In re Personal Restraint Petition of Liptrap
| Decision Date | 16 May 2005 |
| Docket Number | No. 54730-5-I.,54730-5-I. |
| Citation | 127 Wn. App. 463,127 Wash. App. 463,111 P.3d 1227 |
| Parties | In the Matter of the PERSONAL RESTRAINT PETITION OF Jeffrey LIPTRAP, Daniel Norwood, and Joe Sellers, Petitioners. |
| Court | Washington Court of Appeals |
Hank Balson, Suzanne Elliot, Seattle, WA, for Appellants.
Gregory Rosen, John Scott Blonien, Asst. Atty Generals-CJD, Olympia WA, for Respondent.
¶ 1 The Legislature has provided that an inmate who is a sex offender may earn early release credits, and transfer into community custody in lieu of early release if the Department of Corrections approves the inmate's release plan.
¶ 2 The Department of Corrections has adopted a new policy of refusing to consider a plan for transferring an inmate into community custody until a forensic evaluation is completed that indicates whether or not the inmate meets the criteria for referral for civil commitment. As applied to the petitioners, the new policy effectively deprived them of their opportunity to benefit from their earned early release credits. The department did not even assign an evaluator until months after the inmates' earned early release dates had passed and their release plans had been submitted.
¶ 3 The Legislature has not authorized the department to delay consideration of release plans while awaiting a forensic evaluation. The department's obligation to take action on an eligible prisoner's plan to transfer to community custody is independent of the decision to refer for civil commitment. We conclude the petitioners have shown an unlawful restraint.
¶ 4 The petitioners are sex offenders imprisoned on convictions for sex offenses involving children. Petitioners Jeffrey Liptrap and Daniel Norwood are serving determinate sentences imposed under the Sentencing Reform Act, RCW ch. 9.94A. Petitioner Joe Sellers is serving an indeterminate sentence of maximum 20 years to life.
¶ 5 A statute requires the Department of Corrections to establish an incentive program that allows inmates to earn early release time for good behavior. RCW 9.94A.728. A person convicted of a sex offense cannot qualify for early release per se. Sex offenders belong to a class of inmates who "may become eligible ... for transfer to community custody status in lieu of earned release time". RCW 9.94A.728(2)(a). Thus, for sex offenders who earn time for good behavior, early release from confinement is available only by way of transfer to community custody. Community custody is the intense monitoring of an offender in the community. In re Personal Restraint Petition of Crowder, 97 Wash.App. 598, 600, 985 P.2d 944 (1999). ¶ 6 By statute, the department may not release a sex offender into community custody without a release plan that includes an approved residence and living arrangements. RCW 9.94A.728(2)(c). The department may deny an inmate's transfer to community custody if the proposed release plan violates the conditions of sentence, places the offender at a risk to reoffend, or is unsatisfactory in terms of safety. RCW 9.94A.728(2)(d).
¶ 7 By the middle of 2003, Liptrap and Norwood had served enough time and earned enough early release credits to be eligible for transfer to community custody, subject to approval of their proposed release plans by the Department of Corrections. The Indeterminate Sentencing Review Board had found Sellers to be eligible for parole, subject to the department's approval of his release plan. All three inmates submitted release plans for the department's consideration.
¶ 8 At the time, the department's End of Sentence Review Committee was considering all three inmates for referral for possible sexual predator commitment proceedings under RCW ch. 71.09.1 To determine whether an inmate meets the statutory criteria of a sexually violent predator, the Committee undertakes the task of gathering all the available files and documents on the inmate and converting them to an electronic format. The department then sends out the electronic files to be organized, either by the Attorney General's office or the Prosecutor's office in the county where the inmate was convicted. Once the electronic file is organized, the End of Sentence Review Committee gives it to a forensic psychologist assigned to complete an evaluation of the inmate.2 If the evaluation concludes the inmate meets the statutory definition of a sexually violent predator, the department refers the inmate for possible civil commitment proceedings. See RCW 71.09.030. The entire process usually takes at least six months, and often takes longer because it is fraught with potential delay at every step.
