A Prosecutor’s Guide to Parole

Charles F. MillerMember, Indiana Parole Board

Topics of Discussion

• Statutes governing parole, clemency, and pardons.

• The process the Indiana Parole Board (IPB) uses in making our decisions.

• Things prosecutors need to know when they bring charges against a parolee.

• Input we want from prosecutors.

What this Presentation is Not:

• A discussion of the separate topic of probation.

• Credit time cuts offenders receive.

Who are We?

• I.C. 11-9-1-1-1– Five members, appointed by governor, not more

than three of the same political party.– Chairman appointed by governor.– Vice chairman elected by members.– Four year terms, subject to reappointment.– Full-time job.

The Current Members

• Thor Miller, Chairman (R)• Virgil Madden, Vice-Chairman (R)• Valerie Parker (D)• Randall Gentry (R)• Charles F. Miller (D)

IPB’s Statutory Duties (I.C.11-9-1-2)

• Make parole release and revocation decisions.• Make pardon, clemency, reprieve, and

remission recommendations to the governor.• Collect and maintain statistical information,

keep records, and make them accessible to the public.

• Cooperate with public and private agencies for the betterment of the public.

Powers of the IPB-I.C. 11-9-1-2(b)

• Conduct inquiries, investigations, and hearings related to its duties and issue related subpoenas.

• Administer oaths.• Enter without notice any DOC facility to speak

with a committed person.• Adopt administrative rules.

Common Terms

• PRD-Parole Release Date-the date the offender is scheduled to be released to paroled. Subject to change due to conduct or credit cuts.

• MRD-Mandatory Release Date-The maximum date of sentence, and the longest we can keep an offender if he keeps picking up conduct or violating parole.

What is Parole?

• From Black’s Law Dictionary: The release of a prisoner before the full sentence has been served, usually granted for good behavior on the condition the parolee regularly report for supervision as directed.

• Dates to the Middle Ages and is from the French for “spoken words.”

What is Parole, con’t:

• Parole is not freedom, but merely an extension of the prison walls. 59 Am. Jur. 2d Pardon and Parole (1987).

• Indiana has determinate sentencing, and when one serves enough time and accumulates enough credit to be released, they are released without intervention by the IPB (mandatory parole).

Mandatory Parole

• Example: Mike Tyson is sentenced on 3/26/1992 to 6 years for Rape, a B Felony. Mike Tyson receives day for day good time credit, and is released to parole supervision on 3/25/1995.

• The IPB can set reasonable conditions on the release of Tyson, but can do nothing to prevent his release. I.C. 11-13-3-3(a)

Release on Mandatory Parole:

• Now that Tyson has been released, he is under the jurisdiction of the IPB.

• For any parolee, the IPB will place certain restrictions on him.

• These restrictions are similar to those facing probationers, and include restrictions on travel, possession of weapons, use of controlled substances, and reoffending.

AGAIN!

• For those sentenced under the current code, the IPB ONLY has jurisdiction after they have served half their sentence, plus or minus any credit or conduct they have received.

• Lots of misconceptions about this!• If you get a fifty year sentence on a murder,

we will not be seeing him to “let him out” any- time soon, nor can we keep him any longer.

Sex Offender Parole

• In this case, Tyson is a sex offender as defined in 35-31.5-2-297.

• In addition to the aforementioned restrictions, the IPB will place additional restrictions on him.

• These are much more burdensome than typical restrictions and are designed to protect the community.

Sex Offender Parole, con’t:

Sex offender stipulations include, but are not limited to the following:

• Restrictions on contact with children, travel after dark, employment, unapproved relationships, residency, internet use, pornography, sexual aids.

• Mandates to attend sex offender treatment.

Parole Revocations I.C. 11-13-3-10

• Once an offender is released to parole, he is under the jurisdiction of the IPB.

• If he violates the conditions of parole, the parole agent will submit a transmittal to us for action. If the Board deems is serious enough, they will issue a warrant to have a revocation hearing.

• Delinquency for absconders.

Before the Hearing I.C. 11-13-3-9

• Warrant issued (or order to appear).• NOT subject to bail!• Must have a preliminary hearing within 10

days of warrant being served. Usually waived.• Must have hearing with 60 days of being

served.• Exception: pending criminal charges.• Demonstration of hearing!

