Amicus Brief — Scott v. Kentucky Parole Bd.

Iu the Supreme Court of the United States

OCTOBER TERM, 1975

EWELL SCOTT, PETITIONER

KENTUCKY PAROLE BOARD, ET AL

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

ROBERT H

a |

SO for

RICHARD I

FRANK H

Assistant to the S tor General,

SHIRLEY BAcct

Att rney,

Departme

Washington,

a

Cases:

Question presented asain

Interest of the United States.

ARISES RRR DI Ry ean = a ea

Introduction and summary of argument ____

Argument:

Under the Kentucky early release system,

a prisoner’s application for parole does

not implicate the procedural protections

of the Due Process Clause

A.

The procedural protections of the

Due Process Clause apply only to

proceedings that may result in the

deprivation of an individual’s “lib-

weary”

Except to the extent that he may

have a legitimate claim of entitle-

ment grounded in the statutes, regu-

lations, or rules governing the terms

of his confinement, a prisoner has no

constitutionally cognizable interest in

being released on parole

Petitioner has no legitimate claim of

entitlement to release on parole

IR 2-2 U ree ene oe

CITATIONS

14

15

17

24

30

Arnett v. Kennedy, 416 U.S, 134.13, 17, 22, 24

Barnes v. United States, 445 F.2d 260.

27

II

Cases—Continued Page

Board of Regents v. Roth, 408 U.S. 564 16, 20,

21, 22, 26, 28, 29

Bradford v. Weinstein, 519 F.2d 728,

vacated as moot, No. 74-1287, Decem-

gS eC en 1, 27

Cafeteria & Restaurant Workers v. Mc-

ee 22

Cardaropoli v. Norton, 523 F.2d 990 __. 23

Carlo v. Gunter, 520 F.2d 1293 7

Childs v. United States Board of Parole,

Re _ RRTRE Eevee 27

Clay v. Henderson, 524 F.2d 921 __ 26

Dorado y. Kerr, 454 F.2d 892, certiorari

denied, 409 U.S. 934 - oie 27

Gagnon v. Scarpelli, 411 US. 778 18

Geneva Towers Tenants Organization v.

Federated Mortgage Investors, 504 F.2d

483 - _ 23-24

Gilmore v. . Lynch, 400 F.2d 228, certiorari

denied, 393 U.S. 1092 _............-. )

Goldberg v. Kelly, 397 U.S. 254 in 23

Goss v. Lopez, 419 U.S. 565 = SsC«d: 7, 22

Grattan v. Sigler, 525 F.2d 329 27

Harrison v. Robuck, 508 S.W.2d 767 7, 25

Haymes v. Regan, 525 F.2d 540 26

Jackson v. Wise, 390 F.Supp. 19 28

Lokey v. Richardson, C.A. 9, No. 74- 1256,

decided December 9, 1975 | 7

Madden v. New Jersey State Parole

Board, 438 F.2d 1189 . . 27

Mathews v. Eldridge, No. 74- 204, “decided

yesruary 36, i076 —........................... 22

McCarty v. Woodson, 465 F.2d 822 _ _. 9

McIntosh v. Woodward, 514 F.2d 95... 28

Cases—Continued Page

Meachum v. Fano, No. 75-252, certiorari

granted, December 8, 1975 = Ss 7, 27

Meyer v. Nebraska, 262 U.S. 390 20

Montanye v. Haymes, No. 74-520, certior-

ari granted, 422 U.S. 1055 7

Morrissey v. Brewer, 408 U.S. 471... 18, 20

Mosley v. Ashby, 459 F.2d 477 —. 27

Oklahoma Natural Gas Co. v. Russell,

261 U.S. 290 - canadien 9

Pell v. Procunier, 417 U.S. 817 | oem 8

Perry v. Sindermann, 408 U.S. 593 | 22

Phillips v. United States, 312 U.S. 246 9

Preiser v. Newkirk, 422 U.S. 395 1

Price v. Johnston, 334 U.S. 266 18

Procunier v. Martinez, 416 U.S. 396 8,18

Raper v. Lucey, 488 F.2d 748 24

Richardson v. Perales, 402 U.S. 389 22, 23

Rogers v. Paul, 382 U.S. 198 . celal 1

Sands v. Wainwright, 491 F.2d 417, cer-

tiorari denied sub nom. Guajardo v.

Estelle, 416 U.S. 992 - i 8-9

Scarpa v. United States Board of Parole,

477 F.2d 278, vacated as moot, 414

Ff 2 eee 27

Schawartzberg v. United States Board of

Parole, 399 F.2d 297 | a leeiank 27

Sexton v. Wise, 494 F.2d 1176 © Lac neu Ie 28

United States ex rel. Gereau v. Hender-

son, 526 F.2d 889 - abies 11

United States ex rel. Johnson Vv. _ Chair-

man of New York State Board of

Parole, 500 F.2d 925, vacated as moot,

Se MI: SUED ann cesueseceeneeininnanneninnnn 27

IV

Cases—Continued Page

United States ex rel. Myers v. Sielaff, 381

F.Supp. 840 _.. 7

United States ex rel. Richerson v. Wolff,

525 F.2d 797 27

Wolff v. McDonnell, 418 U.S. 539 18, 19, 20

Constitution, statutes, regulations and rules:

Constitution of the United States, Four-

teenth Amendment | 12, 21

18 U.S.C. 4161 | 14

18 U.S.C. 4165 __ = ; | 14

BE I MII oo eciintecinincorenninmnssesinnisninesis 4

18 U.S.C. 4203 . wes 4, 25

28 U.S.C. 2281 . ea - 8

42 U.S.C. 1983 nani oe 7

Ky. Rev. Stat. (1973):

§ 439.320 _ a 7,24

§ 439.330 . 7,24

§ 439.340 inak 7,24

Maine Revised Statutes Annotated, Title

17-A, § 1254 (1976) . _..... 6

28 C.F.R. Part 2 (1975) —00 2

28 C.F.R. 2.18 (1975) | 25

28 C.F.R. 2.20(c) (1975) | 25

501 KAR 1:010, $9 (1975) 24

Miscellaneous:

Currie, The Three-Judge District Court

in Constitutional Litigation, 32 U. Chi.

