Can Idaho's Commission of Pardons and Parole commute an inmate's indeterminate sentence to a shorter fixed term so the inmate can be transferred to Mexico under the U.S.-Mexico prisoner transfer treaty?

Plain-English summary

Thirteen Mexican nationals serving indeterminate sentences in Idaho prisons asked to be transferred to Mexico to serve the rest of their time at home, under the U.S.-Mexico Prisoner Transfer Treaty. Mexico does not have a parole system, so it cannot accept a prisoner whose sentence has no fixed end date. The Commission of Pardons and Parole asked the AG whether it could commute each indeterminate sentence to a shorter fixed term so the transfers could go forward.

The AG said yes. The constitutional power to commute is vested in the Commission by article 4, section 7 of the Idaho Constitution. Standlee v. State (1975) defines commutation as a diminution of severity, like shortening a term of punishment.

The harder question is whether replacing an indeterminate sentence with a shorter fixed sentence actually diminishes severity, given that under an indeterminate sentence the inmate might theoretically be paroled earlier (Idaho Code § 19-2513, in some cases § 20-223). Could the commutation, by eliminating the parole possibility, actually increase severity?

A 1984 AG opinion (84-8) had answered this question. In Idaho, parole and commutation are matters of grace, not of right. There is no protectable liberty interest in early parole (Izatt v. State, 1983). The U.S. Supreme Court's decision in Connecticut Board of Pardons v. Dumschat (1981), construing a discretionary commutation statute much like Idaho's, held that an inmate's expectation that a sentence would be commuted is "nothing more than a mere unilateral hope," not a constitutional entitlement. So the commutation does not deprive the inmate of any due-process-protected interest.

The "one-third of the indeterminate term" rule of thumb that Idaho appellate courts use in sentence-review cases is just an approximation for review, not an entitlement, as State v. Nield (1983) makes clear. And the Commission's procedure can be cast as a "conditional commutation": the prisoner agrees to serve a fixed term in exchange for being transferred home. Conditional commutations are well-recognized (67A C.J.S., Pardon and Parole § 37; In re Prout, 1906) and bind the prisoner who accepts them.

Currency note

This opinion was issued in 1993. 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 Treaty Between the United States of America and the United Mexican States on the Execution of Penal Sentences (signed 1976) lets Mexican nationals convicted in U.S. courts apply to be transferred to Mexico to serve out the remainder of their sentence, and lets U.S. citizens convicted in Mexico do the reverse. The treaty's mechanics depend on the receiving country being able to administer the sending country's sentence. Mexico's penal system does not include parole as understood in Idaho, so a sentence with no fixed end date is administratively unworkable in Mexico.

Idaho's sentencing scheme has both indeterminate and fixed-term options. Idaho Code § 19-2513 governs indeterminate sentences; § 19-2513A governs fixed terms. Under § 20-223, certain offenders must serve at least one-third of their sentence (or five years) before parole eligibility. A fixed term carries no parole eligibility at all.

The Commission's commutation authority comes from Idaho Constitution, art. 4, sec. 7, which gives the Commission of Pardons and Parole (or, before 1976, the Board of Pardons) the power to commute. Standlee v. State, 96 Idaho 849 (1975), defines commutation as anything that diminishes the severity of the sentence, such as shortening the term of punishment. The Idaho Court of Appeals confirmed in State v. Beason, 119 Idaho 103 (Ct. App. 1991), that the commutation power is vested in the Commission.

The federal due-process backdrop comes from Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979) (parole expectancy as protected interest only when statute creates entitlement) and Connecticut Board of Pardons v. Dumschat, 452 U.S. 458 (1981) (Connecticut's discretionary commutation statute did not create a liberty interest, and the inmate's expectation of commutation was a "mere unilateral hope"). Idaho's constitutional grant of commutation authority is similar to Connecticut's: discretionary, with no statutory criteria the Commission must apply. So the Idaho regime falls on the no-protected-interest side of Greenholtz/Dumschat.

