Under the Georgia constitution, the Georgia State Board of Pardons and Paroles has the exclusive authority over all manner of executive clemency. Its powers are broad. Under a provision of the state’s charter that could be a force for good, the board may “parole any person who is age 62 or older.” That is, if its members so chose, the board could free hundreds, if not thousands, of people who are aging in Georgia’s prisons — and in the process save lives, reunite families, contribute to their well-being, and reduce strain on a system that has all but collapsed.
But justice of that sort, in these pandemic times or otherwise, is not something the parole board has ever set into motion.
That’s a conscious choice by its current members — Terry Barnard, Jacqueline Bunn, Brian Owens, David Herring, and Meg Heap. You probably have never heard of them. Appointed by the governor and confirmed by the state senate to seven-year terms, this shifting group of five people are some of the least famous yet most powerful governmental actors in Georgia. They alone determine whether and when incarcerated people can be released on parole or have their rights restored upon release. They may issue pardons, commute death sentences, or even cancel parts of a sentence for “any offense against the state.” Their professional backgrounds or interests are all in law enforcement, prosecution, or corrections. And they preside over a parole review process that gets a failing grade in a country that is already getting parole, early release, and clemency all wrong.
In 2020, as COVID-19 and other ills ravaged Georgia’s prisons, the board considered whether or not to grant freedom to 21,790 incarcerated people, out of the roughly 55,000 who made up the state’s prison population at the beginning of the pandemic. They ultimately chose to release 10,429 — less than half of those they could have released, and a figure that’s in line with or smaller than release totals in each of the last five years. Assuming the board members work a typical work week with no vacation, this means they decided — and more often than not, rejected — at least 83 people’s cases per day last year. A cursory glance over a file; a button pushed. What may be mere minutes of work for a parole board member represents the possibility of many more years of living in a cage for the incarcerated person. “I typically voted 100 cases a day. That was just an average day,” a former Georgia parole board member told The Washington Post in 2015. “You’re just talking about two to three minutes to make a decision. The public would be astounded at the short period of time that the board has to make decisions on life and death cases.”
And once the decision is made, it can stick for years: The board has total discretion over the review of an individual case, and people can be set off for as long as eight years. No other government official can review or change the board’s decision.
As you might imagine, a few minutes would not leave much time for the person whose fate is being decided to make their case to the board. But in Georgia, that doesn’t matter. It is one of just three states that does not hold parole hearings at all. Save for a pro-forma interview with an investigator prior to parole consideration, incarcerated people are largely barred from advocating for themselves in the parole process in any meaningful way. They are not even permitted to view their own parole files, let alone challenge any incorrect information in them, which the parole board classifies as a “state secret” under the law. “In FY 2019,” wrote board chairman Terry Barnard last year, “the Board reached out to all affected stakeholders ensuring an open parole process that includes input from prosecutors, law enforcement, the judiciary, victims and the public.” Notably, the incarcerated person is not considered an “affected stakeholder” in their own parole process.
With no public hearings to consider cases, the board’s decisions are completely inscrutable. The law does not require the board to explain its decision-making process to anyone, thus allowing it to operate with complete, unaccountable discretion. Ample evidence indicates that discretion is routinely abused. Consider the case of Byron Ferguson. The board had actually granted him parole, but he asked for a six-month postponement of his release so that he could save some money and make appropriate plans for his post-prison life. Six months later, he came before the board again to request his release, which the board had previously approved, but this time he was denied. The board cited “new information” — which, as a “state secret,” was not shared with Mr. Ferguson or anyone else.
Similarly arbitrary decisions arise in the context of early release credits that incarcerated people can earn to reduce their sentences by up to one year — by completing educational programs, engaging in work details, and demonstrating “good behavior.” People work hard to earn these credits, but the board can and does choose to deny the points unilaterally, after they have been earned, for no stated reason — a bait-and-switch that extends the person’s incarceration.
Parole is, in theory, one of the most important decarceral tools available to states. But in truth, the parole process often just delays the inevitable: 95 percent of people incarcerated today will be released — eventually. In the meantime, they sit in prison, getting worse, not better. This is parole’s fundamental fallacy: The process asks if a person has spent enough time in prison, on the assumption that time spent incarcerated is restorative, or useful, or anything other than something that people must simply survive. But the experience in Georgia proves the opposite.
From January 2020 to November 2021, there have been at least 53 homicides in Georgia’s prisons. From January to August 2021, there were at least 44 suicides. At least 93 incarcerated people died from COVID-19, and chronic neglect and abuse have caused countless other preventable deaths — at least 450 people died in state custody from January of 2020 through September of 2021. And that’s not counting how, according to one study, each additional year spent in incarceration shaves two years off of a person’s life. The parole process also indulges the fantasy that sentence lengths are scientific and meaningful, instead of what they really are: the result of a bargain with a prosecutor, or the byproduct of some legislators’ tough-on-crime campaign promises. The harms wrought by the incarceration boom of the ‘80s and ‘90s should be clear to actors in the criminal legal system today, but those lessons haven’t translated to how parole boards operate. And so this system, despite its decarceral potential, remains stuck in the illogical carceral muck of the punitive era that got us here in the first place.
