chapter 1
ORGANIZATION AND GENERAL ADMINISTRATION
[Prior to 2/22/89,
Parole, Board of[615] Chs 1
and 2]
IAC 6/23/04
205—1.1(904A) Board
description.
1.1(1) The board of parole is established by Iowa Code chapter 904A and
consists of five members, including a chairperson.
1.1(2) Board members are appointed by the governor for staggered terms of four
years and are subject to confirmation by the senate.
1.1(3) The board is responsible directly to the governor and is attached to the
department of corrections for the purpose of receiving routine administrative
and support services.
1.1(4) The board chairperson is appointed by the governor and serves at the
pleasure of the governor.
1.1(5) Vacancies in the board are filled in the same manner as regular
appointments. Appointees who fill vacancies serve for the balance of the
term.
1.1(6) As used in the rules of the Iowa board of parole, the term “board” shall mean the Iowa board of parole.
205—1.2(904A) Board
responsibilities. The statutory
responsibilities of the board are:
1.2(1) Reviewing and interviewing inmates for parole or work release, and
granting parole or work release.
1.2(2) Interviewing inmates according to board of parole administrative rules.
1.2(3) Gathering and reviewing information regarding new parole and work
release programs being instituted or considered nationwide, and determining
which programs may be useful to Iowa. Reviewing the current parole and work release
programs and procedures used in Iowa on an annual basis.
1.2(4) Increasing the utilization of data processing and computerization to
assist in the orderly conduct of the parole and work release system.
1.2(5) Conducting such studies of the parole and work release system as the
governor and general assembly shall request.
1.2(6) Providing, to public and private entities, technical assistance and
counseling related to the board’s purposes.
1.2(7) Reviewing and
making recommendations to the governor regarding all applications for reprieve,
pardon, commutation of sentence, remission of a fine or forfeiture, and
restoration of citizenship rights.
1.2(8) Maintaining a risk assessment program which shall provide risk analysis
for the board.
205—1.3(904A) Business
location and hours. The board’s
business office address is Holmes Murphy Building, 420 Watson Powell Jr. Way, Des
Moines, Iowa
50309, telephone (515)242–5757. Business hours are 8 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays.
205—1.4(904A) Board
meetings.
1.4(1) The board may conduct the following meetings:
a. Business meeting. The board may meet each month to consider rules,
procedure and other matters.
b. Public hearing. The board may conduct a public hearing to
solicit input and comment on parole and work release procedures.
c. Board session. The board shall be in session each month at any
location designated by the chairperson. A board session may include:
(1) Parole and work
release case reviews;
(2) Parole and work
release interviews;
(3) Parole rescission
hearings;
(4) Parole discharge
reviews;
(5) Executive
clemency reviews.
1.4(2) Quorum.
a. A
majority of the members of the board constitutes a quorum except as provided
herein.
b. The
chairperson shall designate panels composed of at least three board members to
conduct board sessions except as provided herein.
1.4(3) Majority vote. All questions shall be decided by a majority vote
of the members except as provided herein.
1.4(4) Parliamentary authority. Robert’s Rules of Order, current edition,
shall govern the conduct of all business meetings of the board except as provided
herein.
1.4(5) Minutes. The board shall keep copies of the minutes of board
meetings on file at the business office. The list of individuals
considered by the board for action shall constitute the minutes of a board
session.
1.4(6) Public notice and agenda. The board shall establish the date,
time, and location of all meetings. The board shall give public notice of
all meetings pursuant to Iowa Code chapter 21. The board shall mail
copies of, or provide by electronic means, notices of public meetings and
tentative agenda to news media that have so requested. When it is
determined that an emergency meeting is required, the board shall notify the
news media as soon as the need for an emergency meeting has been decided.
The nature of the emergency shall be stated in the minutes.
1.4(7) Public access to meetings. Members of the public have access to
board meetings as provided in Iowa Code chapter 21. Persons wishing to
appear before the board shall submit their requests to the business office not
less than three days prior to the business meeting. Members of the public
wishing to attend board meetings conducted in department of corrections penal
institutions should consult, in advance, department of corrections
administrative rules relating to visitation and public access.
1.4(8) Electronic meetings. The board may conduct a meeting by electronic
means as provided in Iowa Code section 21.8.
These rules are intended to
implement Iowa Code chapter 904A.
[Filed 7/26/76, Notice 1/26/76—published
8/9/76, effective 9/13/76]
[Filed 2/7/79, Notices 10/4/78, 11/1/78—published
3/7/79, effective 4/11/79]
[Filed 11/17/81, Notice 8/5/81—published
12/9/81, effective 1/14/82]
[Filed 2/6/89, Notice 12/28/88—published 2/22/89, effective 3/29/89]
[Filed 5/14/99, Notice 3/24/99—published
6/2/99, effective 7/7/99]
[Filed 6/4/04, Notice 4/28/04—published
6/23/04, effective 7/28/04]
IAC 6/23/04
chapter 5
FAIR INFORMATION PRACTICES
[Prior to 2/22/89,
Parole, Board of[615] Ch 14; see also 205—Ch 6]
IAC 6/23/04
The board of parole hereby
adopts, with the following exceptions and amendments, the Uniform Rules on
Agency Procedure relating to fair information practices which are printed in
the first volume of the Iowa Administrative Code.
205—5.1(17A,22)
Definitions. As used in this
chapter:
“Agency” means the board of
parole.
“Confidential records” means
records, as defined under Iowa Code sections 22.7, 22.8, 904.601, 904.602 and
904.603, which are not disclosed to members of the public except by court
order. This includes records which the board is prohibited by law from
making available for inspection by members of the public and those exempt
records which the board has determined not to disclose to members of the
public.
“Open records” means those
records which are not authorized or required to be kept confidential under Iowa
Code section 22.7, 22.8, 904.601, or 904.602 or any other provision of the law.
205—5.2(17A,22)
Statement of policy. The purpose
of this chapter is to facilitate broad public access to open records. It
also seeks to facilitate sound agency determinations with respect to the
handling of confidential records and the implementation of the fair information
practices Act. This agency is committed to the policies set forth in Iowa
Code chapter 22. Agency staff shall cooperate with members of the public
in implementing the provisions of that chapter.
205—5.3(17A,22) Requests
for access to records.
5.3(1) Location of record. A
request for access to a record should be directed to the office where the
record is kept. Records of current inmates, work releasees
and parolees are maintained in the office of the Board of Parole, Holmes Murphy Building, 420 Watson Powell Jr. Way, Des
Moines, Iowa
50309, telephone (515)242–5757.
5.3(2) Office hours.
Open records shall be made
available during all customary office hours, which are 8 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays.
5.3(3) Request for access. Requests
for access to records may be made in writing, in person, or by telephone if the
request is for open record information. Requests shall identify the
particular records sought by name or description in order to facilitate the
location of the record. Mail requests shall include the name, address and
telephone number of the person requesting the information. A person shall
not be required to give a reason for requesting an open record.
5.3(4) Response to requests. The
custodian is authorized to grant or deny access to the record according to the
provisions of Iowa Code chapter 22, Iowa Code sections 904.601, 904.602, and
904.603 and this chapter. The decision to grant or deny access may be delegated
to one or more designated employees. Unless the size or nature of the
request requires time for compliance, the agency shall comply with the request
as soon as practicable. However, access to such a record may be delayed
for one of the purposes authorized by Iowa Code section 22.8(4) or 22.10(4) or
for good cause. The agency shall promptly inform the requester of the
reason for the delay. A request to review a confidential record shall be
in writing and shall enumerate the specific grounds justifying access to the
confidential record and shall provide any proof necessary to establish relevant
facts prior to receiving access to the record.
5.3(7) Fees.
c. Supervisory fee. An hourly fee may be charged for actual agency
expenses in supervising the examination and copying of requested records when
the supervision time required is in excess of five minutes. That hourly
fee shall not be in excess of the hourly wage of an agency employee who
ordinarily would be appropriate and suitable to perform this supervisory
function.
205—5.5(17A,22) Requests
for treatment of a record as a confidential record and its withholding from
examination.
5.5(5) Request granted or deferred. If a
request for confidential record treatment is granted, or if action on such a
request is deferred, a copy of the record from which the matter in question has
been deleted and a copy of the decision to grant the request or to defer action
upon the request will be placed in the agency’s public file in lieu of the
original record. If the agency subsequently receives a request for access
to the original record, the agency will make reasonable and timely efforts to
notify any person who has filed a request for its treatment as a confidential
record.
205—5.6(17A,22)
Procedure by which additions, dissents or objections may be entered into
certain records. Except as otherwise provided by law, a person may file a request
with the custodian to review, and to have a written statement of additions,
dissents, or objections entered into, a record containing personally
identifiable information pertaining to that person. However, this
does not authorize a person who is the subject of such a record to alter the
original copy of that record or to expand the official record of any agency
proceeding. Requester shall send the request to review such a record or
the written statement of additions, dissents, or objections to the custodian or
to the Board of Parole, Holmes Murphy Building, 420
Watson Powell Jr. Way, Des Moines, Iowa 50309. The request to review such a record or the
written statement of such a record of additions, dissents, or objections must
be dated and signed by the requester, and shall include the current address and
telephone number of the requester or the requester’s representative.
205—5.7(17A,22)
Consensual disclosure of confidential records.
5.7(1) Consent to disclose by a subject individual. To the extent allowed
by law, the subject may consent in writing to agency disclosure of confidential
records as provided in rule 5.4(17A,22).
5.7(2) Complaints to public officials. A letter from a subject of a
confidential record to a public official which seeks the official’s
intervention on behalf of the subject in a matter that involves the agency may,
to the extent permitted by law, be treated as an authorization to release
sufficient information about the subject to the official to resolve the matter.
5.7(3) Obtaining information from a third party. The board is required to
obtain information to assist in making decisions regarding classification,
programming, security and administrative management. Requests to third
parties for this information may involve the release of confidential
information about individuals. Except as provided by
law, the board may make these requests only when the individual has authorized
the release.
205—5.9(17A,22) Routine
use. To the extent allowed by
law, the following uses are considered routine uses of all agency records:
5.9(1) Disclosure to those officers, employees, and agents of the agency who
have a need for the record in the performance of their duties. The
custodian of the record may, upon request of any officer or employee, or on the
custodian’s own initiative, determine what constitutes legitimate need to use
confidential records.
5.9(2) Disclosure of information indicating an apparent violation of the law to
appropriate law enforcement authorities for investigation and possible criminal
prosecution, civil court action, or regulatory order.
IAC 6/23/04
5.9(3) Disclosure to the department of inspections and appeals for matters in
which it is performing services or functions on behalf of the agency.
5.9(4) Transfers of information within the agency, to other state agencies, or
to units of local government as appropriate to administer the program for which
the information is collected.
5.9(5) Information released to staff of federal and state entities for audit
purposes or for purposes of determining whether the agency is operating a
program lawfully.
5.9(6) Any disclosure specifically authorized by the statute under which the
record was collected or maintained.
205—5.10(17A,22)
Disclosures without the consent of the subject.
5.10(1) Open records are routinely disclosed without the
consent of the subject.
