Legal Commentary

In today's NYT, noted author Caitlin Flanagan pens an op-ed on the intricacies of parole decisions. Flanagan, you may recall, is the frequently interesting and controversial social critic usually perched at the Atlantic, and formerly of the New Yorker.  Discussing the decision to permit Sara Jane Olson to serve her year of parole by returning to her well-off family and manse in Minnesota, Flanagan argues that it's a mistake for the authorities to give Olson this privilege while so many other Californians serve their parole in CA.  To Flanagan, this decision reeks of the very class and racial injustice that inspired Olson's earlier turn in life as a fetus-stomping, mother-killing, police car-bombing radical member of the Symbionese Liberation Army, which is famous, in part, for its kidnapping of Patty Hearst. (Flanagan has earlier tilled some of this SLA ground here.)

The argument Flanagan makes, however, is elliptic, and, in the end, unpersuasive. She states:

[Olson] served seven years and was released last week, and that?s when her long story came once again to the national fore: her lawyers persuaded California officials to let her serve parole back home in Minnesota. The legal maneuvering by which this bit of comfort has been extended to her ? and by which it is now being challenged ? is interesting. Because studies have proved that recidivism is lower in those cases in which a prisoner is released to his family, lawyers sometimes argue that the location of parole should be moved if such support is available elsewhere. But it?s a hard case to argue. Only about 1 percent of those currently serving parole ordered by the California Department of Corrections are doing so out of state. Clearly, factors of race and class have come into play. As Celeste Fremon, an expert on gangs and criminal justice, observed on her blog Witness LA: ?Over and over again I see young men of color sent away for decades for crimes of far lesser magnitude in which no one was injured. And when they get out on parole, they usually can?t even get their paroles transferred to Riverside ? if that?s what they need to be out of harm?s way, get a job and be with their families ? much less Minnesota.?

The italicized part of the op-ed is what I want to focus on. Flanagan doesn't give us any basis to think that there's something pernicious here because it could be that the 1 percent of CA's parolees who are out of state are the only people who asked to be serving parole out of state. We would need to know, in other words, how many people are asking to serve their parole out of state to know whether the stat Flanagan cites is of any interest.  

Furthermore, we would need to know what other factors play into the decision by parole boards to let released offenders serve parole out of state.  A number of states don't use parole anymore, so it might be that some people's requests are denied because their sought after state doesn't qualify to satisfy CA's parole requirements. Whether "factors of race and class" are "clearly" in play is just speculative as to this point regarding Olson.  

And for what it?s worth, the point made next in Flanagan?s piece about young men of color goes to the possibility of a separate injustice related to intra-state discrimination. But there's also a potentially race-neutral explanation there. If a gang member's family lives in the same community as the gang with which the offender associated, then the possibility of increased recidivism might offset countervailing benefits associated with consideration of release to the area where the offender?s family lives.  Applied to Olson, it?s a bit implausible to suggest that her return to Minnesota and her family provides the same criminogenic temptation?it?s not as if St Paul MN is where her buddies from the SLA live.

I?m not saying that Olson should have definitely been released to Minnesota. (Some members of the MN government don't want her back, and it's not clear CA should be able to externalize the costs of monitoring parolees onto other states.)  But the case Flanagan presents ?with its insinuations of Olson's hypocrisy and CA's  systemic race and class bias in parole decisionmaking?in favor of having  Olson serve parole in CA hasn?t persuaded me, yet. 

I should point out that this discussion raises some similar issues to ones Ethan, Jennifer Collins & I tackle in our book,Privilege or Punish: Criminal Justice and the Challenge of Family Ties, about to come out any day now.  Notwithstanding our general "anti-family" posture in other places in the criminal justice system, we make the case for considering care-giving relationships in the context of prisoner re-entry (but not limiting the analysis to "family status"  strictly speaking).  We also briefly discuss an interesting study by Bedard and Helland showing enhanced deterrent effects when prisons are located far away from an offender's family.  The study, however, does not address the issue Flanagan addresses: namely, whether release to one's family is conducive to reducing recidivism.  

Here's the Bedard and Helland citation. More discussion of that study appears on page 189 of the book in case you're interested.

Kelly Bedard & Eric Helland, Th e Location of Women?s Prisons and the Deterrence Eff ect of ?Harder? Time, 24 Int?l Rev. L. & Econ. 147?49 (2004). Notably, Bedard and Helland are able to show that the ?harder? time actually serves a deterrent effect; so what may look like a ?tax? on families may in the end be an indirect way to keep the family together. Id. at 148?49. They conclude: ?[t]he evidence suggests that an increase in average prison distance leads to a decrease in crime. A 40-mile increase in the average distance to a female penitentiary reduces female violent crime, property crime and murder rates by 6.9, 2.3 and 13.3%, respectively.? Id. at 165.