Parole Predicament
I was at my easel in hobbycraft working on a pastel. Frank came over to talk. He looked worried. Frank was a big guy, probably six foot five, broad shouldered. He sported a scraggly black mustache. He had an easy-going sense of humor - one of those guys whose crime seemed incongruous with his demeanor.
Frank was in for assaulting his ex-wife. I never knew the details, but one of his charges was a sexual offense.
Frank had been in the New Hampshire State Prison for ten years. He was the proverbial model prisoner. When I first met him he was a volunteer facilitator for the Alternatives to Violence Program. His prison job was to supervise the art room. He helped me settle in, gave me some of his own art supplies and some basic instruction.
Frank had a slight stammer when he was nervous, and this morning his voice betrayed his emotion.
“You know I, I went to parole yesterday,” he said. “And I don’t know if they can do this, but they, they denied me parole. They told me they, uh, they said they wanted me to do the sex offender program before they paroled me into my next sentence.”
In New Hampshire, consecutive sentences are served like so many individual terms. You have to get “paroled” out of one into the next.
“Have you tried to get into the sex offender program?”
“Yeah, I asked several times, but the program director told me there was a waiting list and I wouldn’t get in until my last sentence.”
“Did you tell the parole board that the prison won’t let you into the program yet?”
“Yeah. They said the prison must have misinterpreted my sentence structure.”
“So, no program until you’ve been paroled, but no parole until you’ve done the program? What a mess.”
Later that day Frank and I sat down to review his legal papers. He had two consecutive sentences: a 3 ½ to 7, and a 10 to 20. He did a year in county jail on the shorter sentence. But, when he got to prison, they started his 10 to 20. Now he was almost to the minimum on that one. He still had 2 ½ years left on the first sentence. It was confusing.
“Besides the parole issue, you have another problem, Frank,” I said. “It’s not legal for them to make you serve a prison term in installments. Once you started that first sentence it should have run until it was done. You need a lawyer.”
I knew he couldn’t afford one.
“Could you help me write up something for the court?” he asked.
I hesitated. “I’ll consider it. First, see if you can get into the program.”
I thought about asking the court to fix Frank’s sentence structure. That was the legal issue here. But if the court agreed, then someone would have to recalculate when the first sentence ended and when the 10 to 20 started. I didn’t know who would do that. The prison? The parole board? I saw lots of possibilities for mistakes. Frank had never been “paroled” out of the first sentence. Someone could say he did all seven years and maxed it out before starting the next sentence. That would be a disaster.
The bigger problem I saw was telling the judge he messed up when he imposed Frank’s sentences. I didn’t think a judge would look kindly on a convicted sex offender correcting him in matters of law. We needed that judge on our side.
I decided a better plan was to point the finger at the parole board - show the judge the absurdity of refusing to parole Frank based upon his not completing a program the prison hadn’t made available to him. Judges like to fix other people’s screw ups. But a judge won't order the parole board to parole a prisoner - separation of powers, and all that. We had to figure out some other way around it.
The next day Frank told me some good news. The program director was upset when she heard of the parole board’s decision. She agreed to let Frank into the program immediately.
“Frank, I think we should just tell the judge about the parole board’s unfairness and ask him to take things out of their hands by suspending what’s left of that shorter sentence.”
“Do you think he will do that?” Frank asked.
“I don’t know, but judges suspend sentences all the time and it’s the easiest way to fix the problem and get you out of here. If that doesn’t work, we’ll have to challenge the legality of splitting your first sentence. You’ll win that challenge, but the final outcome is riskier.”
“Okay. Let’s try it this way,” said Frank.
I remember the day several months later when Frank heard he had legal mail. His smile told it all. The judge had suspended his sentence as we had asked. The end was in sight. We celebrated the victory with a cup of Christmas package coffee saved for just such an occasion.