Could the Idaho Board of Correction release inmates early to relieve overcrowding, and could it use long-term work furloughs to do the same thing?

Subject

Opinion 87-5: Board of Correction has power to furlough prisoners; Commission of Pardons and Parole has sole power to release prisoners on parole, and to pardon or commute sentences.

Plain-English summary

Director A. I. Murphy of the Idaho Department of Corrections asked Attorney General Jim Jones two questions about the Board of Correction's authority to manage prison populations: could the Board do an outright early release, and could it use long-term work furlough under Idaho Code § 20-242?

On early release, the answer was no. The opinion contrasted Idaho with states like Florida, Washington, and Texas that had explicit statutory mechanisms (Florida automatically releasing prisoners when prisons reached 98 percent of capacity, for example). Idaho had no such statute. The Idaho Constitution vests the pardon power in the Commission of Pardons and Parole (art. 4, § 7, as implemented by § 20-210), and Idaho Code § 20-223 vests the parole power exclusively in the Commission as well. The Board of Correction's constitutional supervision of "the penitentiaries of the state, their employees and properties, and of adult probation and parole" (art. 10, § 5) had been read by the Idaho Supreme Court in State v. Rawson as authority to implement laws, not to set sentencing policy. The Board could supervise persons released by others; it could not release them itself.

On long-term furlough, the answer was yes. The opinion read § 20-242 as authorizing the Board to release any committed person, whether newly sentenced or already incarcerated, on long-term furlough for work, work-seeking, or continuing education. The statute's heading and structure pointed in that direction. The 1984 amendment letting furloughed prisoners be domiciled in private residences rather than just in jails or facilities (1984 Sess. Laws, ch. 58) extended the Board's flexibility further. Importantly, time on furlough counted toward the prisoner's sentence, and a prisoner on furlough remained "technically in confinement," meaning the parole-related restrictions in § 20-223 did not apply.

The opinion concluded that educational furloughs were authorized only when the prisoner was already in an educational program at incarceration, since § 20-242 allowed the Board to "permit the person to continue in his regular employment, work project, or educational program" or to "authorize the person to secure employment for himself," but did not parallel-track education. Under the standard rule that listing one term implies excluding others (citing Poston v. Hollar), the Board could not start a new educational program for a prisoner during incarceration through furlough.

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Idaho's corrections statutes have been substantially amended since 1987. The work-furlough framework, the parole and pardon procedures, and the prison-population management tools have all been revised. The treatment of educational programming for inmates has also evolved. Anyone evaluating a current question about early release, furlough, or parole authority in Idaho should consult the present Idaho Code Title 20 and current Department of Correction rules, not the 1987 framing here.

What the opinion meant for corrections in 1987

For the Board of Correction, the opinion drew clear lines. The Board could not respond to overcrowding by simply discharging prisoners. If the population pressure was severe, the Board's options were to seek a legislative fix or to apply for relief through the Commission of Pardons and Parole. What the Board could do unilaterally was use long-term work furlough to move appropriate prisoners into employment-tied conditions of continued confinement, with their sentence clocks still ticking.

For the Commission of Pardons and Parole, the opinion confirmed exclusive authority to release prisoners. The Commission could parole, pardon, or commute. The Board of Correction had no overlap and could not direct or pre-empt Commission action.

For prisoners themselves, the opinion mattered in two ways. They could not be discharged early on the Board's say-so. But if they qualified for work or continuing-education furlough under § 20-242, the Board could place them with employers (and after 1984, in private residences during off-hours), and the time would still count toward their sentence completion.

For the Idaho legislature, the opinion implicitly invited consideration of an emergency-release statute on the Florida or Washington model, since otherwise overcrowding could be addressed only through furlough or the case-by-case work of the Pardons and Parole Commission.

Common questions

Could the Board of Correction declare an emergency and release prisoners outright?
No. The opinion compared Idaho with Florida, where Fla. Stat. § 944.598 (1985) required the Department of Corrections to declare an emergency and release prisoners once the system reached 98 percent capacity, until population fell to 97 percent. Idaho had no such statute. Without one, the Board had no early-release authority.

