¶21 (dissenting) — I agree with the majority that offenders have a limited liberty interest at stake in a hearing under RCW 9.95.420 (.420 hearing). Like the statute considered by the United States Supreme Court in Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979), RCW 9.95.420 creates a legitimate expectation that an offender will be released to community custody after completing his or her minimum sentence. It does so by providing that the Indeterminate Sentence Review Board (Board) “shall order the offender released” after a .420 *246hearing unless it determines that “it is more likely than not that the offender will commit sex offenses if released.” RCW 9.95.420(3)(a) (emphasis added).
Alexander, C.J.*246¶22 However, in determining the due process protections necessary in .420 hearings, the majority analogizes .420 hearings to parole release hearings. I disagree with this characterization. In my view, there is a greater risk of erroneous deprivation at a .420 hearing than at a parole release hearing. Because of this, greater due process protections should be required than were provided here. Thus, I respectfully dissent.
¶23 The parole-release determination at issue in Greenholtz was based primarily on inmates’ records while incarcerated and “ ‘often involve [d] no more than informed predictions.’ ” Greenholtz, 442 U.S. at 10 (quoting Meachum v. Fano, 427 U.S. 215, 225, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976)). The Court distinguished it from parol e-revocation determinations, which involve a “ ‘wholly retrospective factual question’ ” in addition to a subjective determination “whether the parolee should be recommitted.” Id. at 9 (quoting Morrissey v. Brewer, 408 U.S. 471, 479, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972)). Although the determination in a .420 hearing is primarily predictive in nature, it additionally involves the evaluation of tests, expert opinions, and factual determinations such as whether an offender has participated in treatment.
¶24 Furthermore, unlike parole release hearings, which generally are conducted in language that is understandable to a layperson, .420 hearings will almost always involve complicated medical terminology and the translation of test results. See RCW 9.95.420(1)(a) (instructing the department to “conduct ... an examination of the offender, incorporating methodologies that are recognized by experts in the prediction of sexual dangerousness,” which is considered in the .420 hearing). Like the mental health determination reviewed by the United States Supreme Court in Vitek v. Jones, 445 U.S. 480, 100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980), the determination of a sex offender’s likelihood *247to reoffend “ ‘turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists.’ ” Id. at 495 (quoting Addington v. Texas, 441 U.S. 418, 429, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979)). “It is precisely ‘[the] subtleties and nuances of psychiatric diagnoses’ that justify the requirement of adversary hearings.” Id. (alteration in original) (quoting Addington, 441 U.S. at 430). Inmates may need the assistance of counsel at those hearings to meaningfully challenge such complex interpretations.
¶25 The balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), requires us to weigh the private interest to be affected, the risk of an erroneous deprivation of the interest, and the probable value of additional procedural safeguards against the government’s interest and the burden of additional procedures. Because I conclude that the risk of erroneous deprivation is greater in .420 hearings than in parole release hearings, I would hold that greater due process protections are required under Mathews. Although I would decline, as this court did in Arment v. Henry, 98 Wn.2d 775, 778-80, 658 P.2d 663 (1983), to require counsel at all .420 hearings, the Board should determine on a case-by-case basis whether counsel is necessary in order to protect an inmate’s due process right to a meaningful hearing.
¶26 The cases cited by the majority regarding “legal representation for offenders during other Board proceedings,” majority at 0, are inapposite here. In In re Personal Restraint of Whitesel, 111 Wn.2d 621, 763 P.2d 199 (1988), we considered the unique sentence reviews conducted by the Board after the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, was passed. At the legislature’s request, the Board reviewed minimum sentences set under the indeterminate sentencing scheme that existed prior to the SRA. We held in Whitesel that prisoners had no right to an attorney at those reviews. We recognized, however, that an indigent prisoner’s need for appointed counsel in parole and probation hearings must be determined on a case-by-*248case basis. Whitesel, 111 Wn.2d at 631 (citing Gagnon v. Scarpelli, 411 U.S. 778, 788-89, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973)). We also recognized that rule in Arment, 98 Wn.2d at 778, while holding that there was no per se rule that prisoners were entitled to counsel at disciplinary hearings for rule violations while in prison. See also Whitesel, 111 Wn.2d at 631. In the third case the majority cites, we did not decide whether counsel was required for the setting of minimum terms. In re Pers. Restraint of Sinka, 92 Wn.2d 555, 599 P.2d 1275 (1979). But see Whitesel, 111 Wn.2d at 630-31 (stating that counsel would not be required when setting minimum terms). In holding that inmates must be advised of adverse information in the file considered by the Board, in addition to receiving the most basic of due process requirements, we “emphasize [d]” that “due process ‘is flexible and calls for such procedural protections as the particular situation demands.’ ” Sinka, 92 Wn.2d at 565 (quoting Morrissey, 408 U.S. at 481).
¶27 The particular situation presented by this case offers a striking example of the unfair results of the Board’s strict policy against providing inmates with attorneys. The record shows that Donald McCarthy was “slow,” uneducated, and suffering from mental illness. Pers. Restraint Pet., Ex. 4, at 2 (McCarthy describing himself as “kinda slow”), 4 (“[hjistory of paranoid schizophrenia”), 6 (describing “McCarthy as a very fragile person”); Pers. Restraint Pet., Ex. 5 (IQ (intelligence quotient) of 72); Pers. Restraint Pet., Ex. 6 (McCarthy did not finish high school and has mental health needs). Nevertheless, he was denied an attorney at both of his .420 hearings, with the result that he lost any meaningful opportunity for early release and was ultimately required to serve nearly five times his original minimum sentence.
¶28 The United States Supreme Court has held that counsel should be provided to indigent prisoners who are illiterate, uneducated, or “thought to be suffering from a mental disease or defect requiring involuntary treatment” when the State seeks to confine them further, because those prisoners have a “greater need for legal assistance” to *249“understand or exercise [their] rights.” Jones, 445 U.S. at 496-97. This court recognized that reasoning in Arment, 98 Wn.2d at 778-79. As the United States Supreme Court noted, “[although the presence and participation of counsel will probably be both undesirable and constitutionally unnecessary in most... hearings, there will remain certain cases in which fundamental fairness — the touchstone of due process — will require that the State provide at its expense counsel for indigent probationers or parolees,” or in this case, offenders during .420 hearings. Scarpelli, 411 U.S. at 790. The majority’s rejection of case-by-case review of the need for an attorney would essentially prevent such a provision.
¶29 Here, I believe it is apparent that McCarthy should have been provided with counsel. That, however, is a determination for the Board to make and one that I conclude they should have made. Consequently, I would affirm the Court of Appeals and remand the case to the Board to determine whether McCarthy should be represented by counsel and, if so, to provide a new hearing.
C. Johnson, Sanders, and Chambers, JJ., concur with Alexander, C.J.