Cashaw, Matter of
| Decision Date | 27 January 1994 |
| Docket Number | No. 59959-9,59959-9 |
| Citation | 866 P.2d 8,123 Wn.2d 138 |
| Parties | In the Matter of the Personal Restraint Petition of Charles CASHAW. |
| Court | Washington Supreme Court |
Lana C. Glenn, Spokane, for respondent.
Charles Cashaw filed a personal restraint petition (PRP) challenging the actions of the Indeterminate Sentence Review Board (Board) in setting his minimum prison term to coincide with the remainder of his court-imposed maximum sentence. The Court of Appeals found the case to be moot but proceeded to address the merits in light of the important issues involved. The court granted the PRP after concluding the Board's failure to follow its own procedural rules violated Cashaw's due process rights.
Although we too reach the merits of the case, we find that no due process liberty interest was created here, for the Board's regulations imposed only procedural, not substantive, requirements. Nevertheless, even though Cashaw cannot establish a constitutional violation, pursuant to In re Locklear, 118 Wash.2d 409, 823 P.2d 1078 (1992), an inmate may be entitled to relief solely upon showing the Board set a minimum term in violation of a statute or regulation. Cashaw has shown that such a violation occurred in his case. Accordingly, we affirm the Court of Appeals' decision granting Cashaw's personal restraint petition.
Charles Cashaw has a lengthy criminal history, with felonies dating back to the mid-1960's. Response of the Indeterminate Sentence Review Board exhibit 5. The incarceration currently at issue began in the mid-1970's when Cashaw was convicted of three counts of second degree burglary and one count of grand larceny under a number of different causes of action. Response of the Indeterminate Sentence Review Board exhibits 1-3. By the mid-1980's, Cashaw had been paroled six times under these causes of action, but each time he violated the terms of his parole release. Response of the Indeterminate Sentence Review Board exhibit 5.
In June 1987, once again, Cashaw was released on parole. Response of the Indeterminate Sentence Review Board exhibit 4, at 1. Once again, he was charged with violating the conditions of his parole. These charges were addressed in a parole revocation hearing held before a member of the Board in August 1989. Cashaw attended this hearing. After taking testimony, the Board member found Cashaw guilty of violating two conditions of parole. The Board member revoked Cashaw's parole and returned him to prison. Response of the Indeterminate Sentence Review Board exhibit 4.
In January 1990, the Board met to consider Cashaw's new minimum term. Cashaw did not attend this meeting. The Board's decision was as follows:
The new minimum term is to extend to the maximum expiration date. Release on the maximum expiration date which is currently 1/23/92. Upon request of the Department of Corrections, the Board will review parolability prior to the maximum expiration date if the Department of Corrections presents evidence of any changes in the inmate's prospects for rehabilitation.
Response of the Indeterminate Sentence Review Board exhibit 5.
The Board gave the following reasons in support of its decision:
Mr. Cashaw has a long criminal history extending some 26 years. He has experienced 6 prior paroles without success. He has clearly demonstrated a lack of rehabilitation by continuing to violate the conditions of his parole and the law. His behavior and actions clearly represent an ongoing threat to people's property, and he continues to demonstrate that he does not intend to cooperate with authorities or cease his unlawful behavior. For these reasons, it would be in the best interest of the citizens of the state of Washington that he be incarcerated as long as the law allows and that he not be released from custody prior to the expiration of his actual maximum expiration date.
Response of the Indeterminate Sentence Review Board exhibit 5.
On May 28, 1991, Cashaw filed a PRP in the Court of Appeals. Cashaw argued that the Board's decision to set his The Court of Appeals granted the PRP concluding that the Board denied Cashaw due process when it failed to give him notice and an in-person hearing prior to setting his minimum term at the maximum term. The court reasoned that the Board's reliance on Cashaw's lack of rehabilitation transformed the hearing, at least in part, into a hearing on parolability. For such parolability decisions, the Board's own regulations require prehearing written notice of specific information and an in-person hearing. The court concluded these regulations raise an expectation, cognizable under the due process clause, that the regulations will be followed. Because they were not followed, the court found a violation of due process. In re Cashaw, 68 Wash.App. 112, 124, 839 P.2d 332 (1992). We granted the Board's petition for review.
new minimum term to coincide with the maximum term violated his right to procedural due process.
