Grimm v. Board of Parole
Grimm v. Board of Parole
Opinion of the Court
Petitioner, who is serving a dangerous offender sentence after being convicted of arson and other crimes in 2000, seeks judicial review of an order of the Board of Parole and Post-Prison Supervision (the board), arguing that the board erred in deferring his parole consideration date.
We begin with a brief synopsis of the material that was before the board. Petitioner’s current convictions arose out of a series of fires he set in 2000. Between 1992 and 2000, petitioner had numerous juvenile adjudications and convictions for fire-related crimes, as well as theft crimes, many of which resulted in probationary sentences. During those years, he was found in violation of his probation on numerous occasions. Over the course of his involvement with the juvenile and adult corrections systems, petitioner has been diagnosed with a number of conditions, including pyromania,
Petitioner has received numerous psychological evaluations over the years, the most recent of which were done in August 2008, after his PPS revocation, and in October 2009, shortly before the hearing in the present proceeding. The psychologist who prepared the 2008 evaluation concluded that petitioner had a severe antisocial personality disorder and was not amenable to community-based supervision. The 2009 evaluation, which is the primary focus of petitioner’s challenge in the present case, indicated that the psychologist who prepared the evaluation, reviewed petitioner’s records, conducted a clinical interview of petitioner, and administered several tests, including one designed to measure the risk of violence on which petitioner scored in the “moderate” range for risk of future violent behaviors. Petitioner was diagnosed with an antisocial personality disorder and a history of attention deficit hyperactivity disorder. The psychologist concluded that, in light of the material in the record, the test results, and petitioner’s responses during the clinical interview, petitioner “makes marked use of the defensive strategies of minimization, rationalization, and denial.” He further concluded that the test results indicated cognitive difficulties and lack of insight. He concluded, “As a result of the aforesaid, I can only conclude, in my clinical judgment, that [petitioner] would remain a danger to the community if he were to be released at this time. I consider his prognosis to be very guarded.”
In its order deferringpetitioner’s parole consideration, the board referred to the most recent psychological report and concluded that petitioner had “a mental or emotional disturbance, deficiency, condition or disorder predisposing [petitioner] to the commission of any crime to a degree rendering the [petitioner] a danger to the health or safety
Petitioner makes numerous arguments and subarguments in his assignment of error, three of which we discuss below. We reject petitioner’s remaining arguments without discussion. We briefly turn to petitioner’s argument that deferring parole consideration based on a disability violates his rights under the Americans with Disabilities Act (ADA), 42 USC sections 12101 to 12213, and ORS 659A.142(5)(a), both of which make it unlawful for government programs to discriminate against a person on the basis of disability.
That brings us to petitioner’s substantial evidence and substantial reason challenges. We understand petitioner to be arguing, in effect, that the record does not support the board’s conclusion that he remains dangerous (and its implicit conclusion that he is not amenable to community-based
Castro does not assist petitioner here. In that case, the board had before it two psychological evaluations, a highly positive one from the petitioner’s treating psychologist and a negative one from another psychologist, and our decision critiqued the thoroughness and conclusions of the latter. Id. at 80, 84. We concluded that, in a circumstance such as that, where “expert opinions have been offered on both sides of an issue” and one report is markedly less thorough than the other, the board is obligated to demonstrate its reasoning in relying on the less thorough report. Id. at 84-85; (citing Armstrong v. Asten-Hill Co., 90 Or App 200, 206, 752 P2d 312 (1988) (“when the credible evidence apparently weighs overwhelmingly in favor of one finding and the [b]oard finds the other without giving a persuasive explanation!,]” the order lacks “substantial reason”)).
Similarly, petitioner offers critiques of several of the tests on which the psychologist relied, suggesting that they are “diagnostic” rather than “predictive” and thus do not provide an adequate basis for the psychologist’s opinion. Again, petitioner raised no challenge to the adequacy of the psychological evaluation in that respect below and, given the absence of any evidence in the record supporting
Finally, we turn to petitioner’s argument that the record as a whole does not support the board’s finding that he remains dangerous and cannot be adequately controlled in the community. Petitioner argues that most of his prison disciplinary violations occurred in the first five years of his confinement, and adds that a psychological report from 2007 noted a test result indicating that inmates with this type of profile tended to have difficulty with institutional adjustment, but that they did not have higher recidivism rates than average. From that, petitioner posits that “there is no nexus between petitioner’s institutional adjudications and his possible future dangerousness if released on parole.” We disagree with petitioner’s conclusion. Petitioner not only has a lengthy and significant history of disciplinary violations while imprisoned, but also a lengthy and significant history of violating probation and PPS when not institutionalized. In short, petitioner’s record of behavior both while in prison and while outside of prison support the board’s conclusion that he cannot be adequately controlled in the community.
In sum, we conclude that substantial evidence in the record supports the board’s decision to defer petitioner’s parole consideration date.
Affirmed.
The board conducts such hearings pursuant to OAR 255-037-0005.
Stedman’s Medical Dictionary 1493 (27th ed 2000) defines “pyromania” as a “morbid impulse to set fires.”
42 USC section 12132 provides, in pertinent part, that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
ORS 659A.142(5)(a) provides that it is unlawful “for state government to exclude an individual from participation in or deny an individual the benefits of the services, programs or activities of state government or to make any distinction, discrimination or restriction because the individual has a disability.”
Cf. Jenkins v. Board of Parole, 258 Or App 430, 309 P3d 1115 (2013) (when the hoard offers a conclusion without explanation, the board’s order may not be supported by substantial reason).
We note that the earlier psychological reports in the record are largely consistent with the current report.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.