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Bob Ferguson

AGO 1949 No. 141 -
Attorney General Smith Troy


An officer appointed by the State Board of Prison Terms and Paroles has authority to apprehend and hold in custody, without a warrant or formal order of revocation of parole, a parolee suspected of parole violation.

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                                                                 October 5, 1949

Honorable Ronald R. Hull
Prosecuting Attorney
Yakima County
Yakima, Washington                                                                                                              Cite as:  AGO 49-51 No. 141


Dear Sir:

            We have your letter of September 20, 1949, in which you ask the following question:

            Does an officer appointed by the State Board of Prison Terms and Paroles have authority to apprehend and hold in custody, without a warrant or formal order of revocation of parole, a parolee suspected of parole violation?

                The conclusions reached may be summarized as follows:

                The officer does have such authority.


            We must assume that the "officer" mentioned in your letter is a duly appointed, qualified and acting parole officer, all as provided by section 8, chapter 114, Laws of 1935, as amended by chapter 155, Laws of 1945 (10249-8 Rem. Supp. 1945).  We must further assume that the "parolee" was a person who fell within the provisions of section 4, chapter 114, Laws of 1935, as amended by section 1, chapter 142, Laws of 1939 (Rem. Rev. Stat. Supp. 10249-4), and had been regularly paroled by the Board of Prison Terms and Paroles.

                Section 10249-4, supra, provides in part:

                "The Board of Prison Terms and Paroles may permit a convicted person to leave the buildings and enclosures of the penitentiary or the reformatory, as the case may be, on parole, * * *

             [[Orig. Op. Page 2]]

                "The Board of Prison Terms and Paroles shall have the power to establish rules and regulations under which a convicted person may be allowed to leave the confines of the penitentiary or the reformatory on parole, and shall also have the power to return such person to the confines of the institution from which he or she was paroled, at its discretion.

                "* * *

                "Such forfeiture of credits shall not be had except upon a hearing upon the question of such violation and upon the findings of the Board of Prison Terms and Paroles that such convicted person was guilty thereof, which adjudication shall be final.  At such hearing such convicted person, unless outside the walls of the penitentiary or the reformatory, as the case may be, as an escapee and a fugitive from justice, shall be present and entitled to be heard and present evidence and witnesses in his or her behalf.

                "The written order of the Board of Prison Terms and Paroles, bearing the seal of that body, shall be sufficient warrant for all officers named in this section to take into custody any convicted person who may be on parole and retain such person in his custody until arrangements can be made by the Board of Prison Terms and Paroles for his or her return to the institutions from which he or she was paroled.

                "It is hereby made the duty of all chiefs of police, marshals of cities and villages, sheriffs of counties and all police, prison and peace officers and constables to execute any such order in the same manner as any ordinary criminal process.

                "* * *

                "The Board of Prison Terms and Paroles shall make all necessary rules and regulations to carry out the provisions of this act not inconsistent therewith, and may provide the forms of all documents necessary therefor."

             [[Orig. Op. Page 3]]

            The form of parole used by the board in paroling of inmates has at all times and still does follow the following general pattern, although the actual terms and conditions as set forth in the seventeen separate, numbered paragraphs have been slightly changed, the essential portions being:

                "NOW, THEREFORE, The Board of Prison Terms and Paroles, by virtue of the authority vested in it by the laws of Washington, hereby authorizes the Superintendent of the Washington State Penitentiary to allow said . . . . . . . . , on the . . . . day of . . . . . . ,  19. . , to go upon parole outside the Penitentiary buildings and enclosure, subject to the following conditions:

            "1. !il*,3That the parolee shall be under the legal custody and control of the Chief Parole Officer of the State and the District Parole Officer of the Parolee's district.

            "* * *

            "13. !il*,3That the parolee distinctly understands that no inmate of a penal institution has any right to be released at the expiration of any given time short of his maximum period, and that it is entirely for the Board of Prison Terms and Paroles to decide, in its discretion, when in the interests of the inmate and of society it is best that said parolee should be released upon paroleor returned to the institution.  (Emphasis supplied.)

            "* * *

            "17. !il*,3That the parolee shall abide by all these conditions until a Discharge from Supervision is entered."

The other numbered conditions pertain to specific conditions of the parole not material herein.

            We are informed that at the present time the parolee is obliged to sign a statement which is a part of the parole form and which in substance authorizes the board to return the  [[Orig. Op. Page 4]] parolee to the institution at its discretion and without notice.  At various times in the past such a rule has been in effect.  Such a provision while desirable is not at all necessary.  The prisoner is under no obligation to accept the parole.  If the prisoner regards the terms of the parole as too harsh or in any way unsatisfactory, he is not required to accept the parole.  It is for the prisoner to say whether he will accept the parole under the terms and conditions granted or refuse the same.

