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Originally Posted by John Doe  I believe that your argument is fatally flawed. The introduction of the word shall, in this instance, is nullified by the discretion given by the legislature to deny for the other 2 reasons. Even so, I did not write to ruin your day sir, I reply to your post because I think the very last sentence in that statute is unconstitutional.
The "act shall be considered judicial" (or something like that). Well, last time I checked, the D.O.C. was executive, not judicial. Separation of Powers? Just a thought that occurred to me while I was reading your post. It may be nothing. |
By use of the phrase “shall be released,” versus “may be released,” the Legislature conveys to inmates granted earned eligibility certification a reasonable expectation that they will be released to parole upon service of their minimum terms. Again, this is what the USSC concluded in both Greenholtz and Board of Pardons when reviewing strikingly similarly worded statutes.
That the statute allows denial of release where the board concludes there is a “reasonable probability” that, if released, an inmate will not live and remain at liberty without further violating the law, and that his release would not be compatible with the welfare of society, is oftentimes inconsequential. Take, for example, a middle age inmate with no prior criminal history who stands convicted of unlawful possession of a controlled substance, acquired for his or her own use, who since imprisonment has addressed their addiction through rehabilitative programs offered by the DOC. In that case, to conclude he or she would not remain at liberty without further violating the law, and that their release would be incompatible with the elfare of society, would doubtless be irrational.
I do, however, agree with your thought that the wording “Any action by the commissioner pursuant to this section shall be deemed a judicial function” does indeed create a viable separation of powers argument.