Number 4. August 3, 1976

Number 4. August 3, 1976 Paul A. Chernoff, Chairman Massachusetts Parole Board 100 Cambridge Street Boston, Massachusetts Dear Mr. Chernoff: You have requested my opinion on five questions concerning the scope of the Parole Board's jurisdiction over sentencing. I will answer each question separately. Split Sentences 1. Regarding "split sentences," 1 so-called, you have asked three questions. The first is: "Does the so-called 'split sentencing' law. Chapters] 347 [and 459] of the Acts of 1975, which empowers a court to suspend a portion of a sentence and to commit the individual on the bal- ance of the sentence, deprive the Parole Board of jurisdiction 'A "split sentence" permits suspension of any part of a fine or any part of imprisonment, a flexibility which was not available to courts prior to the enactment of St. 1975. c. 347 and c. 459. 82 P.D. 12 to issue a parole permit, the source of the prospective jurisdiction being Chapter 127, §128 of the General Laws?" I answer this question "no." General Laws, c. 127, §128 confers juris- diction on the Parole Board to grant parole permits to prisoners in certain institutions. It makes no reference to the type of sentence the prisoners are serving. I conclude, therefore, that the Legislature intended to grant the Board jurisdiction over all prisoners described in that section, regardless of the type of sentence being served. By the plain language of this statute, it is irrelevant to the Board's jurisdiction that a prisoner is serving a split sentence. I find nothing in the legislative history of the split sentencing law to alter my view as to the effect of the language of §128. In enacting the split sentencing law, the apparent intent of the Legislature was to provide a sentencing judge with additional flexibility in prescribing rehabilitative and correctional services for offenders. See 49 Mass. Judicial Council Rep. 154-55 (1973). This legislative purpose is in no way restricted by con- tinuing to give effect to the language in G.L. c. 127, §128 which author- izes the Board to grant parole permits. I believe, therefore, that the Legis- lature did not intend to limit or alter the scope of the Board's jurisdiction under §128 in passing the split sentencing law. 2. Your second question regarding split sentences is the following : "Assuming that your answer to question number one is 'no', is the jurisdiction of the Parole Board to issue parole permits based on the total sentence, or only that portion of the sentence that is executed?" The Legislature has conferred on the Board the authority to grant parole permits to eligible persons "at such time as the [Bjoard in each case may determine" within certain established boundaries, G.L. c. 127, §133. It has also conferred rule-making power on the Board, G.L. c. 127, ^151A(5). Historically, and, I believe, correctly, the Board has exercised this power to establish rules regarding parole eligibility, except where the terms of eligibility are specifically set by statute. While the Board's juris- diction is based on the total sentence, the Board in its discretion may also adopt reasonable eligibility rules for those held on split sentences. 2 There are, however, two important limitations on the Board's power to promulgate rules concerning parole eligibility. The first is contained in G.L. c. 127, §133, which specifies that prisoners held on sentences con- taining a minimum may not be considered for parole until they have served that portion of the minimum sentence specified in the appropriate clause of the section. By its clear terms, §133 applies to split as well as total sentences. If, therefore, a prisoner is held on a split sentence subject to this statute and the committed portion of his sentence is less than that portion of the minimum he is required to serve, he will be released on -The Board may, for example, rule that prisoners held on split sentences are not eligible for a parole in certain circumstances, cf. 28 CFR §2.8. On the other hand, the Board may rule that such persons become eligible for parole after serving some specified portion of their commitment. Of primary importance is that the Board adopt some rule and make it known to judges who impose sentences. P.D. 12 83 probation before he is eligible for parole. The Board may not alter the effect of §133 by rule or regulation. The second restriction on the Board's rule-making power is imposed by Article I of the Massachusetts Declaration of Rights and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Any rule the Board adopts must guard against the possibility that the split sentencing law will be utilized to decrease a prisoner's eligi- bility for parole. In other words, the rule must proviae that a prisoner who is held on split sentence will be eligible for parole no later than a prisoner ield on an unsplit sentence of the same length. 3 3. Your third question regarding split sentences is the fol- lowing: "Assuming that your answer to question number one is 'no*, is the 'total aggregate of sentences of twelve months or more', set forth in Chapter 127, §128 of the General Laws with respect to district court commitments to houses of correction, computed on the basis of the executed portion of the 'split sentence' or upon the total sentence?" General Laws, c. 127, §128, reads, in pertinent part: Subject to other provisions of law, parole permits . . . may be granted as follows: — . . . to all . . . prisoners . . . sentenced [by a court other than the superior court] to jails or houses of cor- rection for one year or more, or for a total aggregate of sentences of twelve months or more, by the parole board. This statute expressly refers to the "sentence" imposed upon a prisoner; t does not make any reference to the committed portion of the sentence. [ perceive no reason why the language of §128 should not be given its ?lain and ordinary meaning. If the Legislature had intended to alter the mpact of the section, it could have done so when it enacted the split sen- :encing law. In the absence of such legislative action I conclude that the Board has jurisdiction to grant a parole permit to any prisoner or house of correction who has been sentenced to an aggregate term of twelve months :>r more. This is true even though a portion of the sentence is suspended. 