Phillips v. Williams

DOOLIN, Justice,

dissenting:

I agree with the majority, a convicted felon has no right to parole under the United States Constitution. Greenholtz made that very clear. The question herein is not a right to be considered for parole, but rather a right to the very minimum in procedural due process in the treatment of an inmate who is already being considered for parole.

The majority states the issue to be “whether parole release provisions of Oklahoma law, considered as a totality — constitutional, statutory, decisional and rule-prescribed — create an expectation of liberty to which federal due process will in some measure attach its shield . . . ” It decides they do not. In making this decision the majority applies an inflexible construction to our parole procedures and a narrow interpretation of the word “expectation”.

The United States Supreme Court has indeed turned the rights of parole hopeful prisoners on the nebulous concept of “expectation of parole,” and the precise wording of a state’s parole procedures. Certainly I concede this authority. Yet this court may follow the Supreme Court’s decree and nevertheless grant the relief sought; there is little doubt Oklahoma’s parole scheme does dictate that certain hopefuls; such as petitioner herein, be granted some minimal due process. I therefore dissent.

The Greenholtz holding is singularly uncomplicated. An inmate in a correctional institution has no constitutionally protected liberty interest emanating from an expectation of parole unless it is created by the statutory scheme in that particular state. It held “there is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence: . / . the conviction, with all its procedural safeguards, has extinguished that liberty right.” The Court held, however, the structure of the Nebraska scheme of parole did indeed create an “expectancy of release . . . entitled to some measure of constitutional protection.

Neb.Rev.Stat. § 83-1,114(1) provides in part:

“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:

“(a) There is a substantial risk that he will not conform to the conditions of parole:

“(b) His release would depreciate the seriousness of his crime or promote disrespect for law;

“(c) His release would have a substantially adverse effect on institutional discipline; or

“(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.” (Emphasis supplied).

On the basis of these provisions the Supreme Court held a constitutionally protected liberty interest arose.

The Supreme Court then examined the Nebraska procedures to determine whether adequate due process was provided. Because it found the procedures did give the measure of due process necessary to protect the statutorily created conditional liberty interest due its inmates, it reversed the circuit court. 1

*1137 It is interesting to note the Court approved the Nebraska scheme in part because it did provide an inmate with written reasons for his denial of parole. It held at 99 S.Ct. 2108 :

“The Nebraska procedure affords an opportunity to be heard and when parole is denied it informs the inmate in what respects he falls short of qualifying for parole; this affords the process that is due under these circumstances.”

That is the sole issue involved in petitioner’s application to this court. He seeks a writ directed to the Pardon and Parole Board requiring it to state the reasons his name was removed from the list of inmates to be considered for parole.

There is no doubt under Greenholtz if our parole process creates a conditional liberty interest protected by limited procedural due process, petitioner is entitled to be advised in writing of the reasons why his parole was denied.

Under Greenholtz a conditional liberty interest is created when an inmate has an “expectancy of parole.” In Oklahoma, when, if ever, does this liberty interest arise?

The majority places much reliance on the 10th Circuit case of Shirley v. Chestnut, 603 F.2d 805 (10th Cir. 1979). As stated therein, Oklahoma has a three-tier system for parole release: 1) the Correctional Review Committee compiles the Pardon and Parole Board’s monthly docket, scheduling inmates for parole consideration; 2) .the Pardon and Parole Board recommends inmates for parole, and 3) the final step where parole is conferred by the governor. A careful reading of Shirley indicates petitioners therein were seeking due process relief from a different position than that of Jimmy Louis Phillips. There is no indication in the circuit court’s opinion that any of the petitioners had once been docketed by the CRC and then removed. Jimmy Louis Phillips has. Jimmy Louis Phillips had already entered the parole system when he sought relief.

The CRC is provided with minimum criteria when drawing up the parole docket. Those criteria, as submitted by respondents, effective 3-20-78, are as follows: 2

MINIMUM CRITERIA FOR CRC RECOMMENDATION OF AN INMATE TO THE PAROLE DOCKET

Department of Corrections employee on a Corrections Review Committee is not authorized to vote for an inmate to a parole docket unless he meets the following criteria at the time he would come before the Pardon and Parole Board:

1. He must have served one-third of his sentence, minus his jail time, unless he meets any of the criteria below.

2. An inmate with a sentence of 45 years or more (including life) must be considered and may be docketed after serving fifteen years.

3. First termers for nonviolent crimes serving sentences of two years or more may be placed on a docket four months before they are eligible.

4. An inmate who has satisfactorily completed ninety days of work release and who has been placed in work release no sooner than eight months prior to one-third parole eligibility may be docketed.

5. Any inmate completing vocational training at Hodgens up to four months prior to parole eligibility may be docketed.

6. Any inmate convicted of DWI or a similar offense may be docketed after serving four months.

7. An inmate may be docketed who meets the above criteria based upon a one-third eligibility date calculated on the basis of his estimated discharge date (calculated as 75% rather than the *1138 calendar length of his sentence. This must be noted properly on the CRC Summary and Recommendation Sheet. (See Attachment B).

