Annie Kuo: Welcome to Discovery, a UW Law podcast where we interview our distinguished faculty, legal experts and guests to the law school from around the world. I'm your host Annie Kuo. On this episode we're addressing the topic of the “youth tax” in parole hearings with David Garavito, professor at the University of Washington. Professor Garavito teaches and researches on criminal law and criminal procedure at UW Law, as well as on developmental and cognitive psychology. He received his J.D. from Cornell Law School and his PhD in developmental psychology from Cornell University. He most recently came to UW from the Department of Veterans Affairs in Richmond, Virginia. Welcome, David.
David Garavito: Thank you very much. It's great to be here.
AK: So glad to have you on the podcast. It was so fascinating in reading this paper that you're going to present at the South Carolina Law Review symposium just in a couple of weeks, that different states have different parole systems and your paper focused, that you co-authored with Amelia Haaretz and John Blum, your mentor, for the dissertation is like a capital punishment guru.
DG: Oh yes.
AK: It focused on the parole system in South Carolina, which has a very interesting setup. What makes the parole system in South Carolina so compelling to study?
DG: Yes, South Carolina, they never really bought into the whole truth and sentencing kind of movement. South Carolina is a very interesting state because they go all-in on discretionary parole, and they really have just doubled down on it throughout their entire history. And even more interesting is that South Carolina affords a tremendous amount of discretion to their discretionary parole board. They don't have any really statutory guidelines. They tend to just give them general goals that the board can work towards. The board actually establishes their own guidelines. But there's actually a little note in their handbook that says, we're not actually bound by these guidelines either. So, if we decide that on a case, and we decide that, oh, yeah, you've met all the criteria in our guidelines, but we still don't want to release you, we're allowed to do that. That's within our discretion.
And then there's also this added characteristic that, again, makes them just have a tremendous amount of discretion, which is that they are separate from their Department of Corrections. The South Carolina Department of Pardon, Parole and Probation Services is completely separate from the South Carolina Department of Corrections. Now, this adds a tremendously weird dynamic, that's really unheard of in a lot of other states that have discretionary parole systems. One of the most common examples that I would draw on, being that I was barred in New York, is the New York parole system. And right now, the New York parole system, the Department of Corrections and the Parole Board, they're under the same administrative umbrella. And because of that, that makes sense to most people. Why? Because they should have similar goals. The Department of Corrections always wants to show that their rehabilitation programs are working. They want to reduce costs to taxpayers, by making sure that people actually get out and are reformed. And they just generally want to show that prisons are working and to help them work more efficiently.
By doing what South Carolina does and separate that out, not only do you have this difference in goals, where the parole board, really their only major goal is to not let out anyone unless they are 100% certain. They don't need to prove the Department of Corrections rehabilitation programs work. But then you also have this disconnect in shared consequences. The Parole Board does not, they don't have to worry about if more people are kept in prison. They don't have to worry about that at all. Why? Because those costs are for a completely different agency, completely different administrative body. And so, because of all that, you see South Carolina becomes this almost pinnacle of a perfect — well, perfect in quotations — discretionary parole board state, where the parole board has a tremendous amount of discretion, tremendous amount of power and very little accountability to anyone aside from themselves. So, it makes it perfect to study.
AK: And it seems that when, when there's studies and attention on criminal justice reform it often focuses on sentencing or prosecutorial charging, and policing, rather than on this back end of parole. Why do you think that is that there's so little attention on parole systems?
DG: Parole is a very weird concept in the United States, it's very confusing. And it's got less attention. Most of the time when people think about parole, they don't realize that parole systems, even the existence of what we think of as the traditional, kind of, discretionary parole — and I'll go into what that kind of specifically is in a moment — but when they think about that, they don't understand that the systems vary widely, and to a tremendous degree across all the United States. There's no guarantee of that kind of parole system, the one that you iconically think of, like at the beginning of Ocean's Eleven when they're inter interviewing Danny Ocean or something like that, and they're saying, oh, do you think your reformed stuff like that? And so, there's that aspect. And then there's also this idea of, well, you just don't have any kind of TV shows about the parole system or anything like that. It's not as attractive to really think about. It's not, it doesn't have anything flashy, there's no interrogations, there's no investigations. It's just kind of administrative and routine.
