Abstract
Despite being depicted as powerful actors, the work of the State's representatives in parole hearings has to date remained largely invisible. In this study, we aimed to fill this gap through a qualitative analysis of the oral arguments of prosecutors in 130 lifers’ parole board hearings in Israel. The findings suggest that prosecutors construct lifers’ parole hearings as an adversarial, yet asymmetrical, “boxing match.” Three themes were unveiled: Prosecutors construct the lifers as worthy of re-censure; view the lifers as solely responsible for their parole release; and construct the lifers as inherently suspicious individuals. In conclusion, prosecutors’ parole work seems to be more a defense of their shared professional identity as crime fighters than a promotion of an individualized, inclusive, and future-oriented parole decision-making process.
Introduction
Discretionary lifer parole boards – the authorities that decide when to release eligible lifers before completion of their full sentences – are supremely powerful, yet largely hidden, penal authorities (Aviram, 2020; Padfield et al., 2000; Padfield, 2013; Rhine et al., 2017). In recent years, in the wake of mass incarceration and the gradual movement from “front-end” to “back-end” sentencing mechanisms, scholars have been giving increased attention to the complex crafting of lifers’ paroles (Aviram, 2020; Bell, 2019; Griffin, 2018; Shammas, 2019; van Zyl Smit and Appleton, 2019; Young and Chimowitz, 2022). The focus of the literature in this area, understandably, has been on the crafting of lifers’ paroles through the eyes of parole board members and/or parole candidates (Griffin, 2018; Young and Chimowitz, 2022; Shammas, 2019). However, other actors can shape lifers’ parole process. In most U.S. parole systems (Cassidy, 2019), and some Australian, African (van Zyl Smit and Appleton, 2019), and Asian jurisdictions (Ono, 2023), the State's representatives, such as prosecutors and similar officials, play a role in lifers’ parole process by expressing their opinions during the parole hearings. Although scholars have made considerable efforts in exploring the work of State representatives at sentencing (Barkow, 2021; Wright and Levine, 2018; Lynch, 2023), their parole work has remained largely understudied (a recent exception is Aviram, 2020). This neglect aligns with the common view of prosecutors’ work as ending when the judge's gavel falls and as detached from the implementation of punishment (Barkow, 2021; Lynch, 2023). In addition, the focus of parole literature has been on the professional identity of parole board members rather than on other parole actors (Guiney, 2022; Young and Pearlman, 2022).
Exploring State representatives’ work at parole hearings may contribute to an understanding of the institutional, organizational, and procedural crafting of lifers’ parole hearings from multiple perspectives (Padfield et al., 2000; Padfield, 2013; Guiney, 2022; Young and Pearlman, 2022). Exploring this work may also illuminate the factors, forces, and discourses that construct lifers’ paroles by State representatives who often hold the key to release (Bell, 2019; Cassidy, 2019). Such studies would also allow for a fuller picture of the parole landscape (Padfield, 2019; Young and Pearlman, 2022), and for an investigation of the transformation in professional values and identities that takes place between sentencing and post-sentencing (van Zyl Smit and Appleton, 2019).
In this study, we aimed to fill the abovementioned gap via a qualitative analysis of the oral arguments of prosecutors given during 130 lifers’ special parole board (hereinafter: board) hearings in Israel. The findings suggest that through their arguments, prosecutors construe lifers’ parole hearings as adversarial, yet asymmetrical, “boxing matches,” between them and the lifers. They do so by re-censuring them, sending a message of lifers’ insufficient improvement during incarceration, and casting doubt on lifers’ trustworthiness and character. Such narrative-making creates an environment in which parole decision-makers feel comfortable assigning moral condemnation, mistrust, and skepticism, and communicate despair in the face of lifers’ hope. In conclusion, prosecutors’ work seems to be that of “hope disrupters,” more a defense of their shared professional identity as “crime-fighters” than a promotion of an individualized, inclusive, and future-oriented parole process.
Literature review
Lifers’ parole and its underlying logic
Lifers comprise a sizeable group of the prison population in many jurisdictions (especially in the U.S.), and many of them are elderly and serve their sentences without clear penological justification (van Zyl Smit and Appleton, 2019). Release from prison for eligible lifers is granted in many jurisdictions by parole boards and similar authorities (e.g., Australia, Canada, the UK, and several U.S. systems). The impact of the lifers’ parole decision is dramatic, potentially shortening their sentence by a full decade or, alternatively, implementing “death by incarceration” in the event of a continued parole denial (van Zyl Smit and Appleton, 2019).
Providing lifers with a meaningful opportunity for parole has been justified through the principles of “individualization” and “progression” from retribution to rehabilitation with time, which implies a “division of labor” between sentencing judges and parole boards (van Zyl Smit and Appleton, 2019). Providing the opportunity for parole also reflects a broader recognition of lifers’ constitutional rights, such as the right to “social rehabilitation,” “re-socialization,” “human dignity,” “hope,” and the possibility of “atonement,” even for those who have committed very serious crimes (Padfield, 2013; van Zyl Smit and Appleton, 2019). In practice, the traditional penological considerations of discretionary parole boards for lifers have been those of public safety, rehabilitation, and possible reintegration into the community (Murcia, 2022; Padfield, 2013; van Zyl Smit and Appleton, 2019). Lifers’ parole decision-makers therefore have access to a wide breadth of information regarding the lifers’ crimes and personal characteristics before and during imprisonment to help them make holistic decisions tailored to the lifers’ circumstances (e.g., prison conduct, rehabilitation, risk assessment, etc.) (Padfield, 2013). That said, “the point of a parole hearing is not to retry the case” but to assess future risk and rehabilitation (Young and Pearlman, 2022: 786).