5.10(2) To the extent allowed by law, disclosure of
confidential records may occur without the consent of the subject.
Following are instances when disclosure, if lawful, will generally occur
without notice to the subject:
a.
For a routine use as permitted by law
and in the particular record system.
b. To a
recipient who has provided the agency with advance written assurance that the
record will be used solely as a statistical research or reporting record,
provided that the record is transferred in a form that does not identify the
subject.
c. To
another government agency or to an instrumentality of any governmental
jurisdiction within or under the control of the United States for a civil or
criminal law enforcement activity if the activity is authorized by law, and if
the head of such government agency or instrumentality has submitted a written
request to the agency specifying the record desired and the law enforcement
activity for which the record is sought.
d. To
an individual pursuant to a showing of compelling circumstances affecting the
health or safety of any individual if a notice of the disclosure is transmitted
to the last–known address of the subject.
e.
To the legislative services agency
under Iowa Code Supplement section 2A.3.
f. Disclosures
in the course of employee disciplinary proceedings.
g.
In response to a court order or
subpoena.
205—5.11(17A,22) Release
to subject.
5.11(1) The subject of a confidential record may file a written
request to review confidential rec–ords about that person. However, the board need not
release the following records to the subject:
a. The
identity of a person providing information to the agency need not be disclosed
directly or indirectly to the subject of the information when the information
is authorized to be held confidential pursuant to Iowa Code sections 22.7(18)
and 904.602.
b. Records
need not be disclosed to the subject when they are the work product of an
attorney or are otherwise privileged.
c. Peace
officers’ investigative reports may be withheld from the subject, except as
required by the Iowa Code.
d. As
otherwise authorized by law.
5.11(2) When a record has multiple subjects with interest in
the confidentiality of the record, the board may take reasonable steps to
protect confidential information relating to another subject.
IAC 6/23/04
205—5.12(17A,22)
Availability of records.
5.12(1) Open records.
Board records are open for
public inspection and copying unless otherwise prohibited by current rule or
law.
5.12(2) Confidential records. The
following records may be kept confidential. Records are listed by
category, according to the legal basis for withholding them from public
inspection.
a. Sealed
bids received prior to the time set for public opening of bids; (Iowa Code
section 72.3)
b. Tax
records made available to the agency; (Iowa Code sections 422.17, 422.20)
c. Minutes
of closed meetings of a governmental body; (Iowa Code section 21.5(4))
d. Identifying
details in final orders, decisions and opinions to the extent required to
prevent a clearly unwarranted invasion of personal privacy or trade secrets
under Iowa Code section 17A.3(1)(d);
e. Those
portions of agency staff manuals, instructions, or other statements issued
which set forth criteria or guidelines to be used by agency staff in auditing,
in making inspections, in settling commercial disputes or negotiating
commercial arrangements, or in the selection or handling of cases, such as
operational tactics or allowable tolerance or criteria for the defense,
prosecution or settlement of cases, when disclosure of these statements would:
(1) Enable law
violators to avoid detection;
(2) Facilitate
disregard of requirements imposed by law; or
(3) Give a clearly
improper advantage to persons who are in an adverse position to the agency;
(Iowa Code section 22.7)
f. Records
which constitute attorney work product, or attorney–client communications, or
which are otherwise privileged. Attorney work product is confidential
under Iowa Code sections 22.7(4), 622.10 and 622.11, Iowa Rule of Civil
Procedure 1.503(3), Federal Rule of Civil Procedure 26(b)(3), and case
law. Attorney–client communications are confidential under Iowa Code
sections 622.10 and 622.11, the rules of evidence, the Code of Professional
Responsibility and case law;
g. Other
records made confidential by law.
205—5.13(17A,22)
Personally identifiable information.
5.13(1) This rule describes the nature and extent of personally
identifiable information which is collected, maintained and retrieved by the
agency by personal identifier in record systems as defined in this rule.
For each record system, this rule:
a. Describes
the legal authority for the collection of that information and the means of
storage of that information; and
b. Indicates
whether a data processing system matches, collates, or permits the comparison
of personally identifiable information in one record system with personally
identifiable information in another record system.
5.13(2) Litigation files. These files or records contain
information regarding litigation or anticipated litigation, which includes
judicial and administrative proceedings. The records include briefs,
depositions, docket sheets, documents, correspondence, attorney notes,
memoranda, research materials, witness information,
investigation materials, information compiled under the direction of the
attorney and case management records. The files contain materials which
are confidential as attorney work product and attorney–client
communications. Some materials are confidential under other applicable
provisions of law or because of a court order. Persons wishing copies of
pleadings and other documents filed in litigation should obtain these from the
clerk of the appropriate court which maintains the official copy.
IAC 6/23/04
5.13(3) Personnel files. The agency maintains files
containing information about employees, families and dependents, and applicants
for positions with the agency. The files include payroll records,
biographical information, medical information relating to disability,
performance reviews and evaluations, disciplinary information, and tax
withholding information concerning the employer–employee relationship.
Some of this information is confidential under Iowa Code section 22.7(11).
205—5.14(17A,22) Other
groups of records available for public inspection—policies and procedures
(excluding security), meeting minutes.
This rule describes groups of records maintained by the board other than record
systems as previously defined. These records are routinely available to
the public. However, the board’s file of these records may contain
confidential information, as discussed in rule 5.12(17A,22).
The following records are stored both as hard copy and in automated data
processing systems unless otherwise noted.
5.14(1) Rule–making records. Rule–making
records may contain information about individuals making written or oral
comments on proposed rules. This information is collected pursuant to
Iowa Code section 17A.4.
5.14(2) Board meeting records. Agendas,
minutes and materials presented to the board are available from the office of
the director, except those records concerning closed sessions which are exempt
from disclosure under Iowa Code section 21.5(4) or which are otherwise
confidential by law. Board meeting records contain information about
people who participate in meetings. The information is collected pursuant
to Iowa Code section 21.3. This information is not retrieved by
individual identifier.
5.14(3) Publications.
News releases, annual reports,
project reports, board newsletters, and related documents are available from
the board office. Board news releases, project reports, and newsletters
may contain information about individuals, including board staff or members of
the board councils or committees. This information is not retrieved by
individual identifier.
5.14(4) Statistical reports. Periodic
reports of the board for various board programs are available from the board
office. Statistical reports do not contain personally identifiable
information.
5.14(5) Grants. Records on persons receiving grants for various
projects or programs are available through the office of the executive
director. These records may contain information about employees or a
grantee. This information is not retrieved by individual identifier and
is not stored on an automated data processing system. The information is
collected under the authority of Iowa Code chapter 904.
5.14(6) Published materials. The
board uses many legal and technical publications in its work. The public
may inspect these publications upon request. Some of these materials may
be protected by copyright law. These records are hard copy only.
5.14(7) Policy manuals. The board employees’
manual, containing procedures describing the board’s regulations and practices,
is available. Subscriptions to all or part of the employees’ manual are
available at the cost of production and handling. Requests for
subscription information should be addressed to the board office. Policy
manuals do not contain information about individuals.
5.14(8) Other records. All other records that
are not exempt from disclosure by law are available from the board office.
205—5.15(17A,22)
Applicability. This chapter does
not:
5.15(1) Require the agency to index or retrieve records which
contain information about an individual by that person’s name or other personal
identifier.
5.15(2) Make available to the general public records which
would otherwise not be available under the public records law, Iowa Code
chapter 22.
5.15(3) Govern the maintenance or disclosure of, notification
of, or access to records in the possession of the agency which are governed by
the regulations of another agency.
IAC 6/23/04
5.15(4) Apply to grantees, including local governments or
subdivisions thereof, administering state–funded programs, unless otherwise
provided by law or agreement.
5.15(5) Make available records compiled by the agency in
reasonable anticipation of court litigation or formal administrative
proceedings. The availability of such records to the general public or to
any subject individual or party to such litigation or proceedings shall be
governed by applicable legal and constitutional principles, rules of discovery,
evidentiary privileges and applicable regulations of the agency.
These rules are intended to
implement Iowa Code section 22.11 and chapter 17A.
[Filed without Notice 5/27/88—published 6/15/88, effective 7/20/88]
[Filed 2/6/89, Notice 12/28/88—published 2/22/89, effective 3/29/89]
[Filed 5/14/99, Notice 3/24/99—published
6/2/99, effective 7/7/99]
[Filed 6/4/04, Notice 4/28/04—published
6/23/04, effective 7/28/04]
IAC 6/23/04
chapter 6
PUBLIC COMMUNICATIONS AND RECORDS
IAC 6/23/04
205—6.1(22) General. The public may obtain information or make
submissions to the board through the business office.
205—6.2(22) Communications
from persons other than victims.
6.2(1) Written communication preferred. The
board requests that all communications by a person other than a victim, as
defined in rule 205—7.1(915), concerning an inmate, parolee, or work releasee be in writing so that the communication may
readily be made a permanent part of the case file. Oral communications
concerning an inmate, parolee, or work releasee by a
person other than a victim will be heard only with the consent of the board.
6.2(2) Disclosure to inmate. The
board shall place a written communication concerning an inmate, parolee, or
work releasee in the case file. The board shall
inform an inmate, parolee, or work releasee when a
communication adverse to the inmate, parolee, or work releasee
will be considered in making a parole or work release decision and shall
disclose to the inmate, parolee, or work releasee the
substance of any opinion regarding the inmate’s, parolee’s or work releasee’s status unless withholding the information is
requested by the person providing the statement or oral communication and the
board determines that the release of the information would endanger the public
safety.
205—6.3(22) Examination
of board records.
6.3(1) General. The public may examine and copy board public
records pursuant to Iowa Code chapter 22 at the board’s business office.
An individual wishing to examine or copy a record must schedule an appointment
with the board’s business office a minimum of three working days prior to the
date on which the individual will review the information in question. When
making the appointment, the requesting party shall specifically indicate the
information desired. Complete inmate files will not be released except by
court order. When photocopies of documents or copies of audiotapes or
videotapes are provided, the board may require the requester to pay the cost of
the copies plus a reasonable charge for copying. These charges are to be
determined by the lawful custodian. The board may refer anyone requesting
information which has been generated by a source outside the board to the
agency or individual which generated the information.
6.3(2) Lawful custodian. The board shall
designate the chairperson or the chairperson’s designee as the lawful custodian
of the records who shall be responsible for implementing the board’s rules
regarding disclosure of public records and coordination of staff in this regard
and generally ensuring compliance by the staff with public records disclosure
requirements.
205—6.4(904) Disclosure
of information regarding inmates and parolees.
6.4(1) Public information. The following information
regarding individuals receiving services from the department of corrections or
a district department is public information and may be disclosed by the board
to anyone who requests the information, except that information shall be
limited to the offense for which an individual was last convicted:
a. Name.
b. Age
and date of birth.
c. Sex.
d. Status
(for example, inmate, parolee, or probationer).
e. Location,
except home street address.
f. Duration
of supervision.
g. Offense
or offenses for which the individual was placed under supervision.
h. County
of commitment.
i.
