Jon Yount with his daughter, Karen
and mother, Carrie.
Jon Yount, a prisoner with an M.Ed. degree and no personal interest in the matter, has made an exhaustive and revealing examination of the parole and sentencing laws in Pennsylvania. He's discovered that for the past 20 years or so some of those laws have been misinterpreted.
In the article which follows, Mister Yount explains that the law as it now exists requires the Pennsylvania Parole board to parole prisoners automatically at the expiration of their minimum sentences. His research and reasoning are compelling, if a bit dry and legalistic. He reveals that Pennsylvania prisoners really have a RIGHT to parole and that the right has been repeatedly violated. Further, he shows that the laws require that convicts must be paroled when they complete their minimum sentences.
We urge you to download Mister Yount's article and to share it with prisoners, lawyers and judges. You might E-mail it to interested persons or organizations.
Pursuant to Pennsylvania law, parole is not a "privilege;" it is not "clemency;" it is not a "matter of grace." It IS a right that engenders presumptive parole! Futile judicial challenges to the parole authority's practice of usurping statutory power invested in the judiciary to specify precisely when during a sentence of total confinement a prisoner must be released on parole have been founded exclusively upon language of the 1941 Parole Act rather than upon superseding 1970 Rules of Criminal Procedure as well as the 1973 Crimes Code, the 1975 Sentencing Code, and the Sentencing Guidelines.
The most dramatic distinction between these presentations is the latter's statutory curtailment of discretion of the Pennsylvania Board of Probation and Parole (PBPP) by:
(1) 42 Pa. C.S. Section 9721(e) which expressly mandates that all sentences of total confinement must be "DEFINITE" in contrast to "indefinite" sentences specified by 19 P.S. Section 1057 prior to April 1, 1975; and,
(2) 42 Pa. C.S. Section 9756(c), also effective April 1, 1975, which explicitly requires that courts impose all terms of imprisonment (with few exceptions) with the "RIGHT TO PAROLE."
Emphasizing these "smoking guns," the following details a case of first impression that warrants a fresh review of policies and practices of the PBPP that preclude presumptive parole, a review that compels a construction different from that of the past.
An overview of the evolution of legislative treatment of criminal offenses and offenders is essential to comprehending contemporary penal statutes as well as understanding the degree to which those enactments have narrowed the scope and application of discretion of both the parole authority and the sentencing court. For example, prior to adoption of these modern codes, the sole limitation upon a sentencing court's latitude of choice was the statutory requirement that the Court:
"shall pronounce upon such convict a sentence of imprisonment for an indefinite term; stating in such sentence the minimum and maximum limits thereof; and the maximum limit shall never exceed the maximum time now and hereafter prescribed as a penalty for such offense; and the minimum limit shall never exceed one-half of the maximum sentence prescribed by any court." (emphasis added)
An "indefinite" (also "indeterminate") sentence is a "form of sentence to imprisonment" that - instead of fixing rigidly the duration of incarceration - is fixed, within the limits assigned by the court or statute, by an executive authority (the governor, board of parole, board of pardons, etc.). An indefinite/indeterminate sentence contemplates that a condition will end at an unpredictable time and "is invalid unless specifically authorized by statute."
A court was not required by statute to consider the nature of the offense, or public safety, or victim concerns, or rehabilitative needs of the defendant when formulating a minimum sentence. Prior to 1941, final authority was invested in the governor regarding when to parole a prisoner, parole was treated as "commutation" to be considered only after expiration of the minimum term and upon recommendation of three members of the Board of Pardons.
The 1941 Parole Act created the Board of Parole, empowering the Board and its successor, the PBPP, with exclusive authority for "administration of parole" of any person sentenced to a maximum term of imprisonment of two or more years. Because sentences were then "indefinite," "administration" was interpreted to include:
1. determination of when to release on parole;
2. conditional released based on "home", "job", etc.;
3. supervision of parolees;
4. recommitment; and
5. reparole.
