Sunday, November 01, 2009

Post-Release Control Is Not Parole

This morning's Enquirer contains a story about people being freed from prison without being placed on "parole," even though, by law, they should be supervised following their release from prison. Sharon Coolidge picked up on an important issue here, as there are some people who should be supervised upon the expiration of their prison term, and the courts should make sure their sentences are properly announced.

I've not seen the Enquirer's stylebook, but it's apparently the newspaper's policy to use the word "parole" to mean any form of supervision following a term of imprisonment. I think I've talked about this issue before, but it's an important one that we should all understand.

Most people's understanding of "parole" comes from movies like The Shawshank Redemption. An inmate is given an indeterminate sentence (for instance, "10 to 20 years" or "25 to life") and at some point after the minimum sentence has been served, he comes in front of a parole board, who can decide to let him go free under some form of supervision. And that's exactly what parole is: the release of a prisoner before his full sentence has been served. This is the definition one would find in either Black's Law Dictionary or Merriam-Webster.

Until 1996, Ohio used a system of indeterminate sentencing system, so parole was common. In the '90's, though, the public cried out for "truth in sentencing" laws and the General Assembly responded. Now, apart from murder, defendants get definite sentences. A judge says "1 year" or "10 years" or "20 years," and that's how long a defendant serves. The only way that sentence can be substantially shortened is by the judge or with the judge's approval.

But when the legislature changed the law in 1996, it realized that some defendants wouldn't be ready to transition back into society without assistance or supervision. So for some offenses, once a defendant serves the full term imposed by the judge, he'll be supervised by the Adult Parole Authority for up to five years. This supervision is called post-release control, or PRC.

The problem the Enquirer points out is that in the past, some judges failed to inform a defendant (at the time he was sentenced) of post-release control. I wasn't practicing in the late 1990's, but that doesn't seem surprising. Judges had never had to inform defendants of parole, so why tell them about PRC? Besides, the judges have nothing to do with whether a defendant is placed on PRC. In some cases it's mandatory, and in others the Adult Parole Authority has discretion to require some individuals to serve a term of PRC. (Today, most judges use a script in sentencing hearings, and the PRC admonition is part of that script.)

In a series of cases, though, the Ohio Supreme Court has held that PRC is part of a defendant's sentence. That means that the judge has to announce it along with the rest of the sentence. Permitting the APA (part of the executive branch) to supervise someone on PRC even though that wasn't included in the sentence violates the principle of separation of powers. But the Supreme Court created an easy fix: as long as a defendant is still serving his sentence, a court can recall him from prison and re-sentence him. A judge can do that years (or decades) after a defendant has been sentenced. The error cannot be fixed, however, once an inmate is released. And, in fact, if PRC wasn't part of the sentence and the APA places the inmate under its supervision anyhow, it has to release the inmate once the error is realized.

So the Enquirer is right, in substance. Some inmates who have served their sentences may not be supervised once back in society as the legislature had intended. But in discussing this issue, it's helpful to know that these are all people who served their full sentence, and are not defendants released early at the discretion of the parole board.

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