8. For an inmate with a 45 year to life sentence, criteria # 7 may be calculated based on a 45 year sentence.

9. An inmate serving a parole violation may be docketed as outlined in # 7 and # 8 above, (as applied to the remaining portion of the parole violation) or after serving two years on the parole violation whichever is the least.

If an inmate’s name is placed on the parole docket by the CRC, he necessarily has qualified for recommendation for parole by the CRC under these standards. If he had not qualified, a CRC member is not authorized to vote for him.

The majority herein as well as the court in Shirley holds there is no “expectancy” of parole generated by the bare creation of parole proceedings in our statutes. Assuming the correctness of the majority position respecting the host of inmates who have never advanced to the first step, the CRC docket does not preclude granting to an inmate who has entered the stream of parole consideration, certain minimal rights.

When an inmate is docketed by the CRC, he has a right to assume he is being considered for recommendation for parole. In other words, at the moment he is docketed, he has acquired a special status, whether based on “expectation” of release or not. It is then a conditional liberty interest may be born under Oklahoma’s parole procedure. Following Shirley , until that time, he has no protected liberty interest.

The majority acknowledges the Forgotten Man Act creates a constitutionally protected liberty interest. If an inmate’s name appears on the monthly parole docket through this channel, the majority admits he is entitled to some procedural safeguards. But if his name appears on the monthly docket based on any other minimum criteria, is he not so entitled? There is no rational basis for a distinction once an inmate has been docketed by the CRC.

Certainly the overall effect of apprising an inmate of the reasons for denial would be beneficial to him, in that he could make an attempt to conform to or satisfy the absent criteria prior to his again making application for parole. The Pardon and Parole Board has no legitimate reason for concealing from an inmate the conduct or failings which had the effect of precluding his parole. An inability to provide any reasons suggests the decision is in fact arbitrary. It should not be burdensome to give reasons when reasons exist. 3

Additionally it is not forbidden that this court give more protection to its citizens than is mandated by the United States Constitution. In Giles v. Maryland, 386 U.S. 66, 81 , 87 S.Ct. 793, 801 , 17 L.Ed.2d 737, 749 (1967) the United States made it clear our federal system entrusts the states with primary responsibility in the criminal area: States are bound by the Constitution’s relevant commands but they are not limited by them. A state is free as a matter of its own law to grant more procedural due process. 4 Even under majority’s view it is not necessary to change the views expressed by this court in Phillips v. Williams, 583 P.2d 488 because of a desire to apply a strict construction to our parole scheme in an attempt to follow the dictates of Green-holtz. Art. II § 7 of the Constitution of the State of Oklahoma provides:

“No person shall be deprived of his life, liberty or property without due process of law.”

In a state where our federal courts have consistently recognized the physical needs *1139 and the rights of our prisoners, I would not hesitate to find Oklahoma due process gives rise to similar incorporeal rights, including the right of an inmate to know what obscure circumstances or personal makeup led to his removal from consideration after he had once been acknowledged as a candidate for parole.

In closing I quote from Monks v. New Jersey State Parole Board, 58 N.J. 238 , 277 A.2d 193, 197 (1971):

“The need for fairness is as urgent in the parole process as elsewhere in the law and it is evident to us that, as a general matter, the furnishing of reasons for denial would be the much fairer course; not only much fairer but much better designed towards the goal of rehabilitation.” “[A] ‘simple bald rejection’ of parole necessarily increases uncertainty and frustration and morbid speculation in the prisoner.” [Quoting at p. 198, Samuels, “Parole: A Critique 1969 Crim.L.Rev. (Eng.) 456],

Because petitioner herein was at one time placed on the parole docket by the CRC, he may assume at that time he met one of the above minimum criteria. If such is not the case, he should be so informed. If he was removed for any other reason, he is entitled to know what it is.”

I would issue the writ.

I am authorized to state that Justice HODGES and Justice SIMMS concur in the views herein expressed.

. Mr. Justice Powell concurring in part and dissenting in part did not believe the applicability of the due process clause to parole release determination depends upon the particular wording of the statute. He was convinced “the presence of a parole system is sufficient to create a liberty interest, protected by the Constitution . . This was also basically the view of Mr. Justice Marshall joined, by Justices Brennan and Stevens who additionally believed Nebraska procedures were inadequate.

. Department of Corrections Operations Memorandum # OP 020104 (Revised) relating to establishment and operation of CRC.

. See Board of Regents of State Colleges v. Roth, 408 U.S. 564 , 92 S.Ct. 2701 , 33 L.Ed.2d 548 (1972).

. See Oregon v. Hass, 420 U.S. 714 , 95 S.Ct. 1215 , 43 L.Ed.2d 570 (1975); Leader, Criminal Law: Nontestimonial Aspect of Oklahoma’s Right Against Self-incrimination, 28 OLR, 22 (1975).