Smith v. Board of Parole

Neither due process nor Oregon's APA require parole consideration hearings under ORS 144.228 to allow subpoenas for witnesses at the hearing.

Petitioner is a “dangerous offender” prisoner who wanted to subpoena witnesses for the parole consideration hearing contemplated by ORS 144.228. The petitioner was convicted in 1984 for crimes which labeled him as a dangerous offender and, per ORS 144.228, he is given a parole consideration hearing every two years. If it is determined that the prisoner is either no longer dangerous or that the danger posed by the prisoner can be managed with supervision and mental health treatment then the prisoner will be provided with a release date. Petitioner in the present case issued one subpoena to his psychiatric evaluator and another to the Superintendent of the Two Rivers Correctional Institution. The Parole Board quashed the subpoenas, stating that they were not authorized by law. Petitioner claims that he has due process rights under the state and federal constitutions which should entitle him to have the witnesses testify at the hearing. Without determining whether or not prisoners in Oregon have a liberty interest in parole, the Court decided that the ability to subpoena witnesses at an ORS 144.228 parole consideration hearing is not a constitutional requirement. Additionally, the Court stated that ORS 183.440, which grants statutory authority to subpoena witnesses in a contested case under Oregon’s Administrative Procedures Act, does not apply to the Parole Board. Affirmed.