Creation of the Board of Pardons and Parole
The origins of the Board of Pardons can be traced to the 1889 Montana Constitution. Article VII, Section 9, of the constitution authorized the Governor to grant pardons, remit fines and forfeitures, and commute punishments subject to the approval of a Board of Pardons. The constitution directed the Legislature to provide for the appointment, composition, powers, and duties of the Board. In 1891, the Legislature determined that the Board of Pardons would be composed of three elected state officials: the Secretary of State, Attorney General, and State Auditor (L. 1891, pp. 191-195). The duties assigned to the Board were limited to advising the Governor when he chose to exercise his constitutional power to grant an absolute or conditional pardon, remit a fine or forfeiture, or commute a punishment. If the Governor wished to take such action, the Board scheduled a hearing, solicited testimony during the hearing from parties supporting or opposing the Governor's action, and then recommended to the Governor whether a pardon should be granted, a fine or forfeiture remitted, or a punishment commuted. The 1891 Board had no parole responsibilities.
Parole by the Board of Prison Commissioners (1907)
Sixteen years later, the Legislature provided for the parole of prisoners (Ch. 95, L. 1907). The 1907 legislation authorized the State Board of Prison Commissioners, consisting of the Governor, Secretary of State, and Attorney General, to parole an inmate of the Montana State Prison (MSP) subject to the following restrictions:
An inmate could not be paroled if the inmate previously had been convicted of a felony other than the one for which the inmate currently was imprisoned.
An inmate serving a time sentence could not be paroled until the inmate had served at least one-half of the inmate's full term, "not reckoning his good time", except that an inmate serving a time sentence could be paroled after serving 122 years.
An inmate serving a life sentence could not be paroled until the inmate had served 25 years "less the diminution which would have been allowed for good conduct had the inmate's sentence been for 25 years." Additionally, the parole had to receive unanimous approval from the Board.
The law further provided that the parolee remained under the legal custody of the State Board of Prison Commissioners and could be returned to prison "either for breach of the conditions of (the) parole or otherwise." A parolee was required to report in writing to the Board at least every three months.
Parole and Executive Clemency Functions Merged (1955)
For the next 48 years, a dual board system existed. The Board of Pardons reviewed Executive Clemency matters, while the State Board of Prison Commissioners handled paroles. In 1955, however, the functions of the two boards were combined and assigned to a reconstituted Board of Pardons and Parole (Ch. 153, L. 1955). The Board consisted of three members appointed by the Governor with the advice and consent of the Senate. Members served staggered six-year terms.
In addition to administering the laws governing parole and Executive Clemency, the Board was charged with supervising probations and suspended sentences. The 1955 legislation authorized the Board to appoint a State Director of Probation and Parole. The director, in turn, was authorized to appoint an assistant director and other necessary employees. All officers and employees served at the Board's pleasure.
The 1955 legislation, in addition to reconstituting the Board and defining its functions, revised the provisions concerning parole eligibility. The law required the Board to release on parole any inmate, except a person under a death sentence, when in the Board's opinion, "there (was) reasonable probability that the prisoner (could) be released without detriment to him/herself or to the community", subject to the following restrictions:
No inmate serving a time sentence could be paroled until the inmate had served at least one-quarter of the inmate's full term, less good time; however, any inmate serving a time sentence may be paroled after serving 122 years.
No inmate serving a life sentence could be paroled until the inmate had served 25 years, less good time.
No changes were made to the 1955 law for the next 16 years. Then, in the 1970's, 80's, and 90's, a series of revisions were enacted.
Board Transferred to Department of Institutions (1971)
Under the 1971 Executive Reorganization Act, the Board of Pardons and Parole was transferred to the Department of Institutions (now called the Department of Corrections) for administrative purposes only. In addition, the position of State Director of Probation and Parole was renamed the Administrator of Probation and Parole (Ch. 272, L. 1971).
Qualifications for Board Members/Probation and Parole Functions Placed in Department (1975)
In 1975, the Legislature established statutory qualifications for members of the Board of Pardons and Parole (Ch. 333, L. 1975). Additionally, the Legislature abolished the position of Administrator of Probation and Parole and transferred responsibility for probation and parole field services from the Board to the Department of Institutions.