Who had the parole power in Idaho?
The Commission of Pardons and Parole, exclusively. Idaho Code § 20-223 (Supp. 1986) provided that "any prisoner, excepting under sentence of death, may be allowed to go upon parole but to remain while on parole in the legal custody and under the control of the board and subject to be taken back into confinement at the direction of the commission." The Idaho Supreme Court in Standlee v. State had clarified that the parole power flowed from the legislature's authority to set punishment, and the legislature had vested it in the Commission.

Did the Board's constitutional authority over "adult probation and parole" let it release prisoners?
No. Article 10, § 5, of the Idaho Constitution gave the Board "the control, direction and management of the penitentiaries of the state, their employees and properties, and of adult probation and parole, with such compensation, powers, and duties as may be prescribed by law." State v. Rawson, 100 Idaho 308 (1979), read this as conferring management authority subject to the legislature's specifications, not as letting the Board set release policy independently. Section 20-219 (Supp. 1986) limited the Board's parole role to supervising persons released from the penitentiary on parole.

What was the difference between parole and furlough?
Parole was an actual release of a prisoner into the community, with conditions. Furlough was technically continued confinement, but with the prisoner permitted to leave for employment or education during specified hours. The opinion drew on Green v. Superior Ct., 132 Ariz. 468 (1982), for the proposition that a prisoner on work furlough is "technically in confinement." That distinction mattered because it meant the parole-eligibility restrictions in § 20-223 did not apply to furlough decisions, and time on furlough counted toward the prisoner's sentence.

Did furlough count toward fixed-sentence requirements?
The opinion concluded yes, by implication. Section 20-242(5) referred to violations causing "the balance of the prisoner's sentence to be spent in actual confinement," which the AG read as confirming that time on furlough was already being applied to the sentence. The opinion concluded that time on work furlough should count toward fixed sentences under § 19-2513A and § 19-2514.

Could the Board grant educational furloughs?
Only for ongoing educational programs. Idaho Code § 20-242 listed "regular employment, work project, or educational program" but only authorized the Board to "authorize the person to secure employment for himself." The opinion read this as deliberate exclusion of starting new educational programs. Under the Poston v. Hollar rule of expressio unius, a prisoner had to be already engaged in an ongoing educational program at the time of incarceration to qualify for educational furlough.

Where could a furloughed prisoner stay when not at work?
Either a jail, a facility, or, after the 1984 amendment, a private residence as directed by the Board. The 1984 change (1984 Sess. Laws, ch. 58) was significant because it expanded the pool of prisoners who could be furloughed, since pre-1984 limits on jail and "facility" capacity had constrained how many prisoners the Board could place on furlough.

Background and statutory framework

Idaho's corrections framework in 1987 split power between two bodies. The Board of Correction, established by art. 10, § 5, of the Idaho Constitution, had general management authority over the penitentiaries. The Commission of Pardons and Parole, established by art. 4, § 7, and Idaho Code § 20-210, had the pardon and parole powers. The opinion treated the two as separate spheres: the Board could not pardon, parole, commute, or release; the Commission could.

The legislative source of the Commission's parole power was distinct from the constitutional pardon power. Standlee v. State, 96 Idaho 849 (1975), traced the parole power to the legislature's authority to define punishment, distinguishing it from the constitutional pardon power. Section 20-223 vested the parole power exclusively in the Commission. The Board's role under § 20-219 was limited to supervising parolees in the field.

The work furlough framework in § 20-242 had two relevant features for the opinion. First, the heading referred to "furlough, by providing that a person committed to the custody of the board of correction may be released on furlough" (1970 Sess. Laws, ch. 143), which the AG read as covering both newly sentenced prisoners and those already incarcerated. Second, the 1984 amendment (1984 Sess. Laws, ch. 58) added "residence" to the list of permitted off-hours domicile locations, expanding the practical scope of furlough.

