CHAPTER 39

PAROLE AND PAROLE REVOCATION

§ 39.01 Parole Distinguished From Probation

§ 39.02 The Parole Board

§ 39.03 The Parole Release Process - Parole Eligibility

§ 39.04 - Procedural Rights

§ 39.05 - The Granting or Denial of Parole

§ 39.06 Parole Revocation

§ 39.07 - Preliminary Hearing and Bail

§ 39.08 - The Merits Hearing

§ 39.01

Parole Distinguished From Probation

As a matter of constitutional law parole and probation are almost indistinguishable: both are forms of conditional liberty which can be revoked only pursuant to the notice and hearing procedures spelled out (for parole) in Morrissey v. Brewer{1} and (for probation) Gagnon v. Scarpelli.{2} In other respects there are important differences.

The decision to grant probation is made by the judge at sentencing; although the defendant may have to spend some time in prison before starting probation (in "split sentence" cases{3}) release is assured. Parole is granted by the parole board after the defendant has served his or her minimum sentence, and after an administrative review process; the decision is discretionary and release is by no means assured.{4}

The probationer's suspended sentence is not reduced at all by the time spent on probation. The parolee is credited with a day against his or her maximum sentence for every day spent on parole.{5}

Probation revocation is a judicial process with statutory protections in addition to the due process requirements of Gagnon, most importantly the right to counsel in all cases. Parole revocation, by contrast, is decided by the parole board, which generally proceeds in a less formal and less adversarial manner.

Probation revocation can be reviewed by direct appeal to the Vermont Supreme Court. Challenges to parole revocation must be brought by a collateral proceeding in the superior court.

§ 39.02

The Parole Board

The parole board has five members, appointed by the governor for terms of five years.{6} Typically they are nonlawyers; in 1992 none of them was a lawyer, one was a former probation department employee, one a former school principal, and two were former state legislators. Its central office is in the state office complex in Waterbury.

The board meets once a month in all six Vermont prisons, with two members being necessary to constitute a quorum,{7} to decide both parole release and parole revocation cases.

§ 39.03

The Parole Release Process - Parole Eligibility

An inmate who has served his or her minimum sentence, less good time, is eligible for parole; an inmate with a zero minimum is eligible after serving six months.{8} A parole-eligible inmate with a minimum term "shall be released on parole . . . if the board determines there is reasonable probability that the inmate can be released without detriment to the community or to himself."{9}

§ 39.04

- Procedural Rights

The "shall/if" language of Vermont's parole release statute almost certainly creates a due process "liberty interest" in the parole release process, entitling the inmate to minimal procedural protections as a matter of constitutional right.{10} The parole statutes and regulations provide additional safeguards.

All parole-eligible inmates must be reviewed for parole at their eligibility date, and every six months thereafter, and the inmate has the right to an in-person interview every twelve months.{11} Parole may not be granted without an inperson interview.{12}

a. The Right to Counsel

The minimal process which is constitutionally required at parole release hearings does not include any right to counsel.{13} The parole statutes, however, authorize the board to hear counsel in its discretion,{14} and the defendant has an arguable right to counsel under sections of the public defender law.{15} In practice, the defender general's prisoner's rights office offers assistance at all parole release hearings and the board generally permits it. Counsel wishing to represent an inmate at a parole hearing should write to the board requesting permission.

b. The Parole Packet

The board must consider "all pertinent information[,]" including the circumstances of the offense, social history, criminal record, the PSI, and conduct in prison.{16} The board receives this documentation in the form of a "parole packet" prepared by a parole officer and the inmate's caseworker; the packet includes a "parole summary" which includes the department of corrections' parole recommendation.

