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Due Process – Parole – “Presumptive” MR Liberty Interest

State ex rel. Michael J. Gendrich v. Litscher, 2001 WI App 163

Issue: Whether the “presumptive mandatory release date” under § 302.11(1g) creates a liberty interest in parole protected by due process.

Holding: Prisoners sentenced for a “serious felony” between April 21, 1994, and December 31, 1999, are given a “presumptive” MR date. Discretionary parole does not create a due process-protected liberty interest, while mandatory release does. The “presumptive” MR regime is a form of discretionary parole, because the inmate is not entitled to release; instead, the parole commission has broad discretion to deny parole “when the prisoner either poses a risk to the public or refuses to participate in necessary counseling and treatment.” ¶¶9-10. Moreover, by providing a hearing at which Gendrich could present his case for parole, and by providing written reasons for denial of parole, the commission afforded all the process he was due even had his interest in release been protectible. ¶11. Finally, the evidence supported the decision to deny parole, in

that Gendrich’s release would pose a substantial risk to the public because he remains an untreated sex offender. Gendrich has completed the “Denier’s Program” but has not yet completed Sex Offender Treatment. Early during his incarceration, he refused to participate in the treatment program because he was still pursuing an appeal of his conviction. Recently, he has been on the institution’s waiting list for Sex Offender Treatment. No matter the reason for his not participating in treatment, a reasonable person could conclude that as an untreated sex offender, Gendrich poses a substantial risk to the public.

¶13.

This decision has the effect of denying parole based on failure to obtain or submit to SOT. Though the implication isn’t discussed in the opinion, this situation could create “compulsion” sufficient to trigger 5th amendment protection. That is, SOT is generally conditioned on full disclosure of assault history, which the inmate is now compelled to reveal on pain of forgoing release on parole. Moreover, even on its face, the decision at least arguably punishes Gendrich for asserting his rights: he refused to talk during pendency of his appeal of his conviction — something he was plainly entitled to do, see State ex rel. Gary Tate v. Schwarz, 2001 WI 127 ¶¶18-19, affirmed in pertinent part 2002 WI 127 — which delayed his entry into SOT and thereby made him ineligible for parole. ¶11 n. 9. Gendrich, a pro se litigant, never raised this issue. For discussion on interplay between sexual offender treatment programs and fifth amendment go here.

 

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