From the November 2006 Idaho Observer:

Writ Writers’ Corner

PAROLE DENIED

The hardcopy version of this special edition of Writ Writers’ Corner was placed on page 13 so "PAROLE DENIED" could appear in red (it’s a pagination thing). Why? Because red is the color used when you are really saying "ATTENTION!" The article below may at first seem only of interest to prisoners seeking parole. But that’s not accurate; we all have a stake in the process, as Parfait’s "punchline" reveals. What you are about to learn is how the U.S. Constitution, the constitutions of the several states and their respective laws and statutes, the intents of the legislatures and well-settled principles of crime/punishment and due process of law are all trumped by one thing. And, because of that one thing, paroles are denied and prison populations in the land of the free are growing to feed a machine that eats freedom and poops destroyed lives.

By Hal Parfait

"No words can come close to adequately relaying to you how sorry I am to have to tell you that...you were given another set-off until August, 2008. I know that you are probably depressed..." wrote the parole attorney from the Texas Board of Pardons and Paroles to TDCJ-CID inmate #48XXXX.

Decision: Not to Grant Parole

When the Congress of the United States or any state legislature enacts a statute, it is presumed that compliance with the constitutions of the United States and of the state is intended; the entire statute is intended to be effective; a just and reasonable result is intended; a result feasible of execution is intended and; public interest is favored over any private interest.

Legislatures write bills that become laws or rules that are to be followed. The U.S. Constitution sets the foundation on which every law rests.

The Founding Fathers believed one item was so important that it is written TWICE in the U.S. Constitution. This item is called the "Ex Post Facto Clause."

"Every law that makes an action done before the passing of the law and which was innocent when done to become criminal and punishable as such; every law that changes and inflicts a greater punishment; and every law that alters the legal rules of evidence and receives less, or different testimony than the law required at the commission of the offense, in order to convict the offender" is ex post facto (Law Dictionary, 5th Ed., Barrons, New York, 2003).

Article 1 and Article 9 ex post facto applies to the federal government; Article 1 § 10 applies to the several states. See Malloy v. South Carolina, 237 U.S. 180, 35 S.Ct. 507 (1915).

A legislature may not retroactively make a punishment more severe by changing application of good time laws [for parole]. See Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891 (1997).

Question: Does an amendment to a procedure or law increase the "punishment" to a person’s crime?

Article 1 § 10 of the U.S. Constitution prohibits the states from passing any "ex post facto law." See Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 2718 (1990).

The constitutional prohibition on ex post facto law applies only to penal statutes which disadvantage the offender affected by them. See Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451 (1987). See also Michigan v. Long, 463 U.S. 1032, 1042, 103 S.Ct. 3469, 3477 n.7 (1983).

Florida has a formula to calculate an inmate’s eligibility for parole. Texas and Nebraska, among other states, have formulas as well. For these states to go beyond the criminal procedures to calculate parole, the parole board, the state and the governor violate the ex post facto clause.

Weaver, 101 S.Ct 96 and Miller, 107 S.Ct 2446, held that the ex post facto clause forbids the states to enhance the measure of punishment by altering the substantive "formula" used to calculate the applicable sentencing range. The Florida sentencing scheme had established "presumptive sentencing ranges" for various offenses, which sentencing judges were required to follow in the absence of "clear and convincing reasons" for a departure.

For Nebraska, the court held that Nebraska’s statute did create an "expectation of parole" protected by the due process clause. See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100 (1979). The court held that the presence of a parole system by itself does not give rise to a constitutionally-protected liberty interest in parole release.

There is far more to liberty than interests conferred by language in state statutes. See Hewitt v. Helmes, 459 U.S. 460, 466, 103 S.Ct. 864, 868-869 (1983).

However, in Texas, the citizens voted for an addition to their state Constitution. This addition is found in Texas Const. Art. IV §11, entitled, "BOARD OF PARDONS AND PAROLES." Section 11(a) in part states: "...the legislature shall have authority to enact parole laws...about the effect of good time and eligibility for parole or mandatory supervision on the period of incarceration served by a defendant convicted of a criminal offense."

This is not merely law. This is a constitutional provision that should give every convicted citizen in Texas a reasonable expectation for parole or mandatory supervision. V.A.C.C.P (Texas Code of Criminal Procedures) 42.12 §2(c) defines "parole" to mean release of the prisoner; (d) means "mandatory supervision" shall mean the release of the prisoner, but not on parole.

Under both the Florida new and old statutes, an inmate is automatically entitled to the monthly gain time simply for avoiding disciplinary infractions and performing his or her assigned tasks. Compare Florida Stat. §944.275(1) (1979) with §944.27(1) . See Mont. Cole Ann §46-23-201 (1985); cf. Grifaldo v. State, 182 Mont. 287, 5 96 P, 2d 847 (1979); State v. Jackson, 478 So. 2d at 1054, 1056 (Fla., 1985); Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290 (1977).

The Texas Parole Board system constricts the inmate’s opportunity for parole or mandatory supervision by handing out bogus set-offs. This runs dangerously afoul of the prohibition against ex post facto laws.

A case in point is on Mario Leal, an inmate at the Mark W. Stiles Unit in Beaumont, Texas. This man has earned a college education, has learned several "free world" vocations with the respective certifications. He has not received any minor or major infraction tickets. Mario has not missed a day of work for the past 16 years of incarceration.

Mr. Leal has completed 16 flat years on a 25-year sentence under the 72nd legislature, which has him under the 25 percent law. In other words, he must do 25 percent of his time in order to be paroled. The legislature added an incentive of "good time" and "work time" credits as incentives to behave and to learn a trade to become a productive citizen. Sixteen plus 16 plus 16 is 48 years completed on a 25-year sentence.

Allow me to digress a moment. It makes sense in the "free world" to keep productive employees that work for the company, as opposed to work against it. Troublemakers are fired or downsized. In the criminal justice arena, the system also needs non-troublemakers to produce food, clothing, road signs, conduct free-world survey computations, do civil court filings, etc.

From the offender’s point of view, more troublemakers make parole while the Mario Leals of the system are denied parole. Eventually, these passive offenders become quite bitter.

To be fair to the Texas Board of Pardons and Paroles, this reporter asked for the reasons for Leal’s five set-offs. The parole board’s response was this: "The record indicates that the inmate committed one or more violent criminal acts...that the inmate poses an undue threat to the public; the record indicates use of a weapon."

Interview with Leal:

Hal: Did you use a weapon?

Leal: No weapon, no sir.

Hal: Shotgun? 9mm? Knife?

Leal: No. No weapon.

The next logical place to go was the convicting court in Harris county, Texas.

Finding of the Court:

Use of a weapon in the offense: "N/A-NONE."

A one-page letter was sent to the Texas BPP to inform about its error of the affirmative use of a weapon by Leal. Response from the BPP: We know you did not use a weapon. Parole denied. Rehearing denied. Next review: 2007.

This reporter has seen over 200 parole denials for the same use of a weapon though court records indicate no weapon of any kind was used in the commission of the offense. The common thread of almost every one of these 200 convicted citizens is that each one works in the industrial complex of the criminal justice system.

Money is involved. The prisons in every state are money makers. The growth industry of privately-run corporate prisons, with stockholders, prove that criminal justice is a mega-bucks maker.

Now you know why parole boards and governors stamp "PAROLE DENIED" when there is no lawful, legal or disciplinary reason to deny a convict parole release.