Credit to a Prisoner for Time Spent In Pre-Release Program
In McMillian v. Pennsylvania Board of Probation and Parole, 824 A.2d 350 (Pa. Cmwlth. 2003), appeal dismissed as moot, 580 Pa. 361, 861 A.2d 262 (2004), McMillianwas placed on pre-release status on May 3, 1999, at Capitol, where he stayed until October 20, 1999, when he completed the program.
He was recommitted to Capitol for engaging in assaultive behavior on July 13, 2000, and remained there until July 28, 2000.
On September 26, 2000, McMillian was arrested in a domestic incident and was subsequently convicted of simple assault.
McMillian was recommitted as a convicted parole violator.
The Board recalculated McMillian's maximum date as December 22, 2002.
McMillian contested the calculation of the date because he believed he was entitled to credit for time spent at Capitol. McMillian v. Pennsylvania Board of Probation and Parole, 824 A.2d 350 at 351.
At the hearing, Alicia Lewis (Lewis), Capitol's assistant director, testified that inmates were subject to a seventy-two hour processing period during which they were not allowed to leave the facility at all.
The inmates were then assigned to a counselor, and were required to comply with the facility's rules and regulations, including mandatory participation in all programs and leisure time was based on the inmate's status and behavior.
Lewis also testified that an inmate, like McMillian, who came to Capitol from a correctional institution, was in pre-release and was not technically on parole.
Lewis further testified that if an inmate left without permission or refused to participate in mandatory programs, Capitol informed the Department of Corrections, and, if a parolee was returned to Capitol for violation of a condition of parole, as an alternative to immediate recommitment, Capitol filed reports with the Board. McMillian v. Pennsylvania Board of Probation and Parole, 824 A.2d 350 at 353 .
The Board determined that the time McMillian spent at Capitol did not entitle him to credit.
The Board further denied McMillian's request for administrative relief. McMillian v. Pennsylvania Board of Probation and Parole, 824 A.2d 350 at 351.
McMillian petitioned for review with this Court which reversed:
Having considered the extent of control authorities exercised over McMillian at Capitol Pavilion, we must conclude that the time he spent there provided sufficient restraints on his liberty as to constitute custody for purposes of time credit under Section 9760 of the Sentencing Code 42 Pa.C.S. 9760.
Unlike the general conditional liberty of parole, a pre-release inmate or parolee confined to a community corrections center is sufficiently restrained, physically and constructively, as to be in custody. McMillian v. Pennsylvania Board of Probation and Parole, 824 A.2d 350 at 353.