Common questions

Doesn't a commutation that eliminates parole eligibility actually make things worse for the inmate?
Theoretically it could, since under indeterminate sentencing the inmate could be paroled earlier than the fixed-term commutation date. But the AG's earlier 1984 opinion (84-8), which the AG re-adopted here, concluded that there is no constitutionally protected interest in early parole eligibility in Idaho. Izatt v. State (1983) held there is no right to parole or even to written reasons for denial of parole. So eliminating parole eligibility through a commutation does not violate any constitutional right.

What about the "one-third rule"?
State v. Nield (1983) and State v. Toohill (1982) explained that the one-third figure used by Idaho appellate courts in sentence-review cases is just an approximation, "intended solely to facilitate judicial review," not a prediction of actual confinement. Parole "may be granted earlier, later, or not at all. Under Idaho law, parole is merely a possibility, not an expectancy."

What does "conditional commutation" mean?
The pardoning authority can attach lawful, ethical, performable conditions to a commutation, and those conditions are binding on the prisoner who accepts the deal. Here, the condition is that the prisoner serve a fixed term certain rather than the original indeterminate sentence. That structure is recognized at common law (67A C.J.S., Pardon and Parole § 37) and in early Idaho practice (In re Prout, 1906).

Could the prisoner refuse?
Yes. The whole arrangement is consensual: the prisoner has applied for transfer, and the commutation is the mechanism that makes the transfer feasible. If the prisoner does not accept the conditional commutation, the original indeterminate sentence stays in place and the transfer does not happen.

Citations

Idaho Constitution: art. 4, sec. 7 (Commission of Pardons and Parole's power to grant pardons, paroles, commutations, and remissions of fines and forfeitures).

Idaho Code: § 19-2513 (indeterminate sentences); § 19-2513A (fixed-term sentences); § 20-223 (parole eligibility for certain offenders).

U.S. Supreme Court cases: Board of Regents v. Roth, 408 U.S. 564 (1972) (defining "liberty interest" for due-process purposes); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979); Paratt v. Taylor, 451 U.S. 527 (1981); Connecticut Board of Pardons v. Dumschat, 452 U.S. 458 (1981).

Idaho cases: In re Prout, 12 Idaho 494, 86 P. 275 (1906) (Idaho Supreme Court; conditional commutation); Izatt v. State, 104 Idaho 597, 661 P.2d 763 (1983); Malloroy v. State, 91 Idaho 914, 435 P.2d 254 (1967); Standlee v. State, 96 Idaho 849, 538 P.2d 778 (1975) (Idaho Supreme Court); State v. Beason, 119 Idaho 103, 803 P.2d 1009 (Ct. App. 1991); State v. Evans, 73 Idaho 50, 245 P.2d 788 (1952); State v. Nield, 105 Idaho 153, 666 P.2d 1164 (Ct. App. 1983), aff'd 106 Idaho 665, 682 P.2d 618 (1984); State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct. App. 1982).

Other authorities: 67A C.J.S., Pardon and Parole § 37; Attorney General Opinion 82-9 (1982); Attorney General Opinion 84-8 (1984); Treaty Between the United States of America and the United Mexican States on the Execution of Penal Sentences.

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP93-03.pdf

Original opinion text

ATTORNEY GENERAL OPINION NO. 93-3
To:

Olivia Craven, Executive Director
Idaho Commission of Pardons and Parole
280 North 8th, Suite 140
STATEHOUSE MAIL
Boise, ID 83720