L. Rev. 1 (1964) eee 9

GD a I I ines cn ceseeisionieeeineniens 2

Friendly, “Some Kind of Hearing,” 123

U. Pa. L. Rev. 1267 (1975) 2.00. am 12

Vv

Miscellaneous—Continued

H.R. 5727, 94th Cong., 2d Sess. (1976) .

18 U.S.C. 4206 _....

18 U.S.C. 4206(c) .

Kadish, The Advocate and the Expert—

Counsel in the Peno-Correctional Proc-

ess, 45 Minn. L. Rev. 803 (1961)

Morris, The Future of Imprisonment

TERE SE EIS SAN Roe SM

Sigler, Abolish Parole?, 39 Fed. Prob. 42

(June 1975) -

Wilson, Thinking About Crime (1975)

Page

4,5

12

11

Iu the Supreme Court of the United States

OCTOBER TERM, 1975

No. 74-6438

EWELL SCOTT, PETITIONER

Vv.

KENTUCKY PAROLE BOARD, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

QUESTION PRESENTED

The United States will discuss the question whether

a prisoner’s application for parole implicates the pro-

cedural protections of the Due Process Clause.’

1 We do not discuss whether petitioner should be allowed to

substitute new parties in this Court. Cf. Rogers v. Paul, 382

U.S. 198, 199. If substitution is not allowed, however, this

case is apparently moot, for petitioner was released on parole

on November 26, 1975. See Weinstein v. Bradford, No.

74-1287, vacated as moot, December 10, 1975; Preiser v.

Newkirk, 422 U.S. 395.

(1)

2

INTEREST OF THE UNITED STATES

This case involves the question whether a prison-

er’s application for parole, during a period of eligibil-

ity, implicates the procedural protections of the Due

Process Clause. For the reasons that we discuss be-

low, we believe that a prisoner’s unilateral expecta-

tion that the Board will exercise its discretion in his

favor is neither a “liberty” nor a “property” interest

within the meaning of that Clause, and consequently

that the responsibility for evaluating and implement-

ing the procedures to be followed in considering ap-

plications for parole is entrusted to the provinces of

the federal and state legislatures and executives. A

contrary decision by this Court would affect the con-

stitutional context in which the federal parole system

operates.

1. The United States maintains an extensive

parole system. In 1975 the United States Board of

Parole made 10,998 final parole decisions concerning

adult prisoners, and granted parole in 5,316, or

slightiy less than half, of the cases.’

Under the Board’s regulations (28 C.F.R. Part 2

(1975), as amended, 40 Fed. Reg. 41328-41342; see

Pet. Br. App. C), a prisoner’s application for parole is

accorded substantial procedural protection. Applica-

tion forms are provided to each prisoner eligible for

parole. Each prisoner also receives an Inmate Back-

ground Statement, which he can return to the Board

* This information has been derived by the Board of Parole

from unpublished data.

3

to present his version of the factors the Board should

consider. Although the regulations do not require a

hearing on every application, we are informed by the

Board that hearings are granted as a matter of

course. The prisoner is given written notice of the

time and place of the hearing. Before the hearing,

he is entitled to review his central file, including

classification and disciplinary reports. He is entitled

to be represented at the hearing by a person of his

choice.

The initial parole hearing is conducted by a panel

of two examiners designated by the Board. The panel

discusses with the inmate the factors it considers in

acting on his application, including the facts relating

to his offense, his prior viminal record, his personal

history and institutional experience, changes in his

motivation and behavior, and his release plans. The

Board has prescribed objective guidelines indicating

the customary range of time to be served before re-

lease for various combinations of these factors. The

inmate’s representative may respond to the panel’s

questions during the hearing and may offer a state-

ment at the conclusion.

If parole is denied, the prisoner is furnished in

most cases with a “guideline evaluation statement,”

which sets forth the factors upon which the Board

relied and shows the Board’s evaluation of those fac-

tors in the prisoner’s case.

The prisoner may appeal an adverse panel decision

4

to the Regional Director. The prisoner may not ap-

pear at the appellate hearing, but attorneys, rela-

tives, and other interested parties may appear at the

discretion of the Director. The Regional Director’s

decision can be appealed to the National Appellate

Board. The National Appellate Board’s decision is

final.

2. These parole procedures are unlikely to be

directly affected by the outcome of this case. The

interest of the United States in this case is more

general: to defend the prerogatives of Congress and

the Executive to reconsider, determine, and imple-

ment the procedures that govern consideration of ap-

plications for parole.

Current statutes delegate absolute discretion to the

Board of Parole to decide whether a prisoner shall

be paroled. See 18 U.S.C. 4202 and 4203. The

Board’s present hearing and release guidelines and

procedures were developed by the Board after a care-

ful three-year study conducted by the National Coun-

cil on Crime and Delinquency and an analysis of the

results of a pilot project begun in October 1972 in

one of the Board’s regions. If this Court should hold

that the Due Process Clause governs consideration of

applications for parole, future experimentation and

alteration could be hindered or precluded. More-

over, the United States is considering making sub-

stantial changes in the parole system. H.R. 5727, 94th

Cong., 2d Sess., was passed by the Senate on March

2, 1976, by the House on March 3, 1976, and has

5

been transmitted to the President, who has not yet

(as of March 10, 1976) acted upon the bill.’ The

° H.R. 5727 would abolish the Board of Parole and create

a “United States Parole Commission” as an independent

agency within the Department of Justice. The bill provides

that any prisoner would be eligible for parole after one-third

(or ten years, whichever comes first) of his sentence. The bill

would amend 18 U.S.C. 4206 to provide that “[i]f an eligible

prisoner has substantially observed the rules of the institu-

tion * * * to which he has been confined, and if the Com-

mission * * * determines” that his release would not depreciate

the seriousness of his offense or promote disrespect for the

law, and that “release would not jeopardize the public wel-

fare,” the prisoner “shall be released.” This provision would

be qualified by Section 4206(c), which would allow the Com-

mission to “grant or deny release on parole notwithstanding

the guidelines referred to * * * [above] if it determines there

is good cause for so doing.” In order to exercise this discretion

the Commission must give the prisoner a written notice of

the reasons for the decision and must provide the prisoner

“a summary of the information relied upon.” After serving

two-thirds of his sentence (or 30 years, whichever comes

first) a prisoner “shall” be released without respect to the

criteria already described, except that “‘he Commission shall

not release such prisoner if it determines that he has seriously

or frequently violated institution rules or regulations or that

there is a reasonable probability that he will commit any * * *

crime.” Under the argument we present at pages 17-29, infra,

H.R. 5727 therefore would establish a constitutionally pro-

tected interest in release from prison after an inmate has

served two-thirds (or 30 years) of his sentence; he could not

be retained longer in prison without procedures designed to

facilitate accurate determination of the facts upon which re-

lease could be withheld. Prior to that time, however, the Com-

mission would possess complete discretion over the grant or

denial of parole, subject only to the “guidelines” enumerated

and to its obligation (under proposed Section 4206(c)) to give

notice and provide a factual summary.