AK: So, for our audience, it seems that this “youth tax” means that when you're younger when you commit a crime that can actually work against you and not give you a meaningful opportunity to obtain release later because parole boards might think that you're a bad seed that needs to stay in jail.
DG: Yes, yeah. So, that's the general idea. The general idea is that you are being taxed, you are having some kind of punishment in a way for just having committed a crime when you were younger. And most people think about this in terms of the front end on sentencing, but this paper specifically focused on this back end, where deciding whether or not you deserve to leave incarceration and maybe serve the rest of your sentence outside of prison walls.
AK: Let's drill down on that parole system, the different kinds that there exist in the US. Can you tell us about the differences between discretionary parole, which is apparently the most common and then the determinate sentencing scheme and presumptive parole in many states that the federal government also uses?
DG: All 50 states and the federal government all have these different systems. And in in reality, you have kind of three major classifications, and some states even use a mixture of both, which makes everything just a little bit more complex and weird. And so, if you're talking about the traditional one, then that's discretionary parole. So, you have a panel of people, a parole board, and they take in all this information about the person who's up for parole, and they go, Okay, well, we've got maybe our risk assessment stuff, we've got their disciplinary record, we've got the history of the crime, we've got statements from the victims of that crime, if there were any, and we're going to decide whether or not this person's sentence should be served for the rest outside of the walls, or if it should continue to be inside the prison until the next parole hearing, which could be maybe one to two years later.
And so, the idea in this sentencing structure, that's when you see, like, 25 to life, that kind of idea, typically, you'll have after 25 years, the minimum, then every two years or so after that, you'll get a parole hearing and say, okay, is 25 Enough? Have you reformed? No. Okay let's roll this back. And let's hear you again, two years from now see, if you've been reformed, then. So that's the discretionary parole kind of idea.
And then, kind of historically, there was a lot of backlash at a particular point in the 20th century, really near the tail end, kind of the 70s and 80s vibe. And during that time, opponents from both sides, both ends of the political spectrum, rather, they started heavily criticizing discretionary parole. And they started talking about how Oh, well, this could be arbitrary decision-making. This could lead to people who are not reformed getting out. There were people, particularly progressives who thought, hey, this could disproportionately affect to a negative degree groups that are historically oppressed, people of color. And so, you had a lot of states start talking about let's shift away from this, and they really shifted to one of two systems or maybe a mixture of both. And those two systems are the idea of presumptive parole. So, we have presumptive parole, and we have determinate sentencing.
Determinate sentencing is the most straightforward. It's what we give you is what you get. That's the one where you served five years, you served five years. That's five years is five years. And then you have presumptive parole, which is this idea that, and this is kind of what people think about when they think about the federal system, this idea of, okay, we give you five years, you will serve a certain percentage of that. And you're presumed to, you know, that's enough. So, you will get paroled earlier than that. However, if we view that you did not satisfy these requirements, then you have to serve the full thing. So, you're presumed to get parole unless some other qualification is met.
AK: The Supreme Court ruled categorically against the death penalty and mandatory life without parole sentences for youth because of some of those qualities you mentioned earlier that make them less culpable. But in your paper, y'all talked about how that can also make them look more dangerous to juries and some parole boards, like apparently South Carolina.
So, you know, there's this need highlighted by the Supreme Court that youth need to have that meaningful opportunity to obtain release. And the public also seems to perceive this as well, which is aligned with what the Supreme Court has determined over reviewing a lot of research. Can you tell us about this disconnect between the reality of parole hearings in South Carolina — I don't know what other states have a similar model — and then the views of the public and the Supreme Court that merits this concern?
DG: It’s the predisposition to crime, right? And it's this natural kind of developmental cognitive aspects of youth that really do predispose one to crime. We talk about the classics that are, you know, adolescents are more impulsive, and they're more prone to peer pressure. And the Supreme Court, you know, acknowledges that. They acknowledged that, to a certain degree, these hallmark characteristics of youth make one more prone to crime. However, it is exactly because these natural hallmark characteristics of youth make one more prone to crime, that you can't really hold an individual juvenile as culpable. It's not necessarily that there's no culpability at all. But compared to an adult, they're going to be categorically less culpable, because they are dealing with those biological, psychological cognitive changes.
