Reply Brief — Carvin L. Thomas, et al., Petitioners v. Roberta Kustoff, Chairman, Tennessee Board of Parole, et al.

No. 25-746

In the Supreme Court of the United States

CARVIN THOMAS, et al.

Petitioners

v.

ROBERTA NEVIL KUSTOFF, et al,

Respondents

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

REPLY BRIEF FOR THE PETITIONERS

Paul Andrew Justice III

1902 Cypress Drive

Murfreesboro, TN 37130

(615) 419-4994

drew@justicelawoffice.com

Counsel for Petitioners

Table of Contents

Rebuttal Argument......................................................1

1.

Liberty Interest by Standard Practice, or by

Implication.........................................................2

2.

Liberty Interest by Statute...............................5

Conclusion....................................................................7

Table of Authorities

CASES

Board

Page(s)

of Pardons v. Allen, 482 U.S. 369

(1987)...........................................................1,5,6

Connecticut Board of Pardons v. Dumschat, 452 U.S.

458 (1981).......................................................3,4

Greenholtz v. Inmates of Neb. Penal and Corr.

Complex, 442 U.S. 1 (1972).........................1,4,7

Jago v. Van Curen, 454 U.S. 14 (1981).................1,2,3

Mayes v. Trammell, 751 F.2d 175 (6th Cir. 1984)......3

Monell v. New York City Dept. of Children's Services,

436 U.S. 658 (1978)...........................................3

STATUTES

42 U.S.C. § 1983...........................................................3

Tenn. Code Ann. § 40-28-101.................................1,5,6

Tenn. Code Ann. § 40-35-503.................................1,3,4

OTHER AUTHORITIES

2021 Tenn. Pub. Acts Chap. 410..............................3,4

1

REBUTTAL ARGUMENT

Mainly, the Board rests its whole argument on

a misstatement of a statute. Falsely, it claims that

the statute Tenn. Code Ann. § 40-28-101 only

imposes guidance for how to treat inmates after

release. In truth, the statute squarely says that

inmates "shall" be released "whenever" the criteria

from Board of Pardons v. Allen are met. See 482 U.S.

369, 376-77 (1987). Once we recognize that point, the

Board's position simply fails. Also, the Board now

cites Jago v. Van Curen, 454 U.S. 14 (1981), to say

that no liberty interest can ever derive from a

standard practice. Although the Petitioners haven't

primarily based their argument on practice, anyway,

they submit that the Board is misapplying the

precedent beyond its intended scope.

To start, though, the Board simply never

disputes that it always applies the statutes just as

the Petitioners want. Namely, it only denies parole

based on the four grounds from Greenholtz v.

Nebraska Penal Inmates, 442 U.S. 1 (1979). Granted,

the Board offers one to three other grounds as

possible disqualifiers, too. (See Brief in Opp., p. 11,

18-19), citing Tenn. Code Ann. § 40-35-503(c) and (g).

But the Complaint already addressed those other

grounds, explaining that the Board simply views

them as subcategories of the original four, even

labeling them as one of the four. (Pet. Appx. 45-46a,

Am. Complaint ¶ 10 n. 2). Regardless, even if the

Board really had seven disqualifiers instead of four,

it would hardly change the constitutional rule. If

2

anything, having more specific criteria would only

create more of a liberty interest, not less.

1.

Liberty Interest by Standard Practice, or

by Implication

According to the Board, the case of Jago

precludes any liberty interest from arising by

common understanding. See 454 U.S. 14; (Brief in

Opp., p. 19). To be clear, the Board never cited this

case in arguments below, thereby giving the

Petitioners no occasion to address it until now.

Simply put, Jago involved no widespread custom, nor

any agreed reading of a statute. Instead, the

"mutually explicit understanding" in Jago arose only

from a single parole decision that was rescindable

until finalized, and that got rescinded. Id., at 20-21.

Since state law allowed for rescission, the Court

found no liberty interest — despite a common

understanding that the release process had begun.

Id. If a one-off promise could create a liberty interest

in this way (similar to a contract, but without

consideration), then any "myriad" of correctional

decisions could only be countermanded by full

hearing. See id., at 19. It would make for an

unworkable rule. Id.

In contrast, here the Board's widespread

agreement with the Petitioner's statutory reading

should count for something. Practically speaking, the

situation is little different from Mayes v. Trammell,

where the Board formally imposed on itself the four

3

Greenholtz criteria and the Sixth Circuit found a

liberty interest. See 751 F.2d 175 (6th Cir. 1984).

Even without a formal public regulation, still a

standard practice can be analogous to policy.

"Although not authorized by written law, . . .

practices of state officials could well be so permanent

and well settled as to constitute a 'custom or usage'

with the force of law." Monell v. New York City Dept.

of Children's Services, 436 U.S. 658, 691 (1978),

citing 42 U.S.C. § 1983. Simply put, to adopt a

statutory interpretation — for everyone — differs

greatly from making "myriad" other promises that

affect only a single inmate. Cf. Jago, 454 U.S. 14, at

19.

