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Washington Earned Early Release Credits Create Due Process Liberty Interests
The Washington State Court of Appeals, Division One, has held that: (1) a prisoner's right to community custody placement created limited due process liberty interests, but (2) delay did not violate prisoner's due process rights.
Matthew S. Crowder, a Washington prisoner, was convicted of two counts of third degree rape of a child. He was sentenced to 60 months' confinement. He became eligible for placement in community custody on October 24, 1997. However, he was not released into community custody until February 2, 1998, 101 days after his earned early release date for community custody. Before his release he filed a personal restraint petition asserting that although he had been granted early release credits, they were being arbitrarily denied without due process.
The State conceded that Crowder was eligible for transfer into community custody on October 24, 1997, however, the State did not agree that he was therefore entitled to release. It was the State's position that due to Crowder's own noncompliance with sexual predator release factors or other Department of Corrections (DOC) program factors, he could not be released.
The court held that the statutory right to earned early release credit creates a limited liberty interest requiring minimal due process. In re Personal Restraint Petition of Fogle, 128 Wash.2d 56,65--66, 904 P.2d 722 (1995). The State argued that Crowder possessed no limited liberty interest after the court's decision in Sandin v Conner, 515 US 472 (1995) wherein the court redefined the circumstances under which a state may create a liberty interest. The court in Sandin said the state will be held to create a constitutional liberty interest that imposes "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." The Crowder appellate court held that, "While the argument may have some appeal and potential merit, the final determination of the effect of Sandin is left to our State Supreme Court."
Nevertheless, the court ruled against Crowder because the record showed that he and DOC officials attempted to place him a number of times, but that for legitimate reasons, including Crowder's own withdrawal of a suggested placement plan and/or that the suggested placement would violate the terms of his sentence, successful earlier placement in community custody was prevented. Crowder's argument was that it was solely the DOC's responsibility to place him into community custody, or give him a general release on his early release date. The court found that Crowder's contention was not borne out by the statutory scheme or the guidelines for the DOC program which specified that community placement offenders only became eligible for transfer to community custody status. Such a transfer is "in lieu of" early release. Thus, the DOC was prohibited from a general release based on earned early release credits, but had only the discretion to consider the offender for transfer to community custody. See: In Re Crowder, 985 P.2d 944, 97 Wa.App. 598, (Wash.App.Div. I (1999).
Matthew S. Crowder, a Washington prisoner, was convicted of two counts of third degree rape of a child. He was sentenced to 60 months' confinement. He became eligible for placement in community custody on October 24, 1997. However, he was not released into community custody until February 2, 1998, 101 days after his earned early release date for community custody. Before his release he filed a personal restraint petition asserting that although he had been granted early release credits, they were being arbitrarily denied without due process.
The State conceded that Crowder was eligible for transfer into community custody on October 24, 1997, however, the State did not agree that he was therefore entitled to release. It was the State's position that due to Crowder's own noncompliance with sexual predator release factors or other Department of Corrections (DOC) program factors, he could not be released.
The court held that the statutory right to earned early release credit creates a limited liberty interest requiring minimal due process. In re Personal Restraint Petition of Fogle, 128 Wash.2d 56,65--66, 904 P.2d 722 (1995). The State argued that Crowder possessed no limited liberty interest after the court's decision in Sandin v Conner, 515 US 472 (1995) wherein the court redefined the circumstances under which a state may create a liberty interest. The court in Sandin said the state will be held to create a constitutional liberty interest that imposes "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." The Crowder appellate court held that, "While the argument may have some appeal and potential merit, the final determination of the effect of Sandin is left to our State Supreme Court."
Nevertheless, the court ruled against Crowder because the record showed that he and DOC officials attempted to place him a number of times, but that for legitimate reasons, including Crowder's own withdrawal of a suggested placement plan and/or that the suggested placement would violate the terms of his sentence, successful earlier placement in community custody was prevented. Crowder's argument was that it was solely the DOC's responsibility to place him into community custody, or give him a general release on his early release date. The court found that Crowder's contention was not borne out by the statutory scheme or the guidelines for the DOC program which specified that community placement offenders only became eligible for transfer to community custody status. Such a transfer is "in lieu of" early release. Thus, the DOC was prohibited from a general release based on earned early release credits, but had only the discretion to consider the offender for transfer to community custody. See: In Re Crowder, 985 P.2d 944, 97 Wa.App. 598, (Wash.App.Div. I (1999).
