Petitioners Brief — Greenholtz v. Inmates of Neb. Penal and Correctional Complex

NOY 10. 1978 |

MIGHAEL — JR., CLERK

In The \

Supreme Court of the Unit

October Term, 1977

sh

ww

No. 78-201

ry

Ww

JOHN B. GREENHOLTZ, Individually, and as Chairman,

Nebraska Board of Parole; EUGENE E. NEAL, CATH.

ERINE R. DAHLQUIST, MARSHALL M. TATE, and

EDWARD M. ROWLEY,

Petitioners,

vs.

INMATES OF THE NEBRASKA PENAL AND COR-

RECTIONAL COMPLEX, RICHARD C. WALKER,

WILLIAM RANDOLPH, RICHARD J. LEARY, ROB.

ERT L. GAMRON, FREDERICK L. GRANT, WAYNE

GOHAM, and CHARLES LaPLANTE,

Respondents.

BRIEF FOR THE PETITIONERS

ees

Vv

PAUL L. DOUGLAS

Attorney General

RALPH H. GILLAN

Assistant Attorney General

2115 State Capitol

Lincoln, NE 68509

Tel. (402) 471-2682

Attorneys for Petitioners.

COCKLE PRINTING CO., 2311 Douglas St., Omaha 68102

| i

{ TABLE OF CONTENTS

: . Pages

Opinions Below 1

Jurisdiction 2

Statutes Involved 2

Questions Presented 7

Statement of the Case EPA SEAT SEO 8

penny OE Ae 12

Argument:

I. Procedural due process does not apply to hear-

ings conducted to determine whether an inmate

should be granted discretionary parole. occ 14

A. Due process requirements are less appropri-

ate for a continuation of a condition than for

an adverse change in a condition. 14

B. A prisoner in Nebraska has no liberty or

property right, founded on state law, to re-

lease on discretionary Parole. o.com 17

C. A right which gives rise to procedural due

process must be conditioned upon findings

of specific facts, as opposed to subjective con-

clusion reached by the decision-making body. 21

D. A denial of parole carries with it no stig-

matizing effect giving rise to a protected

I a 28

KE. A balancing of the benefits of additional pro-

cedures against the costs militates against

| eae eee 29

il

TALLE OF CONTENTS—Continued

Pages

II. If due process applies to parole release pro-

ceedings, Nebraska already complies with all re-

quired procedures. 36

Conclusion 39

TABLE OF CASES

Arnett v. Kennedy, 416 U. S. 134, 40 L. Ed. 2d 15,

94 S. Ct. 1633 (1974) . ee 22, 23

Bishop v. Wood, 426 U. 8S. 341, 48 L. Ed. 2d 684,

96 S. Ct. 2074 (1976) . 28

Board of Curators, University of Missouri v. Hor-

owitz, — U. 8S. —, 55 L. Ed. 2d 124, 98 S. Ct. 948

(1978) eeerervrennntcnsssnntegeitntnnnennnennneemmnemnmmnnmntnnnnnnnsit 26

Board of Regents v. Roth, 408 U. 8. 564, 33 L. Ed.

Dd 548, 92 S. Ct. [TOL (1972) eennnernismnnettrrememmrernre 21, 28, 29

Brown v. Lundgren, 528 F. 2d 1050 (5th Cir.

1976) Baie ee Rad el ahaa 16

Cafeteria Workers v. McElroy, 376 U. S. 886, 6 L.

Ed. 2d 1230, 81 S. Ct. 1743 (1961) . B

Dixon v. Love, 431 U. S. 105, 52 L. Ed. 2d 172,

97 S. Ct. 1723 (1977) i cukns Oe

Dorado v. Kerr, 454 F. 2d 892 (9th Cir. 1972),

Cert. deried, 409 U. S. 934 creecnnutmeneeentneneinmeennisinentsi 35, 36

Franklin v. Shields, 569 F. 2d 784 (4th Cir. 1978),

Cert. denied, 98 S. Ct. 1659 nrcsennemssrsemennnemennmnnennannenenet 36

iit

TABLE OF CONTENTS—Continued

Pages

Gagnon v. Scarpelli, 411 U. S. 778, 36 L. Ed. 2d

G5G, 9B S. Ct. 1756 (1973) nnnecsaenannneesesnesrernenenernerneresnernennes 14, 22

Goldberg v. Kelly, 397 U. S. 254, 25 L. Ed. 2d

287, 96 S. Ct. 1011 (1970) wu 21, 34, 35

Goss v. Lopez, 419 U. S. 565, 42 L. Ed. 2d 725,

95 S. Ct. 729 (1975) 22, 38

Green v. McElroy, 360 U. S. 474, 3 L. Ed. 2d

1377, 79 S. Ct. L400 (1959) nneerssenrnrseereneterinrneeernsseseenerntntn 21

Hoffman v. Pursue, Ltd., 420 U. S. 592, 43 L. Ed.

2d 482, 95 S. Ct. 1200 (1975) ww. 38

Ingraham v. Wright, 430 U. S. 651, 51 L. Ed. 2d

711, 97 S. Ct. 1401 (1977) 31

Joint Anti-Fascist Refugee Committee v. McGrath,

341 U. S. 123, 95 L. Ed. 817, 71 S. Ct. 624 (1951).....22, 28

Kent v. United States, 383 U. S. 541, 16 L. Ed. 2d

84, 86 S. Ct. 1045 (1966) rane ww. 24

Lincoln Dairy Co. v. Finigan, 170 Neb. 777, 104

N. W. 2d 227 (1960) —

Madden v. New Jersey State Parole Board, 438 F’.

Dd 1189 (Br Cir, LOTL) necrcersenmerrrmennarserinnennernsnentierenctst 36

Mathews v. Eldridge, 424 U. S. 319, 47 L. Ed. 2d

18, 96 S. Ct. 893 (1976) nnnnevvnnnsrrrenentnenerntnrenen 23, 31, 36, 37

Meachum v. Fano, 427 U. S. 215, 49 L. Ed. 2d 451,

OG S. Ct. D5B2 (1976) nnnecssncsenseeseemenmeesereeneessrsnennenne 25, 26, 38, 39

Mitchell v. W. T. Grant Co., 416 U. S. 600, 40 L.

Eid. 2d 406, 94 S. Ct. 1895 (19TH) nnecccnnenrserncnnmnrnenntie 27

iv

TABLE OF CONTENTS—Continued

Pages

Montayne v. Haymes, 427 U. S. 236, 49 L. Ed. 2d

466, 96 S. Ct. 2543 (1976) .... 25, 26

_ Morrissey v. Brewer, 408 U. 8. 471, 33 L. Ed. 2d

484, 92 S. Ct. 2593 (1972) _........ 14, 15, 17, 21, 24, 25, 36

Perry v. Sindermann, 408 U. S. 593, 38 L. Ed. 2d

070, 92 S. Ct. 2694 (1972) 23

Rizzo v. Goode, 423 U. S. 362, 46 L. Ed. 2d 561,

RE ene, 39

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

278 (5th Cir. 1973), vacated and remanded to con-

sider mootness, 414 U. S. 809 (1973), dismissed

as moot, 501 F. 2d 992 (5th Cir. 1973) oo. 16

Scott v. Kentucky Parole Board, 429 U. S§. 60,

00 L. Ed. 2d 218, 97 S. Ct. 342 (1976) 36

Smith v. Organization of Foster Families for

Equality and Reform, 431 U. 8S. 816, 53 L.

