8 [86 Op. Att’y

CORRECTIONS

PAROLE COMMISSION – PAROLE ELIGIBILITY OF INMATES

SERVING LIFE SENTENCES

January 25, 2001

Ms. Patricia K. Cushwa

Chair, Maryland Parole Commission

You have asked for our opinion on the parole eligibility of an

inmate serving a “straight” life sentence – that is, a sentence of life

imprisonment without any portion suspended and without any

prohibition against parole. Specifically, you have asked whether the

parole eligibility date of such an inmate is to be adjusted by the

application of diminution of confinement credits (“diminution

credits”) allowed under Annotated Code of Maryland, Correctional

Services Article (“CS”), §3-701 et seq.

In our opinion, the statute governing parole eligibility requires

that diminution credits be deducted in computing the parole

eligibility date of an inmate serving a straight life sentence.

Ordinarily, an inmate serving such a sentence will become eligible

for parole consideration in 15 years, as adjusted by any diminution

credits to which the inmate is entitled. If the inmate is serving a life

sentence as a result of a failed application for the death penalty, the

inmate may not be paroled for 25 years, as adjusted by diminution

credits. Of course, whether an eligible inmate should be paroled is

a matter left to the discretion of the Parole Commission and,

ultimately, the Governor.

I

Background

A. Eligibility for Parole

Parole is a conditional release from confinement granted by the

Parole Commission (the “Commission”). CS §7-101(i). However,

an inmate serving a life sentence may only be paroled with the

approval of the Governor. CS §7-301(d)(4).
Gen. 8] 9

 There are also certain qualifications to the general rule when the 1

inmate is serving a sentence for a “violent crime,” as defined in CS §7-

101(m). An inmate serving a sentence, other than life imprisonment, for

a violent crime is eligible for parole after serving the greater of “one half

the inmate’s aggregate sentence for violent crimes” or “one-fourth of the

inmate’s total aggregate sentence.” CS §7-301(c)(1)(i). The statute also

provides a specific method of computation for an inmate serving multiple

sentences who has been convicted of a violent crime and whose sentences

include one under which the inmate is not eligible for parole. CS §7-

301(c)(1)(ii).

 Annotated Code of Maryland, Article 27, §413, governs the 2

procedures for sentencing a defendant convicted of first degree murder.

In such a proceeding, if for various reasons, the court does not impose the

death penalty or life without possibility of parole, then the court is to

impose a life sentence. 

Generally, an inmate serving a sentence of six months or more

becomes eligible for parole consideration after serving one-fourth of

the inmate’s “aggregate sentence.” CS §7-301(a). However, the

statute takes a different approach to parole eligibility for an inmate

serving a sentence of life imprisonment. As a general rule, an 1

inmate serving a straight life sentence is not eligible for parole “until

the inmate has served 15 years or the equivalent of 15 years,

considering the allowances for diminution of the inmate’s term of

confinement....” CS §7-301(d)(1). However, if the inmate received

the life sentence after the State sought but did not obtain a harsher

sentence in “a proceeding under Article 27, §413,” the inmate is not 2

eligible for parole “until the inmate has served 25 years or the

equivalent of 25 years considering the allowances for diminution of

the inmate’s term of confinement....” CS §7-301(d)(2). Thus, in

either case, the statute states that an inmate serving a straight life

sentence becomes eligible for parole consideration after the requisite

number of years with allowance for diminution credits.

B. Diminution Credits

As a general rule, diminution credits are applied to determine

when an inmate serving a specific term of years must be released,

prior to the end of the full term, on mandatory supervision. CS §3-

701 et seq. In the language of the statute, an inmate serving a term

of years is entitled to deductions that effect a “diminution of the

inmate’s term of confinement.” CS §3-702. An individual released
10 [86 Op. Att’y

 Good conduct credits are allowed in advance at the rate of 5 or 10 3

days per month of the inmate’s term of confinement, depending upon the

nature of the inmate’s convictions. CS §3-704. “Work” and “education”

credits are allowed at the rate of 5 days per month of satisfactory

“progress” in the work task or education course. CS §3-705(a); CS §3-

706(a). “Special project” credits are allowed at the rate of up to 10 days

per month of satisfactory “progress” in the special project. CS §3-707(a).