So, when the Supreme Court was dealing with this sentencing idea, and they were borrowing things like mandatory juvenile life without parole or the death penalty, they had this fear. And that was kind of implicit throughout a lot of these cases, about the double-edged sword that was not really being fully appreciated. That idea that juveniles being treated as everyone else, and they were being given sentences, including up to death, but what was missing from the equation there, however, was the appreciation of the lack of culpability that juveniles have. And so that's why the Supreme Court stepped in, and they said, they are categorically less culpable, these juveniles, and they should be treated thusly. If we do not treat them thusly, if we do not separate them out as categorically different, then it's going to be disproportionate sentences, because you're appreciating that the fact that they are more risky in a sense of committing crime, but you're not appreciating the fact that they are less culpable with the crimes that they might commit. And so, there's this appreciation, of course, on the front end. But then, as we've talked about earlier, there's this back-end problem, which is that people tend to forget about things such as parole.
Now, when the Supreme Court talked about mandatory life without parole and juveniles, they explicitly emphasized that juveniles are more likely to reform and rehabilitate, they have this potential. Anyone would really agree with that. And the public generally agrees with that, too, that juveniles, younger children, they all have greater potential for reform than an adult. So, they emphasize this meaningful opportunity for release. And that has this parole kind of aspect. However, there's been really no cases dealing with parole hearings and what you're actually guaranteed on the back end there.
There are some cases in South Carolina, for example, where they emphasize that age has to be factored in on the sentencing scheme. But no one really emphasizes that age has to be factored in, in the culpability sense on the back end. And that's kind of where this disconnect is. Because if there's no one forcing you to view both sides of the sword, look at those double ledges, then you're probably only going to look at the one that all the risk analysis tools, such as the compass, do, which is, if you've committed crimes when you are younger, you are more risky than someone else.
And that's kind of this problem, right, is that even if the parole board themselves might not discuss it, anyone who uses a risk assessment tool, all of those risk assessment tools, and that's with almost any parole board, even some sentencing courts use them, they're going to say you're riskier if you did a crime earlier. And so suddenly, you have this imbalance, right? And if you don't have anything, like the Supreme Court coming in and stepping in and saying, no, you need to factor in culpability. We hypothesized that this might end up being a one-way “youth tax”, that younger people who committed crimes when they were younger — all other things being equal, just committing your crime when you were younger — that's going to actually hurt you in the end when it comes to parole and being released.
AK: And I wonder if even their exposure to incarceration makes them also appear dangerous when they're up for parole. It’s like, well, whatever they may have been exposed to in jail, and to people who committed other criminal activity, that then makes them even seem worse, this thought that they should not be reintegrated into society perception.
DG: Yeah, you worry that the lack of appreciation for like, I said, the double-edgedness of the sword, the lack of appreciation of that leads a parole board — it allows, I'm not saying that they are intentionally doing this, of course — but it allows for someone to kind of forget, you know, they just forget about this culpability aspect. And what they see is, there's a chance you could be a bad seed. And that's something that's very scary for a board, especially when they don't have to factor in all the other things that the Department of Corrections might have. They don't have people who are experts who've worked with that person throughout their entire period of incarceration. And they don't have, in general — and this is, sadly, common for most discretionary parole boards — it's going to be very hard to get witnesses to come in to the parole board on behalf of the person before the parole board. You will get a lot of people, like victim statements. You’ll get a lot of people like former prosecutors, and those will come in easily. But on the back end, you're going to have this maybe misinterpreted view of age. And it's viewed as one-sided, where it's only going to increase your risk because you committed a crime early, you got incarcerated earlier. And so, even though we want to believe you've been reformed, we think you could have had the opposite. You've been deformed, essentially, by the carceral system. And without good statutory or judicial, kind of, guidelines to really emphasize that it has to go both ways you can kind of understand and see why you're going to have this tax, you're going to have this one-way punishment.
AK: In your paper, there was a mention of the continued emphasis by the parole board on the seriousness of the original crime that was committed versus the consideration that someone may have been reformed. And that keeps people in jail. One example of which you open in your paper is the story of Stewart Buchanan, who's served at least 45 years now since he was incarcerated or convicted at the age of 17 for an impulsive, drug-fueled crime he committed, but he's had since many appeals that have been denied. Can you tell us as a sort of case study about the case of Stewart Buchanan?
