Should Maine Reestablish Parole to Correct Racial Disparities in Incarceration Rates? (Article)

Should Maine reestablish parole to correct racial disparities in incarceration rates?

Posted by Ed Folsom, February 28, 2022.

The Commission to Examine Reestablishing Parole and its December 2022 Report.

In December of 2022, a commission formed by the Maine Legislature, the Commission to Examine Reestablishing Parole (Commission), issued a report on whether Maine should reestablish a parole system, among other things. Maine abolished parole for all new criminal sentences in 1976. A parole system remains in place for the few who were sentenced before that legislation took effect. But everyone afterward who has been sentenced to serve a term of imprisonment has been ordered to serve a definite term, set by the court at the time of sentencing with no opportunity for early release on parole.

Apart from earning deductions from a sentence for good behavior and program participation (“good time”), the only opportunity to be released before serving the entire period that the sentencing judge orders to be served is through participation in the Supervised Community Confinement Program (SCCP). But not everyone is eligible for the SCCP. Department of Corrections officials determine who is allowed to participate, and Maine statutes don’t allow SCCP for anything more than the last 30 months of a sentence no matter how long the sentence.

Ultimately, the 13-member Commission voted 7-2,[1] to recommend reinstating parole. The recommendation was the fourth in a series of six recommendations. Here are the Commission’s recommendations as they appear in its Executive Summary, without the elaboration provided later in the body of the report:

1. Establish new mechanisms not currently provided for in Maine law to open pathways for early release of incarcerated persons who no longer pose a threat to public safety.

2. Enhance and amend existing mechanisms currently provided for in Maine law to open pathways for early release of incarcerated persons who no longer pose a threat to public safety.

3. Provide Baseline Funding for the Maine Criminal Justice Sentencing Institute.

4. Reestablish parole in Maine.

5. Ensure that any proposal to reestablish parole in Maine includes clear criteria for eligibility, process transparency, and increased support for victims.

6. Establish a new Criminal Law Revision Commission. (Report, p. iii)

The findings underlying these recommendations are set forth as follows in the report’s Executive Summary, without the elaboration that accompanies them in the report’s body:

– Disparities in the racial demographics among those incarcerated in Maine and the general population of the State are staggering.

– Violent crime is ultimately a public health issue and can be cyclical in nature.

– The success of any program established to address disparities in the criminal justice system will depend on ensuring adequate resources are available for offenders, victims, and communities to support people in rehabilitation, restorative justice, and to avoid interactions with the criminal justice system in the first place.

– The success of any program established to address disparities in the criminal justice system will require that the Legislature carefully consider reforms to other components of the criminal justice system, as no singlular component stands in isolation. (Report pages ii-iii)

Note that 3 out of the Commission’s 4 findings are directed at disparities in racial demographics among Maine’s incarcerated population or in Maine’s criminal justice system more generally. The top finding is that disparities in racial demographics among Maine’s incarcerated and Maine’s general population are “staggering.” No Commission finding addresses the likelihood of achieving any particular objective by re-instituting parole.

The “Findings” section of the body of the report elaborates on the Commission’s racial disparities finding, with the following:

“Racial disparities are clearly represented in the Maine Department of Corrections Year-End Adult Data Reports from 2021 and 2020. Those disparities intersect with racial disparities in sentence lengths that negatively impact equal access to existing programs like the Supervised Community Confinement Program. The disparities in access to the Supervised Community Confinement Program, as compared to the total prison population in Maine, can be seen in the Maine Department of Corrections Monthly Data Reports for the year 2022.” (Report p. 26)

This is consistent with the Commission’s following remarks, in the report’s “Introduction” section, about its observation of Maine’s prison system:

