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

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Supreme Coart, U.

FILED

IN THE ® i978

Supreme Court of the Bnited RODAK, JR_.CLERK

October Term, 1978

No. 78-201

JOHN B. GREENHOLTZ, Individually, and as

Chairman, Nebraska Boards of Parole; EUGENE E.

NEAL, CATHERINE R. DAHLQUIST, MARSHALL M.

TATE, AND EDWARD M. ROWLEY,

Petitioners,

INMATES OF THE NEBRASKA PENAL AND

CORRECTIONAL COMPLEX, RICHARD C. WALKER,

WILLIAM RANDOLPH, RICHARD J. LEARY, ROBERT

L. GAMRON, FREDERICK L. GRANT, WAYNE -

GOHAM, AND CHARLES LAPLANTE,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF FOR THE RESPONDENTS

BRIAN K. RIDENOUR

NELSON & HARDING

P.O. Box 82028

Lincoln, Nebraska 68501

Tel. (402) 475-6761

Court-appointed

Attorney for Respondents.

NST ET TT nN

PRESS OF BYRON S. ADAMS, INC., WASHINGTON, D.C.

TABLE OF CONTENTS

Page

CONSTITUTIONAL PROVISIONS AND ADDITIONAL

STATUTES I NE ig Ri Sak snes 4b 0s oe 1

SRATMOeT Or THECAGE.. ..........0ccccccee, 3

SUMMARY OF ARGUMENT: ...................... 15

ARGUMENT:

I. AN INMATE’S INTEREST IN THE PAROLE

RELEASE DECISION IS A LIBERTY

INTEREST WITHIN THE MEANING OF THE

DUE PROCESS CLAUSE OF THE FOUR-

TEENTH AMENTMENT................... 19

A. Since Nebraska Has Created A Liberty

Interest In Parole, It May Not Deprive

An Inmate Of Such An Interest Without

Procedural Safeguards............... 19

B. The Presence Of Discretion In The

Parole Release Process Does Not Re-

quire A Conclusion That Due Process

Snould Not Apply................... 29

C. Since The Parole Release Decision Af-

fects An Inmate’s Term Of Confinement,

An Inmate Has A Liberty Interest In

That Decision Even Where The State

Statute Does Not Give Rise To A

Presumption Of Release.............. 37

II. DUE PROCESS REQUIRES AT A MINIMUM

NOTICE, A MEANINGFUL HEARING, A

RECORD OF THAT HEARING, AND A STATE-

MENT OF REASONS FOR DENIAL.......... 44

A. Under The Nebraska Statutory Scheme,

An Inmate Is Entitled To A Hearing

Each Time The Parole Decision Is Made 51

Page

. An Inmate’s Right To A Meaningful

. Hearing Includes The Right To Be Pre-

sent; To Present Documentary And

Testimonial Evidence; And, To Be Ad-

vised Of And Permitted To Rebut

Adverse Evidence. .....---++++s+s+%° ~ 56

i Ad-

C. Due Process Requires Reasonable

vance Notice Of The Hearing And AN

Listing Of The Criteria Governing The .

Board’s Decision. ......---++eeseeee? 6

i A

D. Due Process Of Law Requires That

Record, Capable Of Accurate Reduction

To Writing, Be Maintained ........--- 67

i Full

E. Due Process Of Law Requires A

And Fair Written Explanation Of The

Essential Facts Relied Upon And The e

Reasons For Denial.........--++++++> 6

(ian?

CONCLUSION oo ected cenccboccscevcccsoces

a Te ee ee ee ner —

a int wc i 28 ttc

TABLE OF AUTHORITIES

Page

CASES:

UNITED STATES SUPREME COURT

Armstrong v. Manzo, 380 U.S. 545 (1965)........... 59

Arnett v. Kennedy, 416 U.S. 134 (1974). .... 39, 40, 44, 45

Barsky v. Board of Regents of University, 347 U.S.

RE a Agee IRS ORR aaa 34, 35

Bell v. Burson, 402 U.S. 535 (1971) .............05. 49

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

Ua Vest tone tot ee Oi 20, 26, 28, 36, 40

Breed v. Jones, 421 U.S. 519 (1975) .............0.8. 48

Cafeteria and Restaurant Workers v. McElroy, 367

ke | ep itt Se a eer reel anne 24, 45

Frontiero v. Richardson, 411 U.S. 677 (1973) ........ 49

Gagnon v. Scarpelli, 411 U.S. 778 (1973).......... 48, 49

Gardner v. Florida, 430 U.S. 349 (1977). .......... 26, 57

Goldberg v. Kelly, 397 U.S. 254 (1970) ........... 45, 46

Goldsmith v. Board of Tax Appeals, 270 U.S. 117

SE) 0 tk ice ca PRO CULL ih be nah werk 37

Goss v. Lopez, 419 U.S. 565 (1975) ..............-. 26

Graham v. Richardson, 403 U.S. 365 (1971) ....... 16, 36

Ingraham v. Wright, 430 U.S. 651 (1977) ........... 20

Joint Anti-Fascist Refugee Committee v. McGrath,

i ks SE ETS Ay, a ae 32

Kent v. United States, 383 U.S. 541 (1966)........ 23, 33

Konigsberg v. State Bar, 353 U.S. 252(1957)........ 37

Mathews v. Eldridge, 424 U.S. 319(1976)...... 18, 45, 57

Meachum v. Fano, 427 U.S. 215 (1976) ..... 28, 29, 41, 42

Meyer v. Nebraska, 262 U.S. 390 (1923) ............ " 40

iMontanye v. Haymes, 427 U.S. 236 (1976) ........ 28, 29

Morrissey v. Brewer, 408 U.S. 471 (1972)........ passim

Page

Mullane v. Central Hanover Bank & Trust Co, 339

RR eT a pees Hip 65

Schware v. Board of Bar Examiners, 353 U.S. 232

EUSP ccs Sd os.sees oe poem kde Cheked kines our 37

Simmons v. United States, 348 U.S. 397 (1955) ...... 37

Speiser v. Randall, 357 U.S. 513 (1958) ............. 37

Stanley v. Illinois, 404 U.S. 645 (1972) ............. 49

United States v. Grayson, ___ U.S. ___, 98 S.Ct.

MOT A Cacti Nib es tae oe een es ¥4 62 57

Willner v. Committee on Character and Fitness, 373

Ck WUC. Sodu Whe wade ek bee ucdieenus 37

Wolff v. McDonnell, 418 U.S. 539 (1974). ........ passim

UNITED STATES CIRCUIT COURTS OF APPEALS

Bradford v. Weinstein, 519 F.2d 728 (4th Cir. 1974),

vacated as moot, 423 U.S. 147 (1975)...... 20, 23, 32

Brown v. Lundgren, 528 F.2d 1050 (5th Cir. 1976),

cert. denied, 429 U.S. 917 (1976) ............... 20

Childs v. United States Board of Parole, 411 F.2d 1270

D.C. CR. ISOs is ands 28d es Acansn 20, 22, 50, 69

Coralluzzo v. New York State Parole Board, 566 F.2d

375 (2nd Cir. 1977), cert. dismissed as im-

providently granted, 435 U.S. 912(1978)........ 20

Cruz v. Skelton, 543 F.2d 86 (5th Cir. 1976).......... 20

Franklin v. Shields, 569 F.2d 784 (4th Cir. 1977) (en

banc), cert. denied, 435 U.S. 1003 (1978)......... 20

Haymes v. Regan, 525 F.2d 540 (2nd Cir. 1975) ...... 43

Hill v. Attorney General of United States, 550 F.2d

OR Ry oy our one 20

Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964)....... 37

Pence v. Kleppe, 529 F.2d 135 (9th Cir. 1976)........ 37

Page

Scarpa v. United States Board of Parole, 477 F.2d 278

(5th Cir. 1973) (en banc), vacated as moot, 414

U.S. 809 (1973)...... Veena sears be 86 de bods es 20

Scott v. Kentucky Parole Board, No. 74-1899 (6th Cir.

Jan. 15, 1975), remanded to consider mootness,

429 U.S. 60 (1976), reaffirmed sub nom, Bell v.

Kentucky Parole Board, 556 F.2d 805 (1977)..... 20

United States ex rel. Johnson v. Chairman, New York

State Board of Parole, 500 F.2d 905 (2nd Cir.

1974), vacated as moot, 419 U.S. 1015 (1975) 20, 36, 69

United States ex rel. Richerson v. Wolff, 525 F.2d 797

(7th Cir. 1975), cert. denied, 425 U.S. 914 (1976) 20,69

UNITED STATES DISTRICT COURTS

Candirini v. Attorney General, 369 F. Supp. 1132

fe Be. A ea ae ae 69

Cooley v. Sigler, 381 F. Supp. 441 (D. Minn. 1974).... 69

Franklin v. Shields, 399 F. Supp. 309 (W.D. Va. 1975),

affirmed in part, reversed in part, 569 F.2d 784

(4th Cir. 1977) (en banc), cert. denied, 435 U.S.

RR atisit aarn'g 2s hoo bw ab doa 46, 49, 66, 69

Kohlman v. Norton, 380 F. Supp. 1073 (D. Conn. 1974) 47

Leonard v. Mississippi State Probation and Parole

Board, 373 F. Supp. 699 (N.D. Miss. 1974), re-

versed, 509 F.2d 820 (1975), cert. denied, 423 U.S.

UE aia’ oN « SA Raed beaks ec o> + eg aa 47

Masiello v. Norton, 364 F. Supp. 1133 (D. Conn. 1973). 47

STATE COURTS

In re Rodriguez, 14 Cal. 3d 639, 537 P.2d 384, 122 Cal.

IR ee ee ee 47

State v. Pohlabel, 61 N.J. Super. 242, 160 A.2d 647

GR 6:4.5.04 54 a ee hes ls Gd a> Dac haee bans 47

Page

State v. Richter, 191 Neb. 34, 214 N.W.2d 16(1973)... 26

CONSTITUTIONAL AMENDMENTS, FEDERAL AND

STATE STATUTES

U.S. Comat embemd. ALV occ cwccccccccccsces passim

MIN GS ico a 6 Sek k es tceed cbc eee cwee ds 3

EE Ca, Ch hood Reheat be Oe b's oe coset 4

NEB. REV. STAT. §25-1901 (Reissue 1976)............ 52

NEB. REV. STAT. $29-2260 (Reissue 1976)............ 25

NEB. REV. STAT. $83-189 (Reissue 1976)............. 5

NEB. REV. STAT. $83-192 (Reissue 1976).. 5,6, 9, 53, 54, 55

NEB. REV. STAT. $83-1,110 (Reissue 1976)........... 2,6

NEB. REV. STAT. $83-1,111 (Reissue

BOUND adic ind M66 ek Gk wi 6, 7, 8, 11, 53, 54, 55, 56, 64

NEB. REV. STAT. $83-1,112 (Reissue 1976).......... 3, 50

NEB. REV. STAT. $83-1,114 (Reissue

is space berm es 5, 7, 13, 16, 25, 26, 31, 33, 55, 59

OTHER AUTHORITIES: ,

A. Bruce, A. Harno, E. Burgess, J. Landesco, The

Workings of the Indeterminate-Sentence Law and

the Parole System in Illinois (1928)............. 47

K. Davis, Discretionary Justice (1969) ............. 66

R. Dawson, Sentencing (1969) ................005: 57

D. Dressler, Practice and Theory of Probation and

PU enka eS de back escccocecce 47

Final Report of the Joint Committee on Prison Reform

of the Texas Legislature (1974)................ 47

Hearings Before Subcommittee No. 3 of the House

Judiciary Committee, 92d Cong., 2d Sess. (1972).. 47

Parsons-Lewis, Due Process in Parole Release Deci-

sions, 60 Cal. L. Rev. 1518(1972) .............. 27

2 he Ww ees Ae ted ee BR

Bates Ste

oe we

Ce dae oue

See en ee ae

vii

Page

President’s Commission on Law Enforcement and Ad-

ministration of Justice, Task Force Report:

CTT i Sis Sie hbk ov bho wae ek. 27, 56

Report of the Citizens Advisory Committee to the

Joint Committee on Prison Reform of the Texas

STE os been eo dn dceaeeewaren: 47

Singler, Abolish Parole?, 38 Fed. Prob. 42 (June, 1975) 27

bait aa lel tee

SCA A SAR AAA BIT i RCRA ME USP Bossi oil ta cesta nd sidan abe Se bade

IN THE

Supreme Comt of the United States

Octoher Term, 1978

No. 78-201

JOHN B. GREENHOLTZ, Individually, and as

Chairman, Nebraska Board of Parole; EUGENE E.

NEAL, CATHERINE R. DAHLQUIST, MARSHALL M.

TATE, AND EDWARD M. ROWLEY,

Petitioners,

INMATES OF THE NEBRASKA PENAL AND

CORRECTIONAL COMPLEX, RICHARD C. WALKER,

WILLIAM RANDOLPH, RICHARD J. LEARY, ROBERT

L. GAMRON, FREDERICK L. GRANT, WAYNE

GOHAM, and CHARLES LAPLANTE,

Respondents.

BRIEF FOR THE RESPONDENTS

CONSTITUTIONAL PROVISIONS

AND

ADDITIONAL STATUTES INVOLVED

Fourteenth Amendment, United States Constitu-

tion:

‘‘Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the State wherein they reside. No state shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States; nor shall any State deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdic-

tion the equal protection of the laws.’’

The following additional sections of the Nebraska

statutes are pertinent hereto:

NEB. REV. STAT. § 83-1,110 (Reissue 1976).

‘(1) Every committed offender shall be eligi-

ble for release on parole upon completion of his

minimum term less reductions granted in accord-

ance with this act. A committed offender shall be

eligible for parole prior to the expiration of the

minimum term whenever the sentencing judge or

his successor in office shall give his approval for

the parole of such offender.