Under CS §3-708, an inmate’s total deductions attributable to each

calendar month may not exceed 20 days.

on mandatory supervision as a result of those deductions is subject

to all “laws, rules, regulations, and conditions that apply to

parolees,” as well as to “any special conditions established by a

[parole] commissioner.” CS §7-502(b). However, release on

mandatory supervision is distinct from parole in that the statute

requires the release from confinement of an inmate eligible for

mandatory supervision while release of an inmate eligible for parole

is a discretionary decision. 

Diminution credits include: “good conduct” credits allowed in

advance based upon the length of the inmate’s term of confinement

(CS §3-704); “work” credits for participation in work tasks (CS §3-

705); “education” credits for participation in educational, vocational,

or other training courses (CS §3-706); and “special project” credits

for participation in designated special projects and programs (CS §3-

707). Diminution credits earned for good conduct or special 3

projects may be revoked if the inmate violates applicable rules of

discipline. CS §3-709.

An inmate serving a straight life sentence is not awarded

diminution credits for purposes of determining a date of release on

mandatory supervision. That is because diminution credits are

applied against a “term of confinement,” and only an inmate serving

a “term of confinement” may be released on mandatory supervision.

As defined in CS §3-701, “term of confinement” means:

(1) the length of the sentence, for a single

sentence; or 

(2) the period from the first day of the

sentence that begins first through the last day

of the sentence that ends last, for:
Gen. 8] 11

(i) concurrent sentences;

(ii) partially concurrent sentences;

(iii) consecutive sentences; or 

(iv) a combination of concurrent and

consecutive sentences. 

CS §3-701. A straight life sentence does not comprise a fixed

period, and does not have a determinable “last day” that establishes

an ending date against which diminution credits may be applied. See

CS §§3-701(d)(2), 3-702. Thus, an inmate serving a life sentence is

not serving a “term of confinement” and is not eligible for release on

mandatory supervision under CS §7-501.

II

Analysis

We understand your question to be as follows: Inasmuch as an

inmate serving a straight life sentence is not entitled to diminution

credits for the usual purpose of determining the inmate’s release on

mandatory supervision, does the law provide for such credits to be

applied to determine that inmate’s eligibility for parole?

The literal language of the pertinent statute permits parole

consideration after an inmate serving a life sentence has served “the

equivalent of 15 [or 25] years considering the allowances for

diminution of the inmate’s term of confinement....” CS §7-301(d)

(emphasis added). One might argue that, because a straight life

sentence is not a “term of confinement,” the italicized language does

not require any adjustment to the parole eligibility date. In other

words, because such an inmate does not earn diminution credits for

purposes of determining the inmate’s release on mandatory

supervision, there should be no deduction from the 15 and 25 year

periods specified for parole consideration. 

However, that interpretation would render part of the statute

meaningless. In our opinion, the rules of statutory interpretation

compel the conclusion that the Legislature intended to incorporate

diminution credits as a component of the determination of parole

eligibility for inmates sentenced to life imprisonment. 
12 [86 Op. Att’y

 The phrase “period of confinement” was later changed to “term of 4

confinement” during code revision, without any substantive change.

Chapter 54, Laws of Maryland 1999, Revisor’s Note at p. 657.

 In 1971, diminution credits were awarded on a monthly basis. In 5

1985, the Legislature amended the statute to require allowance of good

conduct credits in advance based on a computation of the inmate’s full

sentence. See Chapter 466, Laws of Maryland 1985, now codified at CS

§3-704(a). This change in the computation of diminution credits does not

affect our interpretation of the parole eligibility statute.

 In 1983, the Legislature added a parallel provision governing 6

parole eligibility for any inmate serving a life sentence as a result of a

failed application for the death penalty. Chapter 298, Laws of Maryland

1983. That provision, now codified in CS §7-301(d)(2), lengthened the

period of ineligibility to 25 years, but still included an adjustment for

diminution credits.