Research, mostly conducted in the U.S., suggests that parole decision-makers negotiate competing professional identities and discourses in the face of shifting economic, political, and institutional pressures (Aviram, 2020; Shah, 2017, Shammas, 2019). The logic employed by parole decision-makers in various socio-legal contexts and periods has been found to include various, often conflicting, discourses, such as clinical-rehabilitative, disciplinary-normalizing, actuarial-risk-management, and punitive-retributive (Griffin, 2018; Shah, 2017; Shammas, 2019). Studies have revealed that lifers’ parole boards enmesh actuarial risk with an “atomistic” discretionary evaluative judgment of lifers’ “insight” toward the crime (Aviram, 2020; Dalke, 2023; Shammas, 2019). They operate with extreme caution, employing, openly and less openly, the logic of risk management and punishment (Aviram, 2020; Cassidy, 2019; Griffin, 2018; Shammas, 2019). Scholars have also found that lifers’ parole decision-makers, through the use of lifers’ remorse, promote broader values, for instance, the truth-finding role of the criminal justice system, ensuring that lifers view the cause of their crime as a deficit within themselves and that they internalize the logic behind their incarceration (Young and Chimowitz, 2022).
The crafting of parole hearings and the role of state representatives
The crafting of lifers’ parole hearings varies between systems, in accordance with the sentencing framework, the parties involved, and their professional expertise, procedures, and the sociocultural context. However, the basic model of parole hearings lies on a spectrum ranging from adversarial (parole decision-makers who play the role of umpire) to inquisitorial (parole decision-makers who play an active and major role in the process) (Padfield, 2013; Ministry of Justice, 2022; van Zyl Smit and Appleton, 2019).
In many jurisdictions, parole hearings resemble criminal justice procedures, but they also have similarities to administrative proceedings (Young and Pearlman, 2022). European jurisprudence demands that an independent “court-like” body be entrusted with the release of lifers. Such bodies are meant to conduct adversarial hearings in accordance with the prisoner's procedural rights (Padfield, 2013). In practice, prosecutors in the European system usually play no role in parole release, and the State is represented at the parole hearing, if at all, through prison governors, parole or probation officers (Demleitner, 2021; van Zyl Smit and Appleton, 2019). In the UK, lifers’ parole panels are meant to act as an expert inquisitorial decision-making body tasked with evaluating risk, and are not meant to be characterized by the adversarial approach found in criminal courts; however, in practice they are an “adversarial/inquisitorial hybrid” (Padfield et al., 2000; Padfield, 2013). The secretary of state representatives (e.g., prison governor, probation officer) should not act as “advocates” and should not offer their views on whether the lifer should be released. In practice, these officials usually introduce the case, draw the panel's attention to questions of risk or missed information, and play a relatively minor role in the hearings, putting the onus on the lifers to convince the panel of their “releasability” (Padfield et al., 2000; Padfield, 2019; Ministry of Justice, 2022).
Lifers’ parole hearings in the U.S. have been viewed as containing “some adversarial elements, but the overall process does not resemble a commitment offense retrial” (Young, 2016: 444; Kokkalera, 2022: 189). Most U.S. parole systems allow prosecutors to give written or oral input at parole hearings (Cassidy, 2019; Demleitner, 2021). U.S. prosecutors’ arguments at lifers’ parole hearings, as legal scholars have suggested, rely heavily on risk but also on crime severity, especially in sensitive cases that are exposed to racial and political biases. In such systems, often in tandem with the victims, prosecutors act as the “moral memory bloc” in the hearing – they are there to remind everyone of the past crime and refute the lifers’ accounts (Aviram, 2020; Bell, 2019; Young and Pearlman, 2022). This picture aligns with U.S. prosecutors’ professional identity and motivations during sentencing. U.S. prosecutors are described as displaying “tough justice” at sentencing, showing fervent zeal for their worldview, dogmatically aiming to win at all costs, and spending whatever it takes to extract the maximum punishment (Barkow, 2021; Wright and Levine, 2018). With regard to parole, U.S. lifers’ parole boards have been found to interpret non-release recommendations by prosecutors as highly persuasive, and the odds of being granted parole are significantly lower if a prosecutor opposes release (Bell, 2019; Murcia, 2022; Demleitner, 2021; Young and Pearlman, 2022). However, a greater commitment to broader social values, resistance to mass incarceration, and a preference for evidence-based policy for lifers has been seen in the rise of a “new progressive prosecution” in some U.S. jurisdictions (Green and Roiphe, 2020). For example, the Los Angeles district attorney instructed prosecutors not to appear at lifers’ parole hearings, and even allow them to submit letters supporting parole after the mandatory minimum period was served (Murcia, 2022).
Although current scholarship points to the importance of State representatives in terms of the crafting of parole hearings and outcomes, key questions remain unanswered, including which open and non-open instrumental and moral functions are played by State representatives at parole hearings, how they conceptualize lifers’ hearings, and most importantly how they conceptualize lifers themselves. In addition, questions remain with regard to how they understand their professional identity and values outside the criminal process.
