Rules of the Delaware Board of Parole
AUTHORITY AND POWERS: Pursuant to 11 Del. C. §4343, the Delaware Board of Parole (the Board) is the paroling authority for the State, with responsibilities for deciding parole release, parole revocation and parole supervision level and recommending commutation of sentence to the Board of Pardons. Furthermore, all offenders released upon merit or good behavior credits are considered on conditional release until the expiration of the maximum term(s) for which they are sentenced. All such offenders are subject to return before the Board of Parole as violators of parole or mandatory release and, pursuant to 11 Del. C. §4352, may be returned by the Board to prison to serve the unexpired portion of the term under which they were released.
ABOLITION OF PAROLE: Pursuant to the Truth-In-Sentencing Act of 1989, parole was abolished for all offenses committed June 30, 1990, or thereafter. In all cases sentenced under this statute, wherein the Court imposes an aggregate sentence to Level V (incarceration) in excess of one (1) year, the Board, upon receipt of an application for sentence modification from the Department of Correction, shall hold a hearing for the purpose of providing the sentencing judge with a recommendation. This hearing shall be conducted consistent with the law and in concert with procedures agreed upon among the Board, the Department and the Court (See Sentence Modification) .
MEETINGS: It is the practice of the Board to meet on an average of three (3) times per month to conduct the business of the Board. The Board may meet more or less frequently, depending upon caseload demands and fiscal constraints. In no event, however, will the Board meet less than once per month, pursuant to 11 Del. C. §4343(4).
APPLICATION: Pursuant to 11 Del. C. §4347(a), an offender committed to the custody of the Department who will be eligible for parole within 180 days may apply for a parole hearing on forms promulgated by the Board. Upon receipt of such application, the Board shall notify the Bureau Chief of Adult Correction of the application and request verification of parole eligibility and, if eligible, 6 copies of a progress report containing a carefully evaluated parole plan with recommendations within 30 days. Upon receipt of the report, the Board shall determine within 30 days if a parole hearing will be scheduled. If the hearing is denied or if the hearing is held and parole denied the applicant and the Department shall be advised in writing by the Board of the earliest date, not sooner than 6 months for an applicant with a good-time release date of 3 years or less and not sooner than 1 year for an applicant with a good-time release date of more than 3 years, upon which the applicant shall be eligible to again apply for a parole hearing in accordance within this section.
ELIGIBILITY: Pursuant to 11 Del. C. §4346, the Board may release an offender on parole after one-third of the term imposed by the Court has been served, such term to be reduced by such merit and good behavior credits as have been earned, or one hundred and twenty (120) days, whichever is greater if, in the Board's discretion, the Board is satisfied that reasonable probability exists that the offender can be released without detriment to the community or to him/her self; and, in the opinion of the Board, parole supervision would be in the best interest of society and an aid to rehabilitation of the offender as a law-abiding citizen.
However, the Board has no duty to consider any offender eligible for parole who has not made an application for parole. Furthermore, the Board has no obligation to allow an offender eligible for parole to appear before it, even if the offender has applied for parole, and the Department has filed a report recommending parole (11 Del. C. §4347(e)).
EARLY PAROLE: Upon written recommendation of the Department or the Court, the Board may reduce the minimum term which must be served before parole eligibility. Cases for early parole consideration may be scheduled initially as a non-appearance Early Parole Review. In accordance with 11 Del. C. §4346(b), the order of reduction of minimum term of eligibility by the Board shall be made in an open hearing. Reductions may be requested for, but not limited to, reasons of exceptional rehabilitation and/or treatment considerations.
MEDICAL PAROLE: Pursuant to 11 Del. C. §4346(e), the Board may consider medical parole in cases where the Department cannot furnish essential treatment for an offender's physical or mental condition. Documentation from the Department must include verification of the existence of a physical or mental condition that cannot be treated by the Department or its contractor; and the acceptance of the offender for appropriate treatment by an institution wherein treatment has been arranged.
The Board, in its discretion, may impose any conditions of parole and/or may revoke a medical parole without a hearing at any time for any cause and order the return of the offender to the Department.
MENTAL HEALTH EVALUATIONS: Pursuant to 11 Del. C. §4353(a), no offender who has been convicted of and imprisoned for any Class A felony, felony sex offense or any felony wherein death or assault to a victim occurred shall be released from incarceration by the Board until the Board has considered a mental health evaluation of the offender. The Board, in its discretion, may request mental health evaluations on offenders convicted and imprisoned for any offense not enumerated above. Pursuant to the statute, mental health evaluations shall include information about the person's functioning in the prison or institutional setting.
