Amicus Brief — Greenholtz v. Inmates of Neb. Penal and Correctional Complex
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( Supreme Court, U. & =
FILED \
No. 78-201 }
NOY LGB 5H
| Mewes Re
Iu the Supreme Court of thy Tims
OCTOBER TERM, 1978
JoHN B. GREENHOLTZ, CHAIRMAN OF THE NEBRASKA
BOARD OF PAROLE, ET AL., PETITIONERS
VU.
INMATES OF THE NEBRASKA PENAL AND
CORRECTIONAL COMPLEX, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE EIGHTH CIRCUIT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
WADE H. MCCREE, JR.
Solicitor General
PHILIP B. HEYMANN
Assistant Attorney General
FRANK H. EASTERBROOK
Deputy Solicitor General
WILLIAM G. OTIS
ANDREW S. GORDON
Attorneys
Department of Justice
Washington, D.C. 20530
Questions
I be cetiaaislsincclattlohiinds ike
Interest of the United States .......................
Statement
Introduction and summary of argument ........
Argument
I. The procedural protections of the Due
Process Clause apply to parole release
decisions only if the parole statute cre-
ates an entitlement to early release........
A.
The procedural protections of the
Due Process Clause apply only to
proceedings that may result in the
deprivation of a person’s “liberty”
I Nc sccicienctlihimeliadcnlaeniciedsiats
. Except to the extent that he may
have a legitimate claim of entitle-
ment grounded in the statutes, regu-
lations, or rules governing the terms
of his confinement, a prisoner has
no liberty or property interest in
being released on parole ..................
Nebraska law gives prisoners eligible
for parole a legitimate claim of en-
titlement to release .....................-----
II. The Due Process Clause requires Ne-
braska parole officials to give prisoners
a fair opportunity to be considered for
RT TAR Ren MN oem Re: ETM MER
IEE Lik LET. Fe WERE Bene WA MEE ERO
Page
20
21
24
31
38
47
I
CITATIONS
Cases: Page
Arizona v. Washington, 434 U.S. 497 en 4
; nedy, 416 U.S. 1364 .....-.. , 19, 29,
Arnett v. Kennedy see's
Barnes v. United States, 445 F. 2d 260... 11
Baxter v. Palmigiano, 425 U.S. 308 ........- 20, 39
Bishop v. Wood, 436 U.S. 341 ......-------------- 46
Board of Curators v. Horowitz, 435 U.S. a
Ses ee eee ;
Board of Regents v. Roth, 408 U.S. 564.... = so
Bradford v. Weinstein, 519 F. 2d 728,
vacated as moot, 423 U.S. 147 ........---..-- 34
Brown v. Lundgren, 528 F. 2d 1050, cert.
denied, 429 U.S. 917 ............--.---.----------- 33
Caralluzzo v. New York State Parole
Board, 566 F. 2d 875, cert. dismissed
as improvidently granted, 435 U.S. 912.. 34
Cardaropoli v. Norton, 523 F. 2d 990...... 6
Childs v. United States Board of Parole,
Pao Se Wee ene a. 34
Cruz v. Skelton, 548 F. 2d 86 ............--.----- 33
Dixon v. Love, 431 U.S. 105 -..........-...--.---- 29
Dorado v. Kerr, 454 F. 2d 892 ......--.....---.- 33
Dorszynski v. United States, 418 U.S. 424. 45
Drayton v. McCall, No. 78-2030 (2d Cir.
i eS): 34, 43
Durso v. Rowe, 579 F. 2d 1866 .............-..-- 6
Franklin v. Shields, 569 F. 2d 784, cert.
RE Be re I pce tts pceene 34, 43
Gagnon v. Scarpelli, 411 U.S. 778 -..........- 25
Ganz v. Bensinger, 480 F. 2d 88 .........-.... 43
Garcia v. Board of Parole, 557 F. 2d 100.. 48, 46
Gardner v. Florida, 430 U.S. 349 ............ 22, 40
Goss v. Lopez, 419 U.S. 566 ...................--- 23, 29
Ill
Cases—Continued Page
Hil vy. Attorney G-neral of the United
States, 550 F. 2d 901 ~.......... 33, 43, 46
Ingraham v. Wright, 430 U.S. 651 -_......... 29
Jones v. North Carolina Prisoners’ Labor
Union, Inc., 483 U.S. 119 24
Kelsey v. Minnesota, 565 F. 2d 508 .......... 11
King v. Warden, 551 F. 2d 996 —........... 6
Madden v. New Jersey State Parole
Board, 438 F. 2d 1189 ~0. 33
Marchesani v. McCune, 531 F. 2d 459,
cert. denied, 429 U.S. 846 00. 6
Mathews v. Eldridge, 424 U.S. 319 ....29, 40, 44
McIntosh v. Woodward, 514 F. 2d 95...... 34
Meachum v. Fano, 427 U.S. 215 000... passim
Memphis Light, Gas & Water Division v.