“In its examination of the prison system in Maine, the commission found the disparities in the racial demographics between those incarcerated in Maine and the general population of the State to be staggering. The disparities are clearly represented in the Maine Department of Corrections Year-End Adult Data Reports from 2021 and 2020, which include data showing that 18% of the male prison population and 12% of the female prison population is non-white, whereas only 5.8% of the state population is non-white, as of the last census. These disparities are further reflected in the length of sentences received, and access to currently provided pathways for early release, such as the Supervised Community Confinement Program. This is a glaring injustice that must be addressed in order to ensure a criminal justice system that is fair and just.” (Report p. 7)

With that, the Commission to Examine Reestablishing Parole issued an indictment of Maine’s criminal justice/prison system — declaring that it embodies a “glaring injustice.” And on what grounds did the Commission find that Maine’s prison system embodies a “glaring injustice?” On grounds that “disparities in the racial demographics between those incarcerated in Maine and the general population of the State…[are]…staggering” – only 5.8% of Maine’s population is non-white, yet 18% of its male prison population and 12% of its female prison population is non-white. And on further grounds that “[t]hese disparities are also reflected in the length of sentences received, and access to currently provided pathways for early release, such as the Supervised Community Confinement Program.” From what information did the Commission draw these conclusions? From the Department of Corrections Year-End Adult Data reports for 2020 and 2021 and monthly reports for 2022, it claims. And so, for the Commission, the answer to the question, “Should Maine reestablish parole?” is “Yes.”

The Commission’s indictment of Maine’s criminal justice system is a serious accusation. The Commission should have set forth serious, competent evidence to prove it. Did it?

The Racial Disparity Equals Injustice Assumption.

Tort law has the doctrine of res ipsa loquitur. It means “The matter speaks for itself.” The doctrine emerged in the English case of Byrne vs. Boadle, in 1863. A barrel of flour fell from the second story of a shop owned and operated by Boadle, and landed on Byrnes’ head as Byrne walked along the road next to the shop. Byrne sued Boadle for damages on a theory of negligence. The issue in the case was what Byrne needed to prove to establish negligence. The court declared that negligence was established by the bare fact that a flour barrel tumbled from the second floor of Boadle’s shop onto Byrne’s head. That, itself, was enough to establish negligence under the doctrine of res ipsa loquitur.” Barrels of flour don’t tumble from second stories of businesses unless at least negligence is at play – res ipsa loquitur, the thing speaks for itself.

Although it’s become high fashion to treat disparate outcomes between racial groups as a sort of res ipsa loquitur proof of injustice, it isn’t. While barrels of flour don’t tumble from the windows of businesses without being caused by negligence at least, disparate outcomes between individuals, alone and as members of groups, happen all the time without being caused by unjust discrimination, systemic or otherwise. Maybe Maine’s system embodies racial injustice, and maybe not. But the bare fact that disparate rates of incarceration exist between certain groups that are selected for scrutiny does not prove the case.

To illustrate, let’s try slightly rewording the Commission’s observations, replacing their references to racial demographics with references to male/female demographics:

In its examination of the prison system in Maine, the commission found the disparities in the male/female demographics between those incarcerated in Maine and the general population of the State to be staggering. The disparities are clearly represented in the Maine Department of Corrections Year-End Adult Data Reports from 2021 and 2020, which include data showing that 7% of the prison population is female and 93% is male, whereas only 49.3% of the state population is male while 50.7% is female, according to most recent figures from the U.S. Census Bureau. These disparities are further reflected in the length of sentences received, and access to currently provided pathways for early release, such as the Supervised Community Confinement Program. This is a glaring injustice that must be addressed in order to ensure a criminal justice system that is fair and just.

Although the disparities pointed out in this altered statement reflect the actual state of affairs in Maine’s prison system, nobody would take seriously the conclusion that “This is a glaring injustice that must be addressed in order to ensure a criminal justice system that is fair and just.” Why not? After all, more than half of Maine’s population is female[2], yet there are more than 9 males in Maine’s prisons for every female; sentences for males are longer than sentences for females (average DOC stay for females 1.43 years versus 2.1 years for males in 2021[3]); and female prisoners are released to the Supervised Community Confinement Program in overwhelmingly greater numbers in proportion to male prisoners[4], even though females fail the program at a rate higher than males[5]. Is it because it’s acceptable to consider that males might be imprisoned in numbers disproportionate to females because males commit the crimes that lead to their incarceration in disproportion numbers?