Ed. 2d 14, 97 8. Ct. 2094 (1977) 26

United States ex rel. Bey v. Connecticut Board of

Parole, 443 F. 2d 1079 (2nd Cir. 1971) | 15

Wolff v. McDonnell, 418 U. S. 539, 41 L. Ed. 2d

935, 94 S. Ct. 2963 (1974) ; 14, 15, 16, 17, 22,

23, 35, 37, 38

STATUTES

Ie) I 2

42 U.S.C. $1983 8

Vv

TABLE OF CONTENTS—Continued

Pages

Neb. Rev. Stat. § 83-192 (Reissue 1976) 2,9

Neb. Rev. Stat. § 83-1,107(1)(b) (Reissue 1976) ......... 8

Neb. Rev. Stat. § 83-1,111 (Reissue 1976) ............ 3, 9, 34, 37

Neb. Rev. Stat. § 83-1,114 (Reissue 1976) .....5, 10, 17, 18, 19,

20, 21, 23, 24, 32

Neb. Rev. Stat. § 83-1,115 (Reissue 1976) 6

Iowa Code Ann. § 906.4 19

Kan. Stat. Ann. § 22-3717 19

OTHER AUTHORITIES

Friendly, 123 U. of Pa. L. Rev. 1267 15

In The

Supreme Court of the United States

October Term, 1977

—

- /-_

No. 78-201

—

——_, .

JOHN B. GREENHOLTZ, Individually, and as Chairman,

Nebraska Board of Parole; EUGENE FE. NEAL, CATH-

ERINE R. DAHLQUIST, MARSHALL M. TATE, and

EDWARD M. ROWLEY,

Petitioners,

vs.

INMATES OF THE NEBRASKA PENAL AND COR-

RECTIONAL COMPLEX, RICHARD (C. WALKER,

WILLIAM RANDOLPH, RICHARD J. LEARY, ROB-

ERT L. GAMRON, FREDERICK L. GRANT, WAYNE

GOHAM, and CHARLES LaPLANTE,

Respondents.

7 —

a ae

BRIEF FOR THE PETITIONERS

—

Vv

OPINIONS BELOW

The opinion of the United States District Court for

the District of Nebraska is unpublished, and is reproduced

in the Appendix to the Petition for a Writ of Certiorari

on pages 24a to 48a. The opinion of the Court of Appeals

for the Eighth Circuit is reported at 576 F.2d 1274 and

reproduced in the Appendix at pages 2 to 25.

4

2

JURISDICTION

The jurisdiction of this court is invoked pursuant to

28 U.S.C. §1254(1). The judgment of the Court of

Appeals was entered on May 18, 1978. A timely petition

for rehearing en banc was denied on June 9, 1978. The

petition for certiorari was filed on August 4, 1978. Cer-

tiorari was granted on October 2, 1978.

ray

Ff

STATUTES INVOLVED

The following sections of the Nebraska statutes are

pertinent herein:

Neb. Rev. Stat. § 83-192 (Reissue 1976) :

‘The Board of Parole shall:

“*(1) Determine the time of release on parole of

committed offenders eligible for such release ;

‘*(2) Fix the conditions of parole, revoke parole,

issue or authorize the issuance of warrants for the

arrest of parole violators, and impose other sanctions

short of revocation for violation of conditions of

parole;

‘*(3) Determine the time of discharge from

parole;

‘*(4) Visit and inspect any facility, state or local,

for the detention of persons charged with or convicted

of an offense, and for the safekeeping of such other

persons as may be remanded thereto in accordance

with law;

‘*(5) Serve in an advisory capacity to the Diree-

tor of Correctional Services in‘administering parole

services within any facility and in the community ;

3

“*(6) Interpret the parole program to the public

with a view toward developing a broad base of public

support;

ds Conduct research for the purpose of evalu-

ating and improving the effectiveness of the parole

system;

‘*(8) Recommend parole legislation to the Gov-

ernor;

“*(9) Review the record of every committed of-

fender, whether or not eligible for parole, not less

than once each year. Such review shall include the

circumstances of the offender’s offense, the presen-

tence investigation report, his previous social history

and criminal record, his conduct, employment, and

attitude during commitment, and the reports of such

physical and mental examinations as have been made.

The board shall meet with such offender and counsel

him concerning his progress and his prospects for

future parole;

**(10) Make rules and regulations for its own

administration and operation;

‘“*(11) Appoint and remove all employees of the

board and delegate appropriate powers and duties to

them ;

**(12) Transmit annually to the Governor a re-

port of its work for the preceding calendar year,

which report shall be transmitted by the Governor to

the Legislature; and

**(13) Exercise all powers and perform all duties

necessary and proper in carrying out its responsibil-

ilies under the provisions of this act.”

Neb. Rev. Stat. § 83-1,111 (Reissue 1976) :

‘“*(1) Every committed offender shall have a

hearing before a majority of the members of the Board

of Parole within sixty days before the expiration of

iii ia.

4

his minimum term less any reductions. Every com-

mitted offender shall be interviewed within sixty days

prior to his final parole hearing by a member of the

Board of Parole. The hearing shall be conducted in

an informal manner, but a complete record of the pro-

ceedings shall be made and preserved.

‘*(2) The board shall render its decision regard-

ing the committed offender’s release on parole within

a reasonable time after the hearing. The decision

shall be by majority vote of the board. The decision

shall be based on the entire record before the board,

which shall include the opinion of the member who

presided at the hearing. If the board shall deny

parole, written notification listing the reasons for

such denial and the recommendations for correcting

deficiencies which cause the denial shall be given to

the committed offender within thirty days following

the hearing.

“(3) If the board fixes the release date, such date

shall be not more than six months from the date of

the committed offender’s parole hearing, or from the

date of last reconsideration of his case, unless there

are special reasons for fixin, a later release date.

“*(4) If the board defers the case for later re-

consideration, the committed offender shall be af-

forded a parole hearing at least once a year until a

release date is fixed. The board may order a recon-

sideration or a rehearing of the case at any time.

**(5) The release of a committed offender on

parole shall not be upon the application of the of-

fender, but by the initiative of the Board of Parole.

No application for release on parole made by a com-

mitted offender or on his behalf shall be entertained

by the board. Nothing herein shall prohibit the Di-

rector of Correctional Services from recommending

to the board that it consider an individual offender for

release on parole.’’

5)

Neb. Rev. Stat. § 83-1,114 (Reissue 1976):

“*(1) 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 be-

cause:

“‘(a) There is a substantial risk that he will not

conform to the conditions of parole;

“(b) His release would depreciate the serious-

ness of his crime or promote disrespect for law;

““(c) His release would have a substantially ad-

verse effect on institutional discipline; or

“(d) His continued correctional treatment, medi-

eal 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.

‘“*(2) In making its determination regarding a

committed offender’s release on parole, the Board of

Parole shall take into account each of the following

factors:

‘*(a) The offender’s personality, including his

maturity, stability, sense of responsibility and any

apparent development in his personality which may

promote or hinder his conformity to law;

‘*(b) The adequacy of the offender’s parole plan;

‘*(e) The offender's ability and readiness to as-

sume obligations and undertake responsibilities ;

“‘(d) The offender’s intelligence and training;

‘“‘(e) The offender’s family status and whether

he has relatives who display an interest in him or

whether he has other close and constructive associa-

tions in the community;

““(f) The offender’s employment history, his oe-

cupational skills, and the stability of his past employ-

ment;

I iia ie

“‘(g) The type of residence, neighborhood or

community in which the offender plans to live;

“(h) The offender’s past use of narcotics, or

past habitual and excessive use of alcohol;

‘*(i) The offender’s mental or physical makeup,

including any disability or handicap which may affect

his conformity to law;

**(j) The offender’s prior criminal record, in-

eluding the nature and circumstanees, recency and

frequency of previous offenses;

“*(k) The offender’s attitude toward law and au-

thority;

“*(1) The offender’s couduet in the facility, in-

eluding particularly whether he has taken advantage

of the opportunities for self-improvement, whether he

has been punished for misconduct within six months

prior to his hearing or reconsideration for parole

release, whether any reductions of term have been

forfeited, and whether such reductions have been re-

stored at the time of hearing or reconsideration ;

“‘(m) The offender’s behavior and attitude dur-

ing any previous experience of probation or parole

and the recency of such experience; and

‘“‘(n) Any other factors the board determines to

be relevant.’’

