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Oregon Prisoner’s Parole Deferral Based on “Dangerous Offender” Statute Reversed

On August 9, 2023, the Oregon Court of Appeals reversed a decision by the state Board of Parole and Post-­Prison Supervision (BPPS) deferring parole consideration for Gerald O. Person.

Sentenced as a “dangerous offender” for crimes committed in the late 1980s, Person was up for parole in 2020 when BPPS delayed his application.

The Board said that the condition which the trial court originally determined made Person dangerous—that he suffered from “a severe personality disorder indicating a propensity toward dangerous criminal activity,” per ORS 161.725 (1987)—was still present and not in remission; so relying on ORS 144.228 (1987), it deferred Person’s parole consideration for 24 months.

He appealed, challenging the BPPS finding that he had a “mental or emotional disturbance, deficiency, condition, or disorder” predisposing him to certain crimes, which “therefore” meant he was still a dangerous offender. The appellate court agreed that that the former finding did not adequately support the latter conclusion—in other words, that though Person may still be predisposed to criminal behavior, that didn’t necessarily mean predisposition to dangerous crimes.

The Court first provided a detailed summary of the statutory framework for the dangerous offender statute and related caselaw, going back to a 1986 holding by the state Supreme Court that the dangerous offender law required a finding by the trial court that the defendant was “mentally abnormal” and had a propensity for “dangerous criminal activity.” See: State v. Huntley, 302 Ore. 418 (1986).

In Bell v. Board of Parole, 238 Ore.App. 711 (2017), review denied, the Court of Appeals extended that analysis to BPPS decisions when consideringdangerous offenders for parole and determining whether they still had a propensity for dangerouscriminal activity. Such decisions must be based on substantial evidence, though the offender’smental or emotional condition does not have to be the same as “the specific symptoms or traitspresent at the time of sentencing.”

With respect to Person, BPPS found that he had a condition that predisposed him “to the commission of any crime to the degree rendering [him] a danger to the health or safety of others,” and that this was not in remission. That decision, the Court held, lacked substantial reasoning. While BPPS determined Person’s condition predisposed him to certain unspecified crimes, that did not explain how it concluded that he still had a propensity for dangerous criminal activity. In short, BPPS’s finding did not support its legal conclusion as required by ORS 144.228 (1987).

The case was remanded with instructions for BPPS “to craft an order that demonstrates substantial reason under the applicable standard”—meaning BPPS will likely change the wording of its order deferring Person’s parole without changing its decision. Judge Josephine H. Mooney dissented, arguing that BPPS had relied on sufficient reasons and evidence to defer Person’s parole for two years; despite its decision “not [being] artfully written,” she opined it was “basically adequate.” Person was represented by attorneys with the Office of Public Defense Services. See: Person v. Bd. of Parole & Post-­Prison Supervision, 327 Or. App. 332 (2023).  

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Related legal case

Person v. Bd. of Parole & Post-­Prison Supervision