Everyone involved in the criminal justice system should know the nuts and bolts of what parole entails. Why? Because every time someone receives an imposed prison term with any indeterminate time, they have been sentenced to the uncertainties of the parole process.

The Idaho Commission of Pardons and Parole is the prison gatekeeper. For those sentenced to indeterminate time in Idaho, it’s the parole board that determines how many years the person must serve before being released to supervision in the community. This means the parole board has as much power over an incarcerated person’s life as the sentencing judge does, and often more. Yet most attorneys understand little about the parole board or how it makes decisions. Which makes it difficult if not impossible to prepare clients for what will happen after a case closes and so too the prison gates.

This article has a simple aim: to educate attorneys about the parole process so they, in turn, can help clients understand how to set up the best possible chances of future parole. It proposes two ways to improve representation: first, by understanding the basic realities of parole, which should be clearly explained to our clients when discussing plea offers and sentencing. And second, by setting up the factual record and clarifying the sentencing judge’s intentions so that both can benefit our clients later during the parole process.

The ideas in this article are the product of speaking with many who have faced the parole process as well as those loved ones and allies who have tried to assist them.[i] They describe shared experiences after sentencing—especially feeling scared, frustrated and unprepared—conditions clear-eyed defense counsel might be able to improve.

Parole Basics: The Idaho Commission of Pardons and Parole

Idaho’s Parole Commission operates as an autonomous body within Idaho’s criminal justice framework. It deals with parole, parole revocation, commutation, and pardons.[ii] The board consists of seven members appointed by the Governor and confirmed by the senate for renewable three-year terms. [iii] It’s a lay-person board, meaning legal training and experience are not required, though several current board members come from law enforcement, and at least one judge served in the past, albeit briefly.

Whoever can serve is probably most limited by time and pay. Parole hearings are held approximately ten to fifteen days per month,[iv] with three of the seven commissioners presiding over a day of regular hearings.[v] Each board member is compensated just $300 per day.[vi] But each parole application requires major work before the hearing—reviewing support materials, risk assessment scores, Idaho Department of Corrections (“IDOC”) records, case materials from the Presentence Investigation (“PSI”), etc. Commissioners don’t get paid for any of that work. Nor do they get any paid training, aside from what can be accomplished at the Commission’s annual meeting.

The Governor appoints an Executive Director of the Commission, who oversees paid staff.[vii] Christine Starr, former Chief of Staff at IDOC, recently took over the role. Starr has big plans for improving transparency and systematizing decision making, but the scope of those plans will be shaped by the legislature’s willingness to fund it.

People Sentenced to Prison Get a Lot of Bad Information About Parole (Even from Very Good Attorneys)

The best way to improve a client’s chances at parole is to combat misinformation when explaining possible sentences during plea negotiations and sentencing preparation. Below are some examples of common misconceptions and important things to know.

1. Idaho has no presumption of parole.

Many attorneys incorrectly assume that, absent a disciplinary violation, someone sentenced to prison will not do more than their fixed time. If you take nothing else away from this article, hear this: there is no presumption of parole in Idaho. What might have seemed like a great outcome at sentencing—a short, fixed term with a long indeterminate tail—could become a very long prison sentence. And for the person living it, the time until they see parole will be barbed with uncertainty.

Worse, defense counsel often doesn’t convey that reality when explaining a sentence (maybe because they don’t know themselves). I wrote to several people to ask what they understood at sentencing versus after they got to prison about the time they might serve, and each agreed to let me reproduce their words alongside their fixed and indeterminate time, though names have been withheld.

“I was told I wouldn’t do a day over my fixed time. I wish [my attorneys] had been more forthright about how much this whole process basically never ends[.]That’s been the hardest part on all of us frankly, the CONSTANT unknowns that never ever end.”

• Parole eligible in 2026. Sentenced to 3 years fixed and 17 years indeterminate.

“I didn’t know you could get flopped and denied parole. I didn’t know it was so easy to not get parole. I was expecting to only do a couple of years. I was blown out of the water when I got here and got settled. I wish I would have known a lot more. I never would have taken the [plea] deal.”

• Lost over 5 years of probation after violations. Sentenced to 4 years fixed and 4 years indeterminate. Paroled at the end of fixed time.

“My son was sentenced to fifteen years in prison with two years of that time fixed. I was told he had a two-year prison sentence.”

• Son paroled initially after serving 2 years of fixed time. Returned to prison less than a year later on technical violations and parole was revoked. Recently paroled after serving an additional two years, including one denied request for parole.

Idaho Code § 20-1005 and IDAPA 50.01.01.250 provide the parole commission with wide discretion to determine whether granting someone parole would be “in the best interests of society” and whether “the commission believes the prisoner is able and willing to fulfill the obligations of a law-abiding citizen.”[viii]

While it’s possible to guess how the Commission will see things, nothing is certain, especially when there is no telling what details might capture a commissioner’s attention in the hearing.

