TITLE 11

Crimes and Criminal Procedure

Criminal Procedure Generally

CHAPTER 43. SENTENCING, PROBATION, PAROLE AND PARDONS

Subchapter IV. Parole


(a) The Board of Parole shall consist of a Chairperson and 4 other members, all of whom shall be appointed by the Governor and confirmed by a majority of the members elected to the Senate. One member shall be from each county and 1 additional member shall be from the City of Wilmington. Appointed members may include, but not be limited to, those who have a demonstrated interest in correctional treatment, social welfare, or victim advocacy.

(b) The Chairperson shall be paid a salary which shall be fixed by the Governor.

(c) The Chairperson shall be experienced in the area or areas of probation, parole and/or other related areas of corrections.

(d) The Chairperson shall serve at the pleasure of the Governor, and all other members shall serve a 4-year term, provided that no more than 1 member's term shall expire annually. The Governor may appoint members for terms of less than 4 years to ensure that the Board members' terms expire on a staggered basis. A member shall hold office until a successor has been appointed and qualified.

(e) The Governor may remove a member of the Board only for disability, inefficiency, neglect of duty or malfeasance in office. A member may be deemed in neglect of duty if he or she is absent from 3 consecutive Board meetings without adequate reason or if they attend less than 50% of Board meetings in a calendar year. Before such removal the Governor shall give the member a written copy of the charges against such member and shall fix the time when such member can be heard in such member's defense, which shall not be less than 10 days thereafter.

11 Del. C. 1953, § 4341; 54 Del. Laws, c. 349, § 7; 57 Del. Laws, c. 597, § 1; 59 Del. Laws, c. 172, §§ 1, 2; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 299, § 1; 79 Del. Laws, c. 366, § 1.;

(a) The Board shall obtain and maintain suitable and adequate quarters and shall employ those persons necessary to carry out its functions. For administrative and budgetary purposes, the Board shall be placed within the Criminal Justice Council. Fiscal oversight shall be provided by the Criminal Justice Council as determined by the Executive Director of the Criminal Justice Council.

(b) The Board shall adopt an official seal of which the courts shall take judicial notice.

11 Del. C. 1953, § 4342; 54 Del. Laws, c. 349, § 7; 57 Del. Laws, c. 591, § 52; 57 Del. Laws, c. 597, § 2; 79 Del. Laws, c. 366, § 1.;

The Board shall:

(1) Be the paroling authority for the State;

(2) Establish rules and regulations for the conduct of its own proceedings, and rules of procedure for the effective enforcement of this chapter. Copies of said rules and regulations shall be published and may be obtained upon request;

(3) Determine the salary of any employee within the total appropriation in addition to proper expenses;

(4) Meet at least once a month, for the transaction of business, and a sufficient other number of times as shall be necessary adequately to perform its duties under this chapter;

(5) Keep a record of its acts and notify each applicant for parole, and the Department of its decisions;

(6) Consult with the Department in the formulation and establishment of policies and procedures, fully to carry out the objectives of parole and correctional treatment in the best interests of the public;

(7) Cooperate with the Department in preparing the annual report of the Board to be submitted to the Governor and make available and submit to the Department all statistical and other data of its work and compilation and analysis of dispositions as it shall require. The Board may make a separate statement or include such statement in the report of the Department to the Governor;

(8) Act as advisory board to the Board of Pardons. When a person in legal custody of the Department of Correction applies to the Board of Pardons for recommendation for a pardon or commutation of sentence, the Parole Board, upon request, shall furnish to each member of the Board of Pardons and to the Governor a report of the record of such person, which shall include its opinion as to the state of rehabilitation of such person.

11 Del. C. 1953, § 4343; 54 Del. Laws, c. 349, § 7; 57 Del. Laws, c. 597, § 3; 60 Del. Laws, c. 251, § 10; 78 Del. Laws, c. 305, § 1.;

(a) Each member of the Board except the Chairperson shall receive $300 per day, for services when attending a meeting of the Board. The meetings of the Board shall not exceed 50 in any year; however, the Governor may, in the Governor's discretion, give written authorization to the Board to hold as many meetings in excess of 50 in any year as the business of the Board may require.

