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Oregon Habeas Cognizable to Challenge Florida Confinement Under ICC

by Mark Wilson

The Oregon Court of Appeals held that prisoners incarcerated in other states under the Interstate Corrections Compact (ICC) may challenge the conditions of their confinement in Oregon habeas corpus actions against Oregon prison officials.

In 1979, the Oregon legislature enacted the ICC into Oregon law. Under Article IV, § 5, prisoners who are transferred to other states retain all rights that they would have had if incarcerated in Oregon. Under Section 8, the prisoner "also retains rights 'to participate in * * * any action or proceeding in which the inmate could have participated if confined in any appropriate institution of the sending state located within such state.'"

Oregon prisoner Jacob Henry Barrett has been transferred to several different states in recent years. See (PLN Sept 2014, p. 36). Most recently he was incarcerated in Florida under the ICC.

Florida's prison grooming policy prohibits beards and long hair. Oregon does not have a similar grooming policy. Barrett claims that while in Florida, he "has been forcibly shaved once a week or more 'under the threat of adverse administrative action, as well as physical abuse.'"

Barrett filed a petition for a writ of habeas corpus against the director of the Oregon Department of Corrections (ODOC), in an Oregon circuit court. Barrett claimed that he is a practitioner of a religion called Glefiosa, which requires that he "maintain a beard and a 'Celtic tonsure' hairstyle. The hairstyle involves shaving most of the head except for the back, where the hair is grown long." He alleged that Florida's grooming policy prohibits him from doing so, in violation of his right to the free exercise of his religion under the Oregon Constitution and the federal Religious Land Use and Institutionalized Persons Act.

The ODOC director moved to dismiss, arguing that Barrett could not bring an Oregon habeas corpus action to challenge his Florida conditions of confinement. She also alleged that "she was not a 'proper defendant' because she did not have physical custody of plaintiff, and because she was 'not responsible for the alleged actions of Florida.'" The trial court dismissed the action.

The Oregon Court of Appeals reversed. The court first examined whether "plaintiffs transfer to Florida deprived him of the right to be incarcerated under conditions that meet Oregon Constitutional standards." Given the unequivocal declaration of Article IV, Section 5 of the ICC, the court found that "the easy answer" to that question was no. "That means that, if the Oregon Constitution affords an Oregon inmate the right to certain conditions of confinement, then the inmate does not lose those rights by virtue of a transfer to a state that does not recognize the same rights," the court concluded. "To hold otherwise would, in effect, convert the ICC into a mechanism for subverting the requirements of our own constitution, enabling Oregon officials to transfer Oregon inmates out of state to avoid complying with the legal standards for confinement set by the Oregon Constitution."

In so holding, the court was unpersuaded by the director's reliance upon cases which hold that ICC prisoners are not subject to the rules and disciplinary authority of the sending state. "Those cases all stand for the same general proposition that the ICC does not obligate a receiving state to provide a transferred inmate the exact same treatment that the inmate would receive in the sending state and, that the ICC does not entitle a transferred inmate to the application of the sending state's institutional policies," the court noted. "However, the issue in this case is not whether the ICC required Floridato adhere to Oregon's policies or to comply with Oregon's constitutional standards; the issue is whether Plaintiff lost the right to be incarcerated under conditions that comply with Oregon constitutional standards, by virtue of his transfer to Florida. The cases cited by the director have no bearing on that point." Yet, ICC Art. IV, § 5, clearly does, providing that the prisoner does not lose those rights.

The court next followed Barrett v. Belleque, 344 Or 91, 176 P3d 1272 (2008)(Barrett I) ­the Oregon Supreme Court's decision allowing Barrett to challenge Oklahoma conditions of confinement in an Oregon habeas corpus action — in concluded that under the ICC Barrett may seek habeas corpus relief in Oregon to remedy his Florida confinement under conditions that violate Oregon constitutional standards. "Under Barrett, one of those legal rights that an Oregon inmate retains is the right to petition for a writ of habeas corpus in Oregon," the court held.

Finally, the court concluded that the ODOC director is a proper habeas corpus defendant. Under Oregon's statutes, the proper defendant is the "officer or person by whom the party is imprisoned or restrained."

"Plaintiff has sufficiently alleged facts showing that the director is 'the officer or person by whom' he is restrained," the court found. "Plaintiff has alleged that, although housed in Florida pursuant to the ICC, he remains in ODOC custody. He has further alleged that the director is the Oregon official 'responsible in every particular for the enforcement of the ICC.'"

The Director did not dispute that she has authority to remove Barrett from Florida. Rather, she argued that she was not a proper defendant because: "(1) she is not plaintiff's physical custodian; and (2) she does not control plaintiffs day-to-day conditions of confinement in Florida." The court was not persuaded by either argument.

Where a prisoner "is in the legal custody of Oregon, but in the physical custody of another state," the court found that "the officer or person by whom the party is imprisoned or restrained" necessarily "applies to more than one person: the plaintiff's legal custodian and the plaintiffs physical custodian."

Additionally, under both habeas corpus common law and Oregon statutes, "a defendant's lack of physical custody of a plaintiff does not defeat a petition for a writ of habeas corpus if the circumstances indicate that the defendant has legal or constructive custody of the plaintiff," the court held.

In concluding that "plaintiff properly directed the petition at the director," the Court noted that in Hundley v. Hobbs, 456 SW3d 755 (Ark 2015), the Arkansas Supreme Court recently relied heavily on Barrett I to reach the same conclusion concerning an Arkansas prisoner who was imprisoned in New Jersey.

The court also rejected the director's lack of personal involvement argument. "Plaintiff is seeking to be removed from confinement that is unconstitutional, either because the conditions are unconstitutional or because the confinement itself is unconstitutional," the court observed. "A person need not have personally participated in the alleged unconstitutional conditions or circumstances from which the plaintiff seeks to be relieved in order to have the necessary authority to comply with any writ of habeas corpus that might issue." See: Barrett v. Peters, 274 Or App 237, ___ P3d ___ (Or App 2015)(Barrett II).

Following that holding, the Court reversed the dismissal of another habeas corpus action Barrett filed, alleging that Florida officials were denying him "rehabilitative treatment," in violation of the United States and Oregon constitutions.

Barrett II "compels us to reach the same conclusion here," the court held. Therefore, it reversed and remanded for further proceedings. See: Barrett v. Peters, 274 Or App 251, P3d (Or App 2015).


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Related legal case

Barrett v. Peters