Pre-Parole Plan

Prisoners' Rights under Law: Early Release

Two cases decided in the late 1990s pertained to prisons releasing inmates early (pre-parole) to relieve overcrowding; subsequently, however, the prisons revoked their pre-parolees' release statuses. In 1983, the Florida state legislature enacted a series of laws authorizing the awarding of early release credits to prison inmates when the state prison population exceeded predetermined levels. In 1986, Kenneth Lynce received a 22-year prison sentence on a charge of attempted murder. In 1992, he was released based on the determination that he had accumulated five different types of early release credits totaling 5,668 days, including 1,860 days of “provisional credits” awarded as a result of prison overcrowding. Shortly thereafter, the state attorney general issued an opinion interpreting a 1992 statute as having retroactively canceled all provisional credits awarded to inmates convicted of murder and attempted murder. Lynce was rearrested and returned to custody. He filed a habeas corpus petition alleging that the retroactive cancellation of provisional credits violated the ex post facto (“from a thing done afterward”) clause of the Constitution. The Supreme Court agreed with him, in Lynce v. Mathis (519 U.S. 433, 1997).

The second case concerned Oklahoma's Pre-Parole Conditional Supervision Program, which took effect whenever the state's prisons became overcrowded; this program could authorize the conditional release of prisoners before their sentences expired. An inmate was eligible for pre-parole after serving only 15 percent of a sentence and was eligible for parole after one third of the sentence had elapsed. Inmate Ernest Harper was released under the pre-parole program. After he spent five apparently uneventful (law-abiding) months outside prison, the governor of Oklahoma revoked his pre-parole and returned him to prison on less than five hours' notice. Harper claimed that his reincarceration deprived him of liberty without due process, in violation of the Fourteenth Amendment. The corrections department argued that a hearing was not necessary to transfer a prisoner from a low-security prison to a higher-security one and that was what they had done. The Tenth Circuit Court of Appeals, however, held that the pre-parole program was sufficiently like formal parole, and a program participant was entitled to procedural protections. In Leroy L. Young v. Ernest Eugene Harper (65 LW 4197, 1997), the Supreme Court upheld the decision of the Tenth Circuit Court. It ruled that Oklahoma had violated Harper's due process rights by revoking his pre-parole without a hearing to set forth the allegations that he had not met the conditions of the program.

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