Filed: December 9, 1999
EDWARD CHARLES BOLLINGER,
Respondent on Review,
v.
BOARD OF PAROLE AND
POST-PRISON SUPERVISION,
Petitioner on Review.
On review from the Court of Appeals.*
Argued and submitted June 4, 1999.
Christine Chute, Assistant Attorney General, Salem, argued the cause for petitioner on review. With her on the brief on the merits were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General. With her on the reply brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.
Andy Simrin, Deputy Public Defender, Salem, argued the cause for respondent on review. With him on the brief was David E. Groom, Public Defender.
Before Carson, Chief Justice, and Gillette, Van Hoomissen, and Durham, Justices.**
GILLETTE, J.
The decision of the Court of Appeals is affirmed. The order of the Board of Parole and Post-Prison Supervision is reversed, and the case is remanded to the Board for further proceedings.
*Appeal from Board of Parole and Post-Prison Supervision.
142 Or App 81, 920 P2d 1111 (1996).
**Kulongoski, Leeson, and Riggs, JJ., did not participate in the consideration or decision of this case.
GILLETTE, J.
This case arises out of a challenge to an order of the
Board of Parole and Post-Prison Supervision (the Board) that
advanced an inmate's scheduled parole release date. The order
effectively prevented the inmate's discharge from prison under
the statutory "good-time" scheme. The inmate objected to the
order and sought judicial review. The Court of Appeals reversed,
holding that the order violated the constitutional prohibition
against ex post facto laws because it applied a statute that
denies to prison inmates any right to refuse parole to an inmate
who committed offenses before enactment of that statute.(1)
Bollinger v. Board of Parole, 142 Or App 81, 87-88, 920 P2d 111
(1996).
The Board petitioned this court for review of that
decision. We accepted review to consider the Board's argument
that it always had authority to order an unwilling inmate onto
parole and that, consequently, the Board's application of ORS
144.245(3) to the inmate could have no ex post facto effect. We
hold that, until the enactment of ORS 144.245(3), a prison inmate
could refuse parole, and the Board had no authority to override
that refusal. We therefore affirm the decision of the Court of
Appeals.
The following facts are not in dispute. The inmate was
convicted of first-degree sodomy in October 1985 for conduct that
occurred between November 1984 and February 1985. He received a
15-year indeterminate sentence with a five-year minimum term of
incarceration. Shortly after he entered prison, the Board set
his parole release date at October 26, 1990. Later, the Board
deferred that release date by 12 months, based on a finding that
the inmate suffered from an extreme emotional disturbance. In
June 1991, when the Board again considered the inmate's case, it
refused to set a parole date, noting that he had refused to
participate in a psychological evaluation. Later in the same
order, however, the Board directed that the inmate be released on
parole two days before his good-time date. At the time of the
order, the Department of Corrections (the Department) had
assigned the inmate a tentative good-time date of October 27,
1995, based on the requirements of ORS 421.120(1).
On several occasions after the issuance of the June
1991 order, the Department informed the Board that the inmate's
projected good-time date had advanced because he had earned
additional meritorious good time. On each such occasion, the
Board issued an order advancing the inmate's release date to two
days before the updated good-time date -- ultimately, to June 27,
1994. With its last release-date order, the Board indicated that
the inmate would remain on supervised parole status until the
expiration of his sentence.
The inmate requested administrative review of the last
release-date order, arguing that the order effectively nullified
his accumulated good time and extended his period of supervision
beyond that which was in effect when he committed his crime.
When the Board denied relief, the inmate sought review (on March
31, 1994) in the Court of Appeals under ORS 144.335. After the
case was argued but before that court issued a decision, the
Board withdrew the challenged order and issued an amended order.
The amended order differed from the original order in two
significant respects: (1) it provided for a minimum supervision
period of only 12 months; and (2) it designated the inmate as a
predatory sex offender under former ORS 181.507 (1993).(2) The
inmate again sought administrative review. When the Board again
denied relief, he filed an amended petition for judicial review
under ORS 144.335,(3) on July 26, 1995, challenging both the
imposition of parole and the predatory sex offender designation.
The Court of Appeals reversed. That court first
considered, and then rejected, the inmate's contention that the
Board lacked statutory authority to advance a parole date for the
purpose of avoiding a good-time release. However, it concluded
that the inmate had a right to refuse parole under the statutes
that were in effect at the time of his crimes and, therefore,
that applying ORS 144.245(3) to the inmate to prevent his
discharge on his good-time date increased the total time that the
state has supervisory control over him, thereby violating the
constitutional prohibition against ex post facto laws.
Bollinger, 142 Or App at 87-88. The Board seeks our review of
that decision.
