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Eligibility For Parole
A prisoner is generally eligible for parole after the
prisoner has served an amount of his or her sentence
that is in accordance with a state's statutes. The
prisoner's eligibility for parole also depends upon the
amount of good conduct time that the prisoner has earned
during his or her incarceration. A prisoner who is
serving a death sentence is not eligible for parole. A
prisoner who is serving a life sentence may not be
eligible for parole until he or she serves a minimum
term of imprisonment, such as 40 or 50 years, depending
upon the state's statutes. Also, a prisoner who is
convicted of certain offenses, such as murder,
aggravated robbery, or aggravated sexual assault, may
not be eligible for parole until he or she has served a
minimum term of imprisonment.
Good conduct time on the part of a prisoner serves two
purposes. First, it determines the prisoner's mandatory
release date. Second, it determines the date that the
prisoner will be eligible for discretionary parole. Good
conduct time is usually granted to prisoners who observe
prison rules and who participate in vocational,
educational, or employment programs. Prisoners generally
receive a certain number of days of good conduct time
for a certain number of days that are served.
Good conduct time is a privilege and not a right. Good
conduct time does not reduce a prisoner's sentence. Good
conduct time only applies to the prisoner's eligibility
for parole or for mandatory release. A prisoner may
forfeit his or her good conduct time if he or she
commits an offense while incarcerated or if he or she
violates a prison rule. If a prisoner has been convicted
of certain offenses, such as murder, aggravated robbery,
or aggravated sexual assault, he or she may not be
eligible for good conduct time. This ineligibility
applies to both discretionary parole and mandatory
release. A prisoner who is ineligible for good conduct
time for purposes of discretionary parole is also
ineligible for good conduct time for purposes of
mandatory release.
If a prisoner is serving consecutive sentences for
multiple offenses, each sentence is treated separately
by a state's parole board with regard to the
determination of discretionary parole or mandatory
release. Good conduct time only applies to the
prisoner's current sentence. It does not apply to the
prisoner's consecutive sentence.
A prisoner's eligibility for parole depends upon a
state's statute that is in effect at the time the
prisoner is convicted of an offense. If the statute is
amended after the prisoner is convicted, which statute
increases the prisoner's time for eligibility for
parole, the statute cannot be applied retroactively.
However, if the statute decreases the prisoner's time
for eligibility for parole, the statute will apply to
the prisoner unless it specifically states that it is a
prospective statute.
A prisoner may become eligible for parole if the
institution in which the prisoner is incarcerated
becomes overcrowded. An institution is considered to be
overcrowded if its population reaches its maximum
capacity. If a state's parole board has been notified
that an institution is overcrowded, it may consider the
prisoner's eligibility for parole. However, even if the
institution is overcrowded, the state's parole board has
the discretion to parole the prisoner and can refuse to
parole the prisoner if it determines that the prisoner's
release will constitute a danger to society.
A prisoner who is released as a result of overcrowding
in an institution is subject to the same conditions as
other prisoners who are released on parole. The prisoner
may be placed in a residential facility or in a halfway
house. The prisoner will also be subject to supervision
while on parole.
Prior to recommending parole, a state's parole board
must determine that a prisoner will be able to
financially support himself or herself and will be able
to become a law-abiding citizen. The state's parole
board may only release the prisoner if he or she no
longer presents a threat to the community.
A state's parole board normally develops guidelines for
granting parole to a prisoner. If a member of the
state's parole board deviates from these guidelines, he
or she should support his or her recommendation with a
written statement. However, the state's parole board has
exclusive discretion whether or not to grant parole to
the prisoner.
A prisoner may be ineligible for parole, even if he or
she has served the minimum term that is set forth in a
state's statute. If the prisoner has engaged in serious
disciplinary misconduct within a certain number of
months prior to his or her eligibility for parole, the
prisoner is generally ineligible for parole. Also, if
the prisoner has committed an offense while he or she
was incarcerated, the prisoner may be ineligible for
parole.
A prisoner's eligibility for parole depends upon many
factors. Such factors include the offense of which the
prisoner was convicted, the length of the prisoner's
sentence, and the prisoner's conduct while he or she was
in prison. The factors may also include the prisoner's
criminal history, personality, proposed release plan,
ability to earn a living, family status, and mental and
physical condition. A state's parole board may also
consider any other factors that it deems relevant to the
prisoner's parole.
Unlawful Flight
Offenses
It is unlawful to flee to avoid custody or confinement,
flight warrants, to avoid giving testimony, or to avoid
service of process. The penalties associated therewith
vary in duration and severity.