Like many reforms to the criminal punishment system over the last century, the advent of parole was not the result of a moral awakening but of a crisis of overcrowding. As available prison beds dwindled throughout the middle of the 20th century, more and more people were released through parole, reaching something of a peak, at the time, in 1977. In Georgia, as the age of mass incarceration was in full swing between 1989 and 1993, the average person served a third of their sentence. There simply weren’t enough prison beds otherwise, even in the face of calls for more punitiveness and lengthier prison sentences. As crime rates rose and a climate of fear set in during this era, the carceral pendulum had started to swing and parole boards became the newest bogeyman. Conservatives and liberals alike drew unfounded (and ultimately inaccurate) correlations between discretionary release and the increasing crime rates, denouncing parole as dangerous and calling for its abolishment. And as the United States cemented its place as the world’s leading incarcerator, each passing year of our nation’s descent into punitiveness chipped away at discretionary release.
In 1995, the federal government accelerated the ensuing prison boom and decline of parole, which by then Congress had all but eliminated, by creating the “Violent Offender Incarceration / Truth In Sentencing” program, which rewarded states for passing increasingly punitive sentencing laws by giving them money to build and operate the additional prisons required to accommodate the influx of long-term residents. Georgia received a total of $82,211,036; only eight states received more. That same year, as if to ensure that each new prison bed had an occupant, Georgia passed a law enacting mandatory minimums for the “seven deadly sins” — kidnapping, armed robbery, rape, murder, aggravated sodomy, aggravated sexual battery, and aggravated child molestation. This meant a mandatory 10-year sentence with no possibility of parole for one’s first offense; a second offense resulted in a sentence of life without possibility of parole.
In addition to this “two strikes” law, Georgia passed a draconian recidivist law for all other repeat offenses, subject to escalating penalties, and it wasn’t alone — in the 1990s, more than half of states passed some form of a “habitual offender” law. The state continued to raise the minimum number of years someone sentenced to a parole-eligible life sentence must serve before becoming eligible for release — starting the move from 7 to 14 years in 1995, and then from 14 to 30 years in 2006.
Though there have been some piecemeal legislative attempts at undoing this carceral blitz, they have been largely ineffective. In 2015, in recognition that the state’s uniquely punitive laws were dangerous and counterproductive, Georgia lawmakers passed House Bill 328. HB 328 extended parole eligibility to people sentenced to more than 12 years in prison for certain non-trafficking drug offenses; a year later, another bill that expanded eligibility to people sentenced to more than six years in prison for possession also passed. Shortly before HB 328’s passage, however, the bill was amended to include multiple eligibility provisions — chief among them a crippling “low risk” recidivism requirement, as determined by a “risk assessment instrument approved by the Department of Corrections.” This risk assessment has made it functionally impossible for people to avail themselves of the law. Despite a flurry of positive press around the passage, both pieces of legislation have been inconsequential. In the six years since their passage, only 13 people have been released on parole as a result, according to parole board records.
The failure to make use of these laws or broaden our imagination to include other parole reforms is a missed opportunity, and a serious injustice in its own right. The data simply do not show any benefits to keeping people convicted of “violent” offenses caged. The broader data about incarceration is overwhelmingly clear: Regardless of conviction, prison simply does not work. It is not a deterrent, it is not rehabilitative, and it is unspeakably damaging — both on an individual and a community level. If parole boards actually followed the lead of empirical data, they would be releasing people at the first opportunity. A recent meta-analysis of over 100 studies on the impacts of incarceration is clear: “Among this category of punitive sanctions, the data reveal that custodial placements, including in prison settings, are not effective in reducing future reoffending.”
The conditions that truly create the greatest risk of harm — unsafe living conditions, exposure to violence, little to no access to medical or mental health care, institutional racism, poverty — are rife throughout prisons. The knowledge that incarceration is dangerous, deadly, and an ineffective tool in the fight against community violence should leave parole boards no excuse for denying release. Or for lawmakers to create a presumption of liberty in all parole determinations, thus constraining the board’s extant punitiveness. But the political landscape that we have created and continue to accept often doesn’t make room for this kind of presumption, reinforcing instead the all-too-common binary between “good” and “bad” candidates for parole. But by denying release to people with a history of harm, in Georgia or elsewhere, we entrench this kind of thinking. And worse, we condemn people to conditions that are inherently violent.
Georgia’s carceral facilities have always been places of tremendous suffering, but the last 20 months have brought about a crisis of unprecedented scale. As COVID flooded facilities ill-prepared to deal with a highly contagious respiratory disease, all hell broke loose. Understaffing, which has long plagued our state’s prisons, reached previously unheard-of levels, with multiple facilities operating with staff vacancy rates as high as 70 percent. This level of neglect has meant that incarcerated people are left abandoned, without staff to look after their safety; people facing medical conditions, including COVID, have limited options to receive the care they need; and in the face of so much despair, suicides and homicides have skyrocketed to levels previously unseen. Now the Department of Justice has intervened, launching an investigation to uncover and remedy patterns of unconstitutional conditions that have long been evident to those of us familiar with the grim reality in Georgia’s prisons. As one person there put it recently, “The biggest challenge here is staying alive.”
As if functioning in an alternate reality, the Board of Pardons and Paroles continues to operate as usual. Or as the board put it in its annual report for 2020, the agency “was able to ensure public safety through informed-decision making, despite operating in a pandemic.” Whose safety, one might ask. Clearly not the safety of those who have perished in Georgia’s prisons, leaving their loved ones to pick up the pieces and look for answers. Or the safety of thousands who remain trapped there. They, too, deserve a chance to come home before it’s too late.
Image: Unsplash