What Is the Commission’s Evidence of Racial Disparities?

Let’s play along for a while with the Commission’s assumption that disparity equals injustice. Beyond non-whites being imprisoned disproportionately to their percentage of Maine’s overall population, the Commission points to 2 additional disparities demonstrating injustice for non-whites: (1) disproportionately long sentences and (2) reduced access to early release through the Supervised Community Confinement Program. What do the numbers actually show us along those lines?

As to the first of these, there is no specific data, either included in the Commission’s report or in the 207 pages of materials appended to it, that touches on, let alone demonstrates disproportionately longer prison sentences for non-whites. And the Department of Corrections does not publish information that breaks down sentence length by race in its various weekly, annual and monthly reports posted on its website. Whatever the Commission might have relied on to reach its conclusion about racial sentencing disparities – anecdote, assumption, information that it viewed but chose not to specifically reference or make public – is anyone’s guess.

As to the second indicator, the Commission’s report specifically references the DOC’s 2020 and 2021Year-End Annual reports and its 2021 monthly reports as sources for the information. The 2020 and 2021 annual reports do not include a racial breakdown of Supervised Community Confinement Program placements. The currently posted monthly report, December of 2022, shows the following racial breakdown for 2022:

- Asian females comprised 0.0% of the female prison population and 0.00% of SCCP placements. Asian males comprised 0.6% of the male prison population and 1.5% of male SCCP placements.

- Black females were 4.6% of the female prison population and 0.0% of female SCCP placements. Black males were 11.3% of the male prison population and 9.1% of male SCCP placements.

- Native American females were 3.9% of the female prison population and 8.7% of female SCCP placements while Native American males were 3.8% of the male prison population and 3.0% of male SCCP participants.

- Native Hawaiian and Pacific Islander females were 0.0% of the female prison population, while NHPI males made up 0.1% of the male prison population and 1.5% of male SCCP participants.

- Females of 2 or more races were 1.3% of the female prison population and 0.0% of female SCCP participants. Males of 2 or more races were 1.5% of the male prison population and 3.0% of male SCCP participants.

- Females of unknown race were 1.3% of the female prison population and 0.0% of female SCCP participants. Males of unknown race were 3.4% of the male prison population and 4.5% of male SCCP participants.

- White females were 88.8 of the female prison population and 91.3% of female SCCP participants. White males were 79.3% of the male prison population and 77.3% of male SCCP participants.[6]

These are the only racial categories the Department of Corrections uses. Do these figures demonstrate racial disparities in SCCP participation that amounts to “glaring injustice?” Might we need to know more about individual cases to reach a valid conclusion?

The Commission’s finding regarding “staggering” disparities between the racial composition of the incarcerated and Maine’s population rests in large part on its found fact that non-whites are only 5.8% of Maine’s population. Because non-whites are 12% of Maine’s female prison population and 18% of Maine’s male prison population, the Commission found this disparity “staggering.” At 5.8% of Maine’s population for non-white males and females combined, the percentage of non-white males and non-white females in Maine’s population would be 2.9% for each group. That would make the prison population of non-white females a little more than 4 times its percentage in the general public. It would make the non-white male prison population a little more than 6 times its percentage in the general public.

But in fact, the 2020 Maine Census shows that people who identify as Black, either alone or in combination with another race, make up 2.7% of Maine’s population. For Native Americans, the number is 2.5%. For Asians, it’s 1.9%. The number who identify as “some other race,” alone or combined with another category is 4.7%. Altogether that’s 14.3% of the population who potentially identify as non-white. This is fairly consistent with the Census Bureau’s determination that 90.8% of Maine’s population is “white alone.” Is the population of people identified as non-white in Maine the 5.8% that the Commission cites, or is it closer to 9%? If it’s the latter, the percentage of non-white females in Maine’s prison population is a little more than 2 ½ times their percentage in the population at large, and the percentage of non-white males in Maine’s prison population is 4 times their percentage in the population at large. That’s still a disparity, but less dramatic.