SCHEDULING AND NOTIFICATION: Upon receipt of reports and other supporting documents from the Department, a hearing may be scheduled before the Board. In scheduling cases, the Board staff:
Determines, within 30 days, a tentative date for the hearing and the institution or other location where the hearing will take place.
Notifies, approximately 45 days before the tentative date, the appropriate institutional authorities of the tentative hearing date.
Distributes, approximately 7 days before the tentative date, all pertinent information to each member of the Board.
Notifies witnesses, victims (See Victim Input), the Department of Justice and the News Journal of the place, date and time of the hearing at least 30 days before the hearing date.
Notifies the Bureau of Community Custody, the Office of the Public Defender and the offender's private counsel on record of the place, date and time of the hearing.
Pursuant to 11 Del. C. §4347(l), notices of Board decisions are sent to the victims and the Department of Justice at the same time notice is sent to the inmate. Notices of hearings resulting in parole are sent to the news media within ten (10) days of the hearing.
VICTIM INPUT: Pursuant to 11 Del. C. §9416 (Victims' Bill of Rights), the Board, in consideration of victim impact at parole hearing, has the responsibility to inform the victim in writing of:
the right of the victim to address the Board in writing or in person; and
the decision of the Board.
Pursuant to 11 Del. C. §4347(k), the Board has the responsibility to notify the victim at least 30 days prior to a scheduled parole hearing for an inmate convicted of a felony offense. Because the Attorney General has on file the names and addresses of the victims of the particular offender appearing before the Board of Parole, the Board of Parole may request victim information from the Attorney General or request that the Attorney General notify the victim in cases where this information is not on file in the Board of Parole.
At the time of notification, victims are provided with options for input prior to the hearing. Pursuant to 11 Del. C. §4350(a), victims or their representatives shall have priority in making statements before the Board. The decision of the Board will be sent to the victim, unless the victim has not provided his/her address or has requested no notification. With respect to offenders sentenced for Murder, Manslaughter or Vehicular Homicide, the immediate family of the victim will be considered the victim.
CONDUCT OF HEARINGS: Pursuant to 11 Del. C. §4350(a), the Board has adopted the following rules for hearing oral statements or arguments by persons not connected with the Department of Correction when hearing applications for parole:
(These rules also apply to hearings for sentence modification and sentence commutation consideration):
Individuals wishing to offer presentations to the Board in support or in opposition to an offender's application for parole must provide documentation of the reason for attending in advance of the hearing. The presentations in support must be relevant to the issue of rehabilitation. This rule with respect to advance notice may be suspended upon the majority vote of the Board members present.
Any individual's statement must not exceed 5 minutes, unless the Board agrees in advance to extend the presentation time. Groups are expected to identify a spokesperson.
The Board restricts the number of individuals attending hearings as follows: For the offender, 5 persons plus the offender's attorney(s); in opposition, 5 persons plus representative(s) of the State. Employees of the Department of Correction are not included in this restriction. The Board can waive this requirement upon majority vote of the Board members present if written documentation of good cause for the presence of additional persons is presented to the Board at least 1 week before the hearing.
The Board reserves the right to deny admission or continued attendance to individuals who threaten or present a danger to attendees or participants or who disrupt the hearing.
Individuals wishing to present information to the Board should notify the office of the Board at least 1 week prior to the hearing to arrange to be heard or for submission of their information. The Board will accept written statements from any individual having an interest in any application.
CLOSED PROCEEDINGS: The Board, in its discretion, may take formal action to close proceedings upon a majority vote of members present for the following reasons:
to protect ongoing law enforcement investigations, upon written request of the Attorney General or law enforcement agency;
to deliberate upon oral or written arguments received;
to provide opportunity for applicants to challenge confidential information which they believe is detrimental to their application; and
at the request of the victim or the immediate family of the victim.
With respect to (c), an applicant must be able to provide a factual basis for challenging confidential information before the Board would consider closing its proceedings for this purpose.
QUORUM: A minimum of three (3) Board members must be present and voting in order to conduct a hearing. At least four (4) of the Board's five (5) members must have voted favorably in granting parole to offenders convicted of murder, rape, unlawful sexual intercourse 1st and 2nd degree, kidnapping and offenses related to sale or delivery of a narcotic drug.
RECUSE POLICY: If a majority of the Board concludes that a particular Board member has a potential conflict of interest due to a personal connection with an offender or the case, then the particular Board member will withdraw from hearing the offender's case. In addition, a particular Board member may voluntarily withdraw him/herself from consideration of an offender's case if he/she perceives a potential conflict of interest.