Context, data, and method
Context
The Israeli parole system represents a middle ground between U.S. and European systems (Dagan, 2021). Like several U.S. discretionary parole systems, the Israeli board relies on its broad discretion rather than numeric guidelines, and some groups of prisoners are not eligible for parole (e.g., terror-related murder). However, more similar to European parole systems, the Israeli system operates under a determinate rather than indeterminate sentencing regime, the court does not determine a minimum term to be served before parole eligibility (“tariff”), and the role of punitive considerations in the parole process is limited (Dagan, 2021; van Zyl Smit and Appleton, 2019). Exceptions and legal technicalities aside, the typical sentence for murder was, at the time of this study, a mandatory indeterminate life sentence. 1 After a commutation committee commutes the indeterminate sentence to a determinate one of at least 30 years, this determinate sentence becomes the maximum sentence to be served. This sentence is subject to parole possibility after the lifer has served two-thirds’ time, meaning that the first opportunity for parole for lifers normally takes place after 20 years of imprisonment, at the least (Parole Law, 2001: ss.29–30).
Currently, there are around 370 lifers out of around 6200 “criminal prisoners” in Israel (IPS, 2021). 2 During imprisonment, lifers’ rehabilitation is normally based on a progression from prison education and psycho-educational rehabilitation, admission to a rehabilitative unit and successful completion of group and individual rehabilitation work, and they are paroled, if any, to a half-way house or other restricted institution (IPS, 2022). The Prison Service Regulation (2021), however, restricts lifers’ possibilities for rehabilitation work. Supervised group work outside prison is allowed only after serving a quarter of the sentence, being approved for furloughs, showing a lack of risk, and having less than 3.5 years left to be served. Unsupervised individual work is allowed only after successfully completing group rehabilitation and police recommendation. The little data regarding prisoners’ access to rehabilitation suggest that about 57% of prisoners’ therapeutic needs were not met by the Israeli prison service (State Comptroller, 2021).
The board is the official authority responsible for paroling lifers in Israel (other prisoners are decided on by a regular board with different rules and professional settings) (Dagan, 2021). The board hearings are usually conducted within hearing rooms inside prison walls. The board is considered a “quasi-judicial” body comprising a chairperson (district judge) and two clinical experts (e.g., social worker, criminologist). The board's hearings include an oral discussion of the case in the presence of the board members, the lifer, the lifer's counsel, the prosecutor (who represents the State in the process), and the victim's family (Parole Law, 2001: s.33). The prosecutor usually opens the argument, the lifer's counsel responds, and the lifers express their closing words, while the board members ask questions from time to time (ss.16–17). The board hands over its written decision at the end of the hearing. The hearing is transcribed verbatim by the board’s clerk but is not published officially (Sharon, 2003). Official data on the board's work are limited, but it is estimated to conduct around 90 hearings per year, many of which are case-management technical hearings (Knesset, 2019).
According to the law, the board is meant to assess whether the lifer's release “is appropriate and would pose a risk to public safety” (s.3). As such, it is within the board's broad discretion to consider crime severity, criminal history, prison conduct and rehabilitation, post-release plans prepared by the prison rehabilitation authority, victim impact statements, and risk assessment (ss.9–12). The board also takes into consideration whether the lifer “has notably and substantially changed in terms of understanding the severity of his actions and his willingness to integrate within and contribute to society” (s.10(b)). Only in “exceptional and unusual cases” should parole be denied as an act of retribution or general deterrence (s.10(a)).
The prosecutors, all public servants, are “part of the law enforcement system,” (Public Prosecution, 2018: 1) and are considered as the Attorney General's Counsel on the board (s. 16). The prosecutors do their parole work on a rotation basis in addition to their “traditional” prosecution work (pressing charges, presenting evidence, offering sentencing submissions). However, the attorney general's policy regarding parole is that prosecutors should give preference to “rehabilitation outside prison as long as public safety is not at risk” and should consider that “during the parole phase the principle of retribution already had its answer at sentencing” (State Attorney, 2018: 62). Similarly, the head of Israeli parole boards has stated that prosecutors should not function as prosecutors at a criminal trial but represent the public interest and focus on the risk to society (Sharon, 2003: 116). The scant research on the board's parole work indicates that prosecutors on regular parole boards, deciding on non-lifers, are largely resistant to granting parole (Rosenfeld and Noah, 2021).
Data and method
The data for the current study were taken from the prison rehabilitation authority's archives and consist of all board hearings from 2018 (the year the prison rehabilitation authority started formally archiving its work) to 2020. The data consist of the transcribed board hearings of 130 lifers. Each hearing is typically 5–10 transcribed pages in length and contains the narratives of the stakeholders participating in the hearings, as well as the board's written decision (about 3–5 transcribed pages). The data yield about 1500 transcribed pages overall, about 600 of which are the prosecutors’ arguments, which comprise the unit of analysis for this study.
Of these data, all the lifers discussed by the board served their mandatory sentences for murder (two, in addition, were convicted of rape) and all were adults. The lifers’ maximum determinate sentence (after being commuted) was 31.2 years on average (range: 22–48 years), and their average age at the time of the hearing was 54.5 years (range: 39–78). The lifers were mostly men (94%; n = 123) and a few women (6%; n = 8). About two-thirds were Jewish (62%; n = 82), and about one-third were Arab (38%; n = 49). A few of the lifers (6%; n = 8) served prison time before their life sentences. The lifers were legally represented in the vast majority of cases (93.8%; n = 122).
