State ex rel. McKee v. Cooper

• Decision Date: 11 December 1974
• Docket Number: No. 74-62,74-62
• Citation: 40 Ohio St.2d 65,320 N.E.2d 286
• Parties: , 69 O.O.2d 396 The STATE ex rel. McKEE, Pros. Atty., Appellee, v. COOPER, Director, et al., Appellants.
• Court: Ohio Supreme Court

Page 65

40 Ohio St.2d 65

320 N.E.2d 286, 69 O.O.2d 396

The STATE ex rel. McKEE, Pros. Atty., Appellee, v. COOPER, Director, et al., Appellants.

No. 74-62.

Supreme Court of Ohio.

Dec. 11, 1974.

[320 N.E.2d 287] Syllabus by the Court

1. The conditions which must exist to support the issuance of a writ of prohibition are: (1) The court or officer against whom it is sought must be about to exercise judicial or quasi-judicial power; (2) the exercise of such power must be unauthorized by law; and (3) it must appear that the refusal of the writ would result in injury for which there is no other adequate remedy in the ordinary course of the law. (State ex rel. Lehmann v. Cmich, 23 Ohio St.2d 11, 260 N.E.2d 835, followed.)

2. A person convicted of Michael Anthony Paris was convicted of armed robbery in the Common Pleas Court of Richland County on October 13, 1970. That court sentenced him to 'not less than 10 years, nor more than 25 years' in the Ohio State Reformatory. At the time this offense was committed, Paris was on parole from the Ohio State Reformatory.

a felony and sentenced to a reformatory becomes legally eligible for parole in accordance with criteria established by the Ohio Adult Parole Authority.

The respondents are the Director of the Ohio Department of Rehabilitation and Correction, the Adult Parole Authority and its chief, and the Superintendent of the Ohio State Reformatory. The Adult Parole Authority Relator sought to prevent the parole hearing by filing a petition for the issuance of a writ of prohibition in the Court of Appeals, alleging that the respondents are not authorized to hold a parole hearing for Paris until the expiration of his statutory minimum sentence, less time off for good behavior. For Paris, this would mean that a parole hearing could not be held until he had served at least 76 months. ¹ Respondents contend that the statutory requirement that prisoners serve the minimum sentence, less time off, applies only to prisoners in penitentiaries. Prisoners in reformatories, respondents urge, are eligible for parole under criteria established by the Authority. Three opinions of the Attorney General of Ohio, dated 1927 (No. 556), 1933 (No. 106) and 1970 (No. 70-068), have been cited in support of that position.

(Authority) is a bureau of the Department of Rehabilitation and Correction and is in charge of considering and administering the granting of parole to prisoners in Ohio's penal and reformatory institutions. The Authority scheduled a parole hearing for Paris, after Paris had served 38 months in the Reformatory. Pursuant to R.C. 2967.12, the Authority gave notice of the scheduled hearing to the prosecuting attorney of Richland County, relator herein.

The Court of Appeals allowed the writ of prohibition, and held that respondents could not consider for parole any inmate of a reformatory who had not served the minimum sentence, as diminished in accordance with R.C. 2967.19(F).

The cause is now before this court upon an appeal as of right.

William F. McKee, Pros. Atty., Max K. Chilcote and Harry M. Welsh, Mansfield, for appellee.

William J. Brown, Atty. Gen., and Richard B. Igo, Asst. Atty. Gen., for appellants.

I.

STERN, Justice.

Appellants initially raise the argument that prohibition does not lie in this case. The law is well-established in Ohio that the conditions which must exist to support the issuance of a writ of prohibition are: (1) The court or officer against whom it is sought must be about to exercise judicial or quasi-judicial power; (2) it must appear that the refusal of the writ would result in injury for which there is no other adequate remedy in the ordinary Assuming, arguendo, that appellee is correct in his contention that the Authority may not parole a reformatory prisoner before he has served the minimum term, less time off, prohibition would be the proper remedy for the following reasons. First, the act of holding a hearing to decide whether one convicted of a crime shall be held in confinement or granted parole constitutes an exercise of judicial or quasi-judicial power; it is precisely the act which a judge performs when he pronounces sentence, and the hearing itself results in decisions which affect fundamental rights of the prisoner. Second, for the writ of prohibition to issue, it must appear that the refusal of the writ would result in injury for which there is no other adequate remedy at law. In the instant case, there is no provision in the statutes for an appeal of any decision of the Authority. We find, therefore, that there is no other adequate remedy at law.

course of the law, and (3) the exercise of such power must be unauthorized by law. State ex rel. Lehmann v. Cmich (1970), 23 Ohio St.2d 11, 260 N.E.2d 835.