Parole Revocations, con’t:

• Normal due process safeguards apply.– Speak on own behalf, call witnesses, confront and

cross-examine witnesses, a written statement of facts and evidence relied on. (exception: victims)

• Rules of Evidence do not apply! IRE 101• Hearsay and parole officer notes allowed,

preponderance burden of proof.• Almost all witnesses at hearings are for

offender.

Parole Revocations, con’t:

• If the offender is found guilty of the alleged violations, the IPB may revoke his parole, reinstate his parole, or release him to parole with special stipulations.

• Big exception: new criminal convictions!

Parolees with New Convictions

• Under I.C. 11-13-3-10(c), if a parolee is convicted of a new felony, the IPB must revoke his parole.

• Under the new HB1140, IPB has discretionary revocation powers for Levels 3-6 and mandatory for Levels 1-2.

• For those with consecutive DOC sentences, we can also keep his new sentence in abeyance.

Annual Parole Review Hearings:

• If an offender has more than one year to serve on his sentence after being revoked, the IPB must see him again in one year.

• Hearing will be held, and the Board will consider the following criteria A) Nature and circumstances of the offense, B) Prior Criminal History, C) Conduct while Incarcerated, and D) Best Interest of Society. I.C. 11-13-3-3

Old Code Lifers

• Those sentenced under the pre-1977 code are a special situation.

• Commonly called “old code lifers.”• Currently less than 200 of them still

incarcerated or on parole.• Under the old code with its indeterminate

sentencing, we saw them every five years to determine if they should be paroled.

Old Code Lifers, con’t.

• If they were paroled, they remained on parole for life unless discharged by the IPB.

• Most of the ones left are still incarcerated and are the worst of the worst.

• IPB reviews them every five years in person, and does a paper review annually.

• The release of old code lifers is discretionary by the Board!

Length of Parole

• Old Code Lifers” Life parole for life sentence.• 1977-91-one year of parole• 1991 to present-two years of parole or MRD.Exceptions:• Sexual violent offenders-lifetime parole• One year of parole for first time parolees, no

crimes of violence or sex offenses, clean conduct

Appeals Process

• Not much of one, for Courts have held “once the Parole Board has fulfilled the statutory procedural requirements, it has almost absolute discretion in making its decision.” Komyati v. State, 931 N.E.2d 303

• Offender can appeal to the sentencing court.• We are represented by the AG’s office.• Almost always summarily denied.

Clemency

• Clemency is the power of an executive to pardon a criminal or commute a criminal sentence.

• In Indiana, clemency is used for those inside prison, pardon for those outside.

• Clemency can take many forms, from paroling the offender, to making him eligible to appear before the Board, to changing his placement, an so forth.

Clemency, con’t.

• Board acts as Clemency Commission.• Holds hearings, takes evidence, and makes a

non-binding recommendation to the Governor as whether clemency should be granted.

• Hear about 15 cases a month.• For most of these offenders, clemency is their

only option. • Limited eligibility.

Clemency, con’t:

• Prosecutors and the sentencing Judge are asked their opinions as to the application.

• This is your chance!

Death Penalty Matters

• When the Indiana Supreme Court denies the last appeal of an offender on death row, the IPB will hold a final clemency hearing.

• Non-binding recommendation to the Governor.

• Only time we now meet in person with offender.

Pardons

• IPB also acts as the fact-finding commission for the governor for those seeking a pardon.

• Same procedure as clemency, same non-binding recommendation to the governor.

• Again, prosecutor input is solicited and encouraged.

• Pardons are broad and expansive but is a long process.

Parole Searches

• Per I.C. 11-13-3-7, parole officers are NOT law enforcement officers.

• There are limits to the scope and motivations of parole searches.

• Proceed with caution when it comes to letting police “piggyback” with parole searches.

• Lots of issues with this lately!

Numbers You Should Know

• Parole District 3 (Indianapolis): 541-1088 Have the DOC number of the offender!

You can get this from the DOC website under “Offender Locator.”

• Indiana Parole Board: 232-5737.• SAVIN (LENS): indianasavin.in.gov

Our Primary Goal

• PUBLIC SAFETY!• We strive to make the best decisions we can

based on the facts before us.• We are not perfect, and your input is valuable

and needed.