The board rejected lifers’ parole applications in around 86.1% (n = 112) of all the cases and granted parole in around 13.8% of the cases (n = 18). When parole was granted, the lifers had already served 22.8 years (around 80% of their average determinate sentence). The prosecutors resisted the lifers’ parole applications in the vast majority of cases (around 93%; n = 121). In all the rest of the cases (about 7%; n = nine cases, five of these cases were women), following the prosecution's non-resistant position, the lifer was granted parole by the board.
Access to the data was approved by the prison rehabilitation authority's research committee and the authors’ university's institutional review board. We exercised caution in anonymizing the data and eliminating any identifying details when analyzing and reporting the findings. A six-step inductive-driven thematic analysis was conducted (Clarke and Braun, 2013).
All three themes found were present in almost every prosecutor's arguments for denying lifers’ parole. In the cases in which prosecutors did not resist lifers’ parole, their narratives were either consistent with those of the lifers’ counselors or did not add meaningful content (e.g., “I have nothing more to add”), with the exception of their attitude toward women lifers (see below). We found no significant narrative-related differences according to ethnicity (parole cases that related to the Palestinian-Israeli struggle were not part of the data, see Dagan, 2023). We also found no substantial class-related narrative differences, possibly because after decades behind bars, lifers typically have few financial resources or support (Avieli, 2022).
Findings
Constructing lifers as those deserving of re-censure
The first theme shows how prosecutors viewed lifers as worthy of being re-condemned rather than as potentially reformed individuals. As such, in their eyes, lifers deserved continued “censure,” “condemnation,” and “denunciation” for their past crimes, the harm that continued after sentencing, and for their depraved moral character.
Condemning lifers through static censure
Prosecutors’ arguments usually started with a summary of the court's conviction and the sentencing remarks, reminding all that the lifer's crime was “extremely cruel,” “brutal,” “morally despicable,” etc. This kind of narrative sent a message about lifers’ inherent moral inferiority and the parole denial as a form of doing justice. The court's determinations were viewed by the prosecutors as a “master narrative” for framing the hearing, despite the passage of decades since the time of the trial: “Reading the verdict [is] essential to get a proper picture of the prisoner's acts and his attitude today” (C-54185-05-16).
When rephrasing the court's determinations, prosecutors’ rhetoric was voiced in a legalized-censuring manner, similar to the prosecution's submissions at the time of sentencing, which referred to the lifers’ severe moral blameworthiness: We are talking here about murder, the most serious offense in criminal law. In this case, the [crime] was not committed as a joint enterprise or due to a disability, but as a meticulous plan, well-executed. This is the one offense in the criminal code that requires a special mens rea of intent (C-1162-05-18; 1st hearing; age = 77y; time served/TS = 21y). The court expressed disapprobation for the crime. This censuring rhetoric should be part of the board's considerations today. The sentencing remarks and their meaning have an obliged determination [for the board]. Allowing the prisoner to be paroled six years before the time originally stated will send a message of leniency, while the board, as the public agent, should be sending a completely different message. The passage of time cannot be allowed to decay the future loss of public trust in criminal law if he were released (C-22214-08-14; 7th hearing; age = 74y; TS = 41y).
Through this narrative, the prosecutor fused together the sentencing and the parole, presenting the first as constraining the latter, and therefore allowing the re-censuring of the lifer and constructing the lifer as someone who needed to be continually condemned.
Condemning lifers through reviving the crime
Prosecutors also constructed an image of lifers as those who deserved to be continually condemned by focusing on the way the lifer's crime manifested over time through two narratives. First, prosecutors’ arguments often sought to concretize and personify the harm done to the victim, going beyond an abstract violation of criminal law norms: Justice requires a recognition of the status of the victims. Criminal offenses are not only violations of norms, social or legal, but they also harm people with a face and identity. The victim carries the wounds of the crime on his body and soul (C-22214-08-14; 6th hearing; age = 72y; TS = 39y). For the victims… it's been 22 years of suffering, 22 years of heartbreak, 22 years of open wounds. Their lives strayed from their course, their home is without joy, they cannot function, they became broken vessels, and experienced depression. P tried to commit suicide several times, all long-term harm for years (C-22214-08-14; 6th hearing; age = 72y; TS = 39y).
Second, prosecutors appealed to the community's shared memory regarding the long-term impact of the crime, post-sentencing. The harm stemming from the crime was generalized and presented as an ongoing societal trauma that should be recognized through further condemnation of the lifer. One prosecutor noted, for example, in the case of a lifer sentenced for murdering a child: We are not talking about a numeric metric here, [but] the [crime] has been deeply etched in the consciousness and collective memory of Israeli society. We all remember every detail of the crime, and the public still remembers; the echo of the act among the public was louder than that created by ordinary crimes. It touched the whole public, so the release of the prisoner will create the same kind of negative echo (C-22214-08-14; 3rd hearing; age = 69y; TS = 36y).
Through this narrative, prosecutors revived the memory and emotions toward both the individual victim and society in general. The suffering continued after the sentence, and the lifers were thus constructed as those worthy of ongoing condemnation.