Neb. Rev. Stat. § 83-1,115 (Reissue 1976) :

‘Before making a determination regarding a

committed offender’s release on parole, the Board of

Parole shall consider the following:

“‘(1) A report prepared by the institutional case-

workers relating to his personality, social history and

adjustment to authority, and including any recommen-

dations which the staff of the facility may make;

7

“(2) All official reports of his prior criminal

record, including reports and records of earlier pro-

bation and parole experiences ;

**(3) The presentence investigation report;

“*(4) Recommendations regarding his parole

made at the time of sentencing by the sentencing

judge;

“*(5) The reports of any physical, mental and

psychiatric examinations of the offender;

(6) Any relevant information which may be

submitted by the offender, his attorney, the victim of

his crime, or by other persons ; and

“*(7) Such other relevant information concerning

the offender as may be reasonably available.”

QUESTIONS PRESENTED

1. Whether the Due Process Clause of the Fourteenth

Amendment applies to the granting or denial of dis-

cretionary parole by the Nebraska Board of Parole?

2. If the Due Process Clause of the Fourteenth

Amendment applies to the granting or denial of discre-

tionary parole, what procedures are constitutionally man-

dated?

3. Whether the procedures followed by the Nebraska

Board of Parole comply with all constitutionally mandated

procedures, if any?

8

STATEMENT OF THE CASE

This case was filed as a class action in 1972 by a

number of inmates of the Nebraska Penal and Correctional

Complex against the members of the Nebraska Board of

Parole, of which John B. Greenholtz was and is Chairman.

It was brought under 42 U.S. C. § 1983, and the complaint

alleged violations of the inmates’ constitutional rights in

various respects.

As no one group could properly represent all of the

classes, the district court designated different inmates as

representatives of the various classes, and appointed

counsel to represent each class. It was eventually treated

as three separate suits, since the different claimed viola-

tions were not related. There were separate trials and

appeals with respect to the various classes. We are here

concerned with the class claiming that they were denied

procedural due process in the granting or denial of dis-

cretionary parole.

In Nebraska, paroles are of two types, mandatory and

discretionary. Mandatory parole is given when an inmate

has served his maximum sentence less good-time credit.

See Neb. Rev. Stat. § 83-1,107 (1) (b). We are not con-

cerned herein with mandatory parole.

An inmate becomes eligible for discretionary parole

upon serving his minimum term, less good-time credits.

It is that type of parole which is the subject of this action.

Parole hearings are of two types, parole review hear-

ings and final parole hearings. The exact procedure is

based partly on statute, and partly on the practices that

have been followed by the board for a number of years.

SE ee er Lee ee ee ee ee. eee

Parole review hearings must be held with every committed

offender at least once each year, whether or not he is

eligible for parole, under the provisions of Neb. Rev. Stat.

§ 83-192 (9). Section 83-1,111 also requires a hearing for

eligible inmates at least once each year. The board has

construed this as simply calling for a parole review hear-

ing, rather than for a final parole hearing.

Final parole hearings have, in some instances, been

called simply “parole hearings,” and, as a matter of fact,

the stipulation entered into herein (A30) called them

simply “parole hearings.” This, however, is a misnomer,

as the parole review hearings are also “parole hearings.”

Section 83-1,111 refers to a “final parole hearing,” and

members of the board usually do, also (R43, 61, 67).

Final parole hearings for discretionary parole are

never automatic, but are set, at the discretion of the

board, following a parole review hearing. At the parole

review hearing the board reviews the inmate’s record and

talks to him. He is not permitted to offer evidence, but

_ the board will accept letters that he may wish to present

(R55-56). If the inmate is not then eligible for parole, he

is deferred until a later parole review hearing, or until

he is eligible. If he is eligible, the board will either. sched-

ule him for a final parole hearing, or defer him to an-

other parole review hearing, not later, of course, than

one year later (R44-45).

If the board concludes at the parole review hearing

that an eligible inmate may be a good candidate for

parole, he is set for a final parole hearing. At a final

parole hearing the inmate may present evidence, includ-

ing calling witnesses. He is permitted counsel. He is not

10

permitted to hear opposing testimony, or, of course, cross-

examine opposing witnesses (R56).

Inmates are advised in advance of the month in which

their parole review or final parole hearings will be held,

and are notified of the exact time by posting at the Ne-

braska Penal and Correctional Complex on the date of the

hearing.

Following a parole review hearing, inmates are sent

one of two form notices (A35-37). One form notifies the

inmate that his ease has been deferred until a specified

month, and lists 5 specified reasons which roughly track

the reasons for denial enumerated in Neb. Rev. Stat. § 83-

1,114, and a blank for other reasons. The form also con-

tains recommendations for correcting deficiencies.

The other form notifies the inmate that his case has

been set for final hearing in a certain month.

Parole counselors are provided at the penitentiary.

Each inmate is assigned to a particular counselor, who

meets with his inmates periodically—about six times a

year—and is available whenever the inmate wants to talk

to him. The counselor attends parole review hearings

and final parole hearings, and assists the inmate in the

preparation of his parole plan (R49-54).

Following a final parole hearing, the inmate is noti-

fied either that he will be paroled, or that he has been

denied and deferred until another parole review hearing.

If he has been denied parole, he is notified by letter, which

also states the reason for denial. Respondents found eight

such letters written in a period of 23 months which did

not contain reasons (R12). The records of the hearings

11

on those eight inmates were introduced. They showed

that one of the eight was not eligible because of loss of

good time credits, one said at the hearing he did not want

a parole, and one did not appear at the hearing, but sent

a note to the board waiving his hearing. One of the mem-

bers of the board testified that failure to include reasons

for denial was a departure from the practice of the board

(R57).

Following a trial on May 31, 1977, the district court

found that procedural due process applied to the parole

proceedings, and that the board’s practices in some re-

spects exceeded constitutional requirements, and in other

respects fell short. The court said the following proce-

dures were required: (1) Every inmate eligible for parole

must be afforded a formal parole hearing. (2) At least

72 hours prior to the time of the hearing the inmate must

receive written notice of the date and hour of his hear-

ing, accompanied by a concise listing of the factors the

board might consider in evaluating an eligible inmate for

discretionary parole. (3) The inmate must be allowed to

present evidence in support of his application for parole,

subject to prison security considerations. (4) A record

of the proceeding was to be maintained. (5) Within a

reasonable time following the parole hearing, each inmate

to whom parole was denied must be given a full and fair

explanation, in writing, of the evidence relied upon and

the reasons for denial of parole (Appendix to Petition

for Certiorari, pp. 39-43).

On appeal, the Court of Appeals affirmed in part and

reversed in part, holding that procedural due process ap-

plied, but modifying the required procedures to the fol-

lowing: (1) Every inmate is to receive a formal parole

12

hearing upon first becoming eligible for parole. Subse-

quent hearings are to be allowed in the discretion of the

board. (2) Every inmate is to receive a written notice of

the date and hour of the hearing reasonably in advance.

This notice shall contain a list of the factors which may

be considered by the board in making its determination.

(3) Subject to security considerations, every inmate is

allowed to appear in person before the board and present

documentary evidence in support of his application. In

the absence of unusual circumstances, an inmate does not

have a constitutional right to call witnesses in his behalf.

