Parole

ORS 144.343
Hearing required on revocation

procedure

Text
Annotations 13

(1)

When the State Board of Parole and Post-Prison Supervision or its designated representative has been informed and has reasonable grounds to believe that a person under its jurisdiction has violated a condition of parole and that revocation of parole may be warranted, the board or its designated representative shall conduct a hearing as promptly as convenient to determine whether there is probable cause to believe a violation of one or more of the conditions of parole has occurred and also conduct a parole violation hearing if necessary. Evidence received and the order of the court at a preliminary hearing under ORS 135.070 (Informing defendant as to charge, right to counsel, use of statement and preliminary hearing) to 135.225 (Forwarding of papers by magistrate) may be used by the board to determine the existence of probable cause. A waiver by the defendant of any preliminary hearing shall also constitute a waiver of probable cause hearing by the board. The location of the hearing shall be reasonably near the place of the alleged violation or the place of confinement.

(2)

The board may:

(a)

Reinstate or continue the alleged violator on parole subject to the same or modified conditions of parole;

(b)

Revoke parole and require that the parole violator serve the remaining balance of the sentence as provided by law;

(c)

Impose sanctions as provided in ORS 144.106 (Violation of post-prison supervision conditions); or

(d)

Delegate the authority, in whole or in part, granted by this subsection to its designated representative as provided by rule.

(3)

Within a reasonable time prior to the hearing, the board or its designated representative shall provide the parolee with written notice which shall contain the following information:

(a)

A concise written statement of the suspected violations and the evidence which forms the basis of the alleged violations.

(b)

The parolee’s right to a hearing and the time, place and purpose of the hearing.

(c)

The names of persons who have given adverse information upon which the alleged violations are based and the right of the parolee to have such persons present at the hearing for the purposes of confrontation and cross-examination unless it has been determined that there is good cause for not allowing confrontation.

(d)

The parolee’s right to present letters, documents, affidavits or persons with relevant information at the hearing unless it has been determined that informants would be subject to risk of harm if their identity were disclosed.

(e)

The parolee’s right to subpoena witnesses under ORS 144.347 (Subpoena power of board).

(f)

The parolee’s right to be represented by counsel and, if indigent, to have counsel appointed at board expense if the board or its designated representative determines, after request, that the request is based on a timely and colorable claim that:

(A)

The parolee has not committed the alleged violation of the conditions upon which the parolee is at liberty;

(B)

Even if the violation is a matter of public record or is uncontested, there are substantial reasons which justify or mitigate the violation and make revocation inappropriate and that the reasons are complex or otherwise difficult to develop or present; or

(C)

The parolee, in doubtful cases, appears to be incapable of speaking effectively on the parolee’s own behalf.

(g)

That the hearing is being held to determine:

(A)

Whether there is probable cause to believe a violation of one or more of the conditions of parole has occurred; and

(B)

If there is probable cause to believe a violation of one or more of the conditions of parole has occurred:

(i)

Whether to reinstate parole;

(ii)

Whether to continue the alleged violator on parole subject to the same or modified conditions of parole; or

(iii)

Whether to revoke parole and require that the parole violator serve a term of imprisonment consistent with ORS 144.346 (Parole revocation sanctions).

(4)

At the hearing the parolee shall have the right:

(a)

To present evidence on the parolee’s behalf, which shall include the right to present letters, documents, affidavits or persons with relevant information regarding the alleged violations;

(b)

To confront witnesses against the parolee unless it has been determined that there is good cause not to allow confrontation;

(c)

To examine information or documents which form the basis of the alleged violation unless it has been determined that informants would be subject to risk of harm if their identity is disclosed; and

(d)

To be represented by counsel and, if indigent, to have counsel provided at board expense if the request and determination provided in subsection (3)(f) of this section have been made. If an indigent’s request is refused, the grounds for the refusal shall be succinctly stated in the record.

(5)

Within a reasonable time after the preliminary hearing, the parolee shall be given a written summary of what transpired at the hearing, including the board’s or its designated representative’s decision or recommendation and reasons for the decision or recommendation and the evidence upon which the decision or recommendation was based. If an indigent parolee’s request for counsel at board expense has been made in the manner provided in subsection (3)(f) of this section and refused, the grounds for the refusal shall be succinctly stated in the summary.

(6)

(a)

The parolee may admit or deny the violation without being physically present at the hearing if the parolee appears before the board or its designee by means of simultaneous television transmission allowing the board to observe and communicate with the parolee and the parolee to observe and communicate with the board or by telephonic communication allowing the board to communicate with the parolee and the parolee to communicate with the board.