(b) In addition, each member shall receive mileage incurred attending such meetings and performing such duties.

11 Del. C. 1953, § 4344; 54 Del. Laws, c. 349, § 7; 57 Del. Laws, c. 597, § 4; 58 Del. Laws, c. 145; 59 Del. Laws, c. 172, § 3; 62 Del. Laws, c. 68, § 138; 62 Del. Laws, c. 86, § 40; 65 Del. Laws, c. 348, § 89; 69 Del. Laws, c. 459, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 329, § 1.;

At least 14 days before any meeting of the Board, the Chairperson shall provide all the members of the Board with copies of all pertinent information and materials at the Chairperson's disposal concerning all applications for parole coming before the Board at that meeting, or concerning any reviews which shall be undertaken at that meeting.

11 Del. C. 1953, § 4345; 57 Del. Laws, c. 597, § 5; 70 Del. Laws, c. 186, § 1.;

(a) A person confined to any correctional facility administered by the Department may be released on parole by the Board if the person has served 1/3 of the term imposed by the court, such term to be reduced by such merit and good behavior credits as have been earned, or 120 days, whichever is greater. For the purpose of this subchapter, "court'' shall include any court committing an offender to the Department.

(b) Consistent with law, the Board, upon written recommendation of the court which imposed the sentence, or the Department, may reduce the minimum term of eligibility when the Board is satisfied that the best interest of the public and the welfare of the person will be served by such reduction. Such reduction in the minimum term of eligibility for parole shall be by order of the Board stating the specific date when said person shall become eligible for parole; but such reduction of the minimum term of eligibility for parole shall have no effect on the maximum limits of the sentence. The order of reduction by the Board shall be made in open hearing.

(c) The Board shall have authority to act where the maximum term has been commuted by the Governor. For all purposes of this section, a person sentenced to imprisonment for life shall be considered as having been sentenced to a fixed term of 45 years.

(d) Consistent with law, the Board may adopt such other rules as it deems proper or necessary with respect to the eligibility of persons for parole, the conduct of parole hearings or conditions to be imposed upon parolees.

(e) Whenever the physical or mental condition of any person confined in any institution demands treatment which the Department cannot furnish, the Department may, if such action seems necessary for the well-being of such person, recommend the case be considered by the Board of Parole at a regular or special meeting. When such case is so considered, the Board of Parole, if satisfied that removal from the institution is necessary for the well-being of such person, may order the release of such person on parole without regard to the time already served by such person. The Board of Parole shall parole in such case only when arrangements have been made for the treatment of the person in some institution. The Board of Parole may impose any conditions of parole in such case, may revoke such parole without hearing at any time and for any cause, and order the return of the person to the Department.

11 Del. C. 1953, § 4346; 54 Del. Laws, c. 349, § 7.;

(a) A person committed to the custody of the Department who will be eligible for parole within 180 days may apply for a parole hearing on forms promulgated by the Board. Upon receipt of such application, the Board shall notify the Bureau Chief of Prisons of said application and request verification of parole eligibility and the information required in subsection (d) of this section which shall be provided the Board within 30 days. Upon receipt of the foregoing information, the Board shall determine within 30 days if a parole hearing will be scheduled. If the hearing is denied or if the hearing is held and the parole denied the applicant and the Department shall be advised in writing by the Board of the earliest date, not sooner than 6 months for an applicant with a good-time release date of 3 years or less and not sooner than 1 year for an applicant with a good-time release date of more than 3 years, upon which the applicant shall be eligible to again apply for a parole hearing in accordance within this section.

