McDermott v. McDonald

• Decision Date: 17 May 2001
• Docket Number: No. 01-104.,01-104.
• Citation: 2001 MT 89,24 P.3d 200,305 Mont. 166
• Parties: Michael McDERMOTT, Petitioner, v. James McDONALD, Warden, Crossroads Correctional Facility, Respondent.
• Court: Montana Supreme Court

24 P.3d 200

305 Mont. 166

2001 MT 89

Michael McDERMOTT, Petitioner, v. James McDONALD, Warden, Crossroads Correctional Facility, Respondent.

No. 01-104.

Supreme Court of Montana.

May 17, 2001.

OPINION AND ORDER

¶ 1 Petitioner Michael McDermott (McDermott) is serving a thirty-year sentence for assault and felony bail jumping in the Crossroads Correctional Center. The Board of Pardons and Parole (Board) has denied his application for parole, based in part on his failure to participate in a sexual offender program (SOP). He petitions this Court for a writ of habeas corpus, alleging that the Board has illegally denied him parole. We deny his petition.

BACKGROUND

¶ 2 In May 1989, McDermott was charged by information with four counts of assault and four counts of incest against his two stepsons, then aged five and six. The information alleged that, between June 1985 and January 1986, McDermott assaulted his stepsons physically and sexually by burning their arms on the stove, knocking out their teeth, beating them on their legs, buttocks and penis with a wooden spoon and forcing them to engage in anal and oral intercourse. After being charged and released on bond, McDermott fled the jurisdiction. Eventually recaptured, he was extradited back to Montana and charged with an additional count of felony bail jumping.

¶ 3 McDermott pled guilty to the assault and bail jumping charges in exchange for dismissal of the four incest counts. The District Court sentenced him to five years on each assault charge and ten years on the bail jumping charge, for a total sentence of thirty years. Because of the violent nature of the assaults, because he committed them against young victims and because the court found that he represents a substantial danger to society, McDermott was designated a dangerous offender for purposes of parole. ¶ 4 McDermott began serving his sentence in May 1992. At that time, an initial needs assessment concluded that he suffers from "severe sexual problems" and recommended that he participate in the prison's treatment program for sexual offenders. McDermott elected not to participate in the SOP, and the Board later considered this fact during evaluations for placement in a prerelease center, for parole and for inmate classification purposes.

¶ 5 McDermott first applied for parole in September 1998. After notice and a hearing, the Board denied his application, citing McDermott's multiple offenses as well as their nature and severity. It noted that participation in the SOP would "enhance success on parole and further ensure that the applicant is willing and able to fulfill the obligations of a law-abiding citizen." McDermott again chose not to participate. As a result, he had four points added to his classification status for noncompliance with the Board's SOP recommendation. In September 1999, the Board again denied McDermott's parole application, citing the nature and severity of his offenses as well as his failure to comply with the Board's previous SOP recommendation.

¶ 6 McDermott contends that by requiring him to complete an SOP as a condition to early release on parole, the Board infringed upon his liberty interest in parole without due process of law. He petitions this Court for a writ of habeas corpus ordering his immediate release and rescinding the four points added to his classification status.

DISCUSSION

¶ 7 Our due process analysis requires us to determine whether McDermott has a protected liberty interest in parole, and, if so, what process he is due and whether he received that process.

A. McDermott's Liberty Interest in Parole

¶ 8 As a general rule, inmates have no liberty interest in parole. Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex (1979), 442 U.S. 1, 7, 99 S.Ct. 2100, 2103-04, 60 L.Ed.2d 668, 675. We have, however, recognized an exception to this general rule for inmates who committed their offenses prior to 1989. Before that year, Montana's parole eligibility statute stated:

the board shall release on parole ... any person confined in the Montana state prison... when in its opinion there is reasonable probability that the prisoner can be released without detriment to the prisoner or to the community. [Emphasis added.]

Section 46-23-201, MCA (1985). The United States Supreme Court held that the mandatory language of this provision created a liberty interest in parole that is protected by the due process clause of the federal constitution. Board of Pardons v. Allen (1987), 482 U.S. 369, 377, 107 S.Ct. 2415, 2420, 96 L.Ed.2d 303, 312. Although the Montana Legislature removed the mandatory language in 1989, we determined that inmates who committed offenses prior to the amendment continued to enjoy a federally-protected liberty interest in parole. Worden v. Montana Bd. of Pardons and Parole, 1998 MT 168, ¶ 42, 289 Mont. 459, ¶ 42, 962 P.2d 1157, ¶ 42. McDermott committed his offenses in 1985 and 1986. Therefore, he has a protected liberty interest in parole under Allen and Worden.