A minimum term compelled the Board to review a prisoner for parole upon expiration of the specified minimum. The Parole Act gave the Board absolute discretion - subsequent to expiration of the minimum term imposed by a court or reduced by executive clemency - to determine when:
"in its opinion the best interests of the convict justify or require his being paroled and it does not appear that the interests of the Commonwealth will be injured thereby."
The Board did not inherit the governor's power of clemency. In support of a decision regarding release on parole, the Board was required to consider only:
"the nature and character of the offense committed and any recommendation made by the trial judge as well as the general character and history of the prisoner."
The Parole Act was amended in 1943 to require the parole authority to also consider:
"the recommendation of the district attorney and of each warden or superintendent . . . who has charge of an applicant."
Prior to 1968 female offenders were sentenced pursuant to law distinct from that governing imprisonment of male defendants. The genesis of modern Rules of Criminal Procedures appears to be (1) acknowledgement by the state's highest court of the obsolescence of former penal and parole statutes, and (2) the Court's resulting, determination that women were constitutionally entitled to equality under the law. Pa.R. Crim. P. - adopted January 30, 1970 - were promulgated by the Supreme Court in exercise of its power under the Constitution of Pennsylvania, Article 5, 10 and 42 Pa. C.S. Section 1722. Such equity rules adopted by the Supreme Court have the force of stature. The following "repealer" within Section 1722 (a) (1) requires that provisions of PURDON'S PENNSYLVANIA STATUTES - including the Parole Act - relating to practice and procedure be construed and applied in relation to the Rules:
"All statutes shall be suspended to the extent that they are inconsistent with Rules prescribed under 42 Pa. C.S. Section 1722 (a) (1).
A sentencing court must order preparation of - and must consider - a Presentence Investigation Report as well as relevant psychiatric evaluations, or place on the record reasons for dispensing with such sentencing aids. It is notable that county parole/probation departments prepare such presentence accounts regarding those factors of physical, mental and behavior conditions and history, complete criminal record, and circumstances relevant to the nature and character of the offense committed to be utilized by the Court in fashioning an appropriate, individualized minimum term of incarceration. Unlike records relied upon by the PBPP when arbitrarily denying or granting parole, a defendant and his counsel have a right to examine the contents of a presentence investigation report before sentencing and to offer evidence in rebuttal to any portion to be contested.
"The legislature has exclusive power to determine the Commonwealth's penologic system and it may therefore establish a system of parole . . . (and) make such changes in terms and conditions as the legislature may from time to time see fit."
The General Assembly enacted the 1973 Crimes Code to supersede the 1939 Penal Code, then adopted the 1974 Sentencing Code (42 Pa. C.S. Section 9701, et seq.) to suspend/amend prior sentencing and parole statutes. A trial court's discretion was fettered by these statutory criteria as well as by Pa. R. Crim. Pa. when imposing sentence. Construing relevant sections of the modern penal code, state appellate courts determined that:
"in imposing sentence the court must not overlook pertinent facts, disregard the force of evidence, commit error of law . . . or inflict punishment exceeding that prescribed by statute' . . . The Court must consider the character of the defendant and the particular circumstances of the offense in light of the legislative guidelines for sentencing, and must impose a sentence that is the minimum sentence consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant . . . 18 Pa. C.S. Section 1321 (b) . . . Commonwealth v. Riggins, supra, (474 Pa. 115, 377 A.2d 170 (1977))." (underlining supplied in original)
"We note ... the weight given by the sentencing court to any one factor must depend on the particular case."
Social policy regarding penology, as articulated by statute, was evolving to limit discretion of individuals, thereby enhancing uniformity, fairness and accountability as well as inherent due process protections. Accordingly, the Sentencing Code provides that:
"All Acts and parts of Acts are repealed in so far as they are inconsistent herewith."
Striking evidence of this philosophical revolution is found in Act 319 of 1978 which established the "PENNSYLVANIA COMMISSION ON SENTENCING" and authorized the Commission's promulgation of 'SENTENCING GUIDELINES."
"The legislature had commissioned guidelines because it was dissatisfied with past sentencing. Thus, the ranges can be said to have been restrained, but not constrained, by prior sentencing and current prison capacity. For these reasons, Pennsylvania guidelines are prescriptive rather than simply descriptive of past practices."