Arrest and detention orders.
j. Physical
description.
k. Type
of services received, except medical, psychiatric, psychological, substance
abuse, gambling and sex offender treatment information.
l. Disciplinary
reports and decisions which have been referred to the county attorney or
prosecutor for prosecution, and the following information from all other
disciplinary reports:
(1) The name of the
subject of the investigation.
(2) The alleged
infraction involved.
(3) The finding of
fact and the penalty, if any, imposed as a result of the infraction.
m. Inmate
risk assessment score.
6.4(2) Confidential information regarding inmates and parolees. The
following information regarding individuals receiving services from the
department of corrections or a district department is confidential information
and shall not be disclosed to the public:
a. Home
street address of the individual receiving services or of that individual’s
family.
b.
Department evaluations.
c. Medical,
psychiatric, psychological, substance abuse treatment, gambling and sex
offender treatment information.
d. Names
of associates or accomplices.
e. Name
of employer.
f. Social
security number.
g. Prior
criminal history including information on offenses when no conviction occurred.
h. Family
and personal history.
i.
Financial information.
j.
Information from disciplinary reports
and investigations other than that identified in subrule
6.4(1).
k. Investigations
by the department of corrections or other agencies which are contained in the
individual’s file.
l. Department
of corrections committee records containing confidential information.
m. Presentence
investigations as provided under Iowa Code chapter 901.
n. Pretrial
information that is not otherwise available in public court records or
proceedings.
o. Correspondence
of a personal or confidential nature as determined by the board or the department
directed to the board or the department of corrections from an individual’s
family, victims, or employers.
p. Communications
to the board by members of the public other than public officials to the extent
that the board believes that those members of the public would be discouraged
from making the communications if the communications were available for general
public examination.
q. Victim
registrations pursuant to 205—Chapter 7. A record containing information
which is both public and confidential which is reasonably segregable
shall not be confidential after deletion of the confidential information.
IAC 6/23/04
6.4(3) The board may disclose confidential information described in subrule 6.4(2) as follows:
a. The
board may release statistical information which does not identify particular
individuals.
b. The
board may disclose information to the department of corrections; district
departments; public officials for use in connection with their duties relating
to law enforcement, audits, and other purposes directly connected with the
administration of their programs; and public and private agencies providing
services to individuals. Those receiving information shall be subject to
the same standards as the board in dissemination and redissemination
of information.
c. The
board may disclose information when necessary for civil or criminal court
proceedings pursuant to court order. The board may seek to have the court
limit disclosure of confidential information.
d. The
board shall give a supervised individual or former supervised individual access
to the individual’s own records in the custody of the board, except for those
records that could result in physical or psychological harm to the individual
or others, and disciplinary reports. Upon written authorization by a
supervised individual or former supervised individual, the board may release
information to any party included in the written release. This
information is restricted to that which the individual can obtain.
205—6.5(904A) Inmate
requests regarding risk assessment score. An inmate may request information from the board of parole
regarding the inmate’s risk assessment score. However, because an
inmate’s risk assessment score will not change unless the inmate is released
from and later returned to prison, the board shall not be required to respond
to more than one request regarding the risk assessment score per commitment to
prison from each inmate.
These rules are intended to
implement Iowa Code chapter 22 and sections 904.601, 904.602, and 904A.4.
[Filed 2/6/89, Notice 12/28/88—published 2/22/89, effective 3/29/89]
[Filed 5/14/99, Notice 3/24/99—published
6/2/99, effective 7/7/99]
[Filed 6/4/04, Notice 4/28/04—published
6/23/04, effective 7/28/04]
IAC 6/23/04
chapter 8
PAROLE AND WORK RELEASE CONSIDERATIONS
IAC 6/23/04
205—8.1(906) Purpose of
parole and work release considerations.
The board shall determine whether there is reasonable probability that an
inmate committed to the custody of the department of corrections who is
eligible for parole or work release can be released without detriment to the
community or the inmate. The board shall consider the best interests of
society and shall not grant parole or work release as an award of clemency.
205—8.2(906) Parole and
work release eligibility.
8.2(1) Mandatory sentences. The
board shall not grant parole to an inmate serving a mandatory minimum
sentence. The board shall not grant work release to an inmate serving a
mandatory minimum sentence unless the inmate is within six months of completing
the mandatory minimum portion of the sentence. A parole or work release
granted contrary to this rule shall be rescinded. Mandatory sentences are
as follows:
a. A
life sentence imposed for conviction of a Class “A” felony pursuant to Iowa
Code section 902.1;
b. A
mandatory minimum sentence imposed for use of a firearm pursuant to Iowa Code
section 902.7;
c. A
mandatory minimum sentence imposed for violation of uniform controlled
substance provisions pursuant to Iowa Code section 124.406 or 124.413;
d. A
mandatory minimum sentence imposed for being an
habitual offender pursuant to Iowa Code section 902.8;
e. A
mandatory minimum sentence imposed for a prior forcible felony pursuant to Iowa
Code section 902.11.
8.2(2) Parole and work release while on patient status. Generally, the board will not grant parole or
work release to an inmate on patient status.
8.2(3) Parole to detainer. The board may grant parole to an inmate against whom a detainer
has been placed by another state. Generally, the board will not parole an
inmate to a detainer that is solely for prosecution.
8.2(4) Parole to other states. The board may grant parole to another state pursuant to
the provisions of the interstate parole and probation compact set forth in Iowa
Code chapter 907A.
205—8.3 Reserved.
205—8.4(906) Prior
forcible felony mandatory minimum sentence. The board shall deny parole or work release to an inmate who is
serving a mandatory minimum sentence pursuant to Iowa Code section 902.11.
205—8.5(904A) Risk
assessment. The board shall
assess the risk of an inmate committed to the custody of the department of
corrections. The board shall utilize a risk assessment instrument
approved by the board by resolution.
205—8.6(906) Parole and
work release considerations.
8.6(1) Case reviews. The board may review the records of an inmate
committed to the custody of the department of corrections and consider the
inmate’s prospects for parole or work release at any time. The board
shall notify an inmate only if the inmate is granted parole or work release,
except as provided in 8.16(3).
8.6(2) Interviews. The board may interview an inmate committed to
the custody of the department of corrections at any time.
8.6(3) The board shall review the status of each inmate as directed by the Iowa
Code, and shall provide the inmate with notice of its parole or work release
decision. After an inmate has been granted work release, the board shall
review the inmate’s status at least annually from the date of the decision to
grant work release.
8.6(4) Class “A” felons, and Class “B” felons serving a sentence of more than
25 years, are excepted from the annual review requirement of 8.6(3).
8.6(5) Inmates serving a mandatory minimum sentence are excepted from the
annual review requirements of 8.6(3) until such time as the mandatory minimum
has expired.
8.6(6) Department initiated review. The department of corrections may
recommend an inmate for parole or work release consideration at any time.
The board shall discuss such a recommendation with department staff during the
next regularly scheduled board session involving the institution where the
inmate in question is incarcerated. The board may, at its discretion,
interview the inmate prior to acting upon the recommendation of the department
of corrections staff.
205—8.7(906) Parole and
work release information. The
board shall notify the department of corrections or a district department when
an inmate is to be considered for parole or work release. The receipt of
notice by the department of corrections or the district department shall
constitute a request for updated information on the inmate. The board
shall request information required for parole or work release decision
making. The department of corrections or the district department shall
furnish updated information to the board.
205—8.8(906) Interview
notice. The board or the board’s
designee shall notify an inmate to be interviewed for parole or work release
consideration of the time and purpose of the interview. Notice given to
the department of corrections shall be considered notice to the inmate.
Not less than 20 days prior to the interview, the board shall also notify the
department of corrections of the scheduling of the interview, and the
department shall make the inmate available to the board at the inmate’s
institutional residence as scheduled in the notice. However, if health,
safety, or security conditions require moving the inmate to another institution
or facility prior to the scheduled interview, the department of corrections shall
so notify the board.
205—8.9(906) Continuance. The board may reschedule or continue a parole or
work release interview upon its own motion or upon a showing of good cause, as
determined by the board.
205—8.10(906) Factors
considered in parole and work release decisions.
8.10(1) The board may consider the following factors and others
deemed relevant to the parole and work release decisions:
a. Previous
criminal record;
b. Nature
and circumstances of the offense;
c. Recidivism
record;
d.
Convictions or behavior indicating a propensity for violence;
e. Participation
in institutional programs, including academic and vocational training;
IAC 6/23/04
f. Psychiatric
and psychological evaluations;
g. Length
of time served;
h. Evidence
of serious or habitual institutional misconduct;
i.
Success or failure while on probation;
j. Prior
parole or work release history;
k.
Prior refusal to accept parole or work release;
l. History
of drug or alcohol use;
m. A parole
plan formulated by the inmate;
n. General
attitude and behavior while incarcerated;
o. Risk
assessment.
8.10(2) Psychological and psychiatric evaluations. The
board may request a complete psychiatric or psychological evaluation of an
inmate whenever, in the opinion of the board, it would be beneficial to the
board’s decision. The board shall routinely request an evaluation of an
inmate convicted of a crime involving sexual abuse or personal violence, or of
an inmate who has committed assaults or violent acts while incarcerated.
205—8.11(906) Information
disclosure to inmate. The board
shall normally consider only information that has been reviewed by the inmate,
except when the board deems such review not feasible. The information
shall be considered only if the following safeguards are followed:
8.11(1) The staff of the department of corrections shall
discuss the information with the inmate and disclose to the inmate any factual
allegations if the disclosure can be done in a manner that protects
confidential sources.
Factual allegations shall include
but not be limited to:
a. Any
statements attributed to the inmate;
b. Any
allegations of criminal or antisocial behavior with or without court conviction
from within or without the institution;
c. Any
allegations of threats made by the inmate;
d. Any
allegations of drug addiction or alcoholism;
e. Any
allegations regarding family history, employment or education;
f. Disciplinary
record at the institution.
8.11(2) If any information from outside institutions under the
supervision of the department of corrections is to be considered by the board,
and it is necessary to protect the source, the inmate shall be informed of at
least the following:
a. The
general substance of the information;
b. The
number of communications;
c. The
type of communications.
The inmate shall be given the
opportunity to respond to information.
8.11(3) The inmate’s
reports from institutions under the supervision of the department of
corrections, including reception reports, progress reports, medical reports,
and social information or reports, should, to the extent possible, be
structured so as to separate opinion from factual information. The
factual information shall be made available for review by the inmate; opinion
information shall be confidential. Psychiatric or psychological test
results or diagnoses shall be deemed confidential.
205—8.12(906) Interview
procedure. The board or board
panel shall interview the inmate and consider the inmate’s records with respect
to history, current situation, parole and work release prospects, and other
pertinent matters. The board or board panel shall give the inmate ample
opportunity to express views and present materials.
IAC 6/23/04
205—8.13(906) Case
review procedure. The board or
board panel may consider the inmate’s records and other information with
respect to history, current situation, parole and work release prospects, and
other pertinent matters. A case review may take place at any time and is
in addition to any other required review.
205—8.14(906) Conduct at
parole proceedings.
8.14(1) Parole proceedings shall be open to the public except
as otherwise necessary or proper.
