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McDermott v. McDonald5/17/2001
OPINION AND ORDER
Petitioner Michael McDermott (McDermott) is serving a thirty-year sentence for assault and felony bail jumping in the Crossroads Correctional Center. The Board of Pardons and Parole (Board) has denied his application for parole, based in part on his failure to participate in a sexual offender program (SOP). He petitions this Court for a writ of habeas corpus, alleging that the Board has illegally denied him parole. We deny his petition.
BACKGROUND
In May 1989, McDermott was charged by information with four counts of assault and four counts of incest against his two stepsons, then aged five and six. The information alleged that, between June 1985 and January 1986, McDermott assaulted his stepsons physically and sexually by burning their arms on the stove, knocking out their teeth, beating them on their legs, buttocks and penis with a wooden spoon and forcing them to engage in anal and oral intercourse. After being charged and released on bond, McDermott fled the jurisdiction. Eventually recaptured, he was extradited back to Montana and charged with an additional count of felony bail jumping.
McDermott pled guilty to the assault and bail jumping charges in exchange for dismissal of the four incest counts. The District Court sentenced him to five years on each assault charge and ten years on the bail jumping charge, for a total sentence of thirty years. Because of the violent nature of the assaults, because he committed them against young victims and because the court found that he represents a substantial danger to society, McDermott was designated a dangerous offender for purposes of parole.
McDermott began serving his sentence in May 1992. At that time, an initial needs assessment concluded that he suffers from "severe sexual problems" and recommended that he participate in the prison's treatment program for sexual offenders. McDermott elected not to participate in the SOP, and the Board later considered this fact during evaluations for placement in a prerelease center, for parole and for inmate classification purposes.
McDermott first applied for parole in September 1998. After notice and a hearing, the Board denied his application, citing McDermott's multiple offenses as well as their nature and severity. It noted that participation in the SOP would "enhance success on parole and further ensure that the applicant is willing and able to fulfill the obligations of a law-abiding citizen." McDermott again chose not to participate. As a result, he had four points added to his classification status for noncompliance with the Board's SOP recommendation. In September 1999, the Board again denied McDermott's parole application, citing the nature and severity of his offenses as well as his failure to comply with the Board's previous SOP recommendation.
McDermott contends that by requiring him to complete an SOP as a condition to early release on parole, the Board infringed upon his liberty interest in parole without due process of law. He petitions this Court for a writ of habeas corpus ordering his immediate release and rescinding the four points added to his classification status.
DISCUSSION
Our due process analysis requires us to determine whether McDermott has a protected liberty interest in parole, and, if so, what process he is due and whether he received that process.
A. McDermott's Liberty Interest in Parole
As a general rule, inmates have no liberty interest in parole. Greenholtz v. Inmates of the Nebraska Penal and Correction Complex (1979), 442 U.S. 1, 7, 99 S.Ct. 2100, 2103-04, 60 L.Ed.2d 668, 675. We have, however, recognized an excep
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