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Related legal case
In Re Crowder
| Year | 1999 |
|---|---|
| Cite | 985 P.2d 944, 97 Wa.App 598 (Wash.App.Div. 1(1999) |
| Level | State Court of Appeals |
In re Personal Restraint Petition of Crowder, 97 Wash.App. 598, 985 P.2d 944 (Wash.App.Div.1 08/16/1999)
[1] Washington Court of Appeals
[2] No. 41843-2-I
[3] 97 Wash.App. 598, 985 P.2d 944, 1999
[4] August 16, 1999
[5] IN RE THE PERSONAL RESTRAINT PETITION OF: MATTHEW S. CROWDER, PETITIONER.
[6] Counsel: Counsel for Petitioner(s) Christopher Gibson Nielsen Broman & Assoc. Pllc 810 3rd Ave Ste 320 Seattle, WA 98104 Matthew S. Crowder (Appearing Pro Se) 5910 88th Street #9 Tacoma, WA 98499 Nielsen Broman & Associates Pllc 810 Third Avenue 320 Central Building Seattle, WA 98104 Counsel for Respondent(s) Donna H. Mullen Attorney General Office PO Box 40116 Olympia, WA 98504-0116
[7] The opinion of the court was delivered by: Grosse, J.
[8] Source of Appeal: Date first document (petition, etc) was filed in Court of Appeals: 12/18/1997
[9] Judges: Authored by C. Kenneth Grosse
[10] Concurring: Walter E. Webster Mary K. Becker
[11] -- Matthew Crowder has a limited liberty interest in early release into a community custody program but we do not agree with his assertion that the Washington State Department of Corrections (DOC) deprived him of this liberty interest by denying him 101 days of earned early release credits. The grant or denial of community custody placement upon the earning of early release credits requires minimal due process but, contrary to Crowder's claim, he was afforded due process in his attempts to find suitable community placement.
[12] On an Alford*fn1 plea, Crowder was convicted of two counts of third degree rape of a child. He was sentenced to two concurrent terms of 60 months' confinement. Crowder was eligible for placement in community custody*fn2 on October 24, 1997. However, he was not released into community custody until February 2, 1998, 101 days after his earned early release date for community custody. Before his release he filed this personal restraint petition and asserted that although he had been granted earned early release credits, they were being arbitrarily denied without due process.*fn3
[13] The State concedes that Crowder was eligible for transfer into community custody on October 24, 1997 due to earned early release credits. However, the State does not agree that Crowder was therefore entitled to release. The State maintains that due to Crowder's own noncompliance with sexual predator release factors or other DOC program factors, Crowder could not be released.
[14] The statutory right to earned early release credit creates a limited liberty interest requiring minimal due process.*fn4 Initially the State argues that Crowder no longer possesses a limited liberty interest after the U.S. Supreme Court decision in Sandin v. Conner.*fn5 While the argument may have some appeal and potential merit, the final determination of the effect of Sandin is left to our State Supreme Court.
[15] It is important to note that unlike other offenders in the Sentencing Reform Act of 1981 (SRA), offenders like Crowder, who are subject to statutory community custody or placement restrictions, are "excluded" from the program allowing general release based on earned early release credits. RCW 9.94A.150(2). Instead of general release, the Legislature specified that community placement offenders may only become eligible for transfer to community custody status. This transfer is "in lieu of" early release. Thus, the DOC is prohibited from a general release based on earned early release credits, but it has discretion to consider the offender for transfer to community custody.
[16] Community custody is the intense monitoring of an offender in the community for a period of at least one year after release or transfer from confinement. Although it has other purposes, community custody continues in the nature of punishment,*fn6 and is not equivalent to general release. This custody and placement begins upon completion of the term of confinement or at such time as the offender is transferred to community custody in lieu of earned early release awarded pursuant to RCW 9.94A.150(1) and (2).*fn7 As noted in RCW 9.94A.120(9)(b), for sex offenders who committed their offenses after July 1, 1990, but before June 6, 1996, the mandatory period of community placement is two years, or up to the period of earned early release credits awarded, whichever is longer.*fn8 The DOC followed its program, and Crowder was eventually released into community custody, albeit some 101 days after he could have been placed had the requisite prior approvals been in place.