8.14(2) Conduct of inmate.
a. Conduct
of the inmate shall be in a manner consistent with decorum appropriate for a
participant in a public meeting of a governmental body.
b. An
inmate may not orally or otherwise communicate with spectators or others
present at the parole proceeding except as permitted by the panel or board.
c. The
inmate shall speak to the panel or board or counselor only when asked a
question or directed otherwise to do so.
d. Each
inmate will be given an opportunity to make an independent statement to the
panel or board at some point during the parole proceeding. The panel or
board may limit this statement in any manner as to topic or time.
Specifically subject to this limitation will be persons who have no realistic
grounds to believe a parole will be granted, i.e., those with mandatory minimum
sentences, those serving life terms, or those having served short times
relative to the severity of their crimes and length of their sentences.
e. Failure
to comply with the direction of the panel or board in limiting statements, in
communicating with persons present at the parole proceeding, or any absence of
decorum which could disrupt or delay the proceeding may, at the discretion of
the board, result in a forfeiture of the right to an interview and a request by
the board to have the institutional staff remove the inmate.
f. An
inmate who forfeits the right to an interview for reasons under 8.14(2)“e” or
for any other reason shall not be interviewed again until the inmate’s next
annual review, or until such earlier time as determined by the board, except
that the inmate may request an earlier interview. The request is to be
made through the board liaison officer, the counselor or other institutional
staff member, or the ombudsman, together with assurance by the inmate that no
repeat of the offending conduct or other offending conduct will occur. A reinterview is subject to the discretion of the panel or
board.
8.14(3) Conduct of spectators.
a. Spectators
may not participate in the parole proceedings. The number of spectators
will be limited by the number of seats provided. Only board staff or
institutional staff will be allowed to stand during the interviews or between
interviews, except during breaks of the panel or board or as necessary to enter
and leave during times designated by the panel or board. An exception
will be made for television camera operators.
b. Spectators
may not enter or leave the room during interviews or between interviews, except
that the board or panel will designate times when persons may enter and
leave. This will be done at reasonable intervals, and may be between
interviews even though the board or panel does not take a break.
c. Entering
and leaving the interview room before and after the interview sessions and
during breaks in the interview sessions shall be subject to the restrictions
imposed by the staff of the institution at which the session is being held.
d. Spectators
shall make no utterances which are intended to be or can be heard by the inmate
or the panel. This includes any conversation among spectators.
e. Spectators
shall conduct themselves in a manner consistent with decorum appropriate for a
public meeting of a governmental body.
IAC 6/23/04
f. Any
activity deemed inappropriate by the panel or institutional staff under the
guidelines in the rules may result in a request by the panel or institutional
staff for the offending party or parties to leave. Warnings for
inadvertent or minor misconduct may or may not be given the first time it
occurs, and any subsequent offending activity will result in a request to
leave. Refusal to leave upon request will result in a request by the panel to
have the person or persons removed by the institutional staff.
All spectator places shall be on
a first–come, first–served basis in accordance with the rules of the
institution or the department of corrections.
g. A
spectator who leaves during a time designated for entering or leaving or during
a short break by the panel may retain a place if the person returns at the next
time designated for that purpose. A person does not retain a place at the
hearing over breaks taken for lunch or dinner or overnight.
8.14(4) Conduct of the media.
a.
General. Broadcasting,
televising, recording and photographing will be permitted in the interview room
during open sessions of the board or panel, including recesses between
sessions, under the following conditions:
(1) Permission first
shall have been granted by the institution or department of corrections, which
may prescribe conditions and restrictions for bringing equipment into areas of
the institution.
(2) Media coverage of
any proceeding which is held in closed session under Iowa
law is prohibited.
(3) The quantity and
types of equipment permitted in the interview room shall be subject to the
discretion of the panel or board within the guidelines in these rules, and
subject to the permission of the institution or department of corrections.
(4) Notwithstanding
the provisions of any of these procedural or technical rules, the panel or
board may permit the use of other equipment provided the application for
variance is made in advance. Ruling upon the variance application shall
be in the discretion of the panel or board, subject to permission of the
institution or department of corrections to bring in or move equipment.
(5) The panel or
board may limit or terminate photographic or electronic media coverage by any or
all media participants at any time during the proceedings in the event the
panel or board finds that rules in this chapter or additional rules imposed by
the institution or department of corrections have been violated.
(6) The rights of
motion picture and electronic coverage provided herein may be exercised only by
persons or organizations which are part of the news media, except that
individuals may use sound tape recorders.
b. Advance notice of coverage. All requests by representatives of the news media to
use television cameras or electronic sound recording equipment in the interview
room shall be made to the institution in advance in accordance with department
of corrections rules.
c. Equipment specifications. Equipment to be used by the media or public in
interview rooms or meeting rooms during interview proceedings or board meetings
held at the institutions must be unobtrusive and must not produce distracting
sound. In addition, the equipment must satisfy the following criteria, where
applicable:
(1) Still
cameras. Still cameras and lenses must be unobtrusive, without
distracting light or sound.
(2) Television
cameras and related equipment. Television cameras are to be electronic
and, together with any related equipment to be located in the interview room,
must be unobtrusive in both size and appearance, without distracting sound or
light. Television cameras are to be designed or modified so that
participants in the parole interview being covered are unable to determine when
recording is occurring.
IAC 6/23/04
(3) Audio
equipment. Microphones, wiring and audio recording equipment shall be
unobtrusive and shall be of adequate technical quality to prevent interference
with the proceeding being covered. Any changes in existing audio systems
must be approved by the panel or board. No modifications of existing
systems shall be made at public expense.
(4) Advance
approval. It shall be the duty of media personnel to demonstrate to the
panel or board reasonably in advance of the proceeding that the equipment
sought to be utilized meets the criteria set forth in this rule. Failure
to obtain advance panel or board approval for equipment may preclude its use in
the proceeding. All media equipment and personnel shall be in place at
least 15 minutes prior to the scheduled time of commencement of the proceeding.
d. Lighting. Other than light sources already existing in the interview room,
no flashbulbs or other artificial light device of any kind shall be employed in
the interview room. With the concurrence of the panel and institutional
staff, however, modifications may be made in light sources existing in the
interview room (e.g., higher wattage light bulbs), provided the modifications
are installed and maintained without public expense.
e. Equipment and pooling. The following limitations on the amount of equipment
and number of photographic and broadcast media personnel in the interview room
shall apply:
(1) Still
photography. Not more than two still photographers, each using not more
than two camera bodies and two lenses, shall be permitted in the interview room
at any one time during a parole proceeding.
(2) Television.
Not more than two television cameras, each operated by not more than one camera
person, shall be permitted in the interview room during a parole
proceeding. All components must be contained within the area designated
for the camera. Where possible, recording and
broadcasting equipment which is not a component part of a television camera
shall be located outside the interview room.
(3) Audio. Not
more than one audio system shall be set up in the interview room for broadcast
coverage of a parole proceeding. Audio pickup for broadcast coverage
shall be accomplished from any existing audio system present in the interview
room, if the pickup would be technically suitable for broadcast. Where possible, electronic audio recording equipment and any
operating personnel shall be located outside the interview room.
(4) Pooling.
Where the above limitations on equipment and personnel make it necessary, the
media shall be required to pool equipment and personnel. Pooling
arrangements shall be the sole responsibility of the media, and the panel or
board shall not be called upon to mediate any dispute as to the appropriate
media representatives authorized to cover a particular parole proceeding.
f. Location of equipment and
personnel. Equipment and
operating personnel shall be located in, and coverage of the proceedings shall
take place from, an area or areas within the interview room designated by the
panel or institutional staff. The area or areas designated shall provide
reasonable access to the proceeding to be covered.
g. Movement during proceedings. Television cameras and audio equipment may be
installed in or removed from the interview room only when the panel or board is
not in session. In addition, the equipment shall at all times be operated
from a fixed position. Still photographers and broadcast media personnel
shall not move about the interview room while proceedings are in session, nor
shall they engage in any movement which attracts undue attention. Still
photographers shall not assume body positions inappropriate for spectators.
h. Decorum. All still photographers and broadcast media personnel
shall be properly attired and shall maintain decorum appropriate for a public
meeting of a governmental body at all times while covering a parole proceeding.
IAC 6/23/04
205—8.15(906) Parole and
work release decisions.
8.15(1) The board shall grant parole to an inmate on work
release status if at least three members of the board agree that the inmate can
be released without detriment to the community or to the inmate. If three
members do not agree, the board shall deny parole.
8.15(2) The board shall grant parole or work release to an
inmate with a risk assessment score of 1, 2, 3, 4, 5, or 6 only if at least
three members of the board agree that the inmate can be released without
detriment to the community or to the inmate. If three members do not
agree, the board shall deny parole or work release.
8.15(3) The board shall defer granting parole or work release
to an inmate with a risk assessment score of 7 or 8 and refer the case to the
full board for review. The full board shall grant parole or work release
only if at least four members agree that the inmate can be released without
detriment to the community or to the inmate. If four members do not
agree, the board shall deny parole or work release. If there are not four
board members available due to unfilled vacancies on the board, conflicts of
interest of board members, illness, or other reason, the board chairperson may,
upon consultation with the board, suspend the four–vote requirement and allow
parole or work release to be granted upon three votes.
8.15(4) The board shall defer granting parole or work release
to an inmate with a risk assessment score of 9 and refer the case to the full
board for review. The full board shall grant parole or work release only
if the board members unanimously agree that the inmate can be released without
detriment to the community or to the inmate. If the board members do not
unanimously agree, the board shall deny parole or work release. If any of
the five board members are not available due to unfilled vacancies on the
board, conflicts of interest of board members, illness, or other reason, the
board chairperson may, upon consultation with the board, suspend the five–vote
requirement and allow parole or work release to be granted upon four votes if
one board member is unavailable, or upon three votes if two board members are
unavailable.
8.15(5) The board may determine if an inmate shall be required
to provide a physical specimen to be submitted for DNA profiling as a condition
of parole or work release. The board shall consider the deterrent effect
of DNA profiling, the likelihood of repeated violations by the offender, and
the seriousness of the offense. When funds have been allocated from the
general fund of the state, or funds have been provided by other public or
private sources, the board shall order DNA profiling, if appropriate.
205—8.16(906) Notice of
parole and work release decisions.
8.16(1) The board shall give notice of a decision to grant
parole by issuing an order for parole to the facility where the inmate in
question is incarcerated.
8.16(2) The board shall give notice of a decision to grant work
release by issuing an order for work release to the facility where the inmate
in question is incarcerated.
8.16(3) The board shall
give notice of a decision to deny parole or work release by issuing a notice of
parole or work release denial to the facility where the inmate in question is
incarcerated.
8.16(4) The board need not disclose a decision to grant or deny
parole or work release to anyone other than the inmate in question and the
facility where the inmate is incarcerated until at least two working days have
elapsed from the date of the decision.
IAC 6/23/04
205—8.17(906) Parole
authorized following work release.
8.17(1) The board may, at the time of granting work release,
grant an offender parole contingent upon successful completion of work
release. Whenever the board grants parole contingent upon successful
completion of work release, it shall indicate in the offender’s file any
special conditions for parole and that parole is contingent upon successful
completion of work release.