(2) every committed offender sentenced to

consecutive terms, whether received at the same

time or at any time during the original sentence,

shall be eligible for release on parole when he

shall have served the total of the minimum

terms, less reductions granted in accordance with

the provisions of this act. The maximum terms

shall be added to compute the new maximum

term, which, less reductions granted in accord-

ance with the provisions of this act, shall deter-

mine the date when his discharge from the cus-

tody of the state becomes mandatory.”’

NEB. REV. STAT. $ 83-1,112 (Reissue 1976).

“(1) Each committed offender eligible for pa-

role shall, in advance of his parole hearing, have

a parole plan in accordance with the rules of the

Board of Parole. Whenever the board determines

that it will facilitate the parole hearing, it may

furnish the offender with any information and

records to be considered by it at the hearing.

(2) An offender shall be permitted to advise

with any person whose assistance he desires, in-

cluding his own legal counsel, in preparing for a

hearing before the Board of Parole.”’

STATEMENT OF THE CASE

This action was instituted pursuant to 42 U.S.C.

§ 1983 in the United States District Court for the

District of Nebraska! as a class action? on behalf of

all inmates (Respondents herein) incarcerated in the

' The briginal complaint in this action was filed on November

13, 1972 (A.1) and alleged 1) unlawful denial of parole or work

release because members oi ine plaintiff class had exercised their

rights of access to the courts; 2) denial of patole or work release

because of racially discriminatory reasons; and 3) violation of the

Due Process Clause in parole release and wos‘: release proceed-

ings. The due pfocess claims of the Inmates were dismissed, but

the order of dismissal was not certified as an appealable order.

The other claims proceeded to trial and were ultimately dis-

missed on the merits. The previous order dismissing the due

process claims was vacated on the same date the other claims

were disinissed. Counsel for the Inmates herein was appointed

by the district court and the claims of the Inmate class were

processed as a separate lawsnit. ;

* This action was certified as a proper class action on Novem-

ber 29, 1973 (A.1) prior to its original dismissal (See n. 1). When

Nebraska Penal and Correctional Complex, Lincoln,

Nebraska (hereinafter referred to as ‘‘the Inmates’’).

The parties named as defendants (Petitioners herein)

were the members of the State of Nebraska Board of

Parole, in both their individual and official capacities

(hereinafter collectively referred to as ‘the Board’’).

Trial occurred on May 31, 1977 (A. 1) and judgment

finding that the Inmates had been denied procedural

due process, spécifying the minimal requirements of

due process, and requiring the Board to implement

procedures encompassing such requirements (A. 38-

39) was entered on October 21, 1977 (A. 2).° A timely

appeal to the United States Court of Appeals for the

Eighth Circuit resulted in an Opinion (A. 2-25) affirm-

ing the district court’s determination that the Due

Process Clause of the Fourteenth Amendment applied

to parole release proceedings but modifying the min-

imum requirements of due process applicable thereto.

Such opinion and accompanying order (A. 40) were

entered May 18, 1978.‘

the order of dismissal was vacated and the action reinstated, the

district court ordered that it proceed as a class action, if the

inmates so desired. The inmates elected to proceed on a class

action basis.

* The Inmates’ claims of denial of due process in work release

proceedings and for monetary damages were dismissed by the

district court. No appeal from such dismissals was taken.

‘ The Board’s appeal to the Eighth Circuit also challenged the

propriety of attorney fees taxed as costs pursuant to 42 U.S.C.

§ 1988. Such allowance was affirmed by the Eighth Circuit (A.24)

and the Eighth Circuit subsequently allowed additional fees. The

Board's Petition for a Writ of Certiorari did not present any

question regarding such allowances of attorney fees.

The amended complaint (A. 25-29) alleged among

other things that the Board failed to: 1) inform the

Inmates of the criteria utilized in determining wheth-

er inmates should be placed on paroie; 2) inform the

Inmates of the date and time of their hearings; 3)

permit the Inmates to present evidence and call wit-

nesses; 5) permit cross-examination of witnesses ap-

pearing in opposition to parole; 6) maintain a complete

and permanent record of all parole release proceed-

ings; 7) permit representation by legal counsel and

provide such counsel upon a showing of indigency; 8)

provide inmates denied parole with a written state-

ment of reasons for denial; and, 9) inform inmates

denied parole of the evidence relied upon. (A. 27).

The Board consists of five members, two of which

are parttime. (Pl. Ex. 3, p. 1; R. 3, 3). All such mem-

bers are appointed by the Governor of the State of

Nebraska. NEB. REV. STAT. § 83-189 (Reissue 1976).

Under Nebraska’s statutes the Board is charged with

the responsibility of determining when and whether

an inmate should be released upon parole. NEB. REV.

STAT. §§ 83-192(1) and 83-1,114(1) (Reissue 1976).

As relevant hereto, two types of parole proceedings

are conducted by the Board. The first, a case and

record review (hereinafter referred to as ‘‘review hear-

ing’’), as required under NEB. REV. STAT. § 83-192(9)

(Reissue 1976) and as stipulated to by the parties, is

to be conducted each year, regardless of the eligibility

of the inmate for parole. (A. 31). During the period of

July 1, 1975 through June 30, 1976, 1,645 such review

hearings were held for inmates at the Nebraska Penal

and Correctional Complex. (Pl. Ex. 3, p. 17, R. 3, 3).

The other type of proceeding conducted by the

Board is a parole hearing (hereinafter “‘Parole hear-

ing’’) required by NEB. REV. STAT. § 83-1,111 (Reissue

1976). As hereinafter discussed, such proceeding is

more formalized in nature and, as stipulated, is grant-

ed only to those inmates who are eligible for discre-

tionary parole and who are set for such a hearing by

the Board after a review hearing. (A. 32-33). Between

July 1, 1975 and June 30, 1976, 327 such parole hear-

ings were held. (Pl. Ex. 3, p. 17, R. 3, 3).

Pursuant to Nebraska’s statutory framework, re-

view hearings are to include an inquiry into the cir-

cumstances of the offender’s offense, presentence in-

vestigation reports, prior social history and criminal

record, the inmate’s conduct, employment, and atti-

tude while imprisioned, and any physical and mental

examination reports available. The Board is required

to meet with the inmate and ‘‘counsel him concerning

his progress and his prospects for future parole’’. NEB.

REV. STAT. § 83-192(9) (Reissue 1976).

By contrast, NEB. REV. STAT. § 83-1,111 ‘Reissue

1976) governs the timing of parole hearings. Subsec-

tion (1) thereof requires a parole hearing within sixty

days prior to the expiration of the inmate’s minimum

term less any reductions (the inmate's eligibility for

Parole date as determined under NEB. REV. STAT. § 83-

1,110 (Reissue 1976)). If the Board, following a parole

hearing defers an inmate for later reconsideration, a

parole hearing is required to be held at least once a

year until a release date is fixed. NEB. REV. STAT. § 83-

1,111(4) (Reissue 1976). -

NEB. REV. STAT. § 83-1,114 (Reissue 1976) provides

the Board with specific statutory instructions for de-

termining whether an inmate should be released on

parole. It mandates the release on parole of any eli-

gible inmate, unless the Board finds that:

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

conform to the conditions of parole;

(b) His release would depreciate the seriousness

of his crime or promote disrespect for law;

verse effect on institutional discipline; or

(d) His continued correctional treatment, medi-

cal care, or vocational or other training in the

facility will substantially enhance his capacity to

lead a law-abiding life when released at a later

date.

NEB. REV. STAT. § 83-1,114(1) (Reissue 1976). The

Board is further provided with fourteen factors which

must be considered in any parole release determina-

tion.°

* Neb. Rev. Stat. § 83-1,114(2) (Reissue 1976) provides:

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, sta-

In practice the Board has equated the annual parole

hearing requirement of NEB. REV. STAT. § 83-1,111(4)

(Reissue 1976) with the review hearing requirement of

bility, 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;

tions 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 associations in the community;

(f) The offender’s employment history, his occupational

skills, and the stability of his past employment;

(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, including the nature

and circumstances, recency and frequency of previous offenses;

(k) The offender’s attitude toward law and authority; par-

_ ticularly whether he has taken advantage of the opportunities

for self-improvement, whether he has been punished for mis-

conduct within six months prior to his hearing or reconsider-

ation for parole release, whether any reductions of term have

been forfeited, and whether such reductions have been restored

at the time of hearing or reconsideration;

(l) The offender's behavior and attitude during any previous

experience of probation or parole and the recency of such ex-

perience; and

(m) Any other factors the board determines to be relevant.

{

}

;

}

NEB. REV. STAT. § 83-192(9) (Reissue 1976). See Peti-

tioner’s Brief, p. 9,. Such practice results in the

Board’s ability to prevent otherwise eligible inmates

from receiving a parole hearing by deferment follow-

ing a review hearing. The deferment may be for up to

one year and may occur repeatedly. Indeed, in the

case of Robert Gamron, one of the inmates testifying

at the trial of this matter, deferral occurred on three

separate occasions, despite the inmate’s eligibility for

parole. (R. 26).

Review hearings and parole hearings differ mark-

edly in the manner in which they are conducted. Re

view hearings last on an average from 5 to 10 minutes.

(R. 16, 43). Although there was some testimony to the

contrary (R. 55), the parties hereto have stipulated

that inmates at review hearings are not permitted to

present evidence or call witnesses in their own behalf

(A.33). Additionally, inmates are neither advised of

nor allowed to examine any evidence, records, etc.

which might adversely affect their chance of parole.

(R. 17-19, 35). For example, the Board -onsiders the

prison records of the individual but does not allow

such individual to examine those records. (R. 19, 36,

46, 47, 56).

Parole hearings are more formalized in nature. At

such hearings inmates are allowed to present evidence

and call witnesses in their own behalf. (A. 33; R. 40,

56). However, if evidence of either a testimonial or

documentary nature opposing the inmate’s release on

parole is received, the inmate is excluded from the

hearing room at the time such evidence is received.

(A.33). The inmate is informed only that there is op-

position to his parole, but is not given any explanation

as to the nature of the evidence received. (A. 33; R.

59). Neither is the inmate permitted any right of cross-

examination as to adverse testimony received.* (A.33).

Inmates are notified either at the time of their orig-

inal confinement or at subsequent review hearings or

parole hearings of the month during which their next

review hearing or parole hearing will be held. Notifi-

cation occurs from 30 days to one year in advance of

the hearing and never specifies the precise date. No-

tification of the precise date and hour occurs through

posting of such information at the Penal Complex on

the date of the hearing. (A. 32; R. 35). By its own

admission, the Board does not advise the Inmates of

the criteria utilized in determining whether they

should be placed upon parole. (R. 45). The inmates

who testified at trial indicated that they had never

been advised by anyone of such criteria. (R. 22, 34).

Testimony presented by the Board indicated that pa-

role counselors are charged with this responsibility

* It is interesting, at this point, to note one anomaly developed

through the trial judge’s questioning of one of the Board mem-

bers. It appears that the Board does permit an inmate’s legal

counsel to remain in the hearing room during presentation of any

such adverse testimony. (R. 68-70). However, the Board does not

provide indigent inmates with legal counsel. (A. 33-34). It would

thus appear that only when an inmate can afford legal counsel,

can he be assured of knowledge of or attempt to rebut adverse

evidence received.

Abe te Dee

ee eS a Oe ee Te en

A DIM te. owed?

i. ee

i i is cisions

(R. 50), but the testimony further indicated that in at

least some instances no such communication actually

occurs (R. 21, 50).

Just as the nature of the two types of hearings

vary, the notification of results given to the inmates

varies. In the case of review hearings, preprinted Pa-

role Board forms are utilized to notify the inmate of

the results. Deferral (the equivalent of denial) is noted

on Form PB-1 (A. 35-36). If the Board should decide

that the inmate is a likely candidate for parole, a

parole hearing will be set and the inmate advised of

such hearing through utilization of Form PB-2. (A.

36-37).

The Board customarily and uniformily utilizes the

preprinted reasons checklist contained in the PB-1 for

explanation of its actions. For the period of October,

1976 through March, 1977, of the 375 inmates eligible

for parole but deferred following a review hearing, 285

were provided a PB-1 form on which only Item (a) had

been checked. (A. 42). That Item reads as follows:

Your continued correctional treatment, vocation-

al, education, or job assignment in the facility

will substantially enhance your capacity to lead

.a law-abiding life when released at a later date.

The Board acknowledged that in a majority of the

cases this is the only reason specified for deferral.’ (R.

’ Neb. Rev. Stat. § 83-1,111 (Reissue 1976) requires a written

statement of both reasons for denial and recommendations for

correction of deficiencies. Form PB-1 contains a standardized

45). The testimony further established that the In-

mates are not advised as to which of the alternative

reasons for deferral listed in Item (a) applies to their

individual cases. (R. 23, 30). Moreover, the testimony

of inmate Gamron specifically establishes that when

efforts are made to obtain an explanation from the

Board as to the meaning of this Item or other Items,

no such explanation is given. (Pl. Ex. 16, Items 18, 19

and 21; R. 27, 28). The letters contained in such Ex-

hibit 16 chronicle the efforts made by this inmate to

obtain information from the Board as to the reasons

for deferral and the lack of response by the Board

thereto.

If an inmate succeeds in gaining a parole hearing

after his review hearing, but is denied parole, the in-

mate is notified of such denial by letter. For the period

of January, 1975 through November, 1976, of the 81

letters of denial sent by the Board, 46 indicated sim-

ply that denial was because of a disciplinary report.

(A. 45). While the phraseology was often different,

many of these simply indicated the ‘‘filing’’ of such a

disciplinary report. In eight cases no reason whatso-

ever was stated in the letter of notification (Pl. Ex.

listing of six deficiencies. (A. 35-36). The Board’s own testimony

indicates that all six Items are always checked (R. 45). Of the

375 PB-1’s referred to supra, 370 showed all Items 1 through 6

as having been checked (A. 42). Yet, Richard C. Walker, one of

the class representatives, testified that all items were checked in

his case, including Item 2, requiring participation in self-improve-

ment programs, despite Walker’s participation in all such avail-

able programs (R. 38).