"The legislative history of the Sentencing Guidelines indicates that they were developed with the goals of promoting uniformity and fairness in sentencing";
that is, "with a view towards ending the wide disparity in the sentencing of defendants."
For example, Sentencing Guidelines require:
"303.1 Guideline Sentence Standards
(a) The Court shall consider this chapter in determining the appropriate sentence for felonies and misdemeanors.
303.2 Procedure For Determining The Guideline Sentence
The procedure for determining the guideline sentence shall be as follows:
(1) Determine the prior record score and offense gravity scores described in 303.7 and 303.8 . . .
(2) Refer to the Sentence Range Charts in 303.9 . . .
(3) Determine if aggravating or mitigating circumstances apply as described in 303.3 . .
(4) Select sentence from the Sentence Range Chart as listed in 303.9 . . .
(5) Determine if a deadly weapon was possessed in the offense and apply the provision of 303.4 . . .
303.9 Sentence Range Charts
(a) All guideline sentence ranges are months of minimum confinement as defined in 42 Pa. C. Section 9755 (b) and Section 9756(b) . . ."
The only appellate review of the maximum term is whether that aspect of a sentence of total confinement is within the statutory maximum. All other review is directed to the minimum term! The state judiciary has determined that:
"The purpose of the sentencing guidelines is to insure that more uniform sentences are imposed in the Commonwealth. Accordingly, the guidelines set forth the minimum range . . . of sentence of that offense...."
These guidelines were incorporated into the sentencing Code at Section 9721:
"The Court shall also consider any guidelines for sentencing adopted by the Pennsylvania Commission on Sentencing."
Moreover, Commonwealth judges are instructed:
"In choosing an appropriate sentence. . . the trial court must consider and evaluate a variety of factors, guided by the sentencing guidelines as well as general principles set forth in the Sentencing Code . . ."
The Commonwealth is not without redress if it perceives the discretionary aspects of a minimum term to be inappropriate. Specific provisions for judicial enhancement of that minimum are provided by Pa. R. Crim. P., the Sentencing Code, and the Sentencing Guidelines. First, the prosecutor is entitled to seek modification of the minimum within ten days of sentencing. Rule 1410 requires that:
"The sentencing court must first be given an opportunity to reconsider any sentence which the prosecution alleges to be inappropriate."
However, the state's highest court discourages modifying the trial judge's analysis:
"It is apparent that the legislature has vested broad discretion in the trial court to impose a sentence appropriate to each case which comes before it. It is also apparent that the legislature has provided a thorough, though not exhaustive, outline of considerations to focus the court's deliberations in choosing an appropriate sentence. It is only where a party can articulate reasons why a particular sentence raises doubts that this scheme as a whole has been compromised that the appellate court should review the manner in which the trial court exercised its discretion."
Any appellate modification of the sentence must be based upon:
"(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the opportunity of the sentencing court to observe the defendant, including, and presentence investigation;
(3) the findings upon which the sentence was based;
(4) the guidelines promulgated by the Commission."
Failure to appeal within thirty days of sentencing bars both the defendant and the Commonwealth from seeking a "second bite of the apple"; that is, modification of the minimum term formulated according to Riggins, Rover, Doyle, the Sentencing Code, the Sentencing Guidelines, and Rules of Criminal Procedure! Also,
"no appeal of the discretionary aspects of the sentence shall be permitted beyond the appellate court that has initial jurisdiction for such appeals."
Inasmuch as the General Assembly opted to preclude the trial court from imposing a minimum that exceeds one-half of the maximum term (i.e., four to seven years) even though warranted by sentencing guidelines. It is inconceivable that the General Assembly would authorize the PBPP to subsequently enhance a legal, individualized minimum to illegally exceed one-half of the maximum sentence by arbitrarily denying parole! It is evident that once the period prescribed for appeal has expired, the Commonwealth - disguised as the PBPP - is precluded from effectuating what is prohibited by Pa.R. Crim. P., particularly since such capricious enhancement of pre-parole incarceration is exempt from administrative or appellate oversight!
