H – Parole and Clemency

Parole and Clemency in Maryland

How This Step Works and When Is an Individual Eligible for This Step

Obtaining Parole

Parole is the discretionary conditional release of an inmate into the community to continue serving the sentence, until its expiration, under the supervision of an agent of the Division of Parole and Probation.  Once an inmate reaches eligibility for parole, it becomes wholly within the discretion of the Parole Commissioners to grant release, and if granted, to impose conditions.  The Parole Commission’s Uniform Assessment Policy states that: “There is no legal right to parole, which is a privilege granted by the Commission in its discretion.”

The Parole Commission is an executive agency that is part of the Department of Public Safety and Correctional Services (DPSCS), which is a cabinet level agency.  The Parole Commission is not part of the Division of Correction (DOC).  The DOC, however, is also a part of the DPSCS.  The Parole Commissioners are appointed by the Governor, and, although there are currently 10 Commissioners, that number fluctuates as the need for capacity within the Commission changes.

Parole Eligibility

With very limited exception, the Parole Commission is statutorily prohibited from releasing an inmate on parole until the inmate has served a statutorily defined portion of his or her sentence.  Once the defined portion of the sentence has been served, an inmate becomes eligible for parole and legally entitled to a hearing.

Pre-eligibility procedure

Upon incarceration within the Division of Correction, and at five-year increments, the Parole Commission conducts an “institutional review” of each inmate’s progress to keep its files up to date and to calculate an inmate’s parole eligibility date. The law requires the Parole Commission to (1) ensure the file is complete, (2) develop a chronological record, and (3) send written notice to the inmate and institution regarding (a) parole eligibility, (b) steps to take to increase the chance of parole, and (c) the timing of the parole hearing, if scheduled.

Except for life sentences, the date of parole eligibility is based on a percentage of the sentence.  That percentage (which is either 25% or 50% of the sentence) is based on the nature of the inmate’s offense(s).  Moreover, because of a change in the law in 1994, the percentage may be different, if an inmate was convicted before that time.  Generally speaking, an inmate who is not serving a life sentence becomes eligible for parole (1) for violent offenses, after serving 50% of the sentence, and (2) for non-violent offenses, after serving 25% of the sentence.  A more detailed explanation follows.

Eligibility after serving 25% of a sentence

Prior to October 1, 1994, parole eligibility was the same for all non-lifers.  All inmates became eligible for parole after serving 25% of their sentence.  After October 1, 1994, inmates who committed violent offenses became eligible after serving 50%.  Thus, for (1) violent crimes sentenced before October 1, 1994, and (2) all non-violent crimes, an inmate is eligible for parole  after serving 25% of the aggregate sentence.

Eligibility after serving 50% of a sentence

For violent crimes sentenced on or after October 1, 1994, an inmate is eligible for parole after serving the greater of (1) 50% of the aggregate sentence for the violent crimes, or (2) 25% of the total aggregate sentence.  For violent crimes sentenced on or after October 1, 1994, with some of the offenses being “parole eligible” and some being “no parole,” an inmate is eligible for parole after serving the greater of (1) 50% of the aggregate sentence for the violent crimes, (2) 25% of the total aggregate sentence, or (3) the “no parole” portion of the sentence.

Eligibility for life sentences

For life sentences, obviously a percentage system of calculating parole eligibility would be non-workable.  To solve that problem, Maryland law picks an arbitrary period of time before a lifer becomes eligible for parole, which is calculated as follows: (1) if the State did not seek the death penalty, a lifer is eligible for parole after serving 15 years minus whatever  diminution of confinement credits the inmate has then accrued, and (2) if the State sought the death penalty unsuccessfully, a lifer is eligible for parole after serving 25 years minus whatever  diminution of confinement credits the inmate has then accrued.

In Maryland, diminution credits are earned for good behavior, special projects, work tasks, and education, etc. and they have the effect of reducing the sentence by one day for each credit.  Good conduct credits are awarded at the outset of the sentence at a rate of not less than 5 days per month, and they can be taken away for bad behavior while incarcerated.  All other diminution of confinement credits are earned along the way (and, generally speaking, they can also be taken away too).