            InState ex rel. Linden v. Bunge, 192 Wash. 245, 73 P. (2d) 516, it is said at page 250:

                "The granting of a parole to a prisoner is also a discretionary act.  Parole is not a right, but a privilege to be granted or withheld as sound official discretion may impel."

Also to the same effect see:  Fathers v. Smith, 25 Wn. (2d) 896, 171 P. (2d) 1012;In re Grieve v. Smith, 26 Wn. (2d) 156, 173 P. (2d) 168;In re Bruce Pierce v. Smith, 131 Wash. Dec., p. 49; [[31 Wn.2d 52]]In re Lindsey v. Superior Court, 133 Wash. Dec. 121; [[33 Wn.2d 94]]p. 49;In re Lindsey v. Superior Court, 133 Wash. Dec. 121;Lindsey v. Washington, 301 U.S. 397.  In 39 American Jurisprudence, Pardon, Reprieve and Amnesty, section 91, page 577, in speaking of paroles, it is said:

                "* * * It (the parole) does not wipe out the conviction, but merely suspends its operation by remitting for the time being the confinement at hard labor, until the end of the term or an unconditional pardon is granted; the offender in the meantime is subject to prison discipline and to be taken into custody on violation of any of the conditions, as though the parole had not been granted.  * * *"

            We are not informed that the Board of Prison Terms and Paroles has ever set up any formal system of rules and regulations as they are empowered to do under section 100249-4, supra.  Since the present system of parole was established in 1935 the custom has prevailed for the parole officer to take the parolee into custody whenever he considers that such parolee has been violating his parole in a degree sufficient to justify such taking into custody.  The parole officer then delivers the parolee to a convenient jail or other place for holding the parolee and then makes a complete report to the board.  As soon  [[Orig. Op. Page 5]] as the board has knowledge sufficient to form a decision the board then either orders the parolee returned to the institution from which he was paroled or instructs the parole officer to place the parolee again upon parole, all as the facts may determine.  If the parolee is returned to the institution he is then brought before the board at the institution as speedily as the circumstances may permit where the board hears the evidence against the parolee and hears the parolee's testimony regarding the alleged violation, and then the board renders its decision.  This is the "hearing" which is referred to in the third paragraph of section 10249-4 above quoted.  We believe that the board was justified in adopting this procedure instead of setting up a rather long and complicated set of rules and regulations as provided in section 10249-4,supra.  We further believe that section 10249-4,supra, is sufficiently ambiguous so as to warrant executive construction.  Departmental constructions long established and sufficiently adhered to will not be lightly disregarded by the courts.  State ex rel. Ball v. Rathbun, 144 Wash. 56, 256 Pac. 330; State ex rel. George v. Seattle, 184 Wash. 560, 52 P. (2d) 360;Long v. Thompson, 177 Wash. 296, 31 P. (2d) 908; Goodwin v. Northwestern Mutual Life Insurance Co., 196 Wash. 391; 83 P. (2d) 231; Smith v. Department of Labor and Industries, 8 Wn. (2d) 587, 113 P. (2d) 57;Northern Pacific Railway Co. v. Henneford, 9 Wn. (2d) 18, 113 P. (2d) 545.

            We have not overlooked the fourth paragraph of section 10249-4,supra, above quoted, which provides for the issuance of a written order by the Board of Prison Terms and Paroles.  We believe such provision was a necessary provision to make in the statute in question.  Such an order would act as a protection to any sheriff or other peace officer who arrested the parolee and it would be necessary to have such an order before a parolee outside the state could be returned to the state.  However, we do not believe that it is necessary for such an order to be issued before the parolee can be taken into physical custody by the board or its duly authorized representatives, namely, the parole officers.  Your question involves the right of the parole officer to actually take physical custody of the parolee and to hold him in such custody until the board can act.  Doubtless the parolee cannot be actually returned to the proper penal institution until such an order is issued, but your question does not involve that precise element.

            The position of a parolee is substantially the same as the position of an actual inmate of the penitentiary or reformatory who has been made a trusty and who escapes and is  [[Orig. Op. Page 6]] later and during the same day observed by one of the penitentiary or reformatory officers possibly a few miles from the institution.  Certainly such institutional officer could immediately take the escaped trusty into custody and return him to the proper institution for a violation of the rule of the institution to the effect that such trusty could not leave the institution without permission.  We believe that the parole officers stand in substantially the same position as does the institutional officer in so far as parolees are concerned.

