This article discusses the availability of parole release reconsideration in indeterminate sentencing states. The first section of the article presents a background on the general constitutional requirements for parole release consideration. The second section presents our initial research findings on reconsideration after denial of parole release at the first hearing. The Robina Institute recently published a detailed, multi-state survey of parole releasing authorities.1 This research is from the Robina Institute’s Profiles in Parole Release and Revocation, a second project that relies on legal research to describe various aspects of parole on a national level.2
Background on the right to parole consideration and the parole process. In order to trigger the due process protections guaranteed in the fourteenth amendment, an individual must have an interest in life, liberty, or property at stake. However, it is well settled law that parolees have no liberty interest in parole release unless a statute, a regulation, or a constitutional principle creates one.3 For example, if a state law says that when an inmate meets certain prerequisites the releasing authority (or “board”) shall grant parole, an inmate who has met those prerequisites then has a constitutionally protected liberty interest in release.
In the vast majority of states that have discretionary parole, there is no such liberty interest. According to the precedential case Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, “a reasonable entitlement to due process is not created merely because a State provides for the possibility of parole, such possibility providing no more than a mere hope that a benefit will be obtained.”4 Further, notes Greenholtz, states have no duty to set up a parole system in the first place.5
With that said, there is a minor due process interest in consideration for release in some form.6 Under Greenholtz, the Constitution requires that the inmate have some opportunity to be heard and to be informed of the reasons for parole denial.7 Jurisdictions may make additional laws, regulations, or policies about the format of the parole hearing, and courts sometimes hold that these also create due process requirements.8
The right to be heard during the parole consideration process, however, is minimal. A personal interview with a prisoner will suffice; in addition, parole hearings do not need to be public and the inmate does not have a universal right to be present. The hearing itself may be conducted by a board representative, rather than a member of the board.9
In practice most boards conduct a parole hearing in some fashion with the inmate present, but this is not always the case. In Nebraska, for example, members of the board or officers designated by the board conduct an interview with the inmate; if they conclude that the inmate is reasonably likely to receive parole, a public hearing will occur.10 In Idaho, a parole hearing investigator will interview an inmate and write a detailed report on the inmate’s file. The board can then choose to either hold a hearing with the inmate present or make a decision based on the report and the contents of the file (called an “Executive Session Review”).11
At the conclusion of the consideration process, the board makes a decision about whether or not to release the inmate. Again, denial of release must be supported by some factual basis; how detailed the statement is varies from jurisdiction to jurisdiction. However, “a pro forma ‘boiler plate’ reason for denial of parole is generally insufficient. The inmate must be provided with the essential facts from which the board drew inferences leading to its decision, and merely conclusory statements lacking any factual determinations which do not have any rehabilitative effect are insufficient.”12
If parole is denied, and these minimal due process requirements have been met, there may be no other avenues for discretionary release. Review, if granted, is generally limited to whether the board acted outside its statutory authority or its own regulations, denied constitutional rights, abused its discretion, or made a decision in a manner that was arbitrary or capricious.13 There is no right to a second hearing unless established under state law, regulation, or policy.
Parole reconsideration. Parole reconsideration occurs in many states after the first denial of parole release. In many jurisdictions, the parole board is obligated to grant future hearings with the same minimal due process protections as available in the first hearing. In other states, however, the board can order an inmate to “serve all,” creating no future prospect of parole release after denial at the first consideration. Again, it is important to note that while parolees have a constitutional right to a first parole hearing, there is no right to a second one, unless states create one.
Parole reconsideration, where it exists, allows boards to continue to examine the inmate’s behavior and achievements while in prison. In other words, it allows the board to take into account changing factors that may bear on risk of recidivism and suitability for release. It also may be an important safety valve for prison population reduction, allowing for the reconsideration and release of lower-risk prisoners who were initially denied parole.
The Robina Institute’s legal research has yielded comparative information about the availability of reconsideration for parole release in all of the states that have discretionary release systems. Below are the initial results of this state-by-state research. Note that research on some states has been subject to more extensive review than in other states; however, this preliminary information shows how complex the “map” of reconsideration of release is. Some of the information may be changed as we continue our study.
The states are listed in alphabetical order; “board” refers to parole board.
