# State ex rel. Lipschutz v. Shoemaker, Director, Adult Parole Authority

> Ohio Supreme Court · February 28, 1990 · 49 Ohio St. 3d 88

URL: https://www.frixlaw.com/law-library/cases/6762227

## Case

- **Full name:** The State, ex rel. Lipschutz v. Shoemaker, Director, Adult Parole Authority
- **Court:** Ohio Supreme Court
- **Decided:** February 28, 1990
- **Citations:** 49 Ohio St. 3d 88; 551 N.E.2d 160; 1990 Ohio LEXIS 77
- **Precedential status:** Published
- **Opinion:** Dissent by Sweeney
- **Judges:** Brown, Douglas, Holmes, Moyer, Only, Resnick, Sweeney, Wright
- **Cited by:** 42 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6762227

## How later opinions describe it (automated extraction)

- concluding that unadjudicated illegal conduct was properly considered as part of a prisoner's "pattern of criminal or delinquent behavior"
- affirming parole board's consideration of unadjudicated illegal conduct to determine inmate's pattern of criminal behavior

## Opinion text

Sweeney, J.,
dissenting. In my view, the majority has committed a grave error in permitting the Parole Board to consider an indictment upon which a conviction was never obtained. Since such a decision has the potential of opening a veritable Pandora’s box by permitting over-indictment abuses by prosecutorial authorities, I must respectfully but vigorously dissent from this decision.
By permitting the Parole Board to *91 consider an indictment upon which no conviction was returned, the majority has completely undermined our time-honored rule of law that a person is presumed innocent until proven guilty.
Ohio Adm. Code 5120:1-1-08 clearly provides that “* * * the parole board may take into consideration * * * (K) The nature of the offense for which the inmate was convicted. ” (Emphasis added.)
While the majority concedes that the foregoing provision “does not authorize consideration of wrongdoing not resulting in conviction,” it casts aside all sense of logic, fairness and reasonableness by asserting that the Administrative Code provision does not “forbid the consideration of such wrongdoing.” I refuse to join such tortured analysis.
By its decision today, the majority has created a gaping loophole in the “presumption of innocence until proven guilty” standard. The practical effect of the majority opinion is to encourage prosecutors to over-indict suspects in order to deny them parole sometime down the line if the suspect is ultimately convicted of some of the indictments returned.
Since I firmly believe the Parole Board’s actions have denied relator his rights to due process and equal protection, I would grant the requested writ of mandamus since I feel the Parole Board has committed a clear abuse of discretion.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6762227. Public record. Not legal advice.