(b) If any person eligible for parole fails to make an application as specified in subsection (a) of this section, the Department shall have no duty to such person to provide the Board with the information otherwise required by this chapter and the Board shall have no duty to such person to consider such person for parole. Notwithstanding the failure of a person to apply for parole, the Department is permitted to provide the Board with the information otherwise required by this chapter and the Board may, in turn, consider such person for parole.

(c) A parole may be granted when in the opinion of the Board there is reasonable probability that the person can be released without detriment to the community or to person, and where, in the Board's opinion, parole supervision would be in the best interest of society and an aid to rehabilitation of the offender as a law-abiding citizen. A parole shall be ordered only in the best interest of society, not as an award of clemency, and shall not be considered as a reduction of sentence or a pardon. A person shall be placed on parole only when the Board believes that the person is able and willing to fulfill the obligations of a law-abiding citizen. Among the factors the Board shall consider when determining if a defendant shall be placed on parole are as follows: job skills, progress towards or achievement of a general equivalency diploma, substance abuse treatment and anger management and conflict resolution.

(d) Within 1 month prior to the time an offender is scheduled for a parole hearing, the Department shall submit a progress report with parole recommendations to the Parole Board, and the Department shall submit a carefully evaluated parole plan with recommendations. At the same time a copy of the progress report and the parole plan and recommendations shall also be submitted to the Delaware State Police and to the arresting public police organization, along with the date and location of the scheduled parole hearing. Moreover, whenever possible and feasible, the Department shall notify the aggrieved party of the crime or crimes for which the offender was sentenced and the date and location of the scheduled parole hearing.

(e) The Board shall have no obligation to allow a person eligible for parole to appear before it, and the Board may deny a parole application without having interviewed the applicant. In no case, however, shall the Board grant a parole without having first had the applicant personally appear before the Board and be interviewed by it.

(f) All paroles shall issue upon order of the Board duly adopted by a majority of those present and voting; provided, however, no person who has been convicted of and imprisoned for murder in the first or second degree, rape in the first, second or third degree, unlawful sexual intercourse in the first or second degree, kidnapping or any offense relating to the sale, attempt to sell, delivery or possession with intent to sell or deliver a narcotic drug shall be granted a parole except by order of the Board duly adopted by at least 4 of the 5 members of the Board. A quorum shall be a minimum of 3 members.

No parole shall be issued to any prisoner who has been convicted in a court of law and sentenced for committing or attempting to commit the offense of "escape after conviction'' as set forth in § 1253 of this title until such time as that prisoner has served the amount of time equivalent to and commensurate with that imposed in the sentence set forth by the court for said escape or attempt to escape.

No parole shall be issued to any prisoner who has been convicted and sentenced in a court of law for the offense of "conspiracy in the second degree'' as defined in § 512 of this title with respect to directly and actively aiding or abetting an escape as defined in § 1253 of this title until such time as an equivalent amount of time commensurate with that which has been imposed under the sentence set forth by the court for said conspiracy has been served.

(g) Every person while on parole shall remain in the legal custody of the Department but shall be subject to the orders of the Board of Parole.

(h) Where civil rights would otherwise be forfeited, they shall be forfeited only during any period of incarceration.

(i) The period served on parole or conditional release shall be deemed service of the term of imprisonment, and subject to the provisions contained in § 4352 of this title, relating to a person who is a fugitive from or has fled from justice, the total time served may not exceed the maximum term or sentence. When a person on parole or conditional release has performed the obligations of that person's release for such time as shall satisfy the Board that the person's final release is not incompatible with the best interest of society and the welfare of the individual, the Board may make a final order of discharge and issue a certificate of discharge to the person; but no such order of discharge shall be made within 1 year after the date of release except where the sentence expires earlier thereto. Such discharge, and the discharge of a person who has served person's term of imprisonment, shall have the effect of restoring all civil rights lost by operation of law upon commitment. Except when discharged herein a person on parole or conditional release shall be on parole until the expiration of the maximum term for which the person is sentenced.

