In re McCarthy
- Reporters:
- ,
- Before:
- Owens (en banc)
OWENS, J.
¶ 1 Donald McCarthy is serving an indeterminate sentence as a nonpersistent sex offender under
FACTS
¶ 2 In May 2002, McCarthy approached an adult female with Downs Syndrome in a mall bookstore. Witnesses reported that he pressed and massaged his genital area against the woman‘s buttocks with one leg raised in a bent position. He stipulated to an exceptional sentence and pleaded guilty to the reduced charge of third degree assault with sexual motivation. The trial court sentenced McCarthy to an exceptional minimum sentence of 12 months and 1 day and a maximum term of 60 months.1
¶ 3 In August 2003, the Board held McCarthy‘s first. 420 hearing to determine whether he was eligible for release. When McCarthy requested an attorney, the Board responded that “[w]e don‘t have attorneys at this particular hearing because the Department of Corrections has decided there would not be attorneys, and in order to avoid economic discrimination we don‘t allow attorneys at these hearings.” Pers. Restraint Pet., Ex. 4, at 1 (Unofficial Tr.). During the hearing, McCarthy‘s prison counselor testified that McCarthy had paranoid schizophrenia and was “extremely fearful, anxious and paranoid.” Id. at 4. He also indicated that McCarthy regularly took medications for these conditions. Id. at 5. McCarthy told the Board, “I‘m kinda slow so bear with me.” Id. at 2. The hearing transcript indicates that he answered the Board‘s questions and explained his relationships with family members and his progress through treatment while incarcerated. See id. at 9-12, 15-18.
¶ 5 In September 2004, the Board held another .420 hearing for McCarthy. The Board again denied his request for an attorney. The Board recognized that McCarthy was making satisfactory progress in the sex offender treatment program but nonetheless found that he was more likely than not to commit a sex offense if released. It thus extended his minimum sentence by 23 months and 26 days.
¶ 6 McCarthy subsequently filed a personal restraint petition alleging, in part, that the Board abused its discretion by failing to appoint counsel for his .420 hearing. The Court of Appeals held that due process requires the Board to decide on a case-by-case basis whether offenders are entitled to counsel during .420 hearings to ensure fundamental fairness. The court remanded for the Board “to consider his request for legal representation.” In re Pers. Restraint of McCarthy, 134 Wash.App. 752, 754, 143 P.3d 599 (2006). We granted the Board‘s motion for discretionary review.
ISSUE
¶ 7 Do offenders have a right to counsel during .420 hearings?
ANALYSIS
A. Standard of Review
¶ 8 We review constitutional questions de novo. Amunrud v. Bd. of Appeals, 158 Wash.2d 208, 215, 143 P.3d 571 (2006), cert. denied, ___ U.S. ___, 127 S.Ct. 1844, 167 L.Ed.2d 324 (2007).
B. Nonpersistent Offender Sentencing
¶ 9
¶ 10 According to the Board, offenders are entitled to the following procedural protections
C. Procedural Due Process
¶ 11 An individual seeking the procedural protection of the Fourteenth Amendment‘s due process clause must establish that his or her interest in life, liberty, or property is at stake. Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005). “A liberty interest may arise from the Constitution,” from “guarantees implicit in the word `liberty,‘” or “from an expectation or interest created by state laws or policies.” Id. Where an individual establishes a liberty interest, some minimal due process protections apply. See Morrissey v. Brewer, 408 U.S. 471, 481-82, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).
¶ 12 Thus, as a threshold issue, we must first determine whether McCarthy has a liberty interest at stake during a .420 hearing. Inmates generally do not have a liberty interest in release prior to the expiration of a valid sentence. State v. Clarke, 156 Wash.2d 880, 890, 134 P.3d 188 (2006). However, the Supreme Court has recognized that state statutes may create liberty interests where none otherwise exist.3 Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 12, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). In Greenholtz, the Court held that the unique structure and language of a Nebraska parole statute, which mandated that the Board of Parole shall order an inmate‘s release unless it found one of four designated reasons for deferring parole, created a legitimate expectation of release. Id. at 11-12, 99 S.Ct. 2100. According to the Court, the mandatory language established a presumption that offenders would be released on parole and thus created a limited liberty interest. See id. at 12, 99 S.Ct. 2100.
