Legality, Dignity, and Discretion

Abstract Parole-release systems across the United States vary widely but are characterized by broad de jure discretion and minimal legal restraints. Instead of using law to impose structure on parole-release decision-making, legislators and courts have generally used law to insulate parole-release decisions from meaningful scrutiny. After summarizing the history and modern practice of parole-release in the United States, this chapter makes a normative argument against broad discretion in parole-release decisions. The principle of legality and respect for the dignity of incarcerated people stand in favor of what this chapter calls the fair notice principle: parole systems should be structured to provide fair notice at the outset of a sentence about what a person needs to do (or refrain from doing) to earn an enforceable right to release on parole. The chapter closes by providing examples of how states can restructure their parole systems to respect this fair notice principle.