AGO 1953 No. 489 - Mar 3 1953
PSYCHOPATHIC DELINQUENTS ‑- REVOCATION OF PAROLE.
The superintendent of a state hospital may revoke his parole of a psychopathic delinquent provided that the conditions of his parole have been approved by the committing court.
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March 3, 1953
Honorable Hugh H. Evans
Spokane 1, Washington Cite as: AGO 51-53 No. 489
Attention: !ttMr. William H. Williams, Deputy Prosecuting Attorney
We have your letter in which you ask for an opinion to clarify the provisions of the psychopathic delinquent act. Your inquiry is directed to the authority of the superintendent of a state institution to revoke his parole of a psychopathic delinquent. You ask, in addition, what procedure to follow to accomplish this.
It is our conclusion that the superintendent of a state hospital may revoke his parole of a psychopathic delinquent provided that the conditions of his parole have been approved by the committing court.
RCW 71.06.150 et seq., provide for the commitment to a state institution of any minor adjudged by the superior court to be a psychopathic delinquent. RCW 71.06.240 provides for the parole and discharge of psychopathic delinquents by the superintendent of the institution wherein such persons are confined. The [[Orig. Op. Page 2]] statute makes provision for conditional parole but does not provide for revocation of parole upon breach of the conditions. RCW 71.02.610 provides for parole or discharge of a mentally ill person and the revocation of said parole. The language used in this section appears to imply a legislative intention that the power to parole conditionally carries with it the power to revoke said parole. This conclusion appears to be in line with the definition of parole. See 31 Words and Phrases, page 102. The only mention of the power to revoke in the mental illness statute, supra, is as follows:
"When the superintendent revokes the parole of any patient, he may request the superior court of the county wherein the patient is found to order the apprehension and detention of such patient. The court shall thereupon order the apprehension of such patient and shall detain him until returned to the state hospital by the superintendent. * * *"
A parole, in its essential characteristics, cannot be distinguished from a conditional pardon, each constituting the release of a convict upon fixed conditions before the expiration of his term of imprisonment. SeeRe Peterson, 14 Cal. (2d) 82, 92 P. (2d) 890, 132 A.L.R. 1254. In re Costello, 22 Wn. (2d) 697, 157 P. (2d) 713, was a case involving the power of the governor of the State of Washington to revoke a conditional pardon in the absence of express statutory authority. The court held that where such conditional pardon is granted by the governor and contains an express provision that it may be revoked by him at any time without notice, the governor may summarily revoke such pardon without notice. The rationale seems to be that a prisoner or patient, in accepting the conditions attached to his pardon or parole, agrees not to violate them under penalty of being returned to confinement. This poses the problem of the legal capacity of the rehabilitated psychopathic delinquent to accept and be bound by the conditions of his parole. By definition, a psychopathic delinquent is a minor.
It is our conclusion that the superintendent of a state hospital may revoke his parole of a psychopathic delinquent provided that the conditions of his parole have been approved by the committing court. This proviso would not obtain in the case of a patient who has attained legal age prior to said parole. From the court's language in the Costello case,supra, it would appear to be advisable for the superintendent to reserve, by express stipulation, the power to [[Orig. Op. Page 3]] revoke the conditional parole at any time without notice or hearing prior to revocation for breach of any of the conditions therein contained. As to the procedure to employ in effecting the return of said patient, it would seem that the language used in RCW 71.02.610 is broad enough to cover the return of psychopathic delinquents.
Very truly yours,
Assistant Attorney General