¶ 13 In the instant case,
¶ 14 Having concluded that offenders have a limited liberty interest under
¶ 15 With respect to parole release statutes that create limited liberty interests, the Supreme Court has held that due process does not require formal, adversarial hearings. Greenholtz, 442 U.S. at 15-16, 99 S.Ct. 2100. In Greenholtz, the Court reasoned that such hearings “would provide at best a negligible decrease in the risk of error” because the parole release decision primarily involves an examination of the inmate‘s files regarding the gravity of his offense and prison behavior record. Id. at 14-15, 99 S.Ct. 2100. The Court concluded that the Board‘s review of the inmate‘s file, together with the inmate‘s opportunities to appear before the Board, “adequately safeguards against serious risks of error and thus satisfies due process.”5 Id. at 15, 99 S.Ct. 2100. “Merely because a statutory expectation exists cannot mean that in addition to the full panoply of due process required to convict and confine there must also be repeated, adversary hearings in order to continue the confinement.” Id. at 14, 99 S.Ct. 2100. The Court evaluated the process due in parole release hearings and concluded that “[t]he Constitution does not require more” than the “opportunity to be heard” and an explanation when the Board denies parole. Id. at 16, 99 S.Ct. 2100.
¶ 16 In the instant case, the Court of Appeals relied on Supreme Court precedent relating to parole revocation proceedings to support its holding that due process requires the Board to evaluate on a case-by-case basis whether counsel is necessary for offenders during .420 hearings. See McCarthy, 134 Wash.App. at 759-60, 143 P.3d 599 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)). In Scarpelli, the Court adopted a case-by-case approach for determining whether counsel is necessary for parole revocation hearings:
[T]he decision as to the need for counsel must be made on a case-by-case basis in the exercise of a sound discretion by the state authority charged with responsibility for administering the probation and parole system. Although the presence and participation of counsel will probably be both undesirable and constitutionally unnecessary in most revocation hearings, there will remain certain cases in which fundamental fairness — the touchstone of due process — will require that the State provide at its expense counsel for indigent probationers or parolees.
411 U.S. at 790, 93 S.Ct. 1756. The Court in Scarpelli adopted this approach in part because of the more significant liberty interest at stake when an inmate already released on parole faces revocation of that parole status. The more significant liberty interest arises because parolees live a relatively normal life after release from prison and rely on the implicit promise that the State will revoke parole only if they fail to abide by the parole conditions. Morrissey, 408 U.S. at 482, 480, 92 S.Ct. 2593 (recognizing that “[r]evocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions“). The Court also deemed the case-by-case approach appropriate because of the factual nature of the inquiry when a parole board determines whether a parolee violated conditions of parole. Scarpelli, 411 U.S. at 787, 93 S.Ct. 1756 (explaining that “the unskilled or uneducated probationer or parolee may well have difficulty in presenting his version of a disputed set of facts“).
¶ 17 The .420 hearings are more analogous to parole release than to parole revocation. The liberty interest at stake for an offender facing revocation of parole is more significant because the offender has already been released from incarceration. Offenders in .420 hearings face continued incarceration. Further, the nature of the Board‘s inquiry
¶ 18 Given the distinction between the liberty interests and the nature of the inquiry involved in parole revocation and parole release proceedings, the Court of Appeals erred when it adopted the case-by-case approach applicable to parole revocation proceedings for .420 hearings. Neither the Supreme Court nor this court has established that due process requires legal representation for offenders facing parole release decisions such as .420 hearings, even on a case-by-case basis. See Greenholtz, 442 U.S. at 15-16, 99 S.Ct. 2100. We have likewise rejected the argument that due process requires legal representation for offenders during other Board proceedings. See In re Pers. Restraint of Whitesel, 111 Wash.2d 621, 631, 763 P.2d 199 (1988) (holding that inmates do not have the right to an attorney during the Board‘s minimum term redetermination); Arment v. Henry, 98 Wash.2d 775, 778-80, 658 P.2d 663 (1983) (declining to adopt a per se rule mandating the right to counsel at Board disciplinary hearings that could increase the offender‘s minimum term); In re Pers. Restraint of Sinka, 92 Wash.2d 555, 564-65, 599 P.2d 1275 (1979) (holding that offenders are entitled to minimum due process protections when the Board establishes their minimum terms).
¶ 19 The unique statutory language and structure of
CONCLUSION
¶ 20 We hold that .420 hearings involve limited liberty interests and pursuant to Greenholtz, offenders are entitled to minimum due process protections that do not include the right to counsel. Accordingly, we reverse the Court of Appeals’ decision remanding to the Board to determine whether McCarthy is entitled to legal counsel.
WE CONCUR: BARBARA A. MADSEN, MARY E. FAIRHURST, JAMES M. JOHNSON and BOBBE J. BRIDGE, JJ.
ALEXANDER, C.J. (dissenting).
¶ 21 I agree with the majority that offenders have a limited liberty interest at stake in a hearing under
¶ 22 However, in determining the due process protections necessary in .420 hearings, the majority analogizes .420 hearings to parole release hearings. I disagree with this characterization. In my view, there is a greater risk of erroneous deprivation at a .420 hearing than at a parole release hearing. Because of this, greater due process protections should be required than were provided here. Thus, I respectfully dissent.