Legislative history objectively alludes to the

Board's agreement on how to read the law. The

Board has cited Connecticut Board of Pardons v.

Dumschat, saying that only statutes should matter,

not practices. See 452 U.S. 458, 467 (1981); (Brief in

Opp., p. 19-20). Here, we have statutes that, at

minimum, allude to a practice. In Dumschat, the

court found no right to due process where the

statutes "expressly" gave the board "unfettered

dis]cretion" on clemency, even though the board

actually awarded clemency for life sentences about

three-forths of the time. Id., at 460 and 465-66.

Here, in contrast, the statutes do not "expressly" say

what the Board wants.

Instead, recent amendments allude to the

practice of denying parole only for the four

disqualifiers. Most notably, in 2021 the Tennessee

4

General Assembly added Tenn. Code Ann. § 40-35503(b)(2)(A).1 This new law prohibits the Board (for

certain crimes) from denying parole only for

seriousness of the offense. The seriousness ground

comes from Greenholtz. Hence, the amendment is

acknowledging the Board's practice of denying parole

only for those criteria. It is saying that for certain

crimes, the Board may only deny for one of the other

three disqualifiers. Would it make any sense to

prohibit denial for seriousness of the offense, if the

Board still had "unfettered discretion" to deny for

any other ground that it may possibly dream up? Cf.

Dumschat, 452 U.S. 458, at 460 and 465-66. No, it

would not. Instead, this allusion to the Greenholtz

framework supports the Petitioners' view.

Similarly, the enactment of Tenn. Code Ann. §

40-35-503(j), requiring a written reason for a denial,

alludes to the same practice of denying only for the

four disqualifiers.2 On this point, the Board

complains that the Petitioners have not explained

how the requirement to give a reason could possibly

signify any right to due process. (Brief in Opp., p. 18).

Maybe the Petition just did not explain it well

enough. But this Court has already explained it once

before: "A state cannot be required to explain its

reasons for a decision when it is not required to act

on prescribed grounds." Dumschat, 452 U.S. 458, at

467. If a state need not act on prescribed grounds,

then it need not state a reason. Flipping this rule to

its contrapositive: If a state must state a reason, then

1

2021 Tenn. Pub. Acts Chap. 410 ("Re-Entry Success Act")

2

Enacted as part of the same 2021 bill.

5

indeed it must act on prescribed grounds. And the

prescribed grounds create the liberty interest. Simply

put, the requirement to state a reason implies an

expectation of parole.

2.

Liberty Interest by Statute

Regardless of any custom or implication, the

Petitioners' biggest argument is simply based on the

statutes. Most notably, the statute Tenn Code Ann.

§ 40-28-101 uses language similar to Allen, 482 U.S.

369. Unfortunately, the Board seems unwilling even

to acknowledge the language. (Likewise, the Sixth

Circuit failed to address the full language of the

statute, just as it failed to articulate the broad rule of

Allen.) Misleadingly, the Board quotes or

summarizes the statute only this way:

It provides that probation and parole decisions

"shall take into account ... individual

characteristics, needs, and potentialities," and

persons who are released on probation or

parole "shall be dealt with in the community

by a uniformly organized system of

constructive rehabilitation under probation

supervision ... or under parole supervision."

(Brief in Opp., p. 10) (emphasis added but otherwise

unaltered), citing Tenn Code Ann. § 40-28-101. Later,

the Board expressly denies that the word "shall" is

even used for release at all. (Id., at p. 22-23). The

problem, though, is that the statute doesn't really

6

say, "Persons who are released shall be dealt with in

the community." Nor does it even say anything

particularly close.

Instead, the statute says in pertinent part:

"[P]ersons convicted of crime . . . shall be dealt with

in the community . . . whenever it appears desirable

in light of the needs of public safety and their own

welfare." Tenn. Code Ann. § 40-28-101(a) (emphases

added). The release is mandatory, conditioned only

on the same basic criteria as in Allen, 482 U.S. 369,

at 376-77. There, the statute mandated release

whenever a prisoner could live lawfully, and not

harm himself or society. Id. Here the mandatory

condition is similar. Unfortunately, the Board has

now taken a statute that says individuals "shall" be

released, "whenever" meritorious, and pretended that

it only commands certain treatment of individuals

who "are" already released. Granted, the full wording

of the statute is convoluted. But the Board has not

presented a fair reading.

7

CONCLUSION

The real statutory language creates a liberty

interest. Further, the Board's standard practice of

applying the Greenholtz framework, as acknowledged

by recent statutory amendment, is also relevant to

showing a liberty interest. The Court should grant

certiorari and reverse.

Respectfully submitted,

Paul Andrew Justice III

Attorney for the Petitioners

1902 Cypress Drive

Murfreesboro, TN 37130

(615) 419-4994

drew@justicelawoffice.com