Mr. Steven Pickett
Office of the Attorney GeneralSeptember 19, 2014
2014 WL 5350504 (Miss.A.G.)
Office of the Attorney General
State of Mississippi
*1 Opinion No. 2014-00337
*1 September 19, 2014
Re: Parole Eligibility
*1 Mr. Steven Pickett
*1 Chairman, Mississippi Parole Board
*1 660 North Street
*1 Suite 100A
*1 Jackson, MS 39202
Dear Chairman Pickett:
*1 Attorney General Jim Hood received your request and assigned it to me for research and reply. Your question relates to HB 585, Regular Session of 2014, which amended Section 47-7-3 of the Mississippi Code, effective July 1, 2014.
ISSUE
*1 Is an inmate, who was convicted of a nonviolent crime prior to July 1, 2014, but was sentenced with an enhanced penalty, now considered a nonviolent offender under Section 47-7-3(1)(g)(iii)?
RESPONSE
*1 A felony with an enhanced penalty is expressly excluded from the definition of ““nonviolent crime” in Section 47-7-3(1)(f).
*1 A person convicted of a felony with an enhanced penalty, after June 30, 1995 and before July 1, 2014, is not a “nonviolent offender” under Section 47-7-3(1)(g)(iii).
*1 Such person is not eligible for parole under Section 47-7-3(1)(g)(iii) due to the prohibitions contained in Section 47-7-3(1)(f), which remain fully applicable to certain convictions after June 30, 1995 and before July 1, 2014.
APPLICABLE LAW AND ANALYSIS
*1 Section 47-7-3(1)(g)(iii) was added to Section 47-7-3 by HB 585 of the 2014 Regular Session and became effective from and after July 1, 2014. It reads as follows:
*1 (iii) Notwithstanding the provisions of paragraph (1)(a)1 of this section, any nonviolent offender who has served twenty-five percent (25%) or more of his sentence may be paroled if the sentencing judge or if the sentencing judge is retired, disabled or incapacitated, the senior circuit judge, recommends parole to the Parole Board and the Parole Board approves.
*1 (Emphasis added).
*1 The term “nonviolent offender” is not defined in Section 47-7-3. However, the term “nonviolent crime” is defined in Section 47-7-3(1)(f). In addition, this paragraph also prohibits persons convicted of felonies other than ““nonviolent crimes,” as defined therein, from being eligible for parole.
*1 Section 47-7-3(1)(f) reads:
*1 (f) No person shall be eligible for parole who is convicted or whose suspended sentence is revoked after June 30, 1995, except that an offender convicted of only nonviolent crimes after June 30, 1995, may be eligible for parole if the offender meets the requirements in subsection (1) and this paragraph. In addition to other requirements, if an offender is convicted of a drug or driving under the influence felony, the offender must complete a drug and alcohol rehabilitation program prior to parole or the offender may be required to complete a post-release drug and alcohol program as a condition of parole. For purposes of this paragraph “nonviolent crime” means a felony other than homicide, robbery, manslaughter, sex crimes, arson, burglary of an occupied dwelling, aggravated assault, kidnapping, felonious abuse of vulnerable adults, felonies with enhanced penalties, the sale or manufacture of a controlled substance under the Uniform Controlled Substances Law, felony child abuse, or exploitation or any crime under Section 97-5-33 or Section 97-5-39(2) or 97-5-39(1)(b), 97-5-39(1)(c) or a violation of Section 63-11-30(5). An 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. In addition, an offender incarcerated for committing the crime of possession of a controlled substance under the Uniform Controlled Substances Law after July 1, 1995, shall be eligible for parole. This paragraph (f) shall not apply to persons convicted on or after July 1, 2014;
*2 Reading these provisions in pari materia, a “nonviolent offender,” as used in Section 47-7-3(1)(g)(iii), is a person who has been convicted of crimes that fall within the definition of “nonviolent crimes,” found in Section 47-7-3(1)(f). An individual convicted of a “nonviolent crime,” as defined in Section 47-7-3(1)(f), after June 30, 1995 and before July 1, 2014, would be eligible for parole if the individual meets other applicable requirements.
*2 A felony with an enhanced penalty is expressly excluded from the definition of ““nonviolent crime” in Section 47-7-3(1)(f). Therefore, an individual convicted of a felony with an enhanced penalty, after June 30, 1995 and before July 1, 2014, would not be eligible for parole under Section 47-7-3 (1)(g)(iii), due to the express prohibition found in Section 47-7-3(1)(f).
*2 In amending Section 47-7-3 by HB 585, the Legislature expressly provided in Section 47-7-3(1)(g)(iii) that the prohibitory language in paragraph (1)(a), relating to habitual offenders, would not be applicable to paragraph (1)(g)(iii) due to the “notwithstanding” clause. There is no similar ““notwithstanding” provision relating to the prohibitory language in paragraph (1)(f), and those prohibitions remain applicable. The Legislature did expressly provide that paragraph (1)(f) would “not apply to persons convicted on or after July 1, 2014,” but this provision does not affect convictions prior to that date.
CONCLUSION
*2 It is the opinion of this office that: (1) a felony with an enhanced penalty is expressly excluded from the definition of “nonviolent crime” in Section 47-7-3(1)(f); (2) a person convicted of a felony with an enhanced penalty, after June 30, 1995 and before July 1, 2014, is not a “nonviolent offender” under Section 47-7-3(1)(g)(iii); and (3) such person is not eligible for parole under Section 47-7-3(1)(g)(iii) due to the prohibitions contained in Section 47-7-3(1)(f), which remain fully applicable to convictions after June 30, 1995 and before July 1, 2014.
Footnotes
Paragraph (1)(a) of Section 47-7-3 refers to an “habitual criminal” and is not directly relevant to the inquiry herein.
2014 WL 5350504 (Miss.A.G.)
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