¶ 23 The parole-release determination at issue in Greenholtz was based primarily on inmates’ records while incarcerated and “`often involve[d] no more than informed predictions.‘” Greenholtz, 442 U.S. at 10, 99 S.Ct. 2100 (quoting Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976)). The Court distinguished it from parole-revocation determinations, which involve a “`wholly retrospective factual question‘” in addition to a subjective determination “whether the parolee should be recommitted.” Id. at 9, 99 S.Ct. 2100 (quoting in part Morrissey v. Brewer, 408 U.S. 471, 479, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). Although the determination in a .420 hearing is primarily predictive in nature, it additionally involves the evaluation of tests, expert opinions, and factual determinations such as whether an offender has participated in treatment.
¶ 24 Furthermore, unlike parole release hearings, which generally are conducted in language that is understandable to a layperson, .420 hearings will almost always involve complicated medical terminology and the translation of test results. See
¶ 25 The balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), requires us to weigh the private interest to be affected, the risk of an erroneous deprivation of the interest, and the probable value of additional procedural safeguards against the government‘s interest and the burden of additional procedures. Because I conclude that the risk of erroneous deprivation is greater in .420 hearings than in parole release hearings, I would hold that greater due process protections are required under Mathews. Although I would decline, as this court did in Arment v. Henry, 98 Wash.2d 775, 778-80, 658 P.2d 663 (1983), to require counsel at all .420 hearings, the Board should determine on a case-by-case basis whether counsel is necessary in order to protect an inmate‘s due process right to a meaningful hearing.
¶ 26 The cases cited by the majority regarding “legal representation for offenders during other Board proceedings,” majority at 1288, are inapposite here. In In re Personal Restraint of Whitesel, 111 Wash.2d 621, 763 P.2d 199 (1988), we considered the unique sentence reviews conducted by the Board after the Sentencing Reform Act of 1981(SRA), chapter 9.94A RCW, was passed. At the legislature‘s request, the Board reviewed minimum sentences set under the indeterminate sentencing scheme that existed prior to the SRA. We held in Whitesel that prisoners had no right to an attorney at those reviews. We recognized, however, that an indigent prisoner‘s need for appointed counsel in parole and probation hearings must be determined on a case-by-case basis. Id. at 631, 763 P.2d 199 (citing Gagnon v. Scarpelli, 411 U.S. 778, 788-89, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)). We also recognized
¶ 27 The particular situation presented by this case offers a striking example of the unfair results of the Board‘s strict policy against providing inmates with attorneys. The record shows that Donald McCarthy was “slow,” uneducated, and suffering from mental illness. Pers. Restraint Pet., Ex. 4, at 2 (McCarthy describing himself as “kinda slow“), 4 (“[h]istory of paranoid schizophrenia“), 6 (describing “McCarthy as a very fragile person“); Ex. 5 (IQ of 72); Ex. 6 (McCarthy did not finish high school and has mental health needs). Nevertheless, he was denied an attorney at both of his .420 hearings, with the result that he lost any meaningful opportunity for early release and was ultimately required to serve nearly five times his original minimum sentence.
¶ 28 The United States Supreme Court has held that counsel should be provided to indigent prisoners who are illiterate, uneducated, or “thought to be suffering from a mental disease or defect requiring involuntary treatment,” when the State seeks to confine them further, because those prisoners have a “greater need for legal assistance” to “understand or exercise [their] rights.” Jones, 445 U.S. at 496-97, 100 S.Ct. 1254. This court recognized that reasoning in Arment, 98 Wash.2d at 778-79, 658 P.2d 663. As the United States Supreme Court noted, “[a]lthough the presence and participation of counsel will probably be both undesirable and constitutionally unnecessary in most . . . hearings, there will remain certain cases in which fundamental fairness — the touchstone of due process — will require that the State provide at its expense counsel for indigent probationers or parolees,” or in this case, offenders during .420 hearings. Scarpelli, 411 U.S. at 790, 93 S.Ct. 1756. The majority‘s rejection of case-by-case review of the need for an attorney would essentially prevent such a provision.
¶ 29 Here, I believe it is apparent that McCarthy should have been provided with counsel. That, however, is a determination for the Board to make and one that I conclude they should have made. Consequently, I would affirm the Court of Appeals and remand the case to the Board to determine whether McCarthy should be represented by counsel, and if so, to provide a new hearing.
WE CONCUR: TOM CHAMBERS, CHARLES W. JOHNSON and RICHARD B. SANDERS, JJ.