To recap, the Commission’s findings of “staggering” racial disparities and “glaring injustice” are grounded in its findings of 3 separate disparities: (1) disparities between the percentage of non-whites in Maine’s prisons in relation to their percentage of Maine’s population; (2) disproportionately long sentences for non-white prisoners; and (3) disproportionately low access to early release through SCCP for non-white prisoners. The inmate/general population disparities might range as high as 4 to 1 for non-white females and 6 to 1 for non-white males, but possibly less, depending how the percentage of non-whites in the general population is determined using recent census data. As for the Commission’s finding of disproportionately long sentences for non-whites, it did not cite or provide any specific evidence and no such evidence exists in data published in the DOC’s weekly, monthly or annual reports. As for disparately low access to SCCP for non-white prisoners, the DOC’s monthly report for December 2022, covering year 2022, shows relatively mild disparities between various racial groupings, pointing in both directions.

Are Racial Disparities in Imprisonment Rates Due, at Least in Part, to Disparities in the Rates at Which Racial Groups Commit Serious Crimes?

What would we find if we were to explore the possibility that racial disparities in the number of people imprisoned in Maine are caused, at least in part, by racial disparities in the rates at which imprisoned people commit the crimes that lead to imprisonment? How would we go about it?

It would require us to reference information breaking down crimes committed by race along with the rate of imprisonment for those same crimes, also broken down by race. To determine the extent of any racial disparities in the length of sentences imposed, we would need information breaking down sentences imposed for particular crime categories, also broken down by the races of those sentenced. To determine whether any disparities between racial groups are due to unjust discrimination, we would need to account for the facts of each particular case – how each crime was committed, the criminal history of each defendant, and the other salient factors that courts weigh in the sentencing process – to allow us to approximate apples-to-apples versus apples-to-oranges comparisons.

But even if we had access to databases of solved crimes broken down by race and rates of imprisonment broken down by race, our analysis would still be susceptible to criticism. For instance, if we were to find that non-whites disproportionately committed drug trafficking offenses and that their rate of imprisonment for drug trafficking is proportionate to the rate at which they commit those offenses, a critic might claim that whites actually commit drug trafficking offenses at the same or a greater rate than non-whites, and that the numbers of charges brought against whites versus non-whites just reflect police targeting of non-whites, while whites are allowed to get away with their drug trafficking offenses. Who can disprove that?

To avoid that problem, we might narrow our focus to crimes about which nobody can seriously claim that the system allows whites to skate while it targets non-whites for extra prosecution. Homicides fit the bill. Society has a strong aversion to letting people “get away with murder.” Police make concerted efforts to solve homicides. Any racial disparities in prosecutions and imprisonments for homicides must be due to racial disparities in the rates at which people of different races commit homicides. But even here, it’s sometimes tough to determine whether an individual perpetrator is “white” or “non-white.”

The Maine State Police publish a list each year of non-vehicular homicides in Maine, including the name of each victim, the town where the killing occurred and the date it occurred, as well as the names of those arrested for each offense and their charged offense or offenses. Through photos accompanying news accounts, it’s possible to determine whether a given person charged is Black. But it isn’t always possible to determine whether the person charged is otherwise non-white. For instance, what about a non-Black Hispanic person, a non-Black person of Middle Eastern or North African heritage, or a person of American Indian heritage? If we focus entirely on racial disparities for Black people, we don’t have to worry about that. We can just consider that everyone charged with a homicide who isn’t Black is white. And when we have no available information to determine whether a given person charged with a homicide is Black or white, we can just consider the person to be white. This avoids any potential over-counting of Blacks.

