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The Innocent Prisoner’s Dilemma:
Consequences of Failing to Admit Guilt at
Parole Hearings
Daniel S. Medwed∗

INTRODUCTION .......................................................................................493 
I.  THE THEORY AND PRACTICE OF PAROLE ................................................497 
A.  HISTORICAL ORIGINS AND PURPOSES OF PAROLE ................................497 
B.  PAROLE RELEASE DECISION-MAKING: CONTEMPORARY STANDARDS
AND POLICIES ....................................................................................504 
II.  THE EFFECT OF PAROLE RELEASE DECISION-MAKING NORMS ON THE
INNOCENT ...............................................................................................513 
A.  PAROLE: AN INNOCENCE OPTION OF LAST RESORT .............................518 
B.  PRESSURE ON INNOCENT INMATES TO “ADMIT” GUILT ........................523 
III.  ADMISSIONS OF GUILT AND THE PAROLE RELEASE DECISION
RECONSIDERED .......................................................................................529 
A.  THE DANGER OF ASSUMING THE LITIGATION PROCESS ACCURATELY
FILTERS THE GUILTY FROM THE INNOCENT.........................................530 
B.  POTHOLES ON THE PATH TO REDEMPTION THROUGH THE PAROLE
PROCESS ...........................................................................................532 
IV.  SUGGESTIONS FOR REFORM ....................................................................541 
A.  LIMITATIONS ON THE SUBSEQUENT USE OF STATEMENTS FROM
PAROLE HEARINGS ............................................................................542 
∗ Associate Professor of Law, University of Utah-S.J. Quinney College of Law; J.D.,
Harvard Law School, 1995; B.A., Yale College, 1991. I would like to thank Robert Adler, Jensie
Anderson, Adele Bernhard, Paul Cassell, Leslie Francis, Sharissa Jones, Erik Luna, Alice
Ristroph, George Thomas, and Manuel Utset for their thoughtful comments on previous drafts
of this piece. Moreover, I am grateful for the financial support provided by the S.J. Quinney
College of Law Summer Stipend Program and the outstanding research assistance conducted
by Utah law students David Everitt, Tara Harrison, Jordinn Long, Helene Simvoulakis, and
Tyler Williams. Finally, I am indebted to Curt Garner, a member of the Utah Board of Pardons
and Parole, for facilitating my access to the Board’s records and for answering all of my many
(and varied) questions with grace and aplomb.

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B.  DISENTANGLING ADMISSIONS OF GUILT FROM EXPRESSIONS OF
EMPATHY .........................................................................................543 
C.  ALTERING THE APPROACH OF PAROLE BOARDS TO MATTERS OF
GUILT OR INNOCENCE........................................................................546 
1.  Modifying the Structure of Parole Release Hearings ...........547 
2.  Enhancing Factual Investigative Powers ................................549 
3.  Encouraging Parole Boards to Refer Innocence Cases to
Other Agencies or Organizations ..........................................549 
a.  Innocence Projects ................................................................550 
b.  Prosecutorial “Innocence” Departments .................................552 
c.  Innocence Commissions........................................................553 
CONCLUSION ..........................................................................................555 

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INTRODUCTION
The granting of parole in the criminal justice system is often viewed as
an act of grace: the dispensation of mercy by the government to an
individual prisoner deemed worthy of conditional release prior to the
expiration of his sentence.1 Yet the criteria upon which state parole boards
base these acts of grace remain something of a mystery.2 Denials of parole
are largely unreviewable,3 and courts have held that due process imposes
only a minimal burden upon parole boards to reveal the rationales for their
decisions.4 Nevertheless, surveying state parole release decisions
demonstrates that a prisoner’s willingness to “own up” to his misdeeds—to
acknowledge culpability and express remorse for the crime for which he is
currently incarcerated—is a vital part of the parole decision-making calculus.
That is, admitting guilt increases the likelihood of a favorable parole
outcome for an inmate whereas proclaiming innocence serves to diminish
the chance for release.5 The main objective of this Article is to consider
whether this practice is wise. Should a prisoner’s assertions of innocence be
held against him in the parole process?
On the one hand, several arguments suggest that parole boards are
correct in disregarding an aspiring parolee’s claim of innocence and, in fact,
holding it against him. The primary argument in support of the current
practice relates to the issue of institutional competence. Factual questions of

1. See, e.g., Mary West-Smith et al., Denial of Parole: An Inmate Perspective, FED. PROBATION,
Dec. 2000, at 3 (“Parole is legally considered a privilege rather than a right; therefore, the
decision to grant or deny it is ‘almost unreviewable.’”). For an overview of parole and how it
differs from probation, see generally NEIL P. COHEN, THE LAW OF PROBATION AND PAROLE § 4:1
(2d ed. 1999).
2. See, e.g., Ronald Burns et al., Perspectives on Parole: The Board Members’ Viewpoint, FED.
PROBATION, June 1999, at 16–17 (“Despite both the pivotal role and dynamic nature of parole
in the criminal justice system, few research efforts have been directed at understanding parole
board decision-making processes.”).
3. See, e.g., Scarpa v. U.S. Bd. of Parole, 477 F.2d 278, 280–81 (5th Cir. 1973) (“The courts
are without power to grant a parole or to determine judicially eligibility for parole. . . .
Furthermore, it is not the function of the courts to review the discretion of the Board in the
denial of the application for parole or to review the credibility of reports and information
received by the Board in making its determination.”); see also William J. Genego et al., Parole
Release Decision-making and the Sentencing Process, 84 YALE L.J. 810, 842 (1975).
4. See, e.g., Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1, 14–16
(1979) (holding that due process merely requires notice regarding a parole hearing, a hearing
at which the inmate may present his case, and if parole is denied, a description of the reasons
for the rejection).
5. See infra notes 91–93 and accompanying text; see also Richard A. Rosen, Reflections on
Innocence, 2006 WIS. L. REV. 237, 282 (“It is not uncommon for parole boards to require an
admission of guilt before considering an inmate for release.”); Bryan H. Ward, A Plea Best Not
Taken: Why Criminal Defendants Should Avoid the Alford Plea, 68 MO. L. REV. 913, 932 (2003)
(noting that many states “include consideration of the inmate’s remorse, or lack thereof, for the
offense committed” in their parole decisions).

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guilt or innocence ordinarily stand outside the scope of parole
commissioners’ delegated duties and, rather, fall within the province of
juries and judges.6 Moreover, without the resources to conduct extensive
field investigations, parole boards simply lack the capacity to verify a
prisoner’s claim of innocence. Thus, parole boards normally presume the
guilt of the inmates seeking release before them and leave it to the postconviction litigation process to conclude otherwise.7 The second major
justification for the existing norm lies in the parole board’s understandable
desire to minimize the risk of discharging individuals who are likely to reoffend.8 Prevailing psychological doctrine maintains that taking
responsibility for one’s actions is crucial to mental health.9 According to

6. See, e.g., James Kimberly, Parole Board Often Deaf to Claims of Innocence, HOUS. CHRON.,
Feb. 6, 2001, at A5 (“‘The argument about guilt or innocence should rest with the courts.’”
(quoting the chairman of the Texas Board of Pardons and Parole)). British corrections
authorities, in fact, are extremely explicit about this. A booklet published by the Prison Reform
Trust and HM Prison Service, which is given to prisoners describing the parole process,
contains a series of questions and answers. The response to the hypothetical prisoner question
“What if I say I am innocent?” is illuminating: “Prison staff must accept the verdict of the court,
even if you say that you did not commit the offence for which you are in prison.” See Michael
Naughton, Why the Failure of the Prison Service and the Parole Board to Acknowledge Wrongful
Imprisonment is Untenable, 44 HOW. J. CRIM. JUST. 1, 2 (2005).
7. See, e.g., Stuart G. Friedman, The Michigan Parole Board: A Smoldering Volcano, 77 MICH.
BUS. L.J. 184, 187 (1998) (observing that in Michigan, the Parole Board “has adopted an
administrative policy of treating all allegations contained in the presentence report as true
(with the exception of the offender’s description of the offense)”). Parole boards often penalize
inmates who maintain their innocence—even inmates who plead guilty under an “Alford plea”
agreement in which they agree to the sentence but do not acknowledge their factual guilt. See
North Carolina v. Alford, 400 U.S. 25, 168–69 (1970) (holding that a trial court may accept a
guilty plea even where the defendant maintains her innocence, at least where it was in the
defendant’s best interest to accept the plea). For instance, in Silmon v. Travis, the defendant
pleaded guilty via an Alford plea and received a sentence of five to fifteen years’’imprisonment
on a manslaughter charge. Silmon v. Travis, 741 N.E.2d 501, 502 (N.Y. 2000). At the five-year
mark he appeared before the parole board in New York State seeking his release. Id. His
request, however, was denied on the grounds that “he lack[ed] remorse and insight and
accepted no responsibility for the actions that resulted in the brutal homicide of his wife.” Id. at
503. The defendant, in turn, claimed that he was merely acting in accord with his previous
statements at his plea allocution and, therefore, the parole board’s decision was irrational. Id.
The New York Court of Appeals eventually upheld the decision, finding that the trial court’s
“acceptance of his plea without an admission of culpability was not an indication that the State
viewed him as innocent. . . . Nor was there any promise that petitioner would be treated as
‘innocent’ by the Parole Board.” Id. at 504. For a discussion of Silmon, see Ward, supra note 5, at
932–33.
8. See, e.g., Joseph T. McCann, Risk Assessment and the Prediction of Violent Behavior, FED.
LAW., Oct. 1997, at 18 (summarizing “the current status of clinical risk assessment and the
prediction of violent behavior” that may come into play in parole hearings as well as other
contexts).
9. British barrister Alec Samuels describes this phenomenon, as applied to the United
Kingdom, very succinctly:
Those that persist in claiming innocence . . . are in difficulty when in due course it
comes to consideration for parole, that is, the minimum sentence has been served.

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many psychologists, upon whom parole boards frequently rely, refusing to
acknowledge one’s guilt signals mental instability or immaturity.10 These
attributes, in turn, may reflect that the inmate has not been rehabilitated
during his incarceration and may also portend recidivism, the reduction of
which is a central goal and measure of success for parole.11
On the other hand, the slew of post-conviction exonerations of
innocent prisoners in recent years proves that juries and judges do not
always effectively sort the guilty from the innocent at the trial level and
indicates that perhaps parole boards can (and should) fill this void to
facilitate the release of the innocent. Over the past nineteen years, 212
prisoners have been exonerated through post-conviction DNA testing,12
their innocence proven to a scientific certainty, and states have freed over
300 other inmates on grounds consistent with innocence during that
period.13 As I have argued elsewhere, these cases represent the proverbial tip
of the innocence iceberg in light of (1) the scarcity of biological evidence
suitable for DNA testing in criminal cases;14 (2) the bewildering array of
obstacles to relief contained in most state post-conviction procedures in

If he will not accept the situation, show contrition, cooperate in discussion and on
pre-release courses, he is considered to be a poor prospect for parole, his attitude
is “all wrong,” he may appear to be a danger to the public, so he does not get
parole, or possibly only after very considerable delay.
Alec Samuels, In Denial of Murder: No Parole, 42 HOW. J. CRIM. JUST. 176, 177 (2003).
10. See infra notes 207–11 and accompanying text (surveying psychological studies on
denial, guilt, and empathy).
11. See, e.g., Hicks v. Parole Bd., No. 224807, 2001 WL 792153, at *1 (Mich. Ct. App. Jan. 9,
2001) (per curiam) (citing findings by the Michigan parole board that an inmate’s “likelihood
for recidivism was difficult to determine because he ‘does not take responsibility for the offense’
and remains in ‘denial’”); State ex rel. Bergmann v. Faust, 595 N.W.2d 75, 78 (Wis. Ct. App.
1999) (noting the Wisconsin parole commission’s characterization of an inmate as high-risk—in
part, because of his assertion of innocence—and its decision to deny parole); see also PAUL F.
CROMWELL, JR. ET AL., PROBATION AND PAROLE IN THE CRIMINAL JUSTICE SYSTEM 173 (2d ed.
1985) (“Few things about parole evoke consensus, but there is some agreement that one
objective and measure of success is reduction of recidivism.”). The rehabilitation of prisoners
has historically served as a central objective of corrections officials in the United States. See infra
notes 27–29, 89–90 and accompanying text.
12. For an up-to-date list of the number of inmates exonerated through post-conviction
DNA testing, see Innocence Project Homepage, http://www.innocenceproject.org/ (last visited
Jan. 15, 2008).
13. See, e.g., Daniel S. Medwed, Anatomy of a Wrongful Conviction: Theoretical Implications and
Practical Solutions, 51 VILL. L. REV. 337, 337 (2006) (discussing the study of exonerations
conducted in Samuel R. Gross et al., Exonerations in the United States 1989 Through 2003, 95 J.
CRIM. L. & CRIMINOLOGY 523, 523–24 (2005)).
14. See, e.g., Daniel S. Medwed, Up the River Without a Procedure: Innocent Prisoners and Newly
Discovered Non-DNA Evidence of Innocence in State Courts, 47 ARIZ. L. REV. 655, 656 (2005)
(“Evidence suitable for DNA testing, however, exists only in a smattering of criminal cases: an
estimated 80-90% of cases do not have any biological evidence.”).

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regard to non-DNA cases;15 and (3) the waning availability of federal habeas
corpus.16 Furthermore, with all due respect to psychological theory, inmate
expressions of remorse in applying for parole may not reflect genuine
acknowledgment and acceptance of the criminal act—a true coming to
terms, if you will. The prison grapevine has presumably informed the parole
hearing-bound population that remorse is essentially a quid pro quo for
release, casting doubt on the sincerity of many pleas of repentance before
the board, however contrite they may seem.17 In reality, considering the
profound disincentive to claim innocence at parole hearings, logic suggests
those assertions should be taken quite seriously.18
Part I of this Article briefly discusses the origins of parole in the United
States as well as the contemporary features of parole release decisionmaking. Next, Part II explores how a parole board’s reliance on prisoner
admissions of guilt in the parole release decision intersects and potentially
interferes with the efforts of innocent inmates to win their freedom. Part III
then critically examines the theoretical and normative implications of the
current parole system’s emphasis on remorse and responsibility. Finally, Part
IV recommends several reforms concerning the treatment of inmate claims
of innocence at parole hearings. These reforms include limiting the use of
parole hearing transcripts at subsequent post-conviction proceedings,

15. See generally Daniel S. Medwed, California Dreaming? The Golden State’s Restless Approach to
Newly Discovered Evidence of Innocence, 40 U.C. DAVIS L. REV. 1437 (2007) (analyzing California’s
approach to post-conviction claims of innocence); Medwed, supra note 14.
16. See Medwed, supra note 14, at 717 n.380 (describing how the Supreme Court, in
Herrera v. Collins, 506 U.S. 390 (1993), held that “freestanding claims of actual innocence based
on newly discovered DNA evidence do not provide an independent ground for habeas relief
absent compelling circumstances”); see also Stephen B. Bright, Is Fairness Irrelevant?: The
Evisceration of Federal Habeas Corpus Review and Limits on the Ability of State Courts to Protect
Fundamental Rights, 54 WASH. & LEE L. REV. 1, 4 (1997) (discussing the one year statute of
limitations on petitions for habeas corpus relief that Congress passed in 1996). Nevertheless,
the U.S. Supreme Court’s recent decision in House v. Bell does provide some hope for innocent
prisoners wishing to present their claims via federal habeas corpus. House v. Bell, 126 S. Ct.
2064, 2086–87 (2006) (allowing a habeas corpus petitioner to proceed under the actual
innocence exception to procedural bar, yet emphasizing that such petitioners must make
stringent showings).
17. See Carol Sanger, The Role and Reality of Emotions in Law, 8 WM. & MARY J. WOMEN & L.
107, 111 (2001) (noting that in events like parole hearings, “[A] convicted and guilty defendant
can put on a great show of remorse and be rewarded for the display. All of the players now
understand the ‘proper’ emotional response and each can act accordingly.”).
18. Contrary to popular perception, inmates’ unwavering protestations of innocence seem
to be relatively rare, in part due to the pressures to admit guilt before the parole board. See, e.g.,
Abbe Smith, Defending the Innocent, 32 CONN. L. REV. 485, 513 n.111 (2000) (“There is a popular
but inaccurate assumption that everyone in prison professes innocence.”). But see Danielle
Lavin-Loucks, Building a Case and Getting Out? Inmate Strategies for Obtaining Parole, at 31
(July 2002) (unpublished Ph.D. dissertation, Indiana University-Bloomington) (on file with the
Iowa Law Review) (“The notion that they are innocent and have been falsely incarcerated is a
common claim by offenders within the penal institution, so much so that they may concede the
commonness in their appeals to the [parole] board.”).

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distinguishing statements of remorse from those of responsibility, and
reconceiving the role parole boards play in entertaining questions of guilt
and innocence at the release decision stage.
To put it bluntly, innocent inmates currently face a true “prisoner’s
dilemma”19 when encountering parole boards. Choice A consists of
proclaiming innocence and consequently hindering the possibility of parole;
Choice B involves taking responsibility for a crime the prospective parolee
did not commit and bolstering the chance for release, albeit with dire effects
for any post-conviction litigation involving the underlying innocence claim.20
This type of choice is one that no actually innocent prisoner should be
forced to make.21 Ultimately, parole boards should be mindful of the
possible legitimacy of some innocence claims and, at the very least, not
reflexively hold those assertions against the prisoner in the release decision.
I.

THE THEORY AND PRACTICE OF PAROLE

A. HISTORICAL ORIGINS AND PURPOSES OF PAROLE
The name coined for the conditional release of a prisoner before
completing a sentence derives from the French phrase parole d’honneur,
loosely translated as “word of honor.”22 From the outset, the concept of
parole was aimed at the rehabilitated prisoner—the inmate who had
exhibited model (or “honorable”) behavior while incarcerated, professed to
be a reformed person, and accordingly proved to be a safe candidate for

19. Scholars in the field of law and economics often use the term “prisoner’s dilemma.”
Typically, scholars discuss prisoners’ dilemmas in the context of collective action problems, i.e.,
situations where the harmful effect of a decision could be tempered by coordination or
cooperation with other actors. See, e.g., Manuel A. Utset, Reciprocal Fairness, Strategic Behavior &
Venture Survival: A Theory of Venture Capital-Financed Firms, 2002 WIS. L. REV. 45, 118 (“A
prisoner’s dilemma game is one in which both parties would be better off agreeing to
cooperate; however, the parties, for whatever reason, cannot reach an enforceable agreement
to cooperate.”). Innocent prisoners facing parole boards encounter a dilemma unrelated to
collective action problems, but a dilemma nonetheless.
20. For instance, in some states, such as Utah, parole boards may make information that
prisoners revealed available to prosecutors in responding to post-conviction innocence claims.
See infra notes 180–81 and accompanying text.
21. See, e.g., Arnold H. Loewy, Systemic Changes That Could Reduce the Conviction of the
Innocent 14 (Univ. N.C. Sch. Law, Legal Studies Research Paper No. 927223, 2006), available at
http://ssrn.com/abstract=927223 (noting that the “requirement of contrition as a condition of
parole . . . is a fairly common practice, at least in the United States, and its upshot is that truly
innocent people have to spend more time in prison for a crime than one who was actually
guilty”); Samuels, supra note 9, at 179 (“Paradoxically the innocent lifer will probably never be
released, whereas the guilty lifer will probably be released.”).
22. CROMWELL, JR. ET AL., supra note 11, at 153; see GRAY CAVENDER, PAROLE: A CRITICAL
ANALYSIS 15 (1982) (suggesting that the term “parole” was first used in the United States by a
Boston physician, Dr. S. G. Howe, who used the term in correspondence with the New York
Prison Association).

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discharge.23 Specifically, parole emerged in nineteenth-century English and
Irish prisons through a process in which inmates earned release upon the
accumulation of a certain number of “marks” for adhering to institutional
rules and progressing toward self-improvement.24 This precursor to the
modern parole system migrated across the ocean to the United States in the
late nineteenth century at a time when rehabilitation comprised the
dominant punishment theory in state correctional facilities.25 Borrowing
heavily from medical jargon, the rhetoric in penal circles during this era
tended to refer to prisoners as “sick” and the goal of punishment to “cure.”26
23. CAVENDER, supra note 22, at 15.
24. See, e.g., Burns et al., supra note 2, at 16 (reviewing the origins of parole since the
nineteenth century). As Daniel Weiss notes:
Alexander Maconochie, the superintendent of the British penal colony on Norfolk
Island in 1840, created a philosophy of . . . rehabilitation . . . . [T]he State
punished an inmate for the past while . . . training [him] for the future. The State
did not release inmates until they had received a certain number of marks . . .
awarded for good . . . behavior.
Daniel Weiss, Note, California’s Inequitable Parole System: A Proposal to Reestablish Fairness, 78 S.
CAL. L. REV. 1573, 1584 (2005); see also HOWARD ABADINSKY, PROBATION AND PAROLE 205–06
(7th ed. 2000) (discussing the development of parole in the 1850s in Irish prisons); DAVID
DRESSLER, PRACTICE AND THEORY OF PROBATION AND PAROLE 67–68 (2d ed. 1969) (describing
the mark system crafted by Maconochie). For an interesting discussion of the historical
precursors to the concept of parole, see CAVENDER, supra note 22, at 6–16.
25. See supra note 24 and accompanying text (examining the history of parole); Adam L.
Pollock, Comment, Using Parole to Constitutionally Reconcile the Criminal Punishment Goals of Desert
and Incapacitation, 8 U. PA. J. CONST. L. 115, 132–33 (2006) (discussing the development of
parole in the United States). One team of scholars has suggested that
[t]he motives for the development and spread of parole were mixed. They were:
partly humanitarian, to offer some mitigation of lengthy sentences; partly to
control in-prison behavior by holding out the possibility of early release; and partly
rehabilitative, since supervised reintegration into the community is more effective
and safer than simply opening the gates.
CROMWELL, JR. ET AL., supra note 11, at 179–80.
26. See, e.g., Douglas Berman, Reconceptualizing Sentencing, 2005 U. CHI. LEGAL F. 1, 4
(discussing the importance of rehabilitation in sentencing theory in the late nineteenth and
twentieth centuries). Berman observes that
[t]he rehabilitative ideal often was conceived and discussed in medical terms, with
offenders described as “sick” and punishments aspiring “to cure the patient.”
Sentencing judges and parole officials were thought to have unique insights and
expertise in deciding what sorts and lengths of punishments were necessary to best
serve each criminal offender's rehabilitation potential.
Id. In the last quarter of the nineteenth century,
[b]ased primarily on a rehabilitation model, judges—moved by their particular
idiosyncratic emphases—set widely varying indeterminate terms for similar crimes.
A parole board determined when each prisoner was rehabilitated, i.e., cured or
treated and therefore now ready to reenter the community. Each prisoner was
supposed to serve a sentence which in turn served his individual needs and his
potential for rehabilitation.

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Indeed, the first American penal institution to utilize a parole-like system, a
state reformatory in Elmira, New York, in 1876, alluded to rehabilitation as
its underlying principle in embracing the new archetype from abroad:
Criminals can be reformed; that reformation is the right of
[convicts] and the duty of the State; that every prisoner must be
individualized and given special treatment adapted to develop him
to the point in which he is weak—physical, intellectual, or moral
culture, in combination, but in varying proportions, according to
the diagnosis of each case; that time must be given for the
reformatory process to take effect, before allowing him to be sent
away, uncured; that his cure is always facilitated by his cooperation,
and often impossible without it.27
Despite this optimistic portrayal of the potential for rehabilitation,
parole was far from routine in its initial American form.28 As the
Massachusetts prison manual explained to incoming felons in the 1880s, one
should expect to serve a full term, but “[i]n deserving cases, . . . where it can
be reasonably assumed that a man will be better off outside of the
reformatory, he may be given the privilege of parole.”29
The growing use of “the privilege of parole” in the United States largely
coincided with the proliferation of state indeterminate sentencing regimes
in the early twentieth century, whereby defendants received a sentencing
range upon conviction (say, three to six years in prison) instead of a fixed

Robert Blecker, Haven or Hell? Inside Lorton Central Prison: Experiences of Punishment Justified, 42
STAN. L. REV. 1149, 1203 (1990); see also Joel M. Caplan, Parole System Anomie: Conflicting Models of
Casework and Surveillance, FED. PROBATION, Dec. 2006, at 33 (“Since the inception of prisons,
correctional workers sought to identify themselves with the medical profession.”); ABADINSKY,
supra note 24, at 209 (describing the medical model as applied to corrections theory).
27. Weiss, supra note 24, at 1585 n.89; see also CROMWELL, JR. ET AL., supra note 11, at 151
(noting that parole first appeared in the United States at the Elmira Reformatory in 1876).
Following Elmira’s lead, parole was soon adopted in other American prisons. See ABADINSKY,
supra note 24, at 208 (“The Elmira system—which included military-style uniforms, marching,
and discipline—was copied by reformatories in other states, such as the Massachusetts
Reformatory at Concord, the Minnesota State Reformatory at St. Cloud, and the Illinois State
Reformatory at Pontiac and made applicable to all or part of the prison population in
Pennsylvania and Michigan.”); PEGGY B. BURKE, NAT’L INST. OF CORR., U.S. DEP’T OF JUSTICE,
CURRENT ISSUES IN PAROLE DECISION-MAKING: UNDERSTANDING THE PAST; SHAPING THE FUTURE
25 (1988), available at http://www.nicic.org/pubs/pre/007017.pdf (noting that “by 1922, 37
states had adopted some form of independent parole board system”).
28. Notwithstanding its allusions to principles of reform, Elmira was a notoriously violent
and overcrowded facility in which prisoners suffered extreme punishments, including
whippings and psychological torture. See ABADINSKY, supra note 24, at 207. During this era, as
Cavender notes, “American penology was couched in the rhetoric of reformation, but, as was
the case in Europe, there were strong overtones of social control.” CAVENDER, supra note 22, at
36.
29. Pollock, supra note 25, at 133.

