Section 28.12 Parole Eligibility and Minimum Prison Terms

• Library: Criminal Practice 2012 Supp

B. (§28.12) Parole Eligibility and Minimum Prison Terms

A prisoner may be paroled when, in the opinion of a majority of the Board, “there is reasonable probability that [the prisoner] can be released without detriment to the community or to himself.” Section 217.690, RSMo Supp. 2004. This statute does not create a liberty interest protected by due process but rather gives the Board “almost unlimited discretion” in determining whether to grant parole. State ex rel. Cavallaro v. Groose, 908 S.W.2d 133, 135 (Mo. banc 1995); Epperson v. Mo. Bd. of Prob. & Parole, 81 S.W.3d 540, 541 (Mo. App. W.D. 2002).

Further, the Board is not to order parole until the offender attains a high school diploma or its equivalent unless the Board finds that the offender has made an honest, good-faith attempt to do so or has actively participated in prison education programs. Section 217.690.10.

Certain “non-parolable offenses,” however, do exist. Among these are:

· first degree murder, § 565.020, RSMo 2000;

· tampering with a victim or witness, § 575.270, RSMo 2000; and

· conviction as a persistent sexual offender, § 558.018, RSMo 2000.

Consider also:

· certain persistent drug offenders under §§ 195.214, 195.218, 195.222, and 195.223, RSMo Supp. 2004, and §§ 195.291, 195.292, 195.295, and 195.296, RSMo 2000;

· class X offenders sentenced to less than 25 years (§ 558.019, RSMo Supp. 2004); and

· persistent offenders convicted of unlawful use of a weapon under § 571.030, RSMo Supp. 2004.

Persistent domestic violence offenders under § 565.063, RSMo 2000, are ineligible for a suspended imposition of sentence or fine in lieu of imprisonment and are not eligible for parole or probation until they have served a minimum of six months’ imprisonment.

Additionally, there are certain statutory minimum non-parole terms for offenses, such as:

· armed criminal action, § 571.015, RSMo 2000;

· pharmacy robbery, §§ 569.025, 569.035, RSMo 2000; and

· murder in the first degree, § 565.020.

Additionally, there are several statutory minimum prison terms of which counsel should be aware. These statutory restrictions apply to offenders convicted of offenses that have been identified on court-submitted sentence and judgment papers as being committed after August 28, 2003.

The provisions are as follows:

· Persons convicted of any of the “dangerous felonies” are required to serve a minimum prison term of 85% of the sentence imposed by the court unless the defendant attains age 70 and has served at least 40% of the sentence imposed.
See §§ 556.061, 558.019.3, RSMo Supp. 2004. These felonies are:

Ø arson in the first degree;

Ø assault in the first degree;

Ø attempted forcible rape if physical injury results;

Ø attempted forcible sodomy if physical injury results;

Ø forcible rape;

Ø forcible sodomy;

Ø kidnapping;

Ø murder in the second degree;

Ø assault of a law enforcement officer in the first degree;

Ø domestic assault in the first degree;

Ø elder abuse in the first degree;

Ø robbery in the first degree;

Ø statutory rape in the first degree when the victim is a child less than 12 years of age at the time of the act giving rise to the offense;

Ø statutory sodomy in the first degree when the victim is a child less than 12 years of age at the time of the act giving rise to the offense; and

Ø abuse of a child in accordance with § 568.060.3(2), RSMo 2000.

· All other offenders, except those remanded for drug offenses, are required to...