Bam

5 At tae Mint treet tat alae tic dll React seme hatte Asta 2s, qrvedltn thems: emia: sated

ne a a ee eee eee he eee

12, R. 12, 12), although in some of these cases a verbal

statement of the reason for denial was made at the

hearing. A representative of the Board testified that

these eight letters were a departure from their normal

procedures (R. 57), but acknowledged that many of

the other letters were insufficient in scope. (R. 63).®

Inmates deferred for reconsideration at a subse-

quent review hearing or denied parole following a pa-

role hearing are not advised of the evidence relied

upon by the Board in reaching its determination. (A.

34). With respect to both review hearings and parole

hearings, a record is maintained by the Board in the

form of tape recordings.°

Upon the basis of the foregoing facts, the district

court concluded that minimal due process of law re-

*It is interesting to note that while the Board attempts to

comply with the requirement of Neb. Rev. Stat. § 83-1,114 (Reis-

sue 1976) for a statement of recommendations for correction of

deficiencies in the review hearing ccntext (See n. 7), letters of

denial following a parole hearing seldom contain any such rec-

ommendation.

*The requirements imposed by the district court and the

Eighth Circuit varied slightly in this regard. The district court

would require a written record ‘Pet. App. 42) while the Eighth

Circuit required only a record capable of being reduced to writing

(A. 21,24). While the Inmates find the Eighth Circuit lesser re-

quirement acceptable, it is important that the requirement as to

the quality of recordings be maintained. By stipulation (R. 58)

the Board was permitted to introduce after conclusion of the

trial the transcripts of eight parole hearings. These transcripts

contained numerous examples of inaudible statements or re

sponses by members of the Board or the involved inmate.

quired the Board to institute procedures encompass-

ing items:

1) Every inmate eligible for parole under Nebraska

law must be afforded a formal parole hearing;

2) At least 72 hours prior to the scheduled time of

the parole hearing each inmate under consideration

must receive written notice of the date and hour for

which his hearing is scheduled by the Board, which

notice shall also include a concise listing of the factors

which may be considered in evaluating an inmate for

discretionary parole;

3) Each inmate for whom a parole hearing is sched-

uled must be allowed to appear in person before the

Board to present evidence in support of his applica-

tion subject to prison security considerations;

4) A written record of the proceedings at the parole

hearing must be maintained;

5) Within a reasonable time following the parole

hearing, each inmate to whom parole is denied must

be given a full and fair explanation, in writing, of the

evidence relied upon and the reasons for denial of

parole. (A. 38-39).

By affirming in part and reversing in part, the

Eighth Circuit required:

1) Every inmate is to receive a formal parole hear-

ing upon first becoming eligible for parole. Subse

quent hearings are to be allowed in the discretion of

the Board.

ati.

ae Wan mn aH led PEP Og ae. sith tin tea ds STE Aa ar, Nai 2

;

2) Each 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 deter-

mination.

3) Subject to security considerations, every inmate

is allowed to appear in person before the Board and

present documentary evidence in support of his ap-

plication. 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.

(A. 23-24).

SUMMARY OF ARGUMENT

This case presents the Court with the question of

whether denial of parole is the denial of liberty within

the meaning of the Due Process Clause of the Four-

teenth Amendment. Morrissey v. Brewer, 408 U.S.

471 (1972) clearly indicates that conditional liberty

while on parole is an interest entitled to protection

under the Fourteenth Amemdment. In so holding this

Court recognized the significant interest a prisoner

has in parole. Such interest is even stronger where

created by a state law which also limits the ability of

the State to deny such conditional liberty. Nebraska’s

statutes, principally NEB. REV. STAT. § 83-1,114 (Reis-

sue 1976) establish an inmate’s right to parole and

restrict the Board’s ability to deny such right. Under

such circumstances the Due Process Clause of the

Fourteenth Amendment must apply to the parole re-

lease decision-making process. Morrissey v. Brewer,

supra; Wolff v. McDonnell, 418 U.S. 539 (1974).

The conclusion that due process of law must be

accorded to inmates involved in parole release pro-

ceedings is not altered by the existence of discretion

in the Board’s decision and the requirement that it

consider subjective factors. Although decisions may

be predictive and discretionary, the Due Process

Clause nevertheless applies. Morrissey v. Brewer, 408

U.S. 471, 480 (1972). In the context of parole release

proceedings, reliance upon the discretionary matters

involved in concluding that due process of law does

not apply would be tantamount to readopting the

right/privilege dichotomy which this Court has so fre-

quently rejected. Graham v. Richardson, 403 U.S. 365

(1971); Morrissey v. Brewer, supra. Nor is it pertinent

to argue that the Due Process Clause applies only

where an adverse change in condition occurs. Even

though denial of parole will not change an inmate’s

present status, this Court has frequently recognized

that an interest protected by the Due Process Clause

is not removed from such protection because the in-

dividual involved does not presently enjoy that right.

Equally as important, however, is the nature of the

interest at stake. Since parole is freedom from phys-

ical restraint, parole has been considered a protected

liberty within the meaning of the Due Process Clause,

Morrissey v. Brewer, supra, and the decision with

respect to such interest should be subject to the Due

Process Clause regardless of the existence or nonex-

istence of a state statute raising a presumption of

release. It is the underlying interest which determines

whether the Due Process Clause applies and not the

underlying function of the administrative proceeding.

That the proceeding is discretionary in nature rather

than fact-finding in nature is not a pertinent differ-

ence. Where the decision will affect the inmate’s term

of confinement as opposed to the conditions of con-

finement, due process must apply. Wolff v. Mc-

Donnell, supra. Due process of law must, under the

circumstances of this case, apply to parole release

procee¢‘ngs in the State of Nebraska.

Once it is determined that Nebraska parole release

proceedings are subject to the Due Process Clause,

this Court must then determine what process is due.

Morrissey v. Brewer, 408 U.S. 471, 481 (1972). In

arriving at a resolution of this question, the Court

must balance the governmental and private interest

affected, giving due considerations to (1) the private

interests involved, (2) the risk of an erroneous depri-

vation thereof under present procedures and the value

of additional safeguards and (3) the government's in-

terest. Mathews v. Eldridge, 424 U.S. 319, 334-335

(1976).

An inmates interest in obtaining the conditional

liberty represented by parole is obviously great. But

beyond this, both the inmate and the Board have

concurrent interest in the accurate finding of fact and

the informed use of discretion. Such interest serves

the inmate’s ultimate desire for freedom and serves

the state’s interest in neither preventing successful

rehabilitation nor improperly risking the safety of so-

ciety through premature release. These interest favor

the imposition of minimal due process in parole re

lease proceedings and far outweigh any administra-

tive burden which may result to the Board.

The foregoing analysis suggests the following pro-

cedures are appropriate:

(1) Every inmate who is eligible for parole under

Nebraska law must be afforded a hearing each time

the parole decision is made at which the inmate is (a)

entitled to appear; (b) permitted to present documen-

tary evidence; (c) permitted, subject to prison security

considerations, to call witnesses in his own behalf;

and (d) allowed to hear and examine, or, if prison

security considerations require, informed of any tes-

timony received or factual information in the posses-

sion of the Board which might lead to an adverse

decision.

(2) Each inmate is to receive a written notice of the

date and hour of the hearing reasonably in advance

thereof. This notice shall contain a list of the factors

which may be considered by the Board in making its

determination.

(3) A record of the proceedings which is capable of

being reduced to writing must be maintained.

(4) 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.

ARCUMENT

1. AN INMATE’S INTEREST IN THE PAROLE RELEASE

DECISION IS A LIBERTY INTEREST WITHIN THE

MEANING OF THE DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT.

A. Since Nebraska Has Created A Liberty In-

terest In Parole, It May Not Deprive An In-

mate Of Such An Interest Without Procedur-

al Safeguards.

The question before this Court is whether the de-

cision to deny Parole is a deprivation of liberty within

the meaning of the Due Process Clause of the Four-

teenth Amendment.'® This determination to a certain

extent requires a definition of the concept of liberty.

Although the liberty guaranteed by the Fourteenth

Amendment has never been exactly defined, this

Court has consistently stated:

Without doubt, it denotes not merely freedom

from bodily restraint but also the right of the

individual to contract, to engage in any of the

common occupations of lite, to acquire useful

knowledge, to marry, establish a home and bring

up children, to worship God according to the dic-

tates of his own conscience, and generally to en-

joy those privileges long recognized . . . as essen-

'° Of the circuit courts of appeals which have decided the issue,

four have held the Fourteenth Amendment does apply to parole

release proceedings. See Coralluzzo v. New York State Parole

Board, 566 F.2d 375 (2nd Cir. 1977), cert. dismissed as improvi-

dently granted, 435 U.S. 912 (1978); United States ex rel.

Johnson v. Chairman, New York State Board of Parole, 500 F.2d

925 (2nd Cir. 1974), vacated as moot, 419 U.S. 1015 (1975); Frank-

lin v. Shields, 569 F.2d 784 (4th Cir. 1977) (en banc), cert. denied,

435 U.S. 1003 (1978); Bradford v. Weinstein, 519 F.2d 728 (4th

Cir. 1974), vacated as moot, 423 U.S. 147 (1975); United States

ex rel. Richerson v. Wolff, 525 F.2d 797 (7th Cir. 1975); Childs v.

United States Board of Parole, 511 F.2d 1270 (D.C. Cir. 1974).

Cf. Hill v. Attorney General of the United States, 550 F.2d 901

(3rd Cir. 1977) (by discussing the constitutional adequacy of

reasons given for denial of parole, the court implies that the Due

Process Clause applies). Contra, Cruz v. Skelton, 543 F.2d 86 (5th

Cir. 1976); Brown v. Lundgren, 528 F.2d 1050 (5th Cir.), cert.

denied, 429 U.S. 917 (1976); Scarpa v. United States Board of

Parole, 477 F.2d 278 (5th Cir.) (en banc), vacated as moot, 414

U.S. 809 (1973); Scott v. Kentucky Parole Board, No. 74-1899

(6th Cir. Jan. 15 1975), remanded to consider mootness, 429 U.S.

60 (1976), reaffirmed sub nom, Bell v. Kentucky Parole Board,

556 F.2d 805 (1977), cert. denied, 434 U.S. 960 ( 1978).

~—-

tial to the orderly pursuit of happiness by free

men. ... In a Constitution for a free people, there

can be no doubt that the meaning of ‘“‘liberty”’

must be broad indeed.

Board of Regents v. Roth, 408 U.S. 564, 572 (1972).

See also Ingraham v. Wright, 430 U.S. 651 (1977)

(holding that a school child has a protected liberty

interest in avoiding corporal punishment while in the

care of public school authorities).

In Morrissey v. Brewer, 408 U.S. 471 (1972), this

Court concluded that the liberty enjoyed by a parolee

while on parole was liberty within the realms of the

Fourteenth Amendment and could not be terminated

without some orderly process. In reaching its conclu-

sion this Court applied a test which involved a deter-

mination not of the weight but of the nature of the

interest at stake. The distinction based upon whether

a parolee’s interest was a “right” or a “‘privilege’’ in

determining the applicability of due process was re-

jected, and instead the Court considered the function

of parole in the correctional process and concluded

that since the liberty of the parolee included many of

the core values of unqualified liberty, the decision to

terminate it without due process would inflict a griev-

ous loss on the parolee. Morrissey v. Brewer, supra,

408 U.S. at 484.

The question this Court is being asked to decide,

however, goes not to the revocation of parole but

rather to the decision of whether to grant or deny

parole. It is necessary, therefore, to determine the

nature of the inmate’s interest in the parole decision.

The nature of an inmate’s interest in the decision of

the Board to grant or deny parole is an interest in the

most fundamental concept of liberty, freedom from

physical restraint. The Board’s decision conclusively

determines whether an inmate will be allowed, subject

to the conditions of his parole, to be gainfully em-

ployed and free to be with family and friends and form

other enduring attachments of normal life, or be sub-

jected to continued incarceration. As the United

States Court of Appeals for the District of Columbia

suggested in Childs v. United States Board of Parole,

511 F.2d 1270, 1278 (D.C. Cir. 1974):

The deprivation due to revocation of the condi-

tional liberty enjoyed by a parolee demonstrates

the serious effects of denial of parole. The appli-

cant is deprived of the valuable features of con-

ditional liberty described by the Court... This

seems to us to place the procedures by which this

deprivation is accomplished by the government

under a standard of due process. The Board holds

the key to the lock of the prison. It possesses the

power to grant or to deny conditional liberty. In

the exercise of its broad discretion it makes judg-

ments concerning the readiness of an inmate to

conduct himself in a manner compatible with the

well-being of the community and himself. If the

Board’s decision is negative, the prisoner is de-

prived of conditional liberty. The result of the

Board’s exercise of its discretion is that an ap-

plicant either suffers a “‘grievous loss’’ or gains

a conditional liberty. His interest accordingly is

substantial. We think it follows that the parole

decision must be guided by minimum standards

of due process of law which at the same time

reflect the need of the parole system to function

consistently with its purposes and responsibili-

ties.

The effect of the Board’s decision on an inmate’s

liberty in a parole release proceeding is the same as

that of Morrissey, conditional liberty versus incarcer-

ation. Where the result of such a decision is of such

tremendous consequence, our system of law requires

some type of notice, hearing, and statement of reasons

for denial. Cf, Kent v. United States, 383 U.S. 541,

554 (1966).

Even though a prospective parolee is currently con-

fined, there is a right to be considered for parole under

state law and the privilege of an earlier release if the

Board grants parole. Bradford v. Weinstein, 519 F.2d

728, 732 (4th Cir. 1974). It is the Board’s decision of

whether to grant or deny parole which must be sub-

ject to the protections afforded by the minimum pro-

cedures of due process. Only by affording the mini-

mum procedures of due process can an inmate be

assured that his interest in parole is not arbitrarily

abrogated.

