BOARD OF PRISON TERMS AND PAROLES ‑- REVOCATION OF PAROLE ‑- PAROLE VIOLATORS ‑- SUSPENSION OF THE RUNNING OF PRISONER'S SENTENCE
Upon return to custody of a parole violator, whose parole had been revoked and who had been a fugitive from justice, the board of prison terms and paroles has the authority to require such person to serve out his unexpired term without credit for time spent as a parole violator.
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January 13, 1955
Honorable Arthur B. Langlie
Governor, State of Washington
Cite as: AGO 55-57 No. 7
Attention !ttJ. B. Gibson
You have by letter requested our opinion upon the following question:
"Does the board of prison terms and paroles, or the governor in the case of an executive parole, have the authority to extend a parolee's maximum expiration date of sentence beyond the maximum term as fixed by the court even though the parole was revoked?"
It is our opinion that your question may be answered in the affirmative.
RCW 9.95.130 provides:
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"From and after the suspension, cancellation, or revocation of the parole of any convicted person and until his return to custody he shall be deemed an escapee and a fugitive from justice and no part of the time during which he is an escapee and fugitive from justice shall be a part of his term."
During this suspended period the escapee is not serving any time to be computed upon his maximum or minimum term.
Both Kansas and Michigan have statutes similar to RCW 9.95.130 in that they treat a parole violator as an escaped convict. Their statutes are more specific in that they make the escaped prisoner liable to serve out his maximum term dated from the time he is declared a parole delinquent.
Under such statutes, the Kansas court has declared in Bates v. Hudspeth et al., 171 Kan. 219, 230 P. (2d) 1006, that:
"It is clear from the above that petitioner is not entitled, as he contends, to credit for all time subsequent to his parole, but only to the time intervening between the parole and its revocation; that as of the date of revocation of parole he owned service to the State of Kansas for one year, six months and eleven days, to be served after he was apprehended and returned on November 4, 1950; that that time has not expired and on that ground he is not entitled to his release."
Under the Michigan statute the court held in Ginivalli v. Frisbie, 336 Mich. 101, 57 N.W. (2d) 457, that:
"* * * the time following the date of petitioner's parole violation became so-called 'dead time', that such 'dead time' ended, after issuance of a warrant for the parole violation, when the [[Orig. Op. Page 3]] authorities had it in their power to place petitioner in actual confinement therefor, in state prison, and that the 'dead time' * * * should not be credited to the remainder of petitioner's sentence."
We believe that the reasoning of these courts applies to the construction of our statute. To hold that an escapee is serving his punishment during the time he is at large would make RCW 9.95.130 a nullity.
Our courts have held that a prisoner under sentence is subject to surveillance for the maximum term, even though he is paroled. Lindsey v. Wash., 301 U.S. 397, 81 L.Ed. 1182, 57 S.Ct. 797. In re Pierce v. Smith, 31 Wn. (2d) 54, 195 P. (2d) 112. Expiration of the maximum term is not a fixed date to be measured from the date of sentence, but by expiration of the maximum term of punishment as imposed by the court. Therefore, if a statute suspends the running of the term it also affects a contemplated expiration date.
Since the parole board retains custody throughout the maximum term it has the discretion upon return to custody of a parole escapee to require him to serve out his maximum term. By the terms of the statute the time spent as an escapee is not a part of his term. This, in effect, changes the expiration date of release but does not alter the maximum term of punishment.
Parenthetically, it would appear that the board of prison terms and paroles should be cognizant of the necessity of taking prompt action to effect the return to custody of parole violators in order to minimize the incidence of "hardship cases."
We hope this analysis will be helpful to you.
Very truly yours,
MICHAEL R. ALFIERI
Assistant Attorney General