Parole boards have traditionally held the power of reincarceration as well as release. Parole is a form of conditional release where the privilege of remaining in the community depends on the individual maintaining compliance with conditions set by the parole board. Thus, when the individual violates those conditions, the parole board must determine an appropriate response. One response is to revoke parole for the remaining term of the sentence. But going to this extreme can result in disproportionate and costly sanctions for minor violations, especially those that involve conduct that would be legal but for the fact that it violates a condition of parole (Klingele, 2013). Instead, many states have shifted to graduated sanctions or revocation caps as a means of applying swift and appropriate sanctions to violations while reserving revocation of the full prison term for those who repeatedly violate parole conditions or whose conduct presents a danger to public safety.
A review of statutes governing discretionary parole release states reveals that half of the states, 17 of 34, permit the imposition of an incarcerative sanction less than the remaining prison term. However, the form and duration varies. Some states permit “quick dips” of incarceration totaling just a few days at a time, and these states often permit parole officers to impose these sanctions as an alternative to the revocation process (see e.g., Colo. Rev. Stat. § 17-2-103). In other states, the parole board may be permitted to impose sanctions short of revocation of the full remaining prison term, and state law may impose “caps” on the sanction period. In these instances, the sanction may or may not be considered a revocation. For example, in Arkansas, parolees can be subject to confinement for 90 to 180 days for technical violations or serious condition violations without having their parole revoked (Ark. Code Ann. § 16-93-715).
Even when parole is revoked, many states permit the parole board to impose prison sanctions that are short of the remaining time on the prison term, often 15, 30, 60, or 90 days. However, such sanctions are typically only permissible for technical violations, which are violations of the conditions of parole that do not constitute a new criminal offense. But often, there are certain behaviors in addition to new crimes for which the capped sanctions are not available, and these typically relate to concerns for public safety. For example, in Hawaii, Louisiana, Pennsylvania, and West Virginia, the revocation cap does not apply when the violation is absconding (Haw. Rev. Stat. § 353-66; La. Stat. Ann. § 15:574.9; 61 Pa. Cons. Stat. Ann. §§ 6138; W. Va. Code § 62-12-19). Hawaii and Louisiana also exclude failure to register as a sex offender, Louisiana and Pennsylvania exclude possession of a prohibited weapon, and Alaska excludes failure to complete sex offender treatment or an intervention program for batterers (Alaska Stat. § 33.16.215). But in some states, revocation caps are not available based upon the individual’s offense of conviction, such as Louisiana, which excludes individuals who have been convicted of crimes of violence or sex offenses (La. Stat. Ann. § 15:574.9).
More than a third of the states that impose revocation caps (7 of 17) also explicitly provide that release is automatic upon completion of that term. For example, Alabama provides that the individual “shall automatically continue on parole for the remaining term of the sentence without further action from the board” (Ala. Code § 15-22-32(b)(1)). This ensures that the short term of incarceration serves as a swift and certain sanction for the parolee without burdening the parole board with further responsibility. West Virginia permits the Division of Corrections to effect release, but requires that release cannot be effected until the Division approves a home plan (W. Va. Code § 62-12-19), which has the potential to result in an administrative delay. The majority of states, however, are silent on the issue.
Though these short periods of incarceration for parole violations are becoming prevalent in modern parole practice, more work could be done to increase their effectiveness. Those states that permit the imposition of lengthier periods of confinement, ranging from 60 days to six months, could reduce the periods, or consider developing a sanctioning grid to establish better proportionality between the violation and the sanction. States that currently exclude absconding could follow Alaska’s lead and establish a revocation cap for absconding violations that is longer than for other technical violations. The seventeen states that currently do not impose any caps on revocation periods at all could consider enacting them. And all states could make it clear that the individual is entitled to release on parole without a hearing after serving the sanction.