The State of Nebraska by statute has created the

inmates’ interest in parole. However, as was stated in

Wolff v. McDonnell, 418 U.S. 539, 588 (1974):

[A] person’s liberty is equally protected, even

when the liberty itself is a statutory creation of

the State. The touchstone of due process is pro-

tection of the individual against arbitrary action

of government.

This statutorily created liberty interest in parole is

indistinguishable from an inmate’s statutorily created

interest in good time credit which this Court in Wolff

v. McDonnell, supra, held to be a protected liberty

interest. In that case, Mr. Justice White stated:

It is true that the Constitution itself does not

guarantee good-time credit for satisfactory be-

havior while in prison. But here the State itself

has not only provided a statutory right to good

time but also specifies that it is to be forfeited

only for serious misbehavior. Nebraska may have

the authority to create, or not, a right to be a

shortened prison sentence through the accumu-

lation of credits for good behavior, and it is true

that the Due Process Clause does not require a

hearing ‘‘in every conceivable case of government

impairment of private interest.’’ Cafeteria & Res-

taurant Workers v. McElroy, 367 U.S. 886, 894,

81 S. Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961). But

the state having created the right to good time

and itself recognizing that its depreviation is a

sanction authorized for major misconduct, the

prisoner’s interest has real substance and is suf-

ficiently embraced within the 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.

Id. at 557.

Nebraska has not only statutorily created the in-

mate’s right to be considered for parole, but in addi-

tion has prescribed specific factors which must be

considered and the criteria which must be present

before parole can be denied. Under the Nebraska sta-

tutory scheme, an inmate must be released on parole

unless the Board finds the individual unfit for parole

because one or more specified criteria are present.

NEB. REV STAT. § 83-1,114 (Reissue 1976). The Ne-

braska statute clearly limits the discretion of the

Board in denying parole, and thus, the expectation

the inmate has in being granted parole triggers pro-

cedural due process protection. Whether that expec-

tation is regarded as an entitlement, a presumption of

release, or whether it is simply based upon the use of

the word ‘‘shall’’ by the Nebraska legislature” in di-

' The Board suggests that the word ‘‘shall’’ in Neb. Rev. Stat.

§ 83-1,114(1) (Reissue 1976) should be read as “‘may”’. See, Peti-

tioners’ Brief at 19. Even if this Court were to accept this ar-

gument the analysis and result would not change. § 83-1,114 is

very similar in structure and content to Nebraska's sentencing

statute, Neb. Rev. Stat. § 29-2260 (Reissue 1976) which provides

in part:

(2) Whenever a court considers sentence for an offender

convicted of either a misdemeanor or a felony, the court

may withhold sentence of imprisonment unless. . . the court

finds that imprisonment is necessary for protection of the

public because:

(a) The risk is substantial that during the period of

probation the offender will engage in additional crimi-

nal conduct;

(b) The offender is in need of correctional treatment

that can be provided most effectively by commitment

to acorrectional facility; or

the offender’s crime or promote disrespect for law.

There follows, a listing of 11 factors, many of which are objective,

which the court must consider. Thus, although addressed to

different yet analagous process (See, n. 13 and 24, infra.), the two

statutes are almost identical excepting the use of the word

“may” in the sentencing statute. Yet, this Court has held that

recting the Board, the interest is ‘“‘more than an ab-

stract need or desire ..., more than a unilaterial ex-

pectation”’ of release. Board of Regents v. Roth, 408

U.S. 564, 577 (1972); it is an expectancy that ‘‘has

real substance”; Wolff v. McDonnell, supra, 418 U.S.

at 577; cf. Goss v. Lopez, 419 U.S. 565, 576 (1975).”

In addition to this precise statutory framework giv-

ing rise to a protected liberty interest, the nature and

function of parole in a state’s correctional system rein-

forces an inmate’s entitlement to parole. In Morrissey

v. Brewer, 408 U.S. 471 (1972), the Chief Justice rec-

ognized that parole is an integral part of the penol-

ogical system.

Rather than being an ad hoc exercise of clemen-

cy, parole is an established variation on impris-

the Due Process Clause applies to sentencing, e.g., Gardner v.

Florida, 430 U.S. 349 (1977), as has the State of Nebraska, State

v. Richter, 191 Neb. 34, 214 N.W.2d 16 (1973). The United States

analysis apparently would not change since, even accepting the

Board's reading of ‘‘shall’’ as ‘‘may”’, it has stated that specifi-

cation of ‘particular facts that govern the release decision’’, as

in § 83-1,114(2) (Reissue 1976), would trigger due process protec-

tions. Amicus Brief of U.S. at 32.

'? The inmates agree with the Amicus Brief of the United

States that the Nebraska statute gives rise to a liberty interest

in parole since a presumption in favor of parole is created giving

a Nebraska inmate a legitimate entitlement to release on parole,

subject to defeasance only if the parole authorities find one or

more of a limited number of grounds for denial are present. See,

Amicus Brief of U.S. at 35. The Inmates, however, feel this

presumption is not created by the particular words of the statute

but rather this presumption is created by the existence of the

right to parole under a state's correctional system regardless of

whether it is a mandatory or permissive system. See, I.B. of

Brief, infra.

onment of convicted criminals. Its purpose is to

help individuals reintegrate into society as con-

structive individuals as soon as they are able,

without being confined to the full term of the

sentence imposed. It also serves to alleviate the

cost to society of keeping an individual in prison.

The essence of parole is release from prison, be-

fore the completion of sentence, on the condition

that the prisoner abide by certain rules during

the balance of his sentence.

Id. at 477. (footnotes omitted). Even more important,

however, is the recognition that “‘the parole process

is inseparable from the sentencing process.’’ Sigler,

Abolish Parole?, 38 Fed. Prob. 42, 47 (June 1975). In

President’s Commission on Law Enforcement and

Administration of Justice, Task Force Repost: Correc-

tions 86 (1967), the Commission concluded:

[T]oday parole boards and judges are expected

to exercise their discretion to determine the prop-

er sentence ... parole legislation involves essen-

tially a delegation of sentencing power to parole

boards. The parole decision involves many of the

same kinds of factors that are involved in the

original sentencing decision.

In short, “‘the function of parole boards at release

hearings and of judges at sentencing are virtually

identical.’’ Parsons-Lewis, Due Process in Parole Re-

lease Decisions, 60 Cal. L. Rev. 1518, 1534 (1972).’°

'3 See n.24, infra, for a discussion of the impact of this simi-

larity between parole and sentencing upon the question of the

procedures which are due.

With the recognition of the importance of parole in

the criminal process by society, judges, and this

Court, it is of the utomost importance that this Court

now recognize that the denial of parole is the depri-

vation of liberty within the meaning of the Due Proc-

ess Clause.

Where, as here, a statute creates a liberty interest

in the parole release decision, this Court’s decisions in

Meachum v. Fano, 427 U.S. 215 (1976) and Montanye

v. Haymes, 427 U.S. 236 (1976) do not alter the con-

clusion that the Due Process Clause applies. Reliance

thereon, see, Petitioners’ Brief at 25, is therefore mis-

placed since both cases are quite distinguishable.

Both Meachum v. Fano, supra, and Montanye v.

Haymes, supra, were prison transfer cases. Obviously,

the interests involved there are quite distinguishable

from those involved in the parole release decision. A

transfer from one prison to another is much different

than a transfer from a prison to the outside world.

Certainly, both involve a change of environment, but

the former involves only the place of incarceration,

while the later involves conditional liberty. To rely

upon these cases would be to look to the ‘‘weight”’

and not the “nature’’ of the interest at stake. Board

of Regents v. Roth, supra, 408 U.S. at 570-571.

More importantly, in the transfer cases there was

no statutory limitation on the discretion of the insti-

tution to be enforced. In Meachum, the Court found

that “‘it is too ephemeral and insubstantial to trigger

procedural due process protections as long as prison

officials have discretion to transfer [the prisoner] for

whatever reason or for no reason at all.’’ Id. at 228.

Similarly, in Montanye, the Court stated:

We held in Meachum v. Fano that no Due Proc-

ess Clause liberty interest of a duly convicted

prison inmate is infringed when he is transferred

from one prison to another within the State,

whether with or without a hearing, absent some

right or some justifiable expectation rooted in

state law that he will not be transferred except

for misbehavior or upon the occurrence of other

specified events.

Montanye v. Haynes, supra, 427 U.S. at 242 (empha-

sis added).

Quite the opposite is present here. The Board’s dis-

cretion is limited by state law, and the prisoner does

have a right and justifiable expectation rooted in state

law to a release on parole.

B. The Presence Of Discretion In The Parole

Release Process Does Not Require A Conclu-

sion That Due Process Should Not Apply.

The Board suggests that in order for an inmate to

have a right which gives rise to procedural due proc-

ess, the denial of a right must be conditioned upon

findings of specific facts as opposed to subjective con-

clusions; and, since the Board’s decision is not based

upon specific findings of fact but rather subjective

determinations, due process is inappropriate. See Pe-

titioner’s Brief at 21. Granted, the decision of the

Board is in large part discretionary and requires sub-

jective expertise on the part of the Board. This does

not, however, remove the determination from the cov-

erage of the Due Process Clause, rather it increases

the need for minimum procedural protection. Again,

reference to the Court’s discussion in Morrissey is

appropriate. There, the Chief Justice recognized that

the decision to revoke parole was not only based upon

the factual determination of whether the parolee vio-

lated parole, but was also based on a determination

by the parole board of whether the parolee should be

recommitted to prison or whether other steps should

be taken to protect society and improve chances of

rehabilitation. Chief Justice Burger stated:

The second question involves the application of

expertise by the parole authority in making a

prediction as to the ability of the individual to

live in society without committing antisocial

acts. This part of the decision, too, depends on

facts, and therejore it is important for the board

to know not oniy that some violation was com-

mitted but also to know accurately how many

and how serious the violations were. Yet this

second step, deciding what to do about the vio-

lation once it is identified, is not purely factual

but also predictive and discretionary.

Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (em-

phasis added).

It is not possible to distinguish a decision of the

Board in a parole release proceeding from a decision

to revoke parole. Both involve a prediction by the

Board of the risk an individual will pose to society

and the readiness of the community to accept or to

continue to accept the individual within its fold. Just

as the Board’s decision regarding revocation is based

not only on objective determinations of facts but also

upon non-factual predictions and discretion, so too is

the Board’s determination of whether to grant or deny

parole based on objective facts and subjective con-

cerns. Moreover, NEB. REV. STAT. § 83-1,114(2) (Reis-

sue 1976), requires the Board to take into account 14

factors in making its determination regarding release

on parole. Factors such as the “‘offender’s intelligence

and training”’; ‘‘the offender’s past use of narcotics,

or past habitual and excessive use of alcohol’’; ‘‘the

offender’s family status’’; or, ‘‘the type of residence,

neighborhood or community in which the offender

plans to live’; etc., all involve objective facts. The

minimum requirements of due process will insure that

these factors are accurately and correctly made avail-

able for the Board.

The Board’s decision conclusively determines

whether the inmate will be granted conditional liberty

or forced to continue his present incarceration. An

inmate’s liberty interest, therefore, could be unjusti-

fiably denied because of incorrect information or be-

-cause of an erroneous evaluation of these factors, re-

sulting in the inmate being ‘‘condemned to suffer

_ grievous loss.”’ Joint Anti-Fascist Refugee Committee

v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J.,

concurring). It would be a grievous loss indeed for a

prisoner, by reason of essentially an ex parte proceed-

ing and the associated increased risk of error, to be

denied parole and required to serve more of his term

because the Board relied on data that was erroneous

or because the attention of the Board was not called

to data tending to indicate that parole should be

granted, or for some other mistake regarding the 14

factors enumerated in the Nebraska statute. See

Bradford v. Weinstein, supra, 519 F.2d at 732. Where

the Board is to take into account numerous objective

factual considerations in reaching a discretionary de-

cision, the requirements of due process must be af-

forded.

Nevertheless, the Board suggests that where the

administrative action is not conditioned on factual

determinations, but rather on the prison officials’

complete discretion, the requirements of due process

are inappropriate. See Petitioners’ Brief et 25. Morris-

sey openly rejected the argument now raised by Pe

titioners.

Nor are we pursuaded by the argument that re-

vocation is so totally a discretionary matter that

some form of hearing would be administratively

intolerable. A simple factual hearing will not in-

terfere with the exercise of discretion.

Id., 408 U.S. at 483.

The Board next argues that the 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 in its unfettered discretion might not pass

muster in the Nebraska Supreme Court, and thus, the

factors are simply instructions to the Board as to the

factors it is to take into account in reaching its deci-

sion. See, Petitioners’ Brief at 18, 19. Even if this is

an accurate articulation of the legislative intent, this

discretionary authority does not mean the parole

board can act arbitrarily. In Kent v. United States,

383 U.S. 541 (1966), this Court reviewed the discretion

conferred upon the juvenile court system, stating:

The statute gives the Juvenile Court a substan-

tial degree of discretion as to the factual consid-

erations to be evaluated, the weight to be given

them and the conclusion to be reached. It does

not confer upon the Juvenile Court a license for

arbitrary procedure. The statute does not permit

the juvenile court to determine in isoiation and

without participation for any representation of

the child the “critically important’’ question

whether a child will be deprived of the special

protections and provisions of the Juvenile Court

Act.

Id. at 533.

Although the Nebraska statute may give the Board

a substantial amount of discretion as to the factual

considerations to be evaluated, the weight to be given

them, and the conclusion reached, the statute does

not confer upon the Board a license for arbitrary pro-

cedure. The Due Process Clause does not permit the

Board to determine without minimum procedures the

“critically” important question whether an inmate

will be denied liberty.