Sk Sane ee eee 29
Moody v. Daggett, 429 U.S. 78 ............. 6, 18, 22,
25, 27, 28, 44
Morrissey v. Brewer, 408 U.S. 471 ..... 19, 25, 27,
29, 30, 39, 41, 42
Mosley v. Ashby, 459 F. 2d 477 —....00.... 33
New York State Parole Board v. Coral-
luzzo, ce.t. dismissed as improvidently
Sree, Gee ak ee 31
Perry v. Sindermann, 408 U.S. 598 ......... 29
Polizzi v. Sigler, 564 F. 2d 792 6
Price v. Johnston, 334 U.S. 266 _............ 24
Procunier v. Martinez, 416 U.S. 396 ....... 24
Richardson v. Perales, 402 U.S. 389 ....... 29, 44
Robinson v. Benson, 570 F. 2d 920 _......... 34
Scarpa v. United States Board of Parole,
477 F. 2d 278, vacated as moot, 414
SPE SES SRS WS ete ea 33
Schawartzberg v. United States Board of
Parole, 399 F. 2d 297
IV
Cases—Continued Page
Scott v. Kentucky Parole Board, No. 74-
1899 (6th Cir. Jan. 15, 1975), remand-
ed to consider mootness, 429 U.S. 60,
reaffirmed sub nom. Bell v. Kentucky
Parole Board, 556 F. 2d 805, cert. de-
nied sub nom. Scott v. Kentucky Parole
Board, 484 U.S. 960 ............--....---s--+--0+- 33
Oh ail alhanititidnainondiinn 31
Scott v. Kentucky Parole Board, 429 U.S.
Sexton v. Wise, 494 F. 2d 1176 ................. 34
Smith v. Organization of Foster Families,
Ue Sa 23, 26, 27, 29
Smith v. Saxbe, 562 F. 2d 729 .............-..-- 6
Solomon v. Benson, 563 F. 2d 339, over-
ruling Holmes v. United States Board
of Parole, 541 F. 2d 1248 ...................- 6
United States v. Grayson, No. 76-1572
(Femme BG, TOTS) 21 nanan nana nnen--2202---- 16, 40
United States ex rel. Johnson v. Chair-
man, New York State Board of Parole,
500 F. 2d 925, vacated as moot, 419
SIN IIR Sidinc ettin dectbepbiiagtichenwinindthontioisenenee 34
United States ex rel. Richerson v. Wolff,
a ak Re 34
Walker v. Hughes, 558 F. 2d 1247 .......... 6, 33
Weinstein v. Bradford, 423 U.S. 147 ...... 31
Williams v. Missouri Board of Probation
and Parole, No. 78-1136 (8th Cir. Oct.
FRE a ee 11
Williams v. New York, 337 U.S. 241 ...... 16
Williams v. Ward, 556 F. 2d 1148, pet.
for cert. dismissed, 434 U.S. 944 _..... 43
Wolff v. McDonnell, 418 U.S. 539 ............. passim
Zurak v. Regan, 550 F. 2d 87, cert: denied,
ET Ms MAA ccceltllasatinenedenkssabisebiinilckiciian 6
Vv
Constitution, statutes and regulations: Page
United States Constitution:
Eighth Amendment .........................---. 18
Cruel and Unusual Punishment
SID =, acisdtcdeccntbinccipradomsnentos 18
Fourteenth Amendment ..................... 17, 28
Due Process Clause ...................... passim
Parole Commission and Reorganization
Act, 18 U.S.C. 4201 et seq.:
Fe Eee MID precvecseccseseseinsnensoanee 2
RE: CITTID ccsesdidecindpeneesiniostnaeniec 32
II sci scnincnrneerphensinniotioseeesane 33
Neb. Rev. Stat. (1976):
IEE schniscdvainnncakoctnteibanpanbecanenens 7
SE oi ia ccalccpencienniedignthiensanyannpognion 7
tf Lj ee 7, 34
Se NIT. vai tcaensinciguliaipassunsivinosentin 7
§ 83-1,112(2) ........... cpdpehieciagiiannelisaiaiios 7
iach istinensianmnnmnianie 11
EI tinlinsiinictresiepecioeoonnisipticneen 8, 34
TE BED a ienntnctanienmntntnngenccenin 42
EE oo hiccecanicensaieanpenapeniciaeste 8
Rit Pee en 36
United States Parole Commission Regu-
lations:
28 C.F.R. Part 2, 42 Fed. Reg. 39808.. 2
28 C.F.R. 2.12, 42 Fed. Reg. 39811.... 5
SO MINED dichasionsncicaciphavelicoiiiwaiieinanainen 21, 32
re IO Siecesicsdailenniancbodonassoinn 32
VI
Miscellaneous:
Elzinga & W. Breit, The Antitrust Penal-
C5aB (1DTE) nnccnncennncncnnceacnceccceeroentececessenses
H. L. A. Hart, Punishment and Responsi-
Dilibyy (1908) —--.n-.-------22neecceceannsnreseeses
Kadish, The Advocate and the Expert—
Counsel in the Peno-Correctional Proc-
ess, 45 Minn. L. Rev. 803 (1961) -.......
