 1) Remind advocates of mandatory minimum sentencing for non-violent offenses, that every time a non-violent offender is sentenced to prison, that person takes up the space needed to house truly violent offenders, and resultantly increases the pressure on Parole Board officials to release applicants to create more prison space. 2) Remind state Parole Board officials to ever more carefully probe the psychological makeup and present condition of parole applicants, but seeing into someone’s mind is a complex, and often impossible, task. Prison and parole officials are only human. They cannot see into the future, much less a person’s deepest, darkest thoughts. We are all only human.