Under Idaho's Unified Sentencing Act, can the Commission for Pardons and Parole shorten a felon's fixed (mandatory) prison term by commuting it, even though the Act explicitly bars parole, discharge, or good-conduct credit during the fixed term?

Plain-English summary

Olivia Craven, Executive Director of the Idaho Commission for Pardons and Parole, asked the AG whether the Commission could commute a sentence during the fixed (mandatory minimum) term under the Unified Sentencing Act. Idaho Code § 19-2513 says: "During a minimum term of confinement, the offender shall not be eligible for parole or discharge or credit or reduction of sentence for good conduct except for meritorious service." The question was whether commutation, a constitutional clemency power exercised by the Commission under Idaho Const. art. 4, § 7, fell within that statutory restriction.

The AG (writing for AG Larry EchoHawk) said the Commission can commute during a fixed term. The reasoning: commutation is constitutional, not statutory, and the Idaho Legislature cannot constrain a constitutional power by statute. Idaho Const. art. 4, § 7 (as amended in 1986 by Senate Joint Resolution No. 107) gives the Commission authority to grant commutations and pardons after conviction, in all cases against the state except treason or impeachment. The Unified Sentencing Act's restrictions on parole, discharge, and good-conduct credit reach only the statutory parole power, not the constitutional commutation power. State v. Rawson, 100 Idaho 308, 597 P.2d 31 (1979), held the same thing about a then-existing fixed-sentence statute under the pre-1986 constitutional text.

The opinion picked apart the difference between parole and commutation. Parole is a statutory release on conditions, with the original sentence still in place; the parolee is supervised and can be returned to prison for parole violation. Commutation is a substantive reduction of the sentence itself; the commuted sentence is the new sentence, and the offender is released without ongoing supervision once it is served. The constitutional commutation power is broader than statutory parole and operates independently of the Unified Sentencing Act's parole restrictions.

The opinion does not address the policy desirability of commutations during fixed terms; it simply confirms the legal authority. The Commission would still apply its own internal standards to commutation petitions and would still exercise discretion case-by-case.

Currency note

This opinion was issued in 1994. 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.

Common questions

What is the difference between commutation, pardon, and parole?

A pardon erases the conviction itself, restoring civil rights and effectively undoing the legal consequences of the conviction (though some collateral consequences may persist). A commutation reduces the sentence without erasing the conviction; the offender is still convicted, but the sentence is shorter or less severe. Parole is a release on conditions during the original sentence; the offender remains under supervision and the conviction stands. The constitutional clemency power covers pardons and commutations; parole is a creature of statute.

Why couldn't the legislature limit commutation by statute?

Because the constitution gives the commutation power to the Commission, not to the legislature. Article 4, § 7 says the Commission "shall have power to grant commutations and pardons after conviction." That is a constitutional grant, not a statutory delegation. The legislature can regulate procedural aspects (notice, hearings) and can require certain reporting, but it cannot eliminate or substantially restrict the substantive power. The 1986 amendment to art. 4, § 7 (via Senate Joint Resolution No. 107) was part of the package with the Unified Sentencing Act, but it did not take away the commutation power; it modernized the language.

Why was the 1986 constitutional amendment necessary?

The 1986 amendment updated art. 4, § 7 to reflect the new Unified Sentencing Act framework. The legislature wanted to make the death penalty automatic-review and other procedural changes work with the existing clemency framework. The amendment did not narrow the substantive clemency power; it adjusted the language to fit the updated sentencing scheme.

How often does the Commission actually commute fixed sentences?

The opinion does not say, and commutation is rare in any state. The Commission exercises substantial discretion, considers victim input, and applies its own standards. Commutations during fixed terms tend to occur in unusual circumstances: terminal illness, substantial post-conviction evidence of innocence or excessive sentence, exceptional rehabilitation, or sentence-reform contexts where the legislature has indicated retroactive effect.

What about the death penalty?

The constitutional commutation power applies to death sentences as well as ordinary felony sentences. The Commission can commute a death sentence to life without parole, life with parole eligibility, or a term of years, even after all appeals are exhausted. Commutation has historically been the safety valve in Idaho's capital system; the Commission's exercise of that power has been politically contested but legally clear.

