PAROLE ELIGIBILITY FOR LIFERS?


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PAROLE ELIGIBILITY

Parole eligibility is conferred upon all persons sentenced on a criminal offense in the State of Nebraska, except those persons guilty of treason and cases of impeachment. See Nebraska Const. Art. 4 13 and The Meaning of Life www.nebraskapen.org. Even lifers? Yes...

Eligibility for parole is nothing more than the potential for parole - possibly. Contrary to what many people think, parole is not a release from a sentence but merely a lesser form of custody. Being on parole is still within the custody and control of the Nebraska Department of Correctional Services (NDCS).

Parole is not granted to every person eligible to be paroled. Some potential parolees jam (the completion of a sentence day for day). This is a frequent occurrence based on numerous factors determined by the board of parole.

10 YEAR DEFERMENT

In recent years the board of parole has adopted the practice of deferring lifers for 10 years between parole reviews. It appears that this practice is tied to N.R.S. 83-192 (1)(f)(v)(2006). Prior to the 10 year deferment practice, most lifers were reviewed at least once a year.

It remains unclear what specifically occurred to so substantially change the review date of lifers. Lifers fall into, two categories, those serving life for 1st degree murder and those serving a maximum life for 2nd degree murder.

N.R.S. 83-192 (1)(f)(v) has undergone multiple changes since its creation. LB 1307 (1969) 23(9) created the parole review standard, in pertinent part provided: Review the record of every committed offender, whether or not eligible for parole, not less than once each year... Through the next two changes, LB 322 (1979) and LB 545 (1981), paragraph (9) remained unchanged.

N.R.S. 83-192(9) didn't substantially change until LB 1241 (1986). Section (e) was added which in essence stated that lifers would be reviewed the 1st year of their sentence and every 10 years thereafter until the sentence is commuted, if commuted be reviewed annually when within 5 years of the earliest parole eligibility date.

LEGISLATIVE INTENT

A review of the legislative history, committee records and floor debates of LB 1241, shows that primarily its intent was to streamline the review process. The annual review of every person prior to this was seen as "preventing offenders getting lost in the system. However, with modern record-keeping, and offenders' universal knowledge of their own parole eligibility and mandatory release dates this rationale becomes more difficult to support." Introducer's statement of intent LB 1241 (1986).

It seems that the overall intent and effect of LB 1241 was to reduce the number of reviews conducted by the board of parole. The 10 year deferment has in fact realized the fears of persons getting lost in the system. Parole members, and the entire board as a whole, will potentially turnover within 10 years.

You can be seen by one board during your 1st year of incarceration - then 10 years later be seen by an entirely different board. This seems to defeat the purpose of fostering any familiarity between potential parolees and the board of parole. Such a system will further slow the rate of paroles.

The next two changes to 83-192(9)(e) were LB 13 (1992) and LB 677 (1994), which kept the same language of former revisions but renumbered the section to its current form, i.e., 83-192 (1)(f)(v).

EX POST FACTO

The changes under LB 1241 seems to violate the Ex Post Facto Clause. An ex post facto law is one that applies retroactively, esp., in a way that negatively affects a person's rights, generally by criminalizing or penalizing an action that was allowed before its enactment. U.S. Const. Art. 1, 9; Art. 1, 10. Why? The statute adversely affects and penalizes all lifers sentenced before its effective date.

Lifers sentenced prior to LB 1241 have gone from having a parole eligibility/ possibility to mandatorily being required to get a commutation in order to obtain a parole eligibility. This is a substantial change in status, esp., given the fact that not even the Legislature can compel or order the board of pardons to commute a sentence. State v. Marrs, 272 Neb. 573, 723 NW2d 499 (2006).