H.R. 5727 itself establishes procedures more comprehensive

6

Attorney General has suggested that serious consid-

eration should be given to abolishing parole and

replacing it with a system of mandatory release after

a period of good behavior.‘ The power of Congress to

choose among proposed release systems could be sub-

stantially affected by the outcome of this case.

Many other types of decisions affecting prisoners,

such as those concerning eligibility for work-release

programs and furloughs, involve opportunities for

prisoners to acquire some “conditional liberty” at the

discretion of penal authorities. Similarly, many de-

cisions that do not involve a temporary release from

incarceration may nevertheless involve greater liberty

within the institution—decisions relating to place-

ment in a particular prison, security classification,

and work assignments are but a few of many exam-

than would be required by the Due Process Clause. The bill

provides that each inmate shall be afforded a personal hearing

at least every two years on and after the date of his eligibility

for release. He is entitled to appear in person and to testify;

he may be accompanied by a representative: the Commission

must give him notice of the hearing and make available to

him any file or report to be used in making its decision. A

record of the hearing would be kept and, if parole is denied,

the prisoner would be entitled to a personal conference with

the responsible examiner or Commissioner at which the rea-

sons for denial would be explained.

* Address by the Attorney General before the Governors’

Conference on Employment and the Prevention of Crime.

February 2, 1976. Maine has adopted a program similar to

that proposed by the Attorney General. See Maine Revised

Statutes Annotated, Title 17-A, § 1254 (effective March 1,

1976). Other States are considering legislation to the same

effect.

7

ples.” The Court’s resolution of the question pre-

sented here could have significant implications for the

institutional handling of such “housekeeping” deci-

sions. ;

STATEMENT

Kentucky allows most prison inmates to apply for

parole upon completion of a specified portion of their

sentences. State law commits the decision whether to

grant parole to the discretion of the Kentucky Parole

Board. Kentucky Rev. Stat. §§ 439.320, 439.330 and

439.340 (1973). The Parole Board has not bound

itself by express or implied rules to grant parole in

any particular case. It retains discretion over all

applications, and no specific set of facts will entitle

an individual to be paroled. See Pet. Br. 9-10, 5a-6a;

Harrison v. Robuck, 508 S.W.2d 767 (Ky.).

Petitioner is an inmate in the Kentucky state prison

system who was considered for and denied immediate

parole. On February 15, 1974, petitioner and Calvin

Bell, who also had been denied parole, brought a class

action under 42 U.S.C. 1983, asserting that the State

had not used constitutionally adequate procedures in

considering their parole applications (App. 2-9). The

>See, e.g., Montanye Vv. Haymes, No. 74-520, certiorari

granted, 422 U.S. 1055 (institutional placement); Meachum

v. Fano, No. 75-252, certiorari granted, December 8, 1975

(same); Cardaropoli Vv. -.orton, 523 F.2d 990 (C.A. 2) (insti-

tutional status designation); Lokey v. Richardson, C.A. 9, No.

74-1256, decided December 9, 1975 (security classification) ;

Carlo v. Gunter, 520 F.2d 1293 (C.A. 1) (same); United

States ex rel. Myers V. Sielaff, 381 F. Supp. 840 (E.D. Pa.)

(application for discretionary furlough).

8

complaint stated that, although petitioner had an op-

portunity to meet with: the Parole Board after ad-

vance notice (App. 4-5), he was not allowed to pre-

sent evidence, to be represented by counsel, or to see

or rebut any evidence upon which the Parole Board

may have relied (App. 5). The complaint also stated

that the Parole Board rarely announces reasons for

its decisions to grant or deny applications for parole

(App. 5-6) and that it has not announced any stand-

ards or rules governing the exercise of its discretion

to pass upon applications (App. 3, 5, 7).

The district court refused to certify the case as a

class action and denied the individual claims for

declaratory and injunctive relief (App. 14-16).° The

®* There is a substantial question whether this case is

properly before the Court. Petitioner’s civil rights action

sought an injunction that would have directed respondents

to promulgate rules for the conduct of parole release hearings

meeting at least nine criteria that the complaint asserted are

established by the Constitution (App. 8-9). Constitutional

challenges seeking injunctions against state statutes and regu-

lations of statewide applicability must be heard by district

courts of three judges. 28 U.S.C. 2281. Many of the prison

due process cases that have been considered by this Court

have been heard on appeal from a three-judge district court.

See, e.g., Pell v. Procunier, 417 U.S. 817; Procunier v. Mar-

tinez, 416 U.S. 396. (Other cases arose in habeas corpus; no

injunction was sought.)

Many of petitioner’s constitutional arguments expressly

chalienge the validity of state statutes and of the regulations

(Pet. Br. la-8a) promulgated by the Kentucky Parole Board.

In an exhaustive discussion of the applicability of Section

2281 to due process challenges to prison conditions, the Fifth

Circuit has unanimously held en banc that in situations of this

sort a three-judge court must be convened. Sands v. Wain-

9

district court held that the Due Process Clause does

not apply to the consideration of applications for

parole. The court of appeals affirmed, concluding that

“the complaint alleged no violation of rights guar-

anteed to the plaintiffs under the United States Con-

stitution * * *” (App. 21).