Despite (1) the Parole Board's characterization of parole as a "privilege" rather than a "right", (2) its interpretation of the Parole Act and subsequent related penal statutes so as to authorize post-sentencing enhancement of a trial court's individualized treatment of defendant, and (3) the affirmation of this constructive by a litany of appellate-court decisions, Pennsylvania prisoners have a statutory right to presumptive parole that is protected by due process guaranteed by the Constitution of Pennsylvania, Article I, Section 9, and the Fourteenth Amendment to the Constitution of the United States.
"It is well-settled that the Due Process Clause shields from arbitrary or capricious deprivations those facets of a convicted criminal's existence that qualify as liberty interests . . . Certain liberty interests - of which parole and probation are of greatest salience here - inhere in the Due Process Clause and are not subject to deprivation without adherence to . . . strict procedural safe-guards . . . More commonly, the liberty interests possessed by those living in prisons are created, if at all, by state law." Harper v. Young, 64 F.3d 563, 564 (10th Cir. 1995), referring to Sandin v. Conner, 115 S. Ct. 2293 (1995) and Morrissey v. Brewer, 92 S.Ct. 2593 (1972)
Federal courts are not bound by a state court's analysis of constitutional implications of the PBPP's arbitrary denial of parole.
"The identification of the liberty interests that are protected by the Due Process Clause is a question of federal constitutional law . . . " Id. at 566
First, the prefatory statement of purpose and intent of the Parole Act itself engenders a right to parole! Entitled "PUBLIC POLICY AS TO PAROLE", Section 331.1 clearly articulates legislative intent with regard to parole:
"It is declared to be the public policy of this Commonwealth that persons subjected or sentenced to imprisonment for crime shall, on release therefrom, be subjected to a period of parole . . . it is the intent of this Act to create a uniform and exclusive system for the administration of parole in this Commonwealth."
This unambiguous prohibition against release from imprisonment without a "period of parole" not only creates a right to parole but also narrows the authority of the Parole Board to functions of "administration." The power to enhance the period of pre-parole confinement imposed by a court is not inherent in "administration of parole"; such authority was intrinsic to "indefinite" sentences compelled by 19 P.S. Section 1057 prior to April 1, 1975. Thus, it is clear that the General Assembly intended from the inception of the Parole Act to create a "right to Parole." The only question remaining to be addressed herein is the breadth of that right.
Second, the Crimes Code, Sentencing Code and Sentencing Guidelines provide overpowering evidence that the General Assembly and the state judiciary have subjected sentencing and parole to a comprehensive, pragmatic (r)evolution. These modern penal statutes clearly invest absolute authority in the sentencing court to determine the amount of pre-parole total confinement an offender must endure. The linchpin of such transformation exists in the explicit language of 42 Pa.C.S. Section 9756(c) and Section 9721(e) both enacted December 30, 1974) whereby the legislature not only expressly declared parole to be a right but also specified when release to parole must occur!
Each "SENTENCE OF TOTAL CONFINEMENT" for offenses committed since April 1, 1975, has been imposed pursuant to Section 9756:
"(a) General Rule. In imposing a sentence of total confinement the court shall at the time of sentencing specify any maximum period up to the limit authorized by law . . .
(b) Minimum Sentence. The Court shall impose a minimum sentence of confinement which shall not exceed one half of the maximum sentence imposed.
(c) Prohibition of Parole. Except in the case of murder of the first degree, the court may impose a sentence of imprisonment without the right to parole only when:
(summary offenses are charged, sentence is for nonpayment of fines or costs, or the maximum term is less than 30 days)." (emphasis added)
The terms "right" and "parole" have common meanings! A "right" is:
"a power, privilege or immunity guaranteed under a constitution, statutes or decisional laws . . . a legally enforceable claim of one person against another, that the other shall do a given act . . . that which one person ought to have or receive from another."
"When we speak of a person having a right, as distinguished from the elemental idea of rights absolute, we must necessarily refer to a civil right . . . We must have in mind a right given and protected by law, and a person's enjoyment thereof is regulated entirely by the law which creates it."
