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Constitutionality of Parole Statutes

“A parole is a form of conditional pardon, by which the convict is released before the expiration of his term, to remain subject, during the remainder thereof, to supervision by the public authority and to return to imprisonment on violation of the condition of the parole”[i].

There is no constitutional right to parole.  However, a protected liberty interest is created by the statutes governing parole in a given jurisdiction[ii].  The power to grant or deny the parole of federal prisoners is vested in a parole commission.  In states, Parole Boards created by statute possess the authority to release prisoners from prison.

The statutes empowering authorities to grant parole were mainly challenged on the ground that the statutes infringe on the power of granting pardons vested by a state constitution in the executive.  The granting of authority to an administrative body to grant or deny paroles is usually upheld as not violative of the executive’s constitutional right to pardon.  When the minimum term of sentence of any person imprisoned in the state penitentiary is expired, it is the duty of the warden of such prison where such person is imprisoned, to send the record of such prisoner to the board of pardons.  The board when reasonably satisfied that such person can remain at liberty without violating the law authorizes the release of such person under parole.  The prisoner is allowed to go upon parole outside of the prison walls upon such terms and conditions as the board prescribes.  However, on parole, the parolee is in the legal custody and under the control of the warden of the penitentiary until the expiration of the maximum time specified in his/her sentence.

The board’s power to parole cannot be exercised before the expiration of the minimum term of imprisonment fixed by the court in its sentence.  The power given to the paroling authorities is in effect nothing more than the fact-finding duty of determining in each case when the conditions prescribed by the legislature for provisional release from confinement is complied with.  The duty is properly placed in charge of an administrative tribunal as is so commonly done in other fields of governmental administration[iii].

The power to suspend sentence and the power to grant reprieves are totally distinct and different in their origin and nature.  The former is always a part of the judicial power.  The latter is always a part of the executive power[iv].

A parole statute does not violate constitutional guaranties of equal protection.  Additionally, legislative classifications regarding prisoners and parole do not involve suspect classifications or fundamental rights.  However, the classifications should be rationally related to a legitimate governmental purpose.  The Due Process Clause applies when government action deprives a person of liberty or property.  When there is a claimed denial of due process, the court will inquire into the nature of the individual’s claimed interest[v]

A state-created parole system serves the public-interest purposes of rehabilitation and deterrence.  The state can be specific or general in defining the conditions for release and the factors that should be considered by the parole authority.  In parole releases, few certainties exist.  In each case, the decision differs from the traditional mold of judicial decision-making in that the choice involves a synthesis of record facts and personal observation filtered through the experience of the decision maker and leading to a predictive judgment as to what is best both for the individual inmate and for the community.  The inmate’s release will minimize the gravity of the offense, weaken the deterrent impact on others, and undermine respect for the administration of justice[vi].

Some legislatures constitutionally provide that certain classes of prisoners must serve longer minimum terms, before being eligible for parole, than other classes.  There is no requirement that two persons convicted of the same offense receive identical sentences.  A legislature can prospectively reduce the maximum penalty for a crime even though prisoners sentenced to the maximum penalty before the effective date of the act would serve a longer term of imprisonment than one sentenced to the maximum term thereafter[vii].

Additionally, state statutes denying sentence credit for the time spent on parole prior to violation or revocation of parole is valid under the equal protection clause of the Fourteenth Amendment[viii].

A post-conviction proceeding pertaining to parole cannot be considered as a retrial.  The authority conducting the proceedings does not violate the constitutional prohibition against double jeopardy.  Moreover, restarting a defendant’s jail time in determining eligibility for parole after an escape is not a double jeopardy violation.  The Fifth Amendment guarantee against double jeopardy protects:

  • against a second prosecution for the same offense after acquittal;
  • against a second prosecution for the same offense after conviction; and
  • against multiple punishments for the same offense.

The Fifth Amendment guarantee against double jeopardy is applicable to the states through the Fourteenth Amendment[ix].

Retroactive changes in the laws governing the parole of prisoners sometimes violate the Ex Post Facto Clause.  The Ex Post Facto Clause bars enactments which increase the punishment for a crime after its commission[x].  The States are prohibited from enacting an ex post facto law.  However, a retroactive application of an amendment to a state board of paroless rule, changing the frequency of required parole reconsideration hearings for inmates serving life sentences from every three years to every eight years, does not violate the ex post facto clause.

Statutes restricting or prohibiting parole in cases of violent crimes, against various constitutional attacks, are usually held valid.  Dangerous or repetitive offenders are punished more severely than first or non-repetitive offenders for the same crime.  The statute is not unconstitutional because non-prisoners receive less punishment for the same act.  Moreover, the classification between persons in custody and other persons is rational and does not violate equal protection[xi].

[i] George v. Lillard, 106 Ky. 820, 825 (Ky. 1899).

[ii] Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1, 7 (U.S. 1979).

[iii] State v. Page, 60 Kan. 664, 668 (Kan. 1899).

[iv] Moore v. Thorn, 245 A.D. 180, 184 (N.Y. App. Div. 1935).

[v] Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1, 7 (U.S. 1979).

[vi] Id

[vii] Frazier v. Manson, 703 F.2d 30, 36 (2d Cir. Conn. 1983).

[viii] Foster v. Smith, 52 A.D.2d 1088 (N.Y. App. Div. 4th Dep’t 1976).

[ix] Benton v. Maryland, 395 U.S. 784, 794 (U.S. 1969).

[x] USCS Const. Art. I, § 10, Cl 1.

[xi] State v. Fears, 126 Ariz. 597, 598 (Ariz. 1980).

Inside Constitutionality of Parole Statutes