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No Due Process For Discretionary Parole Hearings

The U.S. Supreme Court ruled that Nebraska parole procedures were
constitutional. Nebraska prisoners filed a § 1983 class action suit
against the state parole board after they were denied parole. The
prisoners alleged that the parole board did not meet procedural due
process requirements as they provided no specific evidence for parole
denials. A U.S. district court ruled in the prisoners' favor and
prescribed remedies to bring the procedures up to constitutional
standards. The court of appeals for the Eighth circuit affirmed in part
and modified the remedy, 576 F.2d 1274. The U.S. Supreme Court, however,
reversed. They held that no due 'process entitlement is created by the
mere possibility of parole and that Nebraska's parole procedures are
constitutional. See index for other cites in this case. See: Greenholtz v.
Inmates of Nebraska Penal S. Corr. 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d
668 (1979).

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Related legal case

Greenholtz v. Inmates of Nebraska Penal S. Corr.



[2] No. 78-201

[3] 99 S. Ct. 2100, 442 U.S. 1, 60 L. Ed. 2d 668, 1979

[4] Decided: May 29, 1979.



[7] Ralph H. Gillan, Assistant Attorney General of Nebraska, argued the cause for petitioners. With him on the brief was Paul L. Douglas, Attorney General.

[8] Brian K. Ridenour argued the cause and filed a brief for respondents.

[9] William Alsup argued the cause for the United States as amicus curiae. On the brief were Solicitor General McCree, Assistant Attorney General Heymann, Deputy Solicitor General Easterbrook, and William G. Otis.*fn*

[10] Burger, C. J., delivered the opinion of the Court, in which Stewart, White, Blackmun, and Rehnquist, JJ., joined. Powell, J., filed an opinion concurring in part and dissenting in part, post, p. 18. Marshall, J., filed an opinion dissenting in part, in which Brennan and Stevens, JJ., joined, post, p. 22.

[11] Author: Burger

[ 442 U.S. Page 3]

[12] MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

[13] We granted certiorari to decide whether the Due Process Clause of the Fourteenth Amendment applies to discretionary parole-release determinations made by the Nebraska Board of Parole, and, if so, whether the procedures the Board currently provides meet constitutional requirements.

[14] I

[15] Inmates of the Nebraska Penal and Correctional Complex brought a class action under 42 U. S. C. § 1983 claiming that they had been unconstitutionally denied parole by the Board

[ 442 U.S. Page 4]

of Parole. The suit was filed against the individual members of the Board. One of the claims of the inmates was that the statutes and the Board's procedures denied them procedural due process.

[16] The statutes provide for both mandatory and discretionary parole. Parole is automatic when an inmate has served his maximum term, less good-time credits. Neb. Rev. Stat. § 83-1,107 (1)(b) (1976). An inmate becomes eligible for discretionary parole when the minimum term, less good-time credits, has been served. § 83-1,110 (1). Only discretionary parole is involved in this case.

[17] The procedures used by the Board to determine whether to grant or deny discretionary parole arise partly from statutory provisions and partly from the Board's practices. Two types of hearings are conducted: initial parole review hearings and final parole hearings. At least once each year initial review hearings must be held for every inmate, regardless of parole eligibility. § 83-192 (9).*fn1 At the initial review hearing, the Board examines the inmate's entire preconfinement and postconfinement record. Following that examination it provides an informal hearing; no evidence as such is introduced, but the Board interviews the inmate and considers any letters or statements that he wishes to present in support of a claim for release.

[18] If the Board determines from its examination of the entire record and the personal interview that he is not yet a good risk for release, it denies parole, informs the inmate why release was deferred and makes recommendations designed to

[ 442 U.S. Page 5]

help correct any deficiencies observed. It also schedules another initial review hearing to take place within one year.

[19] If the Board determines from the file and the initial review hearing that the inmate is a likely candidate for release, a final hearing is scheduled. The Board then notifies the inmate of the month in which the final hearing will be held; the exact day and time is posted on a bulletin board that is accessible to all inmates on the day of the hearing. At the final parole hearing, the inmate may present evidence, call witnesses and be represented by private counsel of his choice. It is not a traditional adversary hearing since the inmate is not permitted to hear adverse testimony or to cross-examine witnesses who present such evidence. However, a complete tape recording of the hearing is preserved. If parole is denied, the Board furnishes a written statement of the reasons for the denial within 30 days. § 83-1,111 (2).*fn2

[20] II

[21] The District Court held that the procedures used by the Parole Board did not satisfy due process. It concluded that the inmate had the same kind of constitutionally protected "conditional liberty" interest, recognized by this Court in Morrissey v. Brewer,408 U.S. 471 (1972), held that some of the procedures used by the Parole Board fell short of constitutional guarantees, and prescribed several specific requirements.

