In Goodman v. Bennett, Steve Goodman, a parole-eligible Link prisoner in Virginia, filed a state lawsuit challenging the constitutionality of certain Parole Board rules as violative of the state separation of power clause, Article III, § 1, of the Constitution of Virginia. Goodman raised the following novel claim:
Whether the Parole Board has the power to investigate or consider the crime, sentence, or criminal record during the parole review process.
At first blush, the answer would seem to be yes: The Parole Board almost always denies parole for crime-related reasons, which the courts say is constitutional, so they must have the power to investigate these crime-related factors. In any regard, the answer must be found within the statutes the Board is charged with enforcing.
In Virginia, the law mandates that the Parole Board “shall” release on parole “eligible [prisoners]” when those persons are found “suitable for parole.” Va. Code § 53.1-136(3)(a). In addition, the General Assembly enacted statutory procedures (Va. Code § 53.1-151 to 53.1-165.1) to govern and control the manner in which the Board exercise’s its discretion. These statutory procedures create a liberty interest for parole-eligible prisoners.
In § 53.1-151, the General Assembly used the crime, sentence, and criminal record, and other crime-related factors to establish parole eligibility criteria. Gaston v. Taylor, 946 F.2d 340, 344 (4th Cir. 1991). The parole-eligibility criteria is self-executing. The Parole Board has no discretion regarding parole eligibility; instead, they have a ministerial duty to apply this criterion correctly. Krawetz v. Murray, 742 F.Supp. 304, 306 (E.D.Va. 1990).
In Va. Code § 53.1-155(A), the General Assembly established a statutory procedure to govern and control the manner, in which the Parole Board reviews eligible prisoners for parole, as it relates to the decision to grant or deny parole. This parole review process consists of two parts: investigation and decision processes. This statutory procedure establishes the following standards, which are required by the Constitution of Virginia, for each of these processes:
PAROLE INVESTIGATION STANDARD
No person shall be released on parole by the Board until a thorough investigation has been made into the prisoner’s history, physical and mental condition and character and his conduct, employment and attitude while in prison. Va. Code § 53.1-155(A), clause 1 (emphasis added).
PAROLE DECISION STANDARD
The Board shall also determine that his release on parole will not be incompatible with the interests of society or of the prisoner. Va. Code § 53.1-155(A), clause 2 (emphasis added).
PAROLE BOARD’S CRIME-RELATED PAROLE DECISION FACTORS
VIOLATE STATE SEPARATION OF POWER CLAUSE
The parole investigation standard limits the scope of the parole investigation to seven (7) factors, and the General Assembly’s use of the terms “prisoner” and “while in prison” further limits the parole investigation to that period of time in which the “prisoner’s…” in prison.” The General Assembly could have included the crime, sentence, criminal record, or any other factor, but they chose not to do so. Instead, they chose to use the crime, sentence, and criminal record to establish parole eligibility criteria in Va. Code § 53.1-151.
The parole decision standard merely defines the nature of the parole decision as a “compatibility” determination; it does not empower the Parole Board to consider any information obtained from any source other than the parole investigation prescribed in the preceding clause.
Based on the foregoing, the Parole Board cannot lawfully deny parole for any crime-related factor because the crime, sentence, and criminal record are beyond the scope of the parole investigation prescribed in Va. Code § 53.1-155(A), clause 1. As such, the Parole Board’s crime-related parole decision factors, set forth in Part I of the Parole Board Policy Manual, violate the state separation of power clause in Article III, §1, of the Constitution of Virginia, and cannot be enforced.