The Maine State Police homicide listings for the years 2018-2022 allowed me to determine[7] that, to date, 98 people have been charged with murder, felony murder and/or manslaughter for non-vehicular homicides arising from 83 distinct homicidal episodes (each involving 1 or more victim(s)) that occurred during this time frame. Seventy-one are white males[8], 6 are white females, 18 are Black males, and 2 are Black females.[9] How proportionate is this to Maine’s population?

The 2022 census pegs people who are white “alone” at 90.8% and those who are white “alone or in combination” at 95.4% of Maine’s population. People who are Black “alone” are pegged at 1.9% and those who are Black “alone or in combination” are pegged at 2.7% of Maine’s population. Given that Maine’s population is roughly evenly divided between males and females (50.7% female, 49.3% male), males who are white alone are 45.4% and those who are white “alone or in combination” are 47.7% of Maine’s population. The same is true of white females. Males who are Black “alone” are .95% of Maine’s population, and those who are Black “alone or in combination” are 1.35% of the population. The same is true of Black females.

Again, we are considering whether disproportionate incarceration rates for Blacks, a readily identifiable sub-group of non-whites, might be caused by their disproportionate commission of crimes, by examining relative commission rates for crimes that are the least susceptible to biased enforcement.

White males were 71 of the 98 people charged with murder, felony murder and/or non-vehicular manslaughter committed during 2018-2022 (72.44%). They were 71 of the 90 males charged in these crimes (78.88%).
- This group, representing 45.4% or 47.7% of Maine’s population (depending how “white” is determined), was over-represented overall by about 25% to 27% compared to its percentage of the population. It was underrepresented in the subgroup “males” by between 11.9% and 16.5% (where it constitutes 90.8% to 95.4% of the male population).
Black males were 18 of the 98 people charged for these homicides (18.36%) and were 18 of the 90 males charged (20%).
- This group, representing 1% or 1.35% of Maine’s population (depending how “Black” is determined), was over-represented between 13.6 times and 18.36 times in relation to its percentage of Maine’s population. It was over-represented in the sub-group “males” between 7.4 times and 10.5 times (where it constitutes 1.9% to 2.7% of the male population).
White females were 6 of the 98 people charged (6%) and were 6 of the 8 females charged (75%).
- This group, representing 45.4% or 47.7% of Maine’s population, was underrepresented by between 39.4% and 41.7% in relation to its percentage of Maine’s population. It was underrepresented in the subgroup “females” by between 15.8% to 20.4% (where it constitutes 90.8% to 95.4% of the female population).
Black females were 2 of the 98 people charged (2%) and were 2 of the 8 females charged (25%).
- This group, representing 1% or 1.35% of Maine’s population (depending how “Black is determined), was over-represented by 65% to 100% in relation to its percentage of Maine’s population. It was over-represented in the subgroup “females” between 9.25 times and 13.1 times (where it constitutes 1.9% to 2.7% of the female population).

Clearly, in the 5-year period 2018 through 2022, Black males and Black females were charged with murder, felony murder or non-vehicular manslaughter in Maine at a disproportionately high rate in relation to their percentage of the population. In the case of Black males, they were charged with these offenses at a rate 13 to 18 times higher than their percentage of the overall population would predict. How does that compare to the rate of imprisonment of Black males in Maine? Are Black males imprisoned at a rate higher than that?

According to the Maine Department of Corrections yearly report for 2021 (page 4), the 6-year average for Black males incarcerated in DOC facilities was 11% of the male DOC population. In 2021, the rate for Black males was 12% of the male DOC population. Black females were 5% of the female DOC population in 2021. The other racial categories that the DOC tracks made up the following percentages of the male prison population in 2021, in declining order: White 80%, Unknown 4%, Native American 3%, 2 or more races 2%, Asian 1%, Native Hawaiian or Pacific Islander 0%. For non-Black females, the 2021 percentages of the female population were as follows: White 87%, Native American 4%, 2 or more races 3%, Unknown 1%, Asian 0%.