[22] On appeal, the Court of Appeals for the Eighth Circuit agreed with the District Court that the inmate had a Morrissey- type, conditional liberty interest at stake and also found a

[ 442 U.S. Page 6]

statutorily defined, protectible interest in Neb. Rev. Stat. § 83-1,114 (1976). The Court of Appeals, however, 576 F.2d 1274, 1285, modified the procedures required by the District Court as follows:

[23] (a) When eligible for parole each inmate must receive a full formal hearing;

[24] (b) the inmate is to receive written notice of the precise time of the hearing reasonably in advance of the hearing, setting forth the factors which may be considered by the Board in reaching its decision;

[25] (c) subject only to security considerations, the inmate may appear in person before the Board and present documentary evidence in his own behalf. Except in unusual circumstances, however, the inmate has no right to call witnesses in his own behalf;

[26] (d) a record of the proceedings, capable of being reduced to writing, must be maintained; and

[27] (e) within a reasonable time after the hearing, the Board must submit a full explanation, in writing, of the facts relied upon and reasons for the Board's action denying parole.

[28] The court's holding mandating the foregoing procedures for parole determinations conflicts with decisions of other Courts of Appeals, see, e. g., Brown v. Lundgren,528 F.2d 1050 (CA5), cert. denied, 429 U.S. 917 (1976); Scarpa v. United States Board of Parole, 477 F.2d 278 (CA5) (en banc), vacated as moot, 414 U.S. 809 (1973); Scott v. Kentucky Parole Board, No. 74-1899 (CA6 Jan. 15, 1975), vacated and remanded to consider mootness, 429 U.S. 60 (1976). See also Franklin v. Shields, 569 F.2d 784, 800 (CA4 1977), cert. denied, 435 U.S. 1003 (1978); United States ex rel. Richerson v. Wolff, 525 F.2d 797 (CA7 1975), cert. denied, 425 U.S. 914 (1976). We granted certiorari to resolve the Circuit conflicts. 439 U.S. 817.

[ 442 U.S. Page 7]


[29] The Due Process Clause applies when government action deprives a person of liberty or property; accordingly, when there is a claimed denial of due process we have inquired into the nature of the individual's claimed interest.

[30] "[To] determine whether due process requirements apply in the first place, we must look not to the 'weight' but to the nature of the interest at stake." Board of Regents v. Roth,408 U.S. 564, 570-571 (1972).

[31] This has meant that to obtain a protectible right

[32] "A person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Id., at 577.

[33] There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence. The natural desire of an individual to be released is indistinguishable from the initial resistance to being confined. But the conviction, with all its procedural safeguards, has extinguished that liberty right: "[Given] a valid conviction, the criminal defendant has been constitutionally deprived of his liberty." Meachum v. Fano,427 U.S. 215, 224, (1976).

[34] Decisions of the Executive Branch, however serious their impact, do not automatically invoke due process protection; there simply is no constitutional guarantee that all executive decisionmaking must comply with standards that assure errorfree determinations. See Id., at 225; Montanye v. Haymes,427 U.S. 236 (1976); Moody v. Daggett, 429 U.S. 78, 88 n. 9 (1976). This is especially true with respect to the sensitive choices presented by the administrative decision to grant parole release.

[35] A state may, as Nebraska has, establish a parole system, but it has no duty to do so. Moreover, to insure that the

[ 442 U.S. Page 8]

state-created parole system serves the public-interest purposes of rehabilitation and deterrence,*fn3 the state may be specific or general in defining the conditions for release and the factors that should be considered by the parole authority. It is thus not surprising that there is no prescribed or defined combination of facts which, if shown, would mandate release on parole. Indeed, the very institution of parole is still in an experimental stage. In parole releases, like its siblings probation release and institutional rehabilitation, few certainties exist. In each case, the decision differs from the traditional mold of judicial decisionmaking in that the choice involves a synthesis of record facts and personal observation filtered through the experience of the decisionmaker and leading to a predictive judgment as to what is best both for the individual inmate and for the community.*fn4 This latter conclusion requires the Board to assess whether, in light of the nature of the crime, the inmate's release will minimize the gravity of the offense, weaken the deterrent impact on others, and undermine respect for the administration of justice. The entire inquiry is, in a sense, an "equity" type judgment that cannot always be articulated in traditional findings.

[36] IV

[37] Respondents suggest two theories to support their view that they have a constitutionally protected interest in a parole determination which calls for the process mandated by the Court of Appeals. First, they claim that a reasonable entitlement is created whenever a state provides for the possibility

[ 442 U.S. Page 9]

of parole. Alternatively, they claim that the language in Nebraska's statute, Neb. Rev. Stat. § 83-1,114 (1) (1976), creates a legitimate expectation of parole, invoking due process protections.

