§706-670  Parole procedure; release on
parole; terms of parole, recommitment, and reparole; final unconditional
release.  (1)  Parole hearing.  A person sentenced to an indeterminate term
of imprisonment shall receive an initial parole hearing at least one month
before the expiration of the minimum term of imprisonment determined by the Hawaii paroling authority pursuant to section 706-669.  If parole is not granted at that
time, additional hearings shall be held at twelve-month intervals or less until
parole is granted or the maximum period of imprisonment expires.  The State
shall have the right to be represented at the initial parole hearing and all
subsequent parole hearings by the prosecuting attorney, who may present written
testimony and make oral comments, and the authority shall consider the
testimony and comments in reaching its decision.  The authority shall notify
the appropriate prosecuting attorney of the hearing at the time the prisoner is
given notice of the hearing.



(2)  Parole conditions.  The authority, as a
condition of parole, may impose reasonable conditions on the prisoner as
provided under section 706-624.



(3)  Prisoner's plan and participation.  Each
prisoner shall be given reasonable notice of the prisoner's parole hearing and
shall prepare a parole plan, setting forth the manner of life the prisoner
intends to lead if released on parole, including specific information as to
where and with whom the prisoner will reside and what occupation or employment
the prisoner will follow.  The prisoner shall be paroled in the county where
the prisoner had a permanent residence or occupation or employment prior to the
prisoner's incarceration, unless the prisoner will:  reside in a county in
which the population exceeds eight-hundred thousand persons; reside in a county
in the State in which the committed person has the greatest family or community
support, opportunities for employment, job training, education, treatment, and
other social services, as determined by the Hawaii paroling authority; or be
released for immediate departure from the State.  The institutional parole
staff shall render reasonable aid to the prisoner in the preparation of the
prisoner's plan and in securing information for submission to the authority. 
In addition, the prisoner shall:



(a) Be permitted to consult with any persons whose
assistance the prisoner reasonably desires, including the prisoner's own legal
counsel, in preparing for a hearing before the authority;



(b) Be permitted to be represented and assisted by
counsel at the hearing;



(c) Have counsel appointed to represent and assist
the prisoner if the prisoner so requests and cannot afford to retain counsel;
and



(d) Be informed of the prisoner's rights as set forth
in this subsection.



(4)  Authority's decision; initial minimum term
of parole.  The authority shall render its decision regarding a prisoner's
release on parole within a reasonable time after the parole hearing.  A grant
of parole shall not be subject to acceptance by the prisoner.  If the authority
denies parole after the hearing, it shall state its reasons in writing.  A
verbatim stenographic or mechanical record of the parole hearing shall be made
and preserved in transcribed or untranscribed form.  The authority, in its
discretion, may order a reconsideration or rehearing of the case at any time
and shall provide reasonable notice of the reconsideration or rehearing to the
prosecuting attorney.  If parole is granted by the authority, the authority
shall set the initial minimum length of the parole term.



(5)  Release upon expiration of maximum term. 
If the authority fixes no earlier release date, a prisoner's release shall
become mandatory at the expiration of the prisoner's maximum term of
imprisonment.



(6)  Sentence of imprisonment includes separate
parole term.  A sentence to an indeterminate term of imprisonment under this
chapter includes as a separate portion of the sentence a term of parole or of
recommitment for violation of the conditions of parole.



(7)  Revocation hearing.  When a parolee has
been recommitted, the authority shall hold a hearing within sixty days after
the parolee's return to determine whether parole should be revoked.  The
parolee shall have reasonable notice of the grounds alleged for revocation of
the parolee's parole.  The institutional parole staff shall render reasonable
aid to the parolee in preparation for the hearing.  In addition, the parolee
shall have, with respect to the revocation hearing, those rights set forth in
subsection (3)(a), (3)(b), (3)(c), and (3)(d).  A record of the hearing shall
be made and preserved as provided in subsection (4).



(8)  Length of recommitment and reparole after
revocation of parole.  If a parolee's parole is revoked, the term of further
imprisonment upon such recommitment and of any subsequent reparole or
recommitment under the same sentence shall be fixed by the authority but shall
not exceed in aggregate length the unserved balance of the maximum term of
imprisonment.



(9)  Final unconditional release.  When the
prisoner's maximum parole term has expired or the prisoner has been sooner
discharged from parole, a prisoner shall be deemed to have served the
prisoner's sentence and shall be released unconditionally. [L 1972, c 9, pt of
§1; am L 1976, c 92, §8; am L 1983, c 30, §1; am L 1984, c 257, §3; am L 1986,
c 314, §47; am L 1988, c 282, §2; am L 1993, c 101, §2 and c 201, §2; gen ch
1993; am L 1996, c 193, §2; am L Sp 2007, c 8, §15]



 



Revision Note



 



  Subsection (3) restyled.



 



Cross References



 



  Comprehensive offender reentry system, see chapter 353H.



 



COMMENTARY ON §706-670



 



  Subsections (1) through (3) are largely self-explanatory and
adopt a procedure for parole determination which affords the prisoner an
opportunity to participate and be heard.  The procedure also provides for
periodic review of the prisoner's case.



