# Penrod v. Cupp

> Oregon Supreme Court · July 5, 1978 · 283 Or. 21

URL: https://www.frixlaw.com/law-library/cases/9853237

## Case

- **Full name:** DONALD PENROD, Petitioner, v. CUPP, Respondent; ROBERT E. BROWN, Petitioner, v. CUPP, Respondent
- **Court:** Oregon Supreme Court
- **Decided:** July 5, 1978
- **Citations:** 283 Or. 21; 581 P.2d 934; 1978 Ore. LEXIS 983
- **Precedential status:** Published
- **Opinion:** Concurrence by Holman
- **Judges:** Holman, Tongue, Howell
- **Cited by:** 69 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/9853237

## How later opinions describe it (automated extraction)

- describing the scope of relief available pursuant to a writ of habeas after the enactment of the 1959 post-conviction act

## Opinion text

HOLMAN, J.,
concurring.
Traditionally, habeas corpus was a writ directed to the person detaining another, testing his right to so detain—not a writ testing the conditions of detention. In Newton v. Cupp, 3 Or App 434 , 474 P2d 532 (1970), the Court of Appeals enlarged upon the use of the writ to include the conditions of imprisonment because "Ordinary civil remedies for the protection of petitioner’s constitutional rights are not available to one imprisoned for conviction of a felony.” Citing the Oregon "civil death” statute, ORS 137.240, the Court of Appeals further stated that "To hold that habeas corpus is also unavailable would be to leave petitioner in the medieval position of possessing a right for which *30 there exists no remedy.” This language was subsequently tacitly approved by this court in Bekins v. Cupp, 274 Or 115 , 545 P2d 861 (1976). After the filing of the writ in Bekins ORS 137.240 was repealed, thus returning the right of inmates to access to the court system. 1
As I see the issue, it is whether habeas corpus will continue to be available to test the lawfulness of the conditions of imprisonment, as well as the right to imprison, now that the "civil death” statute has been repealed. As I read the majority opinion, it holds that the writ should continue to be available to test the lawfulness of the conditions of imprisonment in situations in which usual procedures are insufficiently swift, taking into consideration the seriousness of the conditions to which the imprisoned person is being subjected.
With his general proposition I have no quarrel. However, in view of the recent history of the abuses of the writ by prisoners and the inability of courts to supply adequate terminal facilities preventing continual and repetitive litigation because of the nature of the writ, 2 it seems unwise to me to make the writ available except in very limited situations in which speed is necessary to examine conditions of imprisonment which are allegedly fraught with serious physical consequences for the inmate, such as solitary confinement without formal disciplinary proceedings being instituted, Bekins v. Cupp, supra, as well as situations in which the inmate claims to have been beaten and threatened, is in need of immediate and critical medical attention, or is in any similar, seriously urgent situation in which his immediate physical *31 welfare is at stake. At least, this should be our rule until forced by the Supreme Court of the United States through the due process clause to include situations that are not fraught with such serious physical consequences.
"Habeas corpus was intended to be an extraordinary remedy for an extraordinary deprivation. Its abuse is well-documented. The recent extension of the writ to permit challenges to prison conditions and prison discipline, and the imposition of due process requirements on the prison discipline setting, will likely lead to further abuses. Specifically, it is probable that the already sizeable number of frivolous petitions will increase. * * (Footnotes omitted.) 3
"While general principles of decision-making emphasize finality in the law in order to obtain stability and certainty, the tradition of habeas corpus creates the possibility of litigation ad infinitum. Furthermore, as a consequence of the continuing expansion of the concept of due process, ever-increasing numbers of judgments become subject to the common law prohibition against the use of res judicata. * * *.” (Footnotes omitted.) 4
For all other conditions of imprisonment, not falling within the above limitation, I would leave the prisoner to the more deliberate and usual procedures of ordinary court proceedings with which the general public must cope and which, in my opinion, are sufficiently speedy to vindicate such other conditions. The prisoner has access to the courts to ask for an injunction if he has access to a writ. The immediacy of a writ interrupts all regular court routine and should not be available to test the conditions of incarceration except in situations which are alleged to be fraught with serious physical consequences.
*32 Under the proper rule, as I visualize it, the petition of the inmate Brown would not qualify for the issuance of a writ because only the possession of some books was in issue. The petition of Penrod would qualify since he alleged repeated beatings and threats by prison personnel.
Tongue and Howell, J.J., join in this concurring opinion.
Repealed by Oregon Laws 1975, ch 781, § 10.
Doub, The Case Against Modem Federal Habeas Corpus, 57 ABA J 323 (1971); Lay, Post Conviction Remedies and the Overburdened Judiciary: Solution Ahead, 3 Creighton L Rev 5 (1969); Weick, Apportionment of the Judicial Resources in Criminal Cases: Should Habeas Corpus be Eliminated?, 21 De Paul L Rev 740 (1972); Santarelli, Too Much is Enough, 9 Trial 40 (May-June 1973).
Comment, Habeas Corpus Challenges to Prison Discipline, 43 Fordham L Rev 963, 969-70 (1975).
Kelley, Finality and Habeas Corpus: Is the Rule that Res Judicata may not Apply to Habeas Corpus or Motion to VacateStill Viable?, 78 W Va L Rev 1, 3-4 (1975).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9853237. Public record. Not legal advice.