For most inmates, diminution of confinement credits are applied to reduce the time spent incarcerated, and they have no effect on an inmate’s parole eligibility date.  However, for inmates serving a life sentence, diminution of confinement credits apply to the parole eligibility date. Thus, assuming that no diminution credits had been taken away, a lifer who would normally become parole eligible after serving 15 years would actually become eligible after serving about 12 ½ years based on good conduct credits alone.  If the lifer earned other diminution of confinement credits along the way, the eligibility date could be even earlier than that.  The same formula is used for calculating the parole eligibility for a lifer in the situation where the death penalty was sought but not obtained.  In that scenario, all accrued diminution of confinement credits would be subtracted from 25 years, resulting in actual parole eligibility after serving about 20 years.

To learn more for life with parole sentences in Maryland, click here.

Eligibility at any time for non-violent drug dependents

Effective October 1, 2004, the Parole Commission is required to consider a drug or alcohol evaluation when determining whether certain inmates are suitable for parole.  Such inmates who have been determined to be amenable to drug or alcohol treatment may be released on parole prior to “regular” parole eligibility in order to undergo drug or alcohol treatment.  The only inmates eligible for this program are inmates not serving a sentence: (1) for a violent crime under the Maryland Criminal Law Code[1] or for abuse and other offensive conduct; (2) for a fourth offense of a narcotic or hallucinogenic violation; (3) as a volume dealer, a kingpin, or a controlled dangerous substance (CDS) importer, or for use of a weapon in relation to drug trafficking; (4) for possession of a firearm as a convicted drug felon; or (5) for use of a minor to manufacture or distribute CDS.

Parole Hearings

The Parole hearing process is made up of several discrete steps, and the Parole Commission is required by law to follow a variety of procedures when conducting hearings and to follow a variety of deadlines for taking its various actions.  In some instances when the Parole Commission does not follow the law, an inmate can be entitled to relief.

There are two tracks within the parole hearing process, one in which the hearing is conducted by two Commissioners (who make a final decision), and one in which the hearing is conducted by a hearing examiner (who makes a recommendation to the Commission – who makes the final decision).  Which track an inmate’s case follows depends upon the circumstances of the crime that resulted in incarceration. (see accompanying chart on the following page).

Hearings conducted by Commissioners

If the victim of the inmate’s crime died, or if an inmate is serving a life sentence, then the parole hearing is conducted by two Parole Commissioners.  The two make a final decision that cannot be appealed.  If they cannot agree, a decision is made by three Commissioners.

Hearings conducted by examiners

In all other scenarios, a parole hearing is conducted by a hearing examiner, who then makes a recommendation to the Commission about the advisability of granting parole.  Based on the information adduced at the hearing and any other information provided, at the end of the hearing the hearing officer informs the inmate of the recommendation that the hearing officer plans to forward to the Maryland Parole Commission.  The inmate may request that (1) the hearing officer postpone making a recommendation to the Commission, or (2) the Commission postpone taking action on a recommendation, until the inmate’s attorney can make an office visit.

Upon receiving the Examiner’s recommendation, one Commissioner decides whether to approve the examiner’s recommendation.  If the Commissioner disapproves the examiner’s recommendation, two Commissioners will review the case and make a final decision, if those two cannot agree, a third Commissioner breaks the tie.  The law provides for specific time deadlines for all actions to take place.  In some circumstances when the Commission fails to act as required, an inmate may use the courts to enforce the law by petitioning for a writ of mandamus.

General parole hearing information

The Parole Commission is vested with unfettered discretion when deciding who to release on parole.  Similarly, the Parole Commission has unfettered discretion to change any of its prior decisions, including parole refusal.  There are five scenarios for the Parole Commission to exercise its aforementioned discretion.  Scenario (1) involves an inmate seeking release through a regularly scheduled parole hearing.  Scenario (2) involves an inmate seeking an earlier re-hearing date following the establishment of a “set-off” period.  Scenario (3) involves an inmate seeking reconsideration after being “refused” parole.  Generally, a refusal means being required to serve the entire sentence “day for day,” less diminution credits.  Scenario (4) involves an inmate appealing a parole decision.  Scenario (5) involves an inmate seeking to be released on parole to a drug program prior to “regular” eligibility.