The unpredictable nature of the hearing itself (something Starr, the Commission’s new Executive Director, hopes to improve by systematizing procedures) is stressful. Even someone who believes they have a strong parole application might be unprepared to manage an interview in which they are, for example, confronted with unproved facts from a police report they disagree with. Disagreement might be viewed as a failure to take responsibility and grounds enough for denying parole.

• Idaho does not have a presumption against parole.

Inside Idaho’s prisons, our clients trade pessimistic rumors about parole. Other residents, correctional officers, and even case managers may insist, incorrectly, that parole probably isn’t going to happen. Some say no one gets parole the first time up. Others say no one gets parole until they have served one-third of their total time. There are other variations of these theories. All might sound somewhat legitimate. But all are wrong. Here is what two people I spoke with had to say about their experiences. (Again, names have been withheld).

“When I arrived at prison I started being bombarded with information from other residents and staff, all of it different and conflicting. Board is evil, board is fair . . . It was a shitshow . . . . There are actually many case managers who don’t fully understand the system and how it works, saying that residents get “flopped for no reason” all the time.”

• Parole eligible in 2026. Sentenced to 3 years fixed and 17 years indeterminate.

“I met a couple of real people in the prison, not just fake friends. Almost everybody else will try to steer you in the wrong direction. Once someone gets into prison they’ll realize it. People are really good at acting. They’ll give you wrong information just because they want you to fail. Listen to your case managers.”

• Paroled after serving 25 years fixed. Sentenced to 25 fixed and life indeterminate.

People I spoke with cycled through despair, sometimes believing there was no point in even trying to make a good case for parole. They might not focus on classes or certifications or prison jobs or making plans for release, or they might get caught up in prison violence (and sometimes can’t help but get caught up in violence)—all of which might lead to parole being denied.

• The Commission follows patterns in granting and denying parole.

Besides combatting misinformation, defense counsel can help prepare people heading to prison and eventual parole hearings by underscoring what matters to the Commission.

IDAPA 50.01.01.250.01(c) outlines some of the factors to be considered in determining the merits of a parole application. Many of these deal with facts that can’t be changed, like the nature of the crime, mitigating factors, criminal history, or past performance on supervision. But other factors concerning how time was served in prison can be shaped, namely by exhibiting good institutional behavior and demonstrating pro-social behavior.

Institutional behavior includes completing required programming and remaining free of disciplinary violations. This can seem a little arbitrary to inmates. Sometimes, and on some prison tiers especially, violence might be necessary to stay safe. Other times, DORs are handed out for relatively small conduct, like covering a window, or contributing ingredients to someone else who was brewing alcohol. But, regardless of circumstances, if a DOR has been sustained any time in the previous year (and the standard for sustaining a DOR is low: “some evidence”[ix]) then parole could be denied until at least a year from the date of the violation. For anyone with future parole on the line, fighting a bad DOR through the prison’s procedures and in accordance to its timelines is critical.[x]

Similarly, programming completion is usually a prerequisite for parole, but it isn’t always possible. Especially since COVID, not all programming is available at every institution or every security classification. One person I spoke with was housed at the maximum-security prison (“IMSI”) for four years where the class he needed was not offered. He was ineligible for a transfer because of his security classification.

There is ongoing discussion about whether some parole applicants could be allowed to do programming upon release as a condition of their parole. But for now, a failure to complete programming, even when it is unavailable, is often a bar to release.

This is an added reason to avoid violence if possible and safe to do so. Like DORs, a failure to complete programming even due to unavailability can result in parole denial after denial.

Defense Counsel Can Help Someone’s Parole Chances Before They Leave the Courtroom

1. Make a good record of the sentencing judge’s intentions.

Aside from the sentence itself, the commissioners considering a parole application do not generally know what happened in a sentencing hearing. If the judge expressed, directly or indirectly, an expectation that a defendant who served their sentence well would be released to supervision after the fixed time, the parole board will not know that. Nor may the court be aware how important a clear expression of those intentions might be to helping the commissioners weigh a person’s release.

As a judge will inform someone headed to prison, imposing a prison term necessarily means that jurisdiction is transferred to IDOC, and the court has no ongoing authority over how the sentence is carried out. But that doesn’t mean the court’s perspective isn’t of considerable value. The sentencing judge will in many instances have had far more time than the parole commissioners to weigh the facts of the case, mitigation, the protection of society, and rehabilitation—all factors the commissioners are also directed to weigh.[xi]

Especially in difficult cases—murder, child abuse, child pornography, or sex cases—a relatively short, fixed time might signal the court’s belief in the defendant’s possible rehabilitation. In other situations, a court might acknowledge important mitigation.