Inasmuch as "parole is not an act of clemency, but a penological measure for the disciplinary treatment of prisoners who seem capable of rehabilitation outside of prison walls", it is reasonable to conclude that the legislature recognized that a sentencing judge, pursuant to encoded sentencing criteria, is most capable of ascertaining and mandating the point during total confinement after which a prisoner is capable of such non-incarceration rehabilitation.
To construe the "right to parole" compelled by Section 9756(c) to implicate only parole "eligibility" would engender redundancy inasmuch as the minimum mandated by Section 9756(b) already establishes parole eligibility pursuant to the Parole Act and current PBPP procedures. The plain language of Section 9756 creates a liberty interest in more than mere parole eligibility; it constructs a protected right to parole upon expiration of the minimum term. The Supreme Court of the United States acknowledges that states may fashion a parole system that creates not just the possibility of parole, but rather the reasonable expectation of parole that engenders a liberty interest entitled to due process. Pennsylvania's plan and absolute statutory conditions for parole unambiguously create a "right to parole" for prisoners based upon criteria that are factual (i.e. definite sentence with a specific minimum) rather than predictive.
Third, the Sentencing Code mandates release from incarceration upon expiration of the court-imposed minimum term:
"(e) Term of Imprisonment. All sentences of imprisonment imposed under this Chapter shall be for a definite term." (emphasis added)
A "definite" sentence is commonly defined and understood to be a:
"Sentence calling for imprisonment for a specific number of years as contrasted with indeterminate sentence which leaves duration to prison authorities (e.g. parole boards) and good behavior of prisoners."
Section 9721(e) expressly suspends imposition of diametrically-opposed indefinite sentences previously required by 19 P.S. Section 1057. Therefore, sentences of imprisonment imposed pursuant to Chapter 97 of the Code in general and Section 9721 (including Sentencing Guidelines) in particular are minimum terms of definite duration and are exempt from enhancement by the PBPP or any other individual or agency.
Sections 331.1, Section 9721 (e) and Section 9756(c), construed in pari materia, clearly render obsolete prior interpretations of the Parole Act that delegated to the Parole Board authority to consider the nature of the offense, rehabilitative needs of the defendant, protection of the public, and prison behavior when determining the amount of pre-parole incarceration required by statute. Such responsibility has been invested solely in the sentencing court when fashioning appropriate definite minimum terms:
"The sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant." (emphasis added; note the consistency in the usage of "confinement" with regard to the "minimum" in both Section 9721 (b) and Section 9756 (b).
Thus, it is clear that only the Board's power to administer parole remains intact; that is, (1) the logistics of releasing a prisoner on parole upon expiration of minimum term, (2) supervision of paroles, (3) recommitment, and (4) reparole.
Notably, subsequent to adoption of sentencing guidelines, state appellate courts overruled the policy of construing illegal "flat" sentences (where only a maximum term is specified) as implying a minimum of one day; instead, remand for resentencing is now required:
"Sentencing is now governed exclusively by the Sentencing Code ... This interpretation is more in keeping with the policy of having the full sentencing responsibility lodge with the trial court and it eliminates any 'construction of sentences.'
By so holding, appellate courts removed the last vestige of an archaic sentencing/parole process by which the sentencing court shared responsibility with any other entity - including the parole authority - for determining the minimum amount of confinement that is consistent with the protection of the public, the gravity of the offense, victims concerns, and the rehabilitative needs of the defendant.
The legislature included several"tools" within the Sentencing Code to facilitate a court's compliance with sentencing criteria cited in Section 9721 (including Guidelines) when imposing a minimum term in which the "right to parole" is inherent. First, the defendant is entitled to allocution; likewise, victims and the State are permitted during the sentencing proceeding to influence a court's determination of the amount of confinement required prior to parole. The Commonwealth claims a legitimate interest in facilitating "truth in sentencing" which must include closure for both the defendant and the victim(s) by precluding involvement in the punishment of the offender beyond input into the sentencing process itself. By seeking to deny a prisoner's right to parole upon expiration of the minimum term, victims are counter productively encouraged to indefinitely pursue retribution and revenge - factors embodied within formulation of the minimum term via Sentencing Guidelines.
