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Grimm v. Board of Parole and Post-Prison Supervision

Court of Appeals of Oregon

September 25, 2013

Jason J. GRIMM, Petitioner,
v.
BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.

Argued and Submitted Sept. 27, 2012.

Page 737

Jonah Morningstar, Deputy Public Defender, argued the cause for petitioner. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Jeremy C. Rice, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

Before WOLLHEIM, Presiding Judge, and NAKAMOTO, Judge, and EDMONDS, Senior Judge.

WOLLHEIM, J.

[258 Or.App. 596] Petitioner, who is serving a dangerous offender sentence after being convicted of arson and other crimes in 2000, seeks judicial review of an order of the Board of Parole and Post-Prison Supervision (the board), arguing that the board erred in deferring his parole consideration date.[1] In particular, he asserts that the board erred in concluding that he has a condition predisposing him to the commission of crime to such a degree as to render him a danger to the health or safety of the community, and that the condition that made him dangerous is not in remission and that he remains a danger. See generally ORS 144.228(1)(b)(A) (at parole consideration hearing for dangerous offenders, the board may set a release date if it finds the petitioner no longer dangerous or that he remains dangerous but can be adequately controlled in the community); ORS 144.226(2) (examining psychiatrist or psychologist shall make a report to the board as to whether the petitioner has a " mental or emotional disturbance, condition or disorder predisposing the person to the commission of any crime to a degree rendering the examined person a danger to the health or safety of others" ). For the reasons set forth below, we affirm the board's order.

We begin with a brief synopsis of the material that was before the board. Petitioner's current convictions arose out of a series of fires he set in 2000. Between 1992 and 2000, petitioner had numerous juvenile adjudications and convictions for fire-related crimes, as well as theft crimes, many of which resulted in probationary sentences. During those years, he was found in violation of his probation on numerous occasions. Over the course of his involvement with the juvenile and adult corrections systems, petitioner has been diagnosed with a number of conditions, including pyromania,[2]

Page 738

attention deficit hyperactivity disorder, borderline intellectual functioning, a conduct disorder (as a juvenile), and a personality disorder (as an adult). He was imprisoned on the present charges in 2000, and released on post-prison [258 Or.App. 597] supervision (PPS) in 2007. He violated the conditions of his PPS and was returned to prison in 2008. Between his incarceration in 2000 and his release in 2007, petitioner received more than a dozen disciplinary sanctions for various acts of misconduct in prison, including disobedience, possession of contraband, assault, disrespect, and fraud. After his reincarceration in 2008, he was disciplined for disobedience and providing false information to the board.

Petitioner has received numerous psychological evaluations over the years, the most recent of which were done in August 2008, after his PPS revocation, and in October 2009, shortly before the hearing in the present proceeding. The psychologist who prepared the 2008 evaluation concluded that petitioner had a severe antisocial personality disorder and was not amenable to community-based supervision. The 2009 evaluation, which is the primary focus of petitioner's challenge in the present case, indicated that the psychologist who prepared the evaluation, reviewed petitioner's records, conducted a clinical interview of petitioner, and administered several tests, including one designed to measure the risk of violence on which petitioner scored in the " moderate" range for risk of future violent behaviors. Petitioner was diagnosed with an antisocial personality disorder and a history of attention deficit hyperactivity disorder. The psychologist concluded that, in light of the material in the record, the test results, and petitioner's responses during the clinical interview, petitioner " makes marked use of the defensive strategies of minimization, rationalization, and denial." He further concluded that the test results indicated cognitive difficulties and lack of insight. He concluded, " As a result of the aforesaid, I can only conclude, in my clinical judgment, that [petitioner] would remain a danger to the community if he were to be released at this time. I consider his prognosis to be very guarded."

In its order deferring petitioner's parole consideration, the board referred to the most recent psychological report and concluded that petitioner had " a mental or emotional disturbance, deficiency, condition or disorder predisposing [petitioner] to the commission of any crime to a degree rendering the [petitioner] a danger to the health or safety of [258 Or.App. 598] others; therefore, the condition which made [petitioner] dangerous is not in remission and [petitioner] does continue to remain a danger." (Capitalization omitted.)

Petitioner makes numerous arguments and sub arguments in his assignment of error, three of which we discuss below. We reject petitioner's remaining arguments without discussion. We briefly turn to petitioner's argument that deferring parole consideration based on a disability violates his rights under the Americans with Disabilities Act (ADA), 42 USC sections 12101 to 12213, and ORS 659A.142(5)(a), both of which make it unlawful for government programs to discriminate against a person on the basis of disability.[3] In the present proceeding, the board rejected petitioner's contentions, indicating that its " deferral of [petitioner's] parole consideration date was based on [his] dangerousness, not on [his] condition or disorder." That reasoning is consistent with our conclusion in McCline v. Board of Parole, 205 Or.App. 144, 148, 133 P.3d 349, rev. den., 342 Or. 46, 148 P.3d 915 (2006), that the board's deferral of parole release based on a finding that an inmate had a severe emotional disturbance and that he posed a threat to the health or safety of the community did not violate the Rehabilitation Act of 1973, because it was based on both his " severe emotional disturbance and his dangerousness." (Emphasis in original.) Petitioner points to

Page 739

nothing in either the ADA, ORS 659A.142, or case law interpreting those statutes, that would suggest that the board is obliged to release a dangerous inmate into the community simply because the ...


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