## Facts

- Michael McDermott, an inmate in Montana, received an aggregate 30-year sentence after pleading guilty to multiple assault counts and felony bail jumping; incest charges were dismissed as part of the plea agreement.
- The underlying allegations involved serious physical and sexual abuse of two young stepchildren; the sentencing court designated McDermott a “dangerous offender for purposes of parole” based on the violent conduct and public-safety risk.
- Prison officials conducted an initial needs assessment finding “severe sexual problems” and recommending participation in a sexual offender program (SOP).
- McDermott refused to participate in the SOP.
- The Montana Board of Pardons and Parole denied McDermott parole, citing the nature and severity of his offenses and, among other factors, his refusal to participate in recommended treatment.
- McDermott petitioned for habeas corpus, asserting the Board unlawfully imposed SOP participation as a new, extra-sentencing requirement and thereby violated due process.

## Issues

1. Whether an inmate whose crimes predated a 1989 statutory change had a protected liberty interest in parole sufficient to trigger due process protections.
2. Whether the Board exceeded its authority by effectively requiring SOP participation as a condition precedent to parole when the sentencing court did not impose that requirement.
3. Whether denying parole based in part on refusal to participate in the SOP unlawfully altered the sentence or imposed additional punishment in violation of due process.

## Decision

- The court denied the habeas petition.
- It held that McDermott had a limited liberty interest in parole under the pre-1989 statutory scheme.
- It held the Board acted within its statutory authority and did not violate due process by considering McDermott’s refusal to participate in the SOP when determining parole suitability.
- It concluded the Board’s authority to set conditions precedent to parole is independent of, and broader than, a sentencing court’s authority to impose sentencing conditions.

## Legal Principles

- Even where a limited liberty interest exists, parole remains discretionary and is not a guaranteed entitlement.
- The parole board may impose or consider “conditions precedent” to granting parole, and that authority is distinct from a court’s power to set conditions as part of a criminal judgment and sentence.
- In deciding parole suitability, the board may consider all pertinent information, including offense severity, risk assessments, psychological evaluations, institutional behavior, and treatment participation or refusal.
- Treating refusal to participate in recommended rehabilitative programming as an adverse factor in parole consideration does not, by itself, constitute an unlawful modification of the sentence or additional punishment.

## Conclusion

The court upheld the parole board’s denial of parole, ruling that although the inmate had a limited liberty interest in parole eligibility under older law, the board could lawfully treat refusal to complete recommended sex-offender treatment as a basis to deny parole without altering the sentence or violating due process.


McDermott v. McDonald, 24 P.3d 200 (Mont. 2001)