Condemning lifers through failed moral work
Finally, prosecutors constantly required lifers to involve themselves with moral work during their hearings, showing “inner sorrow and pain,” “internal reflection,” “internalization,” and “insight” toward their wrongdoing. Prosecutors expected lifers to fully identify with the court's narrative and perfectly recount the court's “official” story at length. Prosecutors criticized any minor deviation from the court's story no matter how peripheral or gory the detail (e.g., lifer admitted to murder but prosecutor argued that he failed to describe the exact position of victim's skull after the crime). Prosecutors rejected lifers’ claims that they had deviated from the court's narrative out of shame, repression, lack of memory, cognitive deficit, or believed innocence. A lifer who was viewed as failing to show such internalization, who didn’t present enough of a remorseful “self,” or didn’t show empathy toward the victim, was viewed by prosecutors as morally failed: “He doesn't show a subjective ability to fully understand and internalize the severity of his crimes” (C-63771-03-15), “does not understand the wrongness of his acts” (C-44972-09-17), and “the taking of responsibility here is not complete, without empathy toward the victim; a man who does not take responsibility and has such an attitude does not deserve release” (C-1162-05-18). Through this narrative, prosecutors constructed lifers as those worthy of continual condemnation, focusing on their moral depravity at the parole hearing. Essentially, they conveyed the message that lifers should be censured through continued punishment.
In those cases (9) where prosecutors did not resist lifers’ parole, retributive-moral logic could be found to justify their release-supporting position. Three narratives were used for this purpose. First, prosecutors mentioned that the lifers had already reached parole eligibility years ago, and parole had been denied them several times. Implicitly, they accepted that retribution had been largely satisfied at the time of the hearing and the lifer's release was near, with parole or without it: “at the end of the day, the prisoner only has a year and three months left [to fully serve his sentence]” (C-43150-09-14). Second, prosecutors stressed the lifer's diminished culpability at the time of the crime, grounding their arguments in the court's determination. This narrative was evident for women who murdered their abusive spouses (three cases), where prosecutors expressed more sensitivity to “the hardship [the lifer] has undergone… that greatly touches our hearts” (C-61167-08-16), and were more willing to morally support the lifer's parole: From reading the court's verdict, we learned that the background for the murder was… the violence perpetrated by the victim toward the prisoner. It is a positive determination by the court that she attempted to escape from the victim several times… and has undergone substantive difficulties (C-21689-06-16; 3rd hearing; age = 53y; TS = 22y).
Viewing lifers as solely responsible for their parole
The second theme shows how prosecutors saw lifers as solely responsible for their success in gaining parole, decontextualized prison challenges, and placed the onus of release upon their shoulders alone. Prosecutors regularly argued during hearings that lifers were the ones who should be held responsible for managing their rehabilitative progress, and hence their parole: “[The lifer must] act independently, know how to manage himself; he is responsible and has the appropriate tool-box for parole” (C-46627-10-17). Also they emphasized that “the burden to justify release is upon the prisoner's shoulders and their parole is merely a ‘privilege’” (C-63771-03-15). Prosecutors offered two narratives in this context. First, they commented that they (prosecutors) should represent solely the “public interest,” in contrast to the lifers’ “personal interest” in their parole (C-26098-03-15). Second, and more generally, prosecutors explained that lifers’ crimes were rooted in their own internal flaws – that is, the crimes were not the result of external forces – and thus it was the lifers who were responsible for managing their rehabilitation. Prosecutors criticized lifers who they saw as blaming their crimes on drug addiction, depression, poverty, and abuse/neglect during childhood and insisted that lifers must understand “the character's source’ of their crimes” (C-63771-03-15).
One important aspect of putting all the responsibility on lifers’ shoulders was prosecutors’ expectation of them to “exhaust” the carceral sphere for minimizing or eliminating their risk. The common rhetoric of “exhaustion” refers to lifers’ need to take part in any possible treatment, work, or rehabilitative activity in prison (e.g., cognitive behavioral therapy, anger management): “He is not ready for release; he must first exhaust prison treatment” (C-4898-05-18), and “There is great importance in exhausting the full process before returning to the community” (C-46627-10-17). Prosecutors expected lifers’ carceral progress to be smooth and linear, without any “pitfalls, “failures,” “bumps,” “ups and downs,” or “lapses,” regardless of lifers’ claims of lack of resources, prison pressure and/or illness, mental health challenges, or lifers’ own views regarding their rehabilitative needs.
Lifers who were perceived by prosecutors as not sufficiently “exhausting” all resources were criticized as being “passive,” “resistant,” “defensive,” “indifferent,” and having a “lack of motivation,” and hence as being the only ones to blame for their parole denial. For example, one prosecutor criticized a lifer for not putting enough effort into rehabilitation because she was tired of doing so: We feel that there are prisoners who do make efforts, but this prisoner does whatever she wants. This prisoner is confused. She is a prisoner, who committed murder; she is not a celebrity or an ordinary citizen. We want the board to clarify that she cannot simply say she is tired of programs; these are her duties (C-24713-05-17; 3rd hearing; age = 52y; TS = 17y).
Prosecutors also rejected lifers’ arguments regarding their not pursuing treatment even when this lack of pursuit stemmed from reasons outside their control, such as the outbreak of COVID-19: “Indeed the coronavirus crisis was not the prisoner's fault, but no, it does not matter why he did not complete the rehabilitation. He must exhaust the treatment process” (C-1813-11-19). Viewed as being responsible for their rehabilitation, prosecutors saw lifers’ arguments that the board should assist them in their rehabilitative progress as shifting the responsibility to others: “[The lifer] cannot transfer responsibility from himself to the prison rehabilitation officials. I won’t give this my backing” (C-61849-06-17), and “We’ve been hearing [the lifer's] claims all over the place [regarding lack of resources], but what part does the prisoner play in all this?” (C-54326-01-19).
