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Oregon Transitional Leave Violations Require Morrissey Due Process Protections

by Mark Wilson

In a case of first-impression, a fed­eral district court held that Oregon prisoners have a protected liberty interest in transitional leave that may not be revoked without procedural protections required by Morrissey v. Brewer, 408 U.S. 471 (1972). 

Oregon created an Alternative Incarceration Program (AIP) that allows some prisoners to participate in programs that reduce their sentences. The Oregon Department of Corrections (ODOC) also created a Short Term Transitional Leave (STTL) program that allows release to the community up to 90 days before a prisoner’s established release date. 

John Thomas Bristol was sentenced to 35 months in prison with a 36-month post-prison supervision (PPS) term on a 2014 drug conviction. ODOC officials approved him for AIP, and moved him to the AIP Substance Abuse Treatment Program on October 28, 2015. 

After completing the first component of the program, the ODOC approved Bristol for STTL to begin on June 29, 2016 and continue until September 27, 2016, when his PPS term would start. In accordance with STTL guidelines, Bristol was released under the supervision of Multnomah County Community Corrections, and moved into a private transitional home. 

In addition to STTL’s “General Conditions,” Bristol was subjected to several special conditions of release. One was to submit to the ODOC’s “structured sanctioning process as described in DOC rule 58.” That rule specified prisoners may be subject to revocation of leave, returned to prison and subjected to other sanctions for violating any STTL conditions. The rules also allowed removal or suspension from the STTL program for administrative or disciplinary reasons. 

ODOC officials terminated Bristol’s transitional housing on August 11, 2016 because a routine urine screen tested positive for codeine. The ODOC granted his supervising officer’s request for a Transitional Leave Suspend and Detain Order, and recommended his removal from the STTL program. 

Bristol was arrested on the suspend-and-detain order and held in jail without a hearing for ten days. He was then returned to prison. 

On August 25, 2016, the ODOC issued Bristol a misconduct report. Prison officials denied his attorney’s request to attend the disciplinary hearing. Bristol’s requests to continue the hearing and to present hair follicle drug testing evidence to challenge the positive urine screen also were denied. 

Following the hearing, Bristol was found guilty of a transitional leave violation and disobedience of an order. The superintendent approved the hearing officer’s findings on September 9, 2016. 

After serving the remainder of his original prison term, Bristol was released to PPS on January 27, 2017. He then filed suit, arguing that his STTL was revoked without affording him any Morrissey due process protections. He sought declaratory and injunctive relief, as well as damages. The parties filed cross-motions for summary judgment. 

The district court first rejected the ODOC’s argument that “Bristol did not have a protected liberty interest in his STTL status and, as such, the procedural protections required by Morrissey do not apply.” The court ultimately found “that Bristol’s release conditions closely resemble those of the pre-parolee” in Young v. Harper, 520 U.S. 143 (1997). Accordingly, “the STTL program provided Bristol with sufficient freedom to confer a protected liberty interest requiring Morrissey’s procedural protections.” 

Finding it was undisputed that the ODOC “failed to provide Bristol with all of Morrissey’s procedural protections in connection with their revocation of his transitional leave,” the district court concluded that “their failure to do so violated Bristol’s right to due process guaranteed by the Fourteenth Amendment.” 

The court held that the defendants were immune from damages, however, because Bristol’s liberty interest in the STTL program was not clearly established at the time of the violation. 

“Although the facts of this case are closely aligned with those in Young,” the court wrote, “the early release program and state regulatory framework in Young were not so closely aligned as to deem the application of Morrissey clearly established.” 

The district court granted Bristol injunctive relief on November 27, 2018, ordering the ODOC to vacate his disciplinary order. Given that he had been released to PPS and was no longer subject to AIP or STTL, the district court found Bristol lacked standing for injunctive relief requiring prison officials to promulgate rules and procedures in accordance with Morrissey. The court also rejected Bristol’s request for declaratory relief, finding that it was barred by the Eleventh Amendment because it addressed only past violations rather than a continuing violation of his rights. 

On April 3, 2019, the district court awarded Bristol $71,340 in attorney’s fees plus $1,285.37 in costs. See: Bristol v. Peters, U.S.D.C. (D. Ore.), Case No. 3:17-cv-00788-SB. 

Related legal case

Bristol v. Peters