INTROI'!CTION AND SUMMARY OF ARGUMENT

Petitioner’s presentation reflects the understand-

ing that parole release decisions are of great im-

portance in the life of a prisoner, and the belief that

it is concomitantly important that such decisions be

made only after studied deliberations and procedures

calculated to minimize the chance that a denial of

parole will be based upon misapprehensions of fact

or mistaken judgment. There is much to be said for

that view, and the federal Board of Parole now pro-

vides hearings calculated to solicit the views of pris-

oners and to keep them informed of the standards by

which decisions will be made and the reasons for the

decision in their particular case.

wright, 491 F.2d 417, certiorari denied sub nom. Guajardo V.

Estelle, 416 U.S. 992. Even if the statewide practices under

attack are simply authorized or permitted by state statutes

or regulations rather than compelled by them, a three-judge

court still would appear to be required. See Sands v. Wain-

wright, supra, 491 F.2d at 427-429; Gilmore v. Lynch, 400

F.2d 228 (C.A. 9), certiorari denied, 393 U.S. 1092; McCarty

v. Woodson, 465 F.2d 822 (C.A. 10). Cf. Oklahoma Natural

Gas Co. V. Russell, 261 U.S. 290, 292. But cf. Phillips v. United

States, 312 U.S. 246. See generally Currie, The Three-Judge

District Court in Constitutional Litigation, 32 U. Chi. L. Rev.

1, 50 (1964).

10

The result for which petitioner argues therefore

may accord with “enlightened public policy.” But the

question here is not the wisdom of the result but

rather whether the task of defining and implement-

ing “enlightened public policy” with regard to parole

proceedings is vested by the Constitution in the legis-

lative and executive branches, or rather in the courts

under the Due Process Clause. That hearings or other

formal procedures may improve the comprehensive-

ness and accuracy of a parole board’s fact-gathering

and decisionmaking functions does not answer this

question, for there is no abstract constitutional right

to be free of procedures that entail significant risks

of error. Due process rights are implicated only

when a constitutionally protected interest in liberty

or property is at stake.

Legislatures and administrators, as well as courts,

strive to be sensitive to the needs and desires of

prison inmates. Congress has transmitted to the

President a bill that would make major changes in

the federal parole system (see note 3, supra) and,

over a lengthy period of investigation and experi-

mentation, the federal Board of Parole has devised

procedures, including a personal hearing, that it

believes strike a fair balance between the legitimate

interests of the inmates and the needs and objectives

of the institution. Kentucky also affords a personal

hearing, but other of its procedures differ from those

used by federal authorities. As we learn more about

the results of the procedures now in use, or as ideas

concerning the role of prisons in our society evolve,

11

still other procedures may come to appear superior

to those now in use. We believe that the choice of

procedures is constitutionally within the province of

the legislature and the executive, which have the

better opportunity to study the procedures in use and

evaluate their merits and demerits.

We do not know which parole release process is

best; indeed, social science research is barely adequate

to enable us to frame the question. The needed knowl-

edge can be acquired, if at all, only by a painstaking

process of experimentation, change, trial, and error,

similar to that in which the federal Board of Parole

is now engaged." What is more, perceptions of the

role of imprisonment itself, and the objectives it can

accomplish, can be expected to change (compare Wil-

son, Thinking About Crime (1975), with Morris, The

Future of Imprisonment (1974)) and, as these per-

ceptions change, our ideas about the proper role of

parole and the proper way to go about deciding when

to grant parole may change with them.* The Attorney

7Cf. United States ex rel. Gereau Vv. Henderson, 526 F.2d

889, 897 (C.A. 5) (“[w]ith all of the complexities of penology,

sociology and criminology, much of which is in a state of un-

dulating flux even for those expert in the field, courts and

judges are not equipped to decide [where a prisoner should

be confined]. Obviously, no due process hearing is called for

in selecting the institution of confinement * * *’’).

® As Judge Friendly has pointed out, there is nothing either

suspect or improper—except a poor choice of name—about

the “inquisitorial” method of investigating cases and making

decisions. That method, which Kentucky has adopted, may be

better suited to classes of cases involving “mass justice” than

is the adversarial model, involving as it does substantial

12

General has suggested that discretionary parole might

be replaced by a program of mandatory early release

upon good behavior-——a program Maine has recently

adopted and that other States are considering. See

also Sigler, Abolish Parole?, 39 Fed. Prob. 42 (June

1975). Decisions on these and other similar questions

are best left to society at large and to the representa-

tives they elect, unless the Constitution requires

otherwise. We do not believe it does in this case.

A. Petitioner’s claim to more elaborate parole pro-

cedures rests upon the Due Process Clause of the

Fourteenth Amendment. But that Clause applies only

in those circumstances where governmental action

threatens to deprive an individual of “liberty” or

“property.” Thus the evaluation of petitioner’s claim

must begin with an inquiry into whether the denial

of parole deprives petitioner of a constitutionally pro-

tected liberty or property interest.

B. Denial of parole does not deprive a prisoner of

liberty in the constitutional sense. He was lawfully

deprived of his liberty upon conviction, sentence, and

incarceration. Certainly a prisoner has an “interest”

in securing his release on parole. But a prisoner’s

generalized interest in freedom from confinement is

not, without more, constitutionally cognizable as a

“liberty” interest. The loose constellation of consti-

tutionally based values that underlies the analysis of

claims of “liberty” interests in non-prisoner cases

quantities of person-to-person argumentation. See Friendly,

“Some Kind of Hearing,” 123 U. Pa. L. Rev. 1267, 1289-1291

(1975).

————— ee

13

does not, by and large, pertain to persons lawfully

confined.

In other words, a prisoner’s legally protected in-

terests relating to release derive not from constitu-

tional concepts of liberty but from the statutes, regu-

lations, and rules that govern the terms of his con-

finement. At least where the question relates only to

release and not to conditions of confinement, a pris-

oner has no constitutionally protected liberty interest

apart from his legitimate claims of entitlement under

those statutes, regulations, and rules.

This Court’s decisions make it clear that a legit-

imate claim of entitlement w.° vanting the procedural

protections of due process exists only when the State

has bound itself to take, or refrain from taking, spe-

cified actions on the basis of determinable facts. As

Mr. Justice White noted in his concurring and dissent-

ing opinion in Arnett v. Kennedy, 416 U.S. 134, 181:

Where Executive discretion is not limited,

there is no need for a hearing. In the latter

event, where the statute has provided * * * no

conditions at all, * * * no hearing is required.