8.17(2) The residential manager shall make a determination
whether the offender has successfully completed the work release. For the
purpose of this rule, successful completion of work release shall mean, at a
minimum, the absence of any violent acts or threats of violence by the offender
from the time the work release was authorized and either (1) the offender has
completed all board of parole recommended programs or (2) the offender has
enrolled in all recommended programs not completed and is making satisfactory
progress toward completion and the facility is able to arrange for continued
program participation while the offender is on parole. When an offender
successfully completes the work release program, the residential manager shall
certify that fact to the board in a written or electronic certification.
Upon receipt of the certification, the chairperson or the chairperson’s
designee shall cause a parole order to be issued and forwarded to the
residential facility where a parole agreement will be executed by the offender
with such parole conditions as the board may require in its original release
decision. Parole shall be effective only upon execution of the parole
order and agreement by the parole officer and the parolee. No further
action is required by the parole board for said parole. Before the parole
becomes effective, the chairperson or the chairperson’s designee may refer the
case back to the board for further consideration. Nothing in this rule
shall prevent the parole board from considering revocations of work release or
parole for violations of the parole order, agreement, or any other provision of
law, as otherwise provided in the board’s administrative rules.
8.17(3) If the residential manager does not certify that an
offender has successfully completed work release within the six–month limit
established in Iowa Code section 904.904, and if the offender’s work release
has not otherwise been revoked, the offender’s case shall be reviewed by the
board of parole. The board may grant parole, extend work release, refer
the offender back to prison, or take any other action authorized by law.
8.17(4) The grant of parole contingent upon successful
completion of work release shall comply with subrules
8.15(1) through 8.15(4).
8.17(5) An offender who has been granted parole contingent upon
successful completion of work release and who fails to successfully complete
work release for whatever reason shall be reviewed for further release
consideration according to the board’s administrative rules.
8.17(6) Parole granted under this rule shall be administered
and supervised according to the board’s administrative rules, 205—Chapters 10
and 11.
These rules are intended to
implement Iowa Code chapters 904A and 906.
[Filed 7/26/76, Notice 1/26/76—published
8/9/76, effective 9/13/76]
[Filed 2/7/79, Notices 10/4/78, 11/1/78—published
3/7/79, effective 4/11/79]
[Filed 6/2/80, Notice 2/6/80—published
6/25/80, effective 7/30/80]
[Filed 9/23/82, Notice 7/7/82—published
10/13/82, effective 11/19/82]
[Filed 4/5/83, Notice 2/16/83—published
4/27/83, effective 6/1/83]
[Filed 7/13/84, Notice 5/9/84—published
8/1/84, effective 9/4/84]
[Filed 2/11/85, Notice 10/10/84—published 2/27/85, effective 4/13/85]à
[Filed 2/6/89, Notice 12/28/88—published 2/22/89, effective 3/29/89]
[Filed 5/14/99, Notice 3/24/99—published
6/2/99, effective 7/7/99]
[Filed 6/4/04, Notice 4/28/04—published
6/23/04, effective 7/28/04]
chapter 10
PAROLE AND WORK RELEASE SUPERVISION
[Prior to 2/22/89,
see Parole, Board of[615] Ch 6]
IAC 6/23/04
205—10.1(906) Release
processing. Following the
issuance of an order for parole or work release by the board, the inmate shall
be processed for release pursuant to the rules and procedures of the department
of corrections and the district department.
205—10.2(906) Parole
supervision. An inmate granted
parole or work release shall be under the supervision of the department of
corrections, the district department, or a receiving state pursuant to the
interstate probation and parole compact. Parole supervision shall
continue until the expiration of the maximum sentence, subject to early
discharge by the board or the district department.
205—10.3(906) Parole or
work release agreement. A parole
or work release agreement containing standard and special conditions of parole
or work release shall be prepared without unreasonable delay following the
board’s issuance of the order for parole or work release. The board may
change these standard conditions from time to time. Special conditions of
parole may be imposed at any time in accordance with the needs of the parolee
as determined by the board, the department of corrections, or the district
department. The parole or work release agreement may provide for a search
process and procedure of the parolee or work releasee.
The parole or work release shall not commence until the inmate has signed the
agreement. If the inmate is on work release status at the time parole is
granted, the inmate shall remain on work release status until the parole
agreement is signed by the parole officer and the inmate.
These rules are intended to
implement Iowa Code chapter 906.
[Filed 7/26/76, Notice 1/26/76—published
8/9/76, effective 9/13/76]
[Filed 2/7/79, Notices 10/4/78, 11/1/78—published
3/7/79, effective 4/11/79]
[Filed 2/6/89, Notice 12/28/88—published 2/22/89, effective 3/29/89]
[Filed 5/14/99, Notice 3/24/99—published
6/2/99, effective 7/7/99]
[Filed 6/4/04, Notice 4/28/04—published
6/23/04, effective 7/28/04]
chapter 11
PAROLE REVOCATION
[Prior to 2/22/89,
Parole, Board of[615] Ch 7]
IAC 6/23/04
205—11.1(906) Voluntary
termination of parole. Any
voluntary termination of parole should be executed in writing by the parolee
and approved by the parole officer. Upon the execution of the voluntary
termination of parole, the parolee’s parole is terminated and the parolee shall
be returned to the Iowa Medical and Classification Center at Oakdale as soon as reasonably possible. The
parole officer shall determine if the parolee shall be incarcerated prior to
the parolee’s return to the Iowa Medical and Classification Center and shall make arrangements accordingly. The
parolee shall receive credit for the time spent on parole prior to the
voluntary termination of parole.
205—11.2 Reserved.
205—11.3(908) Revocation
initiated. Parole revocation
procedures shall be initiated only as provided by Iowa Code chapter 908, which
this rule is intended to implement.
205—11.4(908) Revocation
of parole. The board of parole
or its administrative parole judge, for good cause shown, may revoke any parole
previously granted. Good cause for revocation of parole shall include the
violation of a condition or conditions of the parole agreement or parole
plan. Parole revocation procedures, including the parole revocation
hearing, are governed by Iowa Code chapter 17A.
205—11.5(908) Parole
violations.
11.5(1) The parole officer shall report to the board any
parolee who is reasonably believed to have engaged in any of the following
types of behavior:
a. Violation
of any federal or state laws, except simple misdemeanors.
b. Any
violent or assaultive conduct.
c. Possession,
control or use of any firearms, imitation firearms, explosives or weapons as
defined in federal or state statutes.
d. Sale, possession, continual or problem use, transportation
or distribution of any narcotic or other controlled substance or excessive use
of alcohol by the parolee.
e. A
parolee whose whereabouts are unknown and who has been unavailable for contact
for 30 days, or about whom reliable information has been received indicating
that the parolee is taking flight or absconding.
f. Any
behavior indicating that the parolee may be suffering from a mental disorder
which impairs the parolee’s ability to maintain the parolee in the community or
which makes the parolee a danger to the parolee or others when the mental disorder
cannot be adequately treated while the parolee is in the community.
g. Any
other conduct or pattern of conduct in violation of the conditions of parole
deemed sufficiently serious by the parole officer.
11.5(2) The parole officer or supervisor is authorized to
sanction any other parolee misconduct not required to be reported above.
205—11.6(908) Parole
violation report. The parole
violation report is a document prepared by the parole officer on a form or
medium provided by the board specifying the parole violation charges against a
parolee and containing or referring to information known to the parole officer
relevant to the charges.
11.6(1) Supplemental parole violation report. A
supplemental parole violation report may be submitted to report sufficient new
information or evidence which proves or disproves violations previously
charged; note court action on charges which are being prosecuted in a criminal
proceeding; expand, clarify, or correct information in an earlier report;
provide the board with information not related to the violation but which may
affect the board’s decision regarding the appropriate disposition; provide
additional requested information to the board at any time; or change the parole
officer’s recommendation. A supplemental report shall be filed upon the
apprehension of a parolee on absconder status.
11.6(2) Recommendations. The parole officer shall
recommend the appropriate disposition necessary to deal with the alleged
violation. In a parole violation report, the parole officer may make one
of the following recommendations:
a. Continue on parole. This recommendation may be used when a violation charge
is not serious enough to warrant reincarceration.
A copy of the violation report containing a “continue on parole” recommendation
shall be personally delivered and explained to the parolee by the parole
officer, and the parolee shall be given an opportunity to admit the alleged
violations. Admitted violations contained in the report may be used to
adjust time calculations in a later revocation proceeding. In the event
that a dispute arises as to alleged violations, the parolee may request a
parole hearing. An administrative parole judge shall review the violation
report and enter an order either affirming the recommendation to continue on
parole or scheduling the matter for a parole revocation hearing.
A parolee shall be allowed only
two violation reports containing a “continue on parole” recommendation in a
12–month period, after which a parole revocation hearing must be scheduled.
Generally, violations occurring
more than 12 months prior to the request for a parole revocation hearing will
not be used to adjust time calculations, except in absconder cases and related
matters.
b. Schedule for revocation proceedings. This recommendation may be used whenever the
violation(s) alleged is so serious that reincarceration
is necessary.
c. Delay action. This recommendation is used when there is a lack of
information at the time the report is submitted or because charges are still
pending and final disposition is unknown or the whereabouts of the parolee are
unknown. The parole officer shall notify the board of the reason(s) for
the recommendation to delay action.
d. Issue a detainer. This recommendation is used to request that an Iowa detainer be placed against an Iowa parolee who is serving time in another jurisdiction
for an offense committed while on parole which would constitute a felony or
aggravated misdemeanor if committed in Iowa.
e. Continue on parole and impose special
condition 209A of the parole agreement, participation in the violator’s
program. This recommendation may
be used when there has been a violation of parole, but treatment in the
violator’s program is seen as a reasonable alternative to revocation of parole.
f. Automatic revocation. This recommendation may be used when a parolee has been
convicted of and sentenced for a new felony.
11.6(3) District review.
a. Parole officer’s responsibility. After discovery of information indicating a possible
violation(s) of parole and determination by the parole officer that the
violation(s) must be reported to the board, the parole officer shall prepare a
parole violation report.
b. Parole supervisor review. After the preparation of a parole violation report, the
supervisor shall review the report. If the supervisor concurs with the
recommendation made, the supervisor shall submit the report to the business
office of the parole board for review and scheduling of a parole revocation
hearing, if required.
IAC 6/23/04
205—11.7(908) Parole
revocation hearing. Following
receipt of a parole officer’s request for a parole revocation hearing, the administrative
parole judge or board’s designated officer shall set the date, time and place
of the parole revocation hearing and shall cause a notice of parole revocation
hearing to be completed. The parole revocation hearing shall be held in
any county in the same judicial district as that in which the alleged parole
violator had the initial appearance, or in the county from which the warrant
for the arrest of the alleged parole violator was issued.