It is even more important, however, that this Court

recognize that to suggest an inmate does not have a

liberty interest in a parole release proceeding where

the decision is completely discretionary is to suggest

there is no right to parole only a privilege. It is par-

ticularly appropriate to analyze the Board's argument

in light of cases where this Court applied the right

versus privilege doctrine to demonstrate that it is the

same distinction, merely phrased differently. In Bar

sky v. Board of Regents of University, 347 U.S. 442

(1954), this Court held the State of New York could

suspend a physician’s license without complying with

the procedural requirements of the Fourteenth

Amendment because of the physician’s conviction in

federal court of a misdemeanor for failing to produce

subpeonaed papers before a congressional committee.

Mr. Justice Frankfurter, dissenting, pointed out the

problems with such an unfettered control of discretion

inherent in the right versus privilege distinction:

It is one thing thus to recognize the freedom

which the Constitution wisely leaves to the

States in regulating the professions. It is quite

another thing, however, to sanction a State's

deprivation or partial destruction of a man’s

professional life on grounds having no possible

relation to fitness, intellectual or moral, to pursue

his profession. Implicit in the grant of discretion

to a State’s medical board is the qualification

that it must not exercise its supervisory powers

on artibrary, whimsical or irrational considera-

tions. A license cannot be revoked because a man

is red-headed or because he was divorced, except

for a calling, if such there be, for which red-head-

edness or an unbroken marriage may have some

rational bearing. If a State licensing agency lays

bare its arbitrary action, or if the State law ex-

plicitly allows it to act arbitrarily, that is pre-

cisely the kind of State action which the Due

Process Clause forbids.

Id. at 470, (Frankfurter, J., dissenting) (footnotes

omitted).

The United States’ and the Board’s argument is

that an inmate has no constitutional right to due

process of law since he has no protected liberty inter-

ests when the decision is completely discretionary,

the state having a right to grant or deny parole for

any reason or no reason at all. This analysis of the

state’s discretionary power to grant or deny parole

can be paralleled with the Supreme Court’s holding in

Barsky. That is, a physician has no constitutional

right to due process of law since the state’s decision

to revoke that privilege is totally discretionary; it may

deny a person the right to be a doctor for any reason

or no reason at all.

The argument seems to be that in a parole revoca-

tion proceeding the individual has a right not to be

restrained, whereas in the parole release decision the

interest is a privilege of release from restraint. This

historical dichotomy of protection depending upon

whether something is a right or a privilege has in

more recent times been openly and repeatedly rejected

by this Court. See Graham v. Richardson, 403 U.S.

365 (1971); Morrissey v. Brewer, 408 U.S. 471, 481

(1972); Board of Regents v. Roth, 408 U.S. 564, 571

(1972). The test this Court has consistently applied

since the rejection of that doctrine is based rather on

the nature of the interest involved. Board of Regents

v. Roth, supra at 570-71. Since Morrissey v. Brewer,

parole has been considered conditional liberty repre-

senting an interest entitled to due process protection.

An inmate’s interest in the parole board’s decision to

grant or deny parole must be treated the same. ‘To

hold otherwise would be to create a distinction too

gossamer-thin to stand close analysis." United States

ex rel. Johnson v. Chairman, N.Y. State Bd. of Parole,

500 F.2d 925, 928 (2nd Cir. 1974). Whether the im-

medate issue is release or revocation, the stakes are

the same: conditional liberty versus incarceration.

The purpose of the minimum procedures of the Due

Process Clause is to insure that this decision will not

be made arbitrarily or erroneously.

The Board finally attempts to distinguish the den-

ial of parole from parole revocation by suggesting

that the Due Process Clause applies only when there

is an adverse change in a condition as opposed to a

continuation of a condition. See, Petitioners’ Brief at

14-16. This Court, however, on numerous occasions

has held that an individual is entitled to a fair deter-

mination of a protected interest even where the indi-

vidual does not presently enjoy that right. E.g., Will-

ner v. Committee on Character and Fitness, 373 U.S.

96 (1963), Konigsberg v. State Bar, 353 U.S. 252

(1957), and Schware v. Board of Bar Examiners, 353

U.S. 232 (1957) (admission to the Bar); Speiser v. Ran-

dall, 357 U.S. 513 (1958) (application for tax ememp-

tion); Simmons v. United States, 348 U.S. 397 (1955)

(application for draft exemption); Goldsmith v. Board

of Tax Appeals, 270 U.S. 117 (1926) (application for

admission to practice before Board of Tax Appeals).

See also Pence v. Kleppe, 529 F.2d 135 (9th Cir. 1976)

(Indian’s application for land grant) and Hornsby v.

Allen, 326 F.2d 605 (5th Cir. 1964) (application for a

liquor license). The inmate’s interest in the parole de-

cision must likewise be subject to the minimum pro-

cedures of due process to insure that there is a fair

determination of the inmate’s parole, and to .usure

that parole is not erroneously or arbitrarily denied.

C. Since The Parole Release Decision Affects

An Inmate’s Term Of Confinement, An In-

mate Has A Liberty Interest In That Decision

Even Where The State Statute Does Not Give

Rise To A Presumption Of Release.

Under the present Nebraska statutory scheme cre-

ating the inmate’s interest in parole, an inmate has a

protected liberty interest because the Board’s discre-

tion is limited by the legislative criteria in determin-

ing whether to grant or deny parole. Complete reli-

ance, however, on the language of the Nebraska stat-

ute utilized in setting forth the statutory scheme for

parole is inappropriate and unacceptable for two rea-

sons. First, if as the Board has suggested the Ne-

braska statute does not condition denial of parole

based upon any factual determinations but solely on

the subjective determination of the board as to the

propriety of giving the particular inmate a parole, the

parole system in Nebraska is not different from that

in any other state where a parole board is given dis-

cretionary authority to grant or deny parole. Second,

and more important, if this Court’s decision is based

upon the fact that the Nebraska statute creates a

statutory presumption in favor of parole, Nebraska

may avoid any constitutional procedural require-

ments by amending its statutes to eliminate the pre-

sumption in favor of release. See, Amicus Brief of U.S.

at 37 n. 19; Petitioners’ Brief at 18. It is therefore

necessary to determine whether an inmate has a pro-

tected liberty interest in a parole board’s decision to

grant or deny parole where that decision is completely

discretionary.

The United States in its Amicus Brief suggests

that where there is not statutory presumption and no

determinable set of facts that could give rise to an

entitlement, the process of determining the facts can-

not result in the deprivation of any entitlement; in

such circumstances, the procedural protections of due

process are not implicated. See, Amicus Brief of USS.

at 30. The United States cites as authority Mr. Jus-

tice White’s concurring and dissenting opinion in Ar

nett v. Kennedy, 416 U.S. 134, 181 (1974), wherein he

stated:

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.

Reliance upon this language in the context of a liberty

interest is, however, unfounded. As Mr. Justice White

stated in Arnett v. Kennedy, supra at 178 n. 6:

My views as to the requirments of due process

where property interests are at stake does not

deal with the entirely separate matter and re-

quirements of due process when a person is de-

prived of liberty.

Additionally, the Board, California and Oklahoma

suggest that since the inmates interest in the Board’s

decision to grant or deny parole is but a mere expec-

tation or hope of achieving a protected status it is not

a liberty interest within the meaning of the Due Proc-

ess Clause. The logic of these arguments depend upon

one basic assumption. That is, this Court must as-

sume that an inmate’s interest in the parole decision

is either a property interest or assume that the anal-

ysis of liberty within the Due Process Clause is the

same as the analysis of a property interest. Granted,

the source of liberty like a property interest may be

created by state law. Wolff v. McDonnell, supra, and

at times ‘‘the analysis as to liberty parallels the ac-

cepted due process analysis as to property.” Id., 418

U.S. at 557. Liberty, however, within the meaning of

the Due Process Clause is separate from the meaning

of property. Arnett v. Kennedy, 416 U.S. 134, 178 n.

6 (1974) (White, J., concurring in part and dissenting

in part).

The question is not whether the inmates interest is

a property interest, but rather the question is whether

an inmate has a liberty interest in a parole release

proceeding where the decision is completely discre-

tionary with the Board; thus, the analysis regarding

property interests is inappropriate. In defining prop-

erty interests this Court has used such language as

“entitlements”; ‘“more than an abstract need or de-

sire’; ‘more than a unilateral expectation’’; an indi-

vidual in order to have a property interest must in-

stead have ‘‘a legitimate claim of entitlement to it.”

Board of Regents v. Roth, supra, 408 U.S. at 577.

When dealing with property interests, it is necessary

to undertake such an analysis. However, since there

is still a fundamental distinction between an individ-

ual’s liberty and an individual’s interest in property,

the inmate’s interest must be viewed in light of a

liberty definition.

The definition of liberty for the purpose of the Due

Process Clause can be found not only in statutorily

defined rights, but also in the accepted definitions of

liberty. Without a doubt, liberty denotes immediate

freedom from bodily restraint. Meyer v. Nebraska,

262 U.S. 390, 399 (1923). Since parole is freedom from

physical restraint, parole has been considered a pro-

tected liberty within the meaning of the Due Process

Clause. See Morrissey vy. Brewer, 408 U.S. 471 (1972).

Because the Fourteenth Amendment prohibits states

from depriving any person of life, liberty, or property

without due process of law, Nebraska may not deny

an inmate this liberty interest without due process of

law.

The liberty interest at stake in the parole release

decision is immediate conditional freedom. Whether

that interest is based upon a decision stemming from

a factual finding of designated legislative criteria or

whether that decision is based upon completely sub-

jective discretionary determinations by the Boare,

the interest is still the same. It is this underlying

interest which determines whether Due Process ap-

plies and not the underlying function of the adminis-

trative proceeding.

The underlying liberty interest in the parole release

decision is made clear in comparing the decisions of

Wolff v. McDonnell, 418 U.S. 539 (1974), and Mea-

chum v. Fano, 427 U.S. 215 (1976). Under the partic-

ular state statute in Wolff, there were two kinds of

punishment for flagrant or serious misconduct.

The first is the forfeiture or withholding of geod-

time credits, which affects the term of confine-

ment, while the second, confinement in a disci-

plinary cell, involves alteration of the conditions

of confinement. Y

Id., 418 U.S. at 547.

In determining whether due process applied this

Court distinguished between a decision involving an

inmate’s term of confinement as opposed to a decision

involving the conditions of confinement. This distinc-

tion was clearly made in Meachum v. Fano where this

Court held that a prison transfer proceeding was not

subject to due process requirements even though the

prison transfer adversely affected an inmate’s condi-

tions of confinement.

The decision to grant parole does not deal with a

decision involving the conditions of confinement but

deals rather with a determination of the term of con-

finement. While the effect of the Board’s decision on

the inmate’s term of confinement is not as immediate

as in a parole revocation proceeding, it is certainly

more immediate than the effect of the decision to

revoke good-time credits. This Court, in determining

the extent of the minimum procedures required under

the Due Process Clause in revoking good-time credits

in Wolff, compared the effect of parole revocation to

the denial of good-time credits on an inmate’s term of

confinement.

Revocation of parole may deprive the parolee

of only conditional liberty, but it nevertheless

“inflicts a ‘grievous loss’ on the parolee and often

on others.” Morrissey, Id., at 482, 92 S.Ct. at

2601. Simply put, revocation proceedings deter-

mine whether the parolee will be free or in prison,

a matter of obvious great moment to him. For

the prison inmate, the deprivation of good time

is not the same immediate disaster that the re-

vocation of parole is for the parolee. The depri-

vation, very likely, does not then and there work

any change in the conditions of his liberty. It can

postpone the date of eligibility for parole and

extend the maximum term to be served, but it is

not certain to do so, for good time may be re-

stored. Even if not restored, it cannot be said

with certainty that the actual date of parole will

be affected; and if parole occurs, the extension of

the maximum term resulting from loss of good

time may affect only the termination of parole,

and it may not even do that. The deprivation of

good time is unquestionably a matter of consid-

erable importance. The State reserves it as a

sanction for serious misconduct, and we should

not unrealistically discount its significance.

Wolff v. McDonnell, 418 U.S. at 560-561.

Similarly denying parole will not work any imme-

diate change in the conditions of the inmate’s liberty

but will only continue his present incarceration; and

thus, the effect on the inmate’s interest is not as

serious as the revocation of parole. Nevertheless, the

effect on the term of confinement in a parole release

proceeding is much more immediate than the effect

on the term of confinement in revoking good-time

credits. Parole is an immediate release and a condi-

tional termination of the term of confinement as op-

posed to a possible earlier future release. Moreover,

the revocation of good-time credits does not work any

change in the condition of liberty, whereas parole in-

volves a complete change in the conditions of liberty.

Therefore, since the interest at stake is the inmate’s

conditional liberty, the need for the minimum proce-

dures of due process in a parole release proceeding is

even stronger than in Wolff v. McDonnell, supra, and

must be afforded.

Il. DUE PROCESS REQUIRES AT A MINIMUM NOTICE,

A MEANINGFUL HEARING, A RECORD OF THAT

HEARING, AND A STATEMENT OF REASONS FOR

DENIAL.

Once it is determined that due process applies to

the parole release decision, the question remains: how

much process is due. Morrissey v. Brewer, supra, 408

U.S. at 481. The determination of this issue will de

pend on the competing interests involved, and on the

particular statutory scheme adopted by the Nebraska

legislature. It is necessary to consider the Nebras.:a

statutory scheme in determining what process is due

since the State of Nebraska has defined the liberty

guaranteed. The Constitution, on the other hand, de-

fines the procedures which must be complied with in

making that decision. See Arnett v. Kennedy, 416

U.S. 134, 185 (1974) (White, J., concurring in part and

dissenting in part).