Alabama: The board must reconsider the case no more than two years later for cases with sentences of 20 years or less and no more than 5 years later for all other cases.14
Alaska: The board may schedule a subsequent parole hearing at the time of denial or:
- For the first parole denial, within two years after the first parole eligibility date;
- For the second or subsequent denials, within two years after the most recent parole hearing.15
Arkansas: The board must reconsider inmates eligible for discretionary release for transfer (parole release) at least every two years.16 By board policy, inmates are reconsidered for parole or transfer one year from the date of the board’s vote against release.17
Colorado: The board must review most inmates’ files annually after denial at first eligibility, except for offenders convicted of designated violent or sex offenses, when the statutory interval may be three or five years.18
Connecticut: As the board explains: “[s]ome inmates may be denied parole with no future consideration. Others may be denied with a new hearing date set for the future.”19
Georgia: Inmates who are not serving life sentences are automatically reconsidered for parole at least every five years. Inmates who are serving life sentences are automatically reconsidered at least every eight years.20 If the Parole Decision Guidelines System indicates that an inmate should be denied parole for the entirety of the sentence, their case must be reconsidered at the expiration of 1/3 of their sentence.21
Hawaii: The paroling authority must hold additional hearings at least every 12 months until parole is granted or the maximum term of confinement expires.22 However, the parole board can render an inmate effectively ineligible for parole by initially setting the minimum term of incarceration at a period equal to the maximum sentence.23
Idaho: There is no statutory requirement for a subsequent hearing after an initial parole hearing has been conducted. Thus, if parole is denied, the parole commission has discretion regarding whether and when to conduct the next hearing.24
Iowa: The board is required to review the inmate’s file at least annually, regardless of decisions at previous proceedings. However, the board is exempted from the annual review requirement for Class A and Class B felons serving more than 25 years.25
Kentucky: Offenders convicted of non-violent, non-sexual Class C or D felonies must be granted a review after at most 24 months. Parole review must occur for all other prisoners at least every five years, unless the majority of the full board approves a deferment. No parole deferment can exceed 10 years, except for life sentences.26 Apart from these rules, subsequent reviews are conducted at the discretion of the Board; the Board may order a serve-out of a remaining sentence at an initial or subsequent review.27
Louisiana: Prisoners must apply for a parole rehearing with the Board, which can either rehear the parole release decision or deny a rehearing. If a request is denied, a subsequent request may be made as per the following schedule:28
|Type of Crime||Initial request for rehearing||Subsequent request for rehearing|
|Nonviolent*||6 mos. after original date of denial||6 mos. after initial reapplication|
|Crime of violence||1 year after original date of denial||Every 2 yrs. after initial reapplication|
|Crime against person||1 year after original date of denial||Every 2 yrs. after initial reapplication|
|Sex offense||2 yrs. after original date of denial||Every 2 yrs. after initial reapplication|
|Murder 1st or 2nd deg.||2 yrs. after original date of denial||Every 2 yrs. after initial reapplication|
|Manslaughter||2 yrs. after original date of denial||Every 2 yrs. after initial reapplication|
*except as otherwise restricted
Maryland: After a parole hearing, the parole commission may refuse parole altogether or may choose to rehear the case at a specified time in the future. According to the commission’s website, “offenders refused parole do not have any more hearings.”29
Massachusetts: All parole-eligible sentences subject to denial (?) have mandatory review schedules. Parole denials must be reviewed (1) once annually for offenders who are not habitual offenders, have not been civilly committed as sexually dangerous persons, and are not serving a life sentence; (2) every two years for habitual criminals; (3) three years after the initial parole hearing for civilly committed sexually dangerous offenders; and (4) at least once every five years for offenders serving a life sentence.30
Michigan: The board must reconsider inmates at intervals not to exceed 24 months. However, in certain circumstances, the majority of the board can deny reconsideration for up to 60 months by a majority vote of the board.31
Mississippi: The board may schedule a subsequent parole hearing and, if a new date is scheduled, the board shall identify the corrective action the inmate will need to take in order to be granted parole. Inmates not released at their initial parole date shall have a parole hearing at least annually.32
Missouri: Release must be reviewed at a reconsideration hearing, where the board will consider the offender's case and any significant developments or changes that may have occurred subsequent to the previous hearing. Reconsideration hearings must be conducted every one to five years at the board’s discretion until a presumptive release date has been established.33
Montana: If a hearing panel denies parole, it may order that the prisoner serve up to six years before conducting another hearing review.34 However, per board policy, the cases of offenders with prison discharge dates are reviewed annually. If an offender’s review is more than one year away, the offender may submit a request for early administrative review based on changed circumstances or new information that would affect suitability for parole.35
Nebraska: After an inmate is denied parole, but the case is deferred for later consideration, the inmate must be permitted one hearing annually until a release date is set.36 However, the board can also deny release without granting any later consideration.37
Nevada: The board must hold a subsequent release hearing within three years. However, if a prisoner has more than 10 years remaining on the sentence, the next hearing must be held within five years.38
New Hampshire: It appears that after the initial parole hearing, any future hearing is discretionary with the Board and may be contingent on the offender’s conduct. According to regulation, “if parole is denied at the initial hearing, the board shall advise the inmate, in writing via a copy of the minutes of the hearing, what the inmate shall be required to do to be granted another hearing.”39
New Jersey: A new date for future parole eligibility must be included in a statement of parole release denial.40 Future eligibility after denial is determined according to a schedule promulgated by the board that is organized according to the original offense resulting in incarceration.41
New York: The board shall specify a date not more than twenty-four months from such determination for reconsideration, and the procedures to be followed upon reconsideration shall be the same as in the initial hearing.42
North Dakota: It is unclear whether the board routinely reconsiders parole release decisions; there is no statutory language on the subject. Further research is required.
