A sentence of confinement is not always final. A service member in confinement due to a court-martial conviction can request special clemency or parole from the appropriate military authority. If granted, the service member can be released early before serving the total amount of confinement adjudged at court-martial.
MJA has successfully petitioned for clemency or parole on behalf of service members convicted of some of the most serious offenses under the UCMJ. If you have a loved one serving a substantial sentence of confinement due to a court-martial conviction, don’t delay in seeking legal advice. Contact our military defense lawyers now to learn more.
CLEMENCY FROM CONVENING AUTHORITY
When seeking to reduce a sentence to confinement, a convicted service member’s first line of attack is to seek clemency from the convening authority. Rule for Court-Martial (R.C.M.) 1109 allows a convening authority to reduce, commute, or suspend, in whole or in part, certain punishments and even set aside or disapprove certain convictions. This authority is greatly limited, however, depending on the specific charge and the severity of the punishment. For example, a convening authority cannot set aside, disapprove, or take any other action on the findings of a court-martial for a violation of Article 120(a) or (b).
ABOUT CLEMENCY AND PAROLE BOARDS
Even after the convening authority has taken final action on the case, the military’s clemency and parole boards have the authority to reduce sentences of confinement awarded to service members at court-martial or grant parole. Clemency means suspending the unserved part of a court-martial sentence, to include upgrading a discharge or restoring someone to active duty. Parole is an early release from confinement under the supervision of a parole officer. There are three clemency and parole boards for the military:
- Air Force Clemency and Parole Board
- Army Clemency and Parole Board
- Naval Clemency and Parole Board (reviews cases for Navy, Marine Corps, and Coast Guard)
The boards are composed of five member panels that review case specific requests for clemency and parole based on objective criteria.
The goal of any clemency and parole program is to help ensure justice by balancing competing needs. For example, the Naval Clemency and Parole Board lists its objectives as:
- Preservation of good order and discipline;
- Preservation of equality in the administration of justice, including elimination of severe sentence disparity by the remission, mitigation, or suspension of the disparate portion of the sentence; and
- Protection of the best interests of the naval service, the individual offender, the victim, and society.
These policy objectives can be satisfied when boards conduct impartial and individual reviews of cases and make recommendations based on specific facts and circumstances.
ELIGIBILITY FOR CLEMENCY AND PAROLE
DoDI 1325.07, Administration of Military Correctional Facilities and Clemency and Parole Authority, prescribes the procedures to carry out operation of the military’s correctional programs and the administration of military clemency and parole programs.
Under the instruction, a prisoner is eligible for clemency, restoration to duty, or reenlistment when the court-martial convening authority has taken action on the sentence; the case has been reviewed by a military confinement facility, disposition board, or probation official; and the prisoner meet the eligibility criteria. The eligibility criteria for clemency, restoration to duty, or reenlistment is complicated and spelled out in detail in DoDI 1325.07.
A prisoner is eligible for release on parole when requested by the prisoner, and when:
- The prisoner has an approved unsuspended punitive discharge or dismissal or an approved administrative discharge or retirement; and
- The unsuspended sentence or aggregate sentence to confinement is 12 months or more. In cases in which the sentence to confinement is less than 30 years, the prisoner must have served one-third of the term of confinement, but in no case less than 6 months.
Just because a prisoner is eligible for clemency or parole does not mean that it will be awarded. Decisions about clemency, parole, or *mandatory supervised release (MSR) are highly fact dependent and are made on a case-by-case basis.
(*MSR is similar to parole and is a type of conditional release that may be imposed by a Clemency and Parole Board. MSR is when a prisoner is released from confinement at the established Minimum Release Date (MRD). MSR can’t be requested by the prisoner and is always directed by the Board. In contrast, parole is when a prisoner is released from confinement before the established MRD).