¶ 9 Having determined that McDermott has a protected liberty interest in parole, the Fourteenth Amendment to the United States Constitution and Article II, Section 17, of the Montana Constitution guarantee that it cannot be denied without due process.

B. The Process Due McDermott

¶ 10 There is no absolute standard for what constitutes due process. Rather, the requirements of due process are flexible, so that they may be adapted to meet the procedural protections demanded by a particular situation. Greenholtz, 442 U.S. at 12, 99 S.Ct. at 2106, 60 L.Ed.2d at 679. Thus, the process due in any given case varies according to the factual circumstances of the case, the nature of the interests at stake, and the risk of making an erroneous decision. Sage v. Gamble (1996), 279 Mont. 459, 465, 929 P.2d 822, 825. ¶ 11 It is well established that a parole release determination is not subject to all the due process protections required to convict or confine. See Fardella v. Garrison (4th Cir.1982), 698 F.2d 208, 212. Nor must a parole release determination provide the same due process protections as are required in a parole revocation hearing. In re Sturm (1974), 11 Cal.3d 258, 113 Cal.Rptr. 361, 521 P.2d 97, 102. These situations present a much greater risk of error than a parole release determination because incarceration, whether as a result of conviction or parole revocation, involves a loss of liberty. Denial of parole, on the other hand, involves the loss of the mere anticipation of freedom-freedom to which the lawfully-convicted inmate is otherwise not entitled. As a consequence, the United States Supreme Court has held that due process is satisfied when the prisoner seeking parole is, at a minimum, provided with an opportunity to be heard and a written statement explaining why he was denied parole. Greenholtz, 442 U.S. at 16,99 S.Ct. at 2108,60 L.Ed.2d at 681; Sage, 279 Mont. at 465,929 P.2d at 825.

C. The Board's Authority to Consider McDermott's Participation in the SOP.

¶ 12 McDermott does not contend that he was denied an opportunity to come before the Board or that he did not receive a statement of the reasons his parole was denied. Rather, he argues that the Board does not have authority to consider his lack of participation in an SOP as a basis for denying him early release on parole. For support, he relies on two of this Court's recent decisions: State v. Ommundson, 1999 MT 16, 293 Mont. 133, 974 P.2d 620, in which we held that a district court could not force an offender to complete a sexual offender program that had no correlation or connection to the underlying offense, and State v. Field, 2000 MT 268, 11 P.3d 1203, 57 St.Rep. 1123, in which we held that the Board had no authority to impose conditions on a probationer that were not a part of his original sentence. We conclude, however, that neither of these cases limit the Board's authority to consider McDermott's failure to participate in the recommended SOP.

¶ 13 In Ommundson, the defendant pled guilty to driving under the influence of alcohol (DUI). After a presentence investigation revealed that he had more than ten previous convictions for indecent exposure, the district court conditioned suspension of the defendant's DUI sentence on his participation in an SOP. Ommundson, ¶ 1. On appeal, we struck down the SOP condition, holding that "a sentencing limitation or condition must have ... some correlation or connection to the underlying offense for which the defendant is being sentenced." Ommundson, ¶ 11. We based our decision on the requirement of § 46-18-202(1)(e), MCA, that a sentence be "reasonably related to the objectives of rehabilitation and protection of the victim and society." Ommundson, ¶ 11.

¶ 14 McDermott characterizes the Board's consideration of his failure to participate in the SOP as a precondition to parole. He contends that the Board's authority to set such conditions can be no greater than a sentencing court's authority to set conditions on a sentence and, therefore, under Ommundson, the Board can only place conditions on parole that have some correlation or connection to the underlying offense. Since he was not convicted of a sex offense, McDermott contends that the Board has no authority to condition his parole on his participation in an SOP.

¶ 15 We find this argument without merit. First, we do not agree that the Board's consideration of McDermott's failure to participate in the SOP constitutes a precondition to parole. Second, contrary to McDermott's assertion, the Board's authority to impose conditions precedent to parole is both independent of and broader than a court's authority to impose such conditions in a sentence.

¶ 16 First, McDermott presents no evidence that the Board conditioned his release on his participation in the SOP. His initial parole review indicated that parole was denied because of the nature, number and severity of his offenses. The Board indicated at that...