Oklahoma: Under board policy, non-violent offenders are reconsidered for parole release one year from the date of the denial. If a violent offender was denied parole by the board or the governor before their initial eligibility date, they may be reconsidered at their 1/3 date unless that date is within 24 months of the initial consideration. If the 1/3 date is within that time frame, they will be reconsidered for parole two years after the date of denial. Once a violent offender has been considered for parole after eligibility, they must be reconsidered every three years.43
Pennsylvania: The board is required to consider a renewed application for parole after one year.44
Rhode Island: If the board votes to deny parole, it must afford an inmate an opportunity at reasonable intervals to present evidence of changes in the factors previously used in the determination of the board's decision. If a majority of the board sitting as a subcommittee cannot agree on setting a reconsideration hearing or denying parole without reconsideration, the vote shall default to reconsideration and the chairperson shall be authorized to schedule a reconsideration hearing at an interval proportionate to the time remaining on the inmate’s sentence. In no case shall the interval for reconsideration exceed six (6) years.45
South Carolina: The prisoner’s case must be reviewed every twelve months after initial denial for the purpose of a parole determination.46 In general, offenders who have been convicted of a violent crime must have a subsequent hearing every two years.47
South Dakota: An inmate may present an application for reconsideration of their parole case eight months after the last denial. The statute notes that a continuance of an application for parole (in other words, a decision by the board to hear the case at another date) is not a denial.48
Tennessee: The legislature recently passed a new law that raised the maximum period that a parole-eligible inmate could serve without review of parole release from six to ten years. If the board declines parole, they may now delay further review for up to a decade.49 During the time between parole hearings, the board may ask an offender to complete programs that could contribute to success upon return to the community. Under the new statute, board may also deny parole for the balance of any sentence of ten years or less.50
It should also be noted that the Tennessee Department of Corrections will not certify an inmate for a parole grant hearing, other than an initial grant hearing, if, at the time the Department would otherwise have certified the inmate as eligible:
- The inmate is classified as close custody. This decertification shall continue for the duration of the classification, and for a period of one year thereafter.
- The inmate is classified as maximum custody. This decertification shall continue for the duration of the classification, and for a period of two years thereafter.51
Texas: With some exceptions,52 the next eligibility hearing will generally be set “as soon as practicable after the first anniversary of the denial.”53 However, Texas inmates may be denied parole at the hearing and ordered to “serve-all” if their release date is less than a year away.54 Offenders convicted of certain violent or sexual crimes may be denied additional parole review for a period of five to ten years.55
Utah: There is no routine right to a second (or subsequent) hearing. If parole is not granted at the initial hearing, the board will inform the offender of the next possible rehearing date, if there is one.56 In most cases, if the board denies release, it will schedule a future hearing date and detail what must be accomplished during the interim period.57
The board’s website explains that “[w]hen a sentencing guideline date or total minimum sentences are far in the future at the time of the hearing, the board will usually schedule a rehearing so that the board may again interview the offender and review the case closer to a possible release date.” It also adds that a hearing may be necessary where the board makes release consideration contingent on completing treatment or programming.58 However, the initial release hearing allows the board to “schedule a parole date, schedule a release without parole (termination), schedule a rehearing at any point within an offender’s sentence, or order an inmate to serve the full sentence before being released.”59
Vermont: If the board denies parole on first consideration after the initial interview, it will review the case again after a subsequent interview. If an inmate is serving a maximum sentence of less than 15 years, the board reviews the inmate’s record every 12 months. If an inmate is serving a maximum sentence of more than 15 years, the board reviews the inmate’s record every two years. The board will conduct an interview upon written request of an inmate, but only once in a two-year period. The board will also conduct an interview upon request of the Department of Corrections. It does not appear that future interviews are scheduled automatically.60
West Virginia: At denial, the board must notify the inmate of the month and year he or she may apply for reconsideration and review. The board must consider the case of every inmate still eligible for parole at least once a year. However, the board can review cases of inmates serving life with parole sentences at any time within three years.61
Wyoming: The board schedules inmates for an annual parole release review after their first appearance, unless they submit a written waiver or refuse to participate.62
Conclusion. These initial findings point to the fact that there are major differences in reconsideration processes between the states with discretionary parole release. While a standard formula adopted by many states is the annual parole review, some states have made exceptions for certain types of crimes or for prisoners serving lengthier sentences. Some states, such as Tennessee and Montana, make routine reconsideration for parole less frequent. In states like Utah, Connecticut, and Idaho, there is no guarantee that the initial parole release decision will be revisited. In numerous instances, there is pronounced state-by-state variation in the intervals between the initial decision to deny parole and the subsequent reconsideration of whether to grant release to an offender. This issue remains largely uncharted as research on this topic is largely non-existent. What is known, however, is that the decisions exercised by paroling authorities impact dramatically on the dosage of time offenders serve behind bars, not just at initial eligibility, but subsequent to reconsideration hearings that may occur many years in the future, if at all.
