Rescission and Modification of Parole

Any order of parole may be amended, revised, modified or rescinded at the discretion of a parole board[i].  A parole board which, as a body, may in its discretion revoke or modify any of its decisions or determinations and has the power, for good cause shown, to rescind a parole grant either prior to its effective date or thereafter[ii].

The parole authority possesses the discretion to rescind an unexecuted order for a prisoner to receive parole at a future date without providing a hearing[iii].  The authority is empowered to rescind an unexecuted grant of parole for cause[iv].

Cause for rescission may exist if the authority reasonably determines, in its discretion, that parole was improvidently granted under the circumstances that appeared at the time of the grant or that may have appeared since[v].

In re Johnson, 8 Cal. App. 4th 618 (Cal. App. 1st Dist. 1992), the court held that whether cause exists to rescind parole is a question for the parole authority to determine in its broad and unlimited discretion.

However, the authority’s discretion is not absolute, but is subject to the prisoner’s right to procedural due process.  Substantive due process requires that there must be some evidence to support the decision to rescind parole[vi].  Also, the decision must have a factual basis and it cannot be based on whim or rumor.

Further, while the board cannot rescind a parole date arbitrarily or capriciously, it may not abuse its discretion when it has some basis in fact for its decision[vii].

In Tremarco v. New York State Bd. of Parole, 87 A.D.2d 114 (N.Y. App. Div. 2d Dep’t 1982), the court held that there is a significant distinction between parole revocation and parole rescission.  The former generally arises out of allegations that, after having properly been granted parole, the parolee committed some act or engaged in some conduct which violated the conditions of his/her parole.

Thus, in a revocation proceeding, the authorities attempt to take from the parolee the freedom to which, at one time, s/he was legitimately entitled.  In contrast, parole rescission proceedings generally arise when it is discovered that the parole was granted in error.  Hence, where parole rescission is sought, the authorities’ attempt to terminate the parolee’s release to which s/he was never rightfully entitled.

The paroling authority has inherent power to reconsider its grant of parole to a prisoner[viii].  Accordingly, in Yang v. State, 703 A.2d 754 (R.I. 1997), the court held that a parole board acts properly in rescinding its vote on a parole where, after having initially voted to release the parolee, the parole board discovered that it had failed to avail the victims of the parolee’s crime of their statutory right to address the parole board prior to its vote.  The court further held that after reopening the matter to allow such testimony, and after hearing from the parolee and his/her counsel, the board could rescind its earlier vote[ix].

A parole board has the authority, as an agency performing quasi-judicial functions, to correct a clerical mistake in a parole order which mistakenly reflects the wrong parole release date or release information[x].

A parole board may properly extend a period of parole without giving the parolee notice and an opportunity to be heard, where the governing statute provides that any order of parole may be amended, revised, modified, or rescinded at the discretion of the parole board[xi].

Until a prisoner is actually released, the Parole Board has the power to reopen and advance, postpone or deny a parole which has been granted[xii].  Statutes permits parole reconsideration hearings when new information was provided to the parole commission[xiii].

A parole authority may reopen a parole decision for consideration of new information at any time prior to a prisoner’s release, even if the new information was in existence, but was not considered, when the initial parole decision was made[xiv].

The U.S. Parole Commission’s decision to grant or deny parole will not be disturbed unless the commission abused its discretion or acted arbitrarily or capriciously[xv].  In Miller v. Federal Bureau of Prisons, 989 F.2d 420 (10th Cir. Okla. 1993), the court held that the U.S. Parole Commission has statutory authority under the Parole Commission and Reorganization Act of 1976 to modify or revoke an order paroling any eligible prisoner.  Additionally, the Parole Commission may reopen a case upon the receipt of new information.  The discovery of an error may be considered new information sufficient to justify reopening a case.

Statutes may also empower the governor of a state to require a parole board to reconsider its decision in any particular case.  However, if the governor fails to meet the statutory requirements, s/he loses that power, but the board loses only the statutory obligation to reconsider, not the power to do so.

[i] Lane v. Michigan Dep’t of Corrections, Parole Board, 383 Mich. 50 (Mich. 1970).

[ii] Tremarco v. New York State Bd. of Parole, 87 A.D.2d 114 (N.Y. App. Div. 2d Dep’t 1982).

[iii] Hattie v. Anderson, 68 Ohio St. 3d 232 (Ohio 1994).

[iv] In re Johnson, 8 Cal. App. 4th 618 (Cal. App. 1st Dist. 1992).

[v] In re Powell, 45 Cal. 3d 894 (Cal. 1988).

[vi] In re Johnson, 8 Cal. App. 4th 618 (Cal. App. 1st Dist. 1992).

[vii] In re Powell, 45 Cal. 3d 894 (Cal. 1988).

[viii] In re Johnson, 8 Cal. App. 4th 618 (Cal. App. 1st Dist. 1992).

[ix] Yang v. State, 703 A.2d 754 (R.I. 1997).

[x] Coffey v. South Dakota Bd. of Pardons & Paroles, 1999 SD 164 (S.D. 1999).

[xi] Lane v. Michigan Dep’t of Corrections, Parole Board, 383 Mich. 50 (Mich. 1970).

[xii] Williams v. New Mexico Dep’t of Corrections, 84 N.M. 421 (N.M. 1972).

[xiii] Frasetto v. Perrill, 955 F.2d 176 (2d Cir. N.Y. 1992).

[xiv] Furnari v. Warden, Allenwood Fed. Correctional Inst., 218 F.3d 250 (3d Cir. Pa. 2000).

[xv] Miller v. Federal Bureau of Prisons, 989 F.2d 420 (10th Cir. Okla. 1993).


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