Guest Editorial: What Entity Should Be Used for Local Control of the District’s Parole Function?

Author: Phil Fornaci

This post provides a concise summary of the background of this issue and answers key questions about this issue such as: What Should Happen Next?, How Do We Get There?, and Why Not Just let D.C. Superior Court Judges Replace the USPC?.

It was taken from a recent memo written by Mr. Fornaci for a local attorney-oriented group. Mr. Fornaci is a participant in the DC Reentry Task Force and the DC ReThink Justice DC Coalition and a long-time advocate for returning the parole function to District control. He gave us permission to post this edited version to the ReThink website.

Background of the Issue

In August 2020, Mayor Bowser formally announced her support for legislation to restore local control of U.S. Parole Commission (USPC) decision-making functions to the D.C. government, after the Congressionally mandated dissolution of the U.S. Parole Commission (USPC) in November 2022. After that date, the USPC will no longer have authority over D.C. prisoners or returning citizens, the vast bulk of the USPC’s current caseload.

The question now before the residents of D.C.: how can the District seize this opportunity to reverse the massive damage inflicted by USPC control over the lives of D.C. prisoners and returning citizens, and to the residents of the District?

U.S. Parole Commission Functions

As mandated under the D.C. Revitalization Act of 1997 and subsequent legislation, the U.S. Parole Commission (USPC) is currently responsible for four primary functions with regard to people convicted of offenses under the D.C. Code:

  1. Parole grant decision-making authority for incarcerated D.C. Code offenders whose alleged offenses occurred prior to August 5, 2000.
  2. Parole and supervised release revocation decision-making for returning citizens who have completed sentences for D.C. Code offenses and serving a period of community supervision.
  3. Parole termination for returning citizens serving time on parole.
  4. Compassionate release for incarcerated D.C. Code offenders in the federal prison system.

In performing each of these functions, USPC actions have massively driven up levels of incarceration in D.C. By denying parole grants to prisoners and by refusing to use its authority to release older and sick prisoners, the USPC has kept the DC prisoner population artificially high. But even more horrifically, by sending thousands of D.C. returning citizens back to prison every year for non-criminal “technical violations” of parole and supervised release, the USPC has vastly expanded incarceration in D.C.  But with the imminent demise of the USPC set in motion by the U.S. Congress, we now have an extraordinary opportunity to reverse the deadly path of mass incarceration. We cannot blow it.

What Should Happen Next?

Restoration of local control of parole should be the first step toward full repeal of the D.C. Revitalization Act. Since enactment in 1997, and in addition to closing the Lorton Prison complex, the Act ushered in the near-complete domination of the DC criminal system by the federal government. Additionally, the Act mandated the rewriting of all D.C. criminal sentencing statutes and abolished parole for those whose offenses occurred after August 5, 2000, while also barring the District from amending any laws affecting parole without federal consent. Finally, the Act resulted in the creation of the Court Services and Offender Supervision Agency (CSOSA), which monitors most returning citizens in DC released from prison and under legal supervision, as well as those under pretrial supervision and those serving probation sentences.

The demand for local control of the USPC functions is inextricably linked with the movements for racial justice and for D.C. statehood. The system of criminal law enforcement in the District is racially biased in the extreme, almost exclusively targeting African Americans for arrest, convictions and repeated incarcerations. More than 90 percent of people arrested, incarcerated and/or under legal supervision under the D.C. Code are African American, despite representing less than half the D.C. population.

We now have a historic opportunity to create a restorative process that can begin to reverse the damage inflicted on the African American population in the District and to address the specific harms inflicted on returning citizens by the federalized criminal system.

The new D.C. paroling authority must be fully accountable to the D.C. electorate, protect individual due process rights and at the same time embody the humane, equitable, restorative approach to criminal justice articulated by the District Task Force on Jails and Justice, including a public health approach to community safety and incarceration, fairness in administration, treating all with dignity and encouraging restorative practices and trauma-informed healing-centered practices.

How Do We Get There?

First, we need to create a new DC Board of Parole and Supervised Release within the D.C. government to replace the USPC, with staff and hearing officers with both extensive subject matter expertise and lived experience with the communities in which returning citizens reside.

Second, the practices and procedures of the new Board must be fully transparent, with specific guarantees of due process and appeal rights for prisoners and returning citizens who appear before it. A Citizens’ Oversight Committee must be created to address community concerns and to provide authentic public oversight of the paroling authority’s work.

Third, the new Board must work to immediately reverse the punitive procedures of the USPC. Currently, any returning citizen accused of violating one or another supervision rule or arrested and released for a misdemeanor offense is subject to immediate arrest for a potential supervision revocation, followed by months of jail incarceration pending a hearing (and likely re-imprisonment in the Bureau of Prisons). This inhumane practice must end. No one arrested and released on a misdemeanor offense or accused of technical violations of supervision should be re-incarcerated.

The role of a new D.C. Board will not be simply to adjudicate whether an individual has violated a supervision rule or is ready for parole. Instead, the new Board must determine what steps, if any, can be taken to prevent revocation of parole or supervised release, and work to provide the necessary supports to ensure that result. Returning citizens face innumerable barriers to effective reentry, including a lack of housing, employment, and drug and mental health treatment, and are re-incarcerated when those needs are not met. Rather than repeatedly punishing returning citizens for the failures of the D.C. reentry system, the new agency must support returning citizens and allow them to successfully reintegrate into the D.C. community.

Advocates with the D.C. Reentry Taskforce and the ReThink Justice DC Coalition have developed proposed operating principles for the new D.C. Board, as well as a detailed review of revocation procedures. (Use these links to view these documents.)

No, we cannot guarantee that the new Board will operate according to advocates’ visions, but we refuse to willingly accept anything less than justice for our incarcerated brothers and sisters and for our returning citizens.

Why Not Just let D.C. Superior Court Judges Replace the USPC?

Some local advocates have ineffectively argued that restoring local control of the USPC’s duties can be achieved by empowering D.C. Superior Court judges with that authority. Such an approach to “local control” is misguided for several reasons, most obviously because a transfer of power from one federal agency to the federally-funded Superior Court run by federally-appointed local judges and federal employees is incompatible with local control. Judges and their staff are not in any way accountable to the D.C. government nor to the D.C. electorate.

But more importantly, simply handing over to D.C. Superior Court judges the expansive powers of the USPC represents a betrayal of the righteous demands for justice and accountability brought by D.C. prisoners, returning citizens and their advocates. Judges will not and cannot reverse the tide of mass incarceration ushered in by federal control, nor can they respond to the long-standing demands for racial justice heard loudly across the United States. A D.C. Board can do this. Further, D.C. Superior Court officials have recently indicated they have neither the resources nor the inclination to take on this role even if it is thrust upon them.

Simply proposing a “fairer adjudication” of alleged supervision violations in Superior Court will not address the lack of reentry services that led to the alleged violation nor stem the flow of re-incarceration. Neither will transfer of authority to another federal entity likely result in the release of hundreds of D.C. prisoners who have waited decades for parole, only to be denied by the punitive policies of the current federal actors. A new D.C. Board of Parole and Supervised Release, whose mission will be to maximize release of long-term D.C. prisoners and to support returning citizens upon release, can finally and quickly reduce mass incarceration of African Americans under D.C. law.

Finally, promotion of the unpopular Superior Court “option” embodies a profound lack of vision, a failure to acknowledge both the opportunities for racial and social justice in a new agency as well as the historic role that judges have unfortunately played in the expansion of the carceral state.  This is why grassroots advocates, returning citizens, faith-based organizations and the movement for D.C. statehood support the creation of a new D.C. Board of Parole and Supervised Release.