[38] A

[39] In support of their first theory, respondents rely heavily on Morrissey v. Brewer, 408 U.S. 471 (1972), where we held that a parole-revocation determination must meet certain due process standards. See also Gagnon v. Scarpelli,411 U.S. 778 (1973). They argue that the ultimate interest at stake both in a parole-revocation decision and in a parole determination is conditional liberty and that since the underlying interest is the same the two situations should be accorded the same constitutional protection.

[40] The fallacy in respondents' position is that parole release and parole revocation are quite different. There is a crucial distinction between being deprived of a liberty one has, as in parole, and being denied a conditional liberty that one desires. The parolees in Morrissey (and probationers in Gagnon) were at liberty and as such could "be gainfully employed and [were] free to be with family and friends and to form the other enduring attachments of normal life."408 U.S., at 482. The inmates here, on the other hand, are confined and thus subject to all of the necessary restraints that inhere in a prison.

[41] A second important difference between discretionary parole release from confinement and termination of parole lies in the nature of the decision that must be made in each case. As we recognized in Morrissey, the parole-revocation determination actually requires two decisions: whether the parolee in fact acted in violation of one or more conditions of parole and whether the parolee should be recommitted either for his or society's benefit. Id., at 479-480. "The first step in a revocation decision thus involves a wholly retrospective factual question." Id., at 479.

[42] The parole-release decision, however, is more subtle and

[ 442 U.S. Page 10]

depends on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the Board members based upon their experience with the difficult and sensitive task of evaluating the advisability of parole release. Unlike the revocation decision, there is no set of facts which, if shown, mandate a decision favorable to the individual. The parole determination, like a prisoner-transfer decision, may be made

[43] "for a variety of reasons and often [involves] no more than informed predictions as to what would best serve [correctional purposes] or the safety and welfare of the inmate." Meachum v. Fano,427 U.S., at 225.

[44] The decision turns on a "discretionary assessment of a multiplicity of imponderables, entailing primarily what a man is and what he may become rather than simply what he has done." Kadish, The Advocate and the Expert -- Counsel in the Peno-Correctional Process, 45 Minn. L. Rev. 803, 813 (1961).

[45] The differences between an initial grant of parole and the revocation of the conditional liberty of the parolee are well recognized. In United States ex rel. Bey v. Connecticut Board of Parole,443 F.2d 1079, 1086 (1971), the Second Circuit took note of this critical distinction:

[46] "It is not sophistic to attach greater importance to a person's justifiable reliance in maintaining his conditional freedom so long as he abides by the conditions of his release, than to his mere anticipation or hope of freedom."

[ 442 U.S. Page 11]

Judge Henry Friendly cogently noted that "there is a human difference between losing what one has and not getting what one wants." Friendly, "Some Kind of Hearing," 123 U. Pa. L. Rev. 1267, 1296 (1975). See also Brown v. Lundgren,528 F.2d, at 1053; Scarpa v. United States Board of Parole, 477 F.2d, at 282; Franklin v. Shields, 569 F.2d, at 799 (Field, J., dissenting); United States ex rel. Johnson v. Chairman, New Page 11} York State Board of Parole, 500 F.2d 925, 936 (CA2 1974) (Hay, J., dissenting).

[47] That the state holds out the possibility of parole provides no more than a mere hope that the benefit will be obtained. Board of Regents v. Roth,408 U.S., at 577. To that extent the general interest asserted here is no more substantial than the inmate's hope that he will not be transferred to another prison, a hope which is not protected by due process. Meachum v. Fano,427 U.S., at 225; Montanye v. Haymes, supra.

[48] B

[49] Respondents' second argument is that the Nebraska statutory language itself creates a protectible expectation of parole. They rely on the section which provides in part:

[50] "Whenever the Board of Parole considers the release of a committed offender who is eligible for release on parole, it shall order his release unless it is of the opinion that his release should be deferred because:

[51] "(a) There is a substantial risk that he will not conform to the conditions of parole;

[52] "(b) His release would depreciate the seriousness of his crime or promote disrespect for law;

[53] "(c) His release would have a substantially adverse effect on institutional discipline; or

[54] "(d) His continued correctional treatment, medical care, or vocational or other training in the facility will substantially enhance his capacity to lead a law-abiding life when released at a later date." Neb. Rev. Stat. § 83-1,114 (1) (1976).*fn5

[55] Respondents emphasize that the structure of the provision together with the use of the word "shall" binds the Board of

[ 442 U.S. Page 12]

Parole to release an inmate unless any one of the four specifically designated reasons are found. In their view, the statute creates a presumption that parole release will be granted, and that this in turn creates a legitimate expectation of release absent the requisite finding that one of the justifications for deferral exists.