Persistent Felony Offender Designation Created (1975)
Also in 1975, the Legislature required sentencing courts to designate certain individuals as persistent felony offenders for parole eligibility purposes. To be designated as a persistent felony offender, the following conditions must have existed at the time of sentencing:
- the offender had been previously convicted of a felony and the present offense was a second felony committed on a different occasion than the first;
- the previous felony conviction was for an offense for which a sentence to a term of imprisonment in excess of one year could have been imposed;
- less than five years had elapsed between the commission of the present offense and the offender's release on parole or otherwise from prison; and
- the offender was more than 18 years old when the offender committed the present offense.
The 1975 law provided that a persistent felony offender could not be paroled until the offender served at least one-third of the offender's full term, less good time, or until the offender had served 17 1/2 years, whichever occurred first. (An inmate not designated as a persistent felony offender was parole-eligible after serving one-quarter of the inmate's term, less good time, or after serving 12 1/2 years, whichever occurred first). The law also increased the amount of time that an inmate with a life sentence must serve before becoming eligible for parole from 25 years to 30 years. This does not reflect current law.
Non-dangerous Offender Designation Created (1977)
Two years after enactment, the 1977 Legislature repealed the persistent felony offender law and created a new designation called "non-dangerous offender" for parole eligibility purposes (Ch. 340, L. 1977). (The criteria for designating an offender as non-dangerous are discussed in Section III). The 1977 law provided that a person designated as a non-dangerous offender could be paroled after serving one-quarter of the offender's full term, less good time; a person without this designation was parole-eligible after completing one-half of the offender's term, less good time. The law also provided that if a prisoner was sentenced for an offense committed while incarcerated at the state prison or while released on parole or under the prisoner furlough program, the new sentence would run consecutively with the remainder of the original sentence. This does not reflect current law.
Ineligible-for-Parole Restriction Authorized (1977)
Also in 1977, the Legislature permitted district judges to sentence felony offenders to imprisonment with no possibility of parole or participation in the prisoner furlough program (Ch. 580, L. 1977). This restriction could be imposed if the judge sentenced a felon to imprisonment in the state prison for a term exceeding one year. A judge imposing the restriction was required to state in writing his reason for doing so.
Auxiliary Board Member Added (1979)
An auxiliary member was added to the Board of Pardons and Parole in 1979 (Ch. 574, L. 1979). This member was required to attend meetings that a regular Board member could not attend. At these meetings, the auxiliary member had all the rights and responsibilities of a regular Board member.
The basic structure of the Board of Pardons and Parole is defined in 2-15-2302, MCA. The Board is composed of three members and one auxiliary member appointed by the Governor with the advice and consent of the Senate. The auxiliary member attends meetings that a regular Board member is unable to attend. Members now serve four-year terms and may be removed from office by the Governor for cause only.
Change in Montana Code Annotated Section 46-23-201 (1989)
The 1989 Legislature amended the parole statute and changed the word "shall" to "may". This was effective on March 20, 1989. It is significant in that all crimes committed after this date fall under the new statute and eliminated "liberty interest" in parole (Board of Pardons and Parole vs. Allen).
Change in Montana Code Annotated Section 53-30-105 (1993)
The 1993 Legislature amended the good time allowance statute. This was effective July 1, 1993. It provides for the awarding of additional good time credits allowing an inmate to be parole eligible. It also provides 180 days of additional good time credits for an inmate to discharge. The awarding of additional good time credits does not change the Parole Board's rules or regulations. This statute is also controlled by the Department of Corrections' Administrative Rules.
Change in Montana Code Annotated Section 46-23-201 (1995)
The 1995 Legislature eliminated good time for the purposes of parole eligibility. Unless the court otherwise orders, all inmates will serve 25% of their sentence prior to becoming parole eligible. The Legislature also eliminated the provision that requires parole appearance on a time sentence after 172 years and required 30 years to be served on a life sentence. Additionally, the 1995 Legislature eliminated the 120-day early consideration and non-dangerous/dangerous designation. This applies to crimes committed on or after April 13, 1995.