- 1. Robina Institute Report: The Continuing Leverage of Releasing Authorities: Findings from a National Survey (2016), http://robinainstitute.umn.edu/areas-expertise/parole-national-survey.
- 2. Robina Institute, Profiles in Parole Release and Revocation, https://robinainstitute.umn.edu/areas-expertise/parole-profiles.
- 3. See, e.g., L. Prob. & Parole § 6, Parole Granting: Due Process and Procedures (2016).
- 4. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 9-11 (1979).
- 5. Id. at 7.
- 6. 67A C.J.S. Pardon & Parole § 59 (2017).
- 7. 442 U.S. 15-16.
- 8. See, e.g., Neel v. Holden, 886 P.2d 1097 (Utah 1994) (holding that any original parole grant hearing (a hearing at which parole release is fixed or extended) is subject to due process requirements of the Utah Constitution; this included granting him access to portions of the psychological records before the board); Beckworth v. N.J. State Parole Bd., 301 A.2d 727 (N.J. 1973) (holding that the Board was required to state reasons for parole denial, but that in the case those reasons were sufficient). Note that furthermore, releasing authorities must not deny parole for capricious reasons or base their decisions on false information. See, e.g., Strong v. Ala. Bd. Pardons & Paroles, 859 So. 2d 1201 (Ala. Ct. Crim. App. 2001).
- 9. 67A C.J.S. Pardon & Parole § 59.
- 10. Neb. Rev. Stat. § 83-1,111. Following an adverse decision, the inmate may request an additional review by a majority of the Board.
- 11. Idaho Admin. Code r. 50.01.01.200.
- 12. 67A C.J.S. Pardon & Parole § 61 (2017).
- 13. 67A C.J.S. Pardon & Parole § 64 (2017). In some places, the reviewing court can consider whether a decision met an evidentiary standard, e.g. “substantial evidence.”
- 14. Ala. Code § 15-22-37; Ala. Bd. of Pardons & Paroles, Rules, Regulations, and Procedures, art. 6, § 13, http://www.pardons.state.al.us/Rules.aspx.
- 15. Alaska Stat. § 33.16.130(c).
- 16. Ark. Code Ann. § 16-93-615 (b)(5).
- 17. Code Ark. R. 158.00.1-1.1.
- 18. Colo. Rev. Stat. §§ 17-2-201(4)(a), 17-22.5-403(5)(a),(b).
- 19. Conn. Bd. of Pardons & Parole, Parole FAQs, http://www.ct.gov/bopp/cwp/view.asp?a=4330&q=508202 (last visited June 24, 2016).
- 20. Ga. Comp. R. & Regs. 475-3-.05.
- 21. Ga. Comp. R. & Regs. 475-3-.06(3).
- 22. Haw. Rev. Stat. § 706-670.
- 23. Williamson v. Haw. Paroling Auth., 35 P.3d 210, 218 (Haw. 2001).
- 24. Correspondence with Olivia Craven, Executive Director, Idaho Parole Commission (Aug. 8, 2014). See also Idaho Code § 20-223 (“The commission may also by its rules fix the times and conditions under which any application denied may be reconsidered.”).
- 25. Iowa Code § 906.5(1)(a).
- 26. Ky. Rev. Stat. Ann. § 439.340 (West).
- 27. 501 Ky. Admin. Regs. 1:030.
- 28. 22 LA admin. Code pt. XI, § 705.
