Drug offenses and parole eligibililty

(The Court is still in recess; no handdowns until next week)

The statutes regarding parole keep changing.  Last year, 403 inmates had their parole eligibility dates taken away pursuant to a change in MCA Sect. 41-29-139(a).  The MacArthur Justice Foundation challenged some of these and got a ruling in Lauderdale County holding that the justification cited by MDOC was not sufficient to make the inmate ineligible for parole.  The State just filed an appeal  meaning that we’ll get a final word on this issue in a year or two or more.

From the Court’s Order:

In her Motion, Petitioner argues that at the time she was sentenced by the Court, MDOC maintained a policy that inmates serving sentences for the sale of controlled substances in violation of§ 41-29-139(a) were eligible for parole after serving twenty-five percent (25%) of their respective sentences. Petitioner further states that in August or September of 2014, MDOC changed its policy and removed the parole eligibility of several hundred inmates who had been convicted of selling or manufacturing a controlled substance, in violation of§ 41-29-139(a), between June 30, 1995 and July 1, 2014 – including Petitioner, Karissa Lyons Hill’s parole eligibility. Justification for Petitioner’s parole eligibility removal was as follows,

Those offenders convicted of sale or manufacture of a controlled substance prior to July 1, 2014 are considered violent offenders and ineligible for parole pursuant to Miss. Code Ann. 47-7-3(1)(f). Recent appellate precedent has also dictated the same. See McGovern v. MDOC, 89 So.3d 69 (Miss. Ct. App. 2011). The only exception is for those who sold marijuana subject to certain amounts. 1104 offenders’ files were audited to comply with the law and appellate precedent. 403 offenders had their parole eligibility dates removed as a result of this audit.

MDOC Policy Explanation, attached as Exhibit “A”. The Court finds that this particular justification for denying Petitioner parole eligibility is incorrect.

III. In the present Motion, the pertinent statutes were all revised and amended in 2014. As the law currently stands, the criteria for determining the parole eligibility of an inmate convicted of a crime between June 30, 1995 and July 1, 2014 is found in Miss. Code Ann.§ 47-7-3. That statute provides that:

No person shall be eligible for parole who is convicted or whose suspended sentence is revoked afterJune 30, 1995, except that an offender convicted of only non-violent crimes after June 30, 1995, may be eligible for parole if the offender meets the requirements in subsection (1) and this paragraph[.] … For the purposes of this paragraph, “non-violent” crime means a felony other than … the sale or manufacture of a controlled substance under the Uniform Controlled Substances.Law …

Miss. Code Ann.§ 47-7-3(1)(f). However, in the very next sentence, the statute now also specifically provides that, “[a]n offender convicted of a violation under Section 41-29-139(a), not exceeding the amounts specified under Section 41-29-139(b), may be eligible for parole.” Id. It is undisputed that Petitioner was convicted and sentenced under § 41-29-139(a) for Sale of .3 grams of Cocaine in Lauderdale County Circuit Court on April 21, 2014. The law as it applies to Petitioner changed somewhat in July 2014.

The Court notes that effective July 1, 2014, the provisions of § 41-29-139(b) provide a weight-based sentencing structure for all Schedule I, II, III, IV, and V controlled substances, and not merely Marijuana. With respect to cocaine, § 41-29-139(b)(1)(A) now provides for the punishment on the sale of “mess than two grams or ten (10) dosage units.” The Court finds that the weight involved in Petitioner’s 2014 Cocaine conviction (.3 grams), is less than 2 grams of a Schedule II Controlled Substance; and as a result, Petitioner falls within the range provided for in subsection (b)(l)(A). Therefore, based on the plain language of Miss. Code Ann.§§ 47-7-3 and 41- 29-139, as revised in 2014, and joint application of these provisions to Petitioner’s case, the Court finds that Petitioner’s 2014 Lauderdale County Sale of Cocaine alone should not prevent or exclude the Petitioner from parole eligibility. The Court agrees with Petitioner that with the changes to Miss. Code Ann. §41-29-139(b), which now provides weight-based limits and sentences for drugs other than marijuana, the McGovern case is no longer applicable in Petitioner’s case. (Emphasis added).

While the Court finds that Petitioner’s Sale of Cocaine conviction alone should not exclude Petitioner from parole eligibility under the statutes as amended and revised in 2014, the Court will not affirmatively state or declare that Petitioner is actually eligible for parole. The provisions which have been analyzed in this Memorandum Opinion and Order are still discretionary in nature. ‘For example, Miss. Code Ann. § 47-7-3(1)(f) states that if an offender is convicted of Sale under Miss. Code Ann. § 41-29-139(a), and the quantity of drugs is less than the amounts provided for in Miss. Code Ann. § 41-29-139(b), as amended in 2014 to include drugs like Cocaine, than the Petitioner  may be eligible for parole. (Emphasis added). There are numerous other requirements, qualifications, and considerations that must be made to determine an individual’s absolute parole eligibility, and this Court will not address any of those matters in its analysis here. The Court finds that Petitioner may be eligible for parole and should not be denied this opportunity based on the legal authority cited by MDOC in Exhibit “A” and/ or Exhibit ”B”, which is an illustrative Administrative Remedy Program First Step Response Form. This includes the citation to the 2011 Mississippi Court of Appeals McGovern case, which this Court sees as c\.J.rrently inapplicable here. Whether Petitioner is completely eligible for parole is not a determination to be made by this Court.

Another appeal in one of these case is State v. Howard Jose Colon, No. 2015-01295

Trial court’s order here.

4 thoughts on “Drug offenses and parole eligibililty

  1. My son’s parole date was taken way also in 2014, for sale of schedule 1 and 2 drugs. It was less then the amounts, should he be parole eligible too. If so what do we need to do? MDOC told us also that because sales is a violent crime and makes him not eligible for parole

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