These figures show that in 2021 Black males were imprisoned in Maine at a rate 11 to 12 times higher than their respective percentage of Maine’s population. That’s actually lower than the 13 to 18 times higher rate at which they were charged with homicides during the period 2018 through 2022. Black females were imprisoned at a rate 5 times higher than their respective percentage of Maine’s population, which is much higher than the comparative rate at which they were charged with homicides during the period. However, females are charged in a very small percentage of homicides overall. As compared to other females, Black females were charged at a rate more than 9 times higher than their percentage of Maine’s female population.

Of course, it is possible that Blacks commit homicides in Maine at a highly disproportionate rate but only commit the other crimes that they are imprisoned for at the same or at a lower rate than whites – that the disproportionate rate of Black imprisonment simply reflects biased police practices, biased prosecution, and biased sentencing by Maine’s judges. But it’s unlikely that Blacks commit crimes in Maine at an overall rate in line with their percentage of the population, with the sole exception of homicides which they commit at a rate wildly out of alignment with it. I suspect that the template so reflexively applied by many to matters of race these days – disparity equals injustice – does not explain what’s going on here. Existing racial disparities in Maine’s rates of imprisonment probably have a lot to do with disparities in the rates at which various groups are committing the crimes that lead to imprisonment.

Why do various groups commit crimes at disparate rates? Who knows? But if you just assume that they don’t and that all racial disparities in rates of imprisonment are due to unjust discrimination, and if you simply proceed from there, you’ll never even ask the pertinent questions. In which case, you would be led to build public policy on the foundation of an erroneous assumption.

I would have expected a serious task force digging into the matter of racial disparities in Maine’s imprisonment rates to assemble and analyze data in a way designed to get to the bottom of it. In the category of non-whites, Maine census data tell us that Blacks make up the largest single non-white group tracked. At that, people who are Black “alone” are only 1.9% of Maine’s population. People who are Black “alone or in combination” are only 2.7% of Maine’s population. To be in line with those percentages of Maine’s population, Black males would need to commit no more than 1 out of every 100 serious crimes — the kind that lead to a DOC sentence — and Black females would need to commit no more than 1 out of every 100 serious crimes (o.k., maybe 3 out of every 200). Is that what’s happening? If not, then disparity in incarceration rates does not automatically demonstrate racial injustice. How much of the disparity in incarceration rates might be due to systemically biased policing, prosecution and sentencing above and beyond disproportionate rates of crime commission? We can never know if we proceed from the erroneous assumption that disparity automatically equals injustice.

And why did the Commission to Examine Reestablishing Parole recommend reestablishing parole? What would that do to reduce or eliminate racial disparities in Maine’s incarcerated population? Is it possible that a politically appointed parole board, working from an erroneous assumption that disparity equals injustice might use the only tool at its disposal – the granting of parole – to align the racial composition of the prison population with the racial composition of the general public in the name of equity and justice?

Also, I might have expected the report of the Commission to Examine Reestablishing Parole to contain findings specific to whether reestablishing parole might achieve particular goals, especially pertaining to the entire adult DOC population, including the other 80-something percent of it. But then again, what do I know of this brave new world?

End Notes

[1] Report, p. 24.

[2] See U.S. Census Quick Facts.

[3] See 2021 MDOC Year-End Adult Data Report at p. 4.

[4] Id. at p. 3.

[5] Id.

[6] See p. 19 of MDOC December 2022 monthly report.

[7] Which anyone else can determine, too, by independently reviewing the information in the Maine State Police homicide lists and tracking down related news accounts.

[8] Of the 98 people charged with homicide, 72 of them are non-Black males. However, I have removed one Asian male from the count (Anthony Leng, Murder committed 1/7/2018, Portland) because he is Asian and because “Asian” is its own non-white category in both DOC and census statistics. This leaves 71 in the category “white males.”

[9] To reduce the chances of being slapped with a “misinformation” label, I have set forth the names of the 18 Black males and 2 Black females charged with murder, manslaughter or felony murder, with embedded links to pertinent news accounts below:

2018

2019

2020