With only a few exceptions all documents in the parole packet, including the PSI, must be disclosed to the inmate at least seven days before the hearing.{17}

c. Testimony

The board can also hear testimony. It is common for the caseworker to explain or expand on the materials in the packet and the department's recommendation, and the board can also hear the inmate's witnesses.{18} It can also subpoena witnesses and documents on its own authority, and enforce obedience by court order.{19} The inmate has a right to be present during all testimony, with the same exceptions that limit his access to the parole packet.{20}

The board may consider only information that is in the packet or presented as testimony at the hearing.{21}

§ 39.05

- The Granting or Denial of Parole

If the board denies parole after either a paper review or an in-person hearing, it must state its reasons and the underlying facts on which those reasons are based.{22}

If the board decides in favor of parole, the inmate is required to sign a parole agreement, similar to a probation warrant, setting forth the conditions.{23} The conditions are generally similar to probation conditions,{24} and can include participation at residential or nonresidential treatment programs.{25}

The parole agreement becomes effective when the inmate signs it, after which parole can only be revoked for cause and pursuant to the revocation procedures described below.{26}

§ 39.06

Parole Revocation

Parole revocation follows the same basic two-part format as probation revocation, discussed in §§ 38.14-38.18: a prompt preliminary hearing to determine probable cause, followed by a merits hearing at which the board determines whether a violation occurred, and if so whether parole should be revoked, modified, or continued unchanged.{27} The procedural safeguards are also similar to those in probation revocation proceedings.

§ 39.07

- Preliminary Hearing and Bail

The parolee can be arrested with or without a warrant for a suspected violation and detained in prison pending a hearing.{28} The parole officer must notify the board immediately{29} and the board may direct the officer to release the parolee pending a hearing. The parole officer also writes out a report of the alleged violation - the parole equivalent of a probation violation complaint - and gives it to the board.{30}

If the parolee is confined he is entitled to a bail hearing before the board, which must be "in accordance with" the normal statutory bail procedures,{31} except that the parolee as a sentenced prisoner has no constitutional right to bail. The bail hearing must normally be held within twenty-four hours of the arrest.{32}

If the parolee does not make bail, the board must hold a prompt probable cause hearing.{33} He should have notice of the hearing and its purpose, and the specifics of the charged violation. He has a right to speak on his own behalf, to present witnesses and other evidence, and to question adverse witnesses (except when an informant is involved who would be subjected to a risk of harm).{34}

§ 39.08

- The Merits Hearing

When probable cause is found, the revocation hearing must be held "promptly."{35} The parolee has a right to counsel and assistance is provided on request by the defender general's prisoner's rights office. Although less formal than probation revocation, the hearing procedures are similar. The parolee is asked at the outset if he admits or denies the charge, and advised that his testimony in defense or mitigation cannot be used against him in any subsequent criminal prosecution.{36} He has the right to be present throughout the hearing, to present evidence, and to confront evidence subject to the same limitations that apply in probation revocation.{37} The relative informality of the proceeding does not excuse counsel from making objections to inadmissible evidence (or from making them on the proper legal grounds).{38}

A finding of violation must be supported by "substantial evidence,"{39} which the Vermont Supreme Court less than precisely defines as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."{40} The board can draw adverse inferences from the parolee's failure to testify, but silence alone cannot support a finding of violation.{41} Dicta in earlier cases that uncorroborated hearsay was also insufficient{42} were overruled in Watker v. Vermont Parole Board, which held that hearsay may be enough if it is sufficiently reliable.{43}

If a violation is found, the board "may continue or revoke the parole, or enter such other order as it determines to be necessary or desirable."{44} One such "other order" is revocation for a brief period - commonly thirty days - with parole resuming afterwards.

ENDNOTES

1. 408 U.S. 471 (1972).

2. 411 U.S. 778 (1973).

3. See § 38.01.

4. See §§ 39.03-39.05, infra.

5. Compare Sherwin v. Hogan, 136 Vt. 606 (1979) (probation) with Miner v. Chater, 137 Vt. 330 (1979) (parole). The parolee is not credited with good time deductions.

6. 28 V.S.A. § 451.