(j) Each person who is eligible for parole or conditional release under this subchapter is eligible to be a candidate for appointment to the house arrest program for nonviolent offenders. A person shall be eligible for consideration to participate in the house arrest program if such person meets all of the requirements of subsection (c) of this section and in addition:

(1) Makes regular payments, per month, toward the costs incurred by the State in maintaining the program;

(2) Performs such stipulated number of hours of public service work as are directed by the court or by the Department;

(3) Makes restitution to any victim or victims in such amounts as the court shall determine. Full or partial restitution, in such manner as the court determines, is a requirement for participation, or continued participation, in the program.

(k) Notification of parole eligibility

(1) At least 30 days prior to a scheduled parole hearing for an inmate convicted of a felony offense, the Board shall notify the victim or the immediate family of the victim of the date, time and place of the scheduled hearing. A copy of any rules developed pursuant to § 4350(a) of this title shall be included with the notice. However, at any time, the victim or the victim's immediate family can request that no notification be sent.

(2) At least 30 days prior to a scheduled parole hearing for an inmate convicted of a felony offense, the Board shall send a notice of the date, time and place of the scheduled hearing to the attorney general.

(3) At least 30 days prior to a scheduled parole hearing for an inmate convicted of a felony offense, the Board shall cause notice of the date, time and place of the scheduled hearing to be published in a newspaper with an average daily statewide circulation of at least 15,000 copies, of which at least 5,000 copies shall be in the county in which the offense occurred.

(l ) Notification of parole decision

(1) At the same time as the Board sends notice of its decision to the inmate, the Board shall send notice of its decision to those who received notice under paragraphs (k)(1) and/or (2) of this section.

(2) No later than 10 days after a parole hearing resulting in parole of an applicant, the Board shall cause notice of its decision to be published in the same newspaper in which the notice of the hearing was published.

(m) Prior to a parole hearing, a party to whom the Board failed to notify as required in paragraphs (k)(1) or (2) of this section may request that the Board postpone the scheduled hearing in order to provide a reasonable opportunity for the party to attend the hearing, and/or submit a written statement. However, in no event shall the hearing be postponed more than 45 days from the original scheduled date.

(n) Any notice required to be provided to the victim or to the victim's immediate family shall be mailed to the last known address of the victim or family member. It is the responsibility of the victim or the victim's immediate family to provide the Board with a current mailing address.

11 Del. C. 1953, § 4347; 54 Del. Laws, c. 349, § 7; 57 Del. Laws, c. 584; 59 Del. Laws, c. 125, § 1; 60 Del. Laws, c. 707, § 1; 63 Del. Laws, c. 331, § 1; 64 Del. Laws, c. 22, §§ 1-5; 64 Del. Laws, c. 188, § 1; 66 Del. Laws, c. 29, § 2; 66 Del. Laws, c. 269, § 31; 67 Del. Laws, c. 355, § 1; 68 Del. Laws, c. 373, §§ 1, 2; 70 Del. Laws, c. 168, § 2; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 285, § 17; 75 Del. Laws, c. 102, § 1; 78 Del. Laws, c. 305, § 1.;

A person released on or after August 8, 2012, having served that person's term or terms in incarceration, less such merit and good behavior credits as have been earned, shall, upon release, be deemed as released on probation until the expiration of the maximum term or terms for which the person is sentenced. A person may waive the right to conditional release, in which case the person shall serve the remainder of the term or terms in prison. Such waiver shall be in writing.

11 Del. C. 1953, § 4348; 54 Del. Laws, c. 349, § 7; 70 Del. Laws, c. 186, § 1; 78 Del. Laws, c. 392, § 7; 79 Del. Laws, c. 187, § 3.;

The Department shall grant to the Board or its representatives access to any person over whom the Board has jurisdiction under this chapter, and shall provide facilities for communicating with and observing such person, and make available to the Board such reports as the Board shall require concerning the conduct and character of any person in the custody of the Department, the institutional plan of treatment for such person or any other facts deemed by the Board pertinent in determining whether the person shall be paroled. The Department shall furnish to the Board such reports as the Board shall require concerning casework performed in the community with relatives or others connected with the person, investigations of parole plans or other reports or facts deemed by the Board pertinent in determining whether or not the person shall be paroled. All police agencies of this State, upon request, shall furnish the Board with any information at their disposal in regard to any person to be considered for parole.