            Where the parole officer takes a parolee into actual custody and retains such custody until the board has the opportunity to pass upon the question of a formal revocation of parole, the situation is comparable to that existing where a sheriff's office or a police department arrests individuals and holds them pending further investigation.  We can see no difference in principle between the two methods.  As a practical matter we know of many, many instances where in the investigation of a murder, for instance, many people are arrested without warrant and held in custody pending further investigation.  The action of the parole officer in taking a parolee into physical custody is certainly comparable to the above.

            While the following cases are not directly in point, we believe they all have a bearing upon this question.  InIn re Marzec, 25 Cal. (2d) 794, 154 P. (2d) 873, it was held that a prisoner on parole is constructively a prisoner under sentence and is in legal custody and under the control of a department of corrections.  InPeople ex rel. Natoli v. Lewis, 287 N.Y. 478, 41 N.E. (2d) 62, it was held that a paroled prisoner is in constructive custody subject to be retaken and returned to actual custody.  InCarpenter v. Lord, 88 Ore. 128, 171 Pac. 577, it was held that a convicted person on parole is "in custody" within the meaning of the Oregon statutes providing that one in custody upon a conviction of a crime cannot be extradited.  InIn re Sutton, 50 Mont. 88, 145 Pac. 6, it was said that a parolee who "transgresses any of the restraints imposed upon him, * * * will occupy the position of an escaped convict and be subject to be dealt with accordingly."  McCoy v. Harris, 108 Utah 407, 160 P. (2d) 721, gives one of the best treatises on the subject of parole that we have been able to find.  We quote from the opinion as follows:

                "In the case of a parolee, the judgment is a sentence and commitment.  The legal position conferred upon the party by such judgment is the obligation to  [[Orig. Op. Page 7]] serve the designated term in prison.  Until that sentence is terminated, the judgment committing him to the custody of the prison authorities is still in effect.  The additional liberty conferred by the parole is a result of action by the Board of Pardons, an administrative body.  The parolee is still in custodia legis, and under the control of the State Board, though outside prison walls.  (Citing cases) His being outside prison is not based upon or fixed by a judgment.  Rules and regulations for the conduct of a paroled prisoner are rules and regulations for control of prisoners.  (Citing case) Violation of such rules is similar to violation of rules within the prison, and constitutes an abuse of a privilege for which the privilege may be withdrawn.  Such rules confer no legal rights.  They are privileges granted by the controlling authority, subject to its own terms, and may be withdrawn or withheld at its pleasure.  (Citing cases) The rule is based on the theory that a parole is granted, not as a matter of right, but as a matter of grace and privilege to enable the prisoner to prove himself,and that when he accepts it he, impliedly at least, agrees that it may be revoked according to the established practice of the granting authority.  Legal institutions of the body socii should be largely concerned with the utilitarian measurable potentialities of a correctional regime.  The administration of the criminal law must be realistic.  Custom and opinion are the sources from which law draws its life juices.  The administration of law cannot be too far in advance or too far behind public opinion and custom without shriveling from lack of public support.  The granting of paroles and the agencies dealing therewith are strategic measures for the task of reform and rehabilitation of offenders -persons who are within the control of the agencies of criminal justice.  The effects of its actions and ministrations are not to be measured only in terms of its immediate results upon the individual paroled, but upon the vast majority of men who are, or might be, the beneficiaries of a parole.  If the correctional aim of the criminal law is to succeed it must be predicated upon a less naive conception then that all prisoners can be treated alike, or that the violation of a trust and confidence reposed in one by the granting of a parole is a subject that allows of quibble and argument.  If  [[Orig. Op. Page 8]] the parole system is to succeed it must be kept upon a basis that requires the parolee to exercise honest effort and the utmost good faith in living up to its conditions.  A breach of conduct may be tolerated, but not a breach of faith.  Each parolee must be made to realize that he has in his keeping not only his own liberty and future but that of all prisoners who in the future seek the opportunities that have been granted to him.  For as each parolee makes good the chances of others are enhanced; and each that breaks his faith makes the road harder for those that follow.  * * *"  (Emphasis supplied.)

            Answering your question directly, it is our opinion that an officer appointed by the State Board of Prison Terms and Paroles has authority to apprehend and hold in custody, without a warrant or formal order of revocation of parole, a parolee suspected of parole violation.

Very truly yours,

Attorney General

Assistant Attorney General