Finally, prosecutors also held lifers responsible for proactively navigating the web of prison regulations and successfully promoting their own progress. They expected lifers, for example, to appeal to the administrative court, if necessary, to allow them to overcome prison officials’ refusal to allow them treatment, furloughs, risk-classification changes, or placement in drug-free prison units: “What part did the prisoner play in all this? He is presented here as seeking therapy but he should have submitted an appeal, and he didn’t do so” (C-54326-01-19), and “The prisoner did not undergo individual rehabilitation. All he needed to do was appeal, and then the court would have asked for explanations from the IPS [but he did not do so]” (C-42278-07-17). In the few cases where prosecutors did not resist parole, they were satisfied that the lifer “exhausted the entire therapeutic process… she understands that she needs, for herself primarily, to finish this process” (C-71571-04-18).
Through this narrative, prosecutors conveyed a message that responsibility for lifers’ rehabilitative progress, and hence their parole, should be placed on lifers’ shoulders rather than on the State or society at large.
Constructing a suspicious being
The third theme shows how prosecutors viewed lifers as inherently suspicious and untrustworthy, and thus sent a message of despair and skepticism toward the possibility of their future change and reform, acting as “hope disrupters.” These narratives served to counter lifers’ attempts to present their rehabilitated selves at the hearings: selves who had “changed,” “grown up,” “learned [the] lessons,” were a “new person,” etc. Prosecutors conveyed this message through three narratives. First, during their arguments, they often framed lifers as “manipulative,” “untrustworthy,” “hiding,” and used other such skeptical terms. To cast doubt on lifers’ claims of having been reformed, prosecutors constructed a gap between the overt and covert lifers’ selves and emphasized their lack of credibility. They often blamed lifers for “not revealing their inner world” (C-11302-03-16), commenting that “we see only the tip of the iceberg” (C-1162-05-18), and that “there is a huge gap between the organized outside and the chaotic inside” (C-25827-08-14).
The construction of the lifers as suspicious and untrustworthy was also achieved via extensive use of classified information, produced by prison intelligence, kept from the eyes of lifers and their counsel. Such classified information was paraphrased by prosecutors, at best, as general statements such as “use of drugs” or “conflicts in prison,” usually based on the words of prisoners who had snitched. Prosecutors suggested that such classified information “teaches us the lifer's real state of mind” and proved there was a “gap between the seen and the unseen behavior [as] the hidden is greater than the known” (C-22214-08-14). For example, one prosecutor argued: “The prisoner is without disciplinary misconduct and receives furloughs; however, the intel points to the fact that under the surface things may be different” (C-4898-05-20). Prosecutors thus constructed lifers’ character as only partly accessible and transparent; their apparent “self” was overshadowed by their “hidden” criminal self, revealed by the classified information.
Second, prosecutors also conveyed a sense of despair by slowing the pace of the parole process. They often reminded lifers that they needed to take more time to fully exhaust the carceral sphere before the parole process could proceed. Prosecutors viewed lifers’ claims of carceral progress as “insufficient” and “not enough,” sending a message that their rehabilitation was a never-ending task: “We see no bright future here regarding his rehabilitation” (C-42747-02-15), and “We expect a problem in the future even with treatment and supervision” (C-43150-09-14). They argued that the lifer was “light years from release” (C-12104-06-18), and used other similar such expressions, often asking the board for additional reports that only served to delay the hearing for another year, so as “to be at peace and comfortable with the release” (C-8965-11-15). Prosecutors often lectured lifers that they should slow down the pace of their parole “clock”: “The prisoner must be patient and not skip any step” (C-43150-09-14). They often criticized lifers as “skipping steps” and “rushing”: “It would be a mistake to put the cart before the horse; he must end the prison therapy first. You cannot cut corners and you should do this slowly” (C-46627-10-17), or “The leap here is too great; [the lifer and the rehabilitation officials] are putting the cart before the horse” (C-28965-11-15).
Third, there seemed to be a relentless effort on the part of prosecutors to find the very worst in lifers’ parole factors, in a deterministic fashion. For example, when prosecutors expressed their view regarding lifers’ risk, they used the term “criminal history,” even if the actual history was very recent, to construct lifers as having a “criminal life” and “criminal patterns” that demonstrate the risk they pose: [He] at the age of 15 started to use heroin, associated with various sub-cultures, and was incarcerated in 1987 for drug offenses. There is clear criminal continuity. In 1994, the murder he committed was against a financial background. We see his past as a critical issue, since from this starting point we should have looked at all the factors in his history (C-12104-06-18; 3rd hearing; age = 63y; TS = 26y).
Finally, even in the cases where prosecutors did not resist parole, they sent lifers a message of suspicion or threat: “We ask the board to clarify to the prisoner that… every breach of the [halfway house's] conditions, even the slightest… will cause an immediate request to revoke his parole” (C-43150-09-14), and “A lifer should see his life [after release] as one in which there's a sword constantly dangling above his head” (C-26782-02-17).
