Facts: Following a parole hearing, the Indeterminate Sentence Review Board found petitioner Richard Dyer unparolable and increased his minimum sentence, concluding that Dyer was at risk to repeat the behaviors that resulted in his conviction for rape given that he continued to maintain his innocence and was therefore unable to participate in a sex offender treatment program. Dyer subsequently filed a personal restraint petition in the Supreme Court of Washington that asserted that the Indeterminate Sentence Review Board abused its discretion and violated his constitutional rights in denying him parole.

Question(s): Did the Indeterminate Sentence Review Board act within its discretion in denying Dyer parole on grounds that he was unable to participate in a sex offender treatment program?

Does Washington Revised Code §9.95.009(3), which increased the weight attached to public safety in making decisions regarding parole, violate Article I §9 of the United States Constitution’s prohibition against ex post facto laws?

Did the Indeterminate Sentence Review Board violate Dyer’s right to equal protection by conditioning his parole upon his eligibility to participate in a sex offender treatment program insofar as this is a factor beyond his control?

Is §9.95.009(3) void for vagueness?

Does the Indeterminate Sentence Review Board’s effective conditioning of Dyer’s parole upon an admission of guilt shock the conscience and therefore violate Dyer’s right to substantive due process under the 14^th Amendment to the United States Constitution?

Does Dyer’s continued indefinite imprisonment constitute cruel and unusual punishment in violation of the 8^th Amendment to the United States Constitution?

Conclusion: Justice Fairhurst’s opinion for the Court affirmed the Indeterminate Sentence Review Board’s decision to deny Dyer parole, concluding that the Indeterminate Sentence Review Board acted within its discretion in conditioning Dyer’s parole upon Dyer admitting guilt and participating in a sex offender treatment program. The Court also ruled that §9.95.009(3) is not an ex post facto law insofar as public safety considerations have always been given considerable weight in making decisions regarding parole and Dyer was given fair notice of the increased weight assigned to public safety by §9.95.009(3). Finally, the Court also held that conditioning Dyer’s parole upon participation in a sex offender treatment program does not violate Dyer’s right to equal protection as his inability to participate is not due to mental illness or other factors beyond his control, that §9.95.009(3) is not void for vagueness as it directs the Indeterminate Sentence Review Board in sufficiently clear terms to deny parole to those insufficiently rehabilitated, that effectively conditioning Dyer’s parole upon an admission of guilt does not shock the conscience, and that continuing to deny Dyer parole does not constitute cruel and unusual punishment insofar as the Indeterminate Sentence Review Board has not indicated that it intends to hold Dyer indefinitely.

Docket No. 79872-9

Petitioner: Richard Dyer

(Counsel: David Zuckerman)

Respondent: State of Washington

(Counsel: Gregory Joseph Rosen and William Berggren Collins)

Briefs:

Argument: Tuesday, November 27, 2007 10:00am

[Source: TVW, http://tvw.org]

Decided: Thursday, August 7th, 2008

Prevailing Party: State of Washington (Respondent)

Vote: 5-4

Citation: Pending

Court: Alexander4 Court (2008-2009)

Alexander

Johnson

Madsen

Sanders
(Dissent)

Bridge

Chambers

Owens

Fairhurst
(Majority)

Johnson