Discretionary Release

Discretionary release is the key feature of the indeterminate sentencing system. The indeterminate sentencing system allows individualized measures of incarceration for offenders sent to prison and gives parole boards discretion to determine when an offender is ready to be released, under supervision, back into the community. Each year, approximately one quarter of those released from imprisonment are released through the discretionary mechanism.

The uses of indeterminate sentencing and its counter-system, determinate sentencing, vary across the United States. Historically, however, indeterminate sentencing was dominant until the rehabilitative ideal came under attack in the 1970s. With disillusionment in the successes of rehabilitation schemes, followed by the implementation of “get tough” or “tough-on-crime” policies in the 1980s and later, determinate sentencing schemes, whereby the parameters of an offender's prison term are dictated by legislation, steadily began to replace indeterminate systems. As those systems were replaced, parole boards steadily lost much of their discretionary power of release. Discretionary release had been, and still is, the primary mechanism by which to reduce overcrowding in prisons and alleviate associated costs. As it was scaled back, however, the correctional system grew and prisons were, and still are, often to be found running far beyond their intended capacities.

The use of discretionary release will often be tempered by two variables: cost and the political climate. An offender will be released back into the community only after a parole board is satisfied that he or she has served a suitable length of the sentence term and no longer poses a threat to the public. General support for such releases, however, has historically been susceptible to change stemming from both public and political attitudes, and parole boards are not fully immune to those influences. In 1980, while determinate sentencing was still gathering favor among states, more than half of prisoners who were released were done so with the discretion of parole boards. Today, however, that number has been reduced to approximately half; the political climate has been less hospitable to the early release of convicted offenders. In addition, the general public has grown to be less deferential to a parole board's decision making and is more supportive of offender terms being dictated by legislation. The other factor, cost, which works in conjunction with or is even born of the political climate, also exercises influence over the use of discretionary release. Recent pressures on state budgets mean that, for many states, corrections is no longer protected from fiscal cuts. As budgets have been curtailed, prisons are expected to spend less, and one way of freeing up space, and reducing cost, is to invoke discretionary release. States may therefore turn to this mechanism to relieve pressure on the prison system.

The repeal of indeterminate sentencing, and consequentially the scaling back of discretionary release, was a hallmark of the change in crime policies and attitudes toward criminal offenders after the collapse in the belief of rehabilitation. In the mid-1970s, the rehabilitative ideal was widely judged to have been a failure, and indeterminate sentencing was deemed, by all along the political spectrum, to have been poorly utilized. As indeterminate sentencing came under attack, so too came the attack on parole boards, which were criticized for arbitrary and poorly calculated decision making. For decades, parole boards had been relied upon to determine when an offender was ready to be released from prison. However, just as the “treatment” given to those incarcerated was judged as having failed, as a corollary, so too was the insight and power of parole boards to judge an offender's early release back into the community. By 1978, six states had passed determinate sentencing laws, and that number increased to 14 by 1996. By 2000, four states had abolished discretionary release for certain categories of offenders, and 16 states had abolished discretionary release for all offenders.

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