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  •   High Court Affirms Right to Hearing Under State's System of 'Pre-Parole'

    By Joan Biskupic
    Washington Post Staff Writer
    Wednesday, March 19, 1997; Page A03

    The Supreme Court ruled unanimously yesterday that a state cannot revoke a prisoner's participation in a parole-like program and bring him back within penitentiary walls without first giving him a hearing.

    The justices said that an Oklahoma program that periodically releases inmates under a "pre-parole" system -- designed to reduce prison overcrowding -- is enough like parole that a participant is entitled to the same procedural protections extended to regular parolees. The court in 1972 ruled that an inmate has a "liberty interest" in parole that cannot be revoked without notice and a hearing.

    Seven states had joined Oklahoma in arguing that when prison officials try to remedy overcrowding through early-release programs, they still should retain great control over inmates and have the flexibility, for example, to automatically bring them back if space opens up.

    The case involved Ernest Eugene Harper, who had served 15 years of a life sentence for murder when the state parole board recommended him for release under the pre-parole program. (The scheme took effect whenever the prison system exceeded 95 percent of its capacity; an inmate qualified after serving 15 percent of a sentence, rather than the one-third required for regular parole.)

    Justice Clarence Thomas, who wrote the yesterday's opinion, said that after Harper was released, he had his own residence, and had found and kept a job. He was required to report to a probation officer and could not leave the state.

    "He spent five apparently uneventful months outside the penitentiary," Thomas wrote, adding that the governor nonetheless denied him parole and forced him to return to prison. Harper claimed he should have been given an opportunity to contest the revocation of his pre-parole status. He lost in U.S. District Court but won at the 10th U.S. Circuit Court of Appeals. In upholding that decision yesterday, Thomas said in Young v. Harper, "the program, as it appears to have been structured at the time [Harper] was placed on it, differed from parole in name alone."

    Separately yesterday, the justices heard arguments in the case of a Virginia death row inmate whose assertions of innocence have drawn worldwide attention, including a plea from Pope John Paul II. But the legal issue is a narrow one: whether Joseph Roger O'Dell III should be resentenced because he was not allowed to tell his sentencing jury that an alternative to death was life without parole.

    O'Dell was convicted for the 1985 rape and murder of Virginia Beach secretary Helen Schartner. He has lost several appeals over the years, but his scheduled execution was postponed in December when the court agreed to hear a challenge to his sentence stemming from prosecutorial comments about his future dangerousness. The judge refused to allow O'Dell to rebut the prosecution's death sentence plea with the argument that O'Dell could be locked up without parole and still leave the public protected.

    The high court ruled in 1994 that jurors must be told if the defendant is ineligible for parole when a prosecutor seeking the death penalty tries to establish a defendant's future dangerousness. The question yesterday was whether the ruling should apply retroactively to O'Dell, whose conviction and sentence became final in 1988.

    A ruling in the case of O'Dell v. Netherland could occur by late June.

    © Copyright 1997 The Washington Post Company

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