OLYMPIA [—] Sex offenders sentenced to a range of time in prison are not entitled to a lawyer when the state decides whether to grant them parole, a divided state Supreme Court said Thursday.
The court’s 5-4 decision overturns an appeals court ruling that said sex criminals could get legal help at indeterminate sentence review hearings on a case-by-case basis.
A state board performs those sentence reviews for certain nonpersistent sex offenders who are given a range of prison time rather than a definite sentence.
At issue was the case of Donald T. McCarthy, 65, who pleaded guilty in 2002 to third-degree assault with sexual motivation, a lower-end felony, for rubbing up against a woman with Down syndrome in a mall bookstore.
McCarthy’s plea agreement allowed for an exceptional sentence, and a Clark County Superior Court judge ordered him to serve between one and five years.
Offenders with a sentence like McCarthy’s get a chance at being released on a type of parole once their minimum sentence is served. They stay under state supervision until the rest of their time is served.
The power to release those qualifying sex criminals from prison is given to the Indeterminate Sentence Review Board, which first weighs the likelihood of a convict committing more sex crimes.
State law tips the scales in favor of releasing from prison. But the board can set a new minimum prison term if members decide it’s more likely than not the inmate will commit another sex offense.
On Thursday, the Supreme Court’s majority said McCarthy and others serving similar sentences did not have a constitutional right to legal counsel.
Pointing to a U.S. Supreme Court ruling involving Nebraska inmates, the majority said McCarthy has only “a limited liberty interest” in his sentence reviews because state law restricts the board’s discretion and tilts the hearing in favor of release from prison.
Therefore, Justice Susan Owens wrote for the court, convicts like McCarthy are entitled to “minimum procedural protections that do not include the right to counsel.”
Dissenting justices, led by Chief Justice Gerry Alexander, said the court was wrong to equate sentence reviews with regular parole hearings. Those review hearings, the dissent said, carry a greater risk of error and should allow for a lawyer on a case-by-case basis.
“The particular situation presented by this case offers a striking example of the unfair results of the board’s strict policy against providing inmates with attorneys,” Alexander wrote. “The record shows that Donald McCarthy was ‘slow,’ uneducated, and suffering from mental illness.”
McCarthy’s lawyer, Richard Alan Linn of Seattle, said he had not decided on a potential appeal to the U.S. Supreme Court.
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