Background
Brian Douglas Hessel was convicted of six counts of murder and two counts of aggravated murder for killing a woman in 1989 following repeated rejected sexual advances. He was sentenced to life in prison with a 30-year minimum term. After the Board of Parole and Post-Prison Supervision (the board) affirmed his release date of April 10, 2022, Hessel sent a note on February 14, 2022 to a prison library coordinator asking her to “be his valentine.” When confronted, he replied, “I like to live dangerously.” He was found in violation of two Oregon Department of Corrections (DOC) rules: Rule 4.15 (Compromising an Employee) and Rule 2.10 (Disrespect I).
Based on those rule violations, the board held a postponement hearing and issued Board Action Form (BAF) #13, finding that Hessel had engaged in serious misconduct constituting a hazard to security under OAR 255-050-0010(2), and postponed his parole release date by 24 months. Hessel sought administrative review and then judicial review, arguing the board lacked substantial evidence to support the serious misconduct finding.
In a prior nonprecedential decision, Hessel v. Board of Parole, 338 Or App 265 (2025) (Hessel I), the Court of Appeals found the board’s initial explanation insufficient because it failed to connect the facts to the conclusion and remanded for further explanation. On remand, the board issued a new order with expanded reasoning, and Hessel again sought judicial review.
The Court’s Holding
The Court of Appeals affirmed the board’s order on remand. The court found that the board’s expanded explanation adequately connected the facts to its serious-misconduct conclusion, satisfying the substantial-reason standard. The board identified three bases for its finding: (1) the DOC classified “Compromising an Employee” as a Category I major rule violation — the highest severity — carrying a potential penalty of 120 days in disciplinary segregation; (2) Hessel’s history of violence toward women, including a sexually motivated murder and a prior public indecency conviction involving female strangers, rendered the valentine conduct particularly concerning as evidence of continuing problematic thinking patterns; and (3) compromising an employee creates systemic security risks, including pathways for contraband, extortion, escape, and sexual or physical violence.
The court deferred to the board’s interpretation of “serious misconduct” under OAR 255-050-005(5) as encompassing conduct constituting a “hazard to security,” finding that interpretation plausible given the rule’s text. The court also rejected Hessel’s argument that the board refused to consider his justification for the conduct, finding instead that the board considered his demeanor and lack of empathy as part of its seriousness determination rather than relitigating the underlying disciplinary findings. Finally, the court declined to address Hessel’s argument that the board failed to consider the effectiveness of his prison sanction, as he had not raised that issue before the board and offered no reason to relax the exhaustion requirement.
Key Takeaways
- On remand from Hessel I, the board cured its prior deficiency by explicitly linking the facts — the DOC severity classification, the petitioner’s criminal history, and the institutional security risks of employee compromise — to its serious-misconduct conclusion, satisfying the substantial-reason standard.
- Courts defer to an agency’s plausible interpretation of its own rules; the board’s reading of “serious misconduct” to include a “hazard to security” was consistent with the rule’s plain text and the legislative history of ORS 144.125.
- A prisoner’s background and offense history may properly inform the board’s assessment of whether in-custody misconduct qualifies as “serious,” even when the conduct at issue appears minor in isolation.
- Arguments not raised in administrative proceedings are unpreserved for judicial review absent a convincing reason to relax the exhaustion requirement.
Why It Matters
This decision illustrates how Oregon’s Board of Parole can satisfy the substantial-reason requirement by contextualizing facially ambiguous misconduct — here, a seemingly innocuous valentine — within a prisoner’s documented offense history and the institutional security framework. The case confirms that courts will defer to the board’s interpretation of its own rules so long as that interpretation is plausible, and that the board need not treat misconduct in a vacuum divorced from an individual’s demonstrated pattern of behavior.
For practitioners, the decision also underscores the importance of exhausting all arguments at the administrative level. Hessel’s failure to raise the “effectiveness of sanction” argument before the board cost him a potentially viable claim on judicial review, reinforcing that administrative exhaustion is strictly enforced absent an affirmative showing of good cause to relax it.