It is likewise clear that a legitimate claim of entitle-

ment arises only from positive law and not from the

individual’s unilateral expectation.

C. Under Kentucky law, the decision whether to

grant or deny parole is completely discretionary. No

set of facts petitioner could prove or attempt to prove

would entitle him to parole. Because the decision

whether to grant parole is not determined by any par-

14

ticular controvertible facts but instead is discretion-

ary, petitioner could under no circumstances have a

legitimate claim of entitlement to release on parole.

Accordingly, petitioner has no constitutionally pro-

tected liberty or property interest in being released.

Petitioner’s only “interest” is a hope, desire, or ex-

pectation to be released. But the Constitution does

not require that any particular procedures be used

by the State before it acts to disappoint an individ-

ual’s unilateral expectation.

ARGUMENT

UNDER THE KENTUCKY EARLY RELEASE SYS-

TEM, A PRISONER’S APPLICATION FOR PAROLE

DOES NOT IMPLICATE THE PROCEDURAL PRO-

TECTIONS OF THE DUE PROCESS CLAUSE

Parole is a statutory creation. The rules under

which a prisoner is entitled to be considered for

parole are designed by each State and, for federal

prisoners, by Congress. A State could design a parole

system under which every prisoner became entitled

to early release if he could demonstrate particular

facts—for example, good behavior while in prison.’

In our view, the procedural protections of due process

would attach to such an entitlement.

But Kentucky and the United States have not

created such an entitlement to parole. Instead, they

®Such a design is used for the federal good time credit

system; every prisoner is entitled to good time credits that

can be withdrawn only on account of misbehavior. See 18

U.S.C. 4161 and 4165.

15

have committed to the essentially unfettered discre-

tion of a group of experts the decision whether an in-

mate should be returned to society at some date be-

fore the expiration of his sentence as reduced by good

time." The use of such a discretionary system

of parole no doubt causes each prisoner to hope or

even to expect (whether or not such an expectation

is objectively warranted) that he will be among those

granted an early release. But unless the parole au-

thorities are required to release the prisoner upon a

finding of particular facts, the prisoner’s hope to be

released is no more than a unilateral expectation. As

we now show, a State need not provide any particular

form of procedure before it acts to disappoint such

an expectation.

A. The Procedural Protections Of The Due Process

Clause Apply Only To Proceedings That May Result

In The Deprivation Of An Individual’s “Liberty” Or

“Property”

The procedural protections of the Due Process

Clause do not extend generally to all situations in

which governmental action or inaction may be ad-

verse to the interests of a particular individual or

group. By its terms, that Clause applies only in those

circumstances where governmental action threatens

to deprive an individual of “liberty” or “property.” ™

20 But see note 3, supra.

11 We need not here discuss the special situation in which

the governmental action threatens to deprive the individual

of his life.

16

Accordingly, this Court, in evaluating claims of right

to procedural due process, has been scrupulously care-

ful to identify the nature of the underlying substan-

tive interests at stake in urder to determine whether

those interests were subsumed under either “liberty”

or “property.”

Perhaps the paradigm is Board of Regents v. Roth,

408 U.S. 564. Roth had been hired for an academic

year by Wisconsin State University; the University

declined to renew his contract and Roth brought suit,

claiming that he was entitled to notice of charges

and a hearing on the nonrenewal. The Court agreed

with Roth that he possessed an “interest” in con-

tinued employment, in the sense that termination of

employment is a “grievous loss.” But that fact, the

Court held, was not determinative of the due process

question (408 U.S. at 570-571; emphasis in original) :

[T]o determine whether due process require-

ments apply in the first place, we must look not

to the “weight” but to the nature of the interest

at stake. * * * We must look to see if the interest

is within the Fourteenth Amendment’s protection

of liberty and property.

The Court then determined that Roth’s interest in

continued employment, 7.e., his desire to obtain a re-

newal of his contract, was neither a “liberty” nor a

“property” interest, and therefore that he could be

deprived of that interest without due process.

The Roth decision illustrates that although “griev-

ous loss’ may be a necessary prerequisite to the in-

vocation of due process protections, it is not a sufh-

17

cient one: the substantiality of an interest is not

determinative of whether that interest is entitled to

due process protection. Thus the fact that a prison-

er’s “interest” in being released on parole is con-

cededly substantial cannot be dispositive of the due

process claim in this case. To the contrary, as Roth

further demonstrates, the evaluation ef any due proc-

ess claim must begin with an inquiry into whether

the interest of which the individual may be deprived

is a constitutionally cognizable liberty or property

interest. See also Arnett v. Kennedy, 416 U.S. 134;

Goss v. Lopez, 419 U.S. 565, 572-576. It is to that

inquiry that we now turn.

B. Except To The Extent That He May Have A Legiti-

mate Claim Of Entitlement Grounded In The Stat-

utes, Regulations, Or Rules Governing The Terms Of

His Confinement, A Prisoner Has No Constitutionally

Cognizable Interest In Being Released On Parole

It may at first blush appear paradoxical to assert

that a prisoner has no constitutionally cognizable

“liberty” interest in being released from confinement

on parole. This is so because the most elementary

form of liberty, freedom from the state’s physical

control of the person, is at stake in the parole deci-

sion. But the question under the Constitution is

whether an adverse parole decision “deprives” the

prisoner of liberty. The answer, we believe, is that

it does not.

A defendant who has been convicted of a crime,

sentenced to imprisonment, and confined pursuant to

that sentence has, in a very basic sense, lost his “lib-

18

erty” for the period of his sentence: the sentence of

imprisonment lawfully places him under the physical

control of the State for the period prescribed. “Law-

ful incarceration brings about the necessary with-

drawal or limitation of many privileges and rights, a

retraction justified by the considerations underlying

our penal system.” Price v. Johnston, 334 U.S. 266,

285. This is not necessarily to say that a prisoner re-

tains no constitutionally cognizable liberty interests.

Cf. Procunier v. Martinez, 416 U.S. 396. See gen-

erally Wolff v. McDonnell, 418 U.S. 539, 555-556.

What we do contend here is that a prisoner has been

lawfully deprived of his generalized constitutional

liberty interest in freedom from confinement by his

conviction and sentence.

