Ohlinger v. Watson

• Decision Date: 21 July 1981
• Docket Number: No. 78-3037,78-3037
• Citation: 652 F.2d 775
• Parties: Merlin OHLINGER, et al., Plaintiffs-Appellants, v. Robert J. WATSON, Administrator, Corrections Division of the State of Oregon, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 775

652 F.2d 775

Merlin OHLINGER, et al., Plaintiffs-Appellants, v. Robert J. WATSON, Administrator, Corrections Division of the State of Oregon, et al., Defendants-Appellees.

No. 78-3037.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 7, 1980.

Decided Nov. 12, 1980.

As Amended July 21, 1981.

Gene B. Mechanic, Salem, Or., for plaintiffs-appellants.

Thomas H. Denney, Asst. Atty. Gen., Salem, Or., argued, for defendants-appellees; Melinda L. Bruce, Asst. Atty. Gen., Salem, Or., on brief.

AMENDED OPINION

Appeal from the United States District Court for the District of Oregon.

Before BROWNING and PREGERSON, Circuit Judges, and TAKASUGI ^*, District Judge.

TAKASUGI, District Judge:

I. FACTUAL BACKGROUND

Appellants are two Oregon state prisoners. Both pleaded guilty to the crime of sodomy. Appellant Ohlinger's offense involved "playing, touching and fondling" of children's genitals. He was sentenced on February 15, 1961. Appellant Haddon's offense involved similar sexual activity with children. He was sentenced on November 22, 1971. Neither appellant has been involved in sexual activity with the use of force against his victim.

In lieu of the maximum sentence of fifteen years under the state sodomy statute, ¹ each appellant was sentenced as a "sex offender" to an indeterminate life sentence under ORS 137.111. ² Both appellants were committed to the Oregon State Penitentiary ("OSP") in Salem, Oregon, where they presently remain. With the exception of a three-month parole in 1973 for Ohlinger, ³ neither appellant has been released from OSP since his sentencing.

Appellants sought from the district court a declaratory judgment that their constitutional rights had been violated and an injunction directing the State to provide them with constitutionally adequate treatment. The trial court denied appellants' request for relief. Appellants appeal. They allege that appellee, officials of the State of Oregon ("State"), by confining them at OSP indefinitely without providing adequate treatment for their mental illness, denied them their liberty in violation of the due process clause of the Fourteenth Amendment and in violation of the Eighth Amendment's proscription against cruel and unusual punishment. In addition, they claimed they were not being provided with the same opportunities for treatment as persons sentenced under Oregon's "Sexually Dangerous Persons" Act, ⁴ in contravention of their rights under the equal protection clause of the Fourteenth Amendment.

In reversing the lower court's judgment, we find that appellants are being denied due process in violation of the Fourteenth Amendment and are being subjected to cruel and unusual punishment in violation of the Eighth Amendment. We consider appellants' equal protection claim only in a limited way. ⁵

II. APPELLANTS HAVE A CONSTITUTIONAL RIGHT TO SUCH INDIVIDUAL TREATMENT AS WILL GIVE EACH OF THEM A REALISTIC OPPORTUNITY TO BE CURED OR TO IMPROVE HIS MENTAL CONDITION.

In holding that any treatment provided appellants is constitutionally adequate if that treatment is reasonable within the budget and time constraints imposed upon the prison, the trial court relied upon the standard articulated in Bowring v. Godwin, 551 F.2d 44 (4th Cir. 1977).

In Bowring, the petitioner had been convicted of robbery and attempted robbery and kidnapping. He was denied parole on the basis that, inter alia, results of his psychological evaluation indicated that he would not successfully complete a parole period. The basis of his complaint was that the State must provide him with psychological diagnosis and treatment in the hope that he may ultimately qualify for parole.

The Bowring court held that a person incarcerated for the commission of a crime is entitled to that psychological or psychiatric treatment which may be provided upon a reasonable cost and time basis, the essential test being one of medical necessity and not simply that which may be considered desirable. Id. at 47-48.

Bowring may be appropriate as a standard for providing psychiatric treatment to inmates who are incarcerated for criminal offenses. Incarceration under those circumstances is primarily for punitive purposes. Although rehabilitation may be desirable, it is not necessarily the primary function of such incarceration. Appellants, however, were not given indeterminate life sentences merely because they committed criminal offenses, but also because they possessed "a mental disturbance, delinquency or condition predisposing" them to the commission of sex offenses.

