Kent v. Cupp

554 P.2d 196, 26 Or. App. 799, 1976 Ore. App. LEXIS 1837

• Court: Court of Appeals of Oregon
• Decided: September 20, 1976
• Docket: 90342, CA 5907
• Status: Published

Opinions

TANZER, J.

Plaintiff was committed to the Oregon State Penitentiary following his conviction in 1955 under former ORS 163.640¹ and sentenced to an indeterminate life sentence. He brings this petition for writ of habeas corpus attacking his continued confinement, alleging that the defendant has failed and refused to provide him with a program or plan for reformation or rehabilitation thus rendering his further imprisonment unlawful under a variety of federal and state constitutional provisions.

The parties stipulated at trial that as a result of his judgment of conviction under ORS 163.640 (now superseded by ORS 163.245 and 163.257) and subsequent sentence to an indeterminate life sentence as a sex offender, plaintiff was permitted to participate in sex offender treatment programs and such other treatment programs as were available at the penitentiary. However, two or three years before trial, his participation was involuntarily terminated because the plaintiff is psychologically sophisticated beyond the effective use of group therapy because he had used it for such a long period of time. Attempts were made by plaintiff to get into treatment programs at the Oregon State Hospital because he believes it will cause the Board of Parole to give him more favorable consideration, but access to any such programs has been denied to plaintiff because the Mental Health Division refuses to accept any Oregon State Penitentiary inmate not adjudged mentally ill. Plaintiff has not been and is not able to be adjudged mentally ill. No rehabilitative programs for treatment of plaintiff’s condition are available at the Oregon State Penitentiary other than the group therapy program from which he has been involuntarily excluded. Plaintiff believes that the Board of Parole has refused and will continue to refuse to consider plaintiff for a parole if he is not actively participating in a treatment program related to his needs. On March 13, 1975, the Board of Parole reset plaintiffs parole hearing date to March, 1977, and requested that an evaluation from the Oregon State Hospital sexual offenders program be formulated for plaintiff. The prison psychologist concludes that "the only hope for Mr. Kent [plaintiff] is an aging process in which age and maturity will overcome his present psychological difficulties.”

The trial court found that plaintiff is not presently participating in any rehabilitative programs and that there are no programs available in this state which would assist plaintiff at this time. It concluded that defendant has not denied plaintiff access to any rehabilitative programs since no rehabilitative programs are available and therefore defendant has not violated plaintiff’s constitutional rights. The petition was therefore denied and dismissed without relief.

Plaintiff refers us to various authorities suggesting the wisdom of establishing a constitutional right of imprisoned persons to be rehabilitatively treated or else released, but cites no jurisdiction which recognizes such a right. We decline to be the first.²

The dissent would create a treat-or-release rule under Article I, § 15 of the Oregon Constitution which provides:

"Laws for the punishment of crime shall be founded on the principles of reformation, and not of vindictive justice.”

Beyond its usual interpretation as barring unconscionable sentences in excess of the statutory limitations, see, for example, State v. Hicks, 213 Or 619, 630, 325 (1958), cert den 359 US 917 (1959); State v. Franklin, 11 Or App 239, 240, 502 P2d 392 (1972); State v. Houck, 9 Or App 441, 497 P2d 683 (1972), it is significant as a hortative philosophical base for Oregon’s penal code and correctional programs. The legislature has provided to the Corrections Division an array of programs for the implementation of that clause.³ The courts do not have authority to require that additional prison programs be provided, except perhaps in extraordinary circumstances of cruel and unusual punishment, James v. Wallace, 382 F Supp 1177 (MD Ala ND 1974), which are not alleged here.

The dissent disavows a treat-or-release rule. It would remand to order the Corrections Division to provide a program for plaintiff. The only enforcement mechanism in a habeas corpus suit, however, is release. ORS 34.310, 34.590. Habeas corpus is not a procedural vehicle whereby the courts are empowered to require the Corrections Division to expend its limited program resources on those whom it deems would not benefit from them except by the accumulation of a paper record in hopes of favorably impressing the Board of Parole. Furthermore, the plan of the Corrections Division to allow plaintiff to overcome his psychological difficulties by the process of maturation and to separate him from society during that process and until parole, may well be the most appropriate program of reformation for this particular inmate. We have no persuasive reason in this case to second-guess that administrative decision by ordering plaintiff to be released if not treated.

Affirmed.

1 RS 163.640 (1955):

"Every person who maliciously, forcibly or fraudulently takes or entices away any child or minor under the age of 16 years, with intent to detain and conceal such child from its parent, guardian or other person having the lawful charge of such child, shall he punished upon conviction by imprisonment in the penitentiary for not more than 25 years or during the natural life of such person, or by a fine not exceeding $10,000, or by both such fine and imprisonment.”

2 We have hitherto declined to establish a " 'right to rehabilitation’ ” in the context of the right to a speedy trial. State v. Puckett, 22 Or App 154, 156-57, 538 P2d 74 (1975).

3 The reliance of the dissent upon ORS 421.155 is misplaced. It pertains only to those adjudged to be dangerous offenders and gives no direction as to other convicts.