  In the Proposed Draft, §670 provided for an automatic period
of parole, the length of which would vary with the prisoner's initial period of
incarceration, but which would not be greater than ten years, and which would
be required in every case following an indeterminate term of imprisonment.  The
Legislature did not accept this proposal in its entirety.  Thus, subsection (4)
now requires a prisoner's unconditional release at the expiration of the
prisoner's maximum term of imprisonment.  The Legislature felt that to impose
"an additional term of parole would be an unfair burden to a person who
has paid his debt to society."  Conference Committee Report No. 2 (1972).



  Subsection (5) provides that the maximum term of parole shall
be ten years.  In this area, as in terms of imprisonment, the Code leaves with
the Board of Paroles and Pardons the task of determining the minimum term of
parole.



  Subsection (6) provides for a hearing on revocation of parole
which affords the parolee fair notice, representation, and assistance, much in
the same manner as that provided in the case of hearings on the minimum term
and initial parole.



  Subsection (8) provides for unconditional discharge of the
defendant when the maximum term of parole has expired or upon sooner release by
the Board.



 



SUPPLEMENTAL COMMENTARY ON §706-670



 



  Act 30, Session Laws 1983, amended subsection (1) to change
the maximum term of recommittal for a parole violator from ten years to the
remainder of the parolee's original, maximum sentence.  It was felt that a
parole violator should not be relieved of any part of the court-imposed maximum
sentence.  However, the legislature intended that the paroling authority
periodically reconsider the parole of any recommitted parolee.  Senate Standing
Committee Report No. 357 (1983), House Standing Committee Report No. 811.



  Act 257, Session Laws 1984, added a new subsection (2) to
allow the paroling authority, as a condition of parole, to prohibit a parolee
from entering certain geographical areas without the paroling authority's
permission.



  Act 282, Session Laws 1988, amended this section to allow the
prosecuting attorney to appear and present oral comment and written testimony
at parole hearings before the Hawaii paroling authority, disallowing oral
testimony by witnesses.  Senate Conference Committee Report No. 270, House
Conference Committee Report No. 96-88.



  Act 101, Session Laws 1993, amended subsection (4) of this
section to clarify that a grant of parole is not subject to the acceptance of
the person being paroled.  Inmates who refuse parole and choose to remain in
prison take up valuable bedspace in already crowded correctional facilities,
and the State loses the opportunity to assist in reintegrating them back into
the community.  House Standing Committee Report No. 1123, Senate Standing
Committee Report No. 839.



  Act 201, Session Laws 1993, amended subsection (3) of this
section to provide that prisoners who have been granted parole are to be
paroled in the county where the prisoner had a permanent residence or
occupation or employment prior to incarceration, unless the prisoner will
reside in a county having a population exceeding 800,000 persons, or will be
released for immediate departure from the State.  The legislature found that
this would prevent an influx of parolees whose roots are on Oahu from settling
on the Neighbor Islands, which could strain a county's social service
infrastructure.  Conference Committee Report No. 104.



  Act 193, Session Laws 1996, amended this section by providing
that the prosecuting attorney shall have the right to be represented at the
initial parole hearing and all subsequent parole hearings, and that the
prosecuting attorney shall have reasonable notice of the reconsideration or
rehearing of parole cases by the Hawaii paroling authority.  The Act made clear
the prosecuting attorney's right to be represented and to receive notice, since
the current law was unclear regarding the prosecuting attorney's rights on
these matters.  Conference Committee Report No. 60.



  Act 8, Special Session Laws 2007, amended subsection (3) to
permit the Hawaii paroling authority to parole committed persons to the county
in the State where the committed person has the greatest family or community support,
opportunities for employment, job training, education, treatment, and other
social services.  This will allow the Hawaii paroling authority to provide
meaningful opportunities for offenders to reintegrate into society and
demonstrate that they have the potential to function as law-abiding citizens. 
Senate Standing Committee Report No. 993.



 



Case Notes



 



  Neither chapter 706 nor chapter 353 prohibits the Hawaii paroling authority from setting a prisoner's minimum term at a period equal to his
or her maximum sentence.  97 H. 183, 35 P.3d 210.



  As §353-66 and this section can be given effect without
conflict, subsection (7) is not the "exclusive" law governing parole
revocations, does not embrace the entire law on the subject, and does not
repeal §353-66 by implication.  88 H. 229 (App.), 965 P.2d 162.



  A petitioner is not entitled to relief for Hawaii paroling
authority's failure to comply with time limit specified in subsection (7) for
parole revocation hearing unless record shows that failure to comply (1) was
unreasonable and (2) caused petitioner actual prejudice.  State's failure to
comply with specified time limit is presumptively unreasonable and it is Hawaii paroling authority's burden to rebut this presumption; it is petitioner's burden to
prove that State's unreasonable failure to comply caused actual prejudice to
petitioner.  89 H. 474 (App.), 974 P.2d 1064.