The Board argues that this case presents no ex post
facto problem because the inmate had no more right to refuse
parole at the time of his crimes than he did after ORS 144.245(3)
was enacted. In so arguing, the Board acknowledges that no
statute expressly precluded an inmate from refusing parole before
the enactment of ORS 144.245(3) in 1985. However, the Board
contends that the pre-1985 statutes nevertheless establish that
it could order an inmate on parole without regard to his or her
wishes.
Ultimately, the Board's petition poses the following
question: Before the enactment of ORS 144.245(3), was a prison
inmate entitled to reject the Board's decision to release him or
her on parole? That is a question of statutory construction, to
be analyzed according to the framework set out in PGE v. Bureau
of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993). PGE
instructs us that, in attempting to determine what the
legislature intended, we first must consider text and context.
Id. at 610-11. We thus begin by examining the text and context
of the parole statutes that existed at the time of the inmate's
crimes, to see if the legislature can be said to have addressed
the question before us.
The Board suggests that ORS 144.270(4) is dispositive of
the question. That statute provides, in part:
"(1) The State Board of Parole and Post-Prison
Supervision, in releasing a person on parole, shall
specify in writing the conditions of the parole and a
copy of such conditions shall be given to the person
paroled.
"(2) The board shall determine, and may at any
time modify, the conditions of parole, which may
include, among other conditions, that the parolee
shall:
"(a) Accept the parole granted subject to all
terms and conditions specified by the board."
(Emphasis added.) The Board contends that the emphasized wording
indicates that inmates were required to accept whatever parole
the Board granted.
The Board appears to acknowledge the existence of an
alternative construction -- that the mandatory wording pertains
to the inmate's acceptance of the terms and conditions that the
Board might attach to a grant of parole, i.e., inmates must
accept such conditions as a package, rather than attempting to
pick and choose from among them. However, the Board contends
that, properly construed, the statute authorizes the Board to
require acceptance of the parole itself. The Board argues that
the correctness of that latter construction becomes evident when
the provision is read in the context of Oregon Laws 1973, chapter
694, the larger statute in which the legislature originally
enacted ORS 144.270. In that regard, the Board notes that
sections four, five, and six of that 1973 enactment set out
various factors that the Board was permitted or required to
consider in making parole decisions. Or Laws 1973, ch 694,
§§ 4-6. Those factors, the Board notes, relate to issues such as
public safety, rehabilitation, and deterrence, and do not accord
any weight to the preferences of inmates.
We agree with the inmate, however, that the Board's
suggested reading of the statute is highly unlikely. By its
express terms, ORS 144.270(2) is directed to the determination
and modification of conditions of parole. It permits the Board
to condition parole upon the inmate's acceptance of the entire
package of the Board's conditions. Even if an inmate might be
said to have failed to satisfy that precondition by refusing to
accept the entire package, that is still a far cry from
expressing an intent that the Board be allowed to compel parole
in the first instance.
Neither is the Board's construction of ORS 144.270(2)
aided by the various related sections of the 1973 enactment upon
which it relies. Those provisions do little to shore up the
Board's theory. In particular, there is nothing inherently
inconsistent in a scheme that requires the Board to ignore inmate
preferences in its own parole calculations but still permits the
inmate to refuse whatever terms of parole that the Board might
choose to offer.
We return, then, to our examination of the text and
context of the parole statutes for evidence of the legislature's
intent with respect to the question at hand. In our view, there
is one statute, ORS 144.050 (1983), that bears strongly on that
question. That statute grants to the Board, in general terms,
the power to parole prison inmates:
"Subject to applicable laws, the State Board of
Parole may authorize any inmate, who is committed to
the legal and physical custody of the Corrections
Division to go upon parole subject to being arrested
and detained under written order of the board or as
provided in ORS 144.350."
It is significant, we think, that the legislature
framed the Board's power to grant parole in terms of
authoriz[ing] an[] inmate * * * to go upon parole." In ordinary
parlance, "authorizing" an act is something quite different from
commanding or ordering it. "Authorize" means to empower,
sanction, or formally endow another with a right to act.(5) The
word connotes choice on the part of the person authorized -- to
act or refrain from acting upon the authority granted. Thus, in
granting to the Board the power to authorize inmates to go out
upon parole, ORS 144.050 (1983) appears to contemplate that
inmates will take an active role in determining whether that will
occur. Although the statute charges the Board with determining
whether to permit an inmate to go out upon parole, the inmate is
left to act or refrain from acting upon that permission.(6)
The foregoing understanding of ORS 144.050 is
confirmed, in our view, by the use of the term "parole" in ORS
144.050 and its antecedents, as well as other statutes that
define the Board's obligations and authority. Historically, a
parole was a promise, especially a promise to fulfill certain
conditions in exchange for release from captivity or imprisonment.