Moreover, in contrast to victim statements within presentence investigation reports and recorded during the sentencing proceeding itself, verbal and written input of victims regarding parole of the offender is entitled to confidentiality, thus denying the applicant due process inherent in an opportunity to ascertain the validity of such claims and to correct erroneous allegations upon which enhancement of pre-parole confinement may be founded. Although the state may claim a legitimate interest in responding to concerns of victims (e.g. where the parolee may reside and/or be employed, with whom s/he may associate, and the intensity of supervision of that parolee), such "interest" is confined by modern penal statutes to "administration of parole" and not when to release from incarceration.
Given these extensive statutory aids and safeguards incorporated into a court's discretion when imposing a minimum term of confinement, it is apparent that the PBPP is neither intended to serve as a "Monday-Morning Quarterback" regarding reappraisal of factors previously evaluated by the learned sentencing judge - and thus usurp the court's statutory authority to order appropriate pre-parole incarceration - nor to nullify legislative intent by denying parole pursuant to obsolete interpretations and application of the 1941 Parole Act.
Rules of Statutory Construction require that the 1941 Parole Act be construed in pari materia with Pa. R. Crim. P., the Crimes Code, the Sentencing Code and Sentencing Guidelines when interpreting the effect of Section 9756(e) and Section 9721(e) on parole. Statutes are in pari materia because they relate to the same persons or things or to the same class of persons or things" and "shall be construed together, if possible, as one statute." The class of persons addressed herein are those sentenced to a maximum term of two or more years of total confinement.
"It is a canon of statutory construction that where words of a later statute differ from those of a previous one on the same subject, they presumably are intended to have a different construction."
The language of Section 9721 and Section 9756 clearly differs in obvious respects from previous enactments governing a court's authority when imposing a sentence of imprisonment; that is, the court is compelled to levy "definite" minimum terms of total confinement with a "right of parole", a mandate that also distinguishes Section 9721 and Section 9756 from judicial construction of the prior-encoded Parole Act.
"It is a fundamental rule of statutory construction that a change in language of a subsequent statute on the same subject may suggest a change in legislative intent."
Moreover, a court is not justified in:
"departing from the plain meaning of words,especially in a penal Act, in search of an intention which words themselves do not suggest."
The state judiciary recognizes that:
"A fundamental principle of statutory construction is set forth at 1 Pa. C.S. Section 1921(b) . . . 'When the language of a statute is clear and unambiguous, the judiciary must read its provisions in accordance with their plain meaning and common usage."
As defined previously herein, the words "right", "parole", "definite" and "indefinite" are well understood both in terms of plain meaning and common usage: in Pennsylvania, the expressions "definite term" and "right to parole" - construed together - clearly mean freedom from incarceration at the expiration of a minimum term. However, even if the argument that Section 9721(e) and Section 9756(c) are subject to other interpretations is advanced:
"...when a criminal statute calls for construction, it is not the construction that is supported by the greater reason that is to prevail, but that one which, if reasonable, operates in favor of life and liberty."
This "Rule of Lenity" requires that any ambiguity in penal statutes must be resolved in favor of an offender. Finally, and most germane:
"All words and provisions of statutes are intended to have meaning and are to be given effect . . . The words of a statute are not to be construed as surplusage."
Sections 9721(e) and 9756(c) cannot be considered redundant or meaningless. Pursuant to present judicial and PBPP interpretations, the minimum term mandated by Section 9756(b) engenders "parole eligibility". To hold that the term "right to parole" annexed to sentencing procedures by subsection (c) also denotes mere "eligibility" relegates that phrase to the trash heap of surplusage!