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term (six years flat).30 Defendants subject to an indeterminate sentence
typically confronted the parole board at or shortly after the expiration of the
minimum term to seek conditional release, with the condition being the
ability to live as a law-abiding citizen through the end of the maximum term
under supervision by a parole officer.31 The expansion of indeterminate
sentencing transferred much of the power for establishing an inmate’s
actual prison term from the sentencing judge to the parole board and
provided an incentive for prisoners to comport themselves properly during
their incarceration in order to satisfy parole commissioners.32 The
rehabilitative ideal and its concrete manifestation, parole, received praise
from many quarters. For example, President Franklin D. Roosevelt insisted
in 1940 that “parole, when it is honestly and expertly managed, provides
better protection for society than does any other method of release from
prison.”33 To be fair, the emergence of parole cannot be attributed wholly to
magnanimous motives on the part of legislators seeking to aid prisoners and
safeguard the public. Parole’s inherent appeal also stems from the more
mundane desire to reduce prison expenses and overcrowding.34 Jointly
30. Id. at 132–33 (mentioning that New York created a parole board and an indeterminate
sentencing structure in 1889); see also JOAN PETERSILIA, WHEN PRISONERS COME HOME: PAROLE
AND PRISONER REENTRY 58 (2003) (crediting Michigan penologist Zebulon Brockway with
devising a two-pronged approach to preparing inmates for release—indeterminate sentencing
paired with parole supervision—and then implementing it at the Elmira Reformatory). For a
brief discussion of the difference between determinate and indeterminate sentencing, see
Weiss, supra note 24, at 1582–86; see also CROMWELL, JR. ET AL., supra note 11, at 158 (“Parole
legislation spread much more rapidly than did indeterminate sentence legislation. By 1901,
twenty states had parole statutes, but only eleven states had indeterminate sentence laws.”). The
“[p]arole of federal prisoners began after [the] enactment of legislation” by Congress in 1910.
PETER B. HOFFMAN, HISTORY OF THE FEDERAL PAROLE SYSTEM 1 (2003). For a discussion of the
history to the emergence of parole in California, see generally Sheldon L. Messinger et al., The
Foundations of Parole in California, 19 LAW & SOC’Y REV. 69 (1985).
31. See, e.g., McCoy v. Harris, 160 P.2d 721, 722 (Utah 1945) (describing the effect of
parole). The Utah Supreme Court explained:
[I]t is clear that a parole is in the nature of a grant of partial liberty or a lessening
of restrictions to a convicted prisoner. Granting of a parole does not change the
status of a prisoner; it merely “pushes back the prison walls” and allows him the
wider freedom of movement while serving his sentence. The paroled prisoner is
legally in custody the same as the prisoner allowed the liberty of the prison yard, or
of working on the prison farm.
Id.
32. See ABADINSKY, supra note 24, at 206–10 (describing some of the features of the
“medical model” of corrections and some of the theories advanced to support the introduction
and use of parole in the United States).
33. CROMWELL, JR. ET AL., supra note 11, at 180–81; see also Williams v. New York, 337 U.S.
241, 248 (1949) (“Retribution is no longer the dominant objective of the criminal law.
Reformation and rehabilitation of offenders have become important goals of criminal
jurisprudence.”).
34. See, e.g., LLOYD F. OHLIN, SELECTION FOR PAROLE 9 (1951) (“Some find [parole] useful
because it relieves the overcrowding of prisons and makes the construction of new buildings

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fueled by rehabilitative ideology and fiscal reality, the pace of parole’s
implementation in the United States accelerated. All fifty states had parole
systems by 1942,35 and as of the 1970s a majority of prisoners—over seventy
percent—obtained release on parole prior to the termination of their
sentences.36
Attitudes toward sentencing in general and parole in particular
changed dramatically in the 1970s due to shifting political winds that
unmoored punishment theory from the rehabilitative paradigm that had
been in vogue for decades.37 Instead of rehabilitation, retributive models for
punishment based on the “eye for an eye” concept gained momentum.38
Ultimately, the “tough on crime” and “truth in sentencing” movements of
the 1980s produced a return to determinate sentencing and, concomitantly,
a retreat from the use of discretionary parole systems; stiff sentences became
the nationwide norm.39 This is not to say that states have abandoned the
unnecessary. Some defend it because it costs less to supervise a prisoner on parole than to
maintain him in prison.”); DAVID J. ROTHMAN, CONSCIENCE AND CONVENIENCE 189 (1980)
(noting how some state parole boards in the 1920s and 1930s explicitly acknowledged that
overcrowding was a factor in parole release policies); JONATHAN SIMON, POOR DISCIPLINE:
PAROLE AND THE SOCIAL CONTROL OF THE UNDERCLASS, 1890–1990, at 35 (1993) (“The ideas of
Progressive Era reformers may have provided the justifications for parole, but the specific
reasons for its adoption in each state had more to do with the political problems of managing
increasingly large state prison systems.”).
35. Joan Petersilia, Parole and Prisoner Reentry in the United States, in 26 CRIME & JUST. 479,
489 (1999).
36. See CROMWELL, JR. ET AL., supra note 11, at 166.
37. See, e.g., id. at 181 (“In the middle seventies, with a suddenness remarkable in social
change, there was a dramatic turnabout. Individualization, rehabilitation, sentence
indeterminacy, and parole all seemed to fall from grace and, indeed, appeared to be on their
way out.”); PETERSILIA, supra note 30, at 65 (mentioning that “incapacitation and ‘just deserts’
replaced rehabilitation as the primary goal of American prisons” and citing data that seventythree percent of Americans in 1970 viewed rehabilitation as the chief purpose of prison as
opposed to twenty-six percent in 1995). Nevertheless, almost from its onset, the parole system
was denigrated for its perceived inability to separate the reformed from the recidivist. See, e.g.,
ROTHMAN, supra note 34, at 159. Rothman notes:
Whenever fears of a “crime wave” swept through the country, or whenever a
particularly senseless or tragic crime occurred, parole invariably bore the brunt of
the attack . . . . Practically every crime commission and investigatory body of the
1920’s and 1930’s began its examination of parole with a statement conceding
massive public opposition.
Id.
38. See, e.g., Weiss, supra note 24, at 1585 (“The modern parole system has morphed from
a rehabilitative mechanism into a form of deferred retributive sentencing.”). But cf. Daniel M.
Filler & Austin E. Smith, The New Rehabilitation, 91 IOWA L. REV. 951, 954 (2006) (asserting that
the rehabilitation ideal has survived and even thrived in the context of specialty juvenile justice
courts).
39. Pollock, supra note 25, at 133–34. The desire to “incapacitate” individuals perceived to
be dangerous and thereby decrease crime contributed to the increase of longer prison
sentences in the 1980s. See BURKE, supra note 27, at 27–28 (discussing the escalation in prison
sentences in the late 1970s and early 1980s); see also Burns et al., supra note 2, at 16 (“Over the

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notion of parole altogether. Rather, in lieu of discretionary parole systems in
which parole boards have the power to choose whether and when an inmate
should be released, numerous states have endorsed mandatory parole
regimes.40 In states with mandatory parole systems, release decisions are
usually preordained by statute as a fixed percentage of an inmate’s
determinate term with some credit for good time served.41 Inmates released
pursuant to a mandatory parole system may then face monitoring by parole
officers for the remainder of their sentences or for some other specified
period of time.42 Between 1990 and 1999, the number of discretionary
parole releases in the United States declined nearly twenty percent, while
the number of mandatory parole releases almost doubled.43 During this
phase, several states also restricted the parole eligibility of certain classes of
offenders.44 The imposition of prison sentences “without possibility of
last 20 years, however, the nature of parole has changed. The political constituencies of many
jurisdictions began to view indeterminate sentencing as too lenient and opted to shift to
determinate sentencing.”). Attacks on indeterminate sentencing did not derive solely from the
political right. See ABADINSKY, supra note 24, at 210–11 (mentioning that members of both the
political left and right began to take issue with parole, if for different reasons). Leftist criticisms
of the parole system and indeterminate sentencing during this period stemmed, in part, from
fears of “differential treatment of persons convicted of similar crimes.” Id. at 213.
40. See, e.g., TIMOTHY A. HUGHES ET AL., U.S. DEP’T OF JUSTICE, TRENDS IN STATE
PAROLE, 1990–2000, at 1 (2001), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/tsp00.pdf
(“[R]elease determined by statute (mandatory parole) became the most common method of
release from State prison.”).
41. Id.; see also JOAN PETERSILIA, U.S. DEP’T OF JUSTICE, WHEN PRISONERS RETURN TO THE
COMMUNITY: POLITICAL, ECONOMIC, AND SOCIAL CONSEQUENCES 2 (2000), available at http://
www.ncjrs.gov/pdffiles1/nij/184253.pdf (“Today, indeterminate sentencing and discretionary
release have been replaced in 14 states with determinate sentencing and automatic release.
Offenders receive fixed terms when initially sentenced and are released at the end of their
prison term, usually with credits for good time.”).
42. Inmates provided with mandatory release are often subject to a period of parole
supervision thereafter. See, e.g., PETERSILIA, supra note 41, at 2 (noting that “most California
offenders are subject to 1 year of parole supervision” after release).
43. HUGHES ET AL., supra note 40, at 1; see also LAUREN E. GLAZE & THOMAS P. BONCZAR,
PROBATION AND PAROLE IN THE UNITED STATES, 2005, at 8 (2006), available at http://www.
ojp.usdoj.gov/bjs/pub/pdf/ppus05.pdf (“As a percentage of all releases from State prison,
discretionary releases by a parole board steadily declined from 55% in 1980 to 22% in
2004 . . . .”); Caplan, supra note 26, at 33–34 (“In 1977, over 70 percent of prisoners were
released on discretionary parole. By 1995 and 2002 this had declined to 50 percent and 39
percent, respectively.”); Petersilia, supra note 35, at 495 (“By the end of 1998, fourteen states
had abolished discretionary parole release for all inmates. In addition, in twenty-one states,
parole authorities are operating under what might be called a ‘sundown provision,’ in that they
have discretion over a small or diminished parole eligible population.”).
44. See Alison Virag Greissman, The Fate of “Megan’s Law” in New York, 18 CARDOZO L. REV.
181, 191 (1996) (discussing limitations on parole for sex offenders); Edward R. Hammock &
James F. Seelandt, New York’s Sentencing and Parole Law: An Unanticipated and Unacceptable
Distortion of the Parole Boards’ Discretion, 13 ST. JOHN’S J. LEGAL COMMENT. 527, 563 n.201 (1999)
(citing D. Michael Fisher, Changing Pennsylvania’s Sentencing Philosophy Through the Elimination of
Parole for Violent Offenders, 5 WIDENER J. PUB. L. 269, 294 (1996) (suggesting the elimination of
parole for violent, high-risk offenders)).

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parole” increased in the 1980s as well, a trend facilitated by the U.S.
Supreme Court’s rejection of claims that such sentences constituted cruel
and unusual punishment.45
Nonetheless, parole weathered the retributive storm of the 1980s and
remains an entrenched aspect of American corrections policy today, as
underscored by the fact that the overall number of adults under state parole
supervision tripled between 1980 and 2000.46 What is more, many states have
retained discretionary parole systems,47 or at least mixed schemes in which
parole boards retain partial discretion to approve release dates within
statutory parameters.48 Some commentators have even argued that the
replacement of an earned release model for candidates vetted by parole
boards (discretionary parole) with an automatic release structure
(mandatory parole) for virtually all inmates may be counter-productive in
the long haul.49 To that end, the empirical data show that discretionary
parole decisions are more effective than their mandatory counterparts from
the vantage point of public safety—of the total number of state parole
discharges in 1999, over half of discretionary parolees succeeded in
completing their term of post-release supervision without violating parole as
opposed to only a third of mandatory parolees.50 These statistics indicate
that discretionary parole has lingering value as a crime control device.51
45. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 996 (1991) (concluding that mandatory
life in prison without parole was not cruel and unusual punishment for cocaine possession).
46. HUGHES ET AL., supra note 40, at 1 (noting the trend away from discretionary parole,
but mentioning its continued use); PETERSILIA, supra note 30, at 65 (stating that by the end of
2002, sixteen states still vested full authority in their parole boards to release inmates through a
discretionary process). The most recent data indicates that the overall number of parolees
continues to rise, with a nationwide increase of 1.6% in 2005, and that some states have
experienced significant growth. GLAZE & BONCZAR, supra note 43, at 1–2.
47. HUGHES ET AL., supra note 40, at 2 (describing the movement away from discretionary
releases in the 1980s and 1990s but noting that many states have kept this structure); see also
Steven L. Chanenson, Guidance from Above and Beyond, 58 STAN. L. REV. 175, 186–87 (2005)
(“Although discretionary parole release is largely off the national sentencing reform radar, it
remains a vital part of American criminal justice. In fact, indeterminate sentencing regimes—
that is, systems with discretionary parole release—continue to be the most common approach
to sentencing in the United States.”).
48. See GENE KASSEBAUM ET AL., DEP’T OF THE ATT’Y GEN., HAWAII, PAROLE DECISIONMAKING IN HAWAII: SETTING MINIMUM TERMS, APPROVING RELEASE, DECIDING ON REVOCATION,
AND PREDICTING SUCCESS AND FAILURE ON PAROLE 3 (2001), available at http://
hawaii.gov/ag/cpja/main/rs/Folder.2006-02-06.3414/parole2.pdf (commenting that Hawaii
has a “mixed indeterminate” scheme of parole board discretion in setting minimum sentences
and approving releases within the confines of legislative mandates).
49. See PETERSILIA, supra note 41, at 5 (“No-parole systems sound tough but remove a
gatekeeping role that can protect victims and communities.”).
50. Id. at 1.
51. See id. at 2 (criticizing mandatory release and observing that “in California, where
more than 125,000 prisoners are released yearly, there is no parole board to ask whether the
inmate is ready for release, since he or she must be released once his or her term has been
served”).

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Pragmatic concerns about the burgeoning American prison population may
also contribute to discretionary parole’s eventual return to favor.52 Simply
put, prison overcrowding and budget constraints place near constant
pressure on corrections officials to lobby for early release procedures, and
discretionary parole generally permits discharge earlier in an inmate’s term
than mandatory parole.53 In sum, decisions to grant or deny discretionary
parole affect thousands of prisoners in state penitentiaries and will continue
to have an impact in the foreseeable future, meaning that the process
through which these decisions are made warrants rigorous examination.
B. PAROLE RELEASE DECISION-MAKING: CONTEMPORARY STANDARDS AND POLICIES
The composition of parole boards and the criteria used in exercising
the discretion to grant parole vary across the states. Several features,
however, appear common. State parole boards normally have jurisdiction to
consider releasing defendants incarcerated pursuant to felony convictions
and occasionally high-level misdemeanors.54 As for their structure, parole
boards often are situated in the state executive branch with their members
appointed by the governor.55 Although the appointed nature of positions on

52. See BURKE, supra note 27, at 6–7 (predicting in the late 1980s that prison overcrowding
“may well be the single most important factor in derailing the move to abolish parole”).
53. See, e.g., id.; Burns et al., supra note 2, at 16 (describing budget constraints on pretrial
and probation service offices); PETERSILIA, supra note 30, at 55 (noting that, paradoxically,
mandatory releases often result in shorter prison terms than is the case in discretionary parole
systems).
54. See, e.g., UTAH CODE ANN. § 77-27-5(1)(a) (2003 & Supp. 2007); see also id. § 77-279(1)(a) (“The Board of Pardons and Parole may pardon or parole any offender or commute or
terminate the sentence of any offender committed to a penal or correctional facility under the
jurisdiction of the Department of Corrections for a felony or class A misdemeanor except as
provided in Subsection (2).” (emphasis added)). In exercising its “exclusive” and broad power
to establish the duration of an inmate’s sentence, the Board is even capable of releasing an
inmate before the expiration of his minimum term, provided that certain procedural
requirements are met and mitigating circumstances are present. See id. § (1)(b). In Oregon, the
parole board likewise possesses the authority to grant early parole under particular conditions.
See Houck v. Bd. of Parole & Post-Prison Supervision, 865 P.2d 476, 478 (Or. Ct. App. 1993)
(noting that Oregon law requires the Board set sentences consistent with established rules “[t]o
the extent permissible under law”).
55. See COHEN, supra note 1, § 4:2, at 4-8 (“Usually [parole board members] are appointed
by the governor with the advice and consent of the state senate, although other methods of
appointment are also used.”); CROMWELL, JR. ET AL., supra note 11, at 168 (“In most
jurisdictions the governor appoints parole board members and it is not unusual to have a new
board appointed when a new governor takes office.”); PETERSILIA, supra note 41, at 6 (“In most
States, the chair and all members of the parole board are appointed by the Governor.”).
The structure of the Utah Board of Pardons and Parole seems rather representative of
state practice across the country. At present, the Board is an independent agency within the
state executive branch that has five voting members who are appointed by the governor, subject
to legislative confirmation, and serve staggered five-year terms. See UTAH CODE ANN. § 77-27-2
(2003). There are also five pro-tempore members who serve in the event that a Board member
is absent or under other “extraordinary circumstances.” Id. One of the five voting members

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parole boards may insulate commissioners from direct political pressure to a
degree,56 parole decisions hardly seem divorced from politics entirely—nor
do the individuals making these decisions.57 Gauging the qualifications and
skill levels of state parole board members is a difficult enterprise, especially
considering the politicization of the parole process,58 and one that far
exceeds the scope of this Article. More importantly, even assuming that the
bulk of parole board members are well-meaning, well-informed, and wellpositioned to make the most accurate appraisal of a prisoner’s worthiness
for parole,59 it remains clear that parole release decisions are wrought with
serves as chairperson “at the governor’s pleasure.” Id. § 77-27-4(1). With few limitations, the
chairperson possesses leeway over how the Board administers this power. See id. (“The
chairperson may exercise the duties and powers, in addition to those established by this
chapter, necessary for the administration of daily operations of the board, including personnel,
budgetary matters, panel appointments, and scheduling of hearings.”); see also id. § 77-27-5
(2003 & Supp. 2007). For instance, although the full Board must participate in commutation or
pardon hearings as per statute, the entire group is not obligated to hear parole cases; instead,
panels designated by the chairperson may bear responsibility for this task. See id. §§ (b)–(d); see
also COHEN, supra note 1, § 4:3 (discussing the use of panels by state parole boards across the
country).
56. See, e.g., Daniel S. Medwed, The Zeal Deal: Prosecutorial Resistance to Post-Conviction Claims
of Innocence, 84 B.U. L. REV. 125, 151–52 (2004) (discussing the merits of appointed versus
elected prosecutors and concluding that “all members of a prosecutor’s office—be it state,
local, or federal—must be mindful of the political ramifications of their conduct in handling
cases”).
57. See, e.g., Friedman, supra note 7, at 184–85 (describing the “politicization of the parole
board” in Michigan); Victoria J. Palacios, Go and Sin No More: Rationality and Parole Release
Decisions by Parole Boards, 45 S.C. L. REV. 567, 576–79 (1994) (“Parole board members are
generally gubernatorial appointees, thus raising two additional criticisms: Political patronage
often results in underqualified board appointees and boards are fertile breeding grounds for
corruption.”). Some states have tried to minimize the risk of undue political influence in the
parole process by limiting the number of board members from any single political party or by
banning certain political activity. COHEN, supra note 1, § 4:2, at 4-9 to 4-10. Also, in an effort to
distance parole boards from external influence, many states make boards independent of the
department of corrections. Id. at 4-10.
58. See supra notes 55–57 and accompanying text; see also Mark R. Pogrebin et al., Parole
Decision-making in Colorado, 14 J. CRIM. JUST. 147, 153 (1986) (describing one highly-publicized
incident involving a prisoner convicted of slaying a prominent Colorado beer producer and
how “external pressure by the community and the district attorney of Denver no doubt
influenced the board’s decision to deny parole”).
59. Some commentators have contended that many, if not most, parole board
commissioners remain underqualified. See PETERSILIA, supra note 41, at 6 (“In two-thirds of the
States, there are no professional qualifications for parole board membership.”); ROTHMAN,
supra note 34, at 163 (discussing the composition of state parole boards and observing that
“[t]he Washington parole board in the early 1930’s was composed of a wholesale jeweler from
Spokane (as chairman), an insurance broker, and the ‘farmer member of the board,’ who
actually ran a general store in Palouse, the center of the state’s wheat belt”). To guard against
political cronyism, some states have merit-based civil-service systems for determining a
prospective parole board member’s suitability for the position. See, e.g., CROMWELL, JR. ET AL.,
supra note 11, at 168 (“On some occasions this has resulted in appointments on the basis of
political affiliations rather than qualifications necessary for making parole decisions. Many
states, to avoid this, have adopted civil service or merit systems for appointment of parole board

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subjectivity; they are intrinsically more art than science.60 Furthermore, two
factors have historically served to exacerbate the problems generated by the
subjective quality of parole decision-making: first, the shortage of legislative
or regulatory guidance extended to parole boards regarding the specific
criteria to employ in determining whether to grant or deny parole to an
inmate,61 and second, the lack of judicial oversight to examine the wisdom
of parole decisions.62 As one group of scholars has concluded, “Parole
release decision-making has thus suffered . . . from judicial neglect and
‘hands-off-ism.’”63
Given the absence of much judicial, legislative, and regulatory oversight
of their work, parole boards tend to consider a wide-ranging (and
apparently ever-changing) assortment of variables in their discretionary
release decisions. Concerned about disparities in parole decisions for
similarly situated inmates, prisoners’ rights advocates, scholars, and state
legislatures have tried repeatedly since the 1960s to rein in parole board
members.”). Similarly, some jurisdictions may impose limitations on the number of parole
board members enjoying the same political affiliation or forbid a parole commissioner from
simultaneously holding a political office. See CAVENDER, supra note 22, at 41 (reviewing the types
of qualifications used by various jurisdictions).
60. See OHLIN, supra note 34, at 29 (mentioning a remark from a prisoner that recognizes
and reflects the difficult nature of engaging in parole release decisions: “‘That job’s so tough I
wouldn’t be a parole board member even if I could get parole by being one.’”); see also Don M.
Gottfredson & Kelley B. Ballard, Jr., Differences in Parole Decisions Associated with Decision-Makers, 3
J. RES. CRIME & DELINQ. 112, 119 (1966) (finding “no support for the hypothesis that
differences in parole decision outcomes may be partly attributed to decision-makers rather than
to offenders . . . paroling authority members tend to make similar sentencing decisions” in an
empirical study of 2,053 randomly selected cases).
61. See, e.g., Palacios, supra note 57, at 576. Palacios notes:
[B]oards . . . have little guidance in making release decisions. Once information is
compiled regarding the offender’s crime, victim, criminal history, social history . . .
and institutional adjustment, parole boards . . . interview eligible offenders either
informally or at a hearing. The members then make a decision to grant or deny
parole according to imprecise standards.
Id.
62. See supra notes 3–4 and accompanying text. To be sure, states may have procedures
under which a prisoner may seek review of parole release hearings, but the ability to do so is
often quite restricted. See ABADINSKY, supra note 24, at 234 (describing the process for appealing
parole release decisions in Tennessee and citing two potential grounds: (1) “significant new
evidence or information that was not available at the time of the hearing” or (2) “allegations of
misconduct by the hearing official”); see also UTAH CODE ANN. § 77-27-5(3) (2005) (stating that
decisions “involving paroles, pardons, commutations or terminations of sentence, restitution, or
remission of fines or forfeitures are final and are not subject to judicial review”). See generally
Alexander K. Mircheff, In Re Dannenberg: California Forgoes Meaningful Judicial Review of Parole
Denials, 39 LOY. L.A. L. REV. 907 (2006) (discussing the obstacles to review of parole denials in
California). It should be noted, moreover, that some states expressly permit the judiciary to play
a more pronounced role in the initial parole release decision than is the norm. See COHEN,
supra note 1, § 4:1, at 4-4 (describing how Missouri and Pennsylvania vest parole release
decision-making power, in some instances, partly in the judicial branch).
63. Genego et al., supra note 3, at 815.