Unlawful Flight to Avoid Custody or Confinement After
Conviction
Where a convicted inmate flees from a state jail,
prison, or on conditional release, the inmate may be
guilty of unlawful flight. The prosecution must show
that the flight was for the purpose of avoiding custody
or confinement. If the inmate fled when he was on a
conditional release, the prosecution must establish that
the inmate knew or believed that his conditional release
was revoked.
Unlawful Flight to Avoid Giving Testimony
It is a crime for an individual to flee to avoid giving
testimony. The majority of states have adopted the
Uniform Act to Secure the Return of Witnesses from a
state. Under the Act, the state should exhaust all
existing remedies for securing the return of the witness
before asking for federal assistance.
Unlawful Flight to Avoid Service of Process
The crime of unlawful flight to avoid service of process
is a crime under the Fugitive Felon Act. If an
individual attempts to flee the state or jurisdiction
where service of process would ordinarily be made, the
individual may be charged with this offense.
Additionally, it is a crime under the Act to avoid
producing documents if requested as well.
Unlawful Flight Warrants and Post Arrest Procedures
In accordance with the federal rules of criminal
procedure, after an officer arrests an individual on an
unlawful flight warrant, the officer is required to take
the individual to the nearest available magistrate.
However, the officer is not required to immediately take
the individual to a magistrate if the officer directly
transports the individual without any unnecessary delay
to the nearest authorities.
Criminal Mischief & Other Property Offenses
A person commits the offense of criminal mischief when
he or she intentionally or knowingly and without the
consent of an owner:
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damages or destroys
the owner's property;
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tampers with the
owner's property, which tampering causes loss or
inconvenience to the owner; or
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makes markings,
inscriptions, or drawings on the owner's property.
Tampering with an
owner's property occurs when a person interferes with
the owner's proprietary rights or abuses the property.
Damage does not need to be done to the property in order
to constitute tampering. A defendant does not need to
intend to cause damage to the owner's property. The
defendant only needs to intend to affect the property
without the owner's consent.
A person may commit the offense of criminal mischief
even if he or she holds a partial interest in property.
An information or an indictment for the offense of
criminal mischief must state the nature of the injury to
the property, the lack of consent on the part of an
owner, the owner's name, the description of the
property, and the defendant's intent. An information or
an indictment that does not specify the manner in which
the defendant damaged or destroyed the property is
defective.
The punishment for the offense of criminal mischief
depends upon the amount of damage that was caused by a
defendant's conduct. If the amount of damage is less
than a certain statutory amount, the offense is normally
punished as a misdemeanor. If the amount of damage is
greater than a certain statutory amount, the offense is
punished as a felony.
The calculation of the amount of damage to an owner's
property depends upon whether the property is totally
destroyed or whether it is only partially destroyed. If
the property is totally destroyed, the amount of damage
is the fair market value of the property at the time of
the offense. If the fair market value of the property
cannot be determined, the amount of damage may be based
upon the replacement cost of the property. If the
property is only partially destroyed, the amount of
damage is the cost to repair or to restore the property.
The cost of repair is based on the fair market value of
the repair. However, the property does not need to be
actually repaired in order to calculate the amount of
damage.
If a defendant destroys a document with an ascertainable
market value, the amount of damage is the actual value
of the document. If the document does not have an
ascertainable market value, the amount of damage is
based upon the amount that is due if it is a debt or the
amount of economic loss if it is not a debt.
The amount of damage to more than one item of property
may be added together for purposes of determining
punishment for the offense of criminal mischief. If a
defendant has an interest in the property, the
defendant's interest is deducted from the amount of
damage.
A person commits the offense of reckless damage when he
or she recklessly damages or destroys the property of
another person without the consent of the owner of the
property. The offense of reckless damage is punished as
a misdemeanor.
A person commits the offense of tampering with a
consumer product when he or she knowingly or
intentionally tampers with a consumer product knowing
that it will be offered for sale to the public. The word
"tamper" means to alter or to add a foreign substance to
the product so that it will cause serious bodily injury.
A consumer product is any product that is offered for
sale to the public or that is consumed by the public,
such as food and drugs. The offense of tampering with a
consumer product is normally punished as a felony.
A person commits the offense of breach of computer
security if he or she knowingly accesses a computer, a
computer network, or a computer system without the
consent of an owner. A person also commits the offense
of breach of computer security if he or she
intentionally or knowingly gives a password, code,
personal identification number, or any other
confidential information about a computer security
system to another person without the consent of the
owner. The offense is normally punished as a
misdemeanor. The offense may be punished as a felony if
the person intended to obtain a benefit or to defraud
another person.
A person commits a criminal offense for graffiti if he
or she intentionally or knowingly uses aerosol paint, an
indelible marker, or makes markings, drawings, or
paintings on the property of an owner without the
owner's consent. This offense is punished according to
the value of the property that is marked or painted. If
the value of the property is less than a certain
statutory amount, the offense is punished as a
misdemeanor. If the value of the property is greater
than a certain statutory amount or if the marking is
made on a school, a public monument, or a place of
worship, the offense may be punished as a felony.