GOODTIME LAW OPERATION

Goodtime is time credited to a sentence that reduces said sentence for parole purposes. N.R.S. 83-1,107 (2006). The way goodtime laws operate is the best example to illustrate how statutes work. Although 1st degree lifers don't earn goodtime credit, the point is how these laws apply, to whom and when. Currently there are seven different goodtime laws at work throughout the NDCS. LB 1307 1969, c. 817, 38, p. 3092; Laws 1972, LB 1499, 7; Laws 1975, LB 567, 2; Laws 1992, LB 816, 2; Laws 1995, LB 371, 20; Laws 1997, LB 364, 19; Laws 2003, LB 46, 20.

Goodtime laws don't overlap, one operates until the next one begins, e.g., LB 576 (1975) covers every sentence between its effective date up to the effective date of LB 816 (1992) etc.. The NDCS seems to do a good job of keeping track of which goodtime law applies to each-person for the calculation of their parole eligibility and tentative release date (TRD). Currently there are some 4,392+ people incarcerated within the NDCS. These goodtime laws are prospective, just like 83-192 (1)(f)(v).

PROSPECTIVE OPERATION

Legislative acts, like 83-192 (1)(f)(v), operate only prospectively and not retrospectively, unless the legislative intent and purpose is that it should operate retrospectively are clearly and plainly disclosed. Abboud v. Papio-Missouri River Natural Resources Dist., 571 NW2d 302, 253 Neb. 514 (1997) and McCray v. Neb. State Patrol, 271 Neb. 1, 710 NW2d 300 (2006). There was no legislative intent that 83-192 (1)(f)(v) should operate retrospectively.

SENTENCE FINALITY

The law in effect when a sentence becomes final, is the law that remains operative over that sentence. Finality is created by judgement of conviction followed by a sentence if no direct appeal is taken, if a direct appeal is taken, finality occurs at the conclusion of the appeal. Richardson v. Clarke, 512 NW2d 653, 656, 2 Neb.App. 575 (1994) and Boston v. Black, 340 NW2d 401, 409, 215 Neb. 701, 713 (1983).

Lifers sentenced prior to the effective date of LB 1241 have had their review date and parole eligibility/possibility changed. Their sentences became final under whatever law (1307, 1499 or 567) was in effect before LB 1241. The current standard of review has imposed a different review standard and new conditions (mandatory commutation of sentence to obtain parole eligibility).

These changes ultimately alter the potential length of sentence, custody and place of confinement of lifers sentenced before LB 1241. NDCS classification policies prohibit 1st degree lifers from participation on community custody (detail, work release and educational release) until their sentences are commuted. How can the provisions of 83-192 (1)(f)(v) apply to lifers sentenced before its effective date? I contend that they don't.

I contend that the finality of sentence for lifers before LB 1241 places them outside its provisions. These lifers should be reviewed annually and have a parole eligibility/possibility - that was the law in effect when their sentences became final.

COMMUTATION BEFORE ELIGIBILITY?

The legislative enactment of 83-192 (1)(f)(v) and its specific requirement that a life sentence be commuted before eligibility can be obtained is a red herring. It distracts attention away from the constitution's grant of parole. The Legislature has required a condition (commutation) that it doesn't control. lit would be a violation of the Distribution of Powers for the Legislature to direct, order or compel the board of pardons (executive) to exercise its authority to commute a life sentence. Art. 2 1 Neb. Const.

How can the Legislature require a commutation, which it nor the board of parole control? It's bad legislation. The board of pardons' authority is unfettered, it is free to commute or not commute a sentence for any reason. Marrs, supra, also see Can A Minor Incarcerated For Life Ever Get Commuted And A Second Chance? at www. nebraskapen.org. Commutation is incongruent with the Legislature's authority and has no reason appearing in 83-192 (1)(f)(v).