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discretion by advocating the creation of visible standards to provide an
element of uniformity and predictability to the process.64 Inmates often
decry the lack of transparency and certainty in parole release decisionmaking, and stories of perceived injustices at the hands of parole boards
abound within state correctional facilities.65 In particular, allegations of
parole board racism have thrived for decades, with one examination of the
New Jersey state system terming the stereotypical recipient of a parole grant
“white and contrite.”66 To be sure, many jurisdictions have responded to

64. See, e.g., CROMWELL, JR. ET AL., supra note 11, at 200–06 (reviewing methods of
decision-making by parole boards, including an in-depth review of an actuarial method called
the salient factor score); see also AD HOC PAROLE COMM., THE PAROLE DENIAL PROCESS IN NEW
JERSEY 15 (1975) (noting that the New Jersey State Parole Board is “omnipotent, answerable to
nobody, and not required to justify its actions”); Michael R. Gottfredson, Parole Board Decisionmaking: A Study of Disparity Reduction and the Impact of Institutional Behavior, 70 J. CRIM. L. &
CRIMINOLOGY 77, 77 (1979) (“One issue that permeates the sentencing-parole field is concern
for disparity—dissimilar treatment of equally situated offenders. Numerous reform proposals
concentrate on disparity, including suggestions for sentencing councils and appellate review of
sentences as well as legislatively fixed mandatory terms and the abolition of parole.”). Gray
Cavender aptly summarizes the traditional critique of parole as unfair:
The first variety of injustice pertains to disparity in sentences. . . . The
individualization of sanctions means that two offenders, although they committed
the same crime, might serve different terms of imprisonment since their treatment
needs may vary. . . . While the first category of injustice pertains to a comparison of
penalties, the second variety deals with the fairness of a sanction for the individual
offender. Because of discretion and a lack of procedural rights, the offender is
subjected to punishment that is deceptively severe and arbitrary . . . [and] criteria
for parole are vague or nonexistent.
See CAVENDER, supra note 22, at 59.
65. West-Smith et al., supra note 1, at 9; see also OHLIN, supra note 34, at 24–28 (describing,
in a 1951 text, prisoner perceptions of the factors that influence parole decisions, including
current public opinion; the perspective of the trial judge, prosecutor, psychologists, and victim
on the merits of the parole application; the number of other prisoners seeking parole at the
time; and the applicant’s prior criminal record); Mika’il A. Muhammad, Prisoners’ Perspectives on
Strategies for Release, 23 J. OFFENDER REHABILITATION 131, 134 (1996) (reviewing the literature
regarding prisoner perceptions of the parole system and concluding that inmates generally
“perceive parole decisions as ‘capricious,’ ‘whimsical, arbitrary, discriminatory, and unjust’”
(internal citations omitted)); cf. Gottfredson, supra note 64, at 77–82 (noting that, in theory,
parole boards often aim to equalize penalties for similarly situated offenders, though the
author’s empirical study “casts some doubt on the hypothesis that parole board decisions
substantially reduce sentence-length disparity”).
66. AD HOC PAROLE COMM., supra note 64, at 11; see also CAVENDER, supra note 22, at 48
(citing a study finding that “certain institutional behaviors have become conditions precedent
to release via parole. Interestingly, however, these institutional concerns are different for black
and white prisoners. To be paroled, white inmates must avoid institutional infractions, while
black prisoners must avoid institutional violations and also participate in treatment
programs.”); Joti Samra-Grewal et al., Recommendations for Conditional Release Suitability: Cognitive
Biases and Consistency in Case Management Officers’ Decision-making, 42 CAN. J. CRIMINOLOGY 421,
425 (2000) (observing that in Canada “full parole release rates for natives (20%) are
approximately half those of whites (44%)”); Martin Silverstein, What’s Race Got to Do with Justice?
Responsibilization Strategies at Parole Hearings, 45 BRIT. J. CRIMINOLOGY 340, 340 (2005) (studying

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these criticisms by formulating guidelines that list the relevant factors for
consideration in the parole release decision, and periodically these efforts
have aspired to be empirical, assigning weighted values to each factor and
establishing scoring matrices or actuarial tables to calculate eligibility for
release.67 As of the late 1990s, half of the states utilized such official risk
assessment tools to modulate parole board discretion in release
determinations.68 Additionally, the U.S. Supreme Court has held that due
process requires that parole denials must be accompanied by an
explanation, even if a cursory one, specifying the basis of the decision.69
Despite these changes, parole boards still enjoy widespread discretion in
reaching their decisions, a state of affairs that, according to some critics,
the use of racial and ethnic considerations in making risk assessments in the Australian parole
process); cf. Victor H. Elion & Edwin I. Megargee, Racial Identity, Length of Incarceration, and
Parole Decision-making, 16 J. RES. CRIME & DELINQ. 232, 243 (1979) (finding in a study of parole
decisions in a federal correctional facility that “[a]lthough the pattern of factors associated with
decisions to grant parole differed somewhat for blacks and whites, there was no evidence that
race per se was an overriding factor in parole decision-making”). Notably, the courts have
clarified that race—like gender, religion, national origin, and poverty, among other things—is
an impermissible consideration in the parole release decision. See COHEN, supra note 1, § 4:33,
at 4-63 to 4-64.
67. See ABADINSKY, supra note 24, at 240–41; CAVENDER, supra note 22, at 65 (discussing the
development and use of an actuarial table in parole guidelines); CROMWELL, JR. ET AL., supra
note 11, at 200–06 (describing the use of a matrix guideline in parole decisions); Palacios, supra
note 57, at 579 (listing factors relevant to parole decisions); West-Smith et al., supra note 1, at 4.
Parole release guidelines, on the whole, are rarely treated as directives, and many states fail to
issue guidelines whatsoever. See, e.g., Michael M. Pacheco, The Educational Role of the Parole Board,
FED. PROBATION, Dec. 1994, at 38, 38 (commenting that, in light of the Oregon felony
sentencing guidelines, “the Board of Parole has no authority on any issue regarding the prison
term” except for rare cases).
68. Petersilia, supra note 35, at 498; see also COHEN, supra note 1, § 4:34, at 4-67 to 4-68
(discussing the emergence of guidelines and praising the way in which they “encourage the
parole board to depart from the traditional ‘gut reaction’ approach and to adopt decisionmaking models which utilize the results of years of research on predicting parole success”). The
surfacing of guidelines in the sphere of parole release guidelines has also coincided largely with
the growth of risk assessment tools designed to predict individuals’ likelihood of future
violence. See, e.g., Stephen C.P. Wong & Audrey Gordon, The Validity and Reliability of the Violence
Risk Scale, 12 PSYCHOL. PUB. POL’Y & L. 279, 279–81 (2006) (discussing the evolution of violence
risk assessment tools). For a discussion of the evolution of statistical risk assessment models in
the area of parole, see generally Daniel Glaser, Who Gets Probation and Parole: Case Study Versus
Actuarial Decision-making, 31 CRIME & DELINQ. 367 (1985). For a critique of the use of actuarial
and risk assessment models in criminal law, see generally Bernard E. Harcourt, Against
Prediction: Sentencing, Policing, and Punishing in an Actuarial Age (Univ. of Chi. Law Sch. Chi. Pub.
Law & Legal Theory Working Paper Series, Paper No. 94, 2005), available at http://ssrn.
com/abstract=756945.
69. Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1, 15–16 (1979);
see also COHEN, supra note 1, § 4:1, at 4-5 to 4-6 (characterizing Greenholtz as a “setback” that
“implicitly reaffirmed the cardinal principle that there is no inherent or constitutional right to
parole”). At present, many states provide these explanations in writing, and several states go
even further, spelling out the grounds for the decision as well as offering advice to shore up any
deficiencies for the future. Id. § 6:24, at 6-44 to 6-48. Some states are not so forthcoming and
issue only general reasons for the denial. Id. § 6:24, at 6-47 to 6-51.

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allows for the personal cognitive biases of parole commissioners to infect the
process.70 The continuing vitality of parole board discretion, however, is
often justified by the sentiment that board members need some measure of
autonomy so as to appropriately consider the full range of each prisoner’s
individual characteristics.71 That is, concrete standards or “checklists” for
release may be seen as dehumanizing the process and detracting from
commissioners’ ability to take a holistic view of the candidate, thereby
reducing the probability of a fair result.72 Whether parole boards do, in
practice, treat each prospective parolee individually and humanely is subject

70. See, e.g., Samra-Grewal et al., supra note 66, at 424–25 (noting that in Canada “a lack of
clearly articulated decision-making criteria may allow decision-makers’ personal biases to affect
decisions” and mentioning that “unwarranted weight has been placed upon offenders’
attitudes, personalities, institutional behavior, and psychiatric history, with leniency being
demonstrated toward offenders who are female and older” (internal citations omitted)).
71. See, e.g., Cable v. Warden, N.H. State Prison, 666 A.2d 967, 968 (N.H. 1995) (“The
parole board has broad discretion in carrying out its obligation to ‘aid[] in the [prisoner’s]
transition from prison to society . . . [and] to protect the public from criminal acts by
parolees.’” (alteration in original) (quoting Baker v. Cunningham, 513 A.2d 956, 960 (N.H.
1986))); CROMWELL, JR. ET AL., supra note 11, at 199 (“Parole decisions traditionally have been
considered matters of special expertise, involving observation and treatment of offenders and
release under supervision at a time that maximizes both the protection of the public and
offenders’ rehabilitation. This idealistic . . . aim . . . serve[s] as an additional justification for the
broad discretionary powers . . . .”); see also Gene Bonham Jr. et al., Predicting Parole Decisions in
Kansas Via Discriminant Analysis, 14 J. CRIM. JUST. 123, 124 (1986) (observing that parole
authorities are often opposed to statistical methods of decision-making for many reasons,
including beliefs in the uniqueness of each inmate, faith in the superiority of clinical prediction
methodology, distrust of statistical analyses, and/or fears that reliance on such methods might
undermine the authority of parole board members); Robert M. Garber & Christina Maslach,
The Parole Hearing: Decision or Justification?, 1 LAW & HUM. BEHAV. 261, 262–63 (1977) (noting
that parole practice in California assumed “no two prisoners are alike” and had “a stated
concern for the unique and individual qualities of each prisoner being considered for parole”).
72. See, e.g., Pacheco, supra note 67, at 41 (criticizing the Oregon legislature’s
implementation of guidelines for “removing the [parole] Board’s ability to ‘custom-fit’ each
prisoner with a unique prison term and parole period”). Some state parole boards make an
effort to retain a modicum of autonomy over prison terms even in the face of statutory
guidelines. For instance, the Georgia Board of Pardons and Paroles, which has parole
guidelines designed to account for the seriousness of the current offense and the defendant’s
criminal history, also strives to individualize the parole assessment and proclaims that “[j]ustice
demands that punishment should be tailored to fit both the offense and the offender.”
ABADINSKY, supra note 24, at 241. Moreover, one study of decisions of the Pennsylvania Board of
Probation and Parole concluded that “decisions did not appear to be affected by guidelines
recommendations. It may be that guidelines affect only marginal cases, representing a kind of
‘check’ on the assessments of the decision makers rather than an ‘anchor’ that influences their
judgments.” John S. Carroll & Pamela A. Burke, Evaluation and Prediction in Expert Parole
Decisions, 17 CRIM. JUST. & BEHAV. 315, 325 (1990); see also Preece v. House, 886 P.2d 508, 512
(Utah 1994) (upholding a parole release decision even though it was based on an erroneous
computation pursuant to the Utah Sentence and Release Guidelines and greatly extended the
inmate’s sentence and observing that “[i]n our indeterminate sentencing scheme, the board of
pardons acts as a sentencing entity, having exclusive authority to ‘determine the actual number
of years a defendant is to serve.’” (citing Labrum v. Utah State Bd. of Pardons, 870 P.2d 902,
907 (Utah 1993))).

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to much debate.73 A study of the Colorado parole board paints an alarming
picture of a conveyor belt-like operation where most cases are disposed of in
a matter of minutes;74 an analysis of the parole process in Nebraska reached
a similar conclusion, finding that release decisions were largely “automatic,”
based on eligibility criteria with little in the way of individualized
assessment.75 Moreover, state parole boards are often cognizant of the threat
to public safety created by granting inmates conditional freedom—and the
public backlash certain to ensue upon the commission of a heinous crime by
a parolee—and thus may adopt a conservative approach to release
decisions.76
Regardless of whether parole decision-making practice matches theory,
the belief prevails that parole commissioners deserve flexibility to evaluate
each prisoner on an individual level. As part of this fluid vision of parole
assessment, a moderately elastic set of factors has developed for reference in
the decision-making process.77 At the risk of generalizing too much, the
factors usually (but not exclusively) valued by parole boards and/or
included in written guidelines for parole decisions are, in no particular
order:
•
•
•
•

the likelihood of recidivism by the inmate;
public safety;
behavior during incarceration and institutional record;
the nature of the crime and criminal history;

73. Steven Chanenson has recently commented that “[t]he romantic vision of
discretionary parole release involves a wise parole board divining, based in large part on
assessments of an inmate’s rehabilitative progress, when an inmate should be released, and thus
producing a just result.” Chanenson, supra note 47, at 187. Instead, in Chanenson’s estimation,
“[t]he reality can be quite different. Parole release has historically been an unstructured and
wildly discretionary power, subject to the same kinds of irrationalities and abuses that afflict oldstyle, fully discretionary judicial sentencing on the front end.” Id.
74. See West-Smith et al., supra note 1, at 4 (noting a 1980s study that demonstrated the
parole board heard too many cases to allow for individualized judgments); see also Pogrebin et
al., supra note 58, at 153 (studying the Colorado parole system and concluding that “the board
decision to grant parole nearly always coincided with the [correctional facility’s]
recommendation”).
75. See Jon L. Proctor, The ‘New Parole’: An Analysis of Parole Board Decision-making as a
Function of Eligibility, 22 J. CRIME & JUST. 193, 198 (1999) (“An analysis of Nebraska parole rates
suggests that board decisions have become less of an evaluation and prediction process and
more of an automatic process based primarily upon parole eligibility.”).
76. See, e.g., Beth M. Huebner & Timothy S. Bynum, An Analysis of Parole Decision-making
Using a Sample of Sex Offenders: A Focal Concerns Perspective, 44 CRIMINOLOGY 961, 963 (2006)
(“Despite the centrality of the decision point, parole staff generally get feedback on their
judgments only when there is bad news to report; parole officials therefore often adopt
conservative release strategies to minimize risk to the community and the organization.”).
77. The drafters of the Model Penal Code created a rather thorough list of factors that
they deemed pertinent to the parole release decision. See MODEL PENAL CODE § 305.9(2)
(1962).

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•
•
•
•
•

511

post-release employment and housing prospects;
substance and alcohol abuse history;
intelligence and social history;
physical and mental health; and
evidence of rehabilitation.78

The exact weight that parole boards assign to each variable often
correlates with the jurisdiction’s policy objectives and the individual goals of
the commissioners.79 A state primarily concerned with public protection
might, for example, count the prisoner’s criminal history and the severity of
the current offense over other factors.80 Sometimes the prerequisites for
granting parole are quite ethereal, to say the least, straying from the
aforementioned list of variables and requiring simply that the parolee live
without violating the law and that the release is not incompatible with the
public welfare.81

78. See, e.g., CROMWELL, JR. ET AL., supra note 11, at 199; Palacios, supra note 57, at 579; see
also Joel M. Caplan, What Factors Affect Parole: A Review of the Empirical Research, FED. PROBATION,
June 2007, at 16 (commenting that “a detailed review of the empirical literature on parole
release decision-making suggests that despite guidelines, parole release decisions remained
irregularly applied and were primarily a function of institutional behavior, crime severity,
criminal history, incarceration length, mental illness, and victim input”). Professor Neil Cohen
has written:
Perhaps the most basic criteria for release on parole are simply these: the parole
board, acting within its discretion, must determine whether there is a reasonable
probability that a prison inmate, if placed on parole, will be able to live and
conduct himself or herself as a respectable, law-abiding person, and whether
release will be compatible with the offender’s own welfare and the welfare and
safety of society.
COHEN, supra note 1, § 4:30, at 4-49; see also Huebner & Bynum, supra note 76, at 964
(“Individuals serving time for more serious crimes are less likely to be released on parole and
serve a larger proportion of their sentences than less serious offenders.” (citations omitted)).
79. See, e.g., CAVENDER, supra note 22, at 41 (observing that the criteria for parole board
membership “should reflect the orientation of parole, whatever it might be. Stated differently, if
the parole release decision is oriented toward rehabilitation, that focus should be manifested in
the qualifications of parole board members; they should be competent to assess whether parole
applicants are rehabilitated.”).
80. See Palacios, supra note 57, at 579–80; see also ABADINSKY, supra note 24, at 237 (citing a
1995 study of parole decisions in Massachusetts in which Betty Luther concluded “that the
election of a ‘law and order’ governor caused the board (whose membership remained almost
unchanged) to decrease parole release rates, particularly for high-security inmates for whom
they were virtually eliminated”); cf. KASSEBAUM, supra note 48, at 9–13 (discussing the effect of
inmate participation in institutional rehabilitative programs on parole release decisions by the
Hawaii Paroling Authority).
81. See COHEN, supra note 1, § 4:30, at 4-51. Regrettably, as Cohen observed, “[T]hese laws
do not indicate how a parole board is supposed to divine (1) whether an offender will violate
the law if released, (2) what the welfare of society comprises, and (3) when the inmate’s release
is compatible with that welfare.” Id.

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Notwithstanding the precise factors used by parole boards and the
significance ascribed to each one, the live hearing component of the release
process has traditionally played a role in the final decision.82 The live
hearing affords an opportunity for a face-to-face meeting between the
prisoner and the board members, typically outside the presence of defense
counsel.83 This allows examiners to compare the information contained in
the parole file, including psychological reports, with their personal
observations of the applicant.84 Most notably, the parole hearing provides—

82. The parole hearing and/or personal interview of the aspiring parolee have long been
construed as instrumental to the release decision. See, e.g., NAT’L COUNCIL ON CRIME & DELINQ.,
GUIDES FOR PAROLE SELECTION 59–70 (1963) (discussing the importance of the face-to-face
meeting with the prisoner in the parole release decision). Howard Abadinsky provides the
following summary of how state parole release hearings tend to proceed:
Parole board members usually hold release hearings in the state’s prisons. The
members of the board panel will have available a case folder prepared by an
institutional parole officer (or correctional staff person) containing information
about each inmate: the presentence investigation report; institutional reports
relative to education, training, treatment, physical and psychological examinations,
and misconduct; and a release plan in the event that parole is granted. Typically,
from one to three members briefly interview an inmate who is eligible for parole.
ABADINSKY, supra note 24, at 226. Some states impose restrictions on prisoner participation in
the hearing. See COHEN, supra note 1, § 6:18, at 6-28. Indeed, at least one state supreme court
has found that the requirement of the hearing does not mean that the inmate is necessarily
entitled to a personal appearance. See Mahaney v. State, 610 A.2d 738, 743 (Me. 1992). At the
very least, though, it appears that inmates should be entitled in some fashion to present
statements or letters on their behalf. See Greenholtz v. Inmates of the Neb. Penal & Corr.
Complex, 442 U.S. 1, 15–16 (1979); see also Wilkinson v. Dotson, 544 U.S. 74, 78–82 (2005)
(noting that constitutional challenges to state parole procedures may be pursued through §
1983 actions as well as federal habeas corpus petitions). Some observers have suggested that
parole hearings may be mere formalities designed to verify the correctness of a hearing officer’s
preliminary assessment based on a review of the applicant’s file. See Garber & Maslach, supra
note 71, at 276; Proctor, supra note 75, at 196–97; cf. Lavin-Loucks, supra note 18, at 85 (“Parole
hearings are not merely ceremonial events centered on official ‘facts’ or DOC files; Instead,
they involve elaborate exchanges dedicated to establishing whether or not an offender is
deserving of early conditional release.”).
83. See, e.g., UTAH CODE ANN. § 77-27-7(2) (2003) (“Before reaching a final decision . . .
the chair shall cause the offender to appear before the board, its panel, or any appointed
hearing officer, who shall personally interview the offender . . . and verify as far as possible
information furnished from other sources. Any offender may waive a personal appearance
. . . .”). The vast majority of jurisdictions do not expressly allow for legal representation at
parole hearings. See ABADINSKY, supra note 24, at 233. Hawaii is a rare example of a state that
permits—and even facilitates—the receipt of legal advice during this process. Id.; see also
Amanda N. Montague, Note, Recognizing All Critical Stages in Criminal Proceedings: The Violation of
the Sixth Amendment by Utah in Not Allowing Defendants the Right to Counsel at Parole Hearings, 18
BYU J. PUB. L. 249, 249 (2003) (criticizing the absence of a statutory right to counsel at parole
hearings in Utah).
84. See ABADINSKY, supra note 24, at 226 (describing parole board procedures); see also
COHEN, supra note 1, § 6:20, at 6-31 (commenting that formal state rules of evidence do not
tend to apply at parole release hearings with the effect that “parole boards may consider
reliable hearsay” statements).

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in the words of one set of observers—the occasion “to search for such
intuitive signs of rehabilitation as repentance, willingness to accept
responsibility, and self-understanding.”85 In fact, the remainder of this
Article studies the magnitude of this issue in parole release decision-making,
namely, a prisoner’s acceptance of responsibility for the underlying criminal
act, and ponders whether the emphasis on this factor may be detrimental to
justice.
Two caveats should be mentioned before proceeding further. For one,
this Article is chiefly concerned with initial parole release decisions as
opposed to parole revocations, which are post-release determinations
regarding whether individuals have violated the terms of their parole.86 In
addition, considering that the overwhelming majority of parole release
decisions emanate from state parole boards and that recent developments
have rendered federal parole decision-making largely obsolete,87 it is the
process of state parole decision-making upon which this Article focuses its
attention.
II. THE EFFECT OF PAROLE RELEASE DECISION-MAKING
NORMS ON THE INNOCENT
In light of parole’s roots in the rehabilitative ideal of punishment, it
should come as no surprise that words and acts associated with
rehabilitation—acceptance of responsibility, remorse, and repentance—
linger as fixtures in the contemporary parole evaluation process. After all, if
discretionary parole is the upshot for the prisoner “cured” of the propensity
toward criminal transgression, then how else are board members to divine
whether an inmate is healthy if not partially through proof of emotional
maturity in the form of verbal admissions of one’s past mistakes? At the very
core of American rehabilitative theory lies this commingling of acceptance
and renunciation, be it a member of Alcoholics Anonymous who must first
admit “I am an alcoholic”88 or a prisoner seeking a pardon or clemency.89
85. CROMWELL, JR. ET AL., supra note 11, at 200; see AD HOC PAROLE COMM., supra note 64,
at 11 (“The ‘good’ inmate who gets paroled is like the good child who pleads guilty, accepts
punishment, and begs for forgiveness. This apparently proves to the Parole Board that the
criminal has been rehabilitated.”).
86. For background information concerning parole revocations, see generally COHEN,
supra note 1, § 18:1.
87. See, e.g., 18 U.S.C. §§ 4201–18 (2000) (codifying a plan to phase out federal parole
commissions).
88. For a discussion of this organization’s philosophy and approach to alcohol addiction,
see ALCOHOLICS ANONYMOUS: THE STORY OF HOW MANY THOUSANDS OF MEN AND WOMEN HAVE
RECOVERED FROM ALCOHOLISM (3d ed. 1976); see also Stephanos Bibas, Using Plea Procedures to
Combat Denial and Minimization, in JUDGING IN A THERAPEUTIC KEY: THERAPEUTIC JURISPRUDENCE
AND THE COURTS 169, 170 (Bruce J. Winick & David B. Wexler eds., 2003) (“In Alcoholics
Anonymous and other twelve-step programs, one must admit that one has a problem in order
to conquer it. This admission shatters one’s illusions of goodness; the recognition that one has
fallen is a prerequisite for standing up again.”).