(4) A record of the proceedings which is capable of being

reduced to writing must be maintained. (5) Within a

reasonable time following the hearing, each inmate to

whom parole was denied must be given a full and fair

explanation, in writing, of the essential facts relied upon

and the reasons for denial of parole (A23-24).

io)

SUMMARY OF ARGUMENT

Procedural due process is more clearly indicated in

the situation where action of the government changes the

condition of a citizen to his detriment than where the gov-

ernment simply refuses to change a condition at his re-

quest. If due process applies at all to the latter situa-

tion, the requirements are far less than in the former.

Whether an inmate will be granted discretionary pa-

role is dependent, by statute, upon reaching an opinion

that parole for this particular inmate is proper. It is not

dependent upon any particular factual determinations, and

13

no facts that may be found to exist entitle an inmate to

discretionary parole. All of the criteria by which the

board is to reach the decision are subjective, except facts

which have already been determined in a due process

hearing. A due process type hearing is ill-suited for

reaching such determinations, and this court has not re-

quired them in this type of situation.

Since denial of parole is not necessarily based on

misconduct on the part of the inmate, no stigma attaches

to such denial, and therefore no protectable liberty inter-

est is involved.

The procedures mandated by the Court of Appeals

carry with them almost no benefits to the inmates, since

they will never be able to show facts entitling them to

parole, if the board thinks they should not have one. So

far as the board is concerned, however, it will require

more final hearings, and will require much wasted effort

on the part of the board and the parole counselors.

Requiring the board to state the essential facts relied

upon will force the board to make a record in each ease,

probably introducing evidence, to justify their reaching

subjective conclusions not easily susceptible of proof. It

will probably change the focus of the hearing from the

statutory criteria to superficial “facts.” It may very well

lead to judicial review in state court, which does not now

exist, or to federal habeas corpus or civil rights actions

based upon alleged inadequacy of evidence to sustain de-

nials.

Nebraska now gives each inmate a hearing each year.

He can present letters to the board, and attempt to con-

vince them of his worthiness for parole. The board con-

14

siders his entire record. If he is denied, he is told the

reasons for denial. If he is granted a final parole hear-

ing, he can have counsel and present evidence. The pro-

cedures more than comply with those prescribed by the

other circuits which have said due process applies at all.

ARGUMENT

I.

Procedural due process does not apply to

hearings conducted to determine whether an in-

mate should be granted discretionary parole.

We submit that the Court of Appeals has taken

eases decided by this Court dealing with adverse changes

in a person’s present condition, which changes were au-

thorized only upon proof of specific facts, and has mis-

read them to apply to the parole granting or denial situ-

ation. We believe none of this Court’s decisions point in

the direction taken by the Court of Appeals.

A. Due Process Requirements Are Less Appro-

priate for a Continuation of a Condition

than for an Adverse Change in a Condition.

The Court of Appeals relied heavily on Morrissey ».

Brewer, 408 U. S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593

(1972); Wolff v. McDonnell, 418 U. S. 539, 41 L. Ed. 2d

935, 94 S. Ct. 2963 (1974); and Gagnon v. Scarpelli, 411

U. S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756 (1973). All of

those eases (as do almost all other decisions of this Court

15

that have come to our attention) involved adverse action

taken by an administrative or judicial body to change the

condition of the person against whom the action was

taken.

In Morrissey v. Brewer, supra, the Chief Justice, in

footnote number 8 quoted the following language from

United States ex rel. Bey v. Connecticut Board of Parole,

443 F. 2d 1079, 1086 (2d Cir. 1971):

“It is not sophistie to attach greater importance

to a person’s justifiable reliance in maintaining his

conditional freedom so long as he abides by the con-

ditions of his release, than to his mere anticipation

or hope of freedom.”

An article by Judge Henry B. Friendly found in 123

U. of Pa. L. Rev. 1267 has been referred to several times

by this Court. In that article Judge Friendly draws a

distinction between cases where the government is seeking

to take some action against a citizen and those in which

it is simply denying a citizen’s request, and says (pp.

1295-1296) :

“But the distinction has a notable lineage. The

famous Article 39 of Magna Carta, often seen as the

origin of the concept of due process, speaks in ‘terms

of the king’s going out or sending against a free man,

not of his refusing a request. And whatever the

mathematics, there is a human difference between los-

ing what one has and not getting what one wants.

This point is convincingly developed, in the context

of revocation as distinguished from denial of parole,

in Chief Justice Burger’s opinion in Morrissey vy.

Brewer.”

Even in Wolff v. McDonnell, where the Court held

procedural process applied to the loss of good time cred-

16

its, the Court said that it was qualitatively and quanti-

tatively different from revocation of parole or probation.

Further, in Wolff v. McDonnell there was a change ef-

fected by the action of the administrative body, since

eredits which the inmate had earned were taken away

from him. As the Court pointed out, this might not ulti-

mately result in any adverse consequences. Nevertheless,

it was the result of affirmative action on the part of the

prison officials, not refusal to act. We are here con-

cerned with a refusal to grant parole, a purely negative

action. It is therefore another step beyond Wolff v. Mc-

Donnell in that respect.

The Fifth Circuit has relied on such distinction in

denying procedural due process in the parole granting

area. See Brown v. Lundgren, 528 F. 2d 1050 (5th Cir.

1976), and Scarpa v. United States Board of Parole, 477

F. 2d 278 (5th Cir. 1973), vacated and remanded to con-

sider mootness, 414 U. S. 809 (1973), dismissed as moot,

501 F. 2d 992 (5th Cir. 1973).

We are not suggesting that under no circumstances

could due process procedures be required for the admin-

istrative denial of requested relief. In a clear case of

entitlement to relief, conditioned upon specific factual de-

terminations, perhaps the citizen could not be denied the

relief without an opportunity to be heard. We are simply

saying that the basis for expectation of change in status

must be much clearer to bring the Due Process Clause

into play than is the case of taking from the citizen a

benefit he is presently enjoying. And if due process is

held to apply, the extent of the required procedures

should be less in the case of a continuation of a status

than in the case of a change in status.

17

B. A Prisoner in Nebraska Has no Liberty or

Property Right, Founded on State Law, to

Release on Discretionary Parole,

The Due Process Clause of the Fourteenth Amend-

ment protects life, liberty, and property from deprivation

by the state without due process of law. Since the pris-

oner has already been deprived of his liberty by sentence

of the court, a parole has been dealt with in property

terms. For example, Mr. Justice Douglas said in Morris-

sey v. Brewer (dissenting), at 408 U.S. 493 that a parole

was a deed, which when conferred gives a parolee a degree

of liberty which is often associated with property inter-

ests. In Wolff v. McDonnell, supra, this Court said that

the analysis as to liberty parallels the accepted due process

analysis as to property. We will therefore discuss the

issue in property terms, to see whether a prisoner has a

‘‘property”’ interest in his expectation of a discretionary

parole. The sine qua non of such a property interest is

a reasonable expectation, based upon state law or practice,

that he will receive such a parole in the absence of specific

factual determinations justifying a refusal to grant it.

Without question there will be a contention that Neb.

Rev. Stat. § 83-1,114 (Reissue 1976) gives prisoners in Ne-

braska such a property right, in view of the language of

that section that the board “shall” order his release unless

it is of the opinion that his release should be deferred for

the itemized reasons. The Court of Appeals made a pass-

ing reference to this section in supporting its decision,

although it did not explore this issue in depth, but talked

in very general terms about the right to procedural due

process in the parole granting process. No attempt was

made to base its decision on the specific language of the

18

Nebraska statute. If it had, Nebraska would at least have

had an opportunity to cure the situation by amending its

statute.’

We submit, however, that Neb. Rev. Stat. § 83-1,114

(Reissue 1976) would not support the decision, in any

event, because the statute does not condition denial of pa-

role upon any factual basis, but solely on the subjective

determination of the board as to the propriety of giving

the particular inmate a parole. An evidentiary hearing is

ill-suited for making such a determination.