Discussion
The findings reveal the discursive “tool-kit” used by prosecutors at lifers’ parole hearings, showing how they view lifers’ parole process, the logic behind it, and its institutional framing (see Guiney, 2022). Prosecutors can be seen, like some of their U.S. counterparts, as largely “knee-jerk” against release (around 93% resistance rate) (Cassidy, 2019; Murcia, 2022). Through their arguments, prosecutors construct lifers’ parole hearings as an engagement in adversarial legal combat within the “court-like” sphere of the parole board (Padfield et al., 2000). Such a “boxing match” pits two asymmetrical parties against each other: on the one hand, the prosecutors, the “good boys” of the criminal justice system, who are “zealous advocates” of the public (Wright and Levine, 2018; Padfield et al., 2000) and, on the other hand, the lifers, the ultimate “others” and “outcasts” in society (Garland, 2001). It is possible that the Israeli prosecutors’ shared professional ethos as “crime-fighters” (Public Prosecution, 2018) explains their need to defend their prior sentencing submissions for life sentences (Barkow, 2021) and their reluctance to be merely “legal helpers” for the board (Aviram, 2020). It is also possible to view prosecutors’ punitive approach as a way of increasing their professional power as the “real” gatekeepers of prison gates, being not only “first-look sentencers” (e.g., negotiating plea bargains) but also “second-look sentencers” (Lynch, 2023).
The first theme shows how prosecutors construct lifers as those worthy of being continually condemned. Here prosecutors seem to capitalize on their professional expertise of delivering censure and condemnation at sentencing. Conflicting with the official “on-the-books” non-punitive policy (State Attorney, 2018), and with the idea that prosecutors in the parole process “should not function as a prosecutor in a criminal process” (Sharon, 2003: 116), prosecutors reconstruct parole as reinforcing condemnation. Prosecutors not only “revisit” lifers’ past crime for risk assessment but weaponize lifers’ crime to exercise and justify their “re-sentencing” (Rhine et al., 2017). To accomplish these goals, as the findings suggest, prosecutors employ three narratives. First, they fuse the logic of sentencing and parole into one punitive sphere, reversing the temporal locus of parole from the future to the past, as a sphere that is bound and constrained by censuring messages that took place during sentencing and remain static even decades after the crime (see von Hirsch, 2017). Second, they re-condemn lifers for the suffering that persists after sentencing, by appealing to the “moral memory” of both the actual victim and/or the public – that is, by appealing to the real or imagined sentiments of the community at large (Aviram, 2020: 12). Third, they seek to re-punish lifers for their failure to perform remorse, gain insight, or express empathy toward the victim. Although the “insight” concept is rooted in psychological-rehabilitative logic (Dalke, 2023: 27), prosecutors seem to use the rhetoric of “insight” to confirm that lifers will always be seen as condemned and should live in a permanent state of apology, remorse, and atonement (Aviram, 2020; Dalke, 2023). In such a sphere, lifers’ parole decision-makers are meant to feel comfortable making judgments about the commensurability between lifers’ crime and punishment and can assess their inner “evil” (Dagan, 2021: 6). Through this, theme prosecutors resist the idea of progression along the penal continuum from retribution to resocialization (van Zyl Smit and Appleton, 2019). Instead, they reinforce lifers’ censuring as static and even compounded with time, and reinforce lifers’ moral irredeemability and condemnation. However, in the cases in which prosecutors did not resist release, moral logic could also be found, but to justify their more liberal approach. Such an approach was saved for exceptional lifers who had already served the lion's share of their sentence, undergone previous parole denials, and/or there was absolute certainty regarding their moral internalization and lack of risk. There was also the “diminished culpability” narrative. This narrative, when applied to women who killed their abusive spouses, aligns with the more lenient prosecutorial approach toward women at charging and sentencing, with a view of them as less culpable and dangerous than their male counterparts (Romain and Freiburger, 2013).
The second theme shows how prosecutors view lifers as being the only ones responsible for their rehabilitation, aligning with notions of psychological individualism of prison treatment in Israel (IPS, 2021). This theme also aligns with other findings showing that neo-liberal prison officials (Garland, 2001), parolee supervision agents (Werth, 2013), and parole boards (Shammas, 2019; Young and Chimowitz, 2022) tend to decontextualize the situational realities of prisoners/parolees. Through this narrative, prosecutors undermine the welfarist logic of parole as being grounded in a broader political commitment to social justice and the ecological structures of crime, and re-frame parole as a privilege, an individual interest of the lifers as “entrepreneurs” of their parole (Garland, 2001: 128). As the findings suggest, prosecutors require lifers to “exhaust” the opportunities offered them and actively manage their actions, thoughts, and emotions during imprisonment. Perceived by prosecutors as being responsible for their success in prison, lifers are even expected to show a proactive “legal consciousness,” acknowledge prison law as the right course of action, and do so effectively regardless of any “pain of imprisonment” (see Ewick and Silbey, 1998).
The third theme shows how prosecutors act as “hope disrupters,” casting doubt on the possibility of lifers’ future reform and/or inclusion in the community. This narrative aligns with the “culture of cautiousness” toward lifers that has been found in other contexts (Griffin, 2018: 116) and conflicts with the constitutional vision of lifers’ parole in terms of the right to hope and atonement (van Zyl Smit and Appleton, 2019). In this theme, prosecutors convey a message to parole decision-makers, and to lifers themselves, of pessimism, skepticism, mistrust, and despair vis-a-vis lifers’ accounts, often even if they agree to their release. They construct lifers, a population with relatively low risk, as inherently “precarious subjects” (Werth, 2013, 2017; Young and Chimowitz, 2022). To do so, prosecutors employ intensive use of the “hermeneutics of suspicion” (Josselson, 2004), which aims to decode lifers’ “disguised selves” with the use of classified information that evokes, in and of itself, a sense of secrecy. In addition, prosecutors question, reduce, and minimize lifers’ positive aspects (e.g., high intelligence, lack of previous criminal history) and re-construct these very same aspects as risk factors, accepting the facts but rejecting their possibly positive meaning (see Cohen, 2013). Also, prosecutors attempt to slow the parole process pace, signaling that lifers’ rehabilitation is a never-ending and largely illusory task. This narrative aligns with the experiences of lifers’ penal time as “unmoving” (Tripathi, 2022: 46), under a constant “fog of uncertainty” (Crewe, 2011: 514).