The minimum procedures required by the Due Proc-

ess Clause must depend upon the circumstances sur-

rounding the parole release proceeding and the partic-

ular demands of such a system.'* There are several

competing interests which must be considered in for-

mulating the standards which are applicable. As this

Court noted in Mathews v. Eldridge, 424 U.S. 319,

334-335 (1976):

‘* (D]ue process,’ unlike some legal rules, is not

a technical conception with a fixed content un-

related to time, place and circumstances.”’ Caf-

eteria Workers v. McElroy, 367 U.S. 886, 895, 81

S.Ct. 1743, 1748, 6 L.Ed.2d. 1230 (1961). ‘‘[D]ue

process is flexible and calls for such procedural

protections as the particular situation demands.”’

Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct.

2593, 2600, 33 L.Ed. 2d. 484 (1972). Accordingly,

resolution of the issue. . . requires analysis of the

governmental and private interests that are af-

fected. Arnett v. Kennedy, supra, 416 U.S., at

167-168, 94 S.Ct., at 1650-1651 (Powell, J., con-

curring in part); Goldberg v. Kelly, supra, 397

U.S. at 263-266, 90 S.Ct., at 1018-1020; Cafeteria

v. McElroy, supra, 367 U.S., at 895, 81 S.Ct., at

_ 1748-1749. More precisely, our prior decisions in-

dicate that identification of the specific dictates

of due process generally requires consideration

of three distinct factors: First, the private inter-

‘The Inmates have not attempted to identify and rely upon

any specific decision of this Court as providing the model for

identifying the elements of due process applicable hereto. Each

case must be examined on its own factual basis and the require

ments of due process molded to fit the specific facts presented.

Mathews v. Eldridge, 424 U.S. 319 (1976). However, bacause of

the near identity of interests at stake, the Inmates would submit

that the present case is most closely analogous to Morrissey v.

Brewer, 408 U.S. 471 (19729.

est that will be affected by the official action;

second, the risk of an erroneous deprivation of

such interest through the procedures used, and

the probable value, if any, of additional or sub-

stitute procedural safeguards; and finally, the

government’s interest, including the function in-

volved and the fiscal and administrative burdens

that the additional or substitute procedural re-

quirement would entail. See e.g., Goldberg v. Kel-

ly, supra, 397 U.S., at 263-271, 90 S.Ct., at 1018-

1022.

It is important, therefore, to initially consider the

overall importance of the parole decision to an inmate

and contrast this with the government’s interests. It

is generally accepted that the two main goals of a

parole board’s decision, whether it be the decision to

revoke parole or the decision to grant parole in the

first instance, are to predict accurately the risks a

person will pose to society, and to forecast the ability

of the community to provide an acceptable environ-

ment for the prisoner. See, Morrissey Brewer, supra,

408 U.S. at 480. An inmate’s interests in insuring

that this determination is not erroneously made or

based upon mistaken information is enormous. At

stake for the inmate is conditional liberty. He has an

interest in the release decision being made on the

basis of accurate data.’ He has an interest in being

free from an arbitrary decision. He has an interest in

‘5 Instances of inaccurate information contained in an inmate’s

file are not uncommon. cf. Franklin v. Shields, 399 F. Supp. 309,

313 (W.D. Va. 1975), affirmed in part, reversed in part, 569 F.2d

784 (4th Cir. 1977) (en banc), cert. denied, 435 U.S. 1003 (1978)

(finding of fact that Virginia Parole Board relies on factually

not having the decision influenced by irrational, in-

consistent or impermissible criteria.

erroneous information never verified by the Board); Kohlman v.

Norton, 380 F. Supp. 1073 (D. Conn. 1974) (parole denied because

file erroneously indicated that applicant had used gun in com-

mitting robbery); Leonard v. Mississippi State Probation and

Parole Board, 373 F. Supp. 699 (N.D. Miss. 1974), reversed, 509

F.2d 820 (1975), cert. denied, 423 U.S. 998 (1975) (prisoner denied

parole on the basis of illegal disciplinary action); Masiello v.

Norton, 364 F. Supp. 1133 (D. Conn. 1973) (unsupported hearsay

allegation, that petitioner would ally with father if released, in-

sufficient basis for parole denial); In re Rodriguez, 14 Cal.3d 639,

537 P.2d 384, 122 Cal. Rptr. 552 (1975) (file material, later proven

in error, led parole officers to believe that prisoner, a nonviolent

sex offender, had violent tendencies. 14 Cal.3d at 648 n.14; parole

evaluation asserted that ‘family rejects him,’’ when in fact pris-

oner had a home and employment in family business waiting for

him. Jd. at 651 n.16); State v. Pohlabel, 61 N.J. Super. 242, 160

A.2d 647 (1960) (presentence report erroneously stated, among

other errors, that prisoner was under a life sentence in another

jurisdiction); A. Bruce, A. Harno, E. Burgess, J. Landesco, The

Workings of the Indeterminate-Sentence Law and the Parole Sys-

tem in Illinois 77 (1928) (parole board files inconsistent, ambi-

gous, and incomplete); D. Dressler, Practice and Theory of Pro-

bation and Parole 115-16 (2d ed. 1969) (files often contain incom-

plete and erroneous information); Report of the Citizens Advisory

Committee to the Joint Committee on Prison Reform of the

Texas Legislature, 88, 91 (1974) (denial of parole, because of

failure to utilize educational programs, by board member una-

ware that no such programs then existed at unit to which pris-

oner was assigned; misleading effect of vague and conclusory

characterization of disciplinary violations); Final Report of the

Joint Committee on Prison Reform of the Texas Legislature 89

(1974) (‘‘[T]he Board has denied parole for reasons later discov-

ered to be unfounded that might have been corrected if the in-

mate had had access to his files’); Hearings Before Subcommit-

tee No. 3 of the House Judiciary Committee, 92d Cong., 2d. Sess.

at 451 (1972) (testimony of Dr. Willard Gaylin) (‘‘I have seen

black men listed as white and Harvard graduates listed with

borderline IQ’s’’);

It is equally clear that the government also has an

interest in the parole release decision. Its interest,

however, is not only limited to the increased admin-

istrative burdens that may result or the maintenance

of an efificient administration of the parole system.

In light of the two main goals of parole, the state

along with society in general has an interest in insur-

ing that the parole decision is not arbitrarily made

and is based upon all available data. The role of parole

in the criminal justice system and the rehabilitation

process requires that the integrity of the parole deci-

sion be maintained through a just, reasonable and

procedurally fair process. In short:

[bloth the . . . [prospective] parolee and the State

have interest in the accurate finding of fact and

the informed use of discretion—the . . . [prospec-

tive] parolee to insure that his liberty is not un-

justifiably taken away and the State to make

certain that it is neither unnecessarily interrupt-

ing a successful effort at rehabilitation nor im-

prudently prejudicing the safety of the commu-

nity.

Gagnon v. Scarpelli, 411 U.S.778, 785 (1973).

The primary interest that the Board can legiti-

mately assert in opposition to the suggested due proc-

ess requirements is the increased administrative bur-

den that might result. This Court, however, has pre

viously placed such contentions in their proper

perspective. In Breed v. Jones, 421 U.S. 519 (1975),

the Court readily acknowledged ‘“‘that the flexibility

and informality of juvenile proceedings are dimin-

ished by the application of due process standards’,

but replied: ‘‘Due process standards inevitably pro-

duce such an effect, but that tells us no more than

that the Constitution imposes burdens on the func-

tioning of government and especially of law enforce-

ment institutions.”’ Jd. at 535 n. 15. And in Gagnon

v. Scarpelli, supra, the Court recognized that ‘‘[s]jome

amount of disruption inevitable attends any new con-

stitutional ruling.’’ 411 U.S. at 782 n. 5. This Court

has reiterated on a number of occasions that ‘the Con-

stitution recognizes higher values than speed and ef-

ficiency.’’ Stanley v. Illinois, 404 U.S. 645, 656 (1972);

See, Frontiero v. Richardson, 411 U.S. 677, 690 (1973);

Bell v. Burson, 402 U.S. 535, 540-41 (1971).

With the foregoing discussion in mind, it is appro-

priate to state the nature of the safeguards the In-

mates contend are minimally mandated by the Due

Process Clause, recognizing ‘that not all situations

calling for procedural safeguards call for the same

kind of procedure.” Morrissey v. Brewer, supra, 408

U.S. at 481. Obviously, the full panoply of rights af-

forded in a criminal proceeding is not appropriate or

necessary in parole release proceedings. See, e.g.,

Franklin v. Shields, 569 F.2d 784, 800 (4th Cir. 1977) °

(en banc), cert. denied, 435 U.S. 1003 (1978); Haymes

v. Regan, 525 F.2d 540 (2d Cir. (1975). See also Wolff

v. McDonnell, supra, 418 U.S. at 556; Morrissey v.

Brewer, supra, 408 U.S. at 482 n. 8. Rather, weighing

the interests invloved, the Inmates submit that it is

necessary to select only those due process safeguards

designed to insure the prisoner a meaningful oppor-

tunity to be heard and to know and rebut factual

information upon which an adverse decision may be

predicated; to apprise the prosepective parolee of the

reasons and essential factual base for an adverse de-

cision; and to preclude the possibility of arbitrary

decision making by the Board. To achieve these ends,

the Inmates urge that the following procedures be

adopted by the Court as those required in parole re-

lease proceedings:"®

(1) Every inmate who is eligible for parole under

Nebraska law must be afforded a hearing each time

the parole decision is made at which the inmate is (a)

entitled to appear; (b) permitted to present documen-

tary evidence; (c) permitted, subject to prison security

considerations, to call witnesses in his own behalf;

and (d) allowed to hear adverse testimony and exam-

ine adverse factual information in the possession of

the Board, or, if prision security considerations re-

‘6 The Inmates originally requested the right to counsel in

parole release proceedings (A.27), but have not pursued such

claim because the Board presently permits leagal counsel to be

present and assist inmates at parole hearings and because Neb.

Rev. Stat. § 83-1,112(2) (Reissue 1976) guarantees inmates the

right to advise with any persons of their choosing in preparing

for a hearing before the Board. The Inmates submit, however,

that absent such a statute and practice, they would be entitled

to at least the assistance of an advocate as suggested in the

Amici Brief of the plaintiff Class in Childs v. United States Board

of Parole, 511 F.2d 1270 (D.C. Cir. 1974).

quire, informed of any testimony received or factual

information in the possession of the Board which

might lead to an adverse decision.

(2) Each inmate is to receive a written notice of the

date and hour of the hearing reasonably in advance

thereof. This notice shall contain a list of the factors

which may be considered by the Board in making its

determination.

(3) A record of the proceedings which is capable of

being reduced to writing must be maintained.

(4) Withing 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.

A. Under The Nebraska Statutory Scheme, An

Inmate Is Entitled To A Hearing Each Time

The Parole Desision Is Made.

Without question, once it is determined that there

is an interest protected by the Due Process Clause, a

hearing is required. See Wolff v. McDonnell, 418 U.S.

539, 557-58 (1974). See also, Mathews v. Eldridge, 424

U.S. 319, 333 (1976). The Eighth Circuit required at

a minimum that a formal hearing be held only when

the inmate first becomes eligible for parole with sub-

sequent parole release hearings to be held only in the

discretion of the Board. (A. 18, 23).

Since the inmate’s liberty interest is affected each

time the Board decides whether to grant or deny pa-

role, the minimum requirements of due process, in-

cluding that of a hearing, must attach each time the

decision is made.'’? Under the Nebraska statutory

scheme, since the state has procided that the decision

to grant or deny parole is to be made once a year after

a prisoner serves his minimum sentence, the minimum

procedures of due process must be afforded once a

year.'®

‘1’ The Board suggests that the requirement of a due process

hearing may result in undesirable judicial review of the actions

of the Board. See Petitioner’s Brief at 33. At the outset, it is

important to point out that review may be obtainable by a Pe-

tition in Error to the state district court under the present sys-

tem. See, Neb. Rev. Stat. § 25-1901 et. seq.(Reissue 1976). But

even more important, the fact that a constitutionally required

hearing may result in increased judicial review is not a pertinent

consideration in determining either whether due process applies

or what the minimum procedures will be. The Court has previ-

ously recognized that where fundamental constitutional rights

are at stake in proceedings involving correctional institutitions

such review may be appropriate. Wolff v. McDonnell, 418 U.S.

539, 565 (1974). In any event, the question of whether judicial

review will be obtainable in either state or federal court is better

decided at the time such a review is actually sought.

18 The United States argues at pages 42-43 of its Brief that

hearings at or near the date of inmate’s initial eligibility for

parole would be pointless and the “Due Process Clause does not

require the state to conduct a charade in these cases.” The Board

similarly argues at page 30 of its Brief that few inmates will be

paroled as a result of the hearing who would not have been under

present procedures. These arugment, however, miss the mark for

several reasons. First, as previously shown the Nebraska legis-

lature has seen fit to require such hearings. The wisdom of such

NEB. REV. STAT. § 83-1,111 (Reissue 1976), provides

that an inmate is entitled to a parole release hearing

within 60 days before the expiration of his minimum

term less any reduction.'? NEB. REV. STAT. § 83-

1,111(4) (Reissue 1976) additionally provides that if

the parole board defers the case for later considera-

tion, or in effect denies parole for up to a year, the

inmate shall be afforded a parole hearing at least once

a year until a release date is fixed. In other words, it

is clear that the parole release decision is to be made

once a year and each time this decision is made, the

minimum requirements of dueprocess must be afford-

ed.?° While it certainly is true that the minimum pro-

requirement is not here at issue. Second, it is pure speculation,

without support in the record, to suggest that few if any add-

tional inmates will be paroled as a result of the more thorough

considerations the Inmates advocate herein. Third, both the

Board and the United States ignore in this argument the bene-

ficial effect, from a correctional standpoint, which such hearings

will have. A hearing, even though resulting in a denial can assist

in alleviating frustration on the part of the inmate and promote

rehavilitative goals.

'® Although the Nebraska statute clearly states that an inmate

is entitled to a parole hearing, under the present practice of the

parole board, it does not appear that in fact such a hearing is

given. Rather a review hearing pursuant to Neb. Rev. Stat. § 83-

192(9) (Reissue 1976), is frequently held in its place with only the

possibility that a formal parole hearing will subsequently be held.

