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Washington Supreme Court Holds No Liberty Interest in Sex Offender Release to Community Custody

The Washington Department of Corrections (DOC) may lawfully deny sexually violent predators early release to the community, the Supreme Court of Washington decided August 20, 2009. In so holding, the court concluded that RCW 9.94A.728(2) does not create a protected liberty interest in release to “community custody,” AKA parole.

Mark Mattson was convicted of a sex offense and sentenced to 120 months imprisonment. Nearing the end of his sentence, Mattson submitted several release plans to the DOC requesting transfer to community custody. The DOC denied Mattson’s request each time, citing DOC policy directive 350.200, which categorically prohibits the transfer of sexually violent predators to community custody.

Mattson filed a personal restraint petition which the Court of Appeals, Division One, granted, holding that Mattson had a “protected liberty interest in early release to community custody.” Accordingly, the court directed the DOC to consider Mattson’s release plan and decide whether he should be transferred to community custody.

The Supreme Court of Washington granted review in the case and reversed. For a state law to create a protected liberty interest, the law must “prescribe a given outcome for a specific set of facts,” the court wrote. RCW 9.94A.728(2), which authorizes the DOC to transfer offenders to community custody, is not such a law, the court concluded.

Under RCW 9.94A.728(2), the DOC retains discretion to decide whether persons convicted of a sex offense should be released to community custody. The statute says that sex offenders “may become eligible” and that the DOC “may deny transfer.” Because the statute is written in permissive terms, “the statute does not create an expectation of release and cannot establish a liberty interest,” the court held.

Furthermore, the court rejected Mattson’s alternative argument that the DOC’s categorical ban was not a “legitimate” exercise of its discretion. The DOC’s conclusion that sexually violent predators are more “likely to engage in predatory acts of sexual violence if not confined in a secure facility,” the court wrote, is a “legitimate reason” for the ban. See: In re Mattson, 166 Wash.2d 730, 214 P.3d 141 (Wa. S.Ct. 2009).

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Related legal case

In re Mattson