The opinion drew on out-of-state authority for the early-release contrast. Florida (Fla. Stat. § 944.598), Washington (Wash. Rev. Code Ann. 9.94A.160), and Texas (Tex. Civil Stat. art. 6184o) all had explicit emergency-release frameworks tied to capacity thresholds. State v. Scott, 352 S.E.2d 741 (W.Va. 1987), addressed using pardon and parole to bring prison populations within constitutional limits. The opinion did not rely on these as Idaho law but used them to illustrate what Idaho lacked.

Citations

• Idaho Constitution, art. 4, § 7
• Idaho Constitution, art. 10, § 5
• Idaho Code § 19-2513A
• Idaho Code § 19-2514
• Idaho Code § 20-210
• Idaho Code § 20-219 (Supp. 1986)
• Idaho Code § 20-223
• Idaho Code § 20-242, (1), (2), (3), (5)
• 1970 Idaho Sess. Laws, ch. 143
• 1984 Idaho Sess. Laws, ch. 58
• Fla. Stat. § 944.598 (1985)
• Wash. Rev. Code Ann. 9.94A.160 (Supp. 1987)
• Texas Civil Stat. art. 6184o (1986)
• In re Prout, 12 Idaho 494, 86 P. 275 (1906)
• Standlee v. State, 96 Idaho 849, 852, 538 P.2d 778, 781 (1975)
• State v. Rawson, 100 Idaho 308, 312-13, 597 P.2d 31, 36 (1979)
• Walker v. Nationwide Financial Corp. of Idaho, 102 Idaho 266, 629 P.2d 662 (1981)
• Poston v. Hollar, 64 Idaho 322, 132 P.2d 142 (1943)
• State v. Scott, 352 S.E.2d 741 (W.Va. 1987)
• Green v. Superior Ct., 132 Ariz. 468, 647 P.2d 166 (1982)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP87-05.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL

JIM JONES

BOISE 83720

ATTORNEY GENERAL

TELEPHONE
(208) 334-2400

ATTORNEY GENERAL OPINION NO. 87-5

Director A. I. Murphy
Department of Corrections
STATEHOUSE MAIL

Per Request for Attorney General's Opinion

QUESTIONS PRESENTED:

1. Does the board of correction have the authority to do an outright early release of incarcerated prisoners?

2. Does the board of correction have the authority to release inmates through long-term furloughs, pursuant to Idaho Code § 20-242?

CONCLUSIONS:

1. The board of correction has no authority to do an outright early discharge of prisoners. The power to release prisoners is vested in the commission of pardons and parole, which may release prisoners on parole, or pardon or commute their sentences.

2. Because a furlough is not actually a release, but simply an alternate form of continued confinement, the board of correction can furlough a prisoner at any time, provided the statutory directions of Idaho Code § 20-242 are followed.

ANALYSIS:

Question 1.

Unlike some states, Idaho has no statutory provision for early release of prisoners once penitentiaries reach maximum capacity. Florida statutes, by contrast, provide that once the prisons reach 98% capacity, the Department of Corrections shall declare a state of emergency, and shall release prisoners until the prison population is reduced to 97% of capacity. Fla. Stat. § 944.598 (1985). See also, Wash. Rev. Code Ann. 9.94A.160 (Supp. 1987); Texas Civil Stat. art. 6184o (1986). Other jurisdictions, when faced with overcrowded prisons, have declared that the powers of pardon and parole should be used to bring prison populations within constitutional limits. See, State v. Scott, 352 S.E.2d 741 (W.Va. 1987).

In Idaho, however, the board of correction has no power to pardon prisoners. The power to pardon and commute sentences was originally vested by art. 4, § 7, of the Idaho Constitution, in a board of pardons, and is now vested by statute in the state commission of pardons and parole. Idaho Code § 20-210. Although the commission members are appointed by the board of correction, the board has no authority to direct the commission to pardon or commute a prisoner's sentence. The powers of pardon and commutation are granted to the commission as the successor to the board of pardons, and cannot be directly interfered with by the board of correction.