[17] With DOC's assistance, Crowder was pre-approved for early release into a proper community custody placement before the possible release date. However, the day before the scheduled timely release, the "sponsor" or person with whom he was to share housing was charged with fourth degree assault and evicted from her apartment. Placement with this person would have been a violation of Crowder's sentence and the program rules. Crowder's early release was cancelled as being no longer acceptable. His contention that he was not given notice of the denial of this first approved placement has no merit considering the record before the court, which sets forth the placement efforts following the cancellation of his initial placement.
[18] The record shows that Crowder and DOC officials attempted to place him a number of times, but that for legitimate reasons, including Crowder's own withdrawal of a suggested placement plan and/or that the suggested placement would violate the terms of his sentence, successful earlier placement in community custody was prevented. Essentially, Crowder's argument is that it is solely the DOC's responsibility to place him into community custody, or give him a general release on his early release date. This contention is not borne out by the statutory scheme or the guidelines for the DOC program adopted in accord with that scheme.
[19] Crowder was not denied due process and his personal restraint petition is denied.
[20] WE CONCUR:
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Opinion Footnotes
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[21] *fn1 North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
[22] *fn2 Community custody and community placement, as defined by RCW 9.94A.030(4) and (5) and Policy Number 350.200 of the DOC, is that portion of an inmate's sentence of confinement granted in lieu of earned early release time in which the offender is subject to the conditions of community custody and/or post release supervision.
[23] *fn3 The State concedes this petition is not moot because continuing supervision in community custody continues as an affirmative restraint. RAP 16.4(b).
[24] *fn4 In re Personal Restraint Petition of Fogle, 128 Wn.2d 56, 65-66, 904 P.2d 722 (1995) (citing In re Anderson, 112 Wn.2d 546, 548, 772 P.2d 510, cert. denied, 493 U.S. 1004 (1989)).
[25] *fn5 Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995) (Supreme Court redefined the circumstances under which a state may create a liberty interest. The state will be held to create a constitutional liberty interest if the state law affirmatively creates an interest that imposes "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.").
[26] *fn6 State v. Ross, 129 Wn.2d 279, 285, 916 P.2d 405 (1996).
[27] *fn7 See RCW 9.94A.120(9)(b).
[28] *fn8 Although not at issue in this case, for sex offenders who committed their crimes on or after June 6, 1996, the period is now three years.
[1] Washington Court of Appeals
[2] No. 41843-2-I
[3] 97 Wash.App. 598, 985 P.2d 944, 1999
[4] August 16, 1999
[5] IN RE THE PERSONAL RESTRAINT PETITION OF: MATTHEW S. CROWDER, PETITIONER.
[6] Counsel: Counsel for Petitioner(s) Christopher Gibson Nielsen Broman & Assoc. Pllc 810 3rd Ave Ste 320 Seattle, WA 98104 Matthew S. Crowder (Appearing Pro Se) 5910 88th Street #9 Tacoma, WA 98499 Nielsen Broman & Associates Pllc 810 Third Avenue 320 Central Building Seattle, WA 98104 Counsel for Respondent(s) Donna H. Mullen Attorney General Office PO Box 40116 Olympia, WA 98504-0116
[7] The opinion of the court was delivered by: Grosse, J.
[8] Source of Appeal: Date first document (petition, etc) was filed in Court of Appeals: 12/18/1997
[9] Judges: Authored by C. Kenneth Grosse
[10] Concurring: Walter E. Webster Mary K. Becker
[11] -- Matthew Crowder has a limited liberty interest in early release into a community custody program but we do not agree with his assertion that the Washington State Department of Corrections (DOC) deprived him of this liberty interest by denying him 101 days of earned early release credits. The grant or denial of community custody placement upon the earning of early release credits requires minimal due process but, contrary to Crowder's claim, he was afforded due process in his attempts to find suitable community placement.
[12] On an Alford*fn1 plea, Crowder was convicted of two counts of third degree rape of a child. He was sentenced to two concurrent terms of 60 months' confinement. Crowder was eligible for placement in community custody*fn2 on October 24, 1997. However, he was not released into community custody until February 2, 1998, 101 days after his earned early release date for community custody. Before his release he filed this personal restraint petition and asserted that although he had been granted earned early release credits, they were being arbitrarily denied without due process.*fn3
[13] The State concedes that Crowder was eligible for transfer into community custody on October 24, 1997 due to earned early release credits. However, the State does not agree that Crowder was therefore entitled to release. The State maintains that due to Crowder's own noncompliance with sexual predator release factors or other DOC program factors, Crowder could not be released.
