Cashaw, Matter of
| Decision Date | 26 May 1992 |
| Docket Number | No. 28474-6-I,28474-6-I |
| Citation | 68 Wn.App. 112,839 P.2d 332 |
| Court | Washington Court of Appeals |
| Parties | In the Matter of the Personal Restraint of Charles CASHAW, Petitioner. |
Cece Lana Glenn, Spokane, for appellant.
Thornton Wilson, Asst. Atty. Gen., Dept. of Corrections, Olympia, for respondent.
Charles Cashaw filed a personal restraint petition in this court challenging his present confinement for burglary in the second degree. The case has been referred to a panel of judges for determination on the merits. We grant the petition and remand the matter to the Indeterminate Sentence Review Board (Board) for proceedings consistent with this opinion.
In the mid to late 1970's, Cashaw was convicted of burglary in the second degree and grand theft under several King County cause numbers and was sentenced to serve time in prison. Over the years, Cashaw has been released on parole six times and on each occasion his parole has subsequently been revoked. After his parole was revoked for the sixth time in August 1989, Cashaw was returned to prison to await a decision by the Board regarding his new minimum term of confinement.
On January 25, 1990, the Board set Cashaw's new minimum term at his maximum expiration date. In support of its new minimum term decision, the Board stated:
Board Decision: 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 Correction, 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.
Next Action: Release on the maximum expiration date which is currently 1/23/92.
Reasons: 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.
Cashaw seeks review of that new minimum term decision.
By way of background, Cashaw committed the burglary for which he is presently confined prior to July 1, 1984, the effective date of the Sentencing Reform Act of 1981, and he is therefore subject to the authority of the Board. RCW 9.94A.905; ch. 9.95 RCW.
Ch. 9.95 RCW governs indeterminate sentences and resulting prison terms, paroles and parole revocations. Under the indeterminate sentencing system, the court is required to set the maximum sentence. RCW 9.95.010. Once a person is committed to prison, the Board is required to fix his minimum term. RCW 9.95.040; RCW 9.95.052. The Board must set a new minimum term for any inmate whose parole is revoked. RCW 9.95.125. RCW 9.95.070 allows inmates whose conduct is good while they are in prison and who perform their work faithfully, industriously and diligently, to earn credit reductions from the minimum terms set by the Board. These credits are colloquially referred to as "good time credits."
If an inmate commits an infraction while in the penitentiary or other correctional institution, his minimum term may be increased, not exceeding the maximum penalty provided by law, however, and he may be required to forfeit all or a part of his good time credits, whether already earned or to be earned in the future. RCW 9.95.080. Before this can occur, there must be a hearing before the Board, in the presence of the inmate, who shall be entitled to be heard and who may present evidence and witnesses on his behalf. RCW 9.95.080.
Finally, RCW 9.95.100 prohibits the Board from releasing an inmate before his maximum term expires, unless in the Board's opinion the inmate's "rehabilitation has been complete and he is a fit subject for release." An inmate who has served his minimum term less allowable good time "may" be granted a parole. RCW 9.95.110. Parole is a privilege which "may" be granted by the Board. There is no inherent or constitutional right of a convicted person to be conditionally released before the expiration of the maximum term allowed by law. State v. Fain, 94 Wash.2d 387, 394, 617 P.2d 720 (1980).
Cashaw contends that the Board erred in extending his new minimum term to the maximum expiration date. 1 Cashaw argues that the decision of the Board has effectively denied him the ability to earn good time credit while he serves his new minimum term in prison. Since he has a statutory right to earn good time credit under RCW 9.95.070 and the prison superintendent recommended that he receive such credit, see In re Piercy, 101 Wash.2d 490, 493, 681 P.2d 223 (1984) (), Cashaw claims that the Board's decision not to consider him for parole prior to the expiration of his maximum sentence is tantamount to a decision requiring him to forfeit his good time credits earned or to be earned in the future and is therefore a violation of his right to due process. He claims that he was entitled to an in-person hearing pursuant to RCW 9.95.070 and RCW 9.95.080.
Under RCW 9.95.080, the Board is authorized to forfeit good time credits already earned or which could have been earned in the future. The statute states:
In case any convicted person undergoing sentence in the penitentiary, reformatory, or other state correctional institution, commits any infractions of the rules and regulations of the institution, the board of prison terms and paroles may revoke any order theretofore made determining the length of time such convicted person shall be imprisoned, including the forfeiture of all or a portion of credits earned or to be earned, pursuant to the provisions of RCW 9.95.110, and make a new order determining the length of time he shall serve, not exceeding the maximum penalty provided by law for the crime for which he was convicted, or the maximum fixed by the court. Such revocation and redetermination shall not be had except upon a hearing before the board of prison terms and paroles. At such hearing the convicted person shall be present and entitled to be heard and may present evidence and witnesses in his behalf.
Cashaw was not entitled to a hearing under RCW 9.95.080. The statute, by its own terms, does not apply where, as here, the decision of the Board was not in response to "any infractions of the rules and regulations of the institution." RCW 9.95.080 only applies to inmates who commit infractions while in prison. It is undisputed that Cashaw has always been a well-behaved prison inmate. Cashaw's problems arise every time he is released on parole.
Inmates are entitled to earn good time credits pursuant to RCW 9.95.070, which provides:
Every prisoner who has a favorable record of conduct at the penitentiary or the reformatory, and who performs in a faithful, diligent, industrious, orderly and peaceable manner the work, duties, and tasks assigned to him to the satisfaction of the superintendent of the penitentiary or reformatory, and in whose behalf the superintendent of the penitentiary or reformatory files a report certifying that his conduct and work have been meritorious and recommending allowance of time credits to him, shall upon, but not until, the adoption of such recommendation by the board of prison terms and paroles, be allowed time credit reductions from the term of imprisonment fixed by the board of prison terms and paroles.
This statute does not, by itself, create a right to a hearing prior to deprivation of good time credits. However, the law is well settled that "where a state creates a right to earn good time credit, a prisoner has a liberty interest in those credits which prevents their deprivation absent observation of minimal due process." In re Borders, 114 Wash.2d 171, 181, 786 P.2d 789 (1990); Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed. 935 (1974); In re Mota, 114 Wash.2d 465, 474, 788 P.2d 538 (1990) (); In re Anderson, 112 Wash.2d 546, 548, 772 P.2d 510 (1989) () Thus, at a minimum, an inmate is constitutionally entitled to notice, a hearing, a qualified right to present evidence, and a written statement of reasons before he or she may be deprived of the right to earn good time credit. Wolff, at 418 U.S. at 564-67, 94 S.Ct. at 2978-80.
The Board argues, and we agree, that since the primary function of good time credit is to accelerate an inmate's eligibility for parole, a determination that the inmate will not be parolable until his maximum expiration daterenders credit for good time irrelevant 2. The Board claims that by setting Cashaw's new minimum term at his maximum expiration date, it has in essence held a parolability hearing under RCW 9.95.100 and determined that Cashaw will not be parolable before the expiration of his maximum sentence. Thus, the Board argues that Cashaw has not been denied the right to earn future good time credit, and therefore due process protections for deprivation of good time credit simply do not apply.
This argument, however, overlooks the fact that the Board's "parolability" decision at Cashaw's minimum term review violated its own rules for conducting parolability hearings. 3 According to...
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Cashaw, Matter of
...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 Cashaw's maximum expiration date was January 23, 1992. Because Cashaw's release da......
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