Parole is the procedure by which a prisoner is allowed to serve the last portion of his/her sentence outside prison for a certain period of time[i]. Generally, the power to grant pardon is given to the governor. In some instances, a statute provides that the grant of parole will be subject to the approval of the governor.
However, in the absence of express authorization to the governor, the power of parole will be with such board. It is to be noted that generally the matter of parole following the imposition of sentence is not a judicial function but is purely a legislative one.
The Parole Commission is vested with power to grant and deny the parole of any eligible federal prisoner. Similarly, the Parole Commission is empowered to apply the guidelines in parole release decisions, and to grant or deny parole if there is a good cause for doing so[ii].
It is to be noted that the state parole board procedures and decisions are subject to federal judicial review. A federal court can review a decision of a state parole board to determine if it was arbitrary, capricious, or an abuse of discretion[iii].
In order to warrant a grant of parole, an investigation by the parole authority must disclose that the applicant for parole will live and conduct himself/herself as a respectable and law abiding person, and that his/her release will be compatible with his/her own welfare and that of society. Moreover, parole can be denied if it is concluded that release is incompatible with the welfare of society[iv].
Generally, a state can place conditions on a parole release. The presence of a parole system by itself will not give rise to a constitutionally protected liberty interest in a parole release[v]. It is to be noted that the conditions of parole prohibit such behavior that is dangerous to the restoration of an individual into normal society. The conditions imposed by the parole board must not be arbitrary or unreasonable.
A person in parole is considered a prisoner. S/he is under daily personal restraint and such a person will be answerable to prison system officials for his/her conduct at anytime. Likewise, a person who violates any terms of parole will make him/her liable to arrest and return to prison to serve out the remainder of the term.
A prisoner can decide whether to accept parole with the conditions set out or s/he can reject the same and remain in the prison. However, by accepting parole, the convict accepts it subject to its conditions and restrictions and is bound to comply with them[vi].
It is to be noted that some statutes requires the parole commission, in calculating a release date, to take into account any reasonably available evidence that is relevant. The Parole Commission can consider all relevant facts and circumstances bearing upon an individual’s eligibility for parole.
Generally, the parole commission determines whether certain information is relevant or not. Similarly, the matter is not reviewable by courts unless the parole commission abuses its discretion. The parole commission can consider allegations of criminal behavior and also can consider pre-sentence report statements that are hearsay[vii].
[i] Sellers v. Bridges, 153 Fla. 586 (Fla. 1943).
[ii] Priore v. Nelson, 626 F.2d 211 (2d Cir. Conn. 1980).
[iii] Schuemann v. Colorado State Board of Adult Parole, 624 F.2d 172 (10th Cir. Colo. 1980).
[iv] Silmon v. Travis, 95 N.Y.2d 470 (N.Y. 2000).
[v] Brandon v. District of Columbia Bd. of Parole, 823 F.2d 644 (D.C. Cir. 1987).
[vi] Ex parte Patterson, 94 Kan. 439 (Kan. 1915).
[vii] Laivinieks v. True, 1994 U.S. Dist. LEXIS 2574 (N.D. Ill. Mar. 3, 1994).