If a parole hearing has been set, the inmate may request a postponement to retain counsel at any time before the hearing.  Generally, no new hearing date will be set until the inmate requests a hearing.  A parole hearing is an interview of the inmate for the purpose of obtaining information from and about the inmate.  The parole hearing is closed, except that, for certain crimes, the parole hearing is “open” to an adult victim or a surviving family member of a deceased victim.  The information obtained, in addition to information already available to the Maryland Parole Commission, including input from the victim, forms the basis for determining parole.  The inmate’s institutional case manager is also present during the parole hearing.

At any time in the parole process, an inmate’s attorney may request an office visit with a Commissioner, e.g., prior to a scheduled parole hearing or while awaiting a parole decision in scenario (1), after being given a “set-off” in scenario (2), while awaiting reconsideration of “refusal” in scenario (3), while awaiting the result of an appeal after being denied parole in scenario (4), and/or prior to regular eligibility in scenario (5).  Thus, it is never too late or too early to retain counsel to assist with the Maryland Parole Commission.

In addressing parole, the Maryland Parole Commission considers 19 factors in the Maryland Annotated Code and the Code of Maryland Regulations.  As part of the decision-making process, the Parole Commission utilizes a risk assessment instrument that focuses on assessing the inmate’s risk of re-offending.  The greater the risk to the safety of the community, the greater proportion of the term of confinement the inmate can expect to serve before being granted parole.  Because of the need to protect the public, the major purpose of the parole hearing is to assess the risk of the inmate re-offending.  Good institutional behavior and program accomplishments are critically important factors in this regard.  The statutory and regulatory factors are as follows:

Factor #1:        The circumstances surrounding the crime.

Factor #2:        The inmate’s physical, mental, and moral status.

Factor #3:        The inmate’s progress during confinement, including academic progress in mandatory education programs.

Factor #4:        Why to believe that, if released on parole, the inmate will comply with all conditions of parole, particularly the requirement not to violate the law.

Factor #5:        Why to believe that the inmate’s release will not be harmful to society.

Factor #6:        Any original or updated victim impact statement and/or information presented by the victim to a Commissioner and/or during an open parole hearing, regarding the nature, extent, and impact of the crime.

Factor #7:        Any recommendation of the sentencing judge from the sentencing transcript.

Factor #8:        Why to believe that the inmate no longer needs incarceration to increase the ability to lead a law-abiding life when released.

Factor #9:        The inmate’s prior criminal and juvenile record and the inmate’s response to any prior incarceration, parole, or probation.

Factor #10:      The inmate’s behavior and adjustment while incarcerated and the inmate’s participation in institutional and self-help programs.

Factor #11:      The inmate’s vocational training, educational training, and any other training.

Factor #12:      The inmate’s attitude toward society, discipline, and authority.

Factor #13:      The inmate’s past use of drugs and alcohol.

Factor #14:      The inmate’s emotional maturity and insight into his or her problems.

Factor #15:      Reports and recommendations made by institutional staff personnel or by any professional consultant, e.g., physician, psychologist, or psychiatrist.

Factor #16:      The inmate’s occupational skills and employment plans and potential.

Factor #17:      The inmate’s family status and stability.

Factor #18:      The inmate’s readiness to assume obligations and undertake responsibilities.

Factor #19:      The adequacy of the inmate’s parole plan (home plan and employment plan) and available resources.

Inmates are sometimes selected to enter a “Mutual Agreement Program” (MAP), with the Division of Correction and the Maryland Parole Commission, establishing an individualized program with a pre-set timetable for release, assuming successful completion of the MAP conditions.

After the hearing has been conducted, the Parole Commission will give the inmate one of the following parole decisions:

(1)           Grant release on parole, assuming that the inmate meets various pre-release conditions, including a verified and approved home plan.

(2)        Grant release on parole “conditionally,” with a delayed release date at a future time, ranging from three months to three years, conditioned on satisfaction of various requirements prior to release.

(3)        Make an interim decision of holding the case, without a parole decision, because important information is lacking.  Upon receipt of the necessary information, a decision is issued without an additional hearing.