PAROLE DENIAL DECISIONS: When the Board has denied parole, the offender will be advised in writing of the reasons for the denial. The Board will send written notification within a reasonable period of time. If the offender is eligible for a rehearing, the Board will provide the earliest date on which the offender can apply for the rehearing, in accordance with 11 Del. C. §4347(a), or, at the discretion of the Board, order that no further consideration be given.
EARLY REHEARING/REHEARING REQUEST: The Board may consider establishing an early rehearing date, or a hearing date in cases where the Board had ordered no rehearing, consistent with the requirements of 11 Del. C. §4347(a), for reasons including but not limited to, exceptional rehabilitation and/or treatment considerations or upon receipt of compelling documentation that the reasons for denial or revocation have been addressed in an exceptional manner.
PAROLE BOARD DECISION REVIEW: The Board may review any Board decision upon receipt of information of substantial significance not available on the date of the hearing that could have influenced the decision. A request for review must be submitted in writing, with supporting documentation, by the offender or the offender's attorney and the Department of Correction within 30 days of the Board's decision or within 30 days of knowledge of the new significant information.
The Department may submit a request for review in the absence of an offender's request.
PAROLE RESCISSION: The Department shall notify the Board in writing whenever:
the Board has established pre-parole conditions and those conditions are alleged to have been violated and/or the conditions have not been completed.
whenever upon reaching the effective date of parole additional Level V time has been given or serious institutional rules infractions have occurred.
Upon receipt of the above-noted information, the Board will schedule the offender for a rescission hearing. If the offender is on escape status, the hearing will be scheduled as a non-appearance. The Board will rescind all orders authorizing the Department to release the offender on parole upon completion of pre-parole conditions in cases where the offender has failed to meet pre-parole conditions. The Board may, however, if sufficient good cause is presented, amend the original order or issue a new order.
ISSUANCE AND EXECUTION OF WARRANTS AND RE-COMMITMENT:The Board will issue a warrant for the arrest and detention of any parolee or releasee whenever evidence is produced to indicate that probable cause exists to believe conditions of release have been seriously breached or that detention is required to prevent injury to the public or to interrupt a serious continuing violation of release conditions, or to assure the presence of the releasee at a preliminary hearing and/or revocation hearing. Pursuant to 11 Del. C. §4352, if the individual is arrested by the Parole Officer on an emergency (handwritten) warrant, the Department shall immediately notify the Board and submit a report outlining the conditions alleged to have been violated.
REVOCATION HEARINGS: The Board's standards pertaining to hearings for revocation of parole or mandatory release are adopted from those prescribed by the 1972 Supreme Court decision on Morrisey v. Brewer. Essentially, the Court prescribed two hearings--the preliminary and revocation (or final) hearings--in cases where the offender has been alleged to have committed a "technical" violation of the conditions of release. In cases where the offender has been already convicted, a preliminary hearing is not held.
Preliminary Hearing: In accordance with procedures adopted by the Department, a preliminary hearing should be held within approximately ten (10) working days after the Hearing Officer receives the violation report to determine whether probable cause exists to conclude that the offender has violated the conditions of release on "technical" grounds. The offender, however, has the right to waive this hearing.
Final Revocation Hearing: The final revocation hearing is an informal process structured to assure that the findings of a parole hearing will be based on facts and that the decision will be based upon an accurate knowledge of the parolee's behavior (Morrisey v. Brewer). The Board will attempt to conduct the final revocation hearing within two (2) months of receipt of the report alleging a new conviction or two (2) months of receipt of the results of the preliminary hearing alleging a "technical" violation, whichever is relevant. The offender is entitled to rights as follows:
advanced written notice of the time and place of the hearing, and of specific parole violations;
a written copy of charges;
presence of counsel of choice or to have counsel appointed;
an opportunity to be heard in person and to present evidence and/or witnesses and for a limited right to cross-examine witnesses;
a timely, written decision
The testimony of witnesses must be relevant to the alleged violation and not cumulative. If there is any question about the nature of the testimony, the Board may require a written summary before the hearing. The written summary shall state how the testimony is relevant to the alleged violation. The offender has the right to confront and cross-examine adverse witnesses unless there is good cause (e.g., risk of harm to the witness) for not allowing this confrontation. At the request of the offender, the Board will postpone the hearing until the offender can have counsel present.
