For the Defense - Vol. 8, Issue 1 - 11

two jurisdictions followed. Declining to adopt reforms like giving
the sentencing judge veto power over parole release, there was
universal agreement that more attention should be paid to the
mechanics of making the decision to release violent offenders
and that there would be a moratorium on the release of all state
inmates until safeguards could be put in place.
It was during this moratorium that an urban legend took root
that no violent offender would be eligible for release until he
served eighty-five percent of his maximum sentence. There has
never been a shred of truth to this myth as every state inmate is
statutorily eligible for parole after serving the minimum sentence.6
Studies of the Pennsylvania Commission on Sentencing show that
between 2010 and 2016, violent offenders were granted release in
51% of the face-to-face interviews.7
This myth had its genesis in the " truth in sentencing " movement
of that era which was designed to expose the disingenuousness
of early release from lengthy flat sentences. If a defendant
was sentenced to thirty years of confinement, there is a public
expectation that he would serve thirty years or a term close to
it. With prison overcrowding initiatives like " shock release " and
" good time " , too many of these people ordered to serve lengthy
sentences were perceived as being out on the street in a few years.
Truth in sentencing does not apply to indeterminate sentencing
jurisdictions where a court must give a minimum term which must
be served prior to parole consideration and a maximum term which
will be served if parole is not granted. Nothing coming from the
bench could be more truthful than that judge telling Mudman that
he was being committed to serve a sentence of not less than ten nor
more than twenty years confinement. The disingenuousness of the
Mudman incident is the implication that he could have been kept
in prison beyond the 6 years remaining on his maximum sentence.
The 85% myth persists for a variety of reasons. While the Board
of Parole vigorously denies the myth, it offers no data from which
one could calculate on average how much of a maximum sentence
a violent offender serves. Telling us that a certain percentage of
violent offenders are released after an interview does not tell us
much without the context of knowing the percentage released at
the minimum sentence. The federal government's refusal to fund
prison projects in flat sentencing jurisdictions not adhering to the
ratio fits nicely into the inmate's not wholly unsupported belief that
the government is making money by incarcerating him. More than
this just being an age of conspiracy theories, I believe it persists
because it is a convenient explanation for why violent offenders
have had a harder time making parole since Mudman. It is not
impossible for a third-degree murder defendant to be released
on parole at the expiration of the minimum sentence. I personally
know two such individuals recently released. There are many things
in the process that the client cannot change to improve his chances
of making parole, but there are some things that he can control if
he is aware of the parole process and the things that are expected
of him.
The Pennsylvania Board of Parole has authority over all persons
sentenced by any court at any time to imprisonment in a state
correctional institution.8
Board. Parole release is a matter of legislative grace conferring no
right to release upon the inmate.9
While an inmate may, with the
assistance of counsel, apply for parole after serving his minimum
sentence, the Board typically sua sponte considers the release of all
inmates who have served the minimum sentence " . . . whenever, in
its judgment, the interests of justice require the granting of these
paroles. " 10
Beyond that superfluous parole application, the Parole Board
does not permit representation by counsel in the release process
and the determination not to release an inmate on parole is not
subject to appellate review.11
Seeking habeas or other relief in a
court's original jurisdiction from such a decision is limited to the
unlikely event that one can establish a violation of a constitutional
protection.12
So generally, the only attorneys
Representation in the recommitment process falls
squarely on the public defender of the county of incarceration as
opposed to the sentencing county.13
with any familiarity with Parole Board procedures are one or two
public defenders in those counties housing a state prison.
While county parole release, with its far lower stakes, requires
an adversarial hearing,14
the Parole Code leaves it to the Parole
Board's discretion to determine whether a hearing on a parole
application is even necessary.15
Wile, who was for a time the
assistant chief counsel for the Parole Board, writes that the Board
does not believe that an actual hearing is ever necessary.16
From
the inmate's perspective, his personal involvement in the release
process consists of being interviewed by a hearing examiner
or Board member. Since the COVID shut down, these interviews
are held by video conferencing. The inmate must appear at this
interview without counsel and is denied counsel thereafter. It
should be noted, for anyone interested in challenging this denial of
counsel, that Judge Cohn Jubelirer makes a compelling argument
that the Public Defender Act gives state inmates a statutory right
to counsel in that proceeding.17
There has been a steady push from the legislature since the
Mudman debacle to make the release decision " evidence based "
rather than a gut reaction. To that end, the Parole Board gathers
and prepares a hefty volume of documents concerning the inmate
to be presented to the Board as evidence ex parte. The Board is
obligated to investigate the recommendations of the judge and
district attorney, the facts of the crime underlying the conviction,
victim impact, and the inmate's institutional adjustment and
mental health.18
The Parole Code grants the Board discretion to
accept at face value any document submitted to it pertinent to
the issue of parole release or revocation. The only exception to
this discretion is with respect to crime victims who have the option
of presenting something in writing, testimony by video, or in
person.19
At sentencing, the district attorney prosecuting a case is
required to provide victims with notice of their rights to participate
in the paroling process and contact information for the Office of
the Victim Advocate. All these written statements, recordings, and
notes of personal victim interviews are confidential and cannot be
subpoenaed.20
The 2008 criminal justice reform legislation included a provision
The principal difficulty in assisting a client
who is headed to state prison understand what he is up against is
that the defense bar has little exposure to the Pennsylvania Parole
directing the Pennsylvania Commission on Sentencing to adopt
advisory guidelines to be considered by the Board when exercising
its discretionary power to parole offenders. The legislation requires
Vol. 8, Issue 1 l For The Defense 11
For the Defense - Vol. 8, Issue 1

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