Background and statutory framework

Idaho Const. art. 4, § 7 establishes the Commission for Pardons and Parole and grants it the power to commute and pardon. The pre-1986 text said the Commission, "or a majority thereof, shall have power to grant commutations and pardons after conviction of a judgment, either absolutely or upon such conditions as they may impose in all cases against the state except treason or conviction on impeachment." The 1986 amendment refined the language but kept the substantive grant.

Idaho's Unified Sentencing Act in Idaho Code § 19-2513 (1986) replaced the older fixed-only sentencing regime. Under the Unified Sentencing Act, every felony sentence has a fixed minimum term plus an optional indeterminate term. The fixed term is mandatory; the indeterminate term is discretionary on the part of the Commission. The Act explicitly closed the parole, discharge, and good-conduct-credit exits from the fixed term, increasing certainty in sentencing.

Idaho Code § 20-213 sets out the procedures the Commission follows when applications for commutation or pardon are scheduled to be heard. Procedural rules can be adjusted by statute; substantive elimination of the power cannot. The 1994 opinion confirmed the constitutional baseline against the practical pressure of the Unified Sentencing Act.

Citations

• Idaho Const. art. 4, § 7 (as amended 1986)
• Idaho Code §§ 19-2513, 20-213
• 1986 Idaho Sess. Laws, H.B. 524 (Unified Sentencing Act)
• Senate Joint Resolution No. 107 (1986)
• State v. Rawson, 100 Idaho 308, 597 P.2d 31 (1979)
• 1984 Idaho Att'y Gen. Ann. Rpt. 75 (prior AG opinion)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP94-03.pdf

Original opinion text

ATTORNEY GENERAL OPINION NO. 94-3
To:

Olivia Craven, Executive Director
Commission for Pardons and Parole
280 N. 8th Street, Suite 140
STATEHOUSE MAIL
Boise, ID 83720

Per Request for Attorney General's Opinion
QUESTION PRESENTED
May the Idaho Commission for Pardons and Parole commute a sentence during a
fixed term under the Unified Sentencing Act?
CONCLUSION
The commission does have the power to commute a sentence during a fixed term.
ANALYSIS
In 1984, the attorney general issued an opinion stating that the Idaho Commission
for Pardons and Parole had the power to commute fixed sentences under then existing
law. 1984 Idaho Att'y Gen. Ann. Rpt. 75. The opinion was based in part on State v.
Rawson, 100 Idaho 308, 597 P.2d 31 (1979), which held that then existing Idaho Code
§ 19-2513A (creating a fixed sentence structure) was intended solely to limit the
commission's power of parole and did not restrict either the power of pardon or of
commutation. This was so because the parole power is a creature of statute, whereas the
power to pardon or commute was found in the Idaho Constitution as it then existed:
[The commission], or a majority thereof, shall have power to grant
commutations and pardons after conviction of a judgment, either absolutely
or upon such conditions as they may impose in all cases against the state
except treason or conviction on impeachment.
Art. 4, § 7 (1947). The statutory implementation of this section was Idaho Code § 20213, which set up procedures for notification if applications for commutation were
scheduled to be heard by the board.
In 1986, the legislature passed the Unified Sentencing Act. Idaho Code § 192513. In so doing, the legislature created a sentencing system whereby each convicted
felon would be sentenced to a fixed term to be followed by an optional indeterminate

term. This system was created in large part because of the legislature's sense that there
was little certainty in Idaho's sentencing and release process:
There are two major policy justifications for this proposal. First, by
making the minimum period fixed and not subject to reduction, greater
truth in sentencing is achieved. At the time of sentencing everyone knows
the minimum period which must be served. Second, greater sentencing
flexibility is achieved. . . . The court can impart the specific amount of
punishment it feels to be just and still impose an indeterminate period to be
used by the Commission for Pardons and Parole for rehabilitation and
parole purposes.
Statement of Purpose, H.B. 524 (1986).
Consonant with this intent, the legislature appears to have attempted to affect not
only parole during the fixed term, but other methods whereby a felon could have his or
her incarceration time reduced. Idaho Code § 19-2513 states in pertinent part:
During a minimum term of confinement, the offender shall not be eligible
for parole or discharge or credit or reduction of sentence for good conduct
except for meritorious service.
The 1986 legislature also passed Senate Joint Resolution No. 107. That
Resolution proposed a constitutional amendment to art. 4, § 7. The resolution provided
in pertinent part that the board's power to pardon and commute would only be "as
provided by statute." The Statement of Purpose to the resolution stated in its entirety:
This legislation proposed [sic] to amend the Constitution of the State of
Idaho by removing outdated language and provides that the power of the
Board of Pardons to grant commutations and pardons after conviction and
judgment shall be only as provided by statute.
The people of the state ratified the amendment in the election of November 1986.
The Statement of Meaning and Purpose on the ballot forms from that election gives
significant guidance as to the intent of the amendment:
Meaning and Purpose. The purpose of this proposed amendment . . .
is to remove from constitutional status the powers of commutation and
pardon, which are held by the Board of Pardons, and to make the powers of
commutation and pardon subject to amendment by statute by the
Legislature.