The judiciary may opt for "obsolescence" rather than "implied repeal" when construing relevant portions of the 1941 Parole Act in pari materia with modern Rules, Sentencing Code and Sentencing Guidelines. For example, the Board's sole responsibility when determining a parole-release date is the requirement that the Board decide when "the best interests of the convict justify or require his being paroled" may be fulfilled simply by the PBPP acknowledging that the best interests or a prisoner lie in protection of the statutory right to parole. The Board may also presume that the "interest of the Commonwealth will not be injured" by release of the convict on parole because of the absolute verity attached to the minimum term fashioned by a sentencing court pursuant to comprehensive statutory standards that incorporate the prisoner's "physical, mental and behavior condition and history," "complete criminal history", and "the nature and character of the offense committed."
Furthermore, requirements that the Board consider the "conduct of the person while in prison", the "recommendation of the district attorney and of each warden or superintendent", "any recommendation made by the trial court", and "the written or personal statement or testimony of the victim or the victim's family" cannot serve as factors under a "definite" sentencing scheme regarding when to parole the prisoner but may be utilized only to ascertain the level of supervision ("electronic monitoring", "curfew", "intensive", "minimum" etc.) such factors indicate. The ultimate recommendation of the trial judge is the minimum term imposed!
A reasonable person, when perusing the modern Sentencing Code, must conclude that sole responsibility for determining when an offender is to be paroled from a particular sentence lies with the sentencing court. The PBPP's arbitrary denial of release on parole at the expiration of the court-imposed minimum term is an impermissible burden on a prisoner's presumptive right to parole guaranteed by Section 9721 and Section 9756. Our jurisprudence is predicated upon rule by law as distinguished from rule by man. The liberties of people are not to be committed to such despotic power as that wielded by the PBPP in violation of contemporary law.
"It is 'a presumption of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment.'" (Commonwealth v. Hosendorf, 437 Pa. 219, 223, 263, A.2d 439 (1970) "(This presupposition) rests on the "instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should.'" Id.
In addition to the foregoing, current policies and practices of the PBPP violate due process in two respects. First, by enhancing punishment on the basis of factors already considered by the sentencing court:
1. the nature and character of the offense committed;
2. the general character and history of the offender;
3. rehabilitative needs of the defendant ("the best interests of the convict justify or require his being paroled"); and
4. protection of the public.
The PBPP has usurped powers vested in the judicial and legislative branches of state government and, therefore, has implicated "issue preclusion", that is, a particular issue has already been litigated by the court thereby barring "relitigation" of the same issue by the parole authority.
Because the record of judgement of the sentencing court imports absolute verity to the definite minimum imposed,"collateral estoppel", particularly "estoppel for judgement", forbids relitigation by the PBPP of facts related to the above factors for the purpose of enhancing the amount of pre-parole confinement.
It is notable that the Commission On Sentencing determined - and the General Assembly concurred - that adjusting guideline sentences on the basis of post-offense behavior would be undesirable inasmuch as the result would be penalizing the offender twice for the same behavior - "a violation of the commission's precept against 'double counting'". This prohibition against double counting was adopted out of concern "with the appearance of unfairness, and the potential for actual unfairness". Likewise, the Superior Court has held that "what is usable to once enhance a sentence may not be employed to duplicative effect."
By accepting the Sentencing Commission's rationale, the legislature adopted the philosophy that prisoners who commit subsequent offenses should be prosecuted if the state seeks punishment for those "crimes". Accordingly, the PBPP is likewise prohibited from "double counting" and, thereby, enhancing pre-parole incarceration on the basis of subsequent prison offenses/misconducts. Such violations of laws/rules could be prosecuted to protect the "interests of the Commonwealth" - by prison misconduct procedures and/or criminal charges - and punished accordingly. Whatever the offense, legal proceedings may be initiated and a consecutive sentence sought by the state that requires incarceration beyond the original minimum term.
Denial of Due Process inherent in the PBPP's failure to treat parole as a "right" serves to breach plea contracts that result in a defendant's plea of guilty in exchange for the Commonwealth's promise of a specific minimum sentence and the Court's acceptance of that agreement as the basis for imposition of a definite term of total confinement.