This consideration distinguishes the denial of parole

from its revocation. A prisoner’s generalized liberty

interest in freedom has been extinguished for the

lawful term of confinement. Parole, once granted,

revives that interest. Thus at a parole revocation pro-

ceeding, the parolee attempts to defend his liberty,

albeit condit’onal, against those who would take it

from him; an adverse determination ends the parolee’s

freedom and thus “deprives” him of “liberty” within

the meaning of the Due Process Clause. Morrissey v.

Brewer, 408 U.S. 471, 480-482. See also Gagnon v.

Scarpelli, 411 U.S. 778. A prisoner seeking parole

has no similar generalized “liberty” interest in the

parole board’s decision, for he is not at liberty and

he does not stand to lose any liberty as a result of

that decision. In short, the fact that a prisoner’s

19

freedom is at stake does not, in and of itself, mean

that a constitutionally protected liberty interest is at

issue.

This Court’s decision in Wolff v. McDonnell, supra,

is not to the contrary. The question in Wolff was

whether the protections of due process extend to

prison disciplinary proceedings that may result in the

reduction of a prisoner’s statutory good-time credits.

This Court held that the protections of due process do

apply to such proceedings. But the Court’s decision

did not turn upon the mere fact that a reduction in

good-time credits might affect the timing of the pris-

oner’s release, i.e., it did not turn upon a simple iden-

tification of release frum prison with constitutionally

protected liberty. Instead, the Court focused nar-

rowly on the nature and source of the prisoner’s in-

terest in the retention of his accumulated good-time

credits. Since that interest was created by statute,

and by statute could be extinguished only “[i]n cases

of flagrant or serious misconduct” (418 U.S. at 546),

the Court determined that “the prisoner’s interest has

real substance and is sufficiently embraced within

Fourteenth Amendment ‘liberty’ to entitle him to

those minimum procedures appropriate under the cir-

cumstances and required by the Due Process Clause

to insure that the state-created right is not arbitrarily

abrogated” (418 U.S. at 557).

This approach, which would appear necessarily ap-

plicable here as well, avoids reference to or reliance

upon the loose constellation of constitutionally based

20

values that underlie the analysis of claims of “liberty”

interests in non-prisoner cases. See, e.g., Board of

Regents v. Roth, supra, 408 U.S. at 572; Meyer v.

Nebraska, 262 U.S. 390, 399. The Court’s analysis in

Wolff implicitly recognizes that such values do not,

in the main, pertain to persons lawfully confined. A

prisoner’s interests relating to release are founded

not in constitutional concepts of liberty but in the

statutes, regulations, and rules that govern the terms

of his confinement. In other words, except to the ex-

tent that those statutes, regulations, and rules create

a positive right to release, a prisoner has no interest

in obtaining an early release from confinement to

which the procedural protections of due process can

attach.

Accordingly, although a prisoner’s interests in re-

lease from confinement may for purposes of conven-

ience be called “liberty” interests, as in Wolff, they

are in fact nothing more than “property” interests in

disguise, 7.e., entitlements created by nonconstitu-

tional sources of positive law.” As the decision in

Wolff indicates, a prisoner’s interests relating to re-

lease must be analyzed in “property” terms; the ques-

22 Indeed, this may also be true with respect to a parvlee’s

interest in retaining his freedom. In Morrissey v. Brewer,

supra, a case that purportedly turned upon the parolee’s

“liberty” interest, the right of which the parolee would be

deprived by wrongful revocation, was in fact a statutorily

created “property” interest, i.e., the entitlement to remain at

large unless and until it was demonstrated that he had vio-

lated the terms of his parole.

21

tion in each case must be whether the State has ex-

tended to the prisoner a claim of entitlement that

warrants procedural protection against unlawful

divestment.

In short, our position here is that, whatever the

scope of Fourteenth Amendment “liberty” interests

in other contexts, a prisoner’s interest relating to re-

lease from confinement, to be constitutionally entitled

to the procedural protections of due process, must

rest upon a legitimate claim of entitlement grounded

in the statutes, regulations, or rules governing the

terms of his confinement. Thus the analysis to be

applied here must be similar to that employed by this

Court in recent decisions involving the assertion of

property interests.

Those decisions make it clear that a constitutionally

cognizable property interest arises only when the

condition limiting the Executive’s freedom of action

exists in positive law and not merely in the hopes or

expectations of the individual. This Court in Roth

explicitly rejected the argument that such a property

interest could arise merely from the individual’s

need, desire, or expectation (408 U.S. at 577):

To have a property interest in a benefit, a per-

son 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 ‘*

A legitimate claim of entitlement exists only when

the State has bound itself, either by statuve, regula-

22

tion, rule, or well-settled course of practice, to take,

or refrain from taking, specified actions on the basis

of determinable facts. So, for example, in Goss v.

Lopez, supra, the student had a statutory right to

attend school unless he was guilty of misconduct; in

Arnett v. Kennedy, supra, the employee could be ter-

minated only for cause; in Perry v. Sindermann, 408

U.S. 593, the teacher asserted a well-settled practice

of reemployment absent “sufficient cause.” See also

Mathews v. Eldridge, No. 74-204, decided February

24, 1976, slip op. 10. Where the State has bound

itself to extend or confer a benefit, or withhold a sanc-

tion, upon the determination of a particular set of

facts, the Due Process Clause requires the implemen-

tation of procedures designed to ensure that the de-

termination of those facts will be made fairly and

accurately. Cf. Richardson v. Perales, 402 U.S. 389,

401-402.

On the other hand, where the State has not so

bound itself, there can be no legitimate claim of en-

titlement. In Board of Regents v. Roth, for example,

the University had discretion not to reemploy the

teacher, and no set of facts he could prove would

entitle him to reemployment. See also Cafeteria &

Restaurant Workers v. McElroy, 367 U.S. 886. When

there is no determinable set of facts that could give

rise to an entitlement, the process of determining the

facts cannot result in the deprivation of any entitle-

ment; in such circumstances, the procedural protec-

23

tions of due process are not implicated.** As Mr.

18 At least one court of appeals has rejected an argument

similar to the one we have made here, holding that it “attempts

to resurrect the now-discredited right-privilege dichotomy as

an analytical approach to due process * * *.” Cardaropoli v.