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Moreover, inmate participation in the rehabilitative endeavor (ideally in an
active, honest, and palpable manner) has always been a centerpiece of the
American conception of parole; as noted above, the leaders of the Elmira
Reformatory, the first prison to use parole in the United States, declared in
1876 that the inmate’s “cure is always facilitated by his cooperation, and
often impossible without it.”90 It may not be too farfetched to suggest that, in
their modern incarnation, parole boards view sincere admissions of guilt at a
hearing as evidence of that inmate’s cooperation in his own rehabilitation
and, thus, indicia of having been cured. Mea culpa meets medical
restoration, so to speak.
The available quantitative and qualitative data support the assertion that
a prisoner’s acceptance of responsibility proves vital to his prospects for an
affirmative parole decision. Specifically, empirical findings from Great
Britain,91 as well as anecdotal accounts throughout the United States,92
89. Clemency, like parole, is a discretionary power held by the executive branch. Instead
of releasing a prisoner under continued supervision, however, clemency often serves to
“pardon” or excuse the prisoner’s conduct, in effect wiping his criminal slate clean with respect
to that conviction. See, e.g., HOWARD ABADINSKY, DISCRETIONARY JUSTICE: AN INTRODUCTION TO
DISCRETION IN CRIMINAL JUSTICE 147–48 (1984) (“All states and the federal government have
provisions for clemency. . . . The basis for a pardon varies from state to state, and it is not used
extensively anywhere.”). Moreover, clemency determinations are generally not subject to
judicial review. Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 273 (1998) (reaffirming the
principle that “pardon and commutation decisions are rarely, if ever, appropriate subjects for
judicial review”). In recent years, a number of scholars have debated and occasionally criticized
the perceived reduction in the exercise of clemency in the United States. See, e.g., Michael
Heise, Mercy by the Numbers: An Empirical Analysis of Clemency and Its Structure, 89 VA. L. REV. 239,
241 (2003) (noting that “an increase in the number of death sentences has coincided with a
decrease in the number of defendants removed from death row through clemency”); cf. Beau
Breslin & John J.P. Howley, Defending the Politics of Clemency, 81 OR. L. REV. 231, 231 (2002) (“In
the past quarter century more than forty-five prisoners have been removed from death row
because of executive orders . . . . ”).
90. Weiss, supra note 24, at 1585; see also supra note 27 and accompanying text.
91. The Parole Board in the United Kingdom reported that “[t]he figures from 2003 show
that in twenty-four percent of cases where prisoners maintained their innocence, parole was
granted. This compares with fifty-one percent of all applications granted.” Naughton, supra
note 6, at 5.
92. See, e.g., BARRY SCHECK ET AL., ACTUAL INNOCENCE: WHEN JUSTICE GOES WRONG AND
HOW TO MAKE IT RIGHT 309–15 (2003) (discussing the case of Kevin Green, who was wrongfully
convicted in California and denied parole multiple times because he proclaimed his innocence
rather than accepting responsibility for the crime); Stanley Z. Fisher, Convictions of Innocent
Persons in Massachusetts: An Overview, 12 B.U. PUB. INT. L.J. 1, 19 (2002) (noting that a
Massachusetts prisoner, who was later exonerated by DNA testing, “was denied parole because
he proclaimed his innocence and refused to enter treatment for sexual deviance” (internal
quotations and citation omitted)); Friedman, supra note 7, at 186 (noting that in Michigan “the
Parole Board often denies parole because the prisoner denies guilt of the offense”); Smith,
supra note 18, at 512–13 n.111 (describing the case of Benjamin LaGuer, a Massachusetts
inmate who maintained his innocence for years and was denied parole, in part, due to his
failure to “admit” guilt to the parole board); Kimberly, supra note 6, at A5 (discussing how the
Texas Board of Pardons and Paroles does not consider the validity of inmate claims of
innocence); Nina Martin, Innocence Lost, S.F. MAG., Nov. 2004, at 98–100, available at

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confirm (1) that parole boards attach great importance to inmate statements
taking responsibility for the crime underlying their current conviction and
(2) that the refusal to admit guilt decreases the likelihood of receiving
parole.93 Parole officials seldom deny that inmate acceptance of
responsibility is a critical variable in the release decision and, instead, are
often overt in showing their dependence on this factor.94 For instance, the
preprinted “Rationale Sheet” that the Utah Board of Pardons and Parole
uses in explaining its decision after each parole hearing expressly designates
complete acceptance of responsibility as a mitigating factor and denial or
minimization as an aggravating one.95
http://www.sanfranmag.com/files/pdfs/exonerated.pdf (citing the saga of one former
prisoner who was allegedly told by a California parole commissioner that “[i]f you don’t admit
that you did this crime, you’ll never get out”); Greg Mathis, DNA Must Be Used to Resolve Older
Cases, CHI. DEFENDER, July 21, 2006, at 12 (describing the case of Alan Newton, a man who was
denied parole in Illinois in part due to his assertions of innocence and who was eventually
exonerated through DNA testing); Bill Moushey, DNA Test Clears Man After 20 Years in Jail, PITT.
POST–GAZETTE, July 30, 2005, at A1 (noting that Thomas Doswell, who remained a Pennsylvania
inmate after DNA testing proved his innocence, was “denied parole four times over the past
eight years because he refused to take responsibility for the crime”); Sue Anne Pressley, Asking
for Freedom, Not Forgiveness: Ex-GI Tries for Parole in Notorious 1970 Case, CHI. TRIB., May 10, 2005,
at 2 (quoting a U.S. Parole Commission spokesman who noted that the majority of prisoners
seeking release express sorrow for their crimes and that “[i]t gets dicey when a person expresses
innocence—you can’t accept responsibility for it when it’s something you say you never did”).
Notably, with respect to the Benjamin LaGuer case, DNA tests later confirmed LaGuer’s
connection to the crime scene. See Andrea Estes, Patrick Apologizes for Disclosure Missteps, BOS.
GLOBE, Oct. 6, 2006, at A1 (discussing Massachusetts gubernatorial candidate Deval Patrick’s
role in the effort to free LaGuer and the political fallout stemming from the DNA test results
linking LaGuer to the rape for which he was convicted); cf. Natalia Munoz, Hands of Time Frozen
for an ‘Innocent’ Man, REPUBLICAN (Springfield, Mass.), July 2, 2006, at 19 (“[LaGuer’s] DNA was
connected to the crime, but LaGuer points to that as further evidence of evidence
tampering.”).
93. See supra notes 91–92 and accompanying text.
94. Danielle Lavin-Loucks has written a doctoral dissertation on the manner in which
inmates in a particular Midwestern state “build” a case for release before the parole board and
reached some interesting conclusions regarding the premium that parole commissioners place
on admissions of guilt. See, e.g., Lavin-Loucks, supra note 18, at 89–90 (citing interviews with
parole board members that indicate that they rely on evidence of rehabilitation, including
acknowledgment of responsibility, in the release decision); id. at 110 (“Finally, accepting
responsibility for a crime or admitting fault can also contribute to a case for rehabilitation.”); id.
at 131–38 (discussing how the parole board in this study treated inmate complaints about
innocence and wrongful conviction as negative factors in the parole release decision).
95. See Utah Board of Pardons and Parole Rationale Sheet (on file with the Iowa Law
Review) [hereinafter Rationale Sheet]. As indicated previously, the United States Supreme
Court has insisted that parole boards bear some obligation to disclose the underlying rationales
for their release decisions. See supra notes 4, 69 and accompanying text. Utah’s Administrative
Code requires the disclosure of these forms to inmates after parole release decisions. UTAH
ADMIN. CODE r. 671-305-1 (2006). This rule has been held to satisfy the demands of due process.
See, e.g., Monson v. Carver, 928 P.2d 1017, 1031 (Utah 1996) (“While perhaps not a perfect
explanation . . . , this document nonetheless satisfies the Board’s own requirement that it
provide a written explanation . . . for its decision. Because Monson has failed to identify . . . the
type of detail he claims he should have received . . . we conclude that he was not denied due

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Having observed that inmate statements on the topic of guilt or
innocence are important factors in the parole release decision-making
process, it is now time to consider how this circumstance might affect an
individual prisoner. Generally speaking, an incentive exists for all prisoners
facing parole boards to admit guilt and apologize for the crime in order to
maximize their chances for release, irrespective of their true feelings and
culpability. To gain release from prison—the pentitent-iary96—inmates must
essentially display evidence of their repentance.97 Some inmates who accept
responsibility and express remorse for the crime at parole hearings are
surely both factually guilty and genuinely apologetic; others are factually
guilty yet truly unrepentant; and still others may be factually innocent and
motivated solely by the desire for liberty in choosing to “admit” guilt. It is
this last group that troubles me deeply.
My concern about the pressures confronting actually innocent prisoners
when appearing before parole boards originated during my tenure from
2001 to 2004 as assistant director of the Second Look Program at Brooklyn
Law School. During that period, students and faculty in the Second Look
Program worked together to investigate and litigate post-conviction claims of
innocence by New York state prisoners.98 As my students and I struggled,
usually to no avail, to help free prisoners whom we thought to be innocent
based on extensive preliminary investigations,99 it became evident that

process.”). In addition, Utah maintains verbatim records of parole hearings. UTAH CODE ANN. §
77-27-8(1) (2005) (“A verbatim record of proceedings before the Board of Pardons and Parole
shall be maintained by a certified shorthand reporter or suitable electronic recording device,
except when the board dispenses with a record in a particular hearing or a portion of the
proceedings.”). In certain circumstances, states may even be quite explicit regarding their
expectation that admitting guilt is a requirement for release. See, e.g., KY. REV. STAT. ANN. §
197.400 n.3 (West 2006) (citing Seymour v. Colebank, 179 S.W.3d 886, 890 (Ky. App. 2005), in
which the court held that requiring parolee to admit guilt before admission to a treatment
program did not violate the statute). Lavin-Loucks has noted:
Board members’ responses to . . . denial strategies vary greatly depending on how
the claim is structured . . . . When offenders blame their victims, board members
react with forceful disagreement. Denying all responsibility . . . is likewise an
undesirable . . . strategy because it presumes innocence in the face of evidence to
the contrary—the offender’s previous conviction . . . .
Lavin-Loucks, supra note 18, at 158–59.
96. See SOLOMON SCHIMMEL, WOUNDS NOT HEALED BY TIME: THE POWER OF REPENTANCE
AND FORGIVENESS 182 (2002) (“Criminals are sent to penitent-iaries, suggesting that they are
expected to become penitent and repent for their crimes during their stay in prison.”).
97. Id.
98. For a description of the formation of the Second Look Program and the features of its
operation, see Daniel S. Medwed, Actual Innocents: Considerations in Selecting Cases for a New
Innocence Project, 81 NEB. L. REV. 1097, 1103–04 (2003).
99. Id. at 1103–04, 1116–23 (describing the case selection process).

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parole might be the only viable alternative to incarceration in many
situations, save for completing a sentence.100
Procedural obstacles embedded in most state post-conviction
procedures—obstacles relating to statutes of limitations, burdens of proof,
and appellate review, among other things—hinder the ability of wrongfully
convicted prisoners to prove their innocence through litigation in each and
every case, especially in those cases lacking biological evidence suitable for
DNA testing.101 Frequent instances of prosecutorial opposition to inmates’
claims of innocence,102 coupled with the decline of federal habeas corpus as
an effective collateral remedy,103 further reduce the likelihood of
exonerating innocent prisoners by means of the court system. Accordingly,
one can safely conclude that factually innocent prisoners in the United
States, however many there may be,104 do not always find recourse in the
post-conviction arena. For such inmates, addressing the parole board
assumes enormous significance as the most realistic opportunity for freedom
and gives rise to the following predicament: what should the inmate say
about guilt or innocence at the parole hearing?
The manner in which innocent prisoners respond to questions about
guilt or innocence at parole release hearings can directly and adversely
affect their plight, as the following two qualitative case studies demonstrate.
The first study exemplifies not only how parole may occasionally serve as an
innocent inmate’s best chance for relief but also how prisoners in that
situation must handle the issue of guilt or innocence with a great deal of
finesse. The second study exhibits the pressure imposed on innocent
prisoners to admit guilt before parole boards and discusses the ancillary
consequences for defendants unable to stave off the temptation to do so.

100. Professor Mark Godsey, Director of the Ohio Innocence Project, has also suggested on
his CrimProf Blog that sometimes parole represents the best possibility for release in his
jurisdiction:
I represent a group of inmates at the current time for whom we have developed a
reasonable amount of evidence of innocence, and whom I personally believe are
innocent. However, given that judges often expect DNA-type ironclad proof of
innocence for exonerations, our evidence in some of these cases is arguably
insufficient to clear them in court under the exceedingly high standards for
exoneration in my state (some of my parole clients could meet the standard, but
have chosen to seek release on parole first and then fight to clear their names in
court later). Thus, our first step is to obtain parole for these inmates if they are
eligible.
Posting to CrimProf Blog, The Problem of Actual Innocence and Parole Boards, http://
lawprofessors.typepad.com/crimprof_blog/2005/01/actual_innocenc.html (Jan. 25, 2005).
101. See generally Medwed, supra note 14.
102. See generally Medwed, supra note 56.
103. See supra note 16 and accompanying text.
104. See supra notes 12–13 and accompanying text.

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A. PAROLE: AN INNOCENCE OPTION OF LAST RESORT
Robert Fennell, one of the Second Look Program’s first clients,105 was
convicted of second-degree murder, together with his co-defendant Joseph
Perry, after a jury trial in New York state court.106 The murder conviction
stemmed from the fatal shooting of John Williams on February 1, 1984,
outside a Manhattan building well-known as a center of cocaine freebasing
activity (a “base house”) and a site where Perry and Fennell both worked to
provide security to the drug operation.107 The prosecution’s case against
Fennell and Perry hinged entirely on the testimony of a single purported
eyewitness, John McKoy, “a former employee of the base house” and a selfconfessed cocaine addict with a lengthy criminal record.108 No doubt aware
of the frailties of its case, the prosecution dangled a generous plea offer
before Fennell.109 Fennell rejected the offer and insisted on his right to
proceed to trial.110
At trial, McKoy testified that after a dispute in the base house that night,
Perry and Fennell escorted Williams from the building.111 In doing so, Perry
and Fennell allegedly resorted to punching Williams and dragging him
outside.112 From his location on the stoop of the base house, McKoy
supposedly observed Fennell withdraw a pistol and fire twice at Williams.113
This prompted Williams to flee, at which point Perry grabbed the weapon
from Fennell, gave chase, and fired four shots at Williams.114 After Perry’s
first two shots, according to McKoy, Williams fell to the ground.115
The threads holding McKoy’s story together began to unravel on crossexamination. Contrary to his initial assertions, McKoy ultimately admitted
that he was receiving leniency on a pending cocaine possession charge in
exchange for cooperating in the Fennell–Perry matter.116 More notably,
defense counsel discredited McKoy by juxtaposing his statements at trial
against those from his original police interview. Unable to reconcile the two
accounts, McKoy claimed to have lied regarding certain, seemingly salient
details that he had provided earlier to the police—“that he saw Perry pistolwhipping Williams,” that “Fennell had fired three shots and Perry one,” and

105. See Medwed, supra note 98, at 1138 (briefly describing the Fennell case).
106. See generally Letter from the Second Look Program Clinic to the N.Y. State Parole Bd.
(Nov. 27, 2001) [hereinafter Letter to Parole Board] (on file with the Iowa Law Review).
107. Id. at 1–2.
108. Id. at 4.
109. Id. at 2.
110. Id.
111. Letter to Parole Board, supra note 106, at 3–4.
112. Id. at 4.
113. Id.
114. Id.
115. Id.
116. Letter to Parole Board, supra note 106, at 4.

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that he was standing beside a liquor store at the time of the incident.117 Still,
the jury apparently believed McKoy’s depiction of the incident and found
both Fennell and Perry guilty.118
A startling turn of events then transpired. Following the verdict but
prior to sentencing, Perry and his attorney, William Mogulescu, met with
Fennell’s lawyer, Howard Jaffe.119 During this meeting, Perry admitted that
he had acted alone in murdering Williams, and even expressed a willingness
to execute an affidavit to that effect.120 Mogulescu informed Perry that he
had absolutely no obligation to agree to this; he could still invoke his
privilege against self-incrimination given that he had yet to be sentenced.121
The ramifications of any admission of guilt on the part of Perry, Mogulescu
explained, could be disastrous for his sentence, his appeal, and any potential
retrial in the event of appellate reversal of his conviction.122 Although aware
that he was “sinking himself,” Perry completed the affidavit because he knew
that Fennell was innocent.123 In March 1985, Perry executed the affidavit,
which, in turn, became the crux of a post-conviction motion to set aside the
verdict against Fennell.124 After Perry completed the affidavit and Fennell’s
attorney submitted the motion, the court sentenced Perry to the maximum
term: twenty-five years to life imprisonment.125
The court held an evidentiary hearing on Fennell’s motion in May
1985.126 At the hearing, Perry reiterated the statements he had made in his
affidavit: that he had shot Williams and that he had operated alone.127 As for
Fennell, Perry declared at the hearing that Fennell was not on the premises
at the time of the shooting.128 Security routines at the base house dictated
that guards work regular, eight-hour shifts, with Fennell scheduled for the
midnight-to-eight A.M. stretch.129 Not only was Fennell nowhere to be found
at the time of the Williams murder, Perry testified, but neither was McKoy.130

117. Id. at 5.
118. Id.
119. Id.
120. Id. at 5–6.
121. Letter to Parole Board, supra note 106, at 7.
122. Id.
123. Id.
124. Id. at 5–8.
125. Id. at 5.
126. Letter to Parole Board, supra note 106, at 5.
127. Id. at 5–6.
128. Id. at 6.
129. Id.
130. What Perry’s testimony did not adequately explain was why he had failed to come
forward during the trial to clear Fennell’s name. Mogulescu, Perry’s attorney, supplied this
essential piece of the puzzle. After his client testified at the evidentiary hearing, Mogulescu took
the rare step of testifying himself and described the circumstances that led to Perry’s decision to
remain silent at trial. Id. On the stand, Mogulescu asserted that Howard Jaffe, Fennell’s lawyer,

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In addition to Perry, another eyewitness appeared on Fennell’s behalf at the
post-verdict evidentiary hearing, a man named Charles Gaillard, who lived in
the vicinity of the base house.131 Gaillard testified that he had observed Perry
shoot Williams and that Fennell was not at the scene.132 The prosecution’s
case at the hearing consisted of a single witness, Henry Martin, “another
member of the base house security” squad, who did little to bolster the
prosecution’s case and, actually, largely corroborated Fennell’s evidence. 133
In particular, Martin claimed to have not seen Fennell during the night in
question and recalled that Fennell was slated for the midnight-to-eight A.M.
security stint, which started approximately an hour and a half after, by all
accounts, Williams had died.134
Despite the compelling evidence of innocence, the trial judge denied
Fennell’s motion to set aside the verdict in June 1985—without issuing an
opinion, making any findings of fact, or commenting on the credibility of
the witnesses—and sentenced Fennell to fifteen years to life in prison.135 The
judge’s explanation for rejecting the motion included a few cryptic
statements that the jury verdict was “‘a correct one’” and that Fennell had
erred at trial in not calling “‘other witnesses available to [him].’”136 For
fifteen years, that decision, in essence, represented the final word on the
conviction of Robert Fennell, who had always maintained his innocence and
insisted that he was with his girlfriend, Anita Gilmore, at the time of the
murder.137
Fennell’s trial attorney, though, was not convinced that justice had been
served, and many years later Jaffe sought out the assistance of William
Hellerstein, a law professor who worked with me in forming and supervising
the Second Look Program.138 Together with our students, we began a
thorough re-investigation of the case in 2001, which included interviews of
Fennell, Gilmore, Jaffe, and Mogulescu. Our efforts to locate McKoy,
approached him prior to trial and told him that Fennell was not at the base house the night of
Williams’s death, let alone a participant in the murder. Id. Mogulescu then consulted Perry,
who verified Jaffe’s account and offered to testify on Fennell’s behalf at trial. Id. Wary of
jeopardizing his client’s case, Mogulescu advised Perry that testifying would doom his own
interests if they were tried jointly. Id. To that end, Perry executed an affidavit—prior to trial—
indicating his intention to testify in Fennell’s defense if their trials were severed. Id. The court,
however, denied the severance motion and consequently Perry never testified during the joint
trial. Id.
131. Letter to Parole Board, supra note 106, at 5–6.
132. Id.
133. Martin, for one thing, echoed Perry’s claim that he and Perry were guarding the door
of the base house on the evening of February 1, 1984. Id. at 7–8.
134. Id. at 8.
135. Id.
136. Letter to Parole Board, supra note 106, at 8.
137. Id. See also Affidavit of Anita Gilmore, dated Feb. 24, 2004 (document on file with the
Iowa Law Review).
138. Letter to Parole Board, supra note 106, at 2.

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Gaillard, or any of the other alleged witnesses to the crime were fruitless,
perhaps understandably so considering it had been seventeen years since the
murder. That being said, our investigation confirmed the chief thrust of the
1985 evidentiary hearing: that Fennell was almost surely innocent. Yet we
became increasingly despondent even as Fennell passed a polygraph test and
Gilmore buttressed his alibi.139 We knew that we needed a legal “hook”—
newly discovered evidence that would exculpate Fennell and that could not
have been discovered with due diligence at the time of the evidentiary
hearing.140 No such hook existed. The polygraph was of limited value in a
courtroom;141 Perry had already testified; Jaffe’s role as Fennell’s attorney
compromised any potential testimony offered by him; and Gilmore’s
statements did not constitute new evidence because she was available at the
time of trial and failed to testify by virtue of a strategic decision by Jaffe.142
Without any promising post-conviction option in the state or federal
courts, we set our sights on parole, the only other avenue on the horizon. An
inmate subject to an indeterminate sentence in New York first faces the
parole board upon the expiration of his minimum term and thereafter at
two-year intervals.143 The New York State Division of Parole had already
denied Fennell’s initial application for parole and was due to revisit his
application in late 2001,144 coincidentally, just as our investigation was
grinding to a halt. Fennell had persisted in his claim of innocence and was

139. Id.
140. N.Y. CRIM. PROC. LAW § 440.10 (McKinney 2004).
141. See, e.g., People v. Angelo, 666 N.E.2d 1333, 1335 (N.Y. 1996) (noting that polygraph
results are not generally accepted by the pertinent scientific community and thus are
inadmissible in New York state courts).
142. It is rather common in criminal defense practice for lawyers to choose not to put a
defendant’s alibi witness on the stand when that witness is a lover, close friend, or relative for
fear that the jury will discredit the testimony on the grounds that such a witness may risk perjury
for the sake of the defendant’s liberty. Accordingly, courts typically consider a defense lawyer’s
decision whether to have an alibi witness testify a matter of trial tactics and reject claims that
choices in this regard may constitute ineffective assistance of counsel. See, e.g., Brown v. Miller,
185 F. App’x 25, 27 (2d Cir. 2006), cert. denied, 127 S. Ct. 938 (2007) (noting that it is a strategic
choice for defense counsel to opt against putting an alibi witness on the stand if counsel doubts
the witness’s credibility); United States v. Long, 674 F.2d 848, 855 (11th Cir. 1982) (rejecting
ineffective assistance of counsel claims and refusing to “second-guess tactical decisions of
counsel in deciding whether to call certain witnesses”).
143. See ROBERT DENNISON ET AL., NEW YORK STATE PAROLE HANDBOOK: QUESTIONS AND
ANSWERS CONCERNING PAROLE RELEASE AND SUPERVISION 14 (2005), available at http://
parole.state.ny.us/Handbook.pdf (“If you are denied release at your Parole Board interview, the
Board must give you reasons for your denial. The Board will also set a date for your
reappearance. That date cannot exceed 24 months from the time of appearance.”).
144. The New York State Division of Parole became notoriously stricter in its parole release
decisions throughout the 1990s. Data indicates that the parole board granted parole to 60% of
defendants with homicide convictions who applied in 1987, but only granted parole to 25% in
1994 and 4% in 1995. See Hammock & Seelandt, supra note 44, at 527 n.5. For a general
discussion of parole release decision-making in New York State, see id. at 530–42.

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not inclined to waver in that assertion when facing the parole board, even
though he—like practically all New York state inmates—knew that a failure
to “admit” guilt at his hearing would probably ring the death knell to his
chances for parole.145
Hellerstein and I thus faced a conundrum of our own. We were diehard
litigators who could not litigate, and with no right to counsel at New York
state parole hearings,146 we lacked the capacity to assist Fennell at the
hearing itself. Sensing that we had nothing to lose, we decided to submit a
letter to the parole board on Fennell’s behalf, which is permissible pursuant
to state regulations.147 Our letter detailed, in sum and substance, the
background to his case and requested that the parole board not hold
Fennell’s continued assertions of innocence against him.148 Specifically, we
wrote that
[i]f Mr. Fennell’s failure to accept responsibility for the crime for
which he has been convicted could serve as a negative factor in his
parole application, we would urge the Board to accept it as the only
position that a person who has always maintained his innocence,
and who the facts strongly suggest is innocent, can logically and in
good conscience take.149
Much to our delight, the board granted Fennell parole. In the months
after the parole grant, I was able to negotiate with employees of the New
York and Florida corrections departments to allow Fennell to move to his
home state of Florida for parole supervision. Although the specter of parole
perpetually looms over Fennell—and even now, years later and miles away in
Salt Lake City, I sit in dread of a phone call from him telling me he has
violated his parole and has been dispatched up north to serve out the
remainder of his life sentence—the situation is clearly superior to continued
confinement in a New York state correctional facility. Indeed, I am
convinced that without the intervention and commitment of resources by
the Second Look Program, Fennell would be languishing in prison to this
145. The infamous “Central Park Jogger” case from New York City is an example of how the
New York State Division of Parole’s reliance on remorse and responsibility can harm innocent
prisoners. That case resulted in the wrongful convictions of five teenagers, all of whom were
exonerated when another man, Matias Reyes, confessed to the crime, and his DNA matched
that of the biological sample taken from the crime scene. See generally N. Jeremi Duru, The
Central Park Five, The Scottsboro Boys, and the Myth of the Bestial Black Man, 25 CARDOZO L. REV.
1315 (2004). All five of those wrongfully convicted inmates had been denied parole prior to
their exonerations partly due to their lack of contrition. Id. at 1319.
146. See DENNISON ET AL., supra note 143, at 8 (stating that counsel may not be present at
parole release interviews before the parole board).
147. See New York State Division of Parole, http://parole.state.ny.us/Letters.asp (last visited
Aug. 26, 2007) (directing letters of support for or against an inmate’s release to the NYS
Division of Parole address).
148. See generally Letter to Parole Board, supra note 106.
149. Id. at 10.

