Parole is a form of release of an offender from imprisonment to the community by a releasing authority prior to the expiration of his/her sentence. Parole is usually subject to conditions imposed by the releasing authority and to its supervision. Parole is a matter of clemency and grace. Parole is not a right and is not part of the sentence imposed by a court[i].
Generally, the power to grant paroles is given to the governor. A state constitution or parole statute empowers the governor to grant a pardon. The Governor has the power to grant reprieves, commutations, paroles, and pardons for all offenses, upon such conditions and limitations as s/he deems proper, subject to regulations prescribed by law. The Governor of the state has the power to annex to a pardon or parole conditions, precedent or subsequent. However, the condition must not be illegal, immoral, or impossible to be performed[ii].
The legislature has not given the Governor of the state the power to order prisoners in the state prison released on their honor under all circumstances. Additionally, the governor has no power to release prisoners from the state prison on their honor until the prisoner serves the full minimum sentence and where the sentence is indeterminate. This power is not derived from legislation, and it is quite clear that, under any pretense of regulating its exercise, the supreme executive power could not be deprived of its constitutional authority. However, the provision can be made by legislation rendering the exercise of such a power convenient and efficient[iii].
Upon the revocation of parole conditions, the legal status of the petitioner must be regarded the same as it was before the parole was granted. “It was not such a contract as entitled him/ her to have a judicial determination of forfeiture, in the face of his/ her stipulation that the Governor might revoke it for any other reason by him deemed sufficient”[iv].
In the U.S., most of the states enacted statutes for the establishment of a uniform and exclusive system for the administration of parole. States establish a separate Board of parole for deciding parole matters. The scope and extent of a Governor’s power is designated by the statute. For example in the state of Pennsylvania, the Pennsylvania Board of Parole is an independent administrative board that was created with the exclusive power to:
- parole and re parole;
- commit and recommit for violations of parole; and
- discharge from parole all persons sentenced by any court.
However, the powers and duties of the board do not extend to:
- persons sentenced for a maximum period of less than two years; and
- convicts condemned to death or serving life imprisonment.
Moreover, the board’s power to parole cannot be exercised in any case before the expiration of the minimum term of imprisonment fixed by the court in its sentence. The act does not apply to:
- persons committed to houses of refuge for boys or girls, institutions for the discipline or correction of juveniles, or
- persons imprisoned under sentence by an alderman, justice of the peace, magistrate, or committed in default of payment of any fine; or of bail.
In some states the grant of a parole is subject to the approval of the governor. In the absence of express authorization to the governor, the power of parole rests exclusively in the board of parole. Most of the states make it compulsory that all applications made for reprieves, commutations, paroles and pardons made to the Governor must at once be transmitted by the Governor to the chairman of the Parole Board. The Board returns the report with their recommendation to the Governor.
The Parole and Pardon Board have two separate and distinct functions. One is to act as the Governor’s agent in hearing applications for executive clemency. Then the Board has no power to grant a pardon, reprieve or commutation, but merely to submit a recommendation to the Governor. The Governor is free to accept or reject the recommendation. The other is when it sits as an administrative body with the power to make final decisions in parole matters. The latter power has been granted by the legislature[v].
A parole board can not lawfully delegate any of the functions committed to it by a constitution or a statute.
In criminal cases, the judiciary imposes the sentence and the issue regarding parole is determined by the legislature. Where a person is committed to an institution on conviction for murder in the first or second degree, such person should not be released from said institution until the expiration of the term for which such person is sentenced. However, the governor exercises his/her pardoning or parole power in such cases.
Moreover, in some classes of cases the power to grant parole is vested with a particular institution. There is always a department of the state government with authority to parole a woman who has been convicted of an offense punishable by imprisonment, or who is confined on the industrial farm[vi].
[i] People v. Thompson, 381 Ill. 71, 72 (Ill. 1942).
[ii] Ex parte Barrett, 75 Okla. Crim. 414, 416 (Okla. Crim. App. 1942).
[iii] Ex parte Ridley, 106 P. 549 (Okla. Crim. App. 1910).
[iv] Ex parte Barrett, 75 Okla. Crim. 414, 416 (Okla. Crim. App. 1942).
[v] People ex rel. Kubala v. Kinney, 25 Ill. 2d 491, 494 (Ill. 1962).
[vi] Ex parte Dunkerton, 104 Kan. 481, 484 (Kan. 1919).