Norton, 523 F.2d 990, 995, n. 11 (C.A. 2). Petitioner makes

a similar contention (Br. 32). We submit that this charac-

terization misconceives the thrust of our argument.

Under the right-privilege distinction, benefits created by

substantive constitutional guarantees were “rights,” and those

created by statute were “privileges” subject to unfettered

governmental control. A State could defend a claim that it had

denied due process of law by answering that, because the

State was not constitutionally required to give the benefit

in question to anyone, plaintiff could not complain that he

had not received it, no matter how arbitrary the State’s de-

cision and no matter what sort of discrimination the State

may have practiced. Thus even entitlements founded on stat-

utory guarantees were not enforceable in practice.

The question whether there is a “liberty” or “property”

interest—an inquiry established by the Constitution itself—is

quite different. This Court held in Roth that “property” in-

terests are founded only upon statutes, rules, or settled course

of practice. The question in a case of this sort, therefore, is

whether any statute, rule, or practice has created for the

prisoner a legitimate claim of entitlement contingent upon

specific facts. If it has done so, the Due Process Clause applies

even though the entitlement may be a “privilege” that could

be revoked at any time by altering the rules that created the

entitlement. For example, one deprived of welfare is protected

by the Due Process Clause. Goldberg v. Kelly, 397 U.S. 254.

And if a State provides that any individual who is “unem-

ployed” shall be entitled to receive unemployment compensa-

tion, the expectation of benefits would be a property interest

because benefits would be contingent upon provable facts. An

applicant for unemployment benefits therefore would be en-

titled to due process of law. Cf. Richardson Vv. Perales, supra,

402 U.S. at 401-402 (application for Social Security benefits) ;

Geneva Towers Tenants Organization V. Federated Mortgage

24

Justice White noted in his concurring and dissenting

opinion in Arnett v. Kennedy, supra, 416 U.S. at 181:

Where Executive discretion is not limited, there

is no need for a hearing. In the latter event,

where the statute has provided * * * no condi-

tions at all, * * * no hearing is required.

C. Petitioner Has No Legitimate Claim Of Entitlement

To Release On Parole

We turn, therefore, to an application of these prin-

ciples to the facts of this case.

Kentucky law provides the Parole Board with dis-

cretion to grant or deny parole; the parole decision

is to be made not on the basis of any objective facts,

but on the basis of the predictions the Board may be

able to make about the prisoner’s ability to live peace-

fully in the larger society. Kentucky Rev. Stat.

$$ 439.320, 439.330 and 439.340 (1973). See also

Section 9 of the Kentucky Parole Board Regulations

Investors, 504 F.2d 483, 495-496 (C.A. 9) (Hufstedler, J.,

dissenting); Raper v. Lucey, 488 F.2d 748 (C.A. 1) (applica-

tion for a driver’s license). (What process would be “due” in

these cases would depend, of course, upon the balance between

the interests of the individual and those of the government.)

Under our argument, the applicability of the Due Process

Clause turns not upon the source of the rule arguably creating

a claim of entitlement, or upon the label attached to the

claim, but upon whether there is a legitimate claim of entitle-

ment—that is, whether any rule of law provides that spe-

cific facts entitle an inmate to release prior to the expira-

tion of his term of imprisonment. The right-privilege dichot-

omy depended upon the source of the rule in question; the

inquiry into liberty or property looks to the nature of the en-

titlement created, and to whether there is a rule at all.

25

(Pet. Br. 5a-6a); Harrison v. Robuck, 508 S.W.2d

767 (Ky.). Cf. 18 U.S.C. 4203. The decision to grant

or deny parole is 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). No par-

ticular fact or set of facts is determinative, nor could

it be, for although facts are surely important to the

parole release decision, the ultimate question involves

an assessment of the prisoner’s character.‘ There

is no fact or set of facts that a prisoner can prove

that will establish his entitlement to have the Board

1 Petitioner observes (Br. 27-28) that the federal Board

of Parole’s guidelines articulate some objective criteria that

influence release decisions. These guidelines do not, however,

diminish the Board’s discretion. They indicate a convenient

point of reference, a “normal” range of release times, but the

Board is free at any time, and for any constitutionally permis-

sible reason, to depart from these ranges. See 28 C.F.R. 2.18

(1975) (“[t]he granting of parole rests in the discretion of

the Board of Parole. The Board may parole a prisoner who is

otherwise eligible if (a) in the opinion of the Board such

release is not incompatible with the welfare of society; (b) he

has observed substantially the rules of the institution in which

he is confined; and (c) there is a reasonable probability that

he will live and remain at liberty without violating the laws

(18 U.S.C. 4203(a))”); 28 C.F.R. 2.20(¢) (1975) (“[t]hese

time ranges are merely guidelines. Where the circumstances

warrant, decisions outside of the guidelines (either above or

below) may be rendered’’).

26

place trust in his character.” In short, no set of facts

that petitioner could prove or attempt to prove would

entitle him to parole.” Because the decision whether

to grant parole is not determined by any particular

controvertible facts, but instead is entrusted to the

discretion of the Board, petitioner has no liberty or

property interest in being released on parole.

We do not argue that no constitutionally protected

interest is involved in any aspect of the parole proc-

ess. Under Kentucky law, petitioner has a legitimate

claim of entitlement to be considered for parole; the

State guarantees to every prisoner a review and con-

sideration of his case upon its merits. The State may

not deprive a particular prisoner of that consideration

without due process. But petitioner does not contend

that he has been denied consideration for parole.

1° Petitioner’s complaint demanded (App. 9) that respond-

ents be ordered to promulgate “standards, norms or rules”

that would delimit or remove respondents’ discretion in de-

ciding whom to release on parole. If as a result of such rules

a prisoner would be entitled to release upon proof of specific

facts, the prisoner would acquire a legitimate claim of entitle-

ment. The Constitution does not require the promulgation of

such rules, however. See Board of Regents v. Roth, supra.

Only the Due Process Clause itself could be the source of a

constitutional compulsion to promulgate such rules; but, as

we have argued, that Clause does not apply to the parole

process until, by creating rules, the State has established

a “property” interest. Consequently, there is no warrant for

compelling a State to promulgate restrictive substantive rules

that would, in turn, trigger constitutional procedural protec-

tions. See also Haymes. Vv. Regan, 525 F.2d 540 (C.A. 2).