Per Request for Attorney General's Opinion
QUESTION PRESENTED
May the Commission of Pardons and Parole commute an indeterminate sentence
to a lesser fixed term for purposes of the Prisoner Transfer Treaty between the United
States and Mexico?
CONCLUSION
The Commission may indeed commute an indeterminate sentence to a lesser fixed
term for the purposes of complying with the Prisoner Transfer Treaty.
ANALYSIS
You have asked whether the Commission of Pardons and Parole has the power to
commute an indeterminate sentence to a lesser fixed sentence. The inquiry stems from
the special conditions imposed by the Prisoner Transfer Treaty between the United States
and Mexico. The treaty allows for the transfer of a prisoner of Mexican nationality
serving time in the United States to Mexico, in order to serve out the remaining sentence
in his or her home country. Because Mexico does not have a parole system, the Mexican
authorities cannot accept a prisoner unless sentenced to a time certain.
Apparently, thirteen Mexican nationals serving time in Idaho prisons have
requested that they be returned to Mexico under the terms of the treaty. All of these
individuals are currently serving indeterminate sentences. In order to facilitate the
transfer of these prisoners, the Commission wishes to commute each of the indeterminate
sentences to lesser fixed terms.
It is beyond argument that the power to grant a commutation is vested in the
commission. Idaho Constitution art. 4, sec. 7; State v. Beason, 119 Idaho 103, 803 P.2d
1009 (Ct. App. 1991). A commutation "diminishes the severity of a sentence, e.g.,
shortens the term of punishment." Standlee v. State, 96 Idaho 849, 852, 538 P.2d 778
(1975).
The question that remains is whether a sentence that is changed from an
indeterminate term to a shorter fixed term can be considered to be diminished. This issue
was answered by the Attorney General in 1984:
Of particular concern is the possibility that the commission, by
commuting an indeterminate sentence to a fixed term sentence, can deprive
the inmate of a parole date arising earlier than the date of expiration of the
fixed term. Would such a commutation actually increase the severity of the
adjudged sentence? Under the indeterminate sentence statute, Idaho Code
§ 19-2513, an offender is theoretically eligible for parole the day of being
sentenced to the custody of the state board of correction. Idaho Code § 20223 requires certain other offenders to serve one third or five years of their
sentence before being eligible for parole. An offender serving a fixed term
sentence under Idaho Code § 19-2513A, however, is not eligible for parole.
See Attorney General Opinion 82-9. The commutation of a 15-year
indeterminate sentence to, say, a 10-year fixed term sentence could
therefore deprive the offender of an early parole date.
Whether such a commutation is constitutionally permissible depends
largely on the nature of the interest which an inmate has in commutation
and parole. Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L.
Ed. 2d 228 (1972). The fourteenth amendment protects only against
deprivations of life, liberty, or property without due process of law, and a
prisoner who alleges violations of the right to due process must first show a
protectable "liberty interest." Paratt v. Taylor, 451 U.S. 527, 101 S. Ct.
1908, 69 L. Ed. 2d 228 (1981). If an inmate's interest in commutation or
parole amounts to a right, rather than a mere expectation, then the inmate is
entitled to some measure of due process of law before being deprived of
that right. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S. Ct.
2100, 60 L. Ed. 2d 668 (1979); Connecticut Board of Pardons v.
Dumschat, 452 U.S. 458, 101 S. Ct. 2460, 69 L. Ed. 2d 158 (1981).
In Idaho, however, pardon, parole, and commutation are not matters
of right or privilege. They are matters of grace or clemency. State v.
Evans, 73 Idaho 50, 245 P.2d 788 (1952); Malloroy v. State, 91 Idaho 914,
435 P.2d 254, 255 (1967). Furthermore, the Idaho Supreme Court has
determined that there is no right to parole under Idaho Code § 20-223 and
therefore no right to written reasons for denial of parole. Izatt v. State, 104
Idaho 597, 661 P.2d 763 (1983). In Connecticut Board of Pardons the
court analyzed the Connecticut commutation statute and determined that
the mere existence of a power to commute, which imposed no limit on what
procedure was to be followed, what evidence was to be considered, or what
criteria were to be applied by the board of pardons, created no right or
entitlement recognized by the due process clause. A Connecticut felon's
expectation that a lawfully imposed sentence would be commuted was
nothing more than a mere unilateral hope. Connecticut Board of Pardons,
supra, at 465. Comparison of Connecticut's commutation statute with
Idaho's constitutional grant of authority for commutation reveals that the
two are similar and discretionary.
The case law cited above supports the proposition that commutation
of a lawfully imposed sentence which effectively deprives an inmate of a
parole date is not violative of due process.
Attorney General Opinion 84-8 (1984). The law has not changed in this respect since
1984, and the logic of Attorney General Opinion 84-8 still applies.
Can it be argued that because prisoners serving indeterminate sentences are often
paroled upon completion of one-third of their terms, a prisoner may expect to be released
upon service of one-third of his or her term? Or, has an expectancy been created
because the Idaho appellate courts have traditionally used a rule of thumb in sentence
review cases to the effect that one-third of an indeterminate sentence is a likely term of
imprisonment? These questions were answered in State v. Nield, 105 Idaho 153, 666
P.2d 1164 (Ct. App. 1983), aff'd 106 Idaho 665, 682 P.2d 618 (1984):
By definition, an indeterminate sentence does not specify the term of
confinement. The actual period of confinement is later determined by
administrative authority. . . .
[In State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct. App. 1982), it was]
held that, unless there is a contrary statute or other indication on the record,
we will deem one-third of an indeterminate sentence to be an appropriate
measure of the term of confinement. This is a general approximation,
intended solely to facilitate judicial review. It does not represent a
prediction of the actual length of confinement in a particular case. Neither
does it connote any expectation that parole necessarily will be granted
when one-third of an indeterminate sentence has been served. Parole may
be granted earlier, later, or not at all. Under Idaho law, parole is merely a
possibility, not an expectancy.
105 Idaho at 156-57.
There is yet another way to consider the commutations in question. They are, in
effect, "conditional" commutations. In other words, under the unique circumstances of
these thirteen cases, a bargain will be struck:
You, the prisoner, have asked that you be sent to Mexico to finish out your
term. We, the Commission, agree to that, but in order to do this legally we
will attach a condition to the commutation, you must serve a term certain
that is less than your indeterminate term.
"The pardoning authority generally has the power to grant a commutation on
conditions it deems proper, provided they are not illegal, immoral, forbidden by law, or
impossible of performance; and such conditions are binding on the prisoner, at least if he
accepts the commutation." 67A C.J.S., Pardon and Parole § 37. See also In re Prout, 12
Idaho 494, 86 P. 275 (1906).
For the above stated reasons, it is the opinion of this office that the procedure
contemplated by the Commission and the prisoners is a legal and appropriate method of
complying with the Prisoner Transfer Treaty.
AUTHORITIES CONSIDERED
1.