¶ 9 In February 2003, the department adopted a policy limiting consideration of the early release plans of prisoners who were being considered for possible referral for sexual predator proceedings. The department instructed its staff not to approve or deny the proposed release plans for such prisoners unless and until a forensic psychological evaluation had been completed and was available for review. The new policy affected the petitioners. Departmental staff did not consider approving or denying their release plans, because all were being considered for referral for possible sexual predator commitment proceedings, and in each case, no forensic evaluation was yet available for review.
¶ 10 Liptrap submitted his plan three months before his earned early release date of August 18, 2003. It was not until December 2003 that the department arranged for his evaluation, which was completed in February, 2004. Norwood submitted a release plan four months before his earned early release date of July 14, 2003. An evaluation of Norwood was not completed until the end of December 2003. Sellers submitted a release plan on September 11, 2003. As of May, 2004, no evaluation had been completed for Sellers. In February 2004 petitioners sought a writ of mandamus from the State Supreme Court asking that the department (and in Sellers' case, the Board as well) be ordered to approve their release or parole plans without further delay. The petitioners alleged that the department was holding them, and other prisoners, in confinement long past their earned release dates or minimum terms, in violation of state statute and the requirements of due process. The Supreme Court converted the action to a personal restraint petition and transferred it to this court for review. ¶ 11 When an inmate challenges an action from which he has had no previous or alternative avenue for obtaining state judicial review, we review the petition by examining the requirements of RAP 16.4. In re Personal Restraint Petition of Cashaw, 123 Wash.2d 138, 148-49, 866 P.2d 8 (1994). A personal restraint petitioner may obtain relief by showing either a constitutional violation or a violation of the laws of the State of Washington. RAP 16.4(c)(2), (6); Cashaw,123 Wash.2d at 148,866 P.2d 8.
¶ 12 Due process protects against the deprivation of life, liberty, or property. The threshold question in any due process challenge is whether the challenger has been deprived of a protected interest in life, liberty or property. Cashaw, 123 Wash.2d at 143, 866 P.2d 8. In re Personal Restraint Petition of Dutcher, 114 Wash.App. 755, 758, 60 P.3d 635 (2002). A decision by the department that, in essence, deprives an inmate of earned early release into community custody is an unlawful restraint, subject to review by this court in a personal restraint petition. Dutcher, 114 Wash.App. at 758, 60 P.3d 635.
¶ 13 The department contends this court should summarily deny the petitions of Liptrap and Norwood as moot because they have already obtained the relief they requested—a decision on their proposed release plans. In the spring of 2004, the department rejected both of their plans.
¶ 14 Factors are present here that weigh in favor of reaching the merits though the petitions are technically moot. The proper administration of statutes governing earned early release involves community safety as well as the due process rights of prisoners. These are matters of continuing and substantial public interest. Whether delay in obtaining a forensic evaluation justifies delay in considering plans to transfer an inmate to community custody is an issue that is likely to recur, and also is likely to evade review because of the relatively short-lived duration of each case. See In re the Personal Restraint Petition of Mines, 146 Wash.2d 279, 285, 45 P.3d 535 (2002); Philadelphia II v. Gregoire, 128 Wash.2d 707, 712, 911 P.2d 389 (1996). Accordingly, we proceed to the merits.
¶ 15 The statute governing the department's obligations with respect to Liptrap and Norwood allows the department to deny a transfer to community custody to an otherwise eligible inmate if the offender's release plan is unsatisfactory:
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Carver v. Lehman
...the DOC has no "discretion to decide whether or when to consider an offender for transfer to community custody," In re Liptrap, 127 Wash.App. 463, 111 P.3d 1227, 1232 (2005) (emphasis added). But Washington law places no substantive limitation on how the DOC is to make that determination. A......
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