The State's interest in indeterminate incarceration under ORS 137.111 is to provide for the rehabilitation of a sex offender who has disclosed a tendency to be a menace to society. Barnett v. Gladden, 237 Or. 76, 390 P.2d 614 (1964). See also, Jensen v. Gladden, 231 Or. 141, 146-47, 372 P.2d 183 (1962). Such rehabilitation "may be regarded as comprising the quid pro quo for a longer confinement but under different terms and conditions than a defendant would undergo" if sentenced under ORS 167.040. See Carter v. United States, 306 F.2d 283, 285 (D.C. Cir. 1962). See also, Standley v. United States, 318 F.2d 700 (9th Cir. 1963); United States ex rel. Sero v. Preiser, 372 F.Supp. 663 (S.D.N.Y.1974). Having chosen to incarcerate appellants on the basis of their mental illness, the State has determined that it no longer has an interest in punishing appellants, but rather in attempting to rehabilitate them.

The rehabilitative rationale is not only desirable, but it is constitutionally required. Robinson v. California, 370 U.S. 660, 666, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758 (1961), strongly suggests that the State may not justify appellants' extended sentence on the basis of mental illness without affording appropriate treatment. The Supreme Court of California has so interpreted Robinson. ⁶ Indeed the State concedes that appellants are constitutionally entitled to treatment. The disagreement between the parties is solely over the level of treatment which is constitutionally required.

The district court held that "(a)ll that is required is that (appellants) be provided a reasonable level of treatment based upon a reasonable cost and time basis." We do not agree.

Constitutionally adequate treatment is not that which must be provided to the general prison population, but that which must be provided to those committed for mental incapacity. "At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed." Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435 (1971).

Jackson and McNeil v. Director, Patuxent Institutions, 407 U.S. 245, 92 S.Ct. 2083, 32 L.Ed.2d 719 (1972) ⁷ indicate that a person committed solely on the basis of his mental incapacity has a constitutional right to receive "such individual treatment as will give each of them a realistic opportunity to be cured or to improve his or her mental condition." Wyatt v. Stickney, 325 F.Supp. 781, 784 (M.D.Ala.1971) and 344 F.Supp. 373 (1972) aff'd. sub nom., Wyatt v. Aderbolt, 503 F.2d 1305 (5th Cir. 1974). See also Welsch v. Likins, 373 F.Supp. 487 (D.Minn.1974). Adequate and effective treatment is constitutionally required because, absent treatment, appellants could be held indefinitely as a result of their mental illness, while those convicted and sentenced under the State sodomy statute need only serve the fifteen-year maximum term. See Ragsdale v. Oberholser, 281 F.2d 943, 950 (D.C. Cir. 1960); Wyatt v. Stickney, supra, 325 F.Supp. at 784; People v. Feagley, 14 Cal.3d 338, 121 Cal.Rptr. 509, 535 P.2d 373. ⁸

Appellants are not requesting the best possible treatment nor are they demanding a guarantee to be cured of their mental incapacity. They only request a treatment program that will address their particular needs with the reasonable objective of rehabilitation. Lack of funds, staff or facilities cannot justify the State's failure to provide appellants with that treatment necessary for rehabilitation. Lora v. Bd. of Education, 456 F.Supp. 1211, 1292 (E.D.N.Y.1978); Wyatt v. Stickney, supra, 325 F.Supp. at 782-83, 344 F.Supp. at 377.

The standard adopted by the trial court is clearly erroneous. Nevertheless, the record must be examined to determine whether the treatment offered appellants at OSP will give each of them a realistic opportunity to be cured or to improve his mental condition.

III. THE RECORD OVERWHELMINGLY INDICATES THAT APPELLANTS ARE NOT RECEIVING CONSTITUTIONALLY ADEQUATE TREATMENT.

Extensive evidence was submitted at the trial pertaining to the effect of the OSP program on appellants' mental condition and the degree and kind of treatment needed to provide them with an opportunity for rehabilitation. The parties stipulated that appellant Ohlinger received absolutely no treatment of any kind between 1961 and 1971.

The evidence indicates that appellants require intensive individual therapy which includes a program concentrating on development of social skills, a reconditioning process, work in sexual fantasies and dreams and community passes to gradually integrate them into the community. ⁹

These methods are not available at OSP. They are available at Oregon State Hospital ("OSH"). Dr. McGovern, the only witness recognized by the trial court as an expert in the treatment of sex offenders, testified that appellants would not be a security risk and that because appellants were not physically abusive sex offenders they would be very receptive to treatment in a hospital-residential facility.

Although appellants participated in group therapy, the sessions were for only one-and-a-half to two hours per week. Dr. Nance testified that while he was the prison psychologist he had only one group of eight to twelve members out of the approximately two hundred fifty sex offenders housed at OSP. Most of these inmates were not...