When an Idaho prisoner had multiple consecutive sentences and was eligible for parole on the first one, could the parole board release them onto parole while still keeping them in prison to serve the next sentence?

Plain-English summary

The Executive Director of the Idaho Commission of Pardons and Parole asked whether the Commission could parole an inmate from an indeterminate sentence to begin serving consecutive sentence(s), while the inmate remained physically incarcerated. The practical question was about how parole eligibility worked when a prisoner had stacked sentences.

The AG concluded yes: the Commission could, under properly enacted rules and regulations, parole an inmate serving an indeterminate sentence even when one or more consecutive sentences remained to be served. When paroled, the inmate would have a dual status as parolee on the first sentence and as inmate on the consecutive sentences. The opinion was expressly limited to sentences imposed for crimes committed before February 1, 1987 (the effective date of Idaho's Unified Sentencing Act, which restructured sentencing).

The opinion also addressed a related practice that had recently been ruled unconstitutional. The Commission had at times granted "early discharges" to inmates serving indeterminate sentences with consecutive sentences yet to start, treating the discharge as a way to allow the inmate to begin the next sentence. An Ada County district court ruled in Smith v. State (June 1986) that the Commission lacked authority to grant such discharges. The AG agreed. The Commission's discharge power under Idaho Code § 20-233 covered only persons who had been on parole for at least one year or whose maximum term had expired. Idaho Code § 20-239 added discharges of inmates who had served their maximum sentence. Granting an early discharge to an inmate still serving the maximum was effectively a commutation, which under Idaho Const. art. 4, § 7 and Idaho Code § 20-213 required application by the inmate plus public notice published once a week for four weeks. Miller v. Meredith (1938) had held a commutation void if it failed to meet the public-notice requirement.

So the AG's solution was that the Commission could lawfully reach the same practical result not by early discharge but by parole to a consecutive sentence, since parole authority under § 20-223 was distinct and broader. The Commission would need to adopt rules implementing the practice.

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.

Background and statutory framework

The Idaho Commission of Pardons and Parole had four powers: pardon and commutation (constitutional, Idaho Const. art. 4, § 7), parole (statutory, Idaho Code § 20-223), and discharge (statutory, Idaho Code §§ 20-233, 20-239). Pardon and commutation required compliance with the constitutional public-notice procedure. Parole was a separate, statutory authority for releasing an inmate before completion of a sentence subject to conditions. Discharge ended Commission supervision either of a parolee (after at least one year of parole, with proof of rehabilitation under § 20-233) or of an inmate who had served the maximum sentence (§ 20-239).

The Idaho Supreme Court had drawn the line between parole and commutation in cases like State v. Rawson (1979) and Standlee v. State (1975). Standlee said: "A commutation diminishes the severity of a sentence, e.g., shortens the term of punishment." Granting an early discharge to an inmate before the inmate had reached the discharge eligibility under § 20-233 or § 20-239 was effectively shortening the sentence.

The U.S. Supreme Court's Greenholtz v. Inmates of Nebraska Penal and Correctional Complex (1979, not cited but relevant in the background) had clarified that parole eligibility could be governed by state statute. Idaho statutes did not expressly address parole of inmates with stacked consecutive sentences, leaving the AG to fill the gap by interpretation.

The Unified Sentencing Act, effective February 1, 1987, restructured Idaho sentencing and made indeterminate sentencing a smaller part of the system. The opinion was therefore limited to crimes committed before that date, where the older indeterminate-sentencing framework still controlled.

Common questions

What does it mean to be paroled to a consecutive sentence?

The inmate is legally released onto parole on the first sentence (subject to conditions), but begins serving the next consecutive sentence at the same time. Physically the inmate stays in custody on the second sentence. Legally the inmate carries dual status: parolee on sentence one, prisoner on sentence two.

Why couldn't the Commission just discharge inmates early to start the next sentence?

Because that's a commutation. The Commission's discharge authority under § 20-233 reaches parolees who have completed at least one year of parole. The discharge authority under § 20-239 reaches inmates who have served their maximum. Granting "early discharges" outside those categories shortens the sentence, which falls under the Commission's commutation power, which has its own constitutional procedural requirements (public notice published once a week for four weeks). The Ada County district court so held in Smith v. State (June 1986), and the AG agreed.

Did the AG opinion apply to crimes committed after February 1, 1987?

No. The Unified Sentencing Act effective that date restructured Idaho's sentencing framework, and the AG explicitly limited the opinion to pre-Feb-1-1987 crimes governed by the older indeterminate-sentencing rules.

Did the Commission need new rules to use the parole-to-consecutive mechanism?

The opinion said the Commission could exercise the authority "pursuant to properly enacted rules and regulations." So yes, rule promulgation was contemplated.

What was the difference between commutation and parole in this analysis?

Commutation reduces the sentence itself (a constitutional power exercised by the board under art. 4, § 7 with public-notice procedure). Parole releases the inmate from confinement subject to conditions but does not shorten the underlying sentence (a statutory power under § 20-223). Paroling an inmate to a consecutive sentence does not shorten any sentence; it only changes the inmate's legal status with respect to the first sentence.

Citations

Idaho Constitution: Idaho Const. art. 4, § 7.

Idaho statutes: Idaho Code §§ 20-210, 20-213, 20-223, 20-233, 20-239.

Idaho cases: State v. Rawson, 100 Idaho 308, 597 P.2d 31 (1979); Standlee v. State, 96 Idaho 849, 538 P.2d 778 (1975); Miller v. Meredith, 59 Idaho 385, 83 P.2d 206 (1938); Smith v. State, Ada County Case No. HC 2515 (June 17, 1986).

Other authority: Cohen and Gobert, The Law of Probation and Parole, § 3.04 (1983); Idaho Att'y Gen. Op. No. 84-8.

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP87-09.pdf

Original opinion text

Full opinion text is preserved in the linked PDF. The opinion analyzed the Commission of Pardons and Parole's authority over inmates serving indeterminate sentences with consecutive sentences remaining. The AG distinguished the Commission's parole authority under Idaho Code § 20-223 (broad, statutory, exercisable through properly-adopted rules) from its discharge authority under Idaho Code §§ 20-233 and 20-239 (narrowly defined, applicable only to one-year parolees or those who completed maximum sentences) and from its commutation authority under Idaho Const. art. 4, § 7 and Idaho Code § 20-213 (requiring application plus public notice published weekly for four weeks). The AG concluded that the Commission could parole an inmate from an indeterminate sentence to a consecutive sentence (creating dual parolee/inmate status), but could not grant early discharges that effectively shortened the sentence without satisfying commutation procedure. The opinion was limited to crimes committed before February 1, 1987 (the effective date of the Unified Sentencing Act).

DATED this 9th day of September, 1987.

JIM JONES
Attorney General
State of Idaho