- 29. Md. Parole Comm’n, Frequently Asked Questions, Parole & Parole Hearings, http://dpscs.maryland.gov/about/FAQmpc.shtml#parol (last visited Mar. 28, 2017).
- 30. Mass. Gen. Laws ch. 127, § 133; 120 Mass. Code Regs. 301.01.
- 31. Mich. Dep’t of Corr. Policy Directive 06.05.104(X) (2013). This decision is determined if one or more factors apply. These factors include any determination by the majority of the board that a prisoner’s history of predatory, deviant, or violent behavior indicates there is a present risk to public safety which cannot be reasonably expected to be mitigated in less than 60 months; that the prisoner was convicted of certain firearms-related offenses; and/or that the offender has a prior parole revocation for violating a condition of parole regarding firearm ownership.
- 32. Miss. Code Ann. § 47-7-18(6).
- 33. Mo. Code Regs. Ann. tit. 14 § 80-2.010(6)(c).
- 34. Mont. Code Ann. § 46-23-201(5).
- 35. Mont. Admin. R. 20.25.402 (6).
- 36. If the board defers the case for later reconsideration, the committed offender shall be afforded a parole review at least once a year until a release date is fixed. The board may order a reconsideration or a rehearing of the case at any time. Neb. Rev. Stat. § 83-1,111(4).
- 37. See, e.g., Van Ackeren v. Neb. Bd. of Parole, 558 N.W.2d 48 at 51 (Neb. 1997).
- 38. Nev. Rev. Stat. Ann. § 213.142.
- 39. NH Code Admin. R. Ann. PAR 203.2.
- 40. N.J. Rev. Stat. § 30:4-123.56. Future eligibility dates do not take into account credits for good behavior, work or education. The Board also has broad discretion to impose a different term, but must give a “particular reason” for their departure in the inmate’s notice of denial.
- 41. Id. For example, an inmate convicted of murder is presumptively ineligible for parole for 27 Months (+/- 9 months) while an inmate convicted of bribery is presumptively ineligible for parole for 17 months (+/- 9 months).
- 42. N.Y. Exec. Law § 259-i (McKinney).
- 43. Okla. Admin. Code 515:3-7-1
- 44. 61 Pa. Cons. Stat. § 6139.
- 45. R.I. Parole Board, 2015 Guidelines § 1.03 (Dec. 5, 2015), http://www.paroleboard.ri.gov/documents/Accepted%20changes_%202015%20Proposed%20PB%20Guidelines.pdf
- 46. S.C. Code Ann. § 24-21-620.
- 47. S.C. Code Ann. § 24-21-650.
- 48. S.D. Codified Laws § 24-15-10.
- 49. 2016 Tennessee Laws Pub. Ch. 870 (H.B. 464).
- 50. Id., Tenn. Bd. of Parole, Annual Report 2014-15 at 3 (2015) https://www.tn.gov/assets/entities/bop/attachments/2014-15_BOP_Annual_Report.pdf.
- 51. Tenn. Code Ann. § 40-35-501(o).
- 52. Under 37 Tex. Admin. Code §145.11, “initial or subsequent review dates or both are subject to change in cases where an offender’s status is changed.” A parole hearing may also be “deferred for request and receipt of further information.” 37 Tex. Admin. Code §145.12(1).
- 53. 37 Tex. Admin. Code §145.12(2); See also Tex. Gov’t Code Ann. 508.141 (West).
- 54. 37 Tex. Admin. Code §145.12(3). Note that, “if the serve-all date in effect on the date of the panel decision is extended by more than 180 days, the case shall be placed in regular parole review.” Id.
- 55. Id. The ten-year denial of review applies to those convicted of aggravated sexual assault or those serving a life sentence for a capital felony.
- 56. Utah Code Ann. § 77-27-7 (West).
- 57. Correspondence with Clark A. Harms et al., Utah Bd. Pardons & Parole (July 26, 2016).
- 58. Utah Bd. Pardons & Parole, Decision Factors, http://bop.utah.gov/index.php/hearings-top-public-menu/decision-factors (last visited Jun. 28, 2016).
- 59. Utah Bd. Pardons & Parole, FAQ: Hearing Types: Original Hearing, http://bop.utah.gov/index.php/faq-top-public-menu (last visited Jun. 28, 2016) (click “FAQ,” “Hearing Types”).
- 60. Vt. Stat. Ann. tit. 28 § 502.
- 61. W. Va. Code § 62-12-13.
- 62. Wyo. Bd. of Parole, Policy and Procedure Manual at 21 (2016) https://drive.google.com/file/d/0B40JeCUHCGYGUXJFLWRWYTl0T1k/view.