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IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 01-104
2001 MT 89
______________
OPINION AND ORDER
MICHAEL McDERMOTT,
Petitioner,
v.
JAMES McDONALD, Warden,
Crossroads Correctional Facility,
Respondent.
______________
¶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
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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.
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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 Correction 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
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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 (Cal. 1974),
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
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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 time that
participation in the SOP would increase the likelihood of a finding that McDermott was
"willing and able to fulfill the obligations of a law-abiding citizen" and recommended that
he enroll in the SOP "or provide an evaluation that indicates SOP is not required." The
Board's willingness to accept alternative evidence strongly indicates that participation in
the SOP was not an absolute precondition to parole. McDermott's 1999 parole case
disposition report indicates that the Board considered McDermott's "failure to participate
in appropriate treatment"-an obvious reference to noncompliance with the Board's
previous SOP recommendation. However, there is no indication that this fact was the
exclusive, or even most important, factor in the Board's decision to deny parole because
the Board once again cited the nature, number and severity of his offenses as the reasons
for its denial.
¶17 Second, even if consideration of McDermott's failure to participate in the SOP can be
viewed as a precondition to parole, our holding in Ommundson does not limit the Board's
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authority to set such conditions. McDermott's argument fails to recognize the fundamental
difference between imposition of a sentence-as in Ommundson-and release on parole. A
sentence, or condition included in that sentence, is a limitation on liberty. A condition on
parole is not. The district court's authority is properly restrained when it acts to limit an
individual's freedom. Once lawfully sentenced, however, a prisoner is not entitled to
release prior to the completion of his full sentence. Parole, therefore, is a grant of liberty.
A condition on parole only limits freedom to which the inmate is otherwise not entitled.
As a general proposition, then, it is invalid to assume, as McDermott does, that the Board's
authority to set conditions precedent to parole is necessarily limited by a court's sentencing
authority.
¶18 More specifically, the statutory basis for the court's sentencing authority is not
applicable to the Board. In Ommundson, this Court held that the statutory requirement that
a sentence be "reasonably related to the objectives of rehabilitation and protection of the
victim and society," requires that any sentencing limitation or condition have some
"correlation or connection to the underlying offense for which the defendant is being
sentenced." Ommundson, ¶ 11. The "correlation or connection" standard, therefore, was
based on a specific statutory limitation on the district court's sentencing authority. While
the standard for release on parole is also limited by statute, the Board has considerably
more discretion to impose conditions than does a sentencing court.
¶19 Under both Montana and federal precedent, parole is a privilege and not a right. Since
parole is granted as a matter of grace, rather than right, the state may offer such grace
under and subject to such conditions as it considers most conducive to accomplish the
desired purpose. Harris v. Wainwright (Fla. 1979), 376 So.2d 855. In Montana, that grace
is offered only when, in the Board's opinion, three conditions have been satisfied: "there is
a reasonable probability that the prisoner can be released without detriment to the prisoner
or to the community," § 46-23-201(1), MCA (1985); when it is in "the best interests of
society;" and when the prisoner "is able and willing to fulfill the obligations of a law-
abiding citizen." Section 46-23-201(2), MCA. Rather than restricting the authority of the
Board to set conditions precedent to parole, these provisions obligate the Board to ensure
that no prisoner is released on parole who cannot meet these three criteria.
¶20 As a complement to its broad discretion to grant, deny, or condition parole, the Board
is authorized to consider factors that may not be considered by the district court at trial and
sentencing. For instance, parole authorities are not limited to consideration of formally
adjudicated cases when determining the likelihood of a prisoner's success on parole.
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Christopher v. U.S. Board of Parole (7th Cir. 1978), 589 F.2d 924. Moreover, they may
consider evidence of offenses which were charged in dismissed counts. Robinson v.
Hadden (10th Cir. 1983), 723 F.2d 59. A parole board may even hear and consider
evidence excluded at trial under the exclusionary rule. In re Martinez (Cal. 1970), 463
P.2d 734, cert. denied, 400 U.S. 851. In Montana, the Board is specifically required to
"consider all pertinent information regarding each prisoner, including the circumstances of
his offense, his previous social history and criminal record, his conduct, employment and
attitude in prison, and the reports of any physical and mental examinations which have
been made." Section 46-23-202, MCA (1985).
