State ex rel. Bishop v. State Board of Corrections
52 P. 1090
Utah
1898
Check Treatment
Zane, C. J.:

TMs is аn application for a writ, upon the information of the attorney general, prohibiting the defendants from paroling certain convicts sеrving terms in the state prison. It is alleged by the plaintiff that the defendants are about to release the prisoners named, in pursuance of the following sections of the revised statutes of this state: “The board shall have power to establish rules and regulations, under which any prisoner, who is now or hereafter may be imprisoned under a sentence other than for murder in the first or second degree, and who may have served a minimum term provided by law for the crime for which he shall have been convicted (and who shall not have previously been convicted of felony and ‍‌‌​​​‌‌​‌‌​‌​​‌‌‌‌‌‌​‌​‌​‌​​​‌​‌‌​‌‌‌​‌‌‌‌​​‌​​‌‍servеd a term in a penal institution) and any prisoner who is now or hereafter may be imprisoned under a sentence for murder in the first or second degrеe, and who has now, or hereafter shall have served, under said sentence twenty-five full years, may be allowed to go upon parole outside of the prison buildings and their inclosures, but to remain, while on parole, in the legal cdstody and under the control of the board, subject at any timе to be taken back within the institution,” — and the following rules adopted in pursuance of the statute: “Know all men by these presents, that the state boаrd of corrections of the state of Utah, desiring to test the ability of-, a prisoner of the state prison to re*480frain from crime and live an honorable life, do, by virtue of the authority conferred upon them by law, hereby parole the said-, and allow him to go on parole outside the buildings аnd inclosure of said institution, but not outside the state of Utah, — subject, however, to the following rules and regulations: (1) He shall pro-reed at once to the place of employment provided, for him, viz. —=-, and there remain, if practicable, for a period of at least six months from this date. (2) In case he finds it desirable to change his employment or residence, he shall first obtain the written, consent of the warden of said state prison. (3) Hе shall, on the first day of each month, until his final release according to law, forward by mail to the warden of said prison a report of himself, stating whеther he has been constantly under pay during!the last month, and if not, why not, and how much he has earned, and ‍‌‌​​​‌‌​‌‌​‌​​‌‌‌‌‌‌​‌​‌​‌​​​‌​‌‌​‌‌‌​‌‌‌‌​​‌​​‌‍how much he has expended, together with a gеneral statement of his surroundings and prospects. (4) He shall in all respects conduct himself honestly, avoid evil associations, obey the law, аnd abstain from the use of intoxicating liquors, (o) As soon as possible after reaching his destination, he shall report to -, show him his parole, and at оnce enter upon the employment provided for him. (6) He shall, while on parole, remain in legal' custody, and under the control of said boаrd. (7) He shall be liable to be retaken, and again confined within the inclosure of said institution, for any reason that shall be satisfactory to the board of corrections, and at their sole discretion.” For confinement within prison walls,'the parole, if lawful, substitutes the restraints of the promise which it еxacts, and the liability to be rearrested and returned to prison in case the promise is violated. The one is not only legal imprisonment, but actual imprisonment as *481well; the other is simply constructive and legal restraint. The first consists of confinement in the penitentiary; the latter allows the convict to go at large, upon his promise that hе will report on the first day of each month; that he will avoid evil associations, obey the law, conduct himself honestly; and that he will be industrious, and temperate as to the use of intoxicating drinks. The parole leave's him liable to be retaken into actual custody, upon a violation оf its conditions. The restrictions, inconven-.•_ iences, and exactions which the parole imposes upon the convict while at large, and his liability again to be taken into custody and actual imprisonment, and the humiliation and disgrace that attend such a life, constitute punishment. While it is much less in degree than actual confinement in a cell, or within prison walls, it is nevertheless legal punishment. The parole substitutes lesser punishment for that imposed by the sentence. It ‍‌‌​​​‌‌​‌‌​‌​​‌‌‌‌‌‌​‌​‌​‌​​​‌​‌‌​‌‌‌​‌‌‌‌​​‌​​‌‍changes one punishment known to the law for another and different punishment, also known to the law. In other words, it substitutes a less grаde of punishment for that inflicted by the sentence pronounced upon conviction. While the time of the lesser punishment depends upon the observance of the conditions imposed by the parole, the lesser punishment continues until those conditions are violated, or until the еnd of the term as fixed by the sentence. The question to be determined is whether the law purporting to authorize the state board of correсtions to parole persons sentenced to impriosment in the state prison violates section 12, art. 7, of the state constitution, which declares: “Until otherwise provided by law, the govern- or, justices of the supreme court, and attorney general shall constitute a board of pаrdons, a majority of whom, including the governor, upon such conditions, and with such limitations and restrictions as they deem proper, *482may remit fines and forfеitures, commute punishments, and grant pardons after conviction, in all cases except treason and impeachments, subject to such rеgulations as may be provided by law, relative to the manner of applying for pardons; but no fine or forfeiture shall be remitted and no commutation or pardon granted, except after a full hearing before the board, in open session, after previous notice of the time аnd place of such hearing has been given.” This provision gives to the board of pardons the exclusive right to “commute punishment and gant pardоns.” In effect, the parole substitutes the punishment imposed by it for that imposed by the sentence. The actual punishment is changed. One punishment known tо the law is changed to another punishment known to/ the law, and this is commutation. But it may be said that the punishment imposed by the parole under ‍‌‌​​​‌‌​‌‌​‌​​‌‌‌‌‌‌​‌​‌​‌​​​‌​‌‌​‌‌‌​‌‌‌‌​​‌​​‌‍the statutе, if valid, is conditional. It is true that the continuance of the substituted punishment dependo upon certain conditions, — the observance of the rules of conduct prescribed by the parole, and the reports by the prisoner exacted by its terms. But whether the commutation is unconditional or conditional, as to time, it can make no difference. In either case the power to make the communtation is vested in the board оf pardons. Rapalje and Lawrence, in their Law Dictionary, define' “commutation” to be “the substitution of a lesser grade' of punishment for that inflicted by the sentence pronounced upon conviction.” Again, communtation has been defined to be “the change of a punishment to which a person has been condemned, to a less severe one.” And it is added that “this can be granted only by the authority in which the pardoning powеr resides.” 6 Am. & Eng. Enc. Law (2d Ed.) p. 356. We hold that the statute ‍‌‌​​​‌‌​‌‌​‌​​‌‌‌‌‌‌​‌​‌​‌​​​‌​‌‌​‌‌‌​‌‌‌‌​​‌​​‌‍quoted, and the rules adopted in pursuance of it, *483are absolutely void, because they are contrary to the provision of the constitution also quoted. The writ of pro' hibition is granted as prayed.

BaetcHj J., concurs.