All this is useful to someone eventually headed to a parole hearing if those ideas are preserved in the record at the sentencing hearing. Not everyone will be safe keeping a copy of the sentencing transcript with them in prison, but you can explain how a client can get a copy of that information when their parole process begins. And right after sentencing, while the case is still fresh in the mind, defense counsel can write a letter that represents what occurred at sentencing and quotes relevant parts of the sentencing memorandum and sentencing hearing transcript.

• Beware of unproven facts in the PSI.

When reviewing the PSI, it’s important to know that the parole board will review this information when preparing to interview someone applying for parole. The PSI will be used in both the lengthier pre-board telephone interview and in the parole hearing itself.

The preboard interviewer or commissioner might delve into alleged facts from police reports or victim statements which may never have been proved and might be wrong. But everyone facing parole knows that people who don’t take responsibility may be denied. It is an ethical bind—whether to admit to untrue facts because the questioner believes doing otherwise is shirking, or to push back and risk serving more time.

Defense counsel can help in the same two ways described above: make a clear record at sentencing, especially if there are possibly damaging but dubious factual assertions in the PSI; and write a letter for your client while the case is fresh. A letter from a defense attorney doesn’t necessarily need to advocate for future parole. Instead, it can offer the parole commissioners assistance in clarifying the facts, which puts your client on stronger footing to stand by those facts.

• Beware of messy cases with inaccurate records.

Some of the most snarled parole hearings happen when someone has been in and out of IDOC custody and has myriad experiences on probation and parole, sometimes with a variety of alleged violations. Just because an allegation was unproved doesn’t mean a parole applicant won’t be asked about it.

In one recent case, a client who had interstate compacted on parole to Arizona was assigned to a parole officer who, based on his underlying crime, told him it was his mission to get him returned to prison—and he did. The records that followed him back to IDOC were rife with errors. For example, the record contained the probation officer’s assertion the client had been using drugs, but it did not contain the client’s random UAs, which had all been negative. Nor were there records that he’d completed treatment and passed required polygraph tests.  

Gathering corroborating records can be difficult, especially from prison. Which is all the more reason to make sure our clients understand at the outset potential problems in these documents because gathering contrary evidence will take time.

Improving Criminal Defense Practice Means Preparing Clients for the Parole Process

Better criminal defense accounts for the lived experiences our clients go through. The pretrial and trial process is often disjointed from the sentencing phase. A person sentenced to prison then must adapt to life inside, governed by IDOC. And then they must pivot again and ask for release from the parole commission—another legally distinct body.

But each of our clients is still one whole person, who is trying to bend to accommodate each phase as demanded in hopes of a future beyond prison. We cannot pretend, as we help a client decide about a plea offer or help them get ready for sentencing, that the client’s parole prospects will take care of themselves. Clients must know what their plea agreements and sentences will mean for their lives, and that means they must understand how parole actually works in Idaho.

Criminal defense lawyers, for our part, must therefore know not just how parole works, but we must also be able to explain it in plain terms, and to counsel and advise our clients as they make the decisions in their criminal cases that will return to haunt or help them during the parole process—years, if not decades, later.

Valeri M. Kiesig is an attorney at Nevin, Benjamin & McKay, where she defends people against a variety of criminal allegations and assists incarcerated individuals seeking parole. She also serves as vice-president of the board of the Federal Defender Services of Idaho. Prior to becoming an attorney, Valeri was English faculty at the College of Western Idaho for several years as well as a public health epidemiologist for the New York City Department of Health. She holds a J.D. from the University of Idaho where she graduated summa cum laude and was editor-in-chief of the Idaho Law Review, as well as an M.F.A. from the Iowa Writers’ Workshop and an M.P.H. from Columbia University. She grew up in Idaho.

[i] In writing this article, I drew on discussions with Craig Durham and Ritchie Eppink about how criminal defense attorneys might help their clients to face parole, and both provided valuable comments and feedback on this article.

[ii] Idaho Code § 20-1004(1); I.C. § 20-1016

[iii] Idaho Code § 20-1002(1) – (3)

[iv] https://parole.idaho.gov/

[v] Idaho Code § 20-1002(7)

[vi] Idaho Code § 20-1002(8)

[vii] Idaho Code § 20-1002(9)

[viii] Idaho Code § 20-1005(5); IDAPA 50.01.01.250.01

[ix] IDOC Standard Operating Procedure 318.02.01.001 (v. 6), “Disciplinary Procedures for Inmates,” p. 6-7

[x] See IDOC Standard Operating Procedure 318.02.01.001 (v. 6), “Disciplinary Procedures for Inmates.”

[xi] IDAPA 50.01.01.250.01