Effect of Adoption. Presently, the Board of Pardons has the
constitutional powers of commutation and pardon. Because these powers
are constitutional, they cannot be amended or changed by statutory
enactment and are not subject to review. If SJR 107 is adopted, the
commutation and pardon power will no longer have a constitutional status;
they will be subject to amendment by statutory enactment. The Legislature
would have the authority to set policies and procedures for commutations
and pardons and could also review Board commutation and pardon
decisions.
Assuming that the amendment transmuted the commission's power to commute
from constitutional to statutory power, two questions remain: (1) Has the legislature
passed any statute designed to regulate the previously unlimited power of the commission
to commute any and all sentences? (2) Can the Unified Sentencing Act be interpreted to
mean that the power to commute only exists for indeterminate sentences?
Idaho Code § 20-213, which merely sets up time and notification procedures for
the commission regarding pardon or commutation proceedings, has remained unchanged.
In 1988, the legislature passed a significant amendment to Idaho Code § 20-240. This
section had previously dealt with respites, reprieves and pardons by the governor. The
legislature added a section to the statute dealing with commutation:
The commission shall have full and final authority to grant
commutations and pardons except with respect to sentences for murder,
voluntary manslaughter, rape, kidnapping, lewd and lascivious conduct
with a minor child, and manufacture or delivery of controlled substances.
The commission shall conduct commutation and pardon proceedings
pursuant to rules and regulations adopted in accordance with law and may
attach such conditions as it deems appropriate in granting pardons and
commutations. With respect to commutations and pardons for the offenses
named above, the commission's determination shall only constitute a
recommendation subject to approval or disapproval by the governor. No
commutation or pardon for such named offenses shall be effective until
presented to and approved by the governor. Any commutation or pardon
recommendation not so approved within thirty (30) days of the
commission's recommendation shall be deemed denied.
Plainly, the commission's power to commute is left unfettered in all except six
classes of cases. Even as to those types of cases, no attempt has been made to limit the
commission's discretion beyond the requirement for gubernatorial approval.

Can Idaho Code § 19-2513's prohibition against credit, discharge or reduction for
good conduct be interpreted as such a limitation? Applying general rules of statutory
construction, there are several reasons why this question must be answered in the
negative. First, the statute doesn't mention commutation or pardon. Nor was
commutation or pardon addressed in the act's statement of purpose. Generally, where a
statute specifies certain things, the designation of such things excludes all others. Peck v.
State, 63 Idaho 375, 120 P.2d 820 (1942).
In addition, when the legislature first passed Idaho Code § 19-2513, it had no
power to affect commutations. That power would not come until the ratification of the
amendment to art. 4, § 7. The legislature is presumed to have full knowledge of existing
law when it enacts or amends a statute. Watkins Family v. Messenger,
118 Idaho 537, 797 P.2d 1385 (1990).
Finally, the legislature gave full discretion over commutations to the commission
two years after the passage of the Unified Sentencing Act. To the extent that the
Sentencing Act can be argued to conflict with the unlimited power of the commission
found in Idaho Code § 20-240, the later expression of legislative intent will control over
the earlier. Union Pacific R. Co. v. Board of Tax Appeals, 103 Idaho 808, 654 P.2d 901
(1982).
Given all the above, the informal letter sent to the commission in 1992, which was
based solely on an interpretation of the Unified Sentencing Act without regard to other
statutory provisions, must be retracted. Because there are no legislative enactments that
limit the power to commute, the commission may commute fixed term sentences in its
discretion.
It has been suggested that an opinion regarding the power to commute as being
unaffected by the Unified Sentencing Act would "open the floodgates" to scores of
applications from prisoners serving fixed terms who would seek commutations as a
substitute for parole hearings. In order to address this concern, it is necessary to begin
with an understanding of the commutation power itself and compare it to the power to
parole:
Parole and commutation are mutually exclusive powers.
The Constitution speaks only of commutations or pardons. These
differ from paroles. A pardon does away with both the punishment and the
effects of a finding of guilt. A commutation diminishes the severity of a
sentence, e.g. shortens the term of punishment. A parole does neither of
these things. A parole merely allows a convicted party to serve part of his