4 AGGREGATION OF SENTENCES 4. You have further requested my opinion as to the following matter: "Does the decision of the Supreme Judicial Court in the case of Henschel v. Commissioner of Correction [Mass. Adv. Sh. 'Consider, for example, a prisoner who is sentenced to a term of one year, of which eight months are committed and the remainder suspended. Under an existing rule of the Board a prisoner held on a sentence of one year to a house of correction is eligible for parole after six months. Any rule adopted to govern split sentences must provide that the prisoner held on this split sentence would be eligible for parole no later. He cannot be required to serve the full eight months without being considered for parole. I wish to make clear, however, that in answering the Board's question. I express no opinion as to the method the Board should use in computing parole eligibility. The fact that the Board has obtained jurisdiction over a prisoner by aggregating his sentences does not require that it aggregate the sentences for the purpose of computing parole eligibility. It is the Board's responsibility to decide how parole eligibility is to be computed and to announce its policy so that judges and other officials may rely upon it. See G.L. c. 27, §5ff). The Board's authority in this matter is. of course, subject to constitu- tional requirements; but it would be constitutional for the Board to adopt a rule that split sentences are not aggregated. See Federal Bureau of Prisons, Sentence Computation Manual, §7617.1, p. 3 (1972). 84 P.D. 12 (1975) 1982] require the Parole Board to aggregate for the purpose of determining parole eligibility, consecutive sentences to different county institutions '" With some hesitation. I answer this question •"yes.*' The Henschel case clearly holds that the Board may aggregate sentences to different cor- rectional institutions for the purpose of computing parole eligibility. There is some question, however, whether the case goes beyond this and holds that the Board must aggregate such sentences. The case is not directed specifically to this point. Nevertheless. I believe that the reasoning under- lying the court's decision implies that the Board is required to aggregate sentences to different institutions. A substantia] portion of the court's opinion in Henschel is devoted to its analysis of the legislative history of G.L. c. 12". H33 and the relation- ship of that section to other provisions in Chapter 127. Of particular relevance to your question is the court's treatment of G.L. c. 127, §130. This section provides, in part: No prisoner shall be granted a parole permit merely as a reward for good conduct but only if the board or officer having juris- diction is of the opinion that there is a reasonable probability that, if such prisoner is released, he will live and remain at liberty without violating the law. and that his release is not in- compatible with the welfare of society. A prisoner to whom a parole permit is granted shall be allowed to go upon parole out- - he prison walls and enclosures upon such terms and conditions as the board or officer having jurisdiction shall prescribe .... The court suggests that the effect of this statute is to require that the i make a single decision as to the time a prisoner is to be returned to society. Henschel, M ss. Adv. Sh. (1975) at 1991: the court im- :hat the Board is not empowered to make a series of decisions mov- ing a prisoner 1 ze as it would be required to do if subsequent semen:. her institutions were viewed merely as detainers. 7'; failure of the statute- governing the parole system to require the . sentences :o different institutions is explained in the e by pointing to the legislative history' of the statutes, id. at 19S9-91. As the court observes, the various sections of Chapter 127 - ability were enacted at different times and do not . . ;eme: thus, it is not surprising that they fail fie - Aggregation of terms to different county institutions. In lig : Court's I conclude that in order to per- lese statutes, tl i must aggre- : I WEEK-END SENTENCES 5 Your final question concerns the Board's jurisdiction over sentences .: on an intermittent basis such as those authorized - G.L. c 273 .'. permits a judge to impose a sentence of imprisonment upon a person and order that " : during such D .D. 12 85 lours as will permit said pc Ihese type ----- . - - . . - ... _=-:ion rea_ -ole Board jurist . so-callec £ek-end sentence f :das a condition of probation ien snot imposec a condition of probation?" Before ans - ur question. . . _e may be imp sed "as a condition of j lere- . would . . sentence pur- ;uan: :o Char . 347 and 45 f 1975 . ztka i has no jurisdic- tion and mu ; and the courts. en a per ..... .ntence inte the Parok 3oard m_ r a parole permit if the _efined in G.L : 127, 28. In res ng this issue . ... . .... ended to impose. Th i mention in yom Btle . . - a week-enc . . in th:~ . 1. A sentence serve _ i . . - . 1 A sentence - a 52 sek-ends 3 \ sentence I dc - - - .. . committed . Each of thes . . ron- >f the Board to dete . r - r.:er.cei ana :: :: .. .. rdins The first e\a~r . the . ctar sentence Under a . . • I ic pris . old be eligible 1 the snn. The sec ad example must b ..." 104 - see Superior jurisdk if imp wed by a coi Supe The third example mu>. As discussed above, the Board should promulgate rules senter. e In [ perce . . ..... . . .... to be serve . . . . . . : . . • There ma 3 ties ascertaining - :on of the sentf adge itenl s been oinec rarole rule . app to a continuous sentence Ver FRANCIS X BELLOTTI 86 P.D. 12