(4)        Deny parole, but grant a rehearing at a future date, following a “set-off” or “hit” period, with recommendations for steps to take in the interim, e.g., participation in educational or other programs, which, if followed, may result in parole at the next hearing.

(5)        Deny parole, and deny future parole hearings, which is a “refusal” of parole because parole is inappropriate.

If the inmate has been refused parole, or given a lengthy set-off, the Commission will review the inmate’s file, if requested, every two years.  Thus, an inmate is never “out” of the parole hearing process.

If an inmate is neither granted parole, nor “refused” parole, but is given a “set-off” period, that is an indication that parole may be a future option, depending on (1) the amount of time served, (2) the assessment of treatment needs, (3) institutional adjustment, (4) program participation, and (5) the inmate’s release plan.  The programming requirements are goals for the inmate to accomplish by the next parole hearing.

If parole is granted, an Order is presented to the inmate and, once accepted, is effective.  The grant of parole does not create a Constitutionally protected liberty interest until the parole Order is issued by the Commission and signed by the inmate.  Upon meeting the pre-release conditions, and preparing an approved parole plan, the inmate is released as soon as practicable, unless (1) the Commission has specified a deferred release date, (2) an investigation of the inmate’s pre-release plan indicates that the inmate (a) is likely to be unemployed upon release or otherwise will not have sufficient means of support, (b) lacks a satisfactory “home plan,” or (3) the inmate has displayed poor behavior since the positive parole decision.

All inmates approved for parole must meet certain pre-release conditions, including a certified and approved home plan.  Many inmates must also complete certain special programs prior to release.  The majority of parole approvals call for a “delayed” release, meaning the inmate is released in the future, following completion of specified pre-release requirements.  If the inmate does not have a significant work history for five years prior to incarceration, pre-release requirements will likely include work release.  It may also include home detention.  If the inmate fails to meet the pre-release conditions, or breaks institutional rules, the parole approval may be suspended and another hearing ordered.

Representation before the Maryland Parole Commission or the Governor’s Office

Warnken, LLC Handles:

  • Criminal Parole
  • Parole Revocation, Parole Reconsideration, Parole Appeal
  • Gubernatorial Clemency
  • Pardon
  • Sentence Commutation
  • Expungement

(1)        For parole issues, the Firm obtains all information relevant to the 19 statutory and regulatory factors used by the Maryland Parole Commission in making parole decisions and parole revocation decisions.  The Firm obtains and reviews relevant documents for inmates in the five parole hearing scenarios.  This includes the inmate’s institutional base file, the court file of the case for which incarcerated, the Pre-sentence Investigation Report, any original or updated victim impact statements, the sentencing transcript, and other documents.  For inmates in the two parole revocation scenarios, the documents also include parole progress reports, employment evaluations, and other documents.  The Firm also obtains letters of recommendation and affidavits in support of the inmate’s release (or continued release) from individuals in the inmate’s “circle of support and responsibility,” particularly those who would play a key role in the inmate’s “parole plan” by providing a home or a job.

(2)        The Firm prepares and submits, to the Maryland Parole Commission and/or to the Office of the Governor, a spiral-bound book favorably “packaging” the inmate, the inmate’s case, and the inmate’s progress since sentencing.  The “Parole Presentation” or “Clemency Presentation” (a) addresses the 19 factor considered by the Commission, (b) includes a summation of all positive information obtained from the interviews, and (c) includes all positive documents obtained, such as educational and industrial certificates and accomplishments, affidavits and letters in support of the inmate’s release, and color photographs of the inmate and his family.  For clemency work, the Firm includes a filled-out copy of the Parole Commission’s standardized Application for Clemency.

(3)           The Firm makes an oral presentation, on behalf of the inmate, to the Maryland Parole Commission.  When applicable, the Firm conducts a 30-minute, in-person presentation, along with one member of the inmate’s “circle of support and responsibility,” to a Commissioner.  In the scenario of a parole revocation hearing, the Firm defends the inmate, in a parole revocation hearing, against the charges that the inmate violated the terms and conditions of parole.

Call Us if You would like to discuss representation – 443-921-1100