sentence under conditions other than those of the penitentiary. The party is
not "pardoned" of his guilt, nor is a portion of his sentence "commuted."
Standlee v. State, 96 Idaho 849, 852, 538 P.2d 778, 781 (1975). The Idaho statute on
parole makes it explicit that parole shall not be granted "as a reward of clemency and it
shall not be considered to be a reduction of sentence or pardon." Idaho Code § 20223(c).
Parole in Idaho has been described as a "mere possibility" which is not protected
by due process rights. Vittone v. State, 114 Idaho 618, 759 P.2d 909 (Ct. App. 1988).
This is so because no substantive limitations are placed upon the commission's decisionmaking regarding parole by either the constitution or by statute. Similarly, the same
description must apply to commutations.
There is no explicit right to or liberty interest in clemency created either by art. 4,
§ 7, or Idaho Code §§ 20-213 or 20-233.
This being so, the next step is to look to the implementing legislation to see if the
state has somehow created a liberty interest through "substantive limitations on official
discretion." Olim v. Wakinekona, 461 U.S. 238, 249, 103 S. Ct. 1741, 1747, 75 L. Ed.
2d 813 (1983). "The search is for relevant mandatory language that expressly requires
the decision-maker to apply certain substantive predicates in determining whether an
inmate may be deprived of the particular interest in question." Kentucky Department of
Corrections v. Thompson, 490 U.S. 454, 464, n.4, 109 S. Ct. 1904, 1910, n.4, 104 L. Ed.
2d 506 (1989).
Reviewing the Idaho Constitution and Idaho Code § 20-213, as well as
section 50.08 of the Policy and Procedures of the Idaho Commission for Pardons and
Parole, one finds nothing that "expressly" requires anything of the commission that could
be considered a limitation on its discretion. Indeed, no limitations are even implied. In
truth, Idaho law only creates a "unilateral hope," which affords no due process protection.
Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 465, 101 S. Ct. 2460, 2465,
69 L. Ed. 2d 158 (1981) (the mere existence of a power to commute a lawfully imposed
sentence, and the granting of commutations to many petitioners, create no right or
entitlement).
Hence, the commission need not fear that it would be hamstrung by commutation
applications. The commission has the ability to be selective about which applications it
hears and, indeed, may summarily refuse to hear applications that, in its discretion, are
determined to be unworthy of review.
AUTHORITIES CONSIDERED

1.

Constitutions:
Idaho Constitution, art. 4, § 7 (1947).

2.

Idaho Code:
§ 19-2513.
§ 20-213.
§ 20-223.
§ 20-240.

3.

Idaho Cases:
Peck v. State, 63 Idaho 375, 120 P.2d 820 (1942).
Standlee v. State, 96 Idaho 849, 538 P.2d 778 (1975).
State v. Rawson, 100 Idaho 308, 597 P.2d 31 (1979).
Union Pacific R. Co. v. Board of Tax Appeals, 103 Idaho 808, 654 P.2d 901
(1982).
Vittone v. State, 114 Idaho 618, 759 P.2d 909 (Ct. App. 1988).
Watkins Family v. Messenger, 118 Idaho 537, 797 P.2d 1385 (1990).

4.

Other Cases:
Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 101 S. Ct. 2460, 69 L.
Ed. 2d 158 (1981).
Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 109 S. Ct.
1904, 104 L. Ed. 2d 506 (1989).
Olim v. Wakinekona, 461 U.S. 238, 103 S. Ct. 1741, 75 L. Ed. 2d 813 (1983).

5.

Other Authorities:
1984 Idaho Att'y Gen. Ann. Rpt. 75.
Idaho Commission for Pardons and Parole Policy and Procedures § 50.08.

Senate Joint Resolution No. 107.
Statement of Purpose, H.B. 524 (1986).
DATED this 6th day of July, 1994.
LARRY ECHOHAWK
Attorney General
Analysis by:
MICHAEL KANE
Deputy Attorney General
Chief, Criminal Law Division