For the Defense - Vol. 8, Issue 1 - 12

these guidelines to prioritize public safety, give due consideration
to victim impact, encourage inmates to follow prison rules and
participate in institutional treatment and programming designed
to reduce recidivism, prioritize the use of incarceration and other
resources on offenders posing the greatest risk to public safety,
and use validated risk assessment tools which are " evidence based
and take into account available research relating to the risk of
recidivism, minimizing the threat posed to public safety and factors
maximizing the success of reentry. " 21
This legislation was not funded, which stymied formal action by
the Pennsylvania Commission on Sentencing for a decade. Even
without formal guidelines, the Parole Board quickly began using
risk assessment instruments and designing a process to consider
all that was intended in the 2008 reforms and a " decisional
instrument " to guide its decision makers into a properly weighted
evaluation of all the factors leading up to a decision to grant or
refuse parole release. It is a long process which cannot begin until
your state sentenced client is physically moved to a state prison.
About eight months prior to the controlling minimum sentence
date, institutional staff at your client's home prison will begin
preparing a case file by collecting all the information required to
be considered by the Board in making its decision. Five months
prior to the controlling minimum date, an institutional parole
officer conducts a pre-parole interview with the inmate to discuss
his home plan, employment, and other reentry opportunities and
finalizes the case file for the Board's review.
At this point in the process, the case is assigned to the decision
maker. This decision maker is one or more of the nine members of
the Parole Board and 21 hearing examiners employed by the Board.
This assignment is based on the crime underlying the sentence and
the length of the sentence. If the sentence falls on the Board's list
of violent offenses,22
parole release requires a simple majority vote
of the nine-member Board. If the sentence has an RRRI minimum
sentence or is a " short parole sentence " 23
where the maximum is
two years or less, then the inmate is not required to see the Board
prior to release if a hearing examiner votes to release him.
other cases fall into the " panel vote group " which require two
board members or a board member and a hearing examiner to sit
as a panel. Parole release requires two yes votes from the panel.
In the case of a tie, another Board member will be assigned to the
panel.
Once assigned, the decision maker conducts a pre-interview
review of the case file in preparation for the interview of the
inmate. The decision maker reviews institutional reports of the
inmate's compliance with rules and treatment, victim impact, and
risk and needs assessments. The risk assessments which have been
used by the Board have been the OVRT, LSI-R and the Static99. The
scores from these instruments are added together to provide the
decision maker with a " suggestion " threshold for parole release
and refusal.
About four months prior to the minimum date the decision
maker interviews the inmate and completes the " Parole Decisional
Instrument. " This instrument documents the consideration and
weighing of factors and documents the release conditions which
will be initially imposed for those being released and the conditions
12 For The Defense l Vol. 8, Issue 1
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the inmate must comply with to improve his chances at his next
parole interview when parole is refused. This decisional instrument
is confidential and privileged.24
The inmate will receive a document
called a " green sheet " which tells him whether his parole has been
granted or denied, provides a brief statement of reasons for that
decision, and lists the conditions to be followed irrespective of that
decision. When parole is denied, the green sheet also informs him
of when the Board will again consider him for parole.
Where parole is granted, about three months prior to the
minimum date the institutional parole officer conducts a " post
parole interview " with the inmate explaining the decision and
conditions. The inmate's home plan is sent to a field agent to
investigate and either approve or deny. The inmate will also
attend community reintegration orientation class at the prison.
The parole release decision is not self-executing. The inmate must
sign conditions and walk out the door or be constructively paroled
to a detainer sentence before he is considered paroled with a
minimal liberty interest in his continued freedom.25
Before that can
happen the institution checks for the existence of detainers and
does a drug screen. Where applicable, the prison makes sure a DNA
sample was secured, victim notification and payment of cost to the
compensation fund was made, and SORNA registration completed.
The guidelines mandated in 2008 were finally promulgated in
2022 and took effect January 1, 2023.26
It remains to be seen how
much this changes the process that had already evolved since 2008.
In its evaluation of resource expenditures, the Commission on
Sentencing notes that from the data it collected between 2010 and
2016 that recommendation of parole release for violent offenders
would drop from a rate of 51% to 41% while the rate for nonviolent
offenders would rise from 66% to 76%.
The guidelines clarify that the LSI-R is the accepted risk
predictor and impose reporting obligations on the Board relative
to conformity to the guidelines and reasons for departure. It, of
course, contains matrices. There is one for violent offenses and one
for non-violent. They are simple constructs which plot the three
levels of risk against three levels of the inmate's preparedness
for parole. Risk level is determined by where your client falls on
the LSI-R. Preparedness is a product of what the Department of
Corrections has observed and documented in your client's behavior
as well as what the decision maker notes in the interview. There are
11 possible points that can be achieved by a list of objective facts
and subjective impressions. The objective facts list includes things
like programming, compliance with treatment, and avoiding
misconducts. The subjective impressions list for the decision
maker's inmate interview includes acceptance of responsibility,
insight, and motivation for success. The good news of the matrices
is that high preparedness suggests parole release at every level of
risk. The bad news is that high preparedness requires a score of at
least ten points. More than one prior parole or probation failure
in one's lifetime takes away a point and immediately puts him at
the margin.
None of this means much to the client as the confidentiality of
the decisional instrument and his lack of access to the guideline
form shield him from the scoring, but the reasons articulated in a
decision to deny parole release might give him some clues. " Risk to
the community " is a clear indication that the LSI-R score was too
For the Defense - Vol. 8, Issue 1

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