Creation of a Sentencing Commission (1995)
The 1995 Legislature created a sentencing commission, which includes a Board of Pardons and Parole member, to review sentencing practices. The commission will make recommendations to the 55th Legislature (1997) regarding modifications of sentencing and correctional statutes, the continuation of the commission, and the impact of good time and sentencing guidelines on the criminal justice system.
Change in Conditions of Parole (1999)
The 1997 Legislature changed the requirements of 46-23-215 in that the new statute requires that a prisoner may not be paroled until he/she provides a biological sample (DNA) if the prisoner has not already done so if he/she was convicted of or was found to be guilty of a sexual offense or violent offense as defined in 46-23-502. This law was to apply retroactively to March 27, 1995.
Changes in Sentences to be handed down (1999)
The 1997 Legislature provided that under 46-18-201 A district court may commit an offender to the Department of Corrections for placement in an appropriate facility; however all but the first 5 years of the commitment to the DOC must be suspended.
Amendments to the Parole violation statutes (1999)
The 1997 legislature amended 46-23-1023 in that a parole officer is now authorized to grant oral authorization to arrest an alleged parole violator and place that person in detention for 12 hours prior to delivering a written statement setting forth that the parolee has in the judgment of the parole officer, violated the conditions of the parolee's release. Also amended was 46-23-1024. Initial hearing after arrest in that a parolee must be afforded an on-site hearing in case of violation within a reasonable time unless the parolee has been charged in any court with a violation of the law.
Changes in Montana Code Annotated (1999)
The 1999 Legislature clarified the procedure for the dissemination of Board records and materials. The Board may not withhold from public scrutiny any more information than is required to protect an individual privacy interest or a safety interest. The Board may charge a fee for copying and inspecting materials.
Changes in Montana Code Annotated (2003)
The 2003 Legislature changed the make-up of the Board. This added 2 Auxiliary members and changed the hearings to hearings panels. The board shall appoint hearing panels to conduct parole hearings and to issue a final decision concerning parole. If the two board members of the hearing panel are unable to reach a unanimous decision, the presiding officer of the board shall convene a panel of three board members as soon as is practicable to rehear the case. The hearing panels have the full authority and power of the board to order the denial, grant, or revocation of parole.
Changes in Montana Code Annotated (2003)
The 2003 Legislature authorized the Board to mandate training for Board members annually in the area of American Indian culture and problems. The legislature finds that American Indians incarcerated in state prisons constitute a disproportionate percentage of the total inmate population when compared to the American Indian population percentage of the total state population. The training of board members regarding American Indian culture and problems is necessary in order for the board to deal appropriately with American Indian inmates appearing before the board.
Changes in Montana Code Annotated (2007)
The 2007 Legislature made changes to the Medical Parole Laws MCA Section 46-23-210. Basically is allows the Department of Corrections to forward for Medical Parole consideration for persons confined to the State Prisons or under the jurisdiction of the Montana Board of Pardons and Parole when they meet guidelines delineated in the new law. This law is available on this website as a link.
Changes in Montana Code Annotated (2011)
The 2011 Legislature made changes to locations at which the Board conducted parole hearings. The Board may release on non medical parole by appropriate order any person who is confined at a youth correctional facility and is sentenced as an adult, the Montana Developmental Center, or the Montana Mental Health Nursing Care Center. The 2011 Legislature eliminated the "auxiliary member" designation. Instead of the previous three members an four auxiliary members, the Board consists of seven members. The Board chair or designee, in consultation with the members, shall appoint hearing panels, request out of state releasing authorities to conduct hearings, and presiding officers to conduct hearings and issue final decisions and recommendations in matters of parole and executive clemency. The Board chair will appoint a third member to consider all pertinent information and render a final decision if two board members of the hearing panel are unable to reach a unanimous decision. The 2011 Legislature also changed the maximum time on a parole denial review from eight years to six years.