DG: Yes. Stewart Buchanan is very much a model case here and perfectly emphasizes the whole story behind the paper, which is he had a very troubled upbringing. His mother was very distant. His father was abusive. His, basically adoptive mother, which was his older sister, even left when he was very young. And so, he was kind of left to raise himself with some other friends when he was very, very young. Got into drugs and other substances early. And he started going through this period, essentially, of sleep deprivation. He kind of withdrew from everyone and he got into this drug-induced stupor. He ended up committing a murder, which he had fully admitted to the police. He said that he didn't know what was going on, but he readily accepted his consequences.
In fact, the sentencing judge even mentioned that he was a very unfortunate case, but that he had the opportunity to show that he was better. And, originally, Stuart was debating how he wanted to go through the case in terms of pleadings and all that. And his attorney at the time, who was giving him solid advice said, “Listen, if you plead guilty to this, you will be sentenced to a minimum of 10 years.” So, he said, “Okay, 10 years, I can do 10 years for a little bit, I can get parole after that.” His lawyer said, “It's very rare for someone who was sentenced to this to not get parole after maybe 15 years tops. And so, Stewart pleaded guilty.
Now, Stewart has since been denied for every single parole hearing since. He has now spent at least maybe three times as much time incarcerated than non-incarcerated. And this is despite the fact that when he was incarcerated he was doing a multitude of things to improve himself. He began tutoring, he even volunteered for those programs where he would go out — this was when he was fairly recently incarcerated, like at the start of it — he would go out and he would talk to kids about how to avoid ending up in his situation. He was a part of many church groups. He did a lot of education for himself and others. And, generally, he's had a tremendous turnaround, and is very much a success story.
But then there's this problem, right? How does he keep getting denied parole? And this is another weird kind of aspect of South Carolina in particular, and a very dangerous aspect of discretionary parole, a possible consequence of having and now offering too much discretion. When you are denied parole in South Carolina, you are given a summary sheet. It used to be that they were sometimes described at the hearing. But when COVID came, they stopped saying anything at the hearing and just said, okay, you can go back and then after a few weeks, you would get your written. It's like a one-page sheet and it says denied or approved. And if you are denied, it gives you one of six different reasons. And multiple of those reasons, and the ones that kept biting Stewart Buchanan, were ones that were like “seriousness of the offense,” “use of violence in the offense,” and “the presence of a weapon in the offense.”
Those, in case you're wondering, of course, it might seem a bit weird, because those are the few things that you cannot, no matter how long you're incarcerated, you cannot change. I cannot change why I'm here. All I can do is change who I am while I'm here. And the problem is, is that for Stewart Buchanan, for the past multiple of the parole hearings that he has had, he has only been rejected for those reasons. And there's literally nothing he can do to fix it. And that's kind of a large issue that could be exacerbating some of this youth sentencing problem.
As I go in the paper, too, I talk about how, because of things such as not only impulsivity, but increased presence of peer pressure or increased susceptibility to peer pressure, it might lead to some of the crimes that are committed by juveniles to be perceived as more heinous. Crimes that involve groups are perceived and, typically statutorily, more heinous and sentenced more severely. So, if you have this original offense that is going to be treated as more heinous, then it almost doesn't matter if you're going to be given this meaningful opportunity to release because the parole board never releases you because of the circumstances of that original offense. No matter how good you are, then how meaningful is that opportunity? So, that's kind of the story of Stewart Buchanan here. And yeah, he's still incarcerated right now. There are some appeals going on to try to challenge some of the more recent parole hearings, and some aspects of the parole system. But that itself is an uphill battle.
AK: Can you tell us about your study, and then their research findings, from examining 10 years of parole hearing outcomes in South Carolina?
DG: Yeah, so we were lucky enough to obtain this data. This is 10 years of all parole hearings in South Carolina. And as you can imagine, the data was quite a challenge to process. It came to us in this large CSV, kind of, file. And so, naturally, what we wanted to look at is, okay, well let's look at if age at the time in the events will affect anything. Does that affect your parole outcome in particular? And one interesting method that we used is called propensity score matching.
Essentially, what this is, is in a way, it's kind of like a shortcut to matching people. Because what we wanted to look at is, okay, we can get youthful. So, sentenced under 21. We also did analyses with people who were juveniles, so under 18. So, these people who committed their crimes under 21, we matched them. We wanted to match them with someone who's almost exactly identical, as close as we could. But they committed their crime when they were an adult, over 21 even. And what we could do then is that this kind of mimics a random assignment experiment, which is the gold standard. The gold standard is that you can randomly assign people to this group or that group. But of course, that's impossible. When you're talking about age, or race or sex, gender, etc. These things you can't randomly assign. If you could, I'm sure you'd be shut down by the IRB.