CONDITIONS OF SUPERVISION: The Board of Parole may, at any time, add special conditions to an offender's release. Generally, special conditions relate to the offender's offense pattern and the possibility of further serious law violations. The ffender, through the supervising officer, may present his/her views to the Board with respect to these special conditions. Likewise, the offender, through the supervising officer, or the supervising officer may request that special conditions be amended.
DISCHARGE: Pursuant to 11 Del. C. §4347(i), whenever a parolee or releasee has performed the obligations of release and reintegration into the community is no longer being assisted, the offender may be recommended for discharge or for relief from active supervision. Offenders with a Life parole may be considered for discharge after successfully completing 6 years at Level 2. All other offenders may be considered after successfully completing 50% of the sentence at Levels 2 or 1 or 6 years at Levels 2 or 1, whichever is less. The Board may sign a final order of discharge and issue a certificate of discharge prior to the maximum expiration date of the sentence if the Board is satisfied that the final release is not incompatible with the best interest of society and the welfare of the offender. No order of discharge, however, shall be made within one (1) year after the date of release from incarceration except when the sentence expires earlier or when the offender's supervision is transferred from parole to probation.
SENTENCE MODIFICATION: Pursuant to 11 Del. C. §4217, with respect to sentences imposed under the Truth-In-Sentencing Act of 1989 (i.e., crimes committed June 30, 1990, or thereafter), the Department may file an application for sentence modification for "good cause shown which certifies that the release of the offender shall not constitute a substantial risk to the community or himself." Upon receipt of the Department's application showing "good cause," the Board will schedule and hold a hearing for the purpose of deciding the appropriate recommendation to the sentencing judge or to reject the application, if the Board determines that the offender constitutes a substantial risk to the community or determines that the application is not based on good cause. No offender sentenced for a Title 11 violent felony shall be eligible until at least 1/2 of the sentence has been served; no offender serving a Title 11 Mandatory term will be eligible during the mandatory portion of the sentence.
COMMUTATION OF SENTENCE: The Board shall serve as an advisory board to the Board of Pardons on those cases in which the Board of Pardons has requested such advice. Pursuant to 11 Del. C. §4363, the Board is required to address the offender's state of rehabilitation in providing its recommendation to the Board of Pardons.
CONFIDENTIALITY: Delaware law provides that the Board's records are privileged and are not to be disclosed. Pursuant to 11 Del. C. §4322, however, the Court, in its discretion, however, has authority to determine when it is appropriate to permit the inspection of Board records. This discretion will be exercised only when, in the judgment of the Court, the requesting party has a proper interest therein, and when it is in the best interest of the State, or the welfare of a particular offender makes that action desirable or helpful. Therefore, without a court order, only the following information may be provided, upon proper inquiry by any person:
The offense and the sentence.
The sentencing date, including effective date of sentence, parole eligibility date, short-time release date and maximum expiration date.
The date an offender is scheduled for a hearing before the Board.
The disposition on an offender's case--whether approved or denied. If approved, the nature of the approval. If denied, the rehearing date, if a date was granted.
Under no circumstances will there be disclosure of how any member of the Board has voted on any case. Reasons for denial will be communicated only to the offender and Department of Correction officials. In cases wherein the Board makes recommendation to the authority having decision-making jurisdiction (i.e., the Court or Board of Pardons), there will be no disclosure of the Board's recommendation.
VIDEOPHONE: An appearance before the Board of Parole by videophone shall be considered to be a personal appearance (Adopted May 18, 1998).
SEX OFFENDER RISK ASSESSMENT TIER DESIGNATION REVIEW: Pursuant to 11 Del. C. §4122, sex offenders identified under 11 Del. C. §4121 (a) and convicted after July 21, 1996, but before March 1, 1999, will be assigned by the Attorney General to a new Risk Assessment Tier designation. Upon notification of the re-designation by the Attorney General, the offender may request the Board of Parole to review and finally determine the designation. The offender's request for review shall be made in writing and delivered to the Board within 10 days of receipt by the offender of the notice. Within 30 days of receipt of the request, or as soon as practicable thereafter, the Board of Parole shall schedule a hearing, notifying the Attorney General and the offender of the date and their right to be heard. The Board of Parole shall not grant a re-designation unless the sex offender establishes, by a preponderance of evidence, that public safety does not require the original designation. The re-designation request will be granted only upon favorable vote of the majority of the Board members present and voting (Adopted May 20,1999).
COURTESY HEARING: Upon request, the Board will conduct a hearing, consistent with the Board's policies and procedures, for an out-of-state person housed in Delaware's prison system. The requesting authority is to provide specific instructions on criteria to be considered and as to whether a specific recommendation is desired.