Bernard R. Keith, an inmate at Richland Correctional Institution serving an indeterminate sentence, filed an action in the court of appeals requesting a writ ordering the Ohio Adult Parole Authority (“OAPA”) and Cynthia Mausser – the chair of the Ohio Parole Board – to correct erroneous information in his records regarding the number of times Keith had been paroled.
In November 2011, Keith entered Loraine Correctional Institution to serve a six-month sentence. A hearing officer with the OAPA determined that Keith’s previous parole should be revoked, and a parole-release hearing was scheduled for February 2012.
At that February hearing, the parole board denied Keith’s parole and set the next parole hearing for 62 months later. In explaining its rationale, the board cited several factors and stated that Keith had been paroled eight times.
Keith sent a letter to Mausser requesting that the decision be corrected to reflect the correct number of times he had been paroled and that the parole board grant him a new hearing.
The board responded that Keith’s request did not meet the standard for a reconsideration of a decision and that it would make no modification of the decision. That’s when Keith filed his action with the court of appeals.
The OAPA filed a motion to dismiss Keith’s case. Both sides requested summary judgment and added affidavits and exhibits to the record, and Keith raised additional claims of further errors in his records.
The OAPA asserted that Keith’s records had been corrected to reflect the correct number of times he had been paroled, and further asserted that after the correction was made, Mausser had submitted the matter to the parole board to consider the correction. But the board voted not to modify its previous decision and not to grant Keith a new hearing.
A magistrate for the court of appeals recommended that the court grant OAPA’s motion for summary judgment and deny Keith’s motion. The magistrate found that Keith had no constitutional, legal, or inherent right to parole and no due-process right to the correction of errors in OAPA records.
The magistrate also found that even if Keith had the right to the correction of an error, his request was moot, as the OAPA records had been corrected to reflect that Keith has been paroled six times. The court of appeals adopted the magistrate’s recommendations.
After that, Keith’s case came before us – the Ohio Supreme Court. The key element of his appeal was an assertion that the procedure used during his parole hearing was improper in that the information used was erroneous, and the OAPA should have known it was incorrect.
In previous cases, we have established that a prisoner has no constitutional or legal right to parole. Because there is no such right, a prisoner who is denied parole is not deprived of liberty as long as state law makes the parole decision discretionary, and Ohio law does just that.
Our court has held that because a potential parolee was not deprived of life, liberty, or property by being denied parole, he could not invoke due process to challenge his allegedly inaccurate scoresheet. Therefore, the court of appeals was not unreasonable in concluding that the parole board had no clear legal duty to correct Keith’s records.
To support his argument that he has a right to a correct record, Keith cited a 2002 decision by our court in a case called Layne v. Ohio Adult Parole Auth. In that case, the OAPA used a formula for projecting an inmate’s earliest possible release on parole. The formula relied on two numbers, one of which reflected the inmate’s “offense category score.”
The inmates in Layne had been assigned incorrect offense category scores, resulting in potential release dates that were substantially later than the dates that would have resulted from the correct scores. We held that by assigning each inmate a score corresponding to an offense more serious than the offense for which he was actually convicted, the OAPA breached the state’s plea agreement with the inmate.
While none of the errors alleged in Keith’s case breached a plea agreement, Layne establishes a minimal standard for the OAPA – that the language in the law “ought to mean something.”
At issue in Layne were the words in the pertinent state law – “eligible for parole.” We held that inherent in the language of the law is “the expectation that a criminal offender will receive meaningful consideration for parole.”
In Keith’s case, the language at issue involves the procedures relating to parole of a prisoner. The regulation setting forth the procedure for parole requires that in deciding on an inmate’s release, the parole board is to consider numerous factors, such as any official report of the inmate’s prior criminal record, including a record of earlier probation or parole, and other relevant written information.
The existence of this formal process for considering parole rightly gives parolees some expectation that they are to be judged on their own, correct reports. Requiring the board to consider specific factors to determine the inmate’s fitness for release would not mean anything if the board is permitted to rely on incorrect – and therefore irrelevant – information.
The OAPA has wide-ranging discretion in parole matters, and a prisoner lacks any constitutional or legal right to parole. But, having established a parole system, and having put in place legal and regulatory language requiring the OAPA to consider relevant information regarding a prisoner it is considering for parole, the state has created a minimal due-process expectation that the information will accurately pertain to the person whose parole is being considered.
Accordingly, where a credible allegation of substantive inaccuracies in a prisoner’s record is made, the OAPA is obligated to correct those errors before considering the inmate for parole. Therefore – by a six-to-one vote – we reversed the court of appeals’ judgment and granted a writ ordering the OAPA to investigate Keith’s allegations and correct substantive errors in the record used to consider him for parole.
Paul E. Pfeifer is a judge in the Ohio Court of Appeals.