11.7(1) Parole revocation hearing notice. The
parole officer or board’s designated officer shall cause to be prepared a
written notice to the parolee of the date, time, and place of the parole
revocation hearing, which shall:
a. Include
a complete copy of the report of violations including all documents referred to
therein except confidential material defined in 205—subrule
6.4(2).
b. Be
served upon the parolee by personal service. The notice may be served by
any person 18 years of age or older at least seven days prior to the parole
revocation hearing unless the parolee waives the right to seven days’ advance
notice.
c. Inform
the parolee of the purpose of the hearing, the violations of parole conditions
alleged, the circumstances of the alleged violations, the possible action which
may be taken as a result of the revocation proceedings, and the following
rights to which the parolee shall be entitled at the parole revocation hearing:
(1) To appear and
speak in the parolee’s own behalf and to be aided by an interpreter if aid is
determined to be necessary by the administrative parole judge.
(2) To be represented
by an attorney or, if the parolee is indigent, the right to be represented by
an attorney pursuant to Rule 2.28 of the Iowa Rules of Criminal Procedure.
(3) To remain silent.
(4) To present
witnesses to testify on the parolee’s behalf as to matters relevant to the
alleged violation of parole.
(5) To confront and
cross–examine adverse witnesses unless the administrative parole judge determines
that such witnesses would be subjected to risk of harm.
(6) To present
documentary evidence and any relevant material or information.
11.7(2) Testimony at parole revocation hearing. All testimony shall be under oath.
11.7(3) Parole revocation hearing recorded. Parole
revocation hearings shall be mechanicallyrecorded.
The recording or transcription thereof shall be filed and maintained by the
board of parole for at least five years from the date of the parole revocation
hearing.
11.7(4) Witnesses segregated. The
administrative parole judge on the judge’s own motion or on the request of the
parolee, parolee’s counsel, or any representative of the state may order
witnesses to be segregated except that the parole officer, parolee, and counsel
may be present at all times at the hearing.
11.7(5) Parole revocation hearing evidence. The
admissibility of evidence at parole revocation proceedings is governed by Iowa
Code section 17A.14.
a. Documentary evidence. The parole officer shall ensure that all relevant
documentary evidence is available at the hearing and has been made available to
the parolee and the parolee’s attorney prior to the hearing unless designated
confidential. This evidence includes the violation report and statements
of witnesses. When relevant documentary evidence is not available, the
parole officer shall specify what evidence is unavailable and why.
b. Physical evidence. Physical evidence is ordinarily not required at the
hearing. The parole officer may bring physical evidence to the hearing if
the parolee has requested it or it appears necessary for the hearing, security
is not endangered, and there is no other means of presenting the information.
IAC 6/23/04
11.7(6) Witnesses.
a. Parolee request. A parolee may request either friendly or adverse
witnesses. If a witness is requested by the parolee or the parolee’s
attorney, the parolee or the parolee’s attorney shall notify the parole
officer.
b. Parole officer request. If, in preparing the case prior to the hearing, the
parole officer requires a particular witness to demonstrate essential facts of
violation, attendance of that witness may be requested by the officer even
though the parolee has not requested that witness. If a witness is
requested by the parole officer, the officer shall notify the parolee or the
parolee’s attorney.
c. Witnesses’ transportation. All witnesses shall provide their own
transportation.
d. Fearful witnesses. All witnesses who refuse to attend the hearing either
because they would be subjected to risk of harm if their identities were
disclosed or who, even if their identities were known, fear for their safety
should they attend the hearing shall be interviewed by the parole officer prior
to the hearing, and their information and the reasons for their fear shall be
documented in writing or on tape. The administrative parole judge shall
determine whether good cause exists to excuse a witness’s attendance and shall
document the decision including the reasons.
e. Interviewing witnesses. A parolee or the parolee’s attorney has the right to
speak to possible witnesses, but it is completely within the discretion of an
individual witness whether to speak to or disclose the witness’s whereabouts to
a parolee or the parolee’s attorney. No attempt shall be made by the
parole board staff to influence the witness’s decision.
11.7(7) Subpoenas—general. Subpoenas may be issued
to require the attendance of witnesses or the production of documents at parole
revocation hearings.
a. Who
may request. The parolee, the parolee’s attorney, parole officer, or
board staff may request that a subpoena be issued.
b. To whom made. Requests shall be made directly to the
administrative parole judge or the board’s designated officer as appropriate.
c. When
made. The request shall be made prior to the scheduled hearing.
d. Subpoena
duces tecum. The
request for a subpoena duces tecum
shall be accompanied by a declaration in support of the request. The
declaration must show good cause for production of documentary evidence and
specify precisely the documentary evidence to be produced, the relevance and
materiality of that evidence to the hearing, and verification that the
requested witness has possession or control of the documentary evidence.
e. The
board of parole shall not be required to pay subpoena service fees, witness
fees, or witness transportation expenses.
11.7(8) Continuances.
a. A
hearing may be continued by the presiding administrative parole judge for good
cause shown, either upon the presiding judge’s own motion or upon the request
of a party. A party’s request for continuance shall be made in writing to
the board’s business office prior to the hearing. Each party shall be
granted only one continuance except that in the case of extreme emergency,
determined by the presiding administrative parole judge, further continuance
may be granted.
b. If,
because of an emergency or other good cause, a party having received timely
notice is unable to attend the hearing or to request continuance within the
allotted time, the presiding administrative parole judge may continue the
hearing and schedule another hearing with notice to all interested parties.
c. A
notice of continuance may be served upon the parolee’s attorney of record for
the parole revocation proceeding, in lieu of personal service upon the parolee.
d. If a
notice of continuance does not involve any new allegations of parole violation,
it need not be served upon the parolee or the parolee’s attorney of record at
least seven days prior to the hearing date. However, if the notice of
continuance includes allegations of violations beyond those contained in the
original notice of hearing, it must be served upon the parolee or the parolee’s
attorney of record at least seven days prior to the hearing date.
IAC 6/23/04
11.7(9) Areas of responsibility. The
following areas of responsibility will apply for a parole revocation hearing.
a. The
parole officer shall be responsible for the following:
(1) Coordinating and
scheduling location, security, and control of the parole revocation hearing in
a courtroom unless good cause is established prior to the hearing;
(2) Preparing notice
of hearing forms and causing the notices to be served;
(3) Notifying the
parolee’s attorney of record of the hearing date, time, and place;
(4) Notifying all
necessary state witnesses of the hearing date, time, and place;
(5) Processing any
required subpoenas on behalf of the state;
(6) Ensuring that all
relevant state documents, forms, and materials are available at the hearing;
(7) Attending the
hearing;
(8) Arranging
security for posthearing transfer of the parolee in
the event incarceration is ordered.
b. The
administrative parole judge shall be responsible for the following:
(1) Maintaining
records on all hearings in the field;
(2) Advising the
business office regarding progress of each case;
(3) Forwarding to the
business office all materials and forms when hearings are completed.
11.7(10) Parole revocation hearing—adjudication.
a. At
the conclusion of the adjudication stage of the hearing, the administrative
parole judge shall determine whether the parolee has violated the conditions of
parole and shall verbally advise the parolee of the decision.
b. If
the administrative parole judge determines that the parolee has not violated
the conditions of parole, the judge shall order that the parolee be released
from custody and continued on parole.
c. If
the administrative parole judge finds that the parolee has violated a condition
or conditions of parole, the judge shall make one of the following dispositions
at the parole revocation hearing:
(1) Revocation of
parole;
(2) Revocation of
parole with the parolee placed on work release;
(3) Reinstatement of
parole with the previous parole conditions;
(4) Reinstatement of
parole with a modification of the parole conditions;
(5) Continuation of
the dispositional portion of the hearing.
d. The
administrative parole judge shall determine from the record established at the
final revocation hearing the date(s) of violation of parole. The judge
shall also determine the number of days of parole which shall not be counted
toward the discharge of the parolee’s sentence. This number shall not
exceed the number of days after the date of first violation during which the
parolee was not incarcerated.
11.7(11) Parole revocation—hearing summary. The
administrative parole judge or the board’s designated officer shall forward a
summary of the parole revocation hearing to the parolee, the parolee’s
attorney, the parole officer, and the board office as soon as reasonably
possible following the parole revocation hearing. The summary of the
parole revocation shall consist of a summary of the proceeding and shall
contain the judge’s findings of fact, conclusions of law and disposition of the
matter.
11.7(12) Parole revocation hearing—conduct of the media. The
provisions governing the conduct of the media at parole interviews as set out
in 205—subrule 8.14(4) shall also apply to parole
revocation hearings, except that decisions committed to the discretion of the
board or board panel in that rule shall be made by the presiding administrative
parole judge.
IAC 6/23/04
205—11.8(908) Appeal or
review. The order of the
administrative parole judge shall become the final decision of the board of
parole unless, within ten days of the date of the decision, the parole violator
appeals the decision or a panel of the board reviews the decision on its own
motion. On appeal or review of the judge’s decision, the board panel has
all the power which it would have in initially making the revocation hearing
decision. The appeal or review shall be conducted pursuant to rules
adopted by the board of parole. The record on appeal or review shall be
the record made at the parole revocation hearing conducted by the administrative
parole judge. Appeals must be received at the parole office or be
postmarked by the applicable date or they will not be considered.
205—11.9(908) Interstate
compact parole revocation probable cause hearings. The Iowa board of parole may conduct interstate compact parole
probable cause hearings under the same procedures as the Iowa parole revocation hearings.
11.9(1) Interstate compact parole revocation probable cause
hearings. The Iowa board of parole, or an administrative parole judge,
may conduct a probable cause hearing for a parolee from another state who is on
parole in Iowa under the terms of the interstate compact on probation
and parole according to the same procedures which govern parole revocation
hearings for Iowa parolees who are on parole in Iowa.
11.9(2) Interstate compact parole revocation hearings. If an Iowa parolee was on parole outside the state of Iowa through the interstate compact on probation and parole
and has been returned to Iowa
following a finding of probable cause in the receiving state, a parole
revocation hearing shall be conducted for the parolee at the Iowa institution at which the parolee is
incarcerated. This hearing shall be conducted according to the same
procedures as those specified for hearings conducted for Iowa parolees who are on parole in the state of Iowa.
205—11.10(908) Parolee
convicted of new offenses. A
parolee who is found guilty of a new offense or who pleads guilty to a new
offense, including a simple misdemeanor, has no right to the adjudication stage
of the parole revocation hearing with regard to the new offense.
205—11.11(908) Waivers. When the parole officer makes a recommendation
to the board of parole for revocation of parole, the parole officer shall
inform the parolee of the parolee’s rights and afford the parolee the
opportunity to execute a waiver of parole revocation hearing.
The parole officer shall also
inform the parolee of the opportunity to waive the parolee’s right to personal
appearance and consent to the parole revocation hearing’s being conducted over
the telephone.
11.11(1) Waiver of parole revocation hearing. A
waiver of parole revocation hearing shall constitute an admission of the
alleged violation(s) and shall include a waiver of any right to a personal
appearance before the administrative parole judge to contest the violations.
