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Oregon Parole Board Incorrectly Prohibited Legal Assistant from Speaking at Parole Hearing

Last year, the Oregon Court of Appeals held that a prisoner was improperly compelled to choose between having his mother or a legal assistant speak on his behalf at a parole hearing.

Oregon state prisoner Richard Hartwell is serving a life sentence for a 1985 murder. During an August 4, 2010 exit interview hearing before the Oregon Board of Parole and Post-Prison Supervision (Board), Hartwell was accompanied by inmate legal assistant (ILA) David Atkinson. His mother also attended telephonically.

During the hearing, the Board Chair forced Hartwell, who had mental health problems, to choose whether Atkinson or his mother would speak on his behalf. Hartwell told the Board his mother wanted to speak but he needed Atkinson to speak as well.

“Well, sir, he cannot speak on your behalf,” said the Chair. “By Board rule, only one person can speak on your behalf as your supporter.” Hartwell ultimately elected to have his mother speak.

Throughout the hearing, Board members attempted to discuss various issues with Hartwell, but many of his “statements were non-responsive, incoherent, and highly tangential, although it is clear that the board as well as [the ILA] tried to redirect him at various points.”

Hartwell’s mother told the Board that he “needed ‘a lot of ... help’ and that he had had significant communication difficulties in the past.”

At the end of the hearing, Atkinson asked to speak but was not allowed to do so. The Board found that Hartwell suffered from a present severe emotional disturbance and postponed his parole release for eight years. In its order, the Board said he did not understand the factors that led to his criminality or his criminogenic needs, was unable to articulate any understanding of the risks and barriers that he would face if paroled, and had not made sufficient efforts to address criminal and psychological risk factors.

Hartwell challenged the Board’s decision to force him to choose between having his mother or the ILA speak on his behalf, arguing that OAR 255-30-025 (1982) authorized both people to speak at the hearing. The Board disagreed, interpreting the rule as allowing him to have an ILA assist him during the hearing, as Atkinson did, but not to speak.

The Court of Appeals reversed, finding the Board’s interpretation of the rule implausible in light of the rule’s plain wording and context.

“A prisoner who is entitled to the ‘assistance’ of another person in an interview because the prisoner is incapable of presenting his position is entitled to assistance in speaking, because speaking is required in order to communicate the prisoner’s position,” the appellate court found. “It is difficult to understand how such assistance may be meaningfully rendered by a person who is prohibited from speaking on the prisoner’s behalf at the hearing.”

Applying OAR 255-30-025 (1982), the Court rejected the Board’s argument that its interpretation of the rule was “plausible,” and concluded that the board had erred as a matter of law in requiring Hartwell “to choose between having his mother make a statement on his behalf pursuant to subsection (2) and having his assistant speak pursuant to subsection (3).” The case was remanded for further proceedings. See: Hartwell v. Board of Parole, 272 Or. App. 332, 356 P.3d 86 (Or. Ct. App. 2015). 

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Related legal case

Hartwell v. Board of Parole