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day. His steadfast plea of innocence, a claim validated through an extensive
investigation by a team of pro bono students and law professors, would have
likely and ironically served to prolong his imprisonment.
Robert Fennell never yielded to the pressure to “admit” guilt and
accordingly there is no evidence on the record that he has confessed to the
crime. Therefore, in the rather unlikely event that newly discovered
evidence surfaces over time in Fennell’s case, it is conceivable that he could
prove his innocence through the New York state court system. Not all
innocent prisoners, however, are able to resist the urge to accept
responsibility before parole boards.
B. PRESSURE ON INNOCENT INMATES TO “ADMIT” GUILT
Bruce Dallas Goodman was convicted after a bench trial of murdering
Sherry Ann Fales Williams, a 21-year-old woman whose body was discovered
the morning of November 30, 1984, near an Interstate-15 off-ramp north of
Beaver, Utah.150 Bound at the knees and wrists and unclothed below the
waist, Williams had multiple contusions and lacerations across her body.151
An autopsy cited her cause of death as head trauma and attributed the
presence of wounds on her hands to efforts to thwart her assailant.152 The
only physical evidence retrieved from the crime scene that gave any clue as
to the identity of the perpetrator came in the form of a partially smoked
cigarette, which was found in the snow close to the body and later
determined to have been smoked by a type “A” secretor.153 Furthermore,
based on the autopsy report, she had engaged in sexual intercourse with a
type “A” secretor within the previous twenty-four to thirty-six hours.154 A type
“A” secretor is someone with type “A” blood who secretes “A” antigens into
body fluids; according to testimony at Goodman’s trial, thirty-two percent of
the general population falls into this broad category.155 At the time of this
murder, more accurate methods of testing biological evidence, such as DNA
testing, had not yet been refined and were only beginning to make tentative
inroads into criminal cases.156
Goodman, an “A” secretor, soon surfaced as the prime suspect. He had
met Williams in October 1984, and they started an intimate relationship.157
On November 19, 1984, they departed Las Vegas in a pickup truck, and their

150. See State v. Goodman, 763 P.2d 786, 786 (Utah 1988).
151. Id. (“[She] was unclothed below the waist, with the exception of a pair of socks.”).
152. Id.
153. Id.
154. Id.
155. Goodman, 763 P.2d at 786.
156. See Rob Warden, The Revolutionary Role of Journalism in Identifying and Rectifying Wrongful
Convictions, 70 UMKC L. REV. 803, 829 (2002) (“Gary Dotson made history on August 14, 1989,
when he became the first American to be exonerated of a criminal offense by DNA.”).
157. Goodman, 763 P.2d at 787.

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exact whereabouts during the next eleven days were unclear.158 At trial,
Goodman claimed that on November 30 he was in California, having parted
ways with Williams, who had expressed “an intention to return to her
estranged husband.”159 Two defense witnesses corroborated Goodman’s alibi
that he was in California at the time of Williams’s death.160 The prosecution,
though, put forth evidence from several eyewitnesses suggesting that
Goodman had continued to accompany Williams on the 30th.161 Most
pertinently, a witness who worked at a casino in Mesquite, Nevada, placed a
couple matching the description of Goodman and Williams at that location
between 2:00 A.M. and 4:00 A.M. on November 30 and testified that the two
appeared to be in the midst of an argument.162 Mesquite, not incidentally, is
situated off Interstate-15 between Las Vegas and the Utah border.163
In 1986, a Utah state trial judge found Goodman guilty of murder in
the second degree and sentenced him to a term of five years to life
imprisonment.164 On appeal, the Utah Supreme Court acknowledged that
“[w]ithout question this was a close case” but ultimately affirmed Goodman’s
second-degree murder conviction by a three-to-two margin.165 Justice Stewart
wrote a spirited dissent in which he emphasized that, even assuming the
credibility of the prosecution’s case, the complete paucity of evidence
connecting Goodman to Williams between the early morning sighting at a
bustling Mesquite casino and the discovery of Williams’s corpse roughly five
hours later in rural Utah put the validity of the conviction into question.166
In Justice Stewart’s estimation, “[t]he evidence in this case falls far short of
proving that the defendant committed the crime charged.”167
Goodman had always maintained his innocence and continued to do so
in the aftermath of his conviction. Still, more than a decade later, when
appearing before the Utah State Board of Pardons and Parole in 2000,
Goodman “admitted” his culpability for the murder in order to curry favor
with parole officials.168 His comments nevertheless failed to produce his

158. Id.
159. Id. at 787–88. Williams’s desire to end their affair, Goodman admitted on the stand,
had angered him and led to some disputes, but “he insisted that they had parted ways well
before the 30th.” Id. at 788.
160. See DNA Tests Set Man Free After Nineteen Years, L.A. TIMES, Nov. 10, 2004, at 12
[hereinafter DNA Tests Set Man Free].
161. Goodman, 763 P.2d at 787–88.
162. Id. at 788.
163. Id.
164. Id. at 787–88; see also DNA Tests Set Man Free, supra note 160, at 12.
165. Goodman, 763 P.2d at 788.
166. Id. at 789–90.
167. Id. at 790.
168. See DNA Tests Set Man Free, supra note 160, at 12 (“After insisting for years that he was
innocent, Goodman accepted responsibility for the crime at a parole hearing in 2000, but said
he did not remember it. His attorney, Josh Bowland, said Goodman was just trying to win favor

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long-sought outcome—the Board denied him parole.169 Goodman’s wish for
freedom finally was realized four years later, albeit not through the parole
process. Instead, he earned his liberty after he enlisted the help of the Rocky
Mountain Innocence Center (“RMIC”), a nonprofit organization that
investigates and litigates post-conviction claims of innocence by inmates in
the Intermountain West.170 RMIC filed a petition seeking to subject the
remaining biological evidence from the Williams murder to Y-STR DNA
testing, technology far more advanced than that applied prior to Goodman’s
trial and capable of determining the source of the evidence with
tremendous specificity.171 After RMIC procured the evidence from the Utah
State Crime Laboratory and submitted it for testing, the results proved that
none of the existing samples retrieved from the crime scene belonged to
Goodman.172 Rather, the DNA evidence showed that two other, unidentified
people had left these samples.173
Jensie Anderson and Josh Bowland, RMIC’s president and staff
attorney, respectively, then began the delicate and complicated process of
figuring out exactly how to use this new discovery to prove Goodman’s
innocence. One option consisted of filing a motion under Utah’s PostConviction Testing of DNA Statute, enacted in 2001, and asking the court to
vacate Goodman’s conviction based on the DNA results.174 Under this
remedy, a judge may dismiss the charges with prejudice if the defendant
proves his actual innocence by clear and convincing evidence.175 In the

with the parole board.”); see also Ashley Broughton, State: DNA Should Free Inmate, SALT LAKE
TRIB., Oct. 15, 2004, at D1 (“At a 2000 hearing before the state Board of Pardons and Parole,
Goodman said he accepted responsibility for the slaying but said he did not remember it
because he was using barbiturates and alcohol heavily at the time, prosecutors said.”). It is
unclear whether Goodman actually accepted responsibility for the crime at the parole hearing
or, rather, simply stopped denying his involvement for the first time. In any event, it seems clear
that the prosecution interpreted his comments as constituting an admission of some sort.
169. DNA Tests Set Man Free, supra note 160, at 12.
170. See
Innocence
Project,
Other
Innocence
Organizations,
http://www.
innocenceproject.org/Content/313.php (last visited Jan. 8, 2008) (providing a list of innocence
projects by jurisdiction and mentioning the states in which the organization handles cases:
Nevada, Utah, and Wyoming).
171. Angie Welling & Jennifer Dobner, DNA-Test Technology Improving, DESERET MORNING
NEWS (Salt Lake City, Utah), Jan. 30, 2005 (“[RMIC] filed a petition on his behalf asking that
newly discovered evidence . . . be retested with recent technology. The 20-year-old evidence was
examined through a process called Y-STR DNA testing, which ignores the existence of female
DNA in samples and focuses only on the Y chromosomes present.”).
172. Id. (mentioning that tests were conducted on bodily fluids found in the snow near
Williams’s corpse and the vaginal washing from the rape kit and noting that the Utah State
Crime Lab was unable to locate the cigarette butt).
173. Id.
174. UTAH CODE ANN. § 78-35a-303(1)(a) (2002); see also Ted S. Reed, Note, Freeing the
Innocent: A Proposed Forensic Evidence Retention Statute to Optimize Utah’s Post-Conviction DNA Testing
Act for Claims of Actual Innocence, 2004 UTAH L. REV. 877, 884.
175. See UTAH CODE ANN. § 78-35a-303(2)(b), which states:

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alternative, RMIC considered pursuing matters through the state habeas
corpus remedy, which permits courts to set aside convictions when
presented with evidence of previously unknown constitutional violations or
newly discovered evidence that undermines confidence in the propriety of
the verdict, yet allows for the possibility of a subsequent retrial.176 I had
recently joined RMIC’s Board of Directors and became involved in the
strategy discussions. As we debated which path to follow, we decided to
contact the relevant prosecutors and take their temperature on the case,
knowing full well that the likelihood of overturning a wrongful conviction
rises considerably with prosecutorial consent to the defense motion or at
least refusal to oppose it.177
The prosecution’s position all along had been that Goodman had slain
Williams by himself, and these new findings obviously demolished that
theory of the case. Even so, although troubled by the new evidence, the
prosecutors involved with the litigation did not immediately jump to the
conclusion that Goodman was innocent.178 In contrast, a novel prosecution
theory emerged to justify the status quo: that Goodman was one of several
perpetrators who took part in the Williams murder that morning and that
the absence of his biological evidence from the crime scene did not
conclusively prove his innocence.179

If the court, after considering all the evidence, determines that the DNA test result
demonstrates by clear and convincing evidence that the person is actually innocent
of one or more offenses of which the person was convicted and all lesser included
offenses relating to those offenses, the court shall order that those convictions be
vacated with prejudice and those convictions be expunged from the person’s
record.
Id.
176. See UTAH CODE ANN. §§ 78-35a-101–304 (“Post-Conviction Remedies Act”). The Utah
Rules of Civil Procedure provide:
If the court vacates the original conviction or sentence [pursuant to the state PostConviction Remedies Act], it shall enter findings of fact and conclusions of law and
an appropriate order. If the petitioner is serving a sentence for a felony conviction,
the order shall be stayed for 5 days. Within the stay period, the respondent shall
give written notice to the court and the petitioner that the respondent will pursue
a new trial, pursue a new sentence, appeal the order, or take no action.
UTAH R. CIV. P. 65C(m)(1).
177. See Medwed, supra note 56, at 128 (“[T]he prosecution can influence how courts will
resolve [post-conviction innocence] claims by deciding whether to cooperate with the defense,
for instance, by joining—or at least not contesting—a defendant’s request for an evidentiary
hearing based on the newly discovered evidence.”).
178. Prosecutors at both the local and state level were involved in the Goodman matter
because, under Utah law, the Utah State Attorney General’s Office handles all post-conviction
litigation, whereas the district attorney in the local county of original conviction typically
prosecutes any retrial resulting from a post-conviction reversal.
179. See, e.g., Broughton, supra note 168 (quoting Utah Assistant Attorney General Erin
Riley as suggesting that “[t]he new DNA evidence is not conclusive, but it is troubling. It does

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This is where Goodman’s statements to the Utah Board of Pardons and
Parole came back to haunt him. Utah allows for and even encourages
reciprocal exchanges of information between parole boards and
prosecutors. Just as evidence of frivolous post-conviction filings may become
part of a prisoner’s record for purposes of the parole assessment,180 so might
damning statements and other unsavory facts from parole hearings find
their way into the prosecutorial response to an inmate’s subsequent request
for post-conviction relief.181 As a matter of fact, in discussing the case with
the RMIC team in the weeks following the disclosure of the DNA test,
lawyers from the Utah State Attorney General’s Office noted Goodman’s
admission of guilt at his 2000 parole hearing as one reason for their
hesitancy to declare his innocence.
Even after we struggled to explain the difficulties that innocent
prisoners endure in maintaining their innocence over time, especially when
they know such statements impair their chances at parole, the prosecution
would not budge from its suspicion that Goodman was somehow involved.
Indeed, the prosecution indicated that it would vigorously contest a filing
under the Post-Conviction Testing of DNA Statute, but would both stipulate
to vacate the conviction under the habeas corpus remedy and refrain from
seeking a retrial on the grounds that the DNA evidence, while short of
proving actual innocence, did create reasonable doubt about the
conviction.182 In the end, upon gauging the prosecution’s stance and

not prove Goodman innocent”); Geoffrey Fattah, DNA Evidence Could Set Man Free, DESERET
MORNING NEWS (Salt Lake City, Utah), Oct. 16, 2004, at B02 (same); see also Broughton, supra
note 168 (“State prosecutors said additional evidence, although circumstantial, pointed to
Goodman as Williams’ killer.”).
180. UTAH CODE ANN. § 77-27-5.3(2) (2005) (“In any case filed in state or federal court in
which a prisoner submits a claim [found] to be without merit and brought . . . in bad faith, the
Board of Pardons and Parole and any county jail administrator may consider that finding in any
early release decisions concerning the prisoner.”); see also id. § 77-27-13(2) (“The Department
of Corrections shall furnish pertinent information it has and shall provide a copy of the presentence report and any other investigative reports to the [B]oard [of Pardons and Parole].”).
181. The Utah Board of Pardons and Parole is required to produce a transcript of parole
hearings, and transcripts are available for purchase. Id. § 77-27-8(1); UTAH ADMIN. CODE r. 671304 (2007). Moreover, the hearings themselves are “open to the public, including
representatives of the news media.” Id. r. 671-302-1. There does not appear to be a rule
prohibiting prosecutorial access to the transcript or any other aspect of parole files in Utah. For
that matter, such statements could conceivably be utilized in civil litigation related to the
crime—for example, a wrongful death action. Notably, even though statements from parole
hearings may be treated as hearsay if introduced in subsequent proceedings, those statements
would almost certainly satisfy the “party admission” exception to the hearsay rule. See UTAH R.
EVID. 801(d)(2) (“A statement is not hearsay if . . . [t]he statement is offered against a party and
is . . . the party’s own statement . . . .”).
182. Special thanks to my colleague Jensie Anderson, President of RMIC’s Board of
Directors, for informing me of the intricate details of these negotiations, much of which I did
not participate in. True to their word, prosecutors in the case refused to retry Goodman. See
Welling & Dobner, supra note 171 (“Goodman was released when Beaver County prosecutors

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comparing the respective costs and benefits of each remedy,183 RMIC filed a
state habeas corpus petition to vacate Goodman’s conviction.
Goodman was released from prison in November 2004: a free man, but
not altogether cleared of the crime.184 Without the official imprimatur of a
finding of actual innocence, the ancillary consequences of Goodman’s
wrongful murder conviction may dog him for the rest of his life, presenting
obstacles in his quests for compensation from the state185 or gainful
employment.186 Even somewhat insignificant issues, like expunging a
conviction from one’s record,187 prove a burden for those exonerees whose
release lacked an outright declaration of innocence.

declined to refile murder charges against him, stating that the DNA evidence of others from the
crime scene created enough reasonable doubt that a conviction would be unlikely.”).
183. A major strategic benefit of utilizing the habeas corpus remedy, from RMIC’s
perspective, was that it allowed for Goodman’s release within five days as opposed to the
protracted litigation battle that would inevitably ensue under the Post-Conviction DNA Testing
statute. UTAH CODE ANN. § 78-35a-108(2)(a). The statute provides:
If the petitioner is serving a felony sentence, the order shall be stayed for five days.
Within the stay period, the respondent shall give written notice to the court and
the petitioner that the respondent will pursue a new trial or sentencing
proceedings, appeal the order, or take no action. . . . If the respondent fails to
provide notice or gives notice at any time during the stay period that it intends to
take no action, the court shall lift the stay and deliver the order to the custodian of
the petitioner.
Id. §§ 78-35a-108(2)(a)–(b).
184. See Fattah, supra note 179, at B02 (“‘The new DNA evidence is not conclusive, but it is
troubling,’ said assistant attorney general Erin Riley. ‘It does not prove Goodman innocent, but
it may well create reasonable doubt as to his guilt.’”).
185. Although Utah does not currently have a wrongful conviction compensation statute, I
am involved with a bipartisan working group—composed of academics, defense attorneys, and
prosecutors—that is in the process of presenting just such a bill to the state legislature.
Nationally, a number of jurisdictions have legislation explicitly compensating individuals for the
harms wrought by wrongful convictions, and these statutes often contain a number of obstacles,
including monetary caps and requirements to show that the applicants for relief have not
contributed in some fashion to the original convictions. See Adele Bernhard, Justice Still Fails: A
Review of Recent Efforts to Compensate Individuals Who Have Been Unjustly Convicted and Later
Exonerated, 52 DRAKE L. REV. 703, 708–13 (2004) (arguing that compensation statutes are rather
equitable, easy to use, and popular); Adele Bernhard, When Justice Fails: Indemnification for Unjust
Conviction, 6 U. CHI. L. SCH. ROUNDTABLE 73, 101–10 (1999) (analyzing existing
indemnification statutes); Alberto B. Lopez, $10 and a Denim Jacket? A Model Statute for
Compensating the Wrongly Convicted, 36 GA. L. REV. 665, 690–704 (2002) (explaining and
critiquing current legal and legislative remedies for the wrongly convicted); Shawn Armbrust,
Note, When Money Isn’t Enough: The Case for Holistic Compensation of the Wrongfully Convicted, 41
AM. CRIM. L. REV. 157, 161–81 (2004) (discussing the inadequacy of existing remedies and
proposing a model system of holistic compensation for the wrongly convicted).
186. For a discussion of many of the problems, both legal and social, that prisoners may
face upon reentry into society, see generally Michael Pinard, An Integrated Perspective on the
Collateral Consequences of Criminal Convictions and Reentry Issues Faced by Formerly Incarcerated
Individuals, 86 B.U. L. REV. 623 (2006).
187. As Judge Stephen J. Fortunato, Jr., has recently written about Rhode Island:

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III. ADMISSIONS OF GUILT AND THE PAROLE RELEASE DECISION RECONSIDERED
The cases of Bruce Goodman and Robert Fennell illustrate the dilemma
that innocent prisoners experience in deciding how to address parole
boards. Proclaiming innocence at a parole hearing typically harms one’s
chances for release, aside from the unique posture of Fennell’s case, where
he had the institutional credibility and assets of a law school innocence
project backing him,188 while “admitting” guilt can serve as a mitigating
factor. Given the stark reality of prison life—its everyday brutality and ample
deprivations—the yearning to escape can overwhelm even the strongest and
most stoic of people and prompt an innocent prisoner to surrender to the
lure of “admitting” guilt before the parole board to boost the odds of a
parole grant. Yet regardless of whether that admission accomplishes its
objective, inculpatory statements at parole hearings can hamper the
prisoner’s later attempts to prove innocence through litigation and thus
have long-term negative effects.
To be sure, one might contend that the Fennell and Goodman cases are
anomalous and do not justify banning altogether the use of admissions of
guilt in the parole decision-making process. The weight placed on
acknowledging guilt in the parole release equation did not prevent Fennell
and Goodman from ultimately obtaining their freedom, even if neither has
managed yet to prove his innocence. Contemporary psychological theory
and age-old religious principles, moreover, prescribe that accepting
responsibility for past transgressions is integral to rehabilitation and that
refusing to acknowledge one’s errors connotes mental instability or
immaturity, neither of which bode well for an inmate’s future behavior in
society. Victims’ interests may also be served through inmate admissions of
guilt and expressions of remorse.

[Its] statute [is] typical of many in force around the country regarding the
expungement—or more accurately, the sealing of criminal records. The statute
presents problems on its face and as applied. Though the person recently released
to the streets needs a job immediately, and preferably one that pays a living wage,
there is a five-year waiting period to expunge a misdemeanor conviction and a tenyear wait to remove a felony conviction from public view.
Hon. Stephen J. Fortunato, Jr., Judges, Racism, and the Problem of Actual Innocence, 57 ME. L. REV.
481, 507 (2005).
188. Several other inmates have persisted in claiming innocence and still received parole
due to the help of an innocence project. See, e.g., Cal. W. Sch. L., Governor Grants Parole to
California Innocence Project Client (Apr. 27, 2004), http://www.cwsl.edu/main/default.asp?
nav=news.asp&body=news/Riojas.asp (describing how the California Innocence Project helped
Adam Riojas to obtain his release on parole after Riojas’s father confessed to the underlying
crime); Carey Hoffman, U. Cin., Innocence Project Marks First Successful Prisoner Release
(Dec. 14, 2004), http://www.uc.edu/news/NR.asp?id=2247 (explaining how the Ohio
Innocence Project at the University of Cincinnati College of Law helped Gary Reece procure
parole by presenting substantial evidence of his innocence after Reece had been denied parole
five times).

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Therefore, as long as acknowledging guilt is just one of several variables
in the parole release decision, not the sole or outcome-determinative
factor,189 it might arguably be a worthwhile issue for parole boards to
consider. State courts have upheld parole decisions in which refusing to
acknowledge guilt was explicitly cited as a factor in denying release and, in
the process, rejected arguments that this practice violates the privilege
against self-incrimination.190 In addition, questions of guilt and innocence
arguably lie beyond the scope of a parole board’s job description. That is,
state and federal post-conviction court procedures exist to rectify errors in
the litigation process—including those related to guilt and innocence—and
that objective remains largely foreign to the parole process, which is
principally concerned with the basic question of whether to release
prisoners into the outside world under supervision. Upon closer inspection,
though, the theoretical justifications for using an inmate’s admission of guilt
as a key criterion in the parole release decision mask a much more sobering
reality.
A. THE DANGER OF ASSUMING THE LITIGATION PROCESS ACCURATELY FILTERS THE
GUILTY FROM THE INNOCENT
The American system for adjudicating criminal cases is far from failsafe,191 and it is perilous to rationalize the documented errors wrought by

189. See, e.g., CAL. PENAL CODE § 5011(b) (West 2000) (“The Board of Prison Terms shall
not require, when setting parole dates, an admission of guilt to any crime for which an inmate
was committed.”).
190. See, e.g., Quegan v. Mass. Parole Bd., 673 N.E.2d 42, 42 (Mass. 1996) (finding no state
constitutional violation when a prisoner’s refusal to acknowledge guilt is factored into the
parole decision); Romer v. Dennison, 804 N.Y.S.2d 872, 874 (N.Y. App. Div. 2005) (suggesting
that the parole board properly refused to release a prisoner where that record reflected “that
petitioner continues to maintain his innocence of the crimes for which he stands convicted—
crimes that, the Board observed, involved ‘devious, manipulative and cunning acts perpetrated
against vulnerable individuals’ who had placed their trust in petitioner”); Sontag v. Ward, 789
A.2d 778, 780 (Pa. Commw. Ct. 2001). The Sontag court noted:
[The defendant] maintained that by forcing him to admit guilt . . . to complete the
program and thereby be recommended for parole, his right against selfincrimination was violated. . . . The privilege against self-incrimination does not
extend to consequences of a non-criminal nature, even if it would result in the loss
of probation.
Id.; see also In re Ecklund, 985 P.2d 342, 346 (Wash. 1999) (holding that the state parole board’s
reliance on an inmate’s denial of guilt as one basis for denying parole did not violate his right
to remain silent).
191. In addition to the problem of wrongful convictions, there are problems regarding the
arrest and criminal charging process at the outset. See, e.g., Daniel Givelber, Lost Innocence:
Speculation and Data About the Acquitted, 42 AM. CRIM. L. REV. 1167, 1199 (2005) (“Assuming that
the analysis to this point suggests that a considerable fraction, perhaps half, of the acquitted are
innocent, we at a minimum know that the pre-trial sorting process has not reduced to the
vanishing point the innocents in the pool of those forced to judgment.”); Andrew D. Leipold,
The Problem of the Innocent, Acquitted Defendant, 94 NW. U. L. REV. 1297, 1299 (2000) (“[W]hile

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the system as inevitable or incidental,192 much less assume that the inability
of a prisoner to achieve freedom through the courts unequivocally confirms
factual guilt. Contrary to what some commentators have argued,193 the host
of exonerations since the advent of DNA hardly proves the post-conviction
process works effectively in the end, only that it may result in justice where
the unique recipe of facts in a particular case yields the perfect stew. The
main ingredients in the exoneration stew include situations where: (1) there
is either biological evidence appropriate for DNA testing that has not been
degraded, destroyed, or lost over time194 or otherwise compelling, available,
and newly discovered non-DNA evidence;195 (2) the inmate is serving a
sufficiently lengthy sentence on a serious crime so as to provoke a lawyer or
legal organization into reviewing the case and championing the inmate’s
cause;196 (3) the posture of the case enables the defense team to dodge

innocent people who are . . . acquitted of crimes have far fewer problems than the wrongfully
convicted, their burdens are still substantial . . . . In particular, a factually innocent defendant
confronts the problem of being publicly accused by the government of criminal behavior with
no real prospect of ever being officially vindicated.”).
192. See, e.g., Joshua Marquis, The Innocent and the Shammed, N.Y. TIMES, Jan. 26, 2006, at A23
(dismissing the overall number of wrongful convictions as insignificant). Supreme Court Justice
Antonin Scalia recently cited Marquis’s data and extrapolated from it to find an error rate in
felony convictions of .027, “or, to put it another way, a success rate of 99.973 percent.” Kansas v.
Marsh, 126 S. Ct. 2516, 2538 (2006). Professor Samuel Gross responded by criticizing Justice
Scalia’s computation: “In fact, the true number of wrongful convictions is unknown and
frustratingly unknowable. But the rate that Justice Scalia advocates is flat wrong and badly
misleading.” Samuel R. Gross, Souter Passant, Scalia Rampant: Combat in the Marsh, 105 MICH. L.
REV. FIRST IMPRESSIONS 67, 69 (2006), available at http://students.law.umich.edu/mlr/
firstimpressions/vol105/gross.pdf. Notably, Michael Risinger recently wrote a paper that found
“an empirical minimum of 3.3% and a fairly generous likely maximum of 5%, for factually
wrongful convictions in capital rape-murders in the 1980’s.” D. Michael Risinger, Innocents
Convicted: An Empirically Justified Factual Wrongful Conviction Rate, 97 J. CRIM. L. & CRIMINOLOGY
761, 780 (2007).
193. See supra note 192 and accompanying text; cf. generally Medwed, supra note 14
(analyzing some of the procedural, evidentiary, and other impediments that make it difficult for
prisoners with innocence claims grounded on non-DNA newly discovered evidence to obtain
vindication in the state courts).
194. See Barry Scheck & Peter Neufeld, DNA and Innocence Scholarship, in WRONGLY
CONVICTED: PERSPECTIVES ON FAILED JUSTICE 241, 245 (Saundra D. Westervelt & John A.
Humphrey eds., 2001) (“In 75 percent of Innocence Project cases, matters in which it has been
established that a favorable DNA result would be sufficient to vacate the inmate’s conviction,
the relevant biological evidence has either been destroyed or lost.”).
195. See generally Medwed, supra note 14 (discussing some of the procedural obstacles and
risks present in many state post-conviction procedures).
196. See generally Medwed, supra note 98 (discussing the case selection process engaged in
by most innocence projects).