Although, now, "parole" also is used to refer to
the release from imprisonment itself,(7) its promissory
connotations still exist.(8) Thus, for instance, almost all the
authorities that have considered the question have concluded that
a parole requires the inmate's acceptance, including his or her
affirmative promise to honor its conditions. See, e.g., Ex Parte
Peterson, 14 Cal 2d 82, 92 P2d 890 (1939) (illustrating
proposition).(9)
The upshot of the foregoing discussion is that, when
the inmate committed his crimes, ORS 144.050 provided, as it does
now, that the Board "may authorize any inmate * * * to go out
upon parole." That wording expressed a legislative intent that
the Board would determine whether, when, and on what conditions
an inmate may go out upon parole and that inmates would have a
choice whether to accept and act upon the Board's decision. The
1985 Legislature expressed an entirely different intent when it
adopted ORS 144.245(3), to the effect that inmates cannot reject
parole. But, until the legislature adopted that statute, the law
permitted an inmate to refuse parole and did not empower the
Board to command parole in the face of such a refusal.
The Board suggests that a contrary intent may be
derived from a more holistic analysis of the parole statutes that
were in effect at the time of the inmate's crimes. In that
regard, the Board points to persistent themes in those statutes
-- the Board's broad authority to decide the fate of inmates,
i.e., to set, ORS 144.120 (1983), to advance, ORS 144.122, to
defer, ORS 144.125(3) (1983), and to refuse to set, ORS
144.120(4) (1983), release dates and to set the conditions of
parole; its obligation to use its powers to protect the public
and deter crime; and its more specific obligation to insure that
all inmates spend at least six months on supervised parole after
their release from prison, former ORS 144.310(1) and (2) (1983).
The Board contends that, in view of those strong and persistent
themes, it is impossible to believe that the legislature intended
that inmates be permitted to nullify the Board's decision to
grant parole by refusing to accept that parole.
Assuming that the foregoing statutes are relevant
context for construing ORS 144.050, we are not persuaded that
they assist the Board. All are about what the Board may (or
should) do in particular circumstances. None negates the
apparent thrust of ORS 144.050, as we have discussed it above.
Moreover, to the extent that the Board is suggesting that that
apparent meaning is too irrational to reflect the legislature's
true intent, we disagree. One might argue about the merits of
such a policy choice, but there is nothing inherently irrational
in endowing the Board with broad authority to determine whether,
when, and under what conditions an inmate may be paroled, while
at the same time requiring voluntary acceptance of the parole and
its conditions by an inmate.
Finally, the Board contends that, even if it could not
require the inmate to go upon parole against his wishes under the
statutes in effect at the time of his crime, it could have
required him to serve the equivalent of a six-month period of
parole, to begin upon his release on his good-time date, without
offending ex post facto principles. In so arguing, the Board
relies on former ORS 421.120(3) (1983), which appeared as part of
the good-time statute and provided:
"Except when granted by the State Board of Parole
under ORS 144.310, a discharge of an inmate from a
sentence imposed after July 21, 1981, upon a date
determined under this section [i.e., a good-time date],
shall be upon the condition that the inmate be subject
to a period of supervision in the same manner as a
paroled inmate, except that the maximum period of
supervision shall be six months and upon violation of
the terms imposed upon the conditional discharge the
maximum period of reincarceration shall be 90 days.
However, the period of supervision, reincarceration or
both shall in no case cause the length of the inmate's
term to exceed the maximum term imposed by the court."
We agree that former ORS 421.120(3) (1983) was in
effect at the time of the inmate's crimes and that it permitted
(perhaps even required) the Board to impose a limited period of
parole-like supervision on inmates who remained in prison until
their good-time dates.(10) We also agree that, while that statute
was in effect, the Board could order a maximum of six months of
supervision without regard to any decision by an inmate to refuse
parole, without offending the prohibition on ex post facto
laws.(11) That being said, we do not see how the existence of
former ORS 421.120(3) (1983) assists the Board in this case.
That statute might have given the Board the power to impose six
months of supervision on the inmate against his wishes, but it
could not justify the 12-month period of supervision that the
Board imposed in the order at issue.
We conclude that, when the inmate in this case
committed his crimes, an inmate could refuse parole and remain in
prison in the hope of achieving unconditional discharge under the
good-time statute. The Court of Appeals was correct, therefore,
that ORS 144.245(3) represents a change in the law, denying to
prison inmates a right to refuse parole that they previously had
enjoyed.