¶21 We conclude that the Board's authority to condition parole is not limited by our
holding in Ommundson. Furthermore, the Board's statutory authority is broad enough to
permit its consideration of McDermott's dismissed incest counts, the results of his initial
needs assessment showing severe sexual problems and his refusal to participate in an SOP
when determining whether to grant him an early release on parole.
¶22 McDermott's second argument is based on this Court's recent holding in Field. In that
case, we held that the Board could not impose a condition on a probationer's postrelease
conduct that was not specifically authorized by his sentence. Field dealt with a prisoner
who had served the full term of his unsuspended sentence and was released on probation.
Prior to release, the Board imposed the condition that he have no unsupervised contact
with minors. Violation of this condition was later used to rescind the probation and return
Field to prison. Field, ¶¶ 4-8. On appeal, this Court applied § 46-18-801, MCA, which
provides that no "offender may be deprived of a civil or constitutional right except as
provided in the Montana Constitution or as specifically enumerated by the sentencing
judge as a necessary condition of the sentence . . . ." We reversed recision of the
suspended sentence after determining that the condition that Field have no unsupervised
contact with minors was a violation of his constitutional right to freedom of association
and that it was not specifically included as a condition of his sentence. Field, ¶ 19. See
also United States v. Brooks (1995), 270 Mont. 136, 890 P.2d 759 (applying the same
analysis to a restriction against owning a gun).
¶23 McDermott argues that the Board's authority to impose conditions on his parole can
be no greater than its authority to impose postsentence conditions on Field. He contends
that, even if the District Court had the authority to impose a condition that he participate in
an SOP as part of his sentence, no such condition was included. Therefore, he asserts, as in
Field, the Board cannot now impose it as a condition of his release. We disagree.
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¶24 In applying this Court's holding in Field, it is important to distinguish release on
parole and release on probation. Parole, as stated above, is a discretionary grant of
freedom from incarceration. Probation is an original condition of sentence that, for some
period of time, the offender will not be incarcerated. With this distinction in mind the
same arguments made above regarding the distinction between sentencing authority and
release authority apply to the distinction between parole and probation. Under Field, the
Board has no authority to impose conditions on probation that were not part of the original
sentence because, under the terms of the sentence, Field was entitled to be released at the
time and under the conditions set by the court. But Field does not limit the Board's
authority to place conditions on parole. The Board's placement of a condition on
probation is a restriction on someone who would otherwise be free. A condition on parole
is a limited grant of freedom to someone who would otherwise be incarcerated. We
conclude that our holding in Field does not limit the Board's authority to impose
conditions on parole and is not relevant to McDermott's case.
CONCLUSION
¶25 Under § 46-23-201, MCA (1985), McDermott must be released on parole when, in the
Board's opinion, he "can be released without detriment to [himself] or to the community,"
when release is in "the best interests of society," and when he is "able and willing to fulfill
the obligations of a law-abiding citizen." Because he committed his offenses prior to 1989,
the mandatory language of this statute creates a liberty interest in parole that entitles
McDermott to certain due process protections. Nonetheless, the Board retains extremely
broad discretion to determine when the statutory criteria for early release have been met.
In making this determination, the Board must consider "all pertinent information regarding
the prisoner." McDermott, while not a convicted sex offender, had four counts of incest
dismissed pursuant to a plea bargain. He has been identified as having severe sexual
problems. His completion-or lack of completion-of the SOP is pertinent to his ability to be
released without "detriment to the . . . community" and "to fulfill the obligations of a law-
abiding citizen." Therefore, the Board was well within its authority to consider
McDermott's refusal to enroll in the recommended SOP when it denied his application for
an early release.
¶26 McDermott's petition for a writ of habeas corpus is DENIED.
DATED this 17th day of May, 2001.
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/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JIM REGNIER
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ TERRY N. TRIEWEILER
/S/ JIM REGNIER
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