Neb. Rev. Stat. § 83-1,114 (Reissue 1976) was not in-

tended to vest any rights in the inmates to a parole, but

was intended, instead, to constitute instructions to the

Board of Parole as to the factors to be taken into account

in reaching its decisions. In Nebraska, at least, the court

has looked with extreme disfavor upon unbridled discre-

tion resting in administrative bodies. In Lincoln Dairy

Co. v. Finigan, 170 Neb. 777, 104 N. W. 2d 227 (1960), for

example, the court said, with respect to the grant of power

to an administrative agency:

1 We have checked the statutes of other states to determine

in what respects they differ from ours. Many states author-

ize the parole board to adopt regulations with respect to the

granting of parole, so it is difficult to determine what the

exact situation is in those states. Some statutes provided

that the board “may” grant parole after various subjective

findings. Others provide that the board “shall” do so. See,

e. g., Code of Ala. 1975, § 15-22-26; West’s Ann. Calif. Codes

$ 3041 (b); Title 17-1-201, Colo. R.S. 1973; $906.4, lowa

Code Ann.; S. Dak. C.L. 23-60-12; § 40-3614, Tenn. Code

Ann.; T. 28, $1051, Vt. Stat. Ann. North Carolina has a stat-

ute similar to Nebraska’s. It provides that the board may

refuse to release an inmate on parole if it reaches a certain

specified conclusion. See § 15A-1371, N.C. G. S.

he

>

19

“The limitations of the power granted and the

standards by which the granted powers are to be ad-

ministered must, however, be clearly and definitely

stated in the authorizing act... .”

We therefore submit that the rather detailed factors

to be taken into account under Neb. Rev. Stat. §¢ 83-1,114

(Reissue 1976) are simply a reflection of the Legislature’s

awareness that a grant of authority to the board to parole

in its unfettered discretion might not pass muster in the

Nebraska Supreme Court.

We also submit that the use of the word ‘‘shall’’ in-

stead of ‘‘may’’ has no significance. It is, of course, con-

ditioned on the board’s having a certain opinion, not upon

its finding particular facts. Furthermore, in this context

there can be no difference in the meaning of ‘‘shall” and

‘*may,’’ unless we are to assume that the use of the word

‘‘may,’’? in some of the state statutes was intended to

authorize completely arbitrary or even discriminatory

actions.

For example, the Iowa statute is very similar to that

of Kansas. Section 906.4, Iowa Code Ann. provides that

the board ‘‘shall’’ parole the inmate ‘‘when in its opinion

there is a reasonable probability that such person can be

released without detriment to the community or to himself

or herself.’’ Kan. Stat. Ann. § 22-3717, on the other hand,

provides that the authority ‘‘shall have the power’’ to

release inmates when, in the opinion of the Authority,

‘‘there is a reasonable probability that such persons can

be released without detriment to the community or to

themselves.”

To suggest that there is any difference between the

Iowa and Kansas statutes is to say that in Iowa the board

20

must release the inmate when it reaches the prescribed

conclusion, but that in Kansas the parole authority which

has reached that same conclusion may refuse to release,

for undisclosed reasons of its own, which reasons were

not specified by the Legislature. In Nebraska, at least, we

suspect that our Supreme Court would not countenance

such a construction.

Every parole authority reaches its decision to parole

or not to parole on the basis of considerations identical,

or very similar, to those listed in Neb. Rev. Stat. § 83-1,114

(Reissue 1976). The fact that the Legislature articulated

them, instead of authorizing the board to do so by regula-

tion, has no significance so far as their creating a property

interest in the inmate is concerned. Nor does the use of

the word ‘‘shall” have significance, in view of the sub-

jective nature of determinations to be made by the board.

We therefore submit that the decision of the Court of

Appeals cannot be sustained on the basis of any peculiar-

ities of the Nebraska statute. The situation in Nebraska

is no different from that in every other state where a

board is given discretionary authority to grant or deny

paroles. Whether set out in the statute, the board’s regu-

lations, or a uniform practice, every parole board has such

standards, unless we are to assume that its actions are

purely whimsical.

21

C. A Right which Gives Rise to Procedural

Due Process Must Be Conditioned upon

Findings of Specific Facts, as Opposed to

Subjective Conclusion Reached by the De-

cision-Making Body.

This Court has, almost without exception, found a

‘*properiy’’ right requiring procedural due process only

when the deprivation of that right was required to be

based upon a finding of specific facts. There is no such

requirement in Nebraska, nor, so far as we are aware, it

any other state, when discretionary parole is denied.

In Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed.

2d 548, 92 S. Ct. 2701 (1972), this Court said that to have

a property interest in a benefit, a person must have a

legitimate claim to entitlement thereto. In the case of

parole, of course, that claim must rest upon the statute.

Neb. Rev. Stat. § 83-1,114 does not create such a legitimate

claim.

Even in cases in which this Court held procedural due

process to apply, it has, time after time, stressed the

factual nature of the required findings. In Goldberg v.

Kelly, 397 U.S. 254, 25 L. Ed. 2d 287, 96 S. Ct. 1011 (1970),

this Court quoted from Green v. McElroy, 360 U.S. 474, 3

L. Ed. 2d 1377, 79 S.Ct. 1400 (1959), to the effect that

where governmental] action seriously injures a person, and

the reasonableness of the action depends on fact findings,

the evidence used must be disclosed so that he has an op-

portunity to show that it is untrue.

In Morrissey v. Brewer, supra, the Chief Justice

pointed out that a parole could be revoked only upon proof

of the violation of the conditions of the parole, and that

ae

"5d ee

22

the first step in the revocation process involved the wholly

retrospective factual question of whether such violation

had occurred. Mr. Justice Douglas, in a concurring and

dissenting opinion, said that the purpose of the required

hearing was to determine the fact of parole violation.

In Goss v. Lopez, 419 U.S. 565, 42 L. Ed. 2d 725, 95

S. Ct. 729 (1975), the Court required some sort of hearing,

‘*to determine whether the conduct has occurred.” In

Gagnon v. Scarpelli, supra, the issue was whether the

probationer had violated the terms of probation, a purely

factual determination. In Wolff v. McDonnell, supra, this

court said:

‘“. . Since prisoners in Nebraska can only lose

good-time credits if they are guilty of serious mis-

conduct, the determination of whether such behavior

has occurred becomes critical, and the minimum re-

quirements of procedural due process appropriate for

the circumstances must be observed.’’

Mr. Justice Frankfurter, concurring in Joint Anti-

Fascist Refugee Committee v. McGrath, 341 U. S. 123, 95

L. Ed. 817, 71 S.Ct. 624 (1951), said that fairness can

rarely be obtained by secret, one-sided determination of

facts decisive of rights.

In Arnett v. Kennedy, 416 U.S. 134, 40 L. Ed. 2d 15,

94 S. Ct. 1633 (1974), Mr. Justice White, concurring and

dissenting, said that if termination of government em-

ployment was for reasons of pure inefficiency it was at

least arguable that a hearing would serve no useful pur-

pose, and that judgments of that kind were best left to

the discretion of administrative officials. The types of

determinations to be made with respect to the granting

23

of parole are even less adapted to resolution in an eviden-

tiary hearing than the example given by Mr. Justice

White. The gist of the various opinions in Arnett v. Ken-

nedy holding the employees had a protectable interest

based that holding on the fact that the statute provided

that he could not be discharged except for cause, a factual

issue susceptible of proof.

In Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d

570, 92 S. Ct. 2694 (1972), this Court said that if the ter-

minated professor could establish a tenure system under

which he could not be terminated except for ‘‘sufficient

cause,’’ he would be entitled to a hearing to determine

whether such cause existed. In Mathews v. Eldridge, 424

U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976), the Court

said that central to the evaluation of any administrative

process is the nature of the relevant inquiry.