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procedural default;197 and/or (4) the assigned prosecutor or judge
demonstrates openness to the allegations.198
What apparently separates the exonerated from the actually innocent
who remain incarcerated, then, is more happenstance—the peculiar, often
random blend of circumstances in their cases that fall outside their
control—than anything else.199 Even more, the bulk of chronicled wrongful
convictions have occurred in rapes and murders, the kinds of crimes likely
to merit severe sentences and generate regular appearances before parole
boards in jurisdictions with indeterminate sentencing regimes.200
Accordingly, taking for granted the accuracy of the guilty verdict when
weighing an inmate’s request for parole overlooks the more nuanced and
obscure truth about the criminal justice system’s ability to invariably “get it
right.” Whether parole boards can actually alter this situation is another
matter entirely, and one that Part IV of this Article addresses.201
B. POTHOLES ON THE PATH TO REDEMPTION THROUGH THE PAROLE PROCESS
Given the lingering doubts surrounding the fundamental accuracy of
the criminal adjudicatory process, the expectation that prisoners must admit
guilt to earn release on parole is problematic. As noted in Part I of this
Article, the concept of parole is grounded partially in rehabilitation theory
and rhetoric—the idea that prisoners who succeed in reforming themselves
while incarcerated deserve early release contingent upon further state
monitoring in the event the parolee falls from grace.202 Proponents of
rehabilitation theory have historically viewed acceptance of responsibility
and expressions of remorse as indispensable steps on the road to
rehabilitation,203 and this fusion of admission and apology as a “cure” has
ancient roots in the Judeo-Christian tradition in which such acts are deemed

197. See generally Medwed, supra note 14 (noting some of the obstacles posed by, among
other things, strict statutes of limitations or prohibitions against filing successive petitions).
198. See generally Susan Bandes, Loyalty to One’s Convictions: The Prosecutor and Tunnel Vision,
49 HOW. L.J. 475 (2006) (detailing prosecutorial unwillingness to admit defendants were
wrongly convicted); Medwed, supra note 56 (examining prosecutorial resistance to postconviction innocence claims); Fred C. Zacharias, The Role of Prosecutors in Serving Justice After
Convictions, 58 VAND. L. REV. 171 (2005) (analyzing the ethical obligations of prosecutors to
facilitate the exoneration of innocent prisoners).
199. As a recent in-depth study of 340 exonerations from 1989 to 2003 conducted by
scholars at the University of Michigan disclosed, “it is certain—this is the clearest implication of
our study—that many defendants who are not on this list, no doubt thousands, have been
falsely convicted of serious crimes but have not been exonerated.” Gross et al., supra note 13, at
527.
200. See Gross, supra note 192, at 69 (observing that ninety-six percent of known
exonerations occurred in rape and murder cases, which together constitute less than one in
fifty felony convictions).
201. See infra notes 250–319 and accompanying text.
202. See supra notes 26–27 and accompanying text.
203. See supra notes 88–90 and accompanying text.

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crucial in atoning for sins.204 In ancient Jewish law, rehabilitation and
atonement served as the pillars of punishment theory.205 The modern parole
process’s reliance on remorse and responsibility also mirrors the classic
Christian tenets of the Sacrament of Penance: “contrition, confession, the
act of penance, and absolution.”206
The belief that acknowledging past errors is central to individual
rehabilitation derives from psychology as well as theology. Since the early
twentieth century, psychologists have developed and studied the topic of
“denial,” characterizing it as a fundamental human coping mechanism that
is used to avoid confronting unpleasant realities and that also potentially
impedes personal growth.207 The modern psychological literature
surrounding denial stems to a large degree from Sigmund Freud’s
pioneering work in the area of disavowal and repression.208 Building on
Freudian theories, modern mental health professionals often recommend
treatment programs that involve probing into the extent of a patient’s denial
and attempting to uncover its source.209 Implicit, and at times explicit, in the
current psychological discourse is the precept that only by coming to terms
with one’s inner demons (and past transgressions) might a patient
204. See Jonathan R. Cohen, The Culture of Legal Denial, 84 NEB. L. REV. 247, 254 n.14
(2005). Cohen writes:
In Judaism, see, for example, MISHNAH YOMA 8: 9 (“For transgressions against God,
the Day of Atonement atones, but for transgressions against another human being,
the Day of Atonement does not atone until one has made peace with that
person.”). In Christianity, see, for example, Matthew 5: 23–24 (“Therefore if thou
bring thy gift to the altar, and there rememberest that thy brother hath ought
against thee; Leave there thy gift before the altar, and go thy way; first be
reconciled to thy brother, and then come and offer thy gift.”).
Id.
205. See Martin H. Pritikin, Punishment, Prisons, and the Bible: Does “Old Testament Justice”
Justify Our Retributive Culture?, 28 CARDOZO L. REV. 715, 716 (2006) (“In Jewish law, restitution,
rehabilitation, and atonement . . . —and not retribution—were the primary purposes of
criminal punishment.”). Interestingly, Jewish law sought to differentiate the moral and spiritual
quest for atonement from the criminal process itself and banned the use of confessions entirely
in the adjudication of a criminal case. See Cheryl G. Bader, “Forgive Me Victim for I Have Sinned”:
Why Repentance and the Criminal Justice System Do Not Mix—A Lesson from Jewish Law, 31 FORDHAM
URB. L.J. 69, 86–93 (2003) (explaining the rationale behind the prohibition on confessions in
Jewish law).
206. John Celichowski, Bringing Penance Back to the Penitentiary: Using the Sacrament of
Reconciliation as a Model for Restoring Rehabilitation as a Priority in the Criminal Justice System, 40
CATH. LAW. 239, 249 (2001).
207. See THEODORE L. DORPAT, DENIAL AND DEFENSE IN THE THERAPEUTIC SITUATION 2
(1985) (“Denial covers situations in which individuals in words, fantasies, or overt actions
attempt to avoid painful reality.”).
208. See id. at 21–32 (discussing Freud’s contributions to the development of the topic).
209. See Martin Wangh, The Evolution of Psychoanalytic Thought on Negation and Denial, in
DENIAL: A CLARIFICATION OF CONCEPTS AND RESEARCH 5, 7–8 (E.L. Edelstein et al. eds., 1989)
(describing how a key precept of Freud’s work on negation entails ignoring a patient’s initial
negative response or judgment with respect to a suggestion or inquiry).

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experience a positive mental and spiritual transformation.210 As a key
corollary, neglecting to admit past mistakes purportedly renders the
attainment of this goal elusive.211
Traditional religious views and psychological theories about the
significance of apology and denial in human well-being have infiltrated
various aspects of American legal doctrine.212 For instance, academics and
state legislators have recently engaged in heated debates regarding whether
and how apologies should be utilized in the civil litigation process and the
extent to which admissions of sympathy should be treated differently from
admissions of fault.213 Furthermore, several academic studies highlight the
importance of apologies in resolving civil disputes. Many American victims
of medical malpractice admit they would not have sued but for their
physicians’ reluctance to apologize,214 and Japan’s meager lawsuit rate is
often chalked up to the country’s custom of expressing regret for causing
injury.215 In an effort to encourage citizens to apologize for injuring others
and to nip tort lawsuits in the bud, a handful of states in the past decade
have proposed legislation that would make fault-based apologies at the site
of an accident inadmissible in court.216 Similarly, scholars have insisted that
apologies serve a vital social function in validating the tort victim’s
experience and in helping both injured and injurer with the restorative

210. See supra notes 26−27, 88−90, 204 and accompanying text; see also Roy F. Baumeister et
al., Personal Narratives About Guilt: Role in Action Control and Interpersonal Relationships, 17 BASIC &
APPLIED SOC. PSYCHOL. 173, 195 (1995) (studying guilt in the context of interpersonal
relationships and describing “some findings that point to the relevance of guilt for action
control . . . link guilt to learning lessons and altering subsequent behavior”).
211. See supra note 210; see also Gad Czudner & Ruth Mueller, The Role of Guilt and Its
Implication in the Treatment of Criminals, 31 INT’L J. OFFENDER THERAPY & COMP. CRIMINOLOGY 71
(1987) (presenting case studies to suggest that the willingness and readiness of convicted
criminals to change hinges on their capacity to experience guilt and empathy); W.L. Marshall,
Treatment Effect on Denial and Minimization in Incarcerated Sex Offenders, 32 BEHAV. RES. THERAPY
559, 559 (1994) (stating as an underlying assumption that, in sex offenders, “the treatment of
other issues cannot proceed until denial is overcome and minimization has at least been
significantly changed”).
212. Several scholars have promoted the concept of atonement as a theory to justify
criminal punishment and imprisonment in general. See, e.g., Stephen P. Garvey, Punishment as
Atonement, 46 UCLA L. REV. 1801, 1804 (1999) (“Atonement is both a goal and a process. As a
goal, atonement seeks the reconciliation of the wrongdoer and the victim . . . . As a process,
atonement has several steps . . . [that] lead to atonement-the-goal. Following Richard
Swinburne, I suggest that the process of atonement has two basic stages: expiation and
reconciliation.”).
213. See generally FED. R. EVID. 409 (deeming offers to pay medical expenses inadmissible at
trial to prove liability); Jonathan R. Cohen, Legislating Apology: The Pros and Cons, 70 U. CIN. L.
REV. 819 (2002).
214. See Cohen, supra note 213, at 821.
215. Id. at 850–52.
216. See id. at 820.

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process.217 In the field of criminal law, the burgeoning victims’ rights
movement likewise has treated apologies and admissions of guilt by
perpetrators as instrumental components of healing for victims.218 On a
grander scale, the most common method of settling criminal cases in recent
decades—plea bargaining—hinges upon a defendant’s acceptance of
responsibility and almost universally requires a public admission of guilt as
part of the plea allocution.219 The Federal Sentencing Guidelines themselves
reflect an institutional appreciation for defendant admissions of guilt by
allowing downward sentencing adjustments for, among other factors,
acceptance of responsibility.220
In contrast, denials of guilt, if superficially sanctioned as viable litigation
strategies, are treated with underlying condemnation in many fields of law.
This condemnation occasionally manifests itself in punitive measures to the
party resistant to admissions of guilt. Observers of the criminal justice system
have commented on the “trial tax,” a colloquial phrase used to describe the
penalty imposed on criminal defendants who refuse to plead guilty and,
instead, assert their constitutionally provided right to a trial.221 Such
217. See, e.g., Daniel W. Shuman, The Psychology of Compensation in Tort Law, 43 U. KAN. L.
REV. 39, 68–71 (1994).
218. See, e.g., Michael M. O’Hear, Victims and Criminal Justice: What’s Next?, 19 FED. SENT’G
REP. 83, 85 (2006) (discussing some of the recent victims’ rights scholarship in which Benji
McMurray and Erin Ann O’Hara have recommended, respectively, that “an offender’s apology
and voluntary efforts” at crime reduction should warrant a reduced sentence and that victims
should directly control a portion (ten percent) of an offender’s sentence in order to encourage
apology and reconciliation). Notably, at least one criminal defense organization, Georgia
Justice Project (“GJP”), has formally incorporated its religious beliefs surrounding remorse and
responsibility into its practice. Bader, supra note 205, at 69. Devoted to aiding its clients in
obtaining moral and religious redemption, GJP encourages its clients to confess to their victims
through written correspondence prior to the adjudication of their cases in the hopes of
receiving forgiveness. Id.; see also LAWRENCE FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN
HISTORY 39 (1993) (noting how “[c]onfession and repentance were crucial aims of the criminal
process” in colonial times and describing one Maryland case in which a woman falsely accused a
man of fathering her child and, as a punishment, was ordered to ask forgiveness in open court
and on “‘bended knees’”).
219. See, e.g., KATE E. BLOCH & KEVIN C. MCMUNIGAL, CRIMINAL LAW: A CONTEMPORARY
APPROACH 9 (2005) (“Figures vary somewhat, but commonly more than 90 percent of state
convictions in criminal cases are based on defendants’ pleas of guilty. Similarly, statistics from
the year 2000 indicate that, on the federal level, guilty pleas represented approximately 95
percent of federal convictions.”). One striking exception to the idea that one must admit
factual guilt as a condition of a guilty plea is the concept of the Alford plea. See supra note 7 and
accompanying text (discussing Alford pleas).
220. See BLOCH & MCMUNIGAL, supra note 219, at 72; see also John Tasioulas, Repentance and
the Liberal State, 4 OHIO ST. J. CRIM. L. 487, 487 (2007) (arguing that repentance is a valuable
factor in weighing criminal punishment and that the justice system should facilitate
repentance).
221. See, e.g., STEVE BOGIRA, COURTROOM 302 (2005) (mentioning how the term “trial tax”
is used frequently through the Chicago criminal courts to describe the ramifications of refusing
a plea offer and, instead, exercising one’s right to proceed to trial); DAVID FEIGE, INDEFENSIBLE
104 (2006) (noting that in New York City’s courthouses “a trial loss will almost inevitably result

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defendants tend to receive a much harsher sentence upon a guilty verdict
after trial than had the case been resolved through a guilty plea at the
outset.222 A defendant may even be explicitly punished at sentencing for
persisting in his innocence.223 In the civil arena, moreover, scholars have
pressed for changes to the legal system in order to rid it of any dormant
incentives for parties to deny fault. Jonathan Cohen, who has been at the
forefront of the legal scholarship concerning apology, recently derided civil
defense lawyers and clients for advancing a “culture of denial.”224 Touting
the healing and redemptive benefits of admitting guilt, Cohen has urged for
a reconception of civil litigation tactics in order to lessen the economic
advantages of continuing to deny guilt in the hopes of eventually reaping a
favorable civil settlement, while bolstering the incentive to accept
responsibility for one’s actions.225
With respect to the specific question of parole, however, the actual
value of factoring inmate admissions of guilt into the release decision may
be minimal. As a threshold matter, the conventional wisdom that inmates
who accept responsibility display a greater amount of rehabilitation and thus
pose a lower risk of future criminal conduct than those who deny their past
missteps is of dubious merit.226 Indeed, a 2002 study of 144 inmates

in a much longer sentence[,] known in many courthouses as ‘the trial tax[,]’” than a guilty plea
in the same case (parentheses omitted)). Academics have confirmed the anecdotal sense that
courts are notorious for imposing, or threatening to impose, a stiffer sentence in the aftermath
of a guilty verdict than they would have imposed had the case been resolved through a plea
bargain. See, e.g., Daniel Givelber, Punishing Protestations of Innocence: Denying Responsibility and Its
Consequences, 37 AM. CRIM. L. REV. 1363, 1372 (2000); Rosen, supra note 5, at 282 (“Before
conviction, the defendant who insists on innocence loses the advantage of a plea bargain. . . .
[I]t is worth noting that a system relying on plea bargains inevitably punishes those who claim
innocence with longer sentences.”); Robert E. Scott & William J. Stuntz, A Reply: Imperfect
Bargains, Imperfect Trials, and Innocent Defendants, 101 YALE L.J. 2011, 2013 (1992).
222. See supra note 221 and accompanying text.
223. See, e.g., Jules Epstein, Silence: Insolubly Ambiguous and Deadly: The Constitutional,
Evidentiary and Moral Reasons for Excluding “Lack of Remorse” Testimony and Argument in Capital
Sentencing Proceedings, 14 TEMP. POL. & CIV. RTS. L. REV. 45, 49 (2004) (evaluating the impact of
the lack of remorse in capital sentencing); Michael M. O’Hear, Remorse, Cooperation, and
“Acceptance of Responsibility”: The Structure, Implementation, and Reform of Section 3E1.1 of the Federal
Sentencing Guidelines, 91 NW. U. L. REV. 1507, 1523–24 (1997) (discussing the effect of remorse
in federal sentencing); Hon. Larry S. Vandersnick, Lack of Remorse Versus Persistence in Innocence,
86 ILL. B.J. 692, 692–93 (1998) (citing two Illinois cases in which defendants were penalized at
sentencing for their proclamations of innocence).
224. See generally Cohen, supra note 213; Jonathan R. Cohen, The Immorality of Denial, 79
TUL. L. REV. 903 (2005).
225. See supra note 224 and accompanying text.
226. Speculating about how a person will act prospectively is generally a hazardous
endeavor, with some research suggesting that psychiatrists err over forty percent of the time
when forecasting an offender’s future dangerousness. See DEAN J. CHAMPION, CORRECTIONS IN
THE UNITED STATES: A CONTEMPORARY PERSPECTIVE 401 (2d ed. 1998).

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convicted of sex offenses in England227 determined that, whereas offenders
perceived to be “in denial” by the parole board (about one-third of the
sample) were much more likely to be rated as “high risk” than those who
accepted responsibility for their offense, only one of these “high-risk
deniers” was subsequently reconvicted of a sex crime, as compared with
seventeen of the ninety-seven “non-deniers.”228
Regardless of the possibly tenuous link to recidivism rates, a
perpetrator’s acceptance of responsibility and demonstration of remorse
through the parole process ideally can have therapeutic benefits for both
the perpetrator and the victim. Victims, who normally have a right to attend
or submit statements at parole hearings,229 stand to gain emotionally and
psychologically from such acknowledgements by perpetrators.230 Defendants
too may profit from this endeavor in terms of their mental well-being and
effort to adjust to noncriminal modalities of behavior.231 For their part,
parole boards are justifiably interested in releasing only those inmates who

227. See Roger Hood et al., Sex Offenders Emerging from Long-Term Imprisonment: A Study of
Their Long-term Reconviction Rates and of Parole Board Members’ Judgments of Their Risk, 42 BRIT. J.
CRIMINOLOGY 371, 387 n.5 (2002) (noting that the researchers confined their study of the
question of denial to the “144 prisoners who could be followed-up for at least four years and for
whom the [Parole] Board had made an assessment of risk”).
228. Id.; see also Stephen Shute, Does Parole Work? The Empirical Evidence from England and
Wales, 2 OHIO ST. J. CRIM. L. 315, 324 (2002) (discussing the study).
229. See, e.g., UTAH CODE ANN. § 77-27-9.5(2)(a) (2005) (providing that, in general, when a
parole hearing “is held regarding any offense committed by the defendant that involved the
victim, the victim may attend the hearing to present his views concerning the decisions to be
made regarding the defendant”); see also ABADINSKY, supra note 24, at 234 (“More than 30 states
permit victims or next of kin to appear before the parole board, and about a dozen others
permit written statements to be considered at the parole hearing.”); COHEN, supra note 1, §
6:16, at 6-25 to 6-26 (summarizing the various state laws regarding victim notification).
Furthermore, “[m]any states include a ‘victim impact statement’ as part of the documentation”
reviewed by the parole board. ABADINSKY, supra note 24, at 235. Research indicates that some
state parole boards put tremendous stock in such victim testimony in rendering release
decisions. See, e.g., William Parsonage et al., Victim Impact Testimony and Pennsylvania’s Parole
Decision-making Process: A Pilot Study, 6 CRIM. JUST. POL’Y REV. 187, 187 (1994) (comparing parole
release decisions by the Pennsylvania Board of Probation and Parole in 1989 in cases with victim
impact testimony against those lacking such testimony and finding “higher refusal rates . . . in
the victim testimony group despite comparable parole objective guidelines predictions,
offender demographics, and offenses”).
230. It should be noted, however, that the increasingly ubiquitous nature of apologies as
part of the litigation process in recent years may generally undermine the value of any
individual apology for a victim, merely affording what some theologians have termed “cheap
grace.” Jeffrie G. Murphy, Well Excuse Me! Remorse, Apology, and Criminal Sentencing, 38 ARIZ. ST.
L.J. 371, 372 (2006). See generally Lee Taft, Apology Subverted: The Commodification of Apology, 109
YALE L.J. 1135 (2000) (expressing doubts about the use of apology in civil litigation).
231. The act of apologizing itself can be therapeutic for an offender. See, e.g., Taft, supra
note 230, at 1137–38 (“Apology leads to healing because through apologetic discourse there is a
restoration of moral balance—more specifically, a restoration of an equality of regard.
Understood this way, apology is valuable because it offers the offender a vehicle for expressing
repentance and the offended an opportunity to forgive.”).

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seem to have cultivated the maturity and self-awareness so often required to
combat the temptations that will certainly challenge them on the streets.
Still, in order for these benefits to be achieved, the prisoner’s
acceptance of responsibility must be sincere, not calculated mainly to appease
the parole board. Rumors of parole board decision-making processes run
rampant in state prisons and inmates are often (1) keenly aware of the
criteria parole commissioners utilize and (2) likely willing to tailor their
appearances at parole hearings around these criteria by evincing guilt,
contrition, and maturity.232 As Carol Sanger noted, “[T]he players [in the
parole hearing drama] understand the ‘proper’ emotional response and
each can act accordingly.”233 Likewise, Danielle Lavin-Loucks, a sociologist
who studied the linguistic patterns and strategies inmates use to build a case
for release at parole hearings, concluded that many prisoners consciously
structure their oral presentations to convince board members of their
rehabilitated status.234 Individual prisoners adept at manipulating people in
general may be particularly skilled at convincing parole commissioners of
their sincerity, and scholarly research confirms that parole boards often fall
prey to such manipulations.235 In fact, one study of the Georgia parole
system concluded that parole officers “erred” more frequently in their
decisions made after prisoner participation at parole hearings—with errors
measured by the number of parole revocations and disciplinary infractions
later attained by the candidates—than those made before personally
interviewing the applicant.236 In other words, parole board members (along

232. See Sanger, supra note 17, at 111 (noting that “a convicted and guilty defendant can
put on a great show of remorse and be rewarded for the display”).
233. Id.; see also Murphy, supra note 230, at 372 (“Bad people are . . . often quick studies of
social trends that can be used to their advantage, and so it is now not uncommon to find such
phrases as . . . ‘let’s not play the blame game’ shamelessly and almost instantly on the lips of
wrongdoers—often those in high political office.”).
234. See generally Lavin-Loucks, supra note 18, at 115–16.
235. See, e.g., Stephen Porter et al., Truth, Lies and Videotape: An Investigation of the Ability of
Federal Parole Officers to Detect Deception, 24 LAW & HUM. BEHAV. 643, 643–46 (2000) (examining
the deception detection ability of parole officers); R. Barry Ruback & Charles H. Hopper,
Decision-making by Parole Interviewers: The Effect of Case and Interview Factors, 10 LAW & HUM. BEHAV.
203, 211–13 (1986) (exploring parole officers’ accuracy of predicting inmates’ success on
parole). Surveying the policies of state parole boards demonstrates awareness on the part of
certain parole commissioners about the dangers of relying too heavily on inmate statements
when reaching the parole release decision. For instance, the State of Washington’s
Indeterminate Sentencing Review Board, in describing the amalgam of factors that enter into
the parole release assessment, specifies publicly that “[s]elf-report is the least reliable source of
data, so any information relying, at its core, on self-report must be weighed carefully.”
Washington’s Parole System Summarized, http://www.srb.wa.gov/summary.html (last visited
Sept. 25, 2007).
236. See Ruback & Hopper, supra note 235, at 211 (“[I]t is interesting to note that
interviewers were less accurate in predicting parole failures after than before the interview.”).