11 Del. C. 1953, § 4349; 54 Del. Laws, c. 349, § 7.;

(a) The Board shall adopt rules for hearing oral statements or arguments by persons not connected with the Department of Correction when hearing applications for parole. In developing those rules, the Board shall reserve for itself the right to:

(1) Limit the length of each statement;

(2) Restrict the number of individuals allowed to attend parole hearings in accordance with physical limitations or security requirements of the hearing facilities; and

(3) Deny admission or continued attendance to individuals who threaten or present a danger to the attendees or participants or who disrupt the hearing.

The Board shall also accept written statements.

(b) The Board may take formal action to close their proceedings upon a majority vote of members present for the following reasons:

(1) To protect ongoing law-enforcement investigations, upon written request of the attorney general or law-enforcement agency;

(2) To deliberate upon oral or written arguments received;

(3) To provide opportunity for applicants to challenge confidential information which they believe is detrimental to their applications; or

(4) At the request of the victim or, in the case of first-degree murder, the immediate family of the victim.

(c) The Department of Correction may appear personally before the Board to advise and be heard by the Board with respect to any application for parole being considered.

(d) When the Board is hearing an application for parole made by an offender, the victim or immediate family of the victim of such crime or their duly appointed representatives may make oral statements or arguments before the Board with respect to the application for parole being considered. Victims or their representatives shall have priority in making statements before the Board.

(e) As used in this section, the phrase "immediate family'' shall mean widow, widower, parents, children, brothers and sisters of the victim.

11 Del. C. 1953, § 4350; 54 Del. Laws, c. 349, § 7; 60 Del. Laws, c. 64, § 1; 70 Del. Laws, c. 168, § 1.;

The Board may issue subpoenas requiring the attendance of such witnesses and the production of such records, books, papers and documents necessary for investigation of the case of any person before it. Subpoenas may be signed and oaths administered by any member of the Board. Subpoenas so issued may be served by Department employees or by any person authorized to serve subpoenas by the Rules of Civil Procedure of the Superior Court and shall be served and returned as provided by said Rules. The fees of witnesses shall be the same as allowed in the Superior Court and shall be paid by the State Treasurer from any moneys in the Treasury of the State not otherwise appropriated, upon a warrant signed by a member of the Board and its Secretary. Any person who testifies falsely or fails to appear when subpoenaed, or refuses to produce such material pursuant to the subpoena, shall be subject to the same orders and penalties to which a person before said Court is subject. The Superior Court, upon application of the Board, may in its discretion compel the attendance of witnesses, the production of such material and the giving of testimony before the Board, by an attachment for contempt or otherwise in the same manner as production of evidence may be compelled before such Superior Court.

11 Del. C. 1953, § 4351; 54 Del. Laws, c. 349, § 7.;

(a) At any time during release on parole the Board or any member thereof may issue a warrant for the arrest of a released person for violation of any of the conditions of release, or a notice to appear to answer to a charge of violation. Such notice shall be served personally upon the person. The warrant shall authorize any officer authorized to serve process in this State to return the person to the actual custody of the correctional facility from which the person was released, or to any other suitable detention facility designated by the Board or Department. When, in the judgment of the Commissioner or of any probation and parole officer, there has been a violation of the conditions of release, the Commissioner or the probation and parole officer may arrest such parolee without a warrant, or the Commissioner or the probation and parole officer may deputize any other officer with power of arrest to do so by giving officer a written statement setting forth that the parolee has, in the judgment of the Commissioner or probation and parole officer, violated the conditions of parolee's release. The written statement delivered with the person by the arresting officers to the official in charge of the facility to which the person is brought for detention shall be sufficient warrant for detaining the parolee.