See, Petitioners’ Brief at 9.

20 Again it appears that under the present practices of the

parole board an inmate is not afforded a formal parole hearing

each year. Instead the review hearing as authorized in Neb. Rev.

Stat. § 83-192(9) (Reissue 1976) is used as a substitute for the

parole hearing. See, A. 32 and petitioner’s Brief at 9.

cedures of due process require an initial hearing, in

light of the Nebraska iegislative scheme requiring a

decision each year, a hearing must be afforded each

time this decision is made.”

In addition to these statutory requirements, NEB.

REV. STAT. § 83-192 (Reissue 1976), sets out additional

duties and functions of the Board. Along with the

responsibility of determining the time of release on

parole of a committed offender eligible for such re-

21 There is no question that an inmate must be afforded a

formal parole hearing at some point in the parole release process.

Under Nebraska law, an annual hearing is required. Nebraska's

required annual hearing is particularly appropriate in view of the

fact that the release of an inmate on parole is upon the initiative

of the Board of Parole, rather than upon application of the

inmate. Neb. Rev. Stat.§ 83-1,111(5) (Reissue 1976). In other

states where the parole release process is invoked by application

of the prisoner, the parole authority no doubt has an interest in

circumscribing the ability of inmates to force repeated, but futile,

parole hearings simply through the filing of new applications for

parole. Perhaps the decision as to the frequency with which

parole hearings should be held, absent statutory direction, should

be left to another case or the Court may conclude that such

states should be directed to hold periodic hearings, leaving to

the discretion of the states the establishment of the frequency

thereof, subject, however, to a requirement of reasonableness.

The United States acknowledges, See Amicus Brief of United

States at 37 n.19, that under the law of most states and under

federal law, inmates have a right to consideration for parole at

a particular time, but asserts ‘this case does not involve a con-

tention that any person, otherwise eligible for parole, was denied

consideration.” Such assertion is obviously incorrect. The In-

mates have and do content that there is a right to consideration

annually and that the Board has effectively denied this right

through its improper use of review hearings.

lease, NEB. REV. STAT. § 83-192(9) (Reissue 1976) pro-

vides that the Board shall review the record of every

committed offender at least once a year. This review

has been referred to herein as a “review hearing”’ and

under the Nebraska scheme is completely independent

of the parole release decision. This is evident by the

fact that under NEB. REV. STAT. $ 83-192(9) (Reissue

1976) the review hearing is afforded every inmate

whether or not eligible for parole; and, the factors that

are to be reviewed are specifically set out in that

ing release on parole under NEB. REV. STAT. § 83-1,111

(Reissue 1976) are set out in NEB. REV. STAT. $ 83-

1,114 (Reissue 1976). Although some of the fac. ors in

§ 83-1,114 are similar to § 83-192(9), the factors are

listed separately and do include different and separate

considerations. It appears, therefore, that the Ne-

braska Legislature anticipated that the review hear-

ing was not to be used to replace the annual hearing

specified in § 83-1,111(4).

Respondents are not suggesting that the minimum

procedures of due process apply to the review hearing,

if it is used for the purpose the legislature intended.

The purpose and function of the review hearing is not

to determine or deny parole, but serves an independ-

ent and important function in the rehabilitation proc-

ess. However, if under the practices and procedures

of the parole board, the review hearing is used by the

parole board as a substitute for the parole hearing

specified under NEB. REV. STAT. § 83-1,111(4) (Reissue

1976) then the review hearing takes on a different

function.” If, pursuant to a review hearing, an inmate

is deferred for up to a year, the review hearing has in

effect become his parole hearing and he has then been

denied conditional liberty for that year. Under these

circumstances, the minimum procedures required by

the Due Process Clause must be complied with to

insure that the right of parole is not arbitrarily ab-

rogated.”®

B. An Inmates Right To A Meaningful Hearing

Includes The Right To Be Present; To Pres-

ent Documentary And Testimonial Evi-

dence; And, To Be Advised Of And Permit-

ted To Rebut Adverse Evidence.

It has been said: ‘‘Authorities on parole procedures

regard well conducted hearings as vital to effective

decision-making, in terms of expanding the informa-

tion available to the Board as well as to their effect

on offenders.’ President’s Commission on Law En-

22 The Board acknowledge that the reivew hearing is used by

the parole board as a substitute for a formal parole hearing not

only when an inmate initially becomes eligible for parole, but

also to meet the requirements Neb. Rev. Stat. § 83-1,111(4). (Reis-

sue 1976) See, Petitioner’s Brief at 8, 9.

23 Recognize, however, that if in the future the review hearing

is used specifically to review an inmate’s record then these pro-

cedures and requirements would not apply. It is only when the

reivew hearing for eligible inmates is used by the Board as a

substitute for the annual § 83-1,111(4) parole hearing and thus

the procedure through which the parole release decision is made

that the due process procedures apply.

forcement and Administration of Justice, Task Force

Report: Corrections (1967). See also R. Dawson, Sent-

encing 253 (1969). It is necessary, therefore, to deter-

mine what would be a ‘“‘well conducted”’ hearing in

compliance with the Due Process Clause.”

In order for an inmate’s right to a hearing to have

any real purpose it must be more than a mere exercise

in formality. The Eighth Circuit determined that an

inmate had a constitutional right to appear in person

before the Board and must be allowed to present doc-

umentary evidence, but an inmate is not entitled, in

the absence of urusual circumstances, to call witness-

** The United States argues that the limits of due process here

applicable should be determined by reference to the analogous

process of sentencing a convicted offender. See, Amicus Brief of

the United States at 40. The Inmates have agreed that there are,

indeed many similarities, see, n.13, supra and accompanying

text. But, such acknowledgement does not support the conclu-

sion that the same procedures apply. The similarities involve the

nature of the interest involved, and therefore support the conclu-

sion that due process applies, this Court having held that due

process must be accorded in sentencing proceedings, e.g. Gardner

v. Florida, 430 U.S. 349 (1977), despite the discretionary aspects

thereof. The type of procedures applicable cannot be determined

through such a comparative analysis. Each case must, rather, be

determined on its own facts. Mathews v. Eldridge, 424 U.S. 319

(1976). The sentencing process comes immediately after a crimi-

nal proceeding at which the full panoply of due process rights

have been accorded. Many of the factors which the sentencing

judge must consider will have come to the judge’s attention

through that process. See, United States v. Grayson, ___ U.S.

____, 98 S.Ct. 2610 (1978) (June 26, 1978). A parole board has no

similar proceeding upon which to rely for much of its decision-

making process. It is not, therefore, appropriate to suggest that

the procedures required should be the same.

es in his behal‘. (A. 20-21, 23) As the Petitioners sug-

gest, the present Nebraska system does allow an in-

mate to appear in person and to present evidence in

his behalf including the right to call witnesses during

a parole hearing. See, Petitioner’s Brief at 31. The

Board, however, suggests this is not constitutionally

mandated.

Far and away, the right of an inmate to be present

and allowed to present evidence at a parole release

hearing is the most important aspect of the parole

release proceeding to the inmate See, Wolff v. Mc-

Donnell, supra, 418 U.S. at 566. Without a hearing at

which the inmate is present, it would appear to the

inmate that his liberty interest would be subject en-

tirely to the whims, hunch or caprice of the Board. A

hearing not only will allow the inmate to discuss fully

with the Board what his deficiencies are, how he may

improve, or the standards required of him, but will

also lend credibility to the system and will eliminate

the hopeless frustration of a prisoner who is simply

told that his parole is denied without ever having the

opportunity to voice his concerns. Without the right

to appear in person and present evidence, the inmate

will wonder without answer whether he could have

brought some fact to the Board’s attention which

might have made a difference; or, wonder how his

behavior and attitude could have changed. Finally,

the right to be present at a hearing and present evi-

dence will eliminate the fear of the inmate that there

is nothing he can do that will make a difference in the

outcome.

This Court should make clear, moreover, that a

hearing in conformity with the Due Process Clause

must be more than the pro forma ritual that occurs in

many jurisdictions. In-Nebraska, for example, the av-

erage length of a review hearing is five to ten minutes

(R. 16, 43), hardly an adequate time period for the

Board to canvass the multitude of factors the Board

is required to consider in its decisionmaking. NEB.

REV. STAT. § 83-1,114 (Reissue 1976). Although it

would be unwise to fix a minimum time for parole

release hearings, it is important for the Court to im-

press on parole boards that, for the hearing to be

constitutionally adequate, it must be held ‘‘in a mean-

ingful manner.’ Armstrong v. Manzo, 380 U.S. 545

(1965). The essential need is to recognize that the

burden of processing cases shouldered by the Board

must be tempered by the prisoner’s constitutional

right to a meaningful hearing. If this change means

a modification in the hearing practices of the Board

(e.g., use of hearing examiners) it will not be the first

time that constitutional imperatives have affected—

and ultimately benefitted—decisionmaking process-

es.”> E.g., Morrissey v. Brewer, supra.

The Eighth Circuit held that in the absence of un-

usual circumstnaces, an inmate does not have a con-

stitutional right to call witnesses in his behalf in a

** The Board has attacked the Eighth Circuit’s requirements

of a formal hearing, in part, on the basis of the increased admin-

istrative burden which might result. See Petitioners’ Brief at 32.

It first claims that the number of hearings required will be sig-

eee ee ee

formal parole hearing. (A. 21, 24) The disallowance of

this procedure, however, is a departure from this

Court’s holding in Wolff v. McDonnell, 418 U.S. 539

nificantly increased. While the record does not specifically sup-

port any such contention, the Inmates acknowledge that the

number of formal parole hearings would be increased. The In-

mates see no reason, however, for an increase in total number of

both formal parole hearings and review hearings conducted.

True, if the Board continued its present practice of conducting

a review hearing in each case, prior to a parole hearing, affirm-

ance or expansion of the Eighth Circuit requirement would result

in additional hearings. However, if the Board were to combine

the two hearings for eligible inmates (rather than following its

present practice of substituting the review hearing for the parole -

hearing), complying with the Due Process Clause at the single

hearing, only longer hearings, not both longer and more hearings,

would be involved. The Board conducted 1,645 review hearings

and 327 parole hearings during the period of July 1, 1975 through

June 30, 1976. (Pl. Ex. 3, p. 17, R. 3,3). Through a constitution-

ally adequate combined procedure, 327 review hearings could

thus have been eliminated, and, of the total 1,645 review hear-

ings, only those inmates who hearings, only those inmates who

were eligible for parole would have been entitled to a constitu-

tionally prescribed hearing whereas the Board could have contin-

ued its present practice of conducting an abbreviated hearing for

inmates who are not eligible for parole.

The Board also suggests that significant administrative bur-

den will result from the requirements imposed by the Eighth

Circuit in that parole plans will necessarily be required to be

prepared for inmates having no reasonable possibility of parole.

The Inmates are confident that the District Court can, in its

supervision of the Board’s preparation of procedures consistent

with this Court’s opinion, balance the interests involved and

arrive at a fair accommodation of the Inmates’ interests and the

Board's desire to prevent needless preparation of parole plans

for inmates who are unlikely to receive favorable consideration

by the Board. Perhaps, procedures could be adopted whereunder

such parole plans will be prepared by institutional employees

(1974), the case upon which both the District Court

and the Eighth Circuit modeled their due process re-

quirements.**In that case this Court held that an in-

only for inmates having served a specified portion of their sen-

tence, without disciplinary action having been taken against

them, or, employing some other objective criteria for determining

which inmates will receive assistance in the preparation of such

a plan. If, in considering a prospective parolee for whom a plan

has not been prepared under such guidelines, the Board should

conclude that, but for the absence of an acceptable parole plan,

the inmate would be granted parole, then such inmate can be

specifically referred for preparation of a parole plan, the Board

deferring final action on such inmate’s case until receipt of the

plan.

*® The Eighth Circuit's conclusion that the calling of witnesses

at parole hearings is not constitutionally required, absent unu-

sual circumstances, may have been based upon considerations

similar to those expressed by the United States concerning the

“relationship between prisoner and jailer.’’ See Amicus Brief of

United States, p. 39. It should be remembered, however, that

unlike Wolff v. McDonnell, where such concerns were also ex-

pressed, the nature of a parole hearing is not accusatorial in

nature. Thus, the risk of confrontation between the ‘‘jailer’’ and

prisoners is much less. Moreover, obviously, the interest at stake

is much greater, that is, liberty in the immediate future versus

liberty in the distant future. It should be further remembered

that prisoners at parole hearings in Nebraska have the ability to

call witnesses presently. (A. 33). Yet, the Board introduced no

evidence showing any disruption to the prison environment as a

result thereof. True, the hearings are held within the prison walls,

but the concerns expressed by this Court previously do not ap-

pear to have presented Nebraska authorities with significant

difficulties sufficient to justify restriction of the right to call

witnesses at parole hearings. To the extent that such concerns

are justifiable, the accommodation made by the District Court is

much more defensible. That is, subject to prison security consid-

erations, the inmate should be permitted to call witnesses in his

own behalf. (Pet. App. 40).

mate facing disciplinary proceedings should be al-

lowed to call witnesses and present documentary evi-

dence in his defense when permitting him to do so will

not be unduly hazardous to institutional safety or

correctional goals. Jd. at 565-566. In other words, an

inmate was to be allowed to call witnesses except in

unusual circumstances, and if the reviewing board

declined to allow a witness, this Court suggested that

the board should state its reasons for refusing to call

a witness. The Eighth Circuit on the other hand de

termined that the right to call a witness was the ex-

ception rather than the rule. The procedure outlined

by this Court in Wolff should at a minimum control.

An inmate has even more at stake in a parole release

determination than in the prison disciplinary situa-

tion of Wolff. In Wolff, the inmate stood to lose a

reduction in his sentence, or in other words a delayed

release at some point in the future. In the instance

case, a prospective parolee stands to gain immediate

conditional liberty. Therefore, the Eighth Circuit's

departure from the Wolff procedure was inappro-

priate.

