President Biden has committed his administration to countering economic and racial injustice. One area in which such injustices are notoriously and particularly prevalent is the criminal justice system, a reality all too clear for the millions of currently incarcerated Americans. Numerous studies have demonstrated the effects of systemic racism and classism on likelihood of arrest and imprisonment, but such discrimination also extends to the end of one’s sentence when an individual has the opportunity to begin their reintegration into society.
Parole is an essential component of a healthy and compassionate criminal justice system. Our system of justice relies on the understanding that those who commit crimes are—with very few exceptions—rehabilitatable and deserve a second chance at living a normal life after serving their sentences. Parole allows a prisoner who has served part of their sentence and does not pose a threat to regain their freedom under supervision. Given the generally heavy-handed nature of sentencing for those in poverty, parole is crucial (although, of course, not sufficient) for beginning to rectify injustices in sentencing decisions.
Most individuals are convicted under state laws, confined in state prisons, and subject to state-level decisions when it comes to judgements of parole or clemency. But the federal government still plays a major role in criminal justice. At the Department of Justice, the five-member Parole Commission is tasked with evaluating parole requests from prisoners under its jurisdiction, which includes those convicted of federal crimes before November 1, 1987 (the Sentencing Reform Act of 1984 eliminated parole for federal prisoners convicted as of that date), those convicted of a crime under the District of Columbia Code, those convicted of a Uniform Code of Military Justice offense, Transfer Treaty prisoners, and state offenders in the Witness Protection Program. The Commission can also revoke and set the terms for parole.
Despite this enormous power, the majority of the seats on the five-member Parole Commission have been vacant since the first year of Trump’s presidency, when Obama-era Commissioner J. Patricia Wilson Smoot’s term expired and she left the post. The Commission is currently occupied by only two Commissioners, both of whom need to agree on any actions under consideration to meet the Commission’s quorum requirement; if the hearing examiner panel recommends that a person not be granted parole and only one commissioner disagrees, that person stays in prison.
And neither of the sitting Commissioners are particularly sympathetic to the plight of the incarcerated. The current acting Chair is Bush appointee Patricia K. Cushwa, who joined the Commission in 2004. Cushwa formerly served on the Maryland Parole Commission after being appointed by then-Governor Parris Glendening as part of the conservative-led “victims’ rights” movement. Said victims’ rights movement pushes for harsher treatment of individuals accused of crimes and stricter punishments against those convicted, and its success is evident in the rise of mass incarceration. As acting Chair, Cushwa also serves as an ex officio member of the United States Sentencing Commission, which is tasked with creating sentencing guidelines for federal courts and whose mission is purportedly to reduce sentencing disparities.
The other Commissioner, an Obama appointee, is even worse than Cushwa for criminal justice reform advocates. Sen. Mitch McConnell praised the nomination of Charles T. Massarone, who joined the Parole Commission in 2012 after thirty years of working in law enforcement, including as President of the Fraternal Order of Police Lodge of Lexington from 2000 to 2004.
Fraternal Orders of Police are notoriously awful; they primarily exist to protect their members from consequences for misuse of force and racial and sexual violence, to stop police accountability or reform efforts, and to advocate for increasing police budgets to the detriment of other local programs. Beyond the question of whether Massarone’s stint as head of a police union is compatible with serving on a body tasked with recognizing the humanity of those who commit crimes, Massarone’s time as an officer indicates that he may have personally committed abuses of power. Before he became President of the Lexington Lodge, Massarone and another Lexington police officer were charged in Pirtle v. Lexington-Fayette Urban County Government (2003) for inflicting injuries on a suspect while transporting him to the Fayette County Detention Center. The court ultimately ruled, in a decision riddled with spelling errors—Massarone’s name is misspelled twice in the document—that the officers couldn’t be charged as they had sovereign immunity but did not rule on whether or not the officers were responsible for the detainee’s injuries.
Biden promised that his administration would take seriously the immense problem of systemic racial inequality and injustice that has plagued the nation since before its inception. Decades of police abuse, wrongful convictions, and mass incarceration have shown both the cruelty and the ineffectiveness of our current legal system.
And the pandemic has horrifically revealed the everyday injustices faced by those incarcerated. Prisoners regularly suffer from high rates of violence, both at the hands of their fellow inmates and prison guards. But the pandemic has been particularly brutal, cascading through prisons unsuited for physical distancing measures and abetted by political authorities unwilling to do much, if anything, to preserve the lives of our fellow people. Against that background, leaving the Parole Commission more than half empty is an extrajudicial death sentence for hundreds of eligible parolees.
A nation that takes crime seriously must also be willing and able to engage in forgiveness, to recognize the equal personhood of those whose freedom we take away. The Department of Justice’s Parole Commission is the perfect place for Biden to start. Both Cushwa’s and Massarone’s terms have long-since expired; Biden only needs to nominate replacements and the Senate to confirm them. In doing so, he must select advocates for criminal justice reform, not proponents of the carceral state.