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with most other humans) are far less proficient at detecting deception than
many of us would like to believe.237
More troubling than the prospect of factually guilty inmates duping
parole commissioners into accepting their false claims of repentance is the
existence of prisoners whose proclamations of innocence land on deaf ears.
To be clear, some inmates who maintain their innocence at parole hearings
may be in the throes of psychological denial. Legal scholars and social
scientists have observed that people typically make choices that maximize or
accentuate their “positive self-image.”238 Individuals are often reluctant to
acquire or divulge information that negates the affirmative view they tend to
hold of themselves.239 Consequently, guilty prisoners may be wary of
admitting guilt for fear of undercutting their own self-perception of
themselves as “good” actors. Inmates may also have a practical basis for
refusing to acknowledge guilt, for instance, sex offenders who worry that
publicly admitting culpability could imperil them within the prison
population.240 But it is dangerous to underestimate the possibility that many
prisoner assertions of innocence reflect the truth and demonstrate a wealth
of personal integrity rather than cowardice or psychological deficit.241 And

237. See COHEN, supra note 1, § 4:31, at 53 (“[A]n accurate assessment of a person’s
psychological makeup is difficult, given even unlimited resources, and parole boards often
operate under the handicap of inadequate staff and time.”); Robert W. Kastenmeier & Howard
C. Eglit, Parole Release Decision-Making: Rehabilitation, Expertise, and the Demise of Mythology, in
PAROLE 76, 81 (William E. Amos & Charles L. Newman eds., 1975) (noting that parole board
members “are constantly concerned with being conned by the inmate, who may, for example,
purposefully cause disruption . . . , and then follow this with a period of model behavior so as to
demonstrate his reformation, or who may initiate other deceptive activities to demonstrate that
he has been rehabilitated”). See generally Porter et al., supra note 235 (discussing the ability of
parole officers to detect deception in parole interviews).
238. Behavioral decision-making theorists have also shaped the understanding of denial in
recent years. See Manuel Utset, A Theory of Self-Control Problems and Incomplete Contracting: The Case
of Shareholder Contracts, 2003 UTAH L. REV. 1329, 1368 n.143.
239. Id.
240. See, e.g., Mary Sigler, Just Deserts, Prison Rape, and the Pleasing Fiction of Guideline
Sentencing, 38 ARIZ. ST. L.J. 561, 567 (2006) (“Certain categories of offenders are known to be
more vulnerable [to prison rape], including sex offenders, especially those who have victimized
children.”); cf. Alice Ristroph, Sexual Punishments, 15 COLUM. J. GENDER & L. 139, 146–61 (2006)
(providing a fascinating analysis of the multifaceted aspects of sex in prison and suggesting that
the environment is highly sexualized, and not solely for sex offenders). In addition, there may
be other disincentives for sex offenders to admit guilt, including the imposition of onerous
requirements as a condition of parole. See, e.g., Erica Beecher-Monas & Edgar Garcia-Rill, Genetic
Predictions of Future Dangerousness: Is There a Blueprint for Violence?, 69 LAW & CONTEMP. PROBS.
301, 305 n.20 (2006) (“[A] voluntary sterilization statute mandating castration as a condition of
parole for repeat sex offenders was enacted in California in 1996. Florida, Georgia, and
Montana have similar statutes.” (internal citations omitted)).
241. See Sanger, supra note 17, at 111 (“[T]he ‘hardened criminal’ who will not
demonstrate remorse may, in some cases, simply have immense integrity.”); see also Friedman,
supra note 7, at 187 (“While the failure to admit responsibility for committing an offense may
signal the lack of emotional growth, there are times when such refusal may signal the exact

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even more dangerous is the chance that an innocent prisoner’s persistence
in his innocence may flag over the years and over the course of recurring,
disappointing appearances before the parole board—that the enticement to
succumb and “admit” guilt may eventually prove irresistible, as occurred in
Bruce Dallas Goodman’s case.
The reality of innocent prisoners “admitting” guilt during the parole
process should be a matter of grave concern. Granted, this form of
deception is understandable in light of current norms at parole release
hearings. Deception by innocent prisoners at parole hearings arguably acts
as a form of “self-defense,” a necessary maneuver in the battle for survival.242
For the innocent inmate facing the parole board, false cries of remorse and
responsibility are also justified on basic utilitarian grounds given that the
direct results of lying (possible liberty) largely trump those of telling the
truth (continued incarceration).243 Parole hearing officers themselves may
suffer limited tangible harm from these fabrications, as prisoners’
admissions of guilt reinforce and validate the institutional presumption that
the individuals appearing before parole boards are factually guilty.244
Even so, the effects of such deception by innocent inmates are not
entirely neutral, let alone positive. In order for expressions of remorse and
acceptance of responsibility by an injurer to have the greatest constructive
impact on the injured, those statements should be genuine.245 Where a
crime victim is deluded into thinking an innocent person was the
wrongdoer, any benefits achieved by fraudulent statements of remorse and
responsibility would be dashed in the event the actual perpetrator is ever
apprehended.246 Additionally, while the incentive to admit guilt before
parole boards may lead to exchanges at release hearings that confirm the
belief that all inmates are guilty, such a belief is erroneous, as indicated by
the hundreds of post-conviction exonerations of inmates since 1989.247

opposite. History has shown that despite the criminal justice system’s best efforts, a certain
number of innocent criminal defendants do get convicted.”).
242. The philosopher Sissela Bok has explored the question of deception and noted that,
like violence, deception “can be used also in self-defense, even for sheer survival.” SISSELA BOK,
LYING: MORAL CHOICE IN PUBLIC AND PRIVATE LIFE 19 (1978).
243. See id. at 50–59.
244. See supra notes 6–7 and accompanying text.
245. See supra notes 17–18 and accompanying text; cf. Bibas, supra note 88, at 171 (“Even
insincere admissions of guilt involve lowering denial mechanisms, opening the path to reform,
and bringing closure to victims and the community.”).
246. In addition, rewarding false claims of remorse and repentance undermines the
strength and impact of legitimate expressions of contrition. See, e.g., Murphy, supra note 230, at
379 (“[T]o the degree that we hand out rewards to those who fake repentance and remorse,
then to that same degree do we cheapen the currency of repentance and remorse—making us
less likely to treat the real article with the respect it deserves.”).
247. See supra notes 12–13 and accompanying text. Moreover, the perception that inmates
lie at parole hearings—whether it is the guilty feigning contrition or the innocent falsely

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Improperly certifying this view therefore provides a disservice to all involved.
The pursuit of “truth” is a normative value in and of itself, and one that
ought to be fostered, where possible, throughout the criminal justice
system.248
Finally, on a practical level, the reason why admitting guilt before a
parole board can be devastating in the long-run for an innocent prisoner
relates to the collateral consequences of that admission. Even if in the bestcase scenario the admission of guilt inspires the parole board to release the
inmate, the confession now belongs in the inmate’s official parole file and is
accessible by prosecutors. Should the defendant subsequently seek to prove
innocence through a post-conviction remedy, prosecutors may rely on the
inculpatory statement in formulating their response, potentially spoiling any
attempt at exoneration.249
IV. SUGGESTIONS FOR REFORM
Overall, the value placed on prisoners’ admissions of guilt in the parole
release decision has some deleterious consequences, not the least of which is
that it penalizes innocent prisoners for failing to accept responsibility for
crimes they did not commit. A portion of those innocent inmates
undoubtedly falter over time, worn down by a parole system demanding an
acknowledgment of guilt, and they give the parole board what it seeks. To
the extent that those admissions of guilt are disclosed to prosecutors and
judges, the price paid by the inmate may be inordinately high—the longterm opportunity for exoneration through litigation sacrificed at the shortterm altar of an increased chance of parole.
What, then, should parole commissioners do? Put aside all issues of
guilt or innocence at the parole release hearing and dismiss any prisoner’s
claim to accept responsibility for the underlying act as a factor in the
decision? The answer to this last question is quite possibly yes. The
aforementioned empirical study from a comparable foreign jurisdiction,
Great Britain, shows no significant correlation between denials of guilt in
the parole process and future recidivism.250 Moreover, the oft-cited inability
of people to detect deception both generally and at parole hearings in
particular signifies that parole hearing examiners are ill-equipped to
evaluate the authenticity of inmate admissions of guilt and that manipulative
prisoners may easily fool them into reaching imprudent release decisions.251
As Queen Elizabeth I declared during an era of religious unrest in England,
confessing—might adversely affect parole commissioners, spurring them to become even more
cynical about the merits of the population they are required to serve.
248. As Aristotle observed, “Falsehood is in itself mean and culpable, and truth noble and
full of praise.” BOK, supra note 242, at 24.
249. See supra II.B (discussing the Bruce Dallas Goodman case).
250. See supra notes 227–28 and accompanying text.
251. See supra notes 232–37 and accompanying text.

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“I would not open windows into men’s souls.”252 This warning appears fitting
for parole commissioners who, in opening windows into inmates’ souls, may
dislike what they find or, worse, become blinded by deceit.
It may be unrealistic, however, to propose that parole boards
completely ignore prisoner statements on the topic of guilt or innocence.
The concepts of remorse and responsibility are too deep-seated within the
fabric of American culture (and entrenched throughout the criminal justice
system) to expect parole boards to disregard those matters altogether. The
reform proposals advanced below instead aim to stop the bleeding and heal
the most severe wound spawned by the current regime—the catch-22 faced
by innocent prisoners.
A. LIMITATIONS ON THE SUBSEQUENT USE OF STATEMENTS FROM PAROLE HEARINGS
As mentioned throughout this Article, innocent prisoners face a
daunting dilemma when confronting parole boards. Refusing to
acknowledge guilt will likely hinder an inmate’s chance for parole, whereas
taking responsibility for the underlying criminal act may paradoxically
enhance the prospect of release and impair any future attempt at
exoneration given that the contents of the parole file are often readily
available to prosecutors.253 Merely expressing remorse for the victim’s
predicament—short of taking individual responsibility for the crime—could
damage a prisoner’s subsequent efforts to clear his name through the
courts, depending upon the prosecutorial interpretation (or
characterization) of the statement.
One potentially beneficial reform might consist of restricting
prosecutorial access to inmate statements regarding guilt or innocence at
parole hearings. On the one hand, limiting prosecutorial access in this
manner could promote several desirable goals. First, it might remove any
latent disincentive for innocent prisoners to convey empathy for the victim
or even just sadness about the underlying incident for fear that the
statement would be construed as an admission of guilt and used against him
in later post-conviction litigation. Second, innocent prisoners would no
longer suffer a penalty in the post-conviction arena for caving in to the
temptation to admit guilt at the parole hearing solely in order to raise the
odds of a favorable outcome. Third, considering the acute pressure on all
prisoners (whether innocent or not) to “admit” guilt to mollify parole
officials, these statements themselves may lack credibility and possess
minimal evidentiary value at a post-conviction proceeding.
On the other hand, curbing the subsequent use of these statements at
post-conviction proceedings could, at the extreme, produce a further

252. See Murphy, supra note 230, at 376 (quoting this statement made by Queen Elizabeth I
after stabilizing the Church of England through the imposition of the Settlement).
253. See supra notes 180–81 and accompanying text.

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incentive for inmates to lie. After implementation of this reform, an
innocent prisoner could “admit” guilt at a parole hearing with few if any
resulting costs. Creating additional incentives—or at least eradicating
disincentives—for inmates to tell the parole board what it wishes to hear,
irrespective of the truth, could serve to intensify the pressure on innocent
prisoners to accept responsibility. This, in turn, might undermine the
integrity of the parole hearing to the extent that the event is concerned with
plumbing the depths of the inmate’s state of mind and unearthing the
perceived truth about his readiness to live again in the free world. That
being said, the “truth” about guilt or innocence, as well as about remorse or
the lack thereof, is already inherently compromised in the contemporary
parole decision-making process, a scheme where crocodile tears by the guilty
are rewarded and steadfast assertions of innocence engender reprimand.254
B. DISENTANGLING ADMISSIONS OF GUILT FROM EXPRESSIONS OF EMPATHY
Although it may be problematic to rely on a prisoner’s admission of
guilt as a condition to release on parole given the pressure inflicted by this
practice on the actually innocent, encouraging inmates to communicate
empathy to crime victims as part of this process has much to recommend it.
In this Article, I have referred to the concepts of acceptance of responsibility
and expressions of remorse without necessarily emphasizing the distinctions
between them. I have done so, largely, because parole boards often conflate
these two ideas and allocate them in tandem to the broad category of
rehabilitation.255 Likewise, scholars seldom separate the two concepts,
frequently collapsing responsibility and remorse together.256
Admittedly, there are good reasons for exploring remorse and
responsibility through the same theoretical lens in the context of parole.
Responsibility and remorse at first blush point to the same core goal in the
parole release assessment—the hope that the aspiring parolee shows
maturity and humanity. In other words, we as a society expect a certain
254. To draw upon J.L. Austen, truth for the aspiring parolee under current conditions is
“an illusory ideal.” J.L. AUSTEN, Truth, in PHILOSOPHICAL PAPERS 98 (2d ed. 1961).
255. See supra notes 26–27 and accompanying text.
256. See, e.g., Richard B. Bilder, The Role of Apology in International Law and Diplomacy, 46 VA.
J. INT’L L. 433, 438 (2006) (discussing the components of an apology and noting that these
elements often include “(1) admitting . . . fault or blameworthiness and accepting responsibility
for a specific injury to another or others, . . . ; (2) expressing sincere remorse and regret for the
injurious action or inaction and the other’s injury; and (3) offering appropriate reparation and
promising that the wrong done will not recur in the future”); Susan J. Szmania & Daniel E.
Mangis, Finding the Right Time and Place: A Case Study Comparison of the Expression of Offender
Remorse in Traditional Justice and Restorative Justice Contexts, 89 MARQ. L. REV. 335, 338 (2005)
(“We focus on offender remorse as a combination of several communicative elements including
apology, regret, and sorrow.”); cf. Murphy, supra note 230, at 383 (“[A]pology is something quite
different from remorse and repentance. Remorse is an internal mental state and repentance is
an internal mental act, both aspects of character that often have external manifestations but are
not themselves external. Apology is, however, a purely external performance . . . .”).

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amount of awareness on the part of our citizens, an appreciation for one’s
own frailties paired with empathy for the suffering of others. Even more,
responsibility and remorse seem to build upon one another; it could be
alleged that in order to be genuinely remorseful about an underlying act, a
person must first admit the degree to which he participated in the event and
caused any harm.257
Yet responsibility and remorse can and should be subject to different
analytical frameworks, for they are not intrinsically codependent concepts,
nor do they possess equivalent relative values in the parole release decisionmaking equation. That is, if one views remorse as encompassing general
notions of sorrow or regret,258 then one may arguably feel and articulate
remorse (or, more accurately, empathy) about a person’s plight without
acknowledging culpability or even objectively being at fault. As a crude
example, assume that one of my first-year students fares poorly on a final
examination. Suppose further that I respect his diligence and dedication to
the study of law. I may display sincere remorse about his performance on a
test that I designed and administered while also honestly believing that I
crafted a fair exam and devoted ample time to scoring each student paper
accurately. The fact that I have not accepted responsibility in any way
whatsoever for the student’s performance may be a source of
disappointment for the student, but that does not diminish the possibility
that my regret about the outcome and overall compassion can have a potent
therapeutic impact and aid the student in overcoming the blow to his selfconfidence.
Similarly, expressions of sorrow and empathy can help victims
tremendously throughout the criminal justice process, including during
parole hearings.259 In recent years, much has been written about the need to
integrate the wishes and interests of victims more overtly into the criminal

257. See, e.g., Szmania & Mangis, supra note 256, at 340 (“Remorse can be expressed
through the emotion of sorrow. Sorrow is a component part—‘the energizing force’—of an
apology.”).
258. This is by no means a universally accepted vision of remorse. Scholars often link a
person’s ability to display remorse to some underlying wrongdoing by that person. See, e.g.,
Jeffrie G. Murphy, Remorse, Apology, and Mercy, 4 OHIO J. CRIM. L. 423, 438 (2007). Murphy
notes:
Remorse . . . is . . . often best understood as the painful combination of guilt and
shame that arises in a person when [he] accepts that he has been responsible for
seriously wronging another human being—guilt over the wrong itself, and shame
over being forced to see himself as a flawed . . . human being.
Id.
259. See, e.g., Stephanos Bibas & Richard A. Bierschbach, Integrating Remorse and Apology into
Criminal Procedure, 114 YALE L.J. 85, 87 (2004) (“Victims and victimized communities have long
viewed remorse and apology as essential elements of justice for crimes. For example, one victim
who was sexually abused by a priest demanded expressions of remorse to help him find closure
and heal.”).

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justice system.260 Victims’ rights advocates have clamored for, among other
things, legislation expanding notification to victims about court proceedings
and creating a greater role for victims at sentencing.261 Proponents of the
“Restorative Justice” movement have put a premium on encouraging
offenders to make amends to their victims and strive to “restore” the moral
equilibrium toppled by their indiscretions through remorse and apology.262
Permitting, even encouraging, prisoners to communicate sorrow and
empathy about the underlying crime at parole hearings without compelling
prisoners to admit guilt would retain many of the restorative virtues served
by empathy to a victim, yet this would not unduly hurt innocent inmates.
Specifically, disentangling statements of remorse from those of responsibility
(and valuing the former over the latter) could both promote the interests of
victims and prevent the potential catch-22 faced by an innocent prisoner
when asked, point blank, to comment on whether he is guilty. Conceptually
separating remorse from responsibility is one thing; practically doing so as
part of the parole release decision and development of a record for the file
is something else. Branding remorse/empathy and responsibility as separate
categories in the parole file may be a step in the right direction,263 as would
be training parole officers to steer their inquiries toward the issue of
remorse as opposed to responsibility.
It must be conceded that, even assuming remorse and responsibility
could be segregated in the parole release assessment, this proposed reform
260. See, e.g., Douglas E. Beloof, The Third Wave of Crime Victims’ Rights: Standing, Remedy, and
Review, 2005 BYU L. REV. 255, 257 (“The crime victims’ rights movement worked to enact rights
in two waves. The first wave provided victims with statutory rights . . . . The second wave resulted
in thirty-three state constitutional amendments that contain some kind of victims’ rights
provision.”).
261. Victims often have the right to attend criminal trials and sentencing hearings. See
generally DOUGLAS E. BELOOF, VICTIMS IN CRIMINAL PROCEDURE (1st ed. 1998); Douglas E.
Beloof & Paul G. Cassell, The Crime Victim’s Right to Attend the Trial: The Reascendant National
Consensus, 9 LEWIS & CLARK L. REV. 481 (2005). Some states have even amended their
constitutions to explicitly acknowledge the importance of victims’ rights. See, e.g., Parsonage et
al., supra note 229, at 188 (“By 1989, Arizona, California, Florida, Michigan, Rhode Island, and
Washington had amended their state constitutions to provide for restitution, and the right to be
treated with integrity and be heard in the criminal justice process.”).
262. See Bibas & Bierschbach, supra note 259, at 103 (“Restorativists consider apology and
remorse important as part of a holistic process. They hope that offenders will recognize the
wrongfulness of their conduct, make amends with their victims and the community, and try to
restore the moral balance by making actual or symbolic reparations.”); Erik Luna, Punishment
Theory, Holism, and the Procedural Conception of Restorative Justice, 2003 UTAH L. REV. 205, 206
(examining how restorative justice may represent a holistic process that can blend various
punishment theories and resolve particular cases favorably). For a more skeptical view of
restorative justice, see Dan Markel, Wrong Turns on the Road to Alternative Sanctions: Reflections on
the Future of Shaming Punishments and Restorative Justice, 85 TEX. L. REV. 1385, 1404–11 (2007).
263. For example, the Utah Board of Pardons and Parole seemingly distinguishes between
acceptance of responsibility and expressions of remorse in its parole release decision. See
Rationale Sheet, supra note 95 (listing “[e]xtent of remorse and apparent motivation to
rehabilitate” as a factor).

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is far from perfect. For one thing, incentives would remain for inmates to
feign empathy to increase the likelihood of a favorable decision.264 Also,
victims might not wholly welcome this change. Crime victims stand to
benefit from admissions of guilt by wrongdoers—perhaps to a greater extent
than from generalized expressions of regret. All the same, allowing parole
officials to credit prospective parolees for showing empathy for the victim
without accepting responsibility for the crime, if not ideal, would represent a
vast improvement over the current practice by directly eliminating the
penalty imposed on the factually innocent.
C. ALTERING THE APPROACH OF PAROLE BOARDS TO MATTERS OF
GUILT OR INNOCENCE
Instead of neglecting prisoner statements regarding criminal
responsibility altogether in the parole release decision, which might be naïve
to recommend in today’s criminal justice landscape, parole boards could
take the opposite approach and view them essentially as issues worthy of
further scrutiny.265 Parole boards could be exhorted—and empowered—to
undertake more thorough searches, taking neither admissions of guilt at
face value nor assertions of innocence as delusional thinking per se,
provided, however, that such inquiries are limited solely to the question of
suitability for release on parole rather than any formal determination of
guilt or innocence. To facilitate parole boards in digging deeper into claims
of innocence for the objective of assisting in release decisions, three possible
reforms come to the fore: (1) expanding the scope and duration of parole
release hearings where innocence is at issue, (2) enhancing the investigative
authority and resources of parole boards with respect to assessing innocence
claims, and (3) advising parole boards to refer potentially meritorious
innocence claims to agencies or organizations better equipped to subject
them to rigorous evaluation.
To clarify, this proposed expansion of parole board authority would
serve only the narrow purpose of helping to discern whether claims of
innocence at parole hearings have credence and thus whether such
assertions should be held against the prospective parolee in the release
decision. In no way would this alteration usurp or undermine the role of the
court system in resolving legal questions of guilt or innocence.

264. See, e.g., Murphy, supra note 230, at 378–79 (describing the problems with creating
systemic incentives for wrongdoers to fake remorse); Bryan H. Ward, Sentencing Without Remorse,
38 LOY. U. CHI. L.J. 131, 131–33 (2006) (arguing that remorse should not be a factor in criminal
sentencing for a variety of reasons, including the subjectivity involved in assessing remorse and
the risk of inmates feigning remorse).
265. See, e.g., Godsey, supra note 100 (indicating that the parole board in Ohio “has on
some occasions, unlike some other parole boards, shown a willingness to . . . recognize that
sometimes wrongful convictions occur”).

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1.

547

Modifying the Structure of Parole Release Hearings

Parole release hearings are normally brief affairs, as indicated by the
aforementioned study of Colorado’s swift processing of parole board
appearances by inmates.266 Some states allow parole hearings and release
decisions to occur without any live appearance by the inmate.267 Prisoners in
most states, though, have a statutory right to participate at parole release
hearings, even if they are only allocated a few minutes to present a case.268
Infamously, the Attica Commission that studied prison conditions in New
York State revealed that the average amount of time expended by the parole
board panel to read a prisoner’s file, interview the applicant, and render a
decision was 5.9 minutes.269 A report on the Kansas parole system depicted a
similar scene, finding that parole officials in that state devoted an average of
two to three minutes per release hearing and handled as many as 135
hearings in a single day.270 Without a doubt, this is insufficient time for an
inmate to develop a plausible theory of innocence, much less convince
parole commissioners of that theory’s merit.271 After a prisoner appears
before the parole board, the prosecution and the victim or victim’s family
often have the right to put forward their position and may refer to hearsay
and other potentially unreliable evidence in this presentation.272 Inmates in
numerous jurisdictions are not even afforded the opportunity to rebut this
evidence.273 What is more, although prisoners at state parole hearings may
be entitled to present documentary evidence on their behalf, such as
affidavits from witnesses, they are typically denied the chance to call live
witnesses.274

266. See supra note 74 and accompanying text.
267. See, e.g., Mahaney v. State, 610 A.2d 738, 742 (Me. 1992) (finding that a state statute
requiring a parole board hearing prior to denying an inmate parole does not entitle an inmate
to a personal appearance and that such a rule fails to violate due process).
268. See COHEN, supra note 1, § 6:18, at 6-27 to 6-30 (discussing variations in the state
statutory rights regarding individual appearances before parole boards); Godsey, supra note 100
(noting that inmates typically only receive a few minutes to present a case before parole
boards).
269. N.Y. STATE SPECIAL COMM’N ON ATTICA, ATTICA, THE OFFICIAL REPORT OF THE N.Y.
STATE SPECIAL COMM’N ON ATTICA 96 (1972); see Garber & Maslach, supra note 71, at 269
(finding that parole officers in 100 randomly selected California release hearings deliberated
for an average of 1.5 minutes per case in reaching their decisions).
270. Julio A. Thompson, Note, A Board Does Not a Bench Make: Denying Quasi-Judicial
Immunity to Parole Board Members in Section 1983 Damages Actions, 87 MICH. L. REV. 241, 251 n.61
(1988). Thompson acknowledges, however, that “[a]verages vary from state to state. Two states
with more thorough systems, Michigan and Wisconsin, have been known to spend an average of
10-20 minutes per hearing.” Id.; see also ROTHMAN, supra note 34, at 164–65 (citing some
examples of how quickly state parole boards disposed of parole applications in the 1930s).
271. Godsey, supra note 100.
272. Id.
273. Id.
274. See, e.g., COHEN, supra note 1, § 6:18, at 6-30 n.25.

