Ferry v. Board of Parole

Under ORS 144.102(4)(b), “if a person is on post-prison supervision for a sex crime as defined in ORS 163A.005, the board ‘shall include’ thirteen specific conditions in the person’s post-prison supervision conditions. One of those thirteen conditions is [a] prohibition against direct or indirect contact with the victim, unless approved by the victim . . . and the board.” ORS 144.102(4)(b)(G).

Petitioner appealed from an order by the Board of Parole and Post-Prison Supervision (collectively “Board”) who rejected Petitioner’s challenges to two “special conditions” of post-prison supervision. Petitioner assigned error to the Boards “special conditions” that prohibited him from having contact with his victims’ family members and contact with persons less than 18 years of age. On appeal, Petitioner argued that the Board’s order would include no contact with his son, who is a family member of his victims and was under 18 years, and as such, exceeded the Board’s authority and violated his federal constitutional right of familial association. In response, the Board argued that the order pertaining to age was moot because Petitioner’s son was now over 18 years and that the order pertaining to contact with his victims’ family members was within the Board’s lawful discretion, “required” under law - given Petitioner’s conviction - and did not violate Petitioner’s constitutional rights. Under ORS 144.102(4)(b), “if a person is on post-prison supervision for a sex crime as defined in ORS 163A.005, the board ‘shall include’ thirteen specific conditions in the person’s post-prison supervision conditions. One of those thirteen conditions is [a] prohibition against direct or indirect contact with the victim unless approved by the victim . . . and the board.” ORS 144.102(4)(b)(G). The Oregon Court of Appeals held that the Board’s order was wrong as a matter of law, and it abused its powers because ORS 144.102(4)(b)(G) applied to only the victim and its claim to using its discretion under ORS 144.102(4)(a) was not in the order. Reversed and remanded.