Oregon Parole Board: “Don’t Have to Explain Nothing to Nobody”

For at least the fifth time, a state court has ordered the Oregon Board of Parole and Post-Prison Supervision (Board) to provide more than boilerplate reasons for its decisions. There is little reason to believe, however, that the Board has any intention of complying.

Oregon law requires the Board to “state in writing the detailed bases of its decisions.” The Board is exempt, however, from a statutory requirement to make findings of fact and conclusions of law.

The Oregon Court of Appeals reversed a Board decision in 1997, holding that despite the statutory exemption, the Board was required to “make findings of fact and provide an explanation as to why its findings lead to the conclusions that it reaches.” See: Martin v. Board of Parole, 147 Ore. App. 37, 934 P.2d 626 (Or. Ct. App. 1997). The Oregon Supreme Court affirmed, holding that the Board must provide “some kind of an explanation connecting the facts of the case (which would include the facts found, if any) and the result reached.” See: Martin v. Board of Parole, 327 Ore. 147, 957 P.2d 1210 (Or. 1998). This is commonly referred to as “the substantial-reason requirement.”

In 1999, the Board asked the Oregon legislature to overrule Martin. The proposed law change expressly relieved the Board of a duty to “explain how [its] order is supported by the facts and the evidence in the record.”

The Oregon judiciary, however, did not appreciate such overt disrespect for its authority. James Nass, appellate legal counsel for the Oregon Supreme Court and Court of Appeals, opposed the Board’s proposed legislation, SB 401.

As the bill advanced through the legislature, the judiciary’s opposition grew “more vociferous.” Nass called the bill “bad public policy” and warned it “will decrease the quality of judicial review” and “increase the work load of the appellate courts.”

He pulled no punches. “There is nothing subtle about this bill,” he said. “The bill starkly presents this policy issue: Should any governmental agency be exempt from explaining how its decisions are supported by the evidence in the record? Apparently these Boards would say yes. Under SB 401, their motto would be: ‘We’re the Board. We don’t have to explain nothing to nobody.’”

Nass continued: “According to these Boards, they shouldn’t have to explain their decisions to inmates whose fates lie in their hands. No problem there, of course, because few people have sympathy for criminals. But, this bill also means that the Boards would not have to explain their decisions to victims or victims’ families. They would not have to explain their decisions to the media. They wouldn’t have to explain their decisions to any legislator who might be interested in a particular case. And, they wouldn’t have to explain their decisions to the courts to aid in judicial review of those decisions.”

In the end, a compromise was struck between Oregon’s Attorney General, the Chief Justice of the Oregon Supreme Court and the judge who authored the Martin decision. The proposed bill was gutted and replaced with a single sentence that was added to ORS 144.335(3): “The order of the board need not be in any special form, and the order is sufficient for purposes of judicial review if it appears that the board acted within the scope of the board’s authority.”

Apparently believing the legislation allowed it to conduct business as usual, the Board continued to offer only boilerplate reasons for its parole decisions.

On December 28, 2007, the Oregon Supreme Court again reminded the Board of its responsibility under Martin – i.e., to set forth in its orders the reasoning that leads from the facts it has found to the conclusions it draws from those facts. See: Gordon v. Board of Parole, 343 Ore. 618, 175 P.3d 461 (Or. 2007).

Just fourteen days later, a trial court granted a victim’s request to vacate a decision by the Board to release the man imprisoned for raping her. Relying in part on Gordon, the court held that the Board’s “bare conclusions are simply not enough... the Board’s findings, reasoning, and conclusions must demonstrate that it acted in a rational, fair, and principled manner, and not on an arbitrary or ad hoc basis.”

Steven R. Powers, then Board Chairman and now Deputy General Counsel to Oregon Governor John Kitzhaber, defended the Board’s standard language in its decisions, claiming that detailed findings could give prisoners more ammunition for appeals.

Bronson James, the public defender who represented the prisoner whose release was vacated following a legal challenge by the rape victim, said that offenders and their attorneys shared the objections voiced by the victim and her lawyer.

“We have been complaining for decades with nobody taking us seriously,” James said in August 2008.

He argued then that the Board should “issue detailed rulings that explain why it denied parole rather than the typical two-sentence decision that includes nothing but boilerplate reasoning.”

The Board’s response, however, indicated that it still took the position that it didn’t “have to explain nothing to nobody.”

On November 18, 2009, the Oregon Court of Appeals again reversed a parole decision, finding the Board had violated the substantial-reason requirement. Citing the same boilerplate language that was found in every Board order, the appellate court said, “the board has provided only a conclusion: ‘Based on the doctor’s report and diagnosis, coupled with all the information that the board is considering,’ it is reasonably probable that petitioner would violate his parole or a law.... That is an announcement, not an explanation. It gives us nothing to judicially review. Our duty is to evaluate the board’s logic, not to supply it.” See: Castro v. Board of Parole, 232 Ore. App. 75, 220 P.3d 772 (Or. Ct. App. 2009).

Of course, nothing changed – the Board did not make even the slightest variation in its standard language.

On September 5, 2013, the Court of Appeals once again held that the Board is required “to provide an inmate with some explanation of the rationale for concluding that” release on parole should be postponed.

Rejecting the Board’s argument that the 1999 “Martin amendment” exempts it from the substantial-reason requirement, the appellate court concluded that the Board’s “reading of the statute runs counter to its text, context, and legislative history.”

Following Martin, Gordon and Castro, the Court of Appeals wrote “that the board used the same boilerplate wording rejected in Castro,” and held “it is apparent that the board’s order references the contents of the entire record, as opposed to particular parts of the record that were pivotal.” As such, “the order ... offers a mere conclusion and does not permit us ‘to determine if the board’s findings, reasoning, and conclusions demonstrate that it acted in a rational, fair, and principled manner in deciding to defer petitioner’s parole release.’” One appellate judge dissented from the majority opinion. See: Jenkins v. Board of Parole, 258 Ore. App. 430, 309 P.3d 1115 (Or. Ct. App. 2013).

Given that the Board has repeatedly ignored two state Supreme Court decisions, a previous Court of Appeals decision and a trial court order on this very issue, there is little reason to believe that yet another judicial ruling is going to alter its behavior.

Apparently the rule of law and the authority of the courts mean little when you’re the Board and believe you “don’t have to explain nothing to nobody.”

However, the Oregon Supreme Court, which granted review in Jenkins on January 30, 2014, may have the final word regarding the Board’s reasoning for its decisions.

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