N. Morris, The Future of Imprisonment
og) Re oan 7 Aaa ae
H. Packer, The Limits of the Criminal
Eh: Se
R. Posner, Economic Analysis of Law (2d
I iicctectindcicmintbccnpuatciiadintiaines
Project, Parole Release Decision-making
and the Sentencing Process, 84 Yale
tl, GD CRO D ceiciclapttnlictitincecstibtincimibicniygtics
S. Conf. Rep. No. 94-648, 94th Cong., 2d
I Ba OE Gecteoniinticitiinsccndtetaintniadigunss
D. Stanley, Prisoners Among Us: The
Problem of Parole (1976) ................------
United States Board of Parole, 1973-1976
Fe
CI sincisdircaerncsionninsisnnesiegvaiteiainimieniimelicas
A. von Hirsch, Abolish Parole? (1978) -.....
A. von Hirsch, Doing Justice (1976) -......
J. Wilson, Thinking About Crime (1975)..
F. Zimring & G. Hawkins, Deterrence
PP TEOD . cticencsiancncsenehsiiiincctenledidiaeimia tas
In the Supreme Court of the United States
OCTOBER TERM, 1978
No. 78-201
JOHN B. GREENHOLTZ, CHAIRMAN OF THE NEBRASKA
BOARD OF PAROLE, ET AL., PETITIONERS
Vv.
INMATES OF THE NEBRASKA PENAL AND
CORRECTIONAL COMPLEX, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE EIGHTH CIRCUIT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
QUESTIONS PRESENTED
The United States will address the following ques-
tions:
1. Whether the procedural protections of the Due
Process Clause apply to Nebraska’s parole release
proceedings.
2. Whether, if the Due Process Clause applies to
parole release proceedings, the safeguards prescribed
(1)
a
2
by the court of appeals are required by the Constitu-
tion.
INTEREST OF THE UNITED STATES
This case involves the question whether and to
what extent proceedings to determine whether a
prisoner should be released on parole implicate the
Due Process Clause. This Court’s decision necessarily
will affect the constitutional rules governing the oper-
ation of the federal parole system.
1. The United States maintains an extensive parole
system. In fiscal year 1976, the most recent year for
which figures are available, the United States Parole
Commission made 10,228 final parole decisions con-
cerning adult prisoners, granting parole in 4,429, or
approximately 43 percent, of the cases. United States
Board of Parole, 1973-1976 Annual Report 22.
Under the provisions of the Parole Commission and
Reorganization Act, 18 U.S.C. 4201-4218, and of the
Commission’s regulations (28 C.F.R. Part 2, 42 Fed.
Reg. 39808), each prisoner is afforded numerous op-
portunities to participate in the process for deciding
whether he should be released on parole. The Com-
mission provides application forms to each eligible
prisoner. The Commission holds an initial hearing
and it attempts to set a presumptive release date or
an effective parole date; * it gives the prisoner written
1The Commission usually sets a presumptive release date
when the sentence is seven years or less. Because the Com-
mission does not set a release date more than four years
from the date of the hearing, it often does not set a presump-
tive release date when the sentences exceeds seven years. In
notice of the time and place of the hearing; it gives
the prisoner reasonable access to documents in his
file; the prisoner is entitled to be represented at the
hearing by a person of his choice. The prisoner or
his representative may make a statement at the con-
clusion of the interview and provide information for
the Commission’s consideration.
The initial parole hearing is conducted by a panel
of two examiners designated by the Commission. The
panel informs the prisoner of its recommendation
and, if it recommends the denial of parole, of its
reasons. The initial decision is made by a regional
Commissioner on the panel’s recommendation.
