Schroeder v. Board of Parole

A petitioner must "demonstrate - through something other than speculation - that the change in law created a risk that petitioner's term of incarceration would be extended beyond what it otherwise would have been." Morrison v. Board of Parole, 277 Or App 861, 866 (2016). "In the context of an exit interview, the procedures required by due process are minimal." Swarthout v. Cooke, 562 US 216, 220 (2011) (affirmed in Rivas v. Board of Parole, 272 Or App 248, 253-54 (2015)). "Procedures that permit an inmate to be heard and respond to the evidence against them, and that provide for a statement of reasons for the denial of parole, have been deemed constitutionally sufficient." Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 US 1, 16 (1979).

Petitioner sought judicial review of an order from the Board of Parole and Post-Prison Supervision (the "Board"), which delayed his parole release date for 24 months because the Board determined that Petitioner was suffering from a present severe emotional disturbance (PSED) and was a danger to the public. Defendant first argued that the Board allowing two persons to make statements during his exit interview violated the ex post facto clauses of the state and federal constitutions because this rule had been promulgated after his conviction. A petitioner must "demonstrate - through something other than speculation - that the change in law created a risk that petitioner's term of incarceration would be extended beyond what it otherwise would have been." Morrison v. Board of Parole, 277 Or App 861, 866 (2016). The Court explained that Dawsone v. Board of Parole, 123 Or App 619, 621-22 (1993) rejects any ex post facto challenges to a statute which gives crime victims an opportunity and right to testify at parole hearings. Further, the Court reasoned that because OAR 255-030-0026 provides for both positive and negative statements, it does not do more than speculate as to whether Petitioner's incarceration would be longer than without the rule. 

Defendant next argued that the Board violated his due process rights by not providing him advance notice that these persons would be giving statements at his exit interview. "In the context of an exit interview, the procedures required by due process are minimal." Swarthout v. Cooke, 562 US 216, 220 (2011) (affirmed in Rivas v. Board of Parole, 272 Or App 248, 253-54 (2015)). "Procedures that permit an inmate to be heard and respond to the evidence against them, and that provide for a statement of reasons for the denial of parole, have been deemed constitutionally sufficient." Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 US 1, 16 (1979). The Court held that pursuant to the previously-mentioned authority, due process did not require that the Board provide advance notice because he had opportunity to respond to any allegations.

Affirmed.