FACTORS CONSIDERED BY THE CLEMENCY AND PAROLE BOARDS
DoDI 1325.07 requires military Clemency and Parole Boards to evaluate the following factors when considering an individual for clemency or parole :
- The nature and the circumstances of the prisoner’s offenses;
- The prisoner’s military and civilian history;
- The prisoner’s confinement file, including offense-related rehabilitation programs;
- The personal characteristics of the prisoner, including age, education, marital and family status, and psychological profile;
- The impact of the prisoner’s offense on the victim and the prisoner’s efforts to make restitution to the victim;
- The protection and welfare of society;
- The need for good order and discipline in the Service; and
- Other matters, as appropriate
While these are general factors, the Clemency and Parole Boards are required to make impartial, case-specific determinations based on a convicted service member’s personal facts and circumstances.
CLEMENCY AND PAROLE BOARD HEARING
Prior to the board hearing, all board members are required to have reviewed the case. Recommendations and determinations will be made by a majority vote. At the discretion of any member of the Board, a minority opinion may be included with its decision and/or recommendation.
Clemency and Parole Board proceedings are non-adversarial and prisoners are not authorized to make a personal appearance before the Board. Others, including family members, friends, professional colleagues, or attorneys who are designated in writing by the prisoner, may appear on behalf of the prisoner at no expense to the government.
In addition to personal appearances made on behalf of a prisoner, victims, victim’s families, and representatives may also appear to present information concerning the impact of the offenses on the victim or the victim’s family. The Clemency and Parole Board retains the authority to determine who may be permitted to appear and to limit the time of any presentation before the board.
For parole cases, the Board’s recommendation must include, at a minimum:
- Complete risk factor instrument and complete assessment of information on all Discipline and Adjustment Board convictions or other discipline problems the prisoner has had while in confinement;
- Confirmation and documentation of the prisoner’s parole plan pertaining to residence, employment, and where applicable, restitution to victims or payment of any fine;
- Recommendations of the board concerning prisoner requests and justification for recommendations;
- Information concerning the prisoner’s progress in treatment, custody, or other institutional progress; and
- Any additional information concerning aggravating or mitigating factors that may impact decisions pertaining to the prisoner’s requests.
Numerous issues can adversely impact a prisoner’s chance of getting early release. Examples include poor behavior (conduct) in confinement, lack of participation in rehabilitation programs, poor work performance, and an incomplete parole plan, to name a few. If the prisoner retains an attorney, they attorney can help the prisoner and his/her family prepare the parole plan and put together written matters that will be considered by the board.
In making their decision and recommendations, the Clemency and Parole Boards do not engage in discrimination and cannot consider the prisoner’s race, age, color, religion, gender, sexual orientation, or national origin as a factor in determining the appropriateness of clemency or parole.
With the Department of the Navy, the Clemency and Parole Board’s results are typically provided to the confining facility or parole office within 15 business days from the date the hearing was held. Notably, staff members at the NC&PB are not authorized to disclose any results directly to the offender or other third parties.
The Army and Air Force Clemency and Parole Boards’ processes are similar, with the final decision being returned to the correctional facility within about one to two weeks after the Board hearing.
CLEMENCY OR PAROLE IS POSSIBLE
MJA has successfully petitioned for clemency or parole for service members convicted of some of the most serious offenses under the UCMJ. In one case, MJA represented a dishonorably discharged United States Marine before the Naval Clemency and Parole Board (NC&PB). The Marine had been convicted of violating Articles 92, 114, and 119, UCMJ, and was serving a sentence of 69 months confinement. Despite having an exemplary confinement record, the Marine had petitioned for and was denied parole. The Marine retained MJA to fight for his release. MJA prepared and submitted to the NC&PB an extensive petition showing that the Marine met the criteria for parole and had received a disparately severe sentence under the Department of Defense’s instructions and relevant case law. MJA also appeared telephonically at the board hearing to advocate on behalf of the Marine. After reviewing all the evidence, the NC&PB agreed and approved the Marine’s request for parole!
PETITION FOR YOUR FREEDOM TODAY
A sentence of confinement does not have to be final. MJA has successfully petitioned for clemency or parole on behalf of service members convicted of some of the most serious offenses under the UCMJ. If you have a loved one serving a sentence of confinement due to a court-martial conviction, don’t delay in seeking legal advice. Contact our military defense lawyers now to learn more.
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