The board of correction also has no power to parole prisoners. Early Idaho cases implied that the power to parole was derived from the power to pardon or commute sentences, and thus was vested in the board of pardons. In re Prout, 12 Idaho 494, 86 P. 275 (1906). However, the Idaho Supreme Court later clarified the source of the parole power: it is derived from the legislative authority to establish suitable punishment for various crimes. Standlee v. State, 96 Idaho 849, 538 P.2d 778 (1975). The power to release prisoners on parole is vested exclusively in the commission of pardons and parole:

Subject to section 19-2513, Idaho Code, the commission [of pardons and parole] shall have the power to establish rules, regulations, policies or procedures in compliance with chapter 52, title 67, Idaho Code, under which any prisoner, excepting under sentence of death, may be allowed to go upon parole but to remain while on parole in the legal custody and under the control of the board and subject to be taken back into confinement at the direction of the commission.

Idaho Code § 20-223 (Supp. 1986).

The Idaho Constitution does give the board of correction some authority over the parole power:

The state legislature shall establish a nonpartisan board to be known as the state board of correction, . . . This board shall have the control, direction and management of the penitentiaries of the state, their employees and properties, and of adult probation and parole, with such compensation, powers, and duties as may be prescribed by law.

Idaho Const., art. 10, § 5. The court has found, however, that art. 10, § 5 does not give the board of correction unfettered control, direction, and management of the penitentiaries or adult probation or parole. The board is simply charged with the power to implement those laws enacted by the legislature regarding those functions. State v. Rawson, 100 Idaho 308, 597 P.2d 31 (1979). Accordingly, the board's parole power has been statutorily limited to the supervision of all persons released from the state penitentiary on parole. Idaho Code § 20-219 (Supp. 1986).

In conclusion, the board of correction has no power to release prisoners outright. The power to release prisoners is vested in the commission of pardons and parole, which can either parole prisoners under § 20-223, or pardon or commute the prisoner's sentence under art. 4, § 7 of the state constitution.

Question 2.

The question presented is whether the board of correction has the authority to release inmates through long-term furloughs from prisons. The long-term furlough of prisoners is controlled by Idaho Code § 20-242(1) and (2):

1. When a person is committed to the custody of the state board of correction, the board may direct that the person be permitted to continue in his regular employment, work project, or educational program . . . or may authorize the person to secure employment for himself. . . .

2. If the board directs that the prisoner be permitted to continue in his regular employment or education, the board shall arrange for a continuation of the employment or education without interruption. If the prisoner does not have regular employment, and the board has authorized the prisoner to secure employment for himself, the prisoner may do so, and the board may assist him in doing so.

These sections are somewhat ambiguous as to whether they allow presently incarcerated prisoners to be released on work furloughs, or whether they only allow newly-sentenced prisoners to continue or secure employment. Where the meaning of a statute is unclear, resort may be had to the statutory heading as an aid in ascertaining legislative intent. Walker v. Nationwide Finance Corp. of Idaho, 102 Idaho 266, 629 P.2d 662 (1981). The statutory heading to § 20-242 provides that the section relates "to furlough, by providing that a person committed to the custody of the board of correction may be released on furlough." 1970 Idaho Sess. Laws, ch. 143 (emphasis added). This statement implies that the legislature intended for the board of correction to have authority to release on work furlough all persons committed to the board's custody, both those newly sentenced and those already incarcerated. Such a reading is more consistent with the last sentence of Idaho Code § 20-242(2) quoted above. That sentence appears to apply directly to those who are already incarcerated and who therefore lack "regular employment." It demonstrates a legislative intent to give flexibility to the board to determine which prisoners may qualify for furlough and may seek or be assisted in seeking meaningful employment.