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The streamlined procedures that cabin a prisoner’s ability to develop a
case of innocence at state parole hearings reflect the institutional disdain for
the idea of relitigating factual questions of guilt or innocence in this
forum.275 Nonetheless, this principle deserves reconsideration for the
reasons stated throughout this Article—in particular, to avoid punishing the
actually innocent and, rather, to facilitate their potential release. To
elaborate, parole boards should contemplate modifying the structure of
release hearings in cases where a prisoner intends to claim actual innocence.
For instance, states could allow inmates who wish to claim innocence to
provide notice to authorities beforehand. With such advance notice, parole
boards could adjust their hearing calendar to accommodate those inmates’
needs for additional time, and prisoners might enjoy a new or expanded
right to rebut the prosecution’s case, call live witnesses, or request the
assistance of counsel at those particular hearings.276
Skeptics of this proposal might contend that altering the format of
parole release hearings in this fashion would spur virtually all prisoners to
assert innocence given that they would apparently have little to lose and
much to gain. On the contrary, a built-in incentive exists for only the
actually innocent to pursue this option; presumably, inmates with
unsubstantiated innocence claims would jeopardize their chances for release
by failing to set forth convincing evidence of innocence. The factually guilty,
in effect, would be “better off” under the traditional parole hearing
structure in which admissions of guilt are treated more favorably than pleas
of innocence.
The chief downside with adjusting parole release hearings in the
manner proposed above is that the change might be perceived as intruding
upon the activities of the entities whose customary duties revolve around
debating and determining factual questions of guilt or innocence: courts
and juries.277 A state executive agency re-evaluating previously adjudicated
factual issues may be seen as usurping judicial power, generating a sea
change in the parole board’s place within the criminal justice system, not to
mention a smattering of ill will. This shift in the function of parole boards
might transform them into more active parts of the adversarial process than
they are at present and than may be politically and institutionally tolerable.
But as long as this modified parole hearing structure were restricted to the
narrow question of whether a prisoner claiming innocence deserves release

275. Id.
276. Calls for the general expansion of procedural protections for inmates at parole release
hearings have reverberated for decades. See, e.g., Garber & Maslach, supra note 71, at 263
(noting a 1975 recommendation by the California State Bar Association for parole “release
review hearings in which the prisoner was entitled to procedural due process, representation by
counsel, and the right to call and cross-examine relevant witnesses”).
277. See supra notes 6–7 and accompanying text (noting the argument that guilt or
innocence should always rest with the courts).

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on parole—with no other significance attached to the result of any
particular hearing—then any concerns about undermining jurors and
judges could largely be thwarted.
2.

Enhancing Factual Investigative Powers

Boosting the investigative capability of parole boards in the criminal
justice system could not only inject valuable information into the parole
assessment process but also assist with targeting viable post-conviction
innocence claims. Many state parole boards already possess subpoena power
to compel testimony and obtain written materials,278 and a logical extension
of that power, presupposing adequate funding, might include permitting
the agency to conduct more comprehensive field investigations. This would
enable a parole board to investigate an inmate’s innocence claim after the
parole hearing yet prior to issuing a final release decision.279 Armed with this
mandate (and commensurate resources), these investigations would ideally
reach beyond mere background checks into the applicant’s employment
prospects and the like and, instead, comprise a fact-intensive exploration of
the basic criminal case. If the purported claim of innocence appeared to be
potentially legitimate, then the parole board would likely not hold the
prisoner’s refusal to accept responsibility against him in choosing whether to
grant or deny parole.280
Again, the major counterarguments to this reform lie in institutional
concerns about the ability of parole boards to conduct effective
investigations and the possible reluctance of courts and legislatures to accept
an expanded role for parole boards in delving into factual questions of guilt
or innocence.281 As noted above in regard to altering the structure of certain
parole hearings, however, such fears could be alleviated by restricting this
power to the limited issue of parole release decisions as opposed to any legal
determination of guilt or innocence.
3.

Encouraging Parole Boards to Refer Innocence Cases to Other
Agencies or Organizations

In addition to—or in lieu of—modifying the structure of parole
hearings or bolstering the investigative powers of parole boards to allow
278. See UTAH CODE ANN. § 77-27-9(3) (2007); see also COHEN, supra note 1, § 4:9, at 4-18
(“Parole boards often will be accorded the power to subpoena relevant records and witnesses.”).
279. See, e.g., Friedman, supra note 7, at 187 (finding it “troubling” that the Michigan Parole
Board relies on the presentence report from the case and “does not make its determination of
the offense’s facts by examining the official court record or by independently investigating the
offense”).
280. See id. (observing that, while no one should expect state parole boards to make
determinations of innocence, a prisoner’s claim of innocence “should not preclude the Board
from determining when a person may be safely reintegrated in the community. Many
individuals who have continuously claimed innocence have gone on to lead productive lives”).
281. See supra notes 6–7, 275 and accompanying text.

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them to explore factual assertions of innocence, another promising reform
might involve encouraging parole boards to refer innocence claims to
entities better-positioned and better-able to explore these claims. These
entities include innocence projects,282 prosecutorial “innocence” units,283
and freestanding, state-specific innocence commissions.284 Whether based
on the fruits of a full-fledged parole board investigation or simply the events
and materials contained in the prisoner’s file and presented at the parole
hearing alone, parole board referrals of potentially valid innocence claims
would contribute to the release of the actually innocent and offer muchneeded support for those organizations. Innocence projects, in particular,
normally receive legions of requests for assistance in any given year and
rarely have the resources to screen those inquiries with the requisite
thoroughness and timeliness.285
a.

Innocence Projects

The Second Look Program at Brooklyn Law School and the Rocky
Mountain Innocence Center are but two of approximately forty nonprofit
organizations in the United States dedicated to overturning wrongful
convictions.286 Dispersed throughout the country, the organizational
structures, goals, and characteristics of the various innocence projects are as
diffuse as their locations.287 Some are aligned with law schools and serve as
clinics in which students participate in the investigation and litigation of
innocence claims in exchange for academic credit.288 Others belong to
journalism schools and focus on exposing and publicizing an inmate’s claim

282. See infra Part IV.C.3.a.
283. See infra Part IV.C.3.b.
284. See infra Part IV.C.3.c.
285. See, e.g., Medwed, supra note 98, at 1102 (“Due to meager resources, innocence
projects must find the most promising cases in an efficient manner and not waste inordinate
time investigating baseless claims.”).
286. For a listing of the innocence projects in the United States and abroad, see Innocence
Project Homepage, supra note 12.
287. See id. Founded by Barry Scheck and Peter Neufeld in 1992, the Innocence Project in
New York City represents the largest and most renowned individual organization in the field,
recognized for having freed over one hundred prisoners through DNA testing nationwide and
standing at the vanguard of policy and public relations efforts to rectify the problem of
wrongful convictions. See Jan Stiglitz et al., The Hurricane Meets the Paper Chase: Innocence Projects
New Emerging Role in Clinical Legal Education, 38 CAL. W. L. REV. 413, 421 (2002) (“Cardozo Law
School started the first innocence project law school clinic in 1992. . . . The Cardozo clinical
program was, and continues to be, a tremendous success. Since its inception, the clinic has
assisted in more than one hundred cases that have led to the exoneration of an innocent
person.”).
288. For a discussion of the law school innocence project model, see generally Medwed,
supra note 98; Stiglitz et al., supra note 287.

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rather than litigating the matter,289 and still others constitute independent,
public interest organizations.290 Predictably, the matters handled by these
organizations also differ widely, as some projects concentrate solely on
regional cases and others on discrete types of cases, e.g., those with long
sentences or DNA evidence.291 The common link between these disparate
entities is a mutual commitment to aiding innocent prisoners—a link that
recently has been solidified by the formation of an umbrella organization,
the Innocence Network, devoted to pooling resources, coordinating
legislative initiatives, and sharing knowledge about litigation strategies and
techniques.292
Many innocence projects welcome pro bono assistance from other
lawyers and private investigators.293 Aside from direct assistance, innocence
projects may benefit by receiving referrals from reputable organizations
about cases of innocence.294 This process serves an important vouching
function and helps with a fundamental aspect of innocence project
activity—finding meritorious cases.295 The labor-intensive case screening
process can be debilitating for an innocence project, siphoning off precious
financial resources and time.296 Anything that accelerates this process, such
as a referral, is greatly appreciated. Also, referrals from parole boards would
likely add institutional gravitas to those innocence claims, in that a state
executive agency has already labeled those cases theoretically noteworthy,

289. For a discussion of the role that journalists might play in the criminal justice system,
see generally Warden, supra note 156. David Protess and his students from the Medill School for
Journalism at Northwestern University were instrumental in exonerating Anthony Porter, a man
wrongfully convicted of murder in Illinois. For a description of the Porter case, see Medwed,
supra note 56, at 165–68.
290. One of the most successful freestanding innocence projects is Centurion Ministries in
New Jersey, which was founded in 1983, making it the first innocence project in the country. See
Centurion Ministries, http://centurionministries.org/aboutus.html (last visited Dec. 11, 2007)
(describing the organization).
291. See Medwed, supra note 98, at 1103–09 (analyzing how and why innocence projects
may choose to impose an array of substantive restrictions on the types of cases they handle).
292. See Innocence Network Home Page, http://www.innocencenetwork.org (last visited
Sept. 25, 2007) (stating the Innocence Network’s mission and listing member organizations).
293. In fact, some innocence projects—such as the Mid-Atlantic Innocence Project in
Washington, D.C.—depend almost exclusively on the assistance of pro bono lawyers in litigating
their cases. See, e.g., Mid-Atlantic Innocence Project: About the Innocence Project, http://www.
exonerate.org/about-2/ (last visited Sept. 25, 2007) (asserting that the Mid-Atlantic Innocence
Project is “run through a network of [pro bono] attorneys and law students”).
294. Medwed, supra note 98, at 1115 (mentioning the importance of innocence projects
receiving referrals from well-regarded individuals or organizations).
295. Id.
296. Id. at 1114–23 (analyzing the case screening process of innocence projects).

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and thereby help innocence projects in later presenting those cases to
prosecutors and judges.297
Urging parole boards to refer potentially valid cases to innocence
projects may, to be sure, run afoul of the traditional division of power in the
criminal justice system.298 In essence, prodding a state agency to recommend
cases to an innocence project would seemingly fuse the activities of law
enforcement and defense counsel in an unusual, and perhaps controversial,
fashion. This concern withers, however, in the face of further examination.
Advocating the use of referrals hardly represents a commingling of interests
and fails to impinge on the jurisdiction of other parties (courts and juries)
that might occur if, as previously suggested, the factual investigative powers
of parole boards were vastly expanded.299 More significantly, it is difficult to
refute the normative argument that the ends justify the admittedly odd
means; no one “wins” through the continued incarceration of an innocent
person, and society as a whole, including the government, gains from
exposing and overturning those cases whether through the parole process or
through the courts.300
b.

Prosecutorial “Innocence” Departments

Along the lines of encouraging parole boards to recommend cases to
innocence projects that may decide to represent the individual prisoner in
litigation, prosecutors’ offices themselves are another possible repository for
parole board referrals—and a forum that lacks any attendant perceived
conflict of interests. In recent years, a number of prosecutorial offices have
opened internal “innocence” units or “backlog” projects designed to review
pre-existing cases in order to unearth viable claims of innocence in their

297. Id. at 1115 (discussing the significant “vouching function” served by referrals because
“[a] lawyer, presumably a respected and experienced one, has already reviewed the claim and
determined it may be worth pursuing”).
298. See supra notes 6–7 and accompanying text (discussing the role parole boards play and
the processes they employ in making their decisions).
299. See supra notes 275–77 and accompanying text (suggesting changes in parole hearing
procedures when the prisoner claims innocence).
300. As I have written regarding the need for collaboration between prosecutors and
defense attorneys:
A dialogue between these traditional adversaries may help to show that, despite any
differences between the two camps generally, they stand on common ground when
it comes to post-conviction innocence claims: no one wins when an innocent
person remains in prison. Instead of the “zeal deal,” the real deal for prosecutors
and defense attorneys operating in the domain of post-conviction innocence
claims should be a willingness to work together, on occasion, and a mutual
recognition that actually innocent people are languishing in our prison system.
Medwed, supra note 56, at 183.

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jurisdictions.301 Some of these efforts have been successful. In 2002, the
Ramsey County District Attorney’s Office in St. Paul, Minnesota,
spearheaded the first prosecutor-initiated exoneration in the country, asking
a state trial judge to vacate a 1985 rape conviction after a DNA test verified
the defendant’s innocence.302 Similar inquiries led by prosecutors in
Houston and New York City have produced reversals of wrongful
convictions.303 Provided that the popularity of forming prosecutorial
innocence wings grows over time,304 active participation by law enforcement
in overturning wrongful convictions will become even more pronounced.
Notifying prosecutors in charge of handling post-conviction matters about
potentially legitimate innocence claims would allow parole boards to foster
the pursuit of justice without exceeding the parameters of their authority.
c.

Innocence Commissions

Cognizant of the wave of post-conviction exonerations of innocent
prisoners since the late 1980s, groups of scholars and activists have
advocated the creation of state-specific “Innocence Commissions” to review
those cases with the twin goals of understanding the factors that led to the
miscarriages of justice in the first place and proposing changes to prevent
those factors from causing more errors in the future.305 This vision of an
innocence commission is entirely retrospective; it aims to study wrongful
convictions after they have been overturned in a manner akin to that of the
National Transportation Safety Board, the federal agency that assesses “what

301. See, e.g., Judith A. Goldberg & David M. Siegel, The Ethical Obligations of Prosecutors in
Cases Involving Postconviction Claims of Innocence, 38 CAL. W. L. REV. 389, 394 n.21 (2002)
(mentioning sources listing prosecutor-initiated reviews); Seth F. Kreimer & David Rudovsky,
Double Helix, Double Bind: Factual Innocence and Postconviction DNA Testing, 151 U. PA. L. REV. 547,
557–60 (2002) (noting prosecutor reviews in Minnesota as well as San Diego and Orange
County, California); Medwed, supra note 56, at 125–26 & n.3 (discussing prosecutor-initiated
reviews of DNA evidence); Peter Neufeld, Legal and Ethical Implications of Post-Conviction DNA
Exonerations, 35 NEW ENG. L. REV. 639, 641 (2001) (“Increasingly, progressive-minded
prosecutors around the country are setting up their own ‘innocence projects.’”).
302. See Medwed, supra note 56, at 125–26 & nn.1–4 (discussing the exoneration); see also
Paul Gustafson, DNA Exonerates Man Convicted of ’85 Rape, STAR TRIB. (Minneapolis), Nov. 14,
2002, at 1A (same); Jodi Wilgoren, Prosecutors Use DNA Test to Clear Man in ’85 Rape, N.Y. TIMES,
Nov. 14, 2002, at A22 (same).
303. Medwed, supra note 56, at 126 n.3; see also Adam Liptak, Houston DNA Review Clears
Convicted Rapist, and Ripples in Texas Could Be Vast, N.Y. TIMES, Mar. 11, 2003, at A14 (discussing
an exoneration in Houston); Nick Madigan, Houston’s Troubled DNA Crime Lab Faces Growing
Scrutiny, N.Y. TIMES, Feb. 9, 2003, at A20 (same); Robert D. McFadden, DNA Clears Rape Convict
After 12 Years, N.Y. TIMES, May 20, 2003, at B1 (discussing an exoneration in New York City).
304. See Medwed, supra note 56, at 175–77 (discussing the benefits of internal prosecutorial
innocence units).
305. See, e.g., Keith A. Findley, Learning from Our Mistakes: A Criminal Justice Commission to
Study Wrongful Convictions, 38 CAL. W. L. REV. 333, 351–53 (2002) (arguing for the use of such
commissions); Barry C. Scheck & Peter J. Neufeld, Toward the Formation of “Innocence
Commissions” in America, 86 JUDICATURE 98, 98–105 (2002) (same).

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went wrong” after an airplane crash.306 During the past decade, twelve states
have formed innocence commissions of this nature.307 Most of these
organizations are bipartisan associations of law enforcement specialists,
academics, retired judges, politicians, and community activists charged with
conducting post-mortem reviews of previously overturned wrongful
convictions, isolating the flaws in those cases, and recommending systemic
changes.308 The suggestions put forth by state innocence commissions thus
far include measures to revamp the manner in which eyewitness
identification procedures are conducted.309
Several other observers have lobbied for a different conception of
innocence commissions: organizations with authority to behave proactively
to uncover existing wrongful convictions in the jurisdiction.310 Under this
model, independent, quasi-judicial bodies investigate claims of innocence
and refer the most meritorious of them to the courts.311 Many supporters of
this model wish to emulate the example of Great Britain’s Criminal Cases
Review Commission (“CCRC”). The British Parliament established the
CCRC in 1995 as “‘an independent body investigating suspected
miscarriages of justice in England, Wales and Northern Ireland.’”312 Of the
first forty-nine cases that the CCRC investigated and found worthy of referral
to the Court of Appeal, the appropriate court for post-conviction review in
the country, thirty-eight of them resulted in quashed convictions.313 This
306. See Scheck & Neufeld, supra note 305, at 98–99 (contrasting investigations into
airplane crashes with investigations into the criminal justice system).
307. See Robert C. Schehr, The Criminal Cases Review Commission as a State Strategic Selection
Mechanism, 42 AM. CRIM. L. REV. 1289, 1299 (2005) (listing the twelve states).
308. Id.; see also Statewide Panel to Study Ways to Prevent Wrongful Convictions, TRIB. REV.
(Greensburg, Pa.), Nov. 28, 2006, available at 2006 WLNR 20575319 (discussing the
announcement of an advisory committee designed to study wrongful convictions in
Pennsylvania and noting that “[t]he commission of about 30 members is to be drawn from the
state’s prosecutors, defense lawyers, judges, corrections officials, police, victim advocates and
others”).
309. See Andrew E. Taslitz, Eyewitness Identification, Democratic Deliberation, and the Politics of
Science, 4 CARDOZO PUB. L. POL’Y & ETHICS J. 271, 316 (2006) (describing states’ efforts at
reform); see also Jon B. Gould, After Further Review: A New Wave of Innocence Commissions, 88
JUDICATURE 126, 126–28 (2004) (discussing the reports completed by the Illinois, North
Carolina, and Virginia commissions).
310. See, e.g., Lissa Griffin, The Correction of Wrongful Convictions: A Comparative Perspective, 16
AM. U. INT’L L. REV. 1241, 1302 (2001) (arguing that the organization should “receive credible
new evidence of innocence, regardless of when it is discovered”); David Horan, The Innocence
Commission: An Independent Review Board for Wrongful Convictions, 20 N. ILL. U. L. REV. 91, 110
(2000) (explaining that “the system should have a safety net or a fail-safe to catch wrongful
convictions without relying on elected officials or the overburdened courts”).
311. See supra note 310 and accompanying text.
312. Horan, supra note 310, at 92 (quoting Criminal Appeal Act, 1995, c. 35, §§ 8–25
(Eng.)).
313. See Griffin, supra note 310, at 1275–92. As of the end of April 2004, the Commission
had reviewed 6095 applications and referred 228 of them to an appellate court. David Kyle,
Correcting Miscarriages of Justice: The Role of the Criminal Cases Review Commission, 52 DRAKE L. REV.

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high rate of exoneration implies both that the CCRC is adept at ferreting
out legitimate cases and that the judiciary holds its recommendations in
high regard.
Although several of the state innocence commissions operating in the
United States today have some degree of investigative power, none of them
truly resembles the CCRC.314 North Carolina appears on the cusp of forming
a commission comparable to the CCRC in its ability to investigate potential
wrongful convictions and refer cases to the courts.315 The North Carolina
Innocence Inquiry Commission, which received legislative and gubernatorial
approval in the summer of 2006, is entrusted with the duty of assessing
claims of innocence predicated on new evidence unavailable at the time of
trial.316 If a majority of the proposed eight-member committee (consisting
of, inter alia, a judge, prosecutor, and defense lawyer) considers a case
sufficiently credible, the state’s chief justice would be obligated to appoint
three judges to review it.317 Only a unanimous finding of “clear and
convincing evidence” of innocence by those three judges would generate a
reversal of the conviction.318 It remains to be seen whether the North
Carolina initiative will produce outcomes analogous to those in Great
Britain, but to the extent that it prospers—and spawns offspring in other
jurisdictions—innocence commissions might represent appropriate
organizations for parole commissioners to contact when presented with
potentially legitimate innocence claims at parole hearings.319
CONCLUSION
The proliferation of post-conviction exonerations of innocent prisoners
since the late 1980s has revealed many of the criminal justice system’s
procedural and substantive warts. This Article has focused on one such flaw:
657, 673 (2004). Kyle, a member of the CCRC since 1997, observed that some critics of the
Commission have expressed “concerns about what they see as a low rate of referral, coupled
with the suggestion that the Commission is worried about irritating the Court of Appeal.” Id. at
674.
314. See generally Schehr, supra note 307 (comparing the CCRC and its U.S. counterparts).
315. See, e.g., Christine C. Mumma, The North Carolina Actual Innocence Commission:
Uncommon Perspectives Joined by a Common Cause, 52 DRAKE L. REV. 647, 652–54 (2004) (discussing
the unique accomplishments of the Commission); Andrea Weigl, Innocence Panel Closer to Reality
After Senate Vote, NEWS & OBSERVER (Raleigh, N.C.), July 11, 2006, at A1 (“The only similar entity
exists in England.”).
316. See, e.g., Andrea Weigl et al., Easley Signs Law Creating Innocence Panel, NEWS &
OBSERVER (Raleigh, N.C.), Aug. 4, 2006, at B5.
317. Id.
318. Id.
319. See Jerome M. Maiatico, All Eyes on Us: A Comparative Critique of the North Carolina Inquiry
Commission, 56 DUKE L.J. 1345, 1346 (2007) (comparing the North Carolina Innocence Inquiry
Commission with the successful CCRC and suggesting that “[f]rom a comparative perspective,
the North Carolina innocence inquiry commission should be able to match that success if it can
avoid budget and resource pitfalls”).

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the reliance of many state parole boards on prisoner admissions of guilt as a
key variable in granting release. Given the barriers that state and federal
post-conviction procedures impose on litigating innocence claims through
the courts, especially in cases lacking biological evidence capable of DNA
testing, it is likely that a sizable number of innocent prisoners remain
incarcerated; for many of them, release on parole comprises the best
opportunity for procuring their freedom. As a result, discounting the
legitimacy of prisoner assertions of innocence at parole hearings and
overvaluing acknowledgments of responsibility, as appears to be the modus
operandi for state parole boards, punishes an unknown and possibly
substantial group of inmates. Even more, it produces a true “innocent
prisoner’s dilemma.” Inmates must select between admitting guilt and
improving the chances for parole—with potentially disastrous effects on any
post-conviction innocence claim in the courts—and maintaining innocence
and essentially ruining any possibility of parole.
Restricting the use of statements from parole hearings at subsequent
post-conviction proceedings could defuse much of the impact generated by
the current catch-22. Furthermore, urging parole boards to recognize that
expressions of remorse or empathy are distinct from statements of criminal
responsibility and that the former have greater relative value in the parole
release calculus than the latter would be a beneficial development. Finally,
in situations where a prospective parolee claims innocence, merely
modifying the structure of parole release hearings, requiring parole boards
to investigate claims of innocence by prisoners more thoroughly for
purposes of the release decision, and urging parole commissioners to refer
seemingly meritorious cases to innocence projects, prosecutorial innocence
units, or state innocence commissions might partly ameliorate the dangers
in the present regime. Even if states fail to adopt those reforms, at a
minimum parole boards should be aware of the likelihood that some claims
of innocence at parole release hearings stem not from psychological denial,
but instead from a genuine and laudable reluctance to take responsibility for
a crime that one did not commit. With such awareness in place, parole
boards would presumably cease treating denials of guilt as negative factors in
the parole release decision. This would enable innocent prisoners, in turn,
to participate in the parole process with far less trepidation about the risks
of simply telling the truth.
At a fundamental level, explicit and implicit biases operate to
marginalize potentially innocent prisoners throughout the parole process.
The explicit bias derives from the institutional refusal to weigh innocencebased arguments at parole hearings; the implicit bias originates from
society’s general disapproval of criminal activity and distrust of an inmate

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once the presumption of guilt has attached after conviction.320 A pivotal step
in improving the fate of innocent prisoners when encountering parole
boards entails tackling these biases directly—aiming to remove the explicit
barriers to considering innocence in the parole release decision and to
lessen the implicit conceptual obstacles by educating parole officials that the
criminal adjudicatory system, like all systems devised by humans, is fallible.321

320. See generally Christine Jolls & Cass R. Sunstein, The Law of Implicit Bias, 94 CAL. L. REV.
969 (2006) (discussing how most people have implicit biases against traditionally disadvantaged
groups).
321. See, e.g., FELIX FRANKFURTER, THE CASE OF SACCO AND VANZETTI: A CRITICAL ANALYSIS
FOR LAWYERS AND LAYMEN 108 (1927) (“All systems of law, however wise, are administered
through men, and therefore may occasionally disclose the frailties of men. Perfection may not
be demanded of law, but the capacity to correct errors of inevitable frailty is the mark of a
civilized legal mechanism.”).