The legislative history of CS §7-301(d) supports this

interpretation. Approximately 60 years ago, the General Assembly

set the parole eligibility date for an inmate serving a life sentence at

15 years. Chapter 406, §55, Laws of Maryland 1939. In 1971, the

Legislature modified that provision to allow parole consideration

after such an inmate had served 15 years “or the equal of fifteen

years when considering the allowance for diminution of period of

confinement provided [by statute].” Chapter 690, Laws of Maryland

1971. Then, as now, an inmate could earn diminution credits during 4

a period of confinement, with the result that the inmate could be

released prior to the end of the full term “as if released on parole.”

See Annotated Code of Maryland, Article 41, §127A (1971 Repl.

Vol.). Although the legislative files concerning the bill that resulted 5

in Chapter 690 are no longer available, there can be little doubt that

the Legislature intended that diminution credits be applied to the 15-

year eligibility date for an inmate serving a life sentence, even 6

though those credits could not result in the inmate’s release on

mandatory supervision. 

A contrary conclusion would render the 1971 amendment

meaningless. The language quoted above concerning diminution

credits was the only amendment made to the parole statute by the

1971 law. To conclude that diminution credits should not be

credited against the inmate’s parole eligibility date would be to

construe the 1971 amendment as ineffective. However, a statute
Gen. 8] 13

should not be interpreted so as to render “any portion of it,

meaningless, surplusage, superfluous, or nugatory.” Mayor and

City Council v. Chase, 360 Md. 121, 129, 756 A.2d 987, 992 (2000);

Tracey v. Tracey, 328 Md. 380, 387, 614 A.2d 590, 594 (1992).

We understand that the Commission gave this effect to the

language concerning diminution credits beginning in 1971. See

Maryland Parole Commission, Policy and Procedure No. 2-21;

Division of Correction, Commitment Procedure Manual, Chapter

90-720 (1999 rev.). This long-standing interpretation of the

Commission, consistent with the language and evident purpose of

the 1971 amendment, would be accorded substantial weight by the

courts. See Adamson v. Correctional Medical Services, Inc., 359

Md. 238, 266, 753 A.2d 501 (2000) (interpretation of statute soon

after its passage by agency that administers it “should not be

disregarded except for the strongest and most urgent reasons”).

It is apparent that, in authorizing parole of an inmate serving

a life sentence, the Legislature intended to incorporate, as it did for

inmates serving terms of years, incentives for good behavior and

participation in educational and work programs. For an inmate

serving a life sentence, however, credits for good behavior and

participation in those programs results, not in automatic release from

custody, but only in earlier eligibility for parole. 

Of course, nothing in the statute compels the Commission to

recommend parole for an inmate serving a life sentence at the time

of the inmate’s initial eligibility. The Commission has substantial

discretion in exercising its statutory duty to make a recommendation

concerning parole for an inmate serving a life sentence. CS §7-

206(3)(i); CS §7-305 (factors and information to be considered by

the Commission); see also Lomax v. Warden, 356 Md. 569, 741

A.2d 476 (1999). The Governor has even broader discretion in

determining whether to accept that recommendation. Lomax, 356

Md. at 578 n.2.

III

Conclusion

In our opinion, the parole eligibility date of an inmate serving

a straight life sentence must be adjusted by deducting any diminution

credits to which the inmate is entitled for purposes of parole

eligibility. Ordinarily, an inmate serving such a sentence will
14 [86 Op. Att’y

become eligible for parole consideration in 15 years, as adjusted by

diminution credits. If the inmate is serving a life sentence as a result

of a failed application for the death penalty, the inmate may not be

paroled for 25 years, as adjusted by diminution credits.

J. Joseph Curran, Jr.

Attorney General

Alan D. Eason

Assistant Attorney General

Robert N. McDonald

Chief Counsel

 Opinions and Advice

Editor’s Note:

The Court of Special Appeals discussed this opinion in

Witherspoon v. Maryland Parole Commission, 149 Md. 101, 814

A.2d 123 (2002), cert. denied, 374 Md. 84, 821 A.2d 571 (2003).