It should be noted in passing that although an incarcerated prisoner can be released "to secure employment for himself," there is no parallel provision granting furlough to start an educational program. A familiar rule of statutory construction dictates that inclusion of one term implies the deliberate exclusion of all others. Poston v. Hollar, 64 Idaho 322, 132 P.2d 142 (1943). Therefore, we must conclude that educational furloughs are authorized only if the prisoner is already engaged in an ongoing educational program at the time of incarceration.

It is our opinion that the time spent on work furlough is applied toward fulfillment of the prisoner's sentence. This is not explicit in § 20-242, but is implied in paragraph (5), which provides:

If the prisoner violates the conditions established for his conduct, custody or employment, the board may order the balance of the prisoner's sentence to be spent in actual confinement. (Emphasis added).

The use of the term "balance of the prisoner's sentence" implies that time spent on work furlough is applied toward the required period of incarceration. This interpretation is in accord with other jurisdictions, which agree that a prisoner on work furlough is technically in confinement. See, Green v. Superior Ct., 132 Ariz. 468, 647 P.2d 166 (1982). Because the prisoner is still technically in confinement, the restrictions on the granting of parole found in § 20-223 should not apply to work furloughs. Also, time spent on work furloughs should be applied toward the fulfillment of fixed sentences required by Idaho Code §§ 19-2513A, 19-2514 and other statutes.

Additional guidance regarding the board's power to grant furloughs is derived from paragraph 3 of § 20-242, which states:

Whenever the prisoner is not employed and between the hours or periods of employment, work project, or schooling, he shall be domiciled in a jail, facility, or residence as directed by the board of correction.

This provision was amended in 1984 to allow prisoners on work furlough to be domiciled in residences in addition to jails or facilities. 1984 Sess. Laws, ch. 58. It can be inferred that by adding the word "residence," the legislature intended to expand the ability of the board of correction to place prisoners on work furlough. Before the statute was amended, furloughed prisoners had to be domiciled in a "jail or facility" when not at work. Space in such facilities is limited. The amendment, which allows prisoners to be domiciled in private residences, greatly expands the number of prisoners that can be released on work furlough.

In conclusion, the board of correction has the authority to release a prisoner on long-term furloughs at any time during his or her sentence, either to work, seek work, or engage in a continuing educational program, subject to the conditions required by § 20-242, and such additional conditions as the board may set. Idaho Code § 20-242(1).

AUTHORITIES CONSIDERED:

Idaho Constitution
Idaho Const., art. 4, § 7
Idaho Const., art. 10, § 5

Idaho Statutes
Idaho Code § 19-2513A
Idaho Code § 19-2514
Idaho Code § 20-210
Idaho Code § 20-219 (Supp. 1986)
Idaho Code § 20-223
Idaho Code § 20-242, (1), (2), (3)
1970 Idaho Sess. Laws, ch. 143
1984 Idaho Sess. Laws, ch. 58

Idaho Cases
In re Prout, 12 Idaho 494, 86 P. 275 (1906)
Standlee v. State, 96 Idaho 849, 852, 538 P.2d 778, 781 (1975)
State v. Rawson, 100 Idaho 308, 312-13, 597 P.2d 31, 36 (1979)
Walker v. Nationwide Financial Corp. of Idaho, 102 Idaho 266, 629 P.2d 662 (1981)
Poston v. Hollar, 64 Idaho 322, 132 P.2d 142 (1943)

Cases From Other Jurisdictions
State v. Scott, 352 S.E.2d 741 (W.Va. 1987)
Green v. Superior Ct., 132 Ariz. 468, 647 P.2d 166 (1982)

Other Authorities
Texas Civil Stat., art. 6184o (1986)
Wash. Rev. Stat. § 9.94A.160 (Supp. 1987)

DATED this 16th day of July, 1987.

ATTORNEY GENERAL
State of Idaho

ANALYSIS BY:
PETER C. ERBLAND
Deputy Attorney General
Chief, Criminal Law Division

STEVEN STRACK
Legal Intern

cc:
Idaho Supreme Court
Supreme Court Library
Idaho State Library