Tuesday, January 9, 2001
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Posted on: Tuesday, January 9, 2001

Parole decision appears to be logical, not liberal

On the face of it, a recent Hawaii Intermediate Court of Appeals ruling on a parole case is not so much liberal as it is logical.

The ruling, written by newly appointed Appeals Judge Dan Foley and endorsed by the other two judges on the three-judge appeals panel, said that the Hawaii Paroling Authority cannot set minimum terms for convicted felons equal to the maximum term of the sentence.

As reported by Capitol Bureau writer Lynda Arakawa, a man was sentenced to a term of up to five years. The Paroling Authority set the minimum in that case at the same five years.

Foley’s opinion argued, in effect, that the point of the Paroling Authority is lost if the minimum is the same as the maximum.

In most cases, the authority sets a minimum term some years shorter than the maximum. When that minimum term has been completed, the inmate can apply for parole. Depending on circumstances — including the severity of the crime and the inmate’s progress in prison — the parole may or may not be granted.

The logic behind this procedure is obvious: The inmate has a goal to shoot for — a chance that good behavior and a change in attitude could get him out short of his maximum term. If the minimum is the same as the maximum, that motivation is lost.

Because Foley was involved in numerous civil rights cases while in private practice, there was some concern — expressed during confirmation hearings — that he would take an excessively "liberal" philosophy with him to the bench. While this ruling has a "liberal" impact, it appears to be based more on common sense than anything else.

Nothing in the ruling would force the Paroling Authority to grant parole in any event. It simply creates a window of opportunity for the inmate to make improvements.

The ruling is on appeal. It is possible the Supreme Court will reverse because there is nothing in the law that specifically directs the authority to set a minimum that is different from the maximum.

If that happens, then the law should be changed. The justice system needs to be tough in its fight against crime. But it also must be flexible.

That isn’t the case when minimum means the same as maximum when it comes to sentencing.

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