Taken together, one can see the emergence of a “double-edged sword.” On the one hand, prosecutors construct lifers as “criminals,” rational moral agents, who should be forever re-condemned for their crimes and/or their moral failures (Theme 1) and, when in prison, should be held solely responsible for actively exhausting the carceral sphere to transform the self (Theme 2). On the other hand, lifers are also constructed by prosecutors as passive “prisoners,” “risky individuals,” whose character is inherently inaccessible, deterministically fallible and untrustworthy, and who cannot truly change (Theme 3). The result of such inchoate logic is an environment in which lifers’ parole decision-makers can perform the hearing as a “degradation ceremony” that reinforces lifers’ unchanged “ruined selves” and “otherness,” and their exclusion from the moral community (Herbert, 2022; c.f., Maruna, 2011). Such work sets into motion a paradoxical parole process which, instead of encouraging integration and desistance, actually puts lifers in a position of facing humiliating dynamics that undermine their efforts to attain a desisting lifestyle, resocialization, and hope (Pogrebin et al., 2015; Herbert, 2022), supporting the claim that parole logics are often “disparate, and sometimes seemingly contradictory” (Dalke, 2023: 27).
The findings align with what is seen in the broader Israeli context. During the last two decades, Israel has been characterized by diminishing support for the welfare state and by adopting the main features of a neoliberal policy (e.g., responsibilization) (Ajzenstadt and Khoury-Kassabri, 2013). Recent years have also demonstrated a greater use of preventive tools for sex offenders’ supervision (State Attorney, 2022), strict security measures for terror-related offenders (Dagan, 2023), and a decline in overall parole release rates (Rosenfeld and Noah, 2021). However, our analysis does not indicate that prosecutors are essentially punitive (as their lenient approach toward women indicate). The emerging progressive prosecutorial attitude toward U.S. lifers’ parole (Murcia, 2022; Green and Roiphe, 2020) and the initial willingness of Israeli prosecutors to recognize that the “public interest is not fulfilled solely by bringing the accused to trial” but also through an “active approach to remove offenders from the circle of crime” (State Attorney, 2022: 89) may mark a different and more complicated future for prosecution work in the parole field.
The findings hold implications for both policy and theory. In terms of policy, the findings raise doubts regarding the contribution of prosecutors (and similar state officials) to a future-looking and inclusive parole process. If parole is transformed into “legal combat,” then the penological and institutional distinction between sentencing and parole is blurred. In terms of theory, the findings expose how moral themes can evolve with time. The vocabulary used in lifers’ sentencing can be constructed, communicated, and suspended through judicial, carceral, and parole-related actors along the penal continuum. The findings also expand parole theory in terms of how the categories of criminal/prisoner can be negotiated by penal actors so as to increase their professional capital and ethos.
The findings should be evaluated with several limitations in mind. The data are based on transcribed hearings, and it may not always be possible to accurately assess prosecutors’ tone or what they were attempting to communicate through their words alone. Also, the data are based on one jurisdiction, and only the prosecutors in lifers’ parole hearings were explored. It is possible that different and less punitive narratives exist for different prisoners, and/or by the State's representatives with different/less punitive professional identities. Lastly, although both the board's and prosecution's approach to lifers’ parole is rather negative, we did not explore the actual impact of prosecutors’ arguments on the board's decision-making, and possibly prosecutors’ arguments are less persuasive in some contexts, if at all. Although we should exercise caution in generalizing, this study sheds light on the under-researched and complex narrative-making of prosecutors’ work in punishment beyond sentencing. The findings problematize the contribution of adversarial prosecution officials in a future-oriented parole process as well as the costs of blurring the institutional distinction between sentencing and parole.
Finally, the findings point to the need for future research. The goals of such research would include obtaining a better understanding of the role of the State's representatives with different professional identities, backgrounds, and sociodemographic factors (e.g., ethnicity, socio-economic status), and in various parole contexts (e.g., short sentences, juveniles, revocation decisions). Future research should explore the actual impact of the State's representatives’ arguments on the board's decision-making and outcomes. Future research is also needed to gain a better understanding of the interactions between the work of State representatives and other parole actors, such as victims, lifers and their counsel, and correctional officials. The findings also indicate a need for future theoretical and normative research for the sake of prosecution scholarship, promoting prosecution theories to more fully include post-sentencing work (e.g., the possible disjuncture between prosecutors’ official and personal narratives during parole). In addition, the findings point to the need for more scholarly efforts regarding the open and less open interactions between sentencing and the logic, values, and power underlying the parole process, which will help to more fully expose the crafting of life sentences.
Footnotes
Acknowledgements
The author wishes to thank Adieal Zimran, Irit Ballas, and Ailie Rennie, as well as anonymous reviewers, for their excellent comments on earlier drafts of this article.
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
