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Back-end sentencing: a practice in search of a rationale.

Article Excerpt
THE PHENOMENON OF BACK-END SENTENCING--THE PRACTICE OF SENDING people back to prison for violations of the terms of their parole supervision--has grown significantly over recent years and now occupies a prominent role in the new realities of incarceration and prisoner reentry (Travis and Christiansen 2006; Travis 2005; Travis and Lawrence, 2002a). In 1980, approximately 27,000 people were sent to back to prison for violating the terms of their parole. By 2000, that number had grown to over 200,000. America now sends more people to prison for parole violations than were sent to prison in 1980 for any reason, including commitments on new convictions and parole violations. The growth in back-end sentencing has far outstripped the overall growth in incarceration in America. The per capita rate of incarceration increased slightly more than fourfold between 1973 and 2000; over the same period of time, the growth in incarcerations for parole violations grew sevenfold. Another perspective on back-end sentencing illustrates the impact of the robust practice of parole revocation on America's prisons. In 1980, 18 percent of all prison admissions were individuals who were being returned on parole violations; by 2000, that number had increased to 34 percent. The new reality that one in three people coming in the front door of our prisons had relatively recently left through the back door underscores the importance of the efforts now under way to rethink the efficacy and purposes of parole supervision (Petersilia, 2003).

THE NEXUS BETWEEN PAROLE REVOCATION AND SENTENCING

Some may criticize the use of the word "sentencing" to describe the revocation of parole for violation of the conditions of supervision. Sentencing, they would say, is the act of imposing sanctions for criminal behavior, proven in a court following a trial or plea of guilty. What happens in the parole violation context, the critique might continue, is merely the continuing application of that original sentence. In other words, the process of adjudicating the violation of terms of parole release, including a return to prison in some cases, is part of the original sentence. The defendant knew--and everyone else knew--at the time of sentence that following the release from prison, he would be subjected to a term of supervision, with conditions, and failure to abide by those conditions could result in a removal from the community and deprivation of liberty.

Certainly it is unassailable to assert that the process of adjudicating parole violations is recognized as flowing from the original conviction and sentence. Stated differently, the only reason that the former prisoner is subjected to this process is because of the original conviction and sentence. But the conceptual and operational similarities between the two systems are, to me, so compelling that I see every reason--and believe there should be no hesitation--to call the process of adjudicating parole violations a form of sentencing.

In both systems, we use the enforcement agencies of the state (police or parole) to detect violations of rules (criminal laws or conditions of supervision), arrest and detain those suspected of those infractions (defendants or parole violators), bring cases and suspects before a neutral adjudicative entity (judge or hearing officer), provide an opportunity for determinations of fact through adversarial process (with some distinctions between the systems), determine guilt (with differing levels of proof) and impose sanctions for violations of those rules, up to and including the deprivation of liberty.

In the case of the process of adjudicating parole violations and revoking parolee liberty, if it walks like a duck, looks like a duck, and quacks like a duck, we should call it what it is: a system of sentencing.

ASSESSING THE LACK OF ATTENTION TO BACK-END SENTENCING

This analysis raises an obvious question, namely, why has the sentencing framework not been applied to the practice of parole revocations? The answer to this question resonates with a larger concern regarding the new focus on prisoner reentry. Those of us who have been engaged in research, policy analysis, and advocacy on reentry issues are often asked, "Why has the nation paid so little attention to the realities of reentry--with over 630,000 people leaving state and federal prison last year--while paying so much attention to...