The Travel Act
The Travel Act was passed in the 1960's in response to
organized crime. The Act was intended to assist state
and local authorities with limited resources in their
efforts to combat organized crime. The Act provides that
any individual who travels in interstate or foreign
commerce or uses the mail or any facility in interstate
or foreign commerce with the intent to:
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Distribute the
proceeds of any unlawful activity
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Commit a violent
crime to further criminal activity
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Promote, manage,
establish, carry on, or facilitate the promotion,
management, establishment, or carrying on of any
criminal activity
may be guilty of
violating the Travel Act.
Unlawful activity
includes:
* Extortion.
* Bribery.
* Arson.
* Illegal gambling.
* Illegal liquor offenses.
* Narcotics.
* Controlled substances.
* Prostitution.
* Tax evasion.
The Act is violated by movement in or use of interstate
commerce with the intent of committing, furthering, or
distributing proceeds of the above-listed series
offenses.
The Hobbs Act vs The Travel Act
The Hobbs Act requires only that interstate commerce be
affected or obstructed. Further, under the Hobbs Act the
use of interstate commerce may be incidental to the
offense. Whereas with the Travel Act, utilization of the
facilities of interstate commerce is required along with
the establishment of a significant nexus with interstate
commerce.
Penalties
If a defendant is convicted of violating the Travel Act
he may be sentenced to imprisonment for not more than
five years for committing certain offenses or may
sentenced to not more than 20 years imprisonment for the
commission of other offenses. However, if death results
during the commission of any of the above offenses the
defendant may be sentenced to any term of imprisonment
including life in prison.
Types of Healthcare Fraud and Criminal Ramifications
Healthcare fraud is a prevalent crime. Federal
healthcare fraud involves fraudulent conduct with
respect to any federal healthcare program or plan that
provides health benefits to an individual. The plan or
program is funded by the United States either directly
or by way of a state healthcare fund.
Healthcare Fraud
Healthcare fraud involves either a healthcare provider
or individual's attempt to defraud the federal
government with respect to the receipt of healthcare
payment or benefits. If one is charged with healthcare
fraud the prosecution must show that:
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The fraud was
knowingly or willfully executed
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A scheme existed to
defraud the federal government
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The intent of the
scheme was either to gain payment for services or
property through false representations
If one is convicted of
healthcare fraud, he or she may be fined up to $25,000,
may be sentenced to up to ten years in prison, or both.
If the defendant's conduct resulted in seriously bodily
injury, the defendant may be sentenced to up to 20 years
in prison.
Kickbacks
Kickbacks of any sort are prohibited. The applicable
federal statute provides that any individual, who
knowingly or willfully receives or solicits cash or any
other type of property as a kickback, may be guilty of
healthcare fraud. The specific elements of the offense
include:
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Knowing and willful
action on the part of the defendant
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Solicitation or
receipt of payment for remuneration
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The kickback is done
in exchange for services provided
False Statements
If a healthcare provider or individual gives false
statements with respect to the application of healthcare
benefits or payments under any federal health care
programs, healthcare fraud may have resulted.
Depending upon the facts of any given case, the
prosecution must show that the provider or individual:
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Made or caused to be
made false statements in applying for federal
healthcare benefits
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Concealed anything
that may have affected an individual's initial or
continued right to receive a benefit or payment
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The individual or
provider had the intent to defraud the federal
government
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If applicable, that
the provider attempted to convert a benefit or payment
to use other than for the use or benefit of the
individual for which it was intended
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Presented a claim
for a doctor's services when a licensed physician does
not furnish the service
If an individual is
convicted of making false statements, he may be
sentenced up to five years imprisonment; he may be fined
up to $25,000, or both.
Theft or Embezzlement
If the healthcare provider or individual defendant
embezzles or misapplies any assets of any healthcare
program, the defendant may be charged with theft or
embezzlement. If the offense involves an amount of less
than $ 100, the defendant may be fined, sentenced to
one-year imprisonment, or both. If the offense involved
an amount exceeding $100 and the defendant is convicted,
the defendant may be fined, sentenced to not more than
ten years in prison, or both.
Miscellaneous Charges
The healthcare provider or individual defendant may also
be charged with mail or wire fraud or obstruction of a
criminal investigation in conjunction with the
underlying healthcare fraud charge. For a conviction of
either of the above-mentioned offenses, the defendant
may be fined, sentenced to up to five years in prison,
or both.
Copyright 2006
LexisNexis, a division of Reed Elsevier Inc. |