The Court of Appeals concluded that: (1) ORS
144.245(3) withdrew a right to refuse parole that inmates
previously had enjoyed; and (2) application of that statute to
the inmate amounted to an ex post facto violation, because it
increased the total amount of time that the state would have
supervisory control over him. We agree with the first
proposition and have no occasion to inquire into the second.(12)
The decision of the Court of Appeals is affirmed. The
order of the Board of Parole and Post-Prison Supervision is
reversed, and the case is remanded to the Board for further
proceedings.
1. ORS 144.245(3) was adopted by the 1985 Legislature. Or
Laws 1985, ch 53, § 3. It provides: "In no case does a prisoner
have a right to refuse an order granting the prisoner release
upon parole."
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2. The predatory sex offender statute is now recodified at
ORS 181.585 et seq.
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3. ORS 144.335 was amended in 1995 to exempt from judicial
review "any decision relating to a release date." Neither party
has argued that that exemption applies retroactively to the order
at issue, which became final and appealable and, in fact, was
appealed, before the September 9, 1995, effective date of the
amendment.
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4. Because ORS 144.270 has not been amended in any way
that is relevant to the issue at hand since the time of the
inmate's crimes, we quote the current version of the statute.
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5. "Authorize" is defined in Webster's Third New Int'l Dictionary, 146-47 (unabridged ed 1993) as:
"1a: to endorse, empower, justify, or permit by or as if by some recognized or proper authority * * *: SANCTION * * * 4a: to endow with authority or effective legal power, warrant, or right: appoint, empower, or warrant regularly, legally, or officially * * * b: to grant or allot by proper authority."
The same dictionary distinguishes "authorize" from other similar terms by stating that "AUTHORIZE indicates endowing formally with a power or right to act, usu. with discretionary privileges." Id. at 147.
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6. It appears that the Board's power to parole always has been framed in similarly permissive terms. Before the adoption of the noted "authorize" wording in 1969, the statute provided:
"The state board of parole and probation shall have power to establish rules and regulations under which any prisoner * * * may be allowed to go upon parole outside the institution * * *."
Or Laws 1959, ch 101, § 1.
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7. For example, this court has defined parole, very briefly, as "a release from jail, prison or other confinement after actually serving part of the sentence." State v. Ludwig, 218 Or 483, 486, 344 P2d 764 (1959).
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8. For example, even now Webster's Third New Int'l Dictionary at 1644, defines "parole" as follows:
"1: WORD OF HONOR: plighted faith; esp: the promise of a prisoner of war upon his faith and honor to fulfill stated conditions (as to return to custody or not to bear arms against his captors) in consideration of special privileges, usu. release from captivity * * * 2. the state or period of freedom resulted from a parole * * * 4a: a conditional or revocable release of a prisoner serving an indeterminate or unexpired sentence in a penal or correctional institution -- compare PROBATION [:] b: a release under similar conditions of one detained or kept in custody * * * 5: the release of a defendant in a criminal case on his own recognizance or in the custody of his attorney during the period between indictment and trial * * *."
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9. Many of the cases discuss the word "parole" in terms of its historical antecedents and its essential similarity to a conditional pardon. The following discussion from Peterson is typical:
"The word 'parole' was originally a military term signifying the word of honor or promise of a prisoner of war that if he be released, he will comply with certain conditions, such as to refrain from bearing arms against his captors. As used in penology, the term has come to signify the release of a prisoner prior to expiration of his term of imprisonment conditioned upon his continuing good behavior during the remainder of the term. In its essential characteristics, therefore, a parole cannot be distinguished from a conditional pardon. Each constitutes a release of a convict upon fixed conditions before the expiration of his term of imprisonment and many courts have drawn upon this analogy to hold that a proffered parole must likewise be accepted to be effective."
14 Cal 2d at 85, 92 P2d at 891.
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10. Former ORS 421.120(3) (1983) was enacted in 1981. Or Laws 1981, ch 425, § 2.
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11. Former ORS 421.120(3) (1983) was repealed in 1985, at the same time and in the same statute that enacted ORS 144.245(3), prohibiting prisoners from refusing parole. Or Laws 1985, ch 53, §§ 1, 3. In view of that history, it is at least arguable that the earlier provision bears some logical relationship to ORS 144.245(3) i.e., that it represents an initial (but, later, rejected) legislative response to concerns about inmates refusing parole in favor of discharge under the good-time statute. If so, then it is notable that the legislature chose to attack the problem by requiring a brief period of supervision upon release on a good-time date, an approach that suggests an intent to leave intact the existing arrangement that allowed inmates to choose to remain in prison until their good- time dates.
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12. Normally, there would remain the question whether the Court of Appeals was correct in holding that application of ORS 144.245(3) to prevent the inmate's discharge under the good-time statute violates the constitutional prohibition against ex post facto laws. However, that is a question that the Board has not raised to this court and that it affirmatively conceded in its arguments to the Court of Appeals.
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