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Oregon Parole Board Must Define Applicable Statutory Terms

The Oregon Court of Appeals has held that a prisoner was improperly denied an early parole consideration hearing when the Board of Parole and Post-Prison Supervision (Board) failed to define “reasonable cause” before applying that statutory term.

In 1986, George W. Nulph was convicted of several crimes and the trial court found he suffered from a severe personality disorder that rendered him a danger to the community. As a result, the court imposed enhanced “Dangerous Offender” sentences for each of Nulph’s convictions.

The Board established a February 19, 2017 parole consideration (PC) date for Nulph. Under Oregon law, the Board holds a “PC hearing” approximately six months before the PC date to determine whether it should be affirmed or deferred. If the Board finds the condition which initially made the prisoner dangerous is absent or in remission, the prisoner is entitled to release on the PC date. Otherwise the Board defers parole consideration for two years.

A prisoner may request an early PC hearing under ORS 144.228(1)(c). To obtain such a hearing, the prisoner must show “there is reasonable cause to believe that the dangerous condition is in remission.” If that showing is made, the Board must conduct an early PC hearing.

Nulph requested an early PC hearing in 2013, offering evidence concerning the tendency of antisocial personality disorder to diminish with age, documentation showing he did not require mental health treatment, copies of risk assessments conducted by prison officials indicating he was a low risk to reoffend if released, and information about his good prison conduct. He argued that “reasonable cause” was a low threshold that his evidence satisfied.

The Board denied Nulph’s request, finding “that the information submitted by inmate does not provide reasonable cause to believe that the condition that made inmate dangerous is in remission (ORS 144.228(1)(c)(1984)), or that necessary supervision and treatment are available in the community (ORS 144.228(1)(c)(1993)).” The Board did not define “reasonable cause.”

The Court of Appeals vacated the Board’s order, explaining that when the legislature has not defined an applicable statutory term, the Board is required to define that term either by administrative rule or in the order applying the term.

“A court cannot review an agency’s application of a delegative term if the agency has not first exercised the discretion granted to it by the legislature to define that term,” the appellate court explained. “If the agency failed to exercise its discretion, the court must remand for the agency to do so.”

Ultimately, the Court of Appeals held that the Board’s failure to interpret and apply the term “reasonable cause” was an erroneous interpretation of a provision of law, requiring remand for the Board to interpret that term in Nulph’s case. See: Nulph v. Board of Parole, 279 Or App 652, 381 P.3d 948 (Or. Ct. App. 2016), petition for review dismissed. 

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Related legal case

Nulph v. Board of Parole