YOUR QUESTION ASKS, IN EFFECT, WHETHER THE PRISON POPULATION MANAGEMENT ACT OF 1993, 57 O.S. 610 AND 57 O.S. 611, IS AN UNCONSTITUTIONAL ENCROACHMENT UPON THE AUTHORITY OF THE STATE PARDON AND PAROLE BOARD UNDER ARTICLE VI, SECTION 10 OF THE OKLAHOMA CONSTITUTION. THE ACT ESTABLISHES THE SPECIALIZED SUPERVISION PROGRAM ADMINISTERED BY THE OKLAHOMA DEPARTMENT OF CORRECTIONS. SINCE YOU ARE ASKING ABOUT THE CONSTITUTIONALITY OF A STATUTE, AND IN LIGHT OF OUR CONCLUSION, YOUR REQUEST IS BEING ANSWERED INFORMALLY. YORK V. TURPEN, 681 P.2D 763 (OKL. 1984).
THE PARDON AND PAROLE BOARD WAS CREATED AND EMPOWERED UNDER ARTICLE VI, SECTION 10 OF THE OKLAHOMA CONSTITUTION:
"IT SHALL BE THE DUTY OF THE BOARD TO MAKE AN IMPARTIAL INVESTIGATION AND STUDY OF APPLICANTS FOR COMMUTATIONS, PARDONS OR PAROLES, AND BY MAJORITY VOTE MAKE ITS RECOMMENDATIONS TO THE GOVERNOR OF ALL DEEMED WORTHY OF CLEMENCY."
ARTICLE VI, SECTION 10 ALSO SETS OUT THE AUTHORITY OF THE GOVERNOR:
"THE GOVERNOR SHALL HAVE THE POWER TO GRANT, AFTER CONVICTION AND AFTER FAVORABLE RECOMMENDATION BY A MAJORITY VOTE OF SAID BOARD, COMMUTATIONS, PARDONS AND PAROLES FOR ALL OFFENSES EXCEPT CASES OF IMPEACHMENT, UPON SUCH CONDITIONS AND WITH SUCH RESTRICTIONS AND LIMITATIONS AS HE MAY DEEM PROPER, SUBJECT TO SUCH REGULATIONS AS MAY BE PRESCRIBED BY LAW."
THE PRISON POPULATION MANAGEMENT ACT OF 1993 PROVIDES A MECHANISM WHEREBY OFFENDERS MAY BE PLACED IN A SPECIALIZED SUPERVISION PROGRAM WHEN THE POPULATION OF THE PRISON SYSTEM EXCEEDS 97.5% OF THE AUTHORIZED CAPACITY. THE SPECIALIZED SUPERVISION PROGRAM "SHALL REQUIRE ACTIVE SUPERVISION OF THE INMATE IN A COMMUNITY SETTING BY A CORRECTIONAL OFFICER OR OTHER EMPLOYEE OF THE DEPARTMENT OF CORRECTIONS UNDER SUCH RULES, REGULATIONS AND PROCEDURES AS MAY BE ESTABLISHED PURSUANT TO THIS ACT." 57 O.S. 611(E) (1993). THE ACT SETS CERTAIN PARAMETERS UNDER WHICH OFFENDERS MAY BECOME ELIGIBLE FOR THE PROGRAM AND THE DURATION OF ANY PARTICIPATION IN THE PROGRAM. THE ACT DETAILS CONDITIONS WHERE OFFENDERS MAY BE REMOVED FROM THE PROGRAM.
ONE SPECIFIC CONDITION FOR REMOVAL FROM THE PROGRAM IS THE GRANTING OF PAROLE BY THE GOVERNOR PURSUANT TO THE GENERAL PAROLE STATUTE, 57 O.S. 332.7 (1993). BY ITS TERMS THEN, PLACEMENT ON THE SPECIALIZED SUPERVISION PROGRAM IS A PROGRAM SEPARATE AND DISTINCT FROM PAROLE. THE COURT OF CRIMINAL APPEALS HAS STATED THAT "IN OKLAHOMA, THE DISCRETIONARY POWER TO DISCHARGE AN OFFENDER WHO IS OTHERWISE UNDER A LAWFUL SENTENCE RESTS EXCLUSIVELY WITH THE GOVERNOR . . . ANY STATUTE ATTEMPTING TO PLACE THIS POWER IN THE HANDS OF ANOTHER BRANCH OF GOVERNMENT IS UNCONSTITUTIONAL." SWART V. STATE, 720 P.2D 1265, 1270 (OKL.CR. 1986). "(T)HE DISCRETIONARY DISCHARGE OF A SENTENCE IS A MATTER SOLELY FOR THE GOVERNOR, UPON RECOMMENDATION FROM THE PARDON AND PAROLE BOARD." ID., AT 1271. THE LEGISLATURE MAY NOT GIVE AUTHORITY FOR CONDITIONAL RELEASES TO THE DEPARTMENT OF CORRECTIONS. IN RE KEITH, 482 P.2D 942 (OKL.CR. 1971).
UNDER THE PRISON POPULATION MANAGEMENT ACT OF 1993 NO LANGUAGE IS FOUND THAT AUTHORIZES THE DEPARTMENT OF CORRECTIONS TO GRANT CONDITIONAL RELEASES OR CONDITIONAL DISCHARGES TO OFFENDERS. THE