(b) After making an arrest the Department shall present to the detaining authorities a statement of the circumstances of violation. Pending hearing, as hereinafter provided, upon any charge of violation, the person shall remain incarcerated in the institution.

(c) Upon such arrest and detention, the Department shall immediately notify the Board and shall submit a report showing in what manner the person had violated the conditions of release. The Board shall cause the person to be brought promptly before it for a hearing on the violation charge, under such rules and regulations as the Board may adopt.

(d) If the violation is established by the hearing, the Board may continue or revoke the parole, or enter such other order as it may see fit.

(e) A person for whose return a warrant has been issued by the Board shall, if it is found that the warrant cannot be served, be deemed to be a fugitive from justice or to have fled from justice.

(f) If it shall appear that the person has violated the provisions of the person's release, the Board shall determine whether the time from the issuing of the warrant to the date of the person's arrest, or any part of it, shall be counted as time under the sentence.

(g) Any person who commits a crime while at large on parole and is convicted and sentenced therefor shall serve the unexpired portion of the term under which the person was released consecutively after any new sentence for the new offense.

11 Del. C. 1953, § 4352; 54 Del. Laws, c. 349, § 7; 59 Del. Laws, c. 546, § 1; 67 Del. Laws, c. 442, § 1; 70 Del. Laws, c. 186, § 1; 78 Del. Laws, c. 392, § 8.;

(a) No person who has been convicted of and imprisoned for any class A felony, felony sex offense or any felony wherein death or assault to a victim occurred shall be released from incarceration by the Parole Board until the Parole Board has considered a mental health evaluation of such person. The Parole Board, in its discretion, may request mental health evaluations on persons convicted and imprisoned for any offense not enumerated above.

(b) The Department of Correction shall ensure that mental health evaluations required by subsection (a) of this section are available to the Parole Board at the time of the hearing in those cases wherein a favorable recommendation is made by the Department to the Board.

In cases wherein a favorable recommendation is not made by the Department but the Parole Board has determined that the person is otherwise suitable for release on parole, the Parole Board must request a mental health evaluation, pursuant to this section.

(c) The Parole Board may consider any mental health evaluation conducted within 12 months prior to the person's parole hearing in lieu of requesting a new mental health evaluation. However, for persons convicted and imprisoned for any of the offenses listed in subsection (a) of this section, the Parole Board may determine that it requires additional information. In such case as additional information is required, no person shall be released from incarceration until such additional information has been considered by the Parole Board.

(d) Mental health evaluations conducted pursuant to this section will be administered by a person with professional education and training. The mental health evaluation to the Parole Board shall consist of:

(1) Background information or historical information about the person's mental health;

(2) Information about the person's functioning in the prison or institutional setting;

(3) A description of the person's current mental health; and

(4) A summary with a prognosis of expected behavior if the person were paroled, including any specific recommendations for mental health care.

(e) Any mental health evaluations prepared pursuant to this section will be provided to each member of the Parole Board for their consideration in determining whether the person should be released from prison.

(f) Nothing in this section shall preclude the parole of a person for treatment to another institution because of a physical or mental condition, as provided in § 4346 of this title.

11 Del. C. 1953, § 4353; 57 Del. Laws, c. 596, § 1; 66 Del. Laws, c. 269, § 9; 67 Del. Laws, c. 315, § 1; 68 Del. Laws, c. 372, § 1; 69 Del. Laws, c. 336, § 1.;

No sentence imposed pursuant to the provisions of the Truth and Sentencing Act of 1989, including sentences imposed for felonies under § 4177 of Title 21, shall be subject to parole under the provisions of this subchapter.

67 Del. Laws, c. 130, § 7; 80 Del. Laws, c. 120, § 2.;