Cashaw's maximum expiration date was January 23, 1992. Because Cashaw's release date had already come and gone, and Cashaw presumably was released, the Court of Appeals concluded the case was moot. Nevertheless, the court proceeded to address the merits because the case involved issues of continuing and substantial public interest. The Board had conceded that the issues were not frivolous and similar claims were pending from other inmates. Cashaw, at 115 n. 1, 839 P.2d 332; see also In re Myers, 105 Wash.2d 257, 261, 714 P.2d 303 (1986).
Neither party has challenged these conclusions and neither party has requested us to terminate review based on mootness. We likewise choose to address the merits.
Because Cashaw committed his offenses prior to the effective date of the Sentencing Reform Act of 1981 (SRA), the SRA does not apply. See RCW 9.94A.905. Accordingly, his sentence is governed by the indeterminate sentencing provisions of RCW 9.95. See In re Ayers, 105 Wash.2d 161, 162, 713 P.2d 88 (1986). Under those provisions, the superior court generally sets a convicted felon's maximum sentence and the Board sets the minimum sentence. RCW 9.95.010, .040, .052. The Board's minimum sentence cannot exceed, but can equal, the court-imposed maximum sentence. RCW 9.95.040.
An inmate who behaves well in prison may be released on parole prior to serving the full minimum term. This is accomplished through the granting of "time credit reductions", generally referred to as good-time credits, which can be awarded in amounts up to one-third the length of the minimum term. RCW 9.95.070, .110. The good-time credits apply only to the Board's minimum sentence, not to the court's maximum sentence. See RCW 9.95.070, .110.
An inmate is not automatically released upon serving the minimum sentence, less good-time credits. The Board cannot release an inmate, regardless of the status of the minimum term, until either the Board determines the inmate has been rehabilitated (and is otherwise fit for release) or the maximum sentence has been served. RCW 9.95.100. If the Board determines the inmate is not rehabilitated, it redetermines the inmate's minimum term, staying within the bounds of the maximum term. RCW 9.95.052, .100. Accordingly, the minimum term carries with it no guaranty of release; it only establishes a date when the inmate becomes eligible to be considered for parole. See WAC 381-40-100; In re Powell, 117 Wash.2d 175, 186 n. 1, 814 P.2d 635 (1991).
The Court of Appeals found that the Board's actions in this case deprived Cashaw of due process protections. Due process protects against the deprivation of life, liberty or property. U.S. Const. amend. 14, § 1. 1 The threshold question in any due process challenge is whether the challenger has been deprived of a protected interest in life, liberty or property. See In re J.H., 117 Wash.2d 460, 472-73, 815 P.2d 1380 (1991). In the present case, the question is whether Cashaw has established a liberty interest.
Liberty interests may arise from either of two sources, the due process clause and state laws. Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868, 74 L.Ed.2d 675 (1983); Toussaint v. McCarthy, 801 F.2d 1080, 1089 (9th Cir.1986), cert. denied, 481 U.S. 1069, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987). The due process clause of the federal constitution does not, of its own force, create a liberty interest under the facts of this case for it is well settled that an inmate does not have a liberty interest in being released prior to serving the full maximum sentence. Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979); Ayers, 105 Wash.2d at 164-66, 713 P.2d 88; Powell, 117 Wash.2d at 202-03, 814 P.2d 635.
However, as indicated above, state statutes or regulations can create due process liberty interests where none would have otherwise existed. See Hewitt, 459 U.S. at 469, 103 S.Ct. at 870; Toussaint, 801 F.2d at 1089; Powell, 117 Wash.2d at 202-03, 814 P.2d 635. By enacting a law that places substantive limits on official decisionmaking, the State can create an expectation that the law will be followed, and this expectation can rise to the level of a protected liberty interest. See Toussaint, 801 F.2d at 1094.
For a state law to create a liberty interest, it must contain "substantive predicates" to the exercise of discretion and "specific directives to the decisionmaker that if the regulations' substantive predicates are present, a particular outcome must follow". Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 463, 109 S.Ct. 1904, 1910, 104 L.Ed.2d 506 (1989); Swenson v. Trickey, 995 F.2d 132, 134 (8th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 568, 126 L.Ed.2d 468 (1993). Thus, laws that dictate particular decisions given particular facts can create liberty interests, but laws granting a...
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