The Commission has published a full explanation of
the factors it considers in acting on applications for
parole. These factors include the facts relating to his
offense, his prior criminal record, his personal and
social history and institutional experience, and his
release plans. Objective guidelines indicate the cus-
tomary range of time to be served before release for
various combinations of these factors. If parole is
denied, the prisoner is furnished with a “guideline
evaluation statement,” which sets forth the factors
on which the Commission relied and shows the Com-
mission’s evaluation of those factors in the prisoner’s
case. The Commission may elect to parole a prisoner
either before or after the time provided by the guide-
lines, and when it does so it provides an additional
statement of reasons.
those cases the Commission postpones parole consideration for
four years and schedules another hearing.
4
The prisoner may appeal an adverse initial decision
to the regional Commissioner.’ The appeal usually is
handled on the record of the initial hearing, but at-
torneys, relatives and other interested parties may
appear in the discretion of the Commissioner. The
regional Commissioner’s decision can be appealed to
the National Appeals Board, whose decision is final.
2. Unless the Court should hold that the Due Proc-
ess Clause not only applies to parole release decisions
put also requires more elaborate procedures than
those the court of appeals held to be “due,” the Com-
mission’s procedures are unlikely to be directly af-
fected by the outcome of this case. For the reasons
that we discuss below, we believe that the procedural
protections of the Due Process Clause apply to parole
release proceedings only if the parole statute creates
an entitlement to release from confinement absent
specific findings of the inmate’s unsuitability for re-
lease. In our view, the Nebraska statute at issue
here creates such an entitlement, whereas the federal
counterpart does not. Accordingly, the interest of the
United States is to defend the prerogative of Con-
gress to continue the present discretionary system of
parole and to experiment with new procedures for
parole determinations.
The Parole Commission and Reorganization Act
illustrates the continuing process of experimentation,
a process that is, in our view, vital to improvement
of parole procedures. Many of the reforms embodied
2 This amounts to asking the Commissioner to reconsider
his prior decision.
SO SS
5
in the Act were developed after a three-year study
conducted by the National Council on Crime and De-
linquency and an analysis of the results of a pilot
project begun in October 1972 in one of the Commis-
sion’s regions, then were applied nationwide through
regulations, and, when demonstrated by further eval-
uation to be valuable to the parole process, were
adopted by Congress. See generally S. Conf. Rep.
No. 94-648, 94th Cong., 2d Sess. (1976).
The reforms include a system of periodic review
hearings, the use of specific guidelines to help acnieve
consistent treatment of similar cases, and a detailed
enumeration of the information to be considered in
parole release decisions. In addition, the Commission
recently has instituted a practice of attempting to
set, early during a prisoner’s sentence, a presumptive
release date; the Commission is seeking to reduce
the uncertainty that prisoners experience while wait-
ing to know how long they must remain in prison
(see 28 C.F.R. 2.12, 42 Fed. Reg. 39811). If this
Court should hold that the Due Process Clause ap-
plies to parole release determinations whether or not
the parole statute creates a clear entitlement to parole
absent specified findings of unsuitability, future ex-
perimentation and alteration of the parole process
could be inhibited.
Moreover, in addition to parole, many types of de-
cisions affecting prisoners, such as those concerning
eligibility for work-release programs and furloughs,
involve opportunities for prisoners to acquire some
“conditional liberty” at the discretion of penal auth-
6
orities. Similarly, many decisions that do not involve
a temporary release from incarceration may neverthe-
less involve greater liberty within the institution-—
decisions relating to security classifications and work
assignments are but two of many examples. The
Court’s resoluticn of the question presented here could
have significant implications for the institutional
handling of such decisions.°
STATEMENT
1. Nebraska inmates are eligible for release on
parole on completion of their minimum sentences,
’ A federal prisoner may apply for a discretionary short-
term release on furlough. One court of appeals has held that
there is no need for prison officials to provide hearings con-
cerning such applications (Smith v. Saxbe, 562 F.2d 729, 734-
735 (D.C. Cir. 1977)), but the Second Circuit has held that
furloughs are like parole and may not be denied without hear-
ings (Zurak v. Regan, 550 F.2d 87, cert. denied, 433 U.S. 914
(1977) ). See also Durso v. Rowe, 579 F.2d 1365 (7th Cir.