United States Constitution:
Fourteenth Amendment.

2.

Idaho Code:
§ 19-2513.
§ 20-223.

3.

U.S. Supreme Court Cases:
Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 228 (1972).
Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 101 S. Ct. 2460, 69
L. Ed. 2d 158 (1981).
Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979).
Paratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908, 69 L.Ed.2d 228 (1981).

4.

Idaho Cases:
In re Prout, 12 Idaho 494, 86 P. 275 (1906).
Izatt v. State, 104 Idaho 597, 661 P.2d 763 (1983).
Malloroy v. State, 91 Idaho 914, 435 P.2d 254 (1967).
Standlee v. State, 96 Idaho 849, 538 P.2d 778 (1975).
State v. Beason, 119 Idaho 103, 803 P.2d 1009 (Ct. App. 1991).
State v. Evans, 73 Idaho 50, 245 P.2d 788 (1952).
State v. Nield, 105 Idaho 153, 666 P.2d 1164 (Ct. App. 1983), aff'd 106 Idaho 665, 682 P.2d 618 (1984).
State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct. App. 1982).

5.

Other Authorities:
67A C.J.S., Pardon and Parole § 37.
Attorney General Opinion 82-9 (1982).
Attorney General Opinion 84-8 (1984).

DATED this 31st day of March, 1993.
LARRY ECHOHAWK
Attorney General

Analysis by:
MICHAEL KANE
Deputy Attorney General