Friday, November 30, 2001

High court affirms
parole board discretion

Justices rule minimum terms can
equal a maximum sentence

By Debra Barayuga

Defense attorneys say a state Supreme Court ruling allowing the parole board to set minimum terms equal to statutory maximums may be politically popular but is bad policy and counterproductive.

"It's a feel-good decision, but the reality is, it's not and the public will be harmed," said attorney Earle Partington.

A decision authored by Chief Justice Ronald Moon and Justices Paula Nakayama and Mario Ramil ruled that the Hawaii Paroling Authority can set a prisoner's minimum term that is the same as his maximum sentence.

They noted that doing so is consistent with the statutes, which require the board to consider parole for everyone except those sentenced to life without parole.

Even if the parole board denies parole by setting a minimum term equal to the maximum sentence, "the prisoner has been considered for parole," they wrote.

Hawaii has indeterminate sentencing for felony offenses. The trial courts sentence convicted persons to maximum terms under the statutes, and the parole board determines how long prisoners must serve before they can be considered for parole.

In recent years the parole board has set minimum terms equal to the maximum, effectively denying parole.

Partington said the ruling will result in longer prison sentences, more prison overcrowding and prisoners being set free at the end of their terms without supervision and often no treatment because of long waiting lists to get into treatment programs.

The public is hurt when criminals who have not been rehabilitated or treated are let loose or when prisoners are kept in prison longer than they need to at public expense, he said.

Prisoners who are paroled remain under the parole board's supervision and can be yanked back to prison if they violate conditions of their parole.

The high court's decision reversed an Intermediate Court of Appeals opinion that prisoners have a statutory right to have their minimum term set at less than their maximum term of imprisonment.

The justices said that prohibiting the parole board from setting minimum terms equal to maximum sentences is "inconsistent" with the Legislature's intent to give the parole board wide discretion in issuing minimum terms.

Gregory Williamson received a minimum term from the Hawaii Paroling Authority that was the same as the statutory maximum.

He was sentenced to two concurrent five-year terms in prison for burglary and assault convictions.

The parole board ordered him to serve five years.

Williamson argued that the parole board violated his right to be eligible for parole and appealed when the Circuit Court threw out his petition.

Attorney Michael Ostendorp, who represented convicted murderer Monte Young, said that while he has not seen the decision, it appears to take away sentencing power from judges and gives the parole board "carte blanche."

The parole board ordered Young, convicted of bludgeoning another man to death with a claw hammer outside the University Burger King, to serve a minimum 100 years in prison.

Sentencing a 40-year-old man to 100 years even before he has been given a chance to show he can be rehabilitated gives him no incentive to behave in jail, Ostendorp said.

"Even Charles Manson gets to go before the parole board once in a while, even if he's denied."

In a dissenting opinion, Justices Simeon Acoba and Steven Levinson wrote that the language of the statutes prohibits the Paroling Authority from setting minimum terms equal to the maximum sentence.

While the statutes say there is no right to parole, minimum terms must be set so that everyone is to be periodically considered for parole, they said.

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