None of the four reasons for denial of parole listed in

Neb. Rev. Stat. § 83-1,114 (Reissue 1976) are based on

factual determinations, but are specifically based on the

‘‘opinion” of the board. Further, the fourteen factors the

board is to take into account are not readily susceptible

of ‘‘proof,’’ or if they are, are matters of record. There

are no ‘‘facts’’ listed in that section which would require

either a denial or a granting of parole. Even factor (1),

the inmate’s conduct in the facility, including disciplinary

reports, is only something the board is to consider in

reaching its decision. The disciplinary reports are mat-

ters of record, and the inmate will already have had a

due process hearing with respect to such reports, pursuant

to Wolff v. McDonnell, supra.

24

This Court said in Morrissey v. Brewer, supra:

*¢. . . Obviously a parolee cannot relitigate issues

determined against him in other forums, as in the

situation presented when the revocation is based on

conviction of another crime.”

The only hard ‘‘facts,’’ as distinguished from opin-

ions, that go into the parole decision have already been

determined in a due process hearing. It certainly should

not be required that the board hold another hearing to

consider the accuracy of the previous fact finding. In

Dixon v. Love, 431 U.S. 105, 52 L. Ed. 2d 172, 97 S. Ct.

1723 (1977), this Court held a hearing unnecessary to

relitigate traffic convictions, where the driver had a ieady

had a full judicial hearing.

The only case authored by this Court of which we

are aware in which procedural due process was required

under standards remotely approaching those specified in

Neb. Rev. Stat. § 83-1,114 is Kent v. United States, 383

U.S. 541, 16 L. Ed. 2d 84, 86 S. Ct. 1045 (1966). Even in

that case, several factual determinations were prescribed,

and, apparently, all of the factors were required to be con-

sidered. For example, a showing would be required as to

whether the offense was committed in an aggressive,

violent, premeditated, or willful manner.

Furthermore, Kent involved a proceeding in a court

of law, in which due process procedures are much more

commonly expected and demanded than would be expected

of an administrative body. It involved, in effect, at least,

a procedure in a criminal trial, since it was a preliminary

step necessary to the criminal trial. Under those circum-

stances, we would expect more formal procedures to be

required in the Kent situation than would be required of

I AON i i tt —

se Ae Lies a nen

25

an administrative agency. In Morrissey v. Brewer this

Court drew a distinction between a criminal prosecution

and revocation of parole, indicating that a criminal prose-

cution carried more due process rights.

When the administrative action was not conditioned

on factual determinations, this Court has refused to re-

quire procedural due process. Meachum v. Fano, 427 U.S.

215, 49 L. Ed. 2d 451, 96 S. Ct. 2532 (1976), and Montayne

v. Haymes, 427 U.S. 236, 49 L. Ed. 24 466, 96 S. Ct. 2543

(1976), made that clear. In Meachum v. Fano the Court

said:

‘*Here, Massachusetts law conferred no right on

the prisoner to remain in the prison to which he was

initially assigned, defeasible only upon proof of

specific acts of misconduct. Insofar as we are ad-

vised, transfers between Massachusetts prisons are

not conditioned upon the occurrence of specified

evenis. On the contrary, transfer in a wide variety

of circumstances is vested in prison officials. The

predicate for invoking the protection of the Four-

teenth Amendment as construed and applied in Wolff

v. McDonnell is totally nonexistent in this case.” (Em-

phasis supplied.)

The Court then went on to say that the fact that the

inmate’s conduct may have influenced the transfer deci-

sion did not give rise to a right to a hearing to determine

the accuracy of the charges, because the inmate’s legal

rights would not have been violated whether or not the

misconduct was proved. So long as the prison officials

had discretion to transfer for whatever reason or for no

reason at ail, the prisoner’s expectation to remain at a par-

ticular prison so long as he behaved himself was ‘‘too

ephemeral and insubstantial to trigger procedural due

process protections.’’

26

We point out that Meachum v. Fano and Montayne v.

Haymes involved adverse changes in condition, instead of

a refusal to make a change, so, as we showed in a previous

section of this brief, due process procedures are even less

ealled for in the parole denial situation.

In Smith v. Organization of Foster Families for

Equality and Reform, 431 U. S. 816, 53 L. Ed. 2d 14, 97

S. Ct. 2094 (1977), Mr. Justice Stewart, concurring, said

that, “New York confers no right on foster families to

remain intact, defeasible only upon proof of specific acts

or circumstances.” He pointed out that transfers are

made under a variety of circumstances, often involving no

more than informed predictions of what would best serve

the safety and welfare of the child. Therefore, he would

have held, the predicate for invoking the due process

clause—the existence of state-created liberty or property

—was missing.

In Board of Curators, University of Missouri v. Hor-

owitz, — U. S. —, 55 L. Ed. 2d 124, 98 S. Ct. 948 (1978),

the Court did not decide whether the dismissed student had

constitutionally protected interests, but assuming that she

did, held that she had been afforded all that she was en-

titled to, even though she was given no hearing at all be-

fore the decision-making body. The Court pointed out

the significant differences between the failure of a stu-

dent to meet academic standards and the violation of

valid rules of conduct, saying that the former requires

far less stringent procedural safeguards than the latter,

and said:

“ . . Like the decision of an individual professor

as to the proper grade for a student in his course,

ee ee Oe

B

Se eee ee ae Pee

27

the determination whether to dismiss a student for

academic reasons requires an expert evaluation of

cumulative information and is not readily adapted

to the procedural tools of judicial or administrative

decision-making.”

The situation of the dismissed student closely re-

sembles that of the inmate denied parole. The student

was dismissed (and denied graduation) because of vari-

ous academic failures and intangible considerations, not

susceptible of direct proof. No “charges” were made

against her. A hearing before the decision-making body

would have been of little value. The inmate, also, has

not necessarily been “charged” with anything (or, if he

has, he has already had a hearing). The decision as to

whether to “graduate” him, by giving him a parole, is

based upon “an expert evaluation of cumulative infor-

mation,” not susceptible of direct proof. The parole

board’s decision to hold the “student” over for more

“schooling,” instead of “graduating” him should certainly

require no more elaborate procedures than were required

in Horowitz.

The risk of wrongful use of whatever procedure is

employed must be judged “in the context of the issues

which are to be determined in that proceeding.” Mitchell

v. W. T. Grant Co., 416 U. S. 600, 40 L. Ed. 2d 406, 94

S. Ct. 1895 (1974). We cannot imagine what type of

evidence could be adduced that an inmate’s release would

or would not depreciate the seriousness of the inmate’s

offense, or have a substantially adverse effect on institu-

tional discipline. Whether he will or will not conform

to the conditions of parole, or whether his continued in-

earceration will “substantially enhance his capacity to

28

lead a lawabiding life when released at a later date” are

simply conclusions the board must reach from a consid-

eration of his entire record. To require “evidence” on

such matters is simply to substitute the opinions of the

witnesses for those of the board, which is statutorily

vested with the authority to reach conclusions on such

matters.

D. A Denial of Parole Carries with it No Stig-

matizing Effect Giving Rise to a Protected

Liberty Interest.

In Board of Regents v. Roth, supra, the Court

pointed out that in declining to hire the respondent, the

state made no charges against him that might damage his

standing in the community, since it did not base its action

on a charge of dishonesty or immorality. The Court in-

dicated that had the state done so, a hearing would be

required to permit him to clear his name. See also,

Bishop v. Wood, 426 U. S. 341, 48 L. Ed. 2d 684, 96

S. Ct. 2074 (1976); Joint Anti-Fascist Refugee Committee

v. McGrath, swpra; and Cafeteria Workers v. McElroy,

376 U. S. 886, 6 L. Ed. 2d 1230, 81 S. Ct. 1743 (1961).

We submit that no tenable claim can be made that a

denial of parole will have such an effect on the inmate’s

reputation as to deprive him of a liberty interest, requir-

ing due process.