11.11(2) Parole revocation hearing waiver procedures. If the
parolee desires to execute a waiver of parole revocation hearing, the waiver
shall be entered on the appropriate form provided by the board which shall be
signed by the parolee in the presence of the administrative parole judge or by
the parolee in the presence of the parole officer/supervisor if the waiver
hearing is conducted electronically. The administrative parole judge
shall make a verbatim record of the waiver proceeding and shall address the
parolee personally and inform the parolee of and determine that the parolee
understands the contents of the waiver form which shall include:
a. The
nature of the parole violation to which the waiver is addressed;
b. The
legal rights of the parolee;
c. The
fact that the execution of the waiver constitutes an admission of the alleged
violation(s);
IAC 6/23/04
d. The
fact that the parolee may be committed to the custody of the Iowa department of corrections without further proceedings;
e. The
fact that the waiver is complete and final upon execution;
f. The
fact that the waiver may be appealed according to the parole board’s parole
revocation appeal process in rule 205—11.8(908).
11.11(3) Waiver of the right to personal appearance. In the
event the parolee executes a waiver of the right to personal appearance and
consent to parole revocation hearing to be conducted over the telephone, the
parole revocation hearing shall be scheduled and conducted as a routine parole
revocation hearing with the exception that it shall be conducted
electronically.
205—11.12(908) Conviction
of a felony while on parole.
When a parolee is convicted and sen–tenced to incarceration in Iowa for a felony committed
while on parole, or is convicted and sentenced to incarceration under the laws
of any other state of the United States or a foreign government or country for
an offense committed while on parole and which if committed in Iowa would be a
felony, the parolee’s parole shall be deemed revoked as of the date of the
commission of the offense.
11.12(1) The parole officer shall inform the sentencing judge
that the convicted defendant is a parole violator. The term for which the
defendant shall be imprisoned as a parole violator shall be the same as that
provided in cases of revocation of parole for violation of the conditions of
parole. The new sentence of imprisonment for conviction of a felony shall
be served consecutively to the sentence for which the defendant was on parole,
unless a concurrent term of imprisonment is ordered by the court.
11.12(2) The parole officer shall forward to the board of parole
a violation report together with a file–stamped copy of the judgment entry and
sentencing order for the offense committed during the parole. An
administrative parole judge shall review the violation report and the judgment
entry and sentencing order and, if satisfied that the conditions of Iowa Code
section 908.10 and of this rule have been met, shall issue an order revoking
the parole. The judge shall also determine the date of commission of the
felony offense and the date of subsequent incarceration in a state
institution. Time loss shall be the time between these two dates, except
that the parolee shall receive credit for any time the parolee was incarcerated
in a county jail between these two dates.
11.12(3) The parolee shall be notified in writing that the
parole has been revoked on the basis of the new conviction, and a copy of the
commitment order shall accompany the notification. The parolee’s record
shall be reviewed pursuant to the provisions of Iowa Code section 906.5, or as
soon as practical after a final reversal of the new conviction.
11.12(4) An inmate may appeal the revocation of parole under
this rule according to the procedure indicated in rule 205—11.8(908).
11.12(5) Neither the administrative parole judge nor the board
shall retry the facts underlying any conviction.
These rules are intended to
implement Iowa Code chapters 906 and 908.
[Filed 7/26/76, Notice 1/26/76—published
8/9/76, effective 9/13/76]
[Filed 2/7/79, Notices 10/4/78, 11/1/78—published
3/7/79, effective 4/11/79]
[Filed 11/17/81, Notice 8/5/81—published
12/9/81, effective 1/14/82]
[Filed 9/23/82, Notice 7/7/82—published
10/13/82, effective 11/19/82]
[Filed 4/5/83, Notice 2/16/83—published
4/27/83, effective 6/1/83]
[Filed 2/6/89, Notice 12/28/88—published 2/22/89, effective 3/29/89]
[Filed 5/14/99, Notice 3/24/99—published
6/2/99, effective 7/7/99]
[Filed 6/4/04, Notice 4/28/04—published
6/23/04, effective 7/28/04]
chapter 14
EXECUTIVE CLEMENCY
[615—Ch 14 transferred to 205—Ch 5, IAB 2/22/89]
IAC 6/23/04
205—14.1(902) Interviews
of inmates serving life terms. The
board shall not grant a parole or work release to a Class “A” felon serving a
life term unless the governor commutes the sentence to a term of years.
Administrative rules relating to the parole and work release consideration of
an inmate sentenced to an indeterminate term shall not apply to an inmate
sentenced to a life term. The board shall interview a Class “A” felon
serving a life term to determine whether to recommend that the governor commute
the sentence to a term of years. The board shall recommend that the
governor commute the sentence when the board concludes that the inmate should
be considered for release on parole or work release. In making such a
recommendation, the board shall also indicate the existence of any registered
victims and communicate any opinions expressed by those victims regarding
release of the inmate.
205—14.2(902) Review of
inmates serving life terms. The
board may, at its discretion, review the record of a Class “A” felon serving a
life term.
205—14.3(914) Executive
clemency applications.
14.3(1) Applications to the board.
a. A
person convicted of a criminal offense may apply to the board for a
recommendation to the governor for a reprieve, pardon, commutation of sentence,
or remission of fines and forfeitures at any time following the person’s
conviction.
b. An
application for a pardon or commutation of sentence shall be on the form
provided by the board. The form may be obtained by contacting the board’s
business office.
c. An
application for a reprieve or remission of fines and forfeitures shall be in
writing.
d. The
applicant shall submit the executive clemency application to the board’s
business office.
14.3(2) Applications to the governor. Upon
the request of the governor, the board shall take charge of all correspondence
in reference to an executive clemency application filed with the governor and
shall provide the governor with the board’s advice and recommendation.
14.3(3) Restoration of citizenship.
a. A
person convicted of a criminal offense may apply for restoration of citizenship
at any time following the discharge of the person’s sentence.
b. A
person applying for restoration of citizenship shall submit the Executive
Clemency Application form to the governor. This form may be obtained from
the governor’s office or from the board. The governor shall obtain a
recommendation regarding restoration of citizenship from the board.
205—14.4(914,902) Board
investigation. The board may
investigate an application or district department recommendation with respect
to history, current situation, parole prospects and other pertinent
matters. The board may consider the application or recommendation,
transcripts of judicial proceedings and all documents submitted with the
application, and other documents as the board determines is appropriate, and
may interview public officials, victims, and witnesses and other individuals as
the board determines is appropriate.
205—14.5(914,902) Executive
clemency recommendations.
14.5(1) Decision.
a. The
board shall recommend that the governor grant commutation of sentence to a
Class “A” felon serving a life term when the board unanimously agrees that the
inmate should be considered for release on parole. If the board does not
unanimously agree, the board shall recommend that the governor not grant
commutation of sentence.
b. The
board shall recommend that the governor grant executive clemency to a person
other than a Class “A” felon serving a life term when at least three members of
the board agree that the person has demonstrated that the person will become or
continue to be a law–abiding citizen. If three members of the board do
not agree, the board shall recommend that the governor not grant executive
clemency.
14.5(2) Notice of board recommendation. The
board shall give notice of an executive clemency recommendation to the office
of the governor and, if requested, to the inmate or applicant.
14.5(3) Board consideration following commutation. The
board shall consider the parole and work release prospects of an inmate whose
sentence has been commuted by the governor.
14.5(4) Executive clemency reconsiderations.
a. The
board may reconsider at any time a board recommendation to grant executive
clemency that the governor has denied and returned to the board. The
procedures for reviewing an executive clemency application shall apply to the
reconsideration of a denied recommendation.
b. The
board may refile the recommendation with the governor
or withdraw the recommendation.
205—14.6(902) Commutation
procedure for Class “A” felons.
14.6(1) Initial review. The board of parole, or
its designee, will initially review an application for commutation to determine
whether the inmate is eligible to apply for commutation pursuant to Iowa Code
section 902.2. If the inmate is not eligible to apply for commutation
pursuant to Iowa Code section 902.2, the board shall return the application to
the governor and notify the governor of the reasons.
14.6(2) Parole board commutation investigation process.
a. If
the applicant is eligible to apply for commutation pursuant to Iowa Code
section 902.2, the board shall conduct an investigation pursuant to that
section and subrule 14.6(2).
b. The
board may consider any documents the board deems appropriate including, but not
limited to, the application and attached documents, transcripts of judicial
proceedings, corrections information, and written recommendations, statements,
and interviews of public officials, victims, and witnesses.
c. The
board shall interview the applicant, pursuant to Iowa Code section 902.2, prior
to submitting its recommendation to the governor. The board may interview
any other person the board deems appropriate including, but not limited to,
public officials, victims, and witnesses. The board may conduct any
interview, including the interview of the applicant, through electronic means.
d. The
board shall attempt to provide notice of the commutation investigation to any
individual who would qualify as a victim under Iowa’s victim notification law. Notice shall be by
regular mail to the last–known address. The notice shall provide a
specified amount of time for the victim to provide a statement to the board
regarding the application for commutation.
e. The
board may utilize the resources of the department of public safety for
assistance with any part if its investigation.
f. The
board may hold a public hearing to receive comments from the general public on
an application for commutation. The determination to hold a public
hearing to receive public comments is solely at the discretion of the board.
IAC 6/23/04
14.6(3) Recommendation and report.
a. The
board shall vote on a recommendation regarding the application. Any
decision to recommend commutation shall be by unanimous vote. The board
may continue the matter until such time as the board may determine by majority
vote.
b. The
board may consider any factor it deems appropriate when considering commutation
including, but not limited to, the nature and circumstances of the crime, the
number of years the applicant has served, the applicant’s previous criminal
record, the applicant’s conduct while confined, the impact on the victim, and
the public interest.
c. The
board shall prepare a written report of its findings and recommendations and
forward its report to the governor.
14.6(4) Board consideration following commutation. The
board shall consider the parole and work release prospects of any inmate whose
life sentence has been commuted by the governor. The grant of commutation
does not require the board to grant parole or work release. The board
shall consider parole or work release pursuant to the standards in 205—Chapter
8.
These rules are intended to
implement Iowa Code sections 902.2, 902.4, and 904A.4(7)
and chapter 914.
[Filed 2/6/89, Notice 12/28/88—published 2/22/89, effective 3/29/89]
[Filed 5/14/99, Notice 3/24/99—published
6/2/99, effective 7/7/99]
[Filed emergency 6/8/00—published 6/28/00, effective 6/8/00]
[Filed 9/12/00, Notice 6/28/00—published
10/4/00, effective 11/8/00]
[Filed 6/4/04, Notice 4/28/04—published
6/23/04, effective 7/28/04]
IAC 6/23/04
chapter 15
APPEAL OF DECISIONS
[Prior to 2/22/89,
Parole, Board of[615] Ch 9]
IAC 6/23/04
205—15.1(17A) General. An inmate, parolee, or work releasee
may appeal any action of the board staff or board that affects that person
except a decision to schedule a hearing or a work release transfer hearing
decision, the denial of an appeal, or the decision to conduct an appearance by
electronic means, or the revocation of parole which shall be appealed according
to the procedure indicated in rule 205—11.8(908).
205—15.2(17A) Grounds. The general grounds for an appeal include that
the board action is:
1. In violation of constitutional or statutory provisions;
2. In
excess of the statutory authority of the board;
3. In violation of a board rule;
4. Made
upon unlawful procedure;
5.
Affected by other error of law;
6.
Unsupported by evidence or based on incorrect or incomplete information which, if correct or complete, might have resulted in a different
action;
7.
