Constitutionally Incapable: Parole Boards as Sentencing Courts

Courtroom sentencing, as part of the judicial process, is a long-standing norm in the justice system of the United States. But this basic criminal law precept is currently under quiet attack. This is because some states are now allowing parole boards to step in to decide criminal penalties without first affording defendants lawful judicial branch sentencing proceedings and sentences. These outside-of-court punishment decisions are occurring in the cases of youthful offenders entitled to sentencing relief under Miller v. Alabama, which outlawed automatic life-without-parole sentences for children. Thus, some Miller-impacted defendants are being sentenced by paroleboards as executive branch agents, rather than by the judicial branch of government. Parole board punishments serve as a somewhat shocking turn of events, particularly since the right to be sentenced in a courtroom, rather than some other government-run venue, seems so unquestionable. But quite surprisingly, that right is not contained in the text of the U.S. Constitution. Nor has the matter been squarely addressed by legal scholars or the Supreme Court. Instead, both the Court and respected commentators have been writing around the issue for years. Nevertheless, allowing executive branch bodies to become sole deciders of penalty terms— up to and including life without parole—is more than highly unusual. It is deeply problematic as a matter of law, policy, and precedent. Failing to take action to rein in this emerging practice could result in serious consequences, not just in Miller matters, but beyond. As executive branch agencies, the parole boards have not been called upon to entirely displace the judicial branch to serve both as front-end penalty adjudicators responsible for proportionality, narrowing, and mitigation assessments, as well as early-release gatekeepers evaluating reform and risk for reoffending. In fact, parole-grant determinations are seen as highly informal proceedings, made behind closed doors, without court-level due process protections or even involvement of defense counsel. And the interests, roles, and experiences of parole agency officials are far different from the legally trained judiciary who oversee court-based penalty processes. For all these reasons, permitting parole board displacement of sentencing courts in Miller matters, or otherwise, is not just inadvisable, but highly injudicious. This article, therefore, calls for recommitment to the right of court-centered sentencing practices for Miller cases and beyond. It is the first scholarly account of why this is the constitutionally required path in cases involving the punishment of imprisonment as well as the preferred policy given contemporary parole board practices and culture