Merlin Ohlinger v. Robert J. Watson, Administrator, Corrections Division of the State of Oregon

AMENDED OPINION

Appeal from the United States District Court for the District of Oregon.

Before BROWNING and PREGERSON, Circuit Judges, and TAKASUGI , District Judge.

I. FACTUAL BACKGROUND

Appellants are two Oregon state prisoners. Both pleaded guilty to the crime of sodomy. Appellant Ohlinger’s offense involved “playing, touching and fondling” of children’s genitals. He was sentenced on February 15, 1961. Appellant Haddon’s offense involved similar sexual activity with children. He was sentenced on November 22, 1971. Neither appellant has been involved in sexual activity with the use of force against his victim.

In lieu of the maximum sentence of fifteen years under the state sodomy statute, each appellant was sentenced as a “sex offender” to an indeterminate life sentence under ORS 137.111. Both appellants were committed to the Oregon State Penitentiary (“OSP”) in Salem, Oregon, where they presently remain. With the exception of a three-month parole in 1973 for Ohlinger, neither appellant has been released from OSP since his sentencing.

Appellants sought from the district court a declaratory judgment that their constitutional rights had been violated and an injunction…