Unreasonable, arbitrary, or capricious or characterized by an abuse of
discretion or a clearly unwarranted exercise of decision.
205—15.3(17A) Filing an
appeal.
15.3(1) An appeal shall be filed in writing and shall state:
a. The
nature of the board action which is the subject of the appeal.
b. The
particular agency action which is the subject of the appeal.
c. The
grounds on which relief is sought.
d. The
relief sought.
15.3(2) All grounds shall be included in the same appeal, and
all necessary documents and information shall be attached to the appeal.
15.3(3) The appeal shall be submitted to the business
office. An appeal must be received at the parole board office, or be
postmarked, within ten days of the receipt of notice of the action
appealed. The board is not required to consider untimely appeals.
205—15.4(17A) Board
review and decision. The board
of parole, a designee of the board or a panel of three or more members of the
board shall review the appeal. The chairperson or designee or the panel
may affirm, modify or reverse the action being appealed or may defer the action
for further consideration, including granting the inmate, parolee, or work releasee an appearance before the board. The board shall
give notice to the inmate, parolee, or work releasee
of its decision.
205—15.5(17A) Other
appearances before the board. An
inmate, parolee, or work releasee may request an
appearance before the board by submitting a written request to the business office
or a board liaison officer. A member of the board may grant the request
for an appearance.
205—15.6(21) Electronic
appearances. The board may
require an inmate, parolee, or work releasee who has
been granted an appearance before the board to appear by electronic means.
These rules are intended to
implement Iowa Code chapter 17A.
[Filed 7/26/76, Notice 1/26/76—published
8/9/76, effective 9/13/76]
[Filed 2/7/79, Notices 10/4/78, 11/1/78—published
3/7/79, effective 4/11/79]
[Filed 9/23/82, Notice 7/7/82—published
10/13/82, effective 11/19/82]
[Filed 2/6/89, Notice 12/28/88—published 2/22/89, effective 3/29/89]
[Filed emergency 7/3/97—published 7/30/97, effective 7/3/97]
[Filed 5/14/99, Notice 3/24/99—published
6/2/99, effective 7/7/99]
[Filed 6/4/04, Notice 4/28/04—published
6/23/04, effective 7/28/04]
IAC 6/23/04
chapter 16
waiver and variance rules
IAC 6/23/04
205—16.1(17A) Definition. For purposes of this chapter, “a waiver or
variance” means action by the board which suspends in whole or in part the
requirements or provisions of a rule as applied to an identified person on the
basis of the particular circumstances of that person. For simplicity, the
term “waiver” shall include both a “waiver” and a “variance.”
205—16.2(17A) Scope. This chapter outlines generally applicable
standards and a uniform process for the granting of individual waivers from
rules adopted by the board in situations where no other more specifically
applicable law provides for waivers. To the extent another more specific
provision of law governs the issuance of a waiver from a particular rule, the more specific provision shall supersede this
chapter with respect to any waiver from that rule.
205—16.3(17A) Applicability. The board may grant a waiver from a rule only if
the board has jurisdiction over the rule and the requested waiver is consistent
with applicable statutes, constitutional provisions, or other provisions of
law. The board may not waive requirements created or duties imposed by
statute.
205—16.4(17A) Criteria
for waiver or variance. In
response to a petition completed pursuant to rule 16.6(17A), the board may in
its sole discretion issue an order waiving in whole or in part the requirements
of a rule if the board finds, based on clear and convincing evidence, all of
the following:
1. The
application of the rule would impose an undue hardship on the person for whom
the waiver is requested;
2. The
waiver from the requirements of the rule in the specific case would not
prejudice the substantial legal rights of any person;
3. The
provisions of the rule subject to the petition for a waiver are not
specifically mandated by statute or another provision of law; and
4.
Substantially equal protection of public health, safety, and welfare will be
afforded by a means other than that prescribed in the particular rule for which
the waiver is requested.
205—16.5(17A) Filing of
petition. A petition for a
waiver must be submitted in writing to the board as follows:
16.5(1) Contested cases. If the petition relates
to a pending contested case, the petition shall be filed in the contested case
proceeding, using the caption of the contested case.
16.5(2) Other. If the petition does not relate to a pending
contested case, the petition may be submitted to the board’s executive
director.
205—16.6(17A) Content of
petition. A petition for waiver
shall include the following information where applicable and known to the
requester:
1. The
name, address, and telephone number of the person or entity for which a waiver
is requested, and the case number of any related contested case.
2. A
description and citation of the specific rule from which a waiver is requested.
3. The
specific waiver requested, including the precise scope and duration.
4. The
relevant facts that the petitioner believes would justify a waiver under each
of the four criteria described in rule 16.4(17A). This statement shall
include a signed statement from the petitioner attesting to the accuracy of the
facts provided in the petition, and a statement of reasons that the petitioner
believes will justify a waiver.
5. A
history of any prior contacts between the board and the petitioner relating to
the regulated activity affected by the proposed waiver, including a description
of any notices of violation, contested case hearings, or investigative reports
relating to the regulated activity within the past five years.
6. Any
information known to the requester regarding the board’s treatment of similar
cases.
7. The
name, address, and telephone number of any public agency or political
subdivision which also regulates the activity in question, or which might be
affected by the granting of a waiver.
8. The
name, address, and telephone number of any person or entity that would be
adversely affected by the granting of a petition.
9. The
name, address, and telephone number of any person with knowledge of the
relevant facts relating to the proposed waiver.
10. Signed releases
of information authorizing persons with knowledge regarding the request to
furnish the board with information relevant to the waiver.
205—16.7(17A) Additional
information. Prior to issuing an
order granting or denying a waiver, the board may request additional
information from the petitioner relative to the petition and surrounding
circumstances. If the petition was not filed in a contested case, the
board may, on its own motion or at the petitioner’s request, schedule a
telephonic or in–person meeting between the petitioner and the board’s
executive director, a committee of the board, or a quorum of the board.
205—16.8(17A) Notice. The board shall acknowledge a petition upon
receipt. The board shall ensure that, within 30 days of the receipt of
the petition, notice of the pendency of the petition
and a concise summary of its contents have been provided to all persons to whom
notice is required by any provision of law. In addition, the board may
give notice to other persons. To accomplish this notice provision, the
board may require the petitioner to serve the notice on all persons to whom
notice is required by any provision of law and provide a written statement to
the board attesting that notice has been provided.
205—16.9(17A) Hearing
procedures. The provisions of
Iowa Code sections 17A.10 to 17A.18A regarding contested case hearings shall
apply to any petition for a waiver filed within a contested case and shall
otherwise apply to board proceedings for a waiver only when the board so
provides by rule or order or is required to do so by statute.
205—16.10(17A) Ruling. An order granting or denying a waiver shall be
in writing and shall contain a reference to the particular person and rule or
portion thereof to which the order pertains, a statement of the relevant facts
and reasons upon which the action is based, and a description of the precise
scope and duration of the waiver if one is issued.
16.10(1) Board discretion. The final decision on
whether the circumstances justify the granting of a waiver shall be made at the
sole discretion of the board, upon consideration of all relevant factors.
Each petition for a waiver shall be evaluated by the board based on the unique,
individual circumstances set out in the petition.
16.10(2) Burden of persuasion. The
burden of persuasion rests with the petitioner to demonstrate by clear and
convincing evidence that the board should exercise its discretion to grant a
waiver from a board rule.
IAC 6/23/04
16.10(3) Narrowly tailored exception. A
waiver, if granted, shall provide the narrowest exception possible to the provisions
of a rule.
16.10(4) Administrative deadlines. When
the rule from which a waiver is sought establishes administrative deadlines,
the board shall balance the special individual circumstances of the petitioner
with the overall goal of uniform treatment of all similarly situated persons.
16.10(5) Conditions.
The board may place any
condition on a waiver that the board finds desirable to protect the public
health, safety, and welfare.
16.10(6) Time period of waiver. A
waiver shall not be permanent unless the petitioner can show that a temporary
waiver would be impracticable. If a temporary waiver is granted, there is
no automatic right to renewal. At the sole discretion of the board, a
waiver may be renewed if the board finds that grounds for a waiver continue to
exist.
16.10(7) Time for ruling. The board shall grant or
deny a petition for a waiver as soon as practicable but, in any event, shall do
so within 120 days of its receipt, unless the petitioner agrees to a later
date. However, if a petition is filed in a contested case, the board
shall grant or deny the petition no later than the time at which the final
decision in that contested case is issued.
16.10(8) When deemed denied. Failure
of the board to grant or deny a petition within the required time period shall
be deemed a denial of that petition by the board. However, the board
shall remain responsible for issuing an order denying a waiver.
16.10(9) Service of order. Within seven days of its
issuance, any order issued under this chapter shall be transmitted to the petitioner
or the person to whom the order pertains and to any other person entitled to
such notice by any provision of law.
205—16.11(17A) Public
availability. All orders
granting or denying a waiver petition shall be indexed, filed, and available
for public inspection as provided in Iowa Code section 17A.3. Petitions
for a waiver and orders granting or denying waiver petitions are public records
under Iowa Code chapter 22. Some petitions or orders may contain
information the board is authorized or required to keep confidential. The
board may accordingly redact confidential information from petitions or orders
prior to public inspection.
205—16.12(17A) Summary
reports. Semiannually, the board
shall prepare a summary report identifying the rules for which a waiver has
been granted or denied, the number of times a waiver was granted or denied for
each rule, a citation to the statutory provisions implemented by these rules,
and a general summary of the reasons justifying the board’s actions on waiver
requests. If practicable, the report shall detail the extent to which the
granting of a waiver has affected the general applicability of the rule
itself. Copies of this report shall be available for public inspection
and shall be provided semiannually to the administrative rules coordinator and
the administrative rules review committee.
205—16.13(17A) Cancellation
of a waiver. A waiver issued by
the board pursuant to this chapter may be withdrawn, canceled, or modified if,
after appropriate notice and hearing, the board issues an order finding any of
the following:
1. The
petitioner or the person who was the subject of the waiver order withheld or
misrepresented material facts relevant to the propriety or desirability of the
waiver; or
2. The
alternative means for ensuring that the public health, safety and welfare will
be adequately protected after issuance of the waiver order have been
demonstrated to be insufficient; or
3. The
subject of the waiver order has failed to comply with all conditions contained
in the order.
IAC 6/23/04
205—16.14(17A) Violations. Violation of a condition in a waiver order shall
be treated as a violation of the particular rule for which the waiver was
granted. As a result, the recipient of a waiver under this chapter who
violates a condition of the waiver may be subject to the same remedies or
penalties as a person who violates the rule at issue.
205—16.15(17A) Defense. After the board issues an order granting a
waiver, the order is a defense within its terms and the specific facts
indicated therein for the person to whom the order pertains in any proceeding
in which the rule in question is sought to be invoked.
205—16.16(17A) Judicial
review. Judicial review of a
board’s decision to grant or deny a waiver petition may be taken in accordance
with Iowa Code chapter 17A.
These rules are intended to
implement Iowa Code chapter 17A.
[Filed 6/4/04, Notice 4/28/04—published
6/23/04, effective 7/28/04]
IAC 6/23/04