A defendant has a constitutionally-protected liberty interest in the state complying with each element of a plea contract utilized to induce a guilty plea and the inherent waiver of significant rights. A plea contract entered into by an agent (District Attorney) of the state must be fulfilled and cannot subsequently be repudiated by another agent or agents (PBPP)! We all make deals! The measure of our integrity is how many we keep! Thus, when a defendant negotiates with the government on the basis of the clear language of 42 Pa. C.S. Section 9721 and Section 9756 - that parole is a right inherent in the expiration of the contracted definite minimum term, all agents of the state must honor that contract. Otherwise, the integrity of the government is no better than that of its wards!
Since the 1941 Parole Act explicitly required that all terms of imprisonment must include a period of parole, prisoners have been entitled to parole as a "right". Initially, the cohesive and controlling element of the Parole Board's authority was the then-compulsory indefinite sentencing scheme. The Board's power "to release on parole" subsequent to expiration of a court-imposed minimum term was expressly provided by the legislature. Moreover, authority to arbitrarily determine when a prisoner was to be paroled was definitely inherent in those mandatory indefinite sentences.
However, the ideal of criminal law has evolved away from an abhorrent capricious system toward a single justice for everyone, relentlessly limiting the state's discretion in dealing with offenders. This philosophical evolution is evident in the legislative petrological revolution of the "Seventies" - a restructuring of the relationship between statutory power of the judiciary and that of the executive parole authority. Effective April 1, 1975, the General Assembly repudiated its former approach to sentencing and parole by not only declaring that, except in a few express circumstances, parole is a "right" but also by explicitly commanding a 180-degree reversal in sentencing via the requirement that all sentences imposed under the "new" Sentencing Code be for definite terms.
The judiciary incorporated these dramatic modifications into sentencing procedures in general and minimum terms in particular. Conversely, the PBPP continues to treat minimum sentences as "indefinite", thereby failing to curtail its unconstitutional commandeering of authority specifically vested in the sentencing court. The Statute requiring imposition of definite minimum terms serves as an inflexible rule - rather than an interpretive policy or guide leaving discretion for release from pre-parole incarceration to the PBPP - and is indistinguishable from a statute that establishes a rigid regulation denying release on substance "within forty-five days of a release date. Although the "indeterminate/indefinite" sentencing rule, as well as the related power of the parole authority to arbitrarily deny parole, are long-standing concepts in our Commonwealth, they are statutory and not constitutional provisions. Therefore, the mandate of Section 9721(e) that all sentences imposed under Chapter 97 of Title 42 be for definite terms carves an exception to those rules. See Commonwealth v. Bell, supra.
The state has no legitimate interest in denying a prisoner's statutory right to release on parole at the conclusion of the minimum sentence. Because ours is a system of laws rather than of men, except for issues regarding the legality or constitutionality of a sentence, no one -victim, defendant or Commonwealth - is or should be entitled to a second or third bite of the apple subsequent to judicial-finality of that sentence.
Moreover, the state has the option of prosecuting a prisoner for criminal behavior that occurs subsequent to imposition of the initial sentence. Additional terms of imprisonment may be imposed consecutive to the existing penalty - requiring parole to the consecutive sentence ("constructive parole") rather than to the community, thereby extending confinement of the offender if the state so desires. Additionally, the Commonwealth has a legitimate interest in relieving prison overcrowding - an explicitly purpose of Sentencing Guidelines - and may do so simply by complying with the mandates of Section 9721 and Section 9756!
Finally, what the legislature giveth, the General Assembly can taketh away! Inasmuch as the legislature created the right to presumptive parole via modern penal statutes, it is constitutionally entitled to amend that right. Just as it has empowered the PBPP to deny parole if the applicant tests positive for controlled substances, the General Assembly may delete the phrase "right to parole" from Section 9756(c) and amend Section 9721(e) to compel "indefinite" sentences at any time. However, regardless of such prospective action by the legislature, parole will remain presumptive for any prisoner whose offense was committed between April 1, 1975, and the effective date of such amendment(s)!
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Presumptive Parole
Right To Parole
The Smoking Gun Section 9756(c)
Definite Sentencing Section 9721(e): Smoking Gun II
Rules of Statutory Construction
Collateral Estoppel
Breach of Plea Contract
Conclusion