This Court has previously stated that ‘‘[o}rdinarily,

the right to present evidence is basic to a fair hear-

ing,” Wolff v. McDonnell, 418 U.S. at 566. An integral

component of the right to a fair and meaningful hear-

ing is the right to rebut adverse factual evidence. To

be able to effectively do so, of course, the inmate must

know what adverse factual evidence has been pre-

sented. Presently, Nebraska inmates are not permit-

ted to examine their prison files, and therefore are

unaware of what inaccurate information therein con-

tained may be considered by the Board in its deter-

minations. (R. 19, 36,°46, 47, 56). Neither are the in-

mates permitted to hear any live testimony received

by the Board in opposition to parole. (A. 33). To per-

mit such practices to continue would, in large part,

run the risk of rendering such hearings meaningless.

While prison security considerations may require that

the inmate not know the source of the factual infor-

mation or testimony recieved, he is at least entitled

to know the content of any testimony received and

the nature of adverse information contained in his file.

Certainly, the inmate is not entitled to relitigate past

convictions, but to the extent erroneous information

is contained in his file, he should be entitled to present

to the Board a clarification or correction thereof.’

*" The Inmates have not heretofore requested advance access

to their prison files in preparation for their hearing. They do not,

therefore, formally ask this Court to grant this access. However,

the Inmates do indicate their agreement with amicus briefs filed

in their support which advocate advance access to and knowledge

of the contents of prison files considered by the Parole Board.

Such advance notice surely will assist the Board in making a fair

determination based upon accurate information. Likewise, the

Inmates do not here contend that there is a right to confrontation

and cross examination, the finding that no such rights existed

not having been appealed from the District Court to the Eighth

Circuit. The Inmates’ interest in knowing what adverse infor-

mation is possessed by the Board or presented by other witness-

es, is, however, viewed as fundamental and should, in order to

permit rebuttal as opposed to confrontation, be made a part of

the hearing requirement.

The Inmates agree, with the notable exception of

the right to know what adverse testimony has been

received or is in an inmate’s file, that Nebraska com-

plies with these constitutional requirements at a for-

mal parole hearing. However, as was suggested ear-

lier, the present practice of the parole board is to

utilize a review hearing as a substitute for the annual

parole hearing required under NEB. REV. STAT. § 83-

1,111(4) (Reissue 1976). In a review hearing, although

an inmate is allowed to be present, he is not allowed

to present evidence. (A. 33). Therefore, where a review

hearing is used to meet the requirements of a parole

hearing pursuant to § 83-1,111(4), an inmate must be

allowed the opportunity to present evidence to insure

that all facts are brought to the Board’s attention.

Since a deferral pursuant to a review hearing is equiv-

alent to a denial of parole at a parole hearing, both

involve a denial of liberty and both must therefore

meet the procedural safeguards.

C. Due Process Requires Reasonable Advance

Notice Of The Hearing And A Listing Of The

Criteria Governing The Board’s Decision.

Under the present Nebraska system, an inmate is

only notified of the month that his case will be set for

hearing, whether it be a review or parole hearing. (A.

32). He is not notified of the exact day or hour of his

hearing until the very day of the hearing. Jd. The

Eighth Circuit determined that due process entitled

an inmate to receive reasonable written notice of the

date and hour for the hearing and under normal cir-

cumstances a minimum advanced notice of 72 hours

would allow a prisoner a fair opportunity to prepare

for his hearing. (A. 18-19, 23).?8

The Board suggests that notice on the same day is

sufficient notice since prisoners seldom go on vacation

or have conflicting appointments. See, Petitioners’

Brief at 30. One can only imagine the frustration of

an inmate who, as a result of the limited notice, is

unable to make a presentable personal appearance

before the Board because of work or other conflicts.

If an inmate is to be treated with any degree of dign-

ity, it is insufficient to simply post a notice on the

day of the hearing when that hearing may very well

by one of the most important events in an inmate’s

life. Therefore, the present Nebraska procedure for

giving notice is constitutionally deficient Mullane v.

Central Hanover Bank & Trust Co., 339 U.S. 306, 313-

314 (1950). Requiring advance notice would not only

allow a prisoner to organize and present his testimo-

** The Inmates agrees that 72 hours advance notice is resona-

ble under most circumstances if the Board continues its present

practice of previously notifying the inmate of the month of his

next hearing. However, if such practice were to be discontinued,

72 hours’ advance notice in many cases would be inadequate to

permit the inmate to properly prepare for the hearing. Continu-

ance of the present practice of notifying the inmate of the month

of his hearing far in advance should be continued as one of the

procedures to be adopted by the Board under the District Court’s

supervision. In addition thereto, of course, the required written

notice of the precise date and hour, normally not less than 72

hours in advance, would also apply.

ny, but also would lend credibility to the system by

removing the ad hoc atmosphere that presently ex-

ists.

Along with this written notice requirement, the

Eighth Circuit required that the notice be accom-

panied by a listing of the criteria governing the

Board’s parole decision. (A. 19-20, 23). Fundamental

fairness mandates that an inmate have the opportu-

nity to know and meet the criteria which may affect

his decision when such a vital interest is at stake. In

order to permit the inmate a reasonable opportunity

to marshal facts in support of his conditional release,

to clarify any adverse information which may exist in

his file, and to rebut unfounded charges with possible

mitigating circumstances, an inmate must be in- .

formed of the factors and criteria the board will or

may take into account and know the standards to

which he must conform if he is to be released. See

Franklin v. Shields, 569 F.2d 784, 791-793 (4th Cir.

1977) (en banc), cert. denied, 435 U.S. 1003 (1978). The

burden on the government is de minimis and it is not

ludicrous to require that an inmate whose liberty is

at stake be notified of what may or may not be a

controlling factor in the Board’s decision. “One can

imagine nothing more cruel, inhuman, and frustrating

than serving a prison term without knowledge of what

will be measured and the rules determining whether

one is ready for relief.’’ Davis, Discretionary Justice

132 (1969).

D. Due Process Of Law Requires That A Re-

cord, Capable Of Accurate Reduction To

Writing, Be Maintained.

The Eight Circuit determined that a record which

is capable of being reduced to writing is constitution-

ally mandated. (A. 21, 24). This requirement is an

essential minimum safeguard to insure that the right

of parole is not arbitrarily taken away. Only through

some type of record will there be any assurance that

the Board acted rationally rather than arbitrarily or,

that the Board considered only relevant factors and

not constitutionally impermissible criteria. As this

Court noted in Wolff v. McDonnell, supra, 418 U.S.

at 565:

Written records of proceedings will thus protect

the inmate against collateral consequences based

on a misunderstanding of the nature of the orig-

inal proceeding. Further, ... the provision for a

written record helps to insure that administra-

tors, faced with possible scrutiny by state offi-

cials and the public, and perhaps even the courts,

where fundamental constitutional rights may

have been abridged, will act fairly. Without writ-

ten records, the inmate will be at a severe dis-

advantage in propounding his own cause to or

defending himself from others. It may be that

there will be occasions when personal or institu-

tional safety is so implicated that the statement

may properly exclude certain items of evidence,

but in that event the statement should indicate

the fact of the omission. Otherwise, we perceive

no conceivable rehabilitative objective or pros-

pect of prison disruption that can flow from the

requirement of these statements.

While it is true that a tape recording is kept for

both parole hearings and review hearings. (A. 33),

unless a record is kept that is capable of being reduced

to writing,”’ it would be difficult to determine whether

the Board acted arbitrarily or relied upon constitu-

tionally impermissible factors.

E. Due Process Of Law Requires A Full And

Fair Written Explanation Of The Essential

Facts Relied Upon And The Reasons For

Denial.

As a final procedural requirement, the Eighth Cir-

cuit ordered that within a reasonable time following

the hearing, an inmate who has been denied parole is

to be given a full and fair written explanation of the

essential facts relied upon and the reason for denial.

2? The Inmates’ concern in this respect is highlighted by the

late-filed exhibits constituting the transcripts of the hearings of

inmates James Love, Keith Christensen, Edward Steward and

Merlin Scott Abbott, which collectively contained numerous ex-

amples of questions, answers or remarks by either Board mem-

bers or the inmate involved being incapable of translation to

written form. While the Inmates do not object to the use of tape

recordings, rather than the use of a stenographer, they do strong-

ly assert that the tape recordings utilized must be of sufficient

quality to insure the capability of obtaining a verbatim written

transcript at a later date.

applicable to parole release determinations has found that the

parole board must inform the prisoner in writing of the reasons

(A. 21-22, 24). It is particularly important with regard

to this element to analyze the type of statement the

Eighth Circuit considered appropriate to satisfy this

requirement.

We agree with the reasoning of the Second

Circuit that for a statement of reasons to satisfy

minimal due process requirements “detailed find-

ings of fact are not required, provided the

Board’s decision is based upon consideration of

all relevant factors and it furnishes to the inmate

both the grounds for the decision ... and the

essential facts upon which the Board's inferences

are based ....’’ United States ex re!. Johnson v.

Chairman, N.Y. State Bd. of Parole, supra, 500

F.2d at 934. See United States ex rel. Richerson

v. Wolff, supra; Cooley v. Sigler, supra, 381 F.

Supp. at 443; Candirini v. Attorney General, 369

F. Supp. 1132, 1137 n.8 (E.D, N.Y. 1974). Cf

Franklin v. Shields, supra, 569 F.2d at 797-98 n.

59, 801.

(A. 22).

In other words, the Eighth Circuit indicated that

in order to fulfill the requirement it would not be

necessary to conduct an evidentiary or fact-finding

hearing and then report the results to an inmate in

for denial of his application for parole. See, Franklin v. Shields,

569 F.2d 784 (4th Cir. 1977) (en banc) cert. denied, 435 U.S. 1003

(1978; United States ex rel. Richerson v. Wolff, 525 F.2d 797 (7th

Cir. 1975), cert. denied, 425 U.S. 914 (1976); Childs v. United

States Board of Parole, 511 F.2d 1970 (D.C. Cir. 1974); United

States ex rel. Johnson v. Chairman, N.Y. State Bd. of Parole, 500

F.2d 925 (2nd Cir. 1974), vacated as moot, 419 U.S. 1015 (1975).

the form of a detailed finding of facts. What is nec-

essary, however, is a statement of the reasons suffi-

cient to show that the board did consider the relevant

factors and made a rational decision as opposed to an

arbitrary one.

The type of statement required by the Eighth Cir-

cuit must be viewed in terms of the purposes the

statement would fulfill. That is, the Eighth Circuit

felt that a statement would facilitate judicial review

in those situations where it was allowed; it would

promote thought by the board members and would

compel them to cover the relevant points and escue

irrelevancies; it would promote the goal of rehabili-

tation by relieving the frustrations of the inmates and

instructing them on how they must improve their

behavior and better their chances for relief; and final-

ly, it would establish principles and precedents which

would promote consistency by the Board.*! (A. 22-23).

*' The United States in its Amicus Brief at 46-47 n. 27, strong-

ly criticizes these purposes that a written requirement would

fulfill. What must be kept in mind, however, is that these pro-

cedural safeguards, like the other minimum requirements of due

process, are imposed to protect the inmate from an arbitrary

decision. In other words, the procedure is required to eliminate

or reduce the possibility that an inmate might be erroneously

deprived of his interest. Without a statement of reasons or a

summary by the Board of the facts relied upon by it in reaching

its conclusion, there is no assurance that the Board did in fact

think, no assurance that the decision would be capable of efficient

judicial review nor any assurance that the Board acted rationally.

While it is true that the Constitution does not require the estab-

lishment of precedent, nor does the Constitution require state

courts to have records more complete than the state courts be-

In addition to these purposes, the Inmates suggest

that a requirement of a statement of reasons and

essential facts relied upon would also provide an ad-

ditional safeguard by preventing the possiblity that

the Board relied upon constitutionally impermissible

factors or unfounded and unsubstantiated factual

conclusions in reaching its decision. E.g. Wolff v.

McDonnell, supra, 418 U.S. at 565.

The present Nebraska system fulfills none of these

purposes nor does it provide adequate safeguards

against arbitrary decisions. An inmate is not advised

of the essential facts relied upon (A. 34), and although

they are in most cases informed of a reason for denial,

they are told through the use of a standardized letter

which in many cases give as a reason for denial ‘‘dis-

ciplinary report’’. (A. 45). To inform an inmate that

he was denied parole simply because of a ‘‘disciplinary

report’ borders on meaningless. Only when the un-

derlying evidentiary and factual circumstances are

adequately summarized can the purposes behind such

a requirement be achieved.

Even to a greater extent, the same deficiencies exist

when an inmate is informed of the reasons why parole

is being denied pursuant to a review hearing. (A. 40-

45). A statement of reasons for denial consisting of

‘“‘your continued correctional treatment, vocational,

lieve necessary, what the Constitution does require is a decision

which is procedurally fair and rationally reached; and, the re-

quirement of a full and fair written explanation is a means to

that end.

educational, or job assignment in this facility will

substantially enhance your capacity to lead a law-

abiding life when released at a later date’ should not

be tolerated even under the limited requirement sug-

gested by the Eighth Circuit.

CONCLUSION

For the foregoing reasons, Respondents request

that the determination of the Court of Appeals that

due process protection applies to parole release pro-

ceedings be affirmed. Respondents further request

that in determining what procedures are due, the

Court conclude that Nebraska, under its statutory

provisions, must conduct formal parole hearings not

less often than annually and that all such hearings

the inmates must be afforded the right to be present,

the right to present documentary and testimonial evi-

dence, and the right to know and rebut any adverse

factual information received or in the possession of

the Nebraska Board of Parole. In all other respects,

Respondents request that the judgment of the Court

of Appeals be affirmed.

Respectfully submitted,

BRIAN K. RIDENOUR

Court-appointed

Attorney for respondents

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.