In the first place, of course, the inmate’s reputation

will have been somewhat tarnished by his original convic-

tion, so it will be hard for him to argue that denial of

parole damaged it further. The terminated employees in

Roth and Bishop were far more likely to have been dam- ,

aged in their employment prospects.

ees SCS PRON Bes

_——

29

\ ,

More important, however, is the fact that denial of

parole is not based upon specific charges of misconduct,

and no such implication can be legitimately drawn from

such denial. There is no public announcement of rea-

sons for denial. If misconduct was a factor in the denial,

as we have previously pointed out, he will already have

had a due process hearing on the misconduct. A denial,

therefore, has no stigmatizing effect, and the inmate suf-

fers no consequence in addition to the denial of his im-

mediate freedom. Board of Regents v. Roth teaches that

the immediate consequences of the administrative action

is not enough to trigger procedural due process rights.

E. A Balancing of the Benefits of Acditional Pro-

cedures Against the Costs Militates Against

Such Requirements.

An argument may be made that the procedures or-

dered by the Court of Appeals are not burdensome, and

that some of them are already afforded to inmates by

statute or by practice of the board, and that therefore no

harm to petitioners will result in affirming the judgment

of the Court of Appeals. We submit that such an argu-

ment is fallacious.

First, we have previously discussed the subjective na-

ture of the criteria used in determining whether an in-

mate shall be paroled. A formal evidentiary hearing will

add little or nothing to the parole board’s understanding

of the inmate and his probability of successfully complet-

ing a parole. The decision has been and will continue to

be made on the basis of the total record of the inmate,

and a subjective appraisal of his character. All that such

30

a hearing will add will be largely irrelevant facts, and

opinions from biased or uninformed sources.

The Court of Appeals ordered that each inmate have

a formal parole hearing upon first becoming eligible for

parole. Under present statutes and practices he has a

parole review hearing within sixty days before becoming

eligible for parole, and each year thereafter. We submit

that few, indeed, will be the inmates who are paroled

after the mandated formal parole hearing, whose records

are such that the board would not have scheduled them

for a final parole hearing under present procedures.

The Court of Appeals required that each inmate re-

ceive a written notice of the date and hour of the hear-

ing reasonably in advance, together with a list of the fac-

tors to be considered by the board. They are presently

notified of the month of the hearing, and are notified of

the exact time through posting of such information at the

penal complex on the date of the hearing. Certainly they

are given sufficient time in which to prepare any pres-

entation they may wish to make, particularly their parole

plan, which is, no doubt, the single most important part

of their bid for parole. So far as the inmates are con-

cerned, they are seldom gone on vacation or have conflict-

ing appointments on the day their parole hearing is set.

If they have witnesses, there might be some advantage to

having an exact time set in advance, but there is no evi-

dence that the board is not accommodating in that situa-

tion under present practices.

If they are notified of the factors to be considered

by the board, the notification will, no doubt, be in the

exact words of the statute. While this might not be par-

ne eee:

ee a ee et ete oe

31

ticularly burdensome, it does seem somewhat ludicrous to

require, as a constitutional right, that they be notified as

to statutory provisions.

We will not discuss the cost-benefit ratio of the re-

quirement that inmates be allowed to appear before the

board and present documentary evidence, since they are

now given that right. Likewise, the board now preserves

a record of its hearings which is capable of being re-

duced to writing. We do, of course, deny that such pro-

cedures are constitutionally mandated.

The fifth requirement of the Court of Appeals was

that each inmate who is denied parole must be given a

full and fair explanation, in writing, of the essential facts

relied upon and the reasons for denial. They are now

told the reasons for denial, and in view of the subjective

nature of ihe determinations involved, a statement of the

evidence relied upon will seldom have any real meaning

to them.

We therefore submit that the benefit to the inmates

of the procedures mandated by the Court of Appeals

will be insignificant. The problems it will create for the

Board of Parole will not be.

In Mathews v. Eldridge, 424 U. 8. 319, 47 L. Ed. 2d

18, 96 S. Ct. 893 (1976), this Court held that a determina-

tion of the dictates of due process required consideration

of the private interest affected, the risk of erroneous

deprivation of that interest and the probable value of

additional procedures, and the Government’s interest, in-

cluding fiscal and administrative burdens involved in the

additional requirements. See also, Ingraham v. Wright,

32

430 U. S. 651, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977).

A careful examination of the realities will show that the

costs far outweigh the almost nonexistent benefits.

First, let us consider the requirement that all inmates

receive a formal parole hearing upon becoming eligible

for parole. At present, they receive a parole review hear-

ing, and if the board feels they are likely candidates for

parole, they are given a formal (final) parole hearing.

What this order means, in effect, is that those inmates

who the board feels, after a personal interview and a

review of their records, are not then ready for parole

must, nevertheless, be given a formal parole hearing.

What percentage of the inmates would be affected by

this order is not disclosed by the evidence, but would, we

assume, be substantial. A formal parole hearing is, of

course, a more lengthy procedure than a parole review

hearing, which !asts an average of about ten minutes.

The added hearings would increase the load of the board,

which already must conduct many hundreds of such hear-

ings each year.

More important, however, is the burden on the parole

counselors. Neb. Rev. Stat. § 83-1,114 requires the board,

in considering an inmate for parole, to take into. account

the adequacy of the offender’s parole plan. No plans are

prepared for parole review hearings, but if an inmate is

set for a final hearing, a parole plan must be prepared.

One of the things that must be included in the plan is

employment while on parole. The inmate is, of course, in

no position to line up a job, so someone, presumably the

parole counselor, must do so. Counselors will therefore

be confronted with inmates who everybody in his right

33

mind knows have no chance whatever of being granted an

early parole, but for whom parole plans must be prepared.

Failure to prepare one would make the hearing a farce,

as no one would be paroled without one. Good faith

would require someone to contact prospective employers,

to get them to promise a job to someone who has no

realistic chance of being pargled! In addition to the

added work on the counselors, it probably will make it

more difficult to line up work for people who actually

will be paroled.

Probably the most troublesome part of the Court of

Appeals’ order is the requirement that the inmate be fur-

nished with an explanation of the essential facts relied

upon in denying parole. As we have poir ed out again

and again, the board’s decision is seldom based upon ar-

ticulable “facts,” but upon an overall appraisal of the

man, his record, his crime, ete. Just as it will be diffi-

cult to present meaningful evidence to justify the board’s

action, it will be difficult or impossible to summarize that

evidence. The board can state the reasons for denial, as,

for example, that the inmate’s release would depreciate

the seriousness of the crime or promote disrespect for

law, but what “facts” would one rely upon in reaching that

conclusion ?

While we are not trying to raise imaginary specters,

we are concerned that a requirement of a due process

hearing may result in judicial review of the actions of the

board, either by direct appeal in the state court, or by

habeas corpus or civil rights actions in federal court.

At the present time, there is no judicial review of

denial of parole. Perhaps there will not be, even if the

34

hearings are held to be constitutionally mandated. Judge

Friendly, in his article in 123 U. of Pa. L. Rev. 1267 says,

at page 1294:

“Although I have not researched the state deci-

sions, my impression is that, up to this time, judicial

review in the area of mass justice has largely been

limited to questions of fair procedure, and there has

been little attempt to obtain review for lack of sub-

stantial evidence or even for arbitrariness or capri-

ciousness. Would thet it may remain so! The spec-

tacle of a new source of litigation of this magnitude

is frightening.”

Nevertheless, there is a very real danger that a hold-

ing that a formal evidentiary hearing is constitutionally

mandated, and that the board must state the facts it re-

lies on to deny parole may result in judicial review.

