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Nevada Supreme Court: Parole Board May Petition To Modify Life Sentence

by Anthony Accurso

The Supreme Court of Nevada held that the Nevada Board of Parole Commissioners had the authority to petition a district court to modify a defendant’s sentence and remove him from lifetime parole.

Marlin Thompson was convicted of murder and attempted murder in 1978 for which he received life with the possibility of parole. He was paroled in July 1992 and has been on parole since that time.

In September 2017, the Parole Board filed a petition for modification of Thompson’s sentence to release him from parole. The district court, on motion by the Washoe County District Attorney’s Office, denied the petition because it interpreted NRS 176.033(2) to restrict the Parole Board’s authority to petition for modification only to terms of parole with a minimum limit, and lifetime terms of parole have no such minimum (only a maximum).

The Parole Board attempted to appeal the decision, but the Nevada Supreme Court denied jurisdiction based on the Parole Board’s lack of standing. However, the Parole Board also filed a writ of mandamus with the Court, which was ultimately granted.

“A writ of mandamus is available to compel the performance of an act that the law requires or to control an arbitrary or capricious exercise of discretion.” NRS 34.160. “To establish standing in a mandamus proceeding, the petitioner must demonstrate a beneficial interest in obtaining writ relief.” Heller v. Nev. State Leg., 93 P.3d 746 (Nev. 2004). The Court determined the Parole Board has an interest “in how [NRS 176.033(2)] is interpreted and whether its request under the statute is granted or denied.”

The Court could not consider the writ if another legal remedy was available. NRS 34.170. The District Attorney’s Office argued that because the Pardons Board could pardon Thompson, the writ was improper. The Court rejected this argument on the basis that the Pardons Board could not answer questions of law, a power invested only in the courts per Nev. Const. art. 6, § 1.

Considering the history of NRS 176.033(2), the Court had to determine which version of the statute applied to Thompson: the version in effect at the time of Thompson’s offense in 1978, which allowed the Parole Board to modify a term “to no less than any minimum term prescribed by the applicable penal statute,” or the 1987 version, which added a clause allowing for modification after “10 consecutive years on parole in the case of a prisoner sentenced to life imprisonment.”

The Court found that, because the 1987 amendment’s language was not tied to the date of the parolee’s offense, the plain language of the statute signaled the Legislature’s intent for the Parole Board’s authority to rest in the current language of the statute, rather than the language in place when the parolee committed his offense.

Having made this determination, the Court found that the “10 consecutive years” provision applies to parolees serving a term of life, rather than the District Attorney’s Office’s contention that there was no minimum to which the sentence could be adjusted. To rule otherwise would have made the 1987 amendment’s added language “nugatory,” or without meaning. Thus, the Court held, in the case of Marlin Thompson, that the Parole Board’s writ of mandamus should be granted.

Accordingly, the Court vacated the decision of the district court and ordered the lower court to reconsider the Parole Board’s petition to terminate Thompson’s parole. See: State Board of Parole Commissioners v. Second Judicial District Court, 451 P.3d 73 (Nev. 2019). 

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Related legal case

State Board of Parole Commissioners v. Second Judicial District Court

 

 

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