16 “Tt is well-established that the Board of Parole * * * has

absolute discretion in parole matters.” Clay v. Henderson,

524 F.2d 921, 924 (C.A. 5).

27

Moreover, the fact that petitioner was entitled to con-

sideration does not, standing alone, entitle him to any

particular procedures upon consideration. Neither

statute, regulation, rule, nor course of practice estab-

lishes any more elaborate procedures upon considera-

tion than petitioner’s case was accorded. Petitioner

therefore has no entitlement apart from the Due

Process Clause to more elaborate procedures. And

since the grant of parole upon consideration is a dis-

cretionary decision not turning upon provable facts,

the Due Process Clause itself does not apply.”

17 The majority of the courts of appeals to consider the

question have agreed with the court below that the Due

Process Clause does not apply to applications for parole, at

least in the absence of a statute or regulation creating an

entitlement to parole subject to defeasance only upon certain

facts. See Scarpa v. United States Board of Parole, 477 F.2d

278 (C.A. 5) (en banc), vacated as moot, 414 U.S. 809;

Mosley v. Ashby, 459 F.2d 477 (C.A. 3); Madden v. New

Jersey State Parole Board, 438 F.2d 1189 (C.A. 3); Dorado

v. Kerr, 454 F.2d 892 (C.A. 9), certiorari denied, 409 U.S.

934; Barnes v. United States, 445 F.2d 260 (C.A. 8);

Schawartzberg v. United States Board of Parole, 399 F.2d

297 (C.A. 10).

Four courts of appeals have held that the expectation of

parole release is a “conditional liberty” that cannot be denied

without procedural protections. Bradford v. Weinstein, 519

F.2d 728 (C.A. 4), vacated as moot, December 10, 1975, No.

74-1287; United States ex rel. Richerson Vv. Wolff, 525 F.2d

797 (C.A. 7); Childs v. United States Board of Parole, 511

F.2d 1270 (C.A.D.C.); United States ex rel. Johnson V. Chair-

man of New York State Board of Parole, 500 F.2d 925 (C.A.

2), vacated as moot, 419 U.S. 1015. The First Circuit appar-

ently has assumed that the expectation of parole is a liberty

interest. See Meachum v. Fano, supra. Cf. Grattan v. Sigler,

525 F.2d 329 (C.A. 9) (Due Process Clause requires federal

28

We do not quarrel with petitioner’s observation

that prisoners subjectively may experience a “griev-

ous loss” upon being denied parole. But the loss in

question stems not from the deprivation of an en-

titlement, but rather from the disappointment of an

expectation. The loss results not because the State’s

actions were unauthorized, but merely because those

actions did not meet petitioner’s unilateral expecta-

tions.** As the Roth decision teaches, such a loss does

Board of Parole to provide a statement of reasons adequate

under its own guidelines).

A closely related question is whether the setting of a tenta-

tive parole release date establishes a “liberty” interest so that

hearings are required before the date can be altered. Compare

Sexton Vv. Wise, 494 F.2d 1176 (C.A. 5) (no liberty interest

until actual release date) and McIntosh v. Woodward, 514

F.2d 95 (C.A. 5) (same), with Jackson v. Wise, 390 F. Supp.

19 (C.D. Cal.) (setting of tentative release date creates a

liberty interest).

18 Petitioner argues that parole is now an accepted feature

of our prisons, and that many prisoners are paroled (Br.

23-24, 32-33). Because eventual parole is the rule rather

than the exception, the argument concludes, the prisoner’s

expectation of release is not “unilateral” but has real sub-

stance. The same argument was rejected by this Court in

Roth; there, too, most teachers were rehired. The problem

with the argument is that it does not explain how the fact

that most teachers are rehired and that most prisoners

eventually are paroled can be converted into a legitimate

claim of entitlement for this teacher to be rehired or for this

prisoner to be paroled. That conversion could be accomplished

only through a set of rules of general applicability establish-

ing substantive release criteria binding upon the decision-

maker—petitioner’s complaint asserted, however (App. 3-4,

7), that the release criteria in Kentucky are “wholly sub-

jective” and do not bind respondents to take particular actions

in response to particular facts.

29

not amount to the deprivation of a constitutionally

protected interest: the Constitution does not require

that any particular procedures be used by the State

before it acts to disappoint an individual’s unilateral

expectations.”

*® Indeed, in the last analysis this case is indistinguish-

able from Roth. Petitioner’s argument, as bottom, appears

to be: “Prisoners have a right to be considered for parole.

Many prisoners are paroled. If my application for parole had

been granted, I would have acquired a constitutionally pro-

tected interest in remaining at liberty, for under statute I

could not be reimprisoned without due cause. Therefore I

have a constitutionally protected interest in the possibility of

receiving parole, and the parole board must comply with the

requirements of due process before it denies my application.”

This argument appears identical to the one rejected in Roth.

The teacher’s argument there was: “Teachers have a right to

be considered for employment in the next academic year.

Many teachers are rehired. If my contract had been renewed,

I would have had a constitutionally protected interest in my

employment, because under the contract I could not be fired

without due cause. Therefore I have a constitutionally pro-

tected interest in the possibility of renewal, and the uni-

versity must comply with the requirements of due process be-

fore it decides not to renew my contract.” The weakness in

those arguments lies in the “therefore.” The liberty or prop-

erty interest arises only when the contract is renewed, only

when the prisoner is granted parole. It does not arise before.

The “therefore,” which relates to the period before the pro-

tected interest arises, is merely a verbal bridge lacking any

logical foundation.

30

CONCLUSION

The judgment of the court of appeals should be af-

firmed.

Respectfully submitted.

ROBERT H. BorK,

Solicitor General.

RICHARD L. THORNBURGH,

Assistant Attorney General.

KEITH A. JONES,

Deputy Solicitor General.

FRANK H. EASTERBROOK,

Assistant to the Solicitor General.

SHIRLEY BAcCuS-LOBEL,

Attorney.

MARCH 1976.

Wr ov. &. GOVERNMENT PRINTING OFFICE; 1976 202736 226