(b)

Notwithstanding paragraph (a) of this subsection, appearance by simultaneous television transmission or telephonic communication shall not be permitted unless the facilities used enable the parolee to consult privately with counsel during the proceedings.

(7)

If the board or its designated representative has determined that there is probable cause to believe that a violation of one or more of the conditions of parole has occurred, the hearing shall proceed to receive evidence from which the board may determine whether to reinstate or continue the alleged parole violator on parole subject to the same or modified conditions of parole or revoke parole and require that the parole violator serve a term of imprisonment as provided by ORS 144.346 (Parole revocation sanctions).

(8)

At the conclusion of the hearing if probable cause has been determined and the hearing has been held by a member of the board or by a designated representative of the board, the person conducting the hearing shall transmit the record of the hearing, together with a proposed order including findings of fact, recommendation and reasons for the recommendation to the board. The parolee or the parolee’s representative shall have the right to file exceptions and written arguments with the board. The right to file exceptions and written arguments may be waived. After consideration of the record, recommendations, exceptions and arguments a quorum of the board shall enter a final order including findings of fact, its decision and reasons for the decision. [1973 c.694 §13; 1977 c.375 §2; 1981 c.644 §7; 1987 c.158 §20a; 1987 c.803 §17; 1989 c.790 §42a; 1991 c.836 §2; 1993 c.581 §3; 1997 c.313 §12; 2009 c.178 §30; 2010 c.89 §13]

Notes of Decisions

A parolee has a constitutional right to an on-site hearing by which a person other than the parole officer who recommends revocation can decide whether there is probable cause to revoke, and a parolee who is denied such a hearing must be granted relief if he suffered prejudice as a result of that denial. Huckaby v. Newell, 16 Or App 581, 519 P2d 1290 (1974)

Where inmate is granted parole but has not been scheduled for release, revocation does not entail procedural requirements that would apply if inmate were in parole status. Boyd v. Board of Parole, 23 Or App 266, 541 P2d 1068 (1975)

Where board refers to record submitted by hearings officer, written statement of evidence relied upon is not required. Sandersfeld v. Oregon State Board of Parole, 25 Or App 323, 548 P2d 1333 (1976)

Where board impliedly adopts findings of fact by hearings officer, recital of findings of fact is not required. Sandersfeld v. Oregon State Board of Parole, 25 Or App 323, 548 P2d 1333 (1976)

Where Board revoked parole by order which merely gave notice of entitlement to review of order, parolee was not afforded full due process hearing contemplated by this section. Erickson v. Board of Parole, 34 Or App 323, 578 P2d 499 (1978)

Where there were no complex issues or substantial mitigating factors to be presented in parole revocation hearing, it was not abuse of discretion for Board of Parole to deny appointment of counsel, despite parolee’s assertion that he was “incapable of speaking effectively for himself.” Ritchie v. Board of Parole, 35 Or App 711, 583 P2d 1 (1978), on reconsideration 37 Or App 385, 587 P2d 1036 (1978)

Where petitioner neither denied that he violated conditions of parole nor presented any reason justifying appointment of counsel, Board of Parole did not err in denying request for appointed counsel for revocation hearing. Asher v. State Board of Parole, 100 Or App 592, 786 P2d 1323 (1990), Sup Ct review denied

Notice of hearing right regarding revocation need not inform violator of possible consequences of revocation that may arise in later proceedings. Woolstrum v. Board of Parole, 141 Or App 332, 918 P2d 112 (1996), Sup Ct review denied

Ability of board to revoke parole and require violator to serve remainder of sentence is not subject to limitations of parole revocation rules adopted under ORS 144.346. Kessler v. Board of Parole, 145 Or App 584, 931 P2d 801 (1997)

Where parole condition requires person to obey all municipal, county, state and federal laws, fact that person has been arrested does not establish probable cause to believe person has violated condition. Mageske v. Board of Parole and Post-Prison Supervision, 173 Or App 209, 21 P3d 150 (2001)

Relevance of information in proceeding for alleged parole violation is determined using definition of relevance set forth in Oregon Evidence Code. O’Hara v. Board of Parole, 346 Or 41, 203 P3d 213 (2009)

Attorney General Opinions

Requirement on state to furnish legal counsel to indigent parolee during revocation proceeding, (1982) Vol. 42, p 232

Law Review Citations

53 OLR 67-79 (1973)