7. 28 V.S.A. § 451.

8. 28 V.S.A. § 501(a),(b).

9. 28 V.S.A. § 501(a).

10. Board of Pardons v. Allen, 482 U.S. 369, 381 (1987); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 12 (1979). In Berard v. State of Vermont Board of Parole, 730 F.2d 71, 74 (2d Cir. 1984), the Second Circuit held that a Vermont inmate with a zero minimum had no protected expectation of parole, while acknowledging that the "shall/if" language which applies to inmates with minimum terms greater than zero resembles the statute in Greenholtz.

11. 28 V.S.A. § 501(c).

12. 28 V.S.A. § 502(a).

13. See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 16 (1979).

14. 28 V.S.A. § 502(b).

15. See §§ 6.02-6.03 (counsel).

16. 28 V.S.A. § 501(c).

17. Giallella v. Vermont Parole Board, No. SO459-Wnc (Washington County Superior Court, March 5, 1990), Final Judgment and Permanent Injunction 1, 5. The exceptions are:

18. 28 V.S.A. § 502(b) (board "may hear oral statements by attorneys or other persons with an interest in the case").

19. 28 V.S.A. § 504(a).

20. Giallella, supra note 17, 1-2.

21. Giallella, supra note 17, 6.

22. Giallella, supra note 17, 7.

23. 28 V.S.A. § 404(a). A form parole agreement is included as App. 26.

24. See § 38.05.

25. 28 V.S.A. § 502(d).

26. 28 V.S.A. § 404(b). If there is a delay between the decision to grant parole and the signing of the agreement (as may happen when the board grants parole contingent on certain conditions, such as employment or residence), the statute permits the board to rescind parole without going through the formal revocation procedure. Id.

27. See generally 28 V.S.A. §§ 551 et seq.; Morrissey v. Brewer, 408 U.S. 471, 484-489 (1972).

28. 28 V.S.A. § 551(a)-(c),(e).

29. 28 V.S.A. § 552(a).

30. 28 V.S.A. § 552(a).

31. 28 V.S.A. § 551(e).

32. Smith v. Vermont Parole Board, No. S-13-88WnC (Washington County Superior Court, Feb. 29, 1988) (opinion and order).

33. Morrissey v. Brewer, 408 U.S. 471, 485 (1972) (hearing must be held "as promptly as convenient after arrest").

34. Morrissey v. Brewer, 408 U.S. 471, 486-87 (1972).

35. 28 V.S.A. § 552(b); Morrissey v. Brewer, 408 U.S. 471, 488 (1972) (requires a hearing "within a reasonable time" but adds that a lapse of two months may not be unreasonable in some cases).

36. The procedure is mandated by O'Brien v. Brown, 153 Vt. 652 (1990), applying State v. Begins, 147 Vt. 295 (1986), to parole revocation proceedings.

37. Baxter v. Vermont Parole Board, 145 Vt. 644, 647 (1985).

38. Watker v. Vermont Parole Board, 157 Vt. 72 (1991) (counsel at revocation hearing objected to evidence as hearsay but failed to explicitly claim confrontation violation).

39. 28 V.S.A. § 552(b)(2).

40. Baxter v. Vermont Parole Board, 145 Vt. 644, 647-48 (1985).

41. Baxter v. Vermont Parole Board, 145 Vt. 644, 648-49 (1985) (citing Baxter v. Palmigiano, 425 U.S. 308, 317, 319 (1976) (silence can count against inmate at prison disciplinary hearing)).

42. See State v. Schroeder, 149 Vt. 163 (1987) (adopting the same rule for probation revocation); Baxter v. Vermont Parole Board, 145 Vt. 644, 648 (1985).

43. 157 Vt. 72, 76-77 (1991) (reviewing court must "evaluate the weight each item of hearsay should receive according to the item's truthfulness, reasonableness, and credibility").

44. 28 V.S.A. § 552(b)(2).