The issue that remains is fundamental: Did the Authority exercise power unauthorized by law when it scheduled a parole hearing for a reformatory inmate before the expiration of his minimum sentence? We hold that it did not, for reasons which we discuss later in this opinion.

II.

Before considering the statutory provisions governing the granting of parole by the Authority, it is important to recall the function of parole in our correctional systems.

Parole is not a full release, nor is it a form of leniency. Rather, it is the conditional extension of certain freedoms, under the supervision of a parole officer, to a person who has already served a period of time in a correctional institution. The parolee remains in technical custody and will ordinarily have definite conditions placed on his continued freedom from actual imprisonment. For example, the parolee may be prohibited from buying a car, borrowing money, changing his residence, or marrying, unless he receives the permission of his parole officer. Special conditions Parole is used properly as a flexible alternative to either imprisonment or total release, and as a means of controlling the transition between imprisonment and life in the community. Parole is a form of supervised custody outside prison walls and attempts to deal with a fundamental problem of penology-how is a prisoner who has been confined within the artificial world of prison life to be reintegrated into society so that he is least likely to commit new crimes, and is most able to find a productive role. As the United States Supreme Court stated in Morrissey v. Brewer, supra, at 477, 92 S.Ct. at 2598 (1972), 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484: '* * * (Parole's) purpose is to help individuals reintegrate into society as constructive individuals as soon as they are able, without being confined for the full term of the sentence imposed. * * *' Parole properly supervised permits flexibility and individualization of treatment, while the prisoner is outside prison walls. ² An alternative to parole is more time behind prison walls followed by release, which is of little aid in the reintegration of the prisoner into the community. In fact, long sentences can often be self-defeating and produce hostility and increased potential for further crime after release, and it is increasingly recognized that '* * * community based alternatives to institutionalization * * * are the most effective, fruitful, and realistic solutions to the proper handling of offenders.' Final Report of the Ohio Citizens' Task Force on Corrections A8, (1971).

may be imposed, typically requiring that the parolee refrain from drinking or from working at certain occupations. He will normally be required to report regularly to his parole officer. These conditions impose considerable restraints on the freedom of the parolee; if the parolee violates a condition of his parole, he can be remanded to imprisonment in a correctional institution after an administrative hearing without the need for criminal proceedings. See Morrissey v. Brewer (1972), 408 U.S. 471, 477-482, 92 S.Ct. 2593, 33 L.Ed.2d 484. For minor violations, there frequently will be no revocation of parole, but every parolee is subject to restraints on his freedom, and to revocation of his privileges and return to full imprisonment if he violates the conditions of his parole. Most prisoners are eventually returned to the community, and correctional authorities increasingly recognize that both the community and the prisoner can benefit by a period of parole during which the parolee can be supervised to determine his rehabilitation. See Goldfarb and Singer, After Conviction, 276 (1973); Dawson, Sentencing, 420-21 (1969).

Parole, used properly, is an integral part of a correctional system, and, as the final exercise of control over prisoners, is a crucial part of the process by which prisoners are sought to be rehabilitated.

We turn next to consideration of the statutory scheme for the use of parole in Ohio's correctional institutions.

III.

Ohio has two types of correctional institutions. Penitentiaries are governed by R.C. Chapter 5145 and are places for the imprisonment of persons convicted of felonies. Reformatories are governed by R.C. Chapter 5143 and are also for the confinement of convicted felons, but only those who are young first offenders, with certain exceptions. ³

It is the purpose of reformatories to separate those prisoners from older prisoners and multiple offenders who could exert harmful influences on a youth committed for the first time. Typically, reformatories place greater emphasis on rehabilitation than do penitentiaries, and less emphasis on discipline and punishment. Further, in order to give the Department of Rehabilitation and Correction the best chance of maintaining an atmosphere of rehabilitation, the department is given authority under R.C. 5143.09 to 'transfer an apparently incorrigible prisoner whose presence in the reformatory appears to be seriously detrimental to the well-being of the reformatory.'

It is the clear intent of the statutory scheme for correction to provide different treatment for youthful first offenders with regard to...