As of September 2007, there are 4,392+ people in the NDCS, 11.5% or 505 represent all categories of homicide cases, 4.85% or 213 represent 1st degree lifers, 14.1% or 30 represent 1st degree lifers committed under 19 years old, 3.8% or 8 of these lifers have served at least 25 years. www.corrections.state.ne.us. Commutation authority has only been exercised 32 times since 1969. Two of these individuals were actually commuted twice - from death to life and life to a specific term of years. Hugh Griffith was commuted from death to life on 10-20-54 and commuted again from life to 54-60 yrs on 09-15-88. Ewther Hall was commuted from death to life on 02-24-64 and commuted again from life to 35-60 yrs on 05-10-76. No 1st degree lifers have been commuted since 1990, and 83-192(1)(f) (v) can't compel a commutation.

PAROLE OF LIFERS

Parole, and consequently, parole eligibility is conferred by the Nebraska Constitution. The Legislature is restricted by the constitution not the other way around. The constitution is not a grant, but rather, is a restriction on legislative power. The Legislature may legislate upon any subject not inhibited by the constitution. State ex rel., Stenberg v. Moore, 544 NW2d 344, 349, 249 Neb. 589, 595 (1996). It is the constitution that inhibits the Legislature from requiring a commutation in order for parole eligibility.

On 11/17/68, the board of pardons paroled Clarence Trvz #17443. Trvz was serving a 1st degree life sentence. Trvz wasn't commuted until eight years later on 12/21/76. Of course, the board of pardons no longer has parole authority - the board of parole does. It was constitutional authority that allowed for Trvz's parole, that authority hasn't changed. Twenty-five years used to be the statutory requirement for both 1st and 2nd degree lifers to obtain parole eligibility. See Sec. 570, Compiled Statutes of 1898, The Meaning Life, pg. 4 of 8. No specific number of years has appeared in Nebraska statutes since the repeal of the 25 year parole eligibility for 1st and 2nd degree lifers.

A parole isn't automatic or guaranteed, and eligibility doesn't equal parole. I contend that 83-192(1)(f)(v) doesn't supersede the grant of parole authority via the constitution. Even if it does, and is constitutional, it still wouldn't control those cases that were final before its enactment. Whatever authority that allowed for Trvz's parole , absent a commutation first, is applicable to these cases. Lifers sentenced prior to the enactment of LB 1241 should be eligible for and seriously considered for parole. A legislative provision (LB 1241) can't take away rights conferred by the constitution.

WHAT CHANGES ARE NEEDED?

Inevitably, there might be concerns to change too much. In this particular instance, N.R.S. 83-192(1)(f)(v) in pari materia with a few other statutes are all that need to be changed. Primarily, three changes are needed to this statute: (1) delete all mention of commutation, (2) add a 25 year minimum to obtain parole eligibility and (3) establish annual reviews when parole eligibility is reached. These changes would be in harmony with Art. 4, 13 Neb. Const.

WHICH LIFERS?

If eligible for parole, which lifers should be seriously considered? Paroles, like commutations, are ultimately granted by the board authorized to issue them. Each board has at its request all the background, psychological reports, institutional files records to reach a decision for parole or commutation.

Where does the legal and international support exist on this question? It lies with those lifers that have already served lengthy prison stays (25 years +) and were minors (under 18 years old) at the time of their capital crimes.



See also:

*Roper v. Simmons, 125 S.Ct. 1183, 543 U.S. 551 (2005)

N.R.S. 28-105.01 (2006)

United Nations Article 37 Convention of the Rights of the Child (CRC)

The Rest Of Their Lives: Life Without Parole For Child Offenders In The United States (Human Rights Watch & Amnesty International [2005] @ http://hrw.org../reports/2005/us1005/)

Thirty of the very young sentenced to life in Nebraska prisons since 1971 & League of Women Voters of Nebraska supports an end to life without parole sentences for child offenders (Nebraska Criminal Justice Review [NCJR], September 2007, Vol. 8 No. 3 @ www.archomaha.com

Less Guilty by reason of adolescence: Developmental immaturity diminished responsibility, and the juvenile death penalty (58 Am. Psychologist 1009 (2003))

Reckless Behavior in Adolescence: A Developmental Perspective (12 Developmental Review 339 (1992)

Identity: Youth and Crisis, E. Erikson (1968)


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