[14] The statutory right to earned early release credit creates a limited liberty interest requiring minimal due process.*fn4 Initially the State argues that Crowder no longer possesses a limited liberty interest after the U.S. Supreme Court decision in Sandin v. Conner.*fn5 While the argument may have some appeal and potential merit, the final determination of the effect of Sandin is left to our State Supreme Court.
[15] It is important to note that unlike other offenders in the Sentencing Reform Act of 1981 (SRA), offenders like Crowder, who are subject to statutory community custody or placement restrictions, are "excluded" from the program allowing general release based on earned early release credits. RCW 9.94A.150(2). Instead of general release, the Legislature specified that community placement offenders may only become eligible for transfer to community custody status. This transfer is "in lieu of" early release. Thus, the DOC is prohibited from a general release based on earned early release credits, but it has discretion to consider the offender for transfer to community custody.
[16] Community custody is the intense monitoring of an offender in the community for a period of at least one year after release or transfer from confinement. Although it has other purposes, community custody continues in the nature of punishment,*fn6 and is not equivalent to general release. This custody and placement begins upon completion of the term of confinement or at such time as the offender is transferred to community custody in lieu of earned early release awarded pursuant to RCW 9.94A.150(1) and (2).*fn7 As noted in RCW 9.94A.120(9)(b), for sex offenders who committed their offenses after July 1, 1990, but before June 6, 1996, the mandatory period of community placement is two years, or up to the period of earned early release credits awarded, whichever is longer.*fn8 The DOC followed its program, and Crowder was eventually released into community custody, albeit some 101 days after he could have been placed had the requisite prior approvals been in place.
[17] With DOC's assistance, Crowder was pre-approved for early release into a proper community custody placement before the possible release date. However, the day before the scheduled timely release, the "sponsor" or person with whom he was to share housing was charged with fourth degree assault and evicted from her apartment. Placement with this person would have been a violation of Crowder's sentence and the program rules. Crowder's early release was cancelled as being no longer acceptable. His contention that he was not given notice of the denial of this first approved placement has no merit considering the record before the court, which sets forth the placement efforts following the cancellation of his initial placement.
[18] The record shows that Crowder and DOC officials attempted to place him a number of times, but that for legitimate reasons, including Crowder's own withdrawal of a suggested placement plan and/or that the suggested placement would violate the terms of his sentence, successful earlier placement in community custody was prevented. Essentially, Crowder's argument is that it is solely the DOC's responsibility to place him into community custody, or give him a general release on his early release date. This contention is not borne out by the statutory scheme or the guidelines for the DOC program adopted in accord with that scheme.
[19] Crowder was not denied due process and his personal restraint petition is denied.
[20] WE CONCUR:
--------------------------------------------------------------------------------
Opinion Footnotes
--------------------------------------------------------------------------------
[21] *fn1 North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
[22] *fn2 Community custody and community placement, as defined by RCW 9.94A.030(4) and (5) and Policy Number 350.200 of the DOC, is that portion of an inmate's sentence of confinement granted in lieu of earned early release time in which the offender is subject to the conditions of community custody and/or post release supervision.
[23] *fn3 The State concedes this petition is not moot because continuing supervision in community custody continues as an affirmative restraint. RAP 16.4(b).
[24] *fn4 In re Personal Restraint Petition of Fogle, 128 Wn.2d 56, 65-66, 904 P.2d 722 (1995) (citing In re Anderson, 112 Wn.2d 546, 548, 772 P.2d 510, cert. denied, 493 U.S. 1004 (1989)).
[25] *fn5 Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995) (Supreme Court redefined the circumstances under which a state may create a liberty interest. The state will be held to create a constitutional liberty interest if the state law affirmatively creates an interest that imposes "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.").
[26] *fn6 State v. Ross, 129 Wn.2d 279, 285, 916 P.2d 405 (1996).
[27] *fn7 See RCW 9.94A.120(9)(b).
[28] *fn8 Although not at issue in this case, for sex offenders who committed their crimes on or after June 6, 1996, the period is now three years.