So, we did this little pseudo randomization, kind of, method. And what we did is we created this model, we put in all of the factors that we wanted to balance on, like number of violent felonies, excluding murders, number of murders, whether or not they committed another crime while they were serving their sentence, et cetera, et cetera.
So, now, we had a completely balanced group. We were lucky enough to get this really nice balanced group of tens of thousands of cases where we have youthful offenders, people who committed their crime before they turned 21, and adults. And each case in each group were matched up. They all had their individual match who was almost identical to them, and the only difference was that age group. And so, we did this analysis where we're like, okay, let's include all of these different things we want to control for, like I mentioned before, violent felonies, murders, et cetera, et cetera. And let's see if age when everything else is balanced, if there's an effect of age group. In other words, does being youthful, does that affect your parole outcome, your odds of getting parole?
And what we found is yes. We found that just being youthful, everything else is the same — you have the same number of violent felonies, same number of nonviolent felonies, et cetera, et cetera, same sex, same race, if you've committed your crime, when you are younger, you have 20%, less likely chance of getting parole. All other things being considered. When we did an additional analysis, a supplemental analysis, instead of looking at youthful we looked at juveniles, so, under 18, we found nearly identical results. Categorically the same. I think it was a slightly stronger effect. So, about 25% odds.
So, this is where that “youth tax” idea comes in, right? Simply being someone who committed a crime when you are younger, everything else holding the same and we matched you up — so, really, the only difference between these groups should be age — and yet we see this significant decrease in your odds of being released, simply because of that early mistake, the mistake you made as a child rather than someone else who made that mistake as an adult. That is the big significant thing here. And so, it's a very concerning kind of result, but not one that we for reasons we discussed, not one that we didn't see coming.
AK: What other things are you calling for as a conclusion of the research?
DG: One of the big things is trying to get some sort of understanding of how we can factor in culpability into this equation. And trying to have some sort of — I always struggle with this to some degree because I do think discretionary parole serves an important purpose. If you don't have discretionary parole, if you have something, and maybe you just have a determinate sentencing scheme, it logically can make sense of the simplest answer. But what you lose is a lot of people lose motivation. They lose motivation to reform. And unfortunately, that's, kind of, what happened here. If you see someone like Stewart Buchanan, let's say you're one of the people he's tutoring right now, and you see that, hey, this guy, he doesn't get any disciplinary violations. He's been here for so long for one crime he committed his kid. And he helps everyone. Everyone likes this guy. He even has worked with this Christian group that's going to help him get housing and a job afterwards. He's got everything set up.
AK: He was a hospice volunteer.
DG: Yeah, he's doing everything right. And if you see that, and you know he's not getting paroled, and he's never been paroled for decades, then how is that going to affect your motivation? And that really shuts down, not only this kind of meaningful opportunity idea for youth, this affects the entire scheme. At that point, you're almost pushing it even worse than a determinant sentencing scheme. In that way, it almost seems like a scheme where the sentence could go on forever, as long as it has some aspect that we could stretch it on forever.
And so that's one of the big kind of ideas is having this limit on discretion to some extent. Discretionary parole serves a great purpose for motivation, and for helping people wanting to be better. But if we don't limit the amount of discretion that the parole board has, don't give them solid statutory guidelines, solid rules that they have to follow. And if we don't increase transparency, if we don't increase access to the record, if we don't increase data collection and data distribution, then what we have is something that is too opaque and something that might, in essence, foster more injustice than justice. But, yeah, there's a number of different kinds of takeaways from this paper, but I think those are some of my biggest ones.
AK: Thank you so much for sharing with us about this fascinating topic that you'll be presenting at the symposium for the University of South Carolina Law Review in just a couple of weeks on the topic of the “youth tax” in parole hearings. Thanks again for enlightening us on this subject and I hope to continue following your scholarship.
DG: Oh, thank you. It's great to be here.
AK: Professor David Garavito teaches criminal law and criminal procedure at the University of Washington School of Law.
RSS feed
Apple iTunes
Spotify
Amazon Music