Since, under Neb. Rev. Stat. § 83-1,111 (Reissue 1976), re-

lease on parole is not on the application of the inmate but

upon the initiative of the board, we do not consider such

hearings to be contested cases. However, if they are re-

quired by the Constitution, they may well be held to be

contested cases, and appealable in state court. The vol-

ume of litigation would be overwhelming, in view of many

inmates’ love of litigation.

In Goldberg v. Kelly, 397 U. S. 254, 25 L. Ed. 2d 287,

90 S. Ct. 1011 (1970), we find the statement that the deci-

sion-maker’s conclusion “must rest solely on the legal

rules and evidence adduced at the hearing,” and the fur-

ther statement that the requirement of a statement of

the reasons for the determination and the evidence relied

on is to demonstrate compliance with “this elementary re-

quirement.”

35

If this language is held applicable to the parole re-

lease hearings, it threatens the continuation of the parole

system, in Nebraska, at least. It will certainly be argued

that the board has the burden of presenting evidence jus-

tifying denial. Often the reason will simply be the na-

ture of the crime committed, or the board’s appraisal of

the man. It may be very difficult to make a record which

would convince an appellate court, looking at a cold rec-

ord, that a denial was justified. In any event, the board

would be faced with the burden of making such a record

in every case, enormously increasing the workload of the

board and its almost nonexistent staff. A discussion of

the implications of mandating procedural due process in

this situation is found in Dorado v. Kerr, 454 F. 2d 892

(9th Cir. 1972), cert. denied, 409 U. S. 934, in which the

Court indicated that to require such procedures would

convert the present flexible administrative sessions into

judicial hearings, would change the nature of the Califor-

nia indeterminate sentencing procedure, bringing it into

the state court system, and would greatly increase the

judicial load of California courts.

Besides the problem of state appellate review, it

would seem that Goldberg v. Kelly would permit federal

habeas corpus or civil rights actions. If a denial must be

based solely on legal rules and “evidence” adduced at the

hearing, we presume that a federal court might hold that

an inmate’s constitutional rights were denied if no evi-

dence was adduced to justify denial, or the court felt that

the evidence adduced was insufficient, or did not sustain

the denial. This Court, in Wolff v. McDonnell, hinted

quite clearly that judicial review was a possibility, where

fundamental constitutional rights were abridged.

36

We therefore submit that the seemingly innocuous re-

lief ordered by the Court of Appeals is not such at all,

but carries far-reaching implications. If forced into such

a position we suspect that many states will simply do

away with discretionary parole, and opt for fixed sen-

tences.

II.

If due process applies to parole release pro-

ceedings, Nebraska already complies with all re-

quired procedures.

Mr. Justice Stevens, in his dissent in Scott v. Ken-

tucky Parole Board, 429 U. S. 60, 50 L. Ed. 2d 218, 97

S. Ct. 342 (1976), listed cases from the Fifth and Sixth

Circuits holding due process does not apply to parole re-

lease, and cases from the Second, Fourth, Seventh, and

D. C. Circuits holding that it did. The Court of Appeals

showed the same split. We believe that the Third and

Ninth Circuits should be added to those holding that it

does not apply. See Madden v. New Jersey State Parole

Board, 488 F. 2d 1189 (3d Cir. 1971), and Dorado v. Kerr,

supra.

As can be seen from Mr. Justice Stevens’ footnote,

those circuits that have held that it applies have, in gen-

eral, limited the required procedures to a statement of

reasons for denial of parole. In Franklin v. Shields, 569

F’, 2d 784 (4th Cir. 1978), cert. denied, 98 S. Ct. 1659, the

original panel had ordered more extensive procedures,

but the court sitting en banc reversed the panel and limited

the required procedures to a statement of reasons for

denial. Morrissey v. Brewer, supra, and Mathews v. Eld-

ene ell

OE Te is at

37

ridge, supra, teach that due process is flexible and ‘‘calls

for such procedural protections as the particular situation

demands.’’ The factors cited in Mathews v. Eldridge, 424

U.S. at 335, show that the procedures ordered by the

Circuit Court are excessive, even if this Court concludes

that due process applies at all.

Neb. Rev. Stat. § 83-1,111 (Reissue 1976) now requires

that an inmate denied parole must be told the reasons for

denial and recommendations for correcting deficiencies.

The board complies with this statutory requirement. (The

fact that in a very few cases over a period of almost two

years the board failed to state the ca eng ean certainly

have no constitutional significance, or\ call for corrective

action by the federal courts.)

Nebraska statutes also provide for an annual parole

review, with personal appearance before the board and

counseling with the board concerning his progress and

prospects for future parole. He is permitted to present

letters favoring his parole to the board. If he is scheduled

for a formal parole hearing, he is permitted to call wit-

nesses, present documentary evidence, and have counsel.

Both parole review hearings and final parole hearings are

tape recorded. Each inmate has a parole counselor to

advise him as to what is needed to get a parole.

We submit that if due process applies at all, what is

given by Nebraska far exceeds what is required. ‘The

Court of Appeals was pioneering in this area, and we sub-

mit that it went far astray.

It appears that the Court of Appeals was attempting

to pattern its requirements to fit those required in Wolff

v. McDonnell, but was faced with a problem ‘that no

38

‘‘charges’’ are brought against inmates seeking parole.

Therefore, in place of the requirement that advance written

notice of the charges be given the inmate, as required in

McDonnell, the court ordered that a list of the factors to

be considered by the board must accompany the notice of

hearing, or be posted at the penal institutions. We have

previously commented on the incongruity of requiring

notification of the contents of a statute as being constitu-

tionally mandated.

If a hearing is required, each inmate now gets one

annually, pursuant to statute. In view of the type of

determinations to be made, we submit that the parole

review hearings comply with any constitutional require-

ments. See Goss v. Lopez, 419 U.S. 565, 42 L. Ed. 2d 725,

95 S. Ct. 729 (1975). A formal, fact-oriented hearing such

as is implied in the Court of Appeals’ opinion would not

be helpful, but would only tend to divert the focus from

the statutory criteria.

The requirement of a ‘‘full and fair explanation, in

writing, of the essential facts relied upon’’ is particularly

burdensome and uncalled for, not only because of the

difficulty of articulating the ‘‘facts,’’ but because it im-

plies that evidence must be adduced and made a part of

the record supporting the board’s action.

In Meachum v. Fano, supra, this Court cautioned

against placing the Due Process Clause ‘‘astride the day-

to-day functioning of state prisons and involv[ing] the

judiciary in issues and discretionary decisions that are

not the business of federal judges.’’ In Hoffman v. Pur-

sue, Ltd., 420 U.S. 592, 43 L. Ed. 2d 482, 95 S. Ct. 1200

(1975), this Court said that when federal courts are con-

Sk ate 0 lant, Ce Cite hale nln ne a oe

A iN nN ee Cte i

39

fronted with requests for interference with state civil

functions, they should abide by standards of restraint that

go well beyond those of private equity jurisprudence. And

in Rizzo v. Goode, 423 U.S. 362, 46 L. Ed. 2d 561, 96 S. Ct.

598 (1976), the Court said that in such a situation an in-

junction should be granted only in the most extraordinary

circumstances. These principles, we submit, indicate a

denial of relief to respondents herein.

=)

CONCLUSION

We submit that this Court should hold that this case

is governed by Meachum v. Fano and Montayne v. Haymes,

and that procedural due process does not apply. If this

court disagrees, the required procedures should be limited

to giving a denied inmate a written statement of the rea-

sons for denial. The procedures Nebraska now follows

more than comply with any required by the Fourteenth

Amendment. The decision below should be reversed.

Respectfully submitted,

PAUL L. DOUGLAS

Attorney General

RALPH H. GILLAN

Assistant Attorney General

Attorneys for Petitioners.

a