1978) (work release involves a liberty interest). Similarly,
many administrative decisions concerning a prisoner may
affect his opportunity for parole or the amount of personal
freedom he enjoys within the prison. The courts of appeals
do not agree whether the Bureau of Prisons must afford hear-
ings concerning these decisions. Some courts hold that hear-
ings are necessary. See Polizzi v. Sigler, 564 F.2d 792 (8th
Cir. 1977) ; Cardaropoli v. Norton, 523 F.2d 990 (2d Cir.
1975). Other courts conclude that the Constitution does not
require hearings. See Solomon v. Benson, 563 F.2d 339 (7th
Cir. 1977), overruling Holmes v. United States Board of
Parole, 541 F.2d 1248 (7th Cir. 1976); Walker v. Hughes,
5b8 F.2d 1247 (6th Cir. 1977) ; Marchesani v. McCune, 531
F.2d 459 (10th Cir.), cert. denied, 429 U.S. 846 (1976). Cf.
King v. Warden, 551 F.2d 996 (5th Cir. 1977). See also
Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976).
7
reduced by good time credits. Neb. Rev. Stat. § 83-1,
110 (1976). Each prisoner, whether or not eligible
for parole, receives a yearly parole review hearing.
Neb. Rev. Stat. § 83-192(9) (1976). In addition,
each inmate has a parole review hearing within 60
days of becoming eligible for parole. Neb. Rev. Stat.
§ 83-1,111(1) (1976). After the interview, the Board
notifies each inmate whether he will be granted a
formal parole hearing. If a formal hearing is not
granted, the Board tells the prisoner why release was
deferred and makes recommendations concerning how
the prisoner may correct any deficiencies.
If the Board determines that a formal parole hear-
ing is warranted, it notifies the inmate of the month
in which the formal hearing will be held. The inmate
learns the exact day and time of the hearing only on
the day it takes place. At the hearing the inmate
may offer evidence and may be assisted by counsel.
Neb. Rev. Stat. § 83-1,112(2) (1976). The Board
maintains a complete record of the procedings. Neb.
Rev. Stat. § 83-1,111(1) (1976). If parole is denied,
the Board must furnish the prisoner within 30 days
with a written statement of the reasons for the denial.
Neb. Rev. Stat. § 83-1,111(2) (1976).
The Board’s decision is governed by the statutory
direction that an inmate eligible for parole “shall be
released” unless the Board makes at least one of the
following four findings:
(a) There is a substantial risk that [the
prisoner] will not conform to the conditions of
parole;
8
(b) His release would depreciate the serious-
ness of his crime or promote disrespect for law;
(c) His release would have a substantially ad-
verse effect on institutional discipline; or
(d) His continued correctional treatment,
medical care, or vocational or other training in
the facility will substantially enhance his ca-
pacity to lead a law-abiding life when released
at a later date.
Neb. Rev. Stat. § 83-1,114(1) (1976). The statute
also identifies numerous factors that the Board must
consider in arriving at its decision.‘
* Neb. Rev. Stat. § 83-1,114(2) (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,
stability, sense of responsibility and any apparent devel-
opment in his personality which may promote or hinder
his conformity to law;
(b) The adequacy of the offender’s parole plan;
(c) The offender’s ability and readiness to assume obli-
gations 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 com-
munity ;
(f) The offender’s employment history, his occupa-
tional 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;
[Footnote continued on page 9]
9
2. Respondents filed the present suit as a class
action in the United States District Court for the
District of Nebraska. They contended that the Due
Process Clause requires procedures more elaborate
than those followed by the Board, and they requested
both an injunction and damages. Respondents con-
tended that the Constitution requires the Board to
(Pet. App. 25-26): (1) inform prisoners of the cri-
teria governing release decisions; (2) inform prison-
ers in advance of the dates and times of their hear-
ings; (3) permit prisoners to present evidence
(through documents and witnesses); (4) “confront
the inmates” with adverse evidence; (5) allow pris-
oners to cross-examine any adverse witnesses; (6)
* [Continued]
(i) The offender’s mental or physical makeup includ-
ing any disability or handicap which may affect his con-
formity 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;
(1) The offender’s conduct in the facility, including
particularly whether he has taken advantage of the op-
portunities for self-improvement, whether he has been
punished for misconduct within six months prior to his
hearing or reconsideration for parole release, whether
any reductions of term have been forfeited, and whether
such reductions have been restored at the time of hearing
or reconsideration ;
(m) The offender’s behavior and attitude during any
previous experience of probation or parole and the re-
cency of such experience; and
(n) Any other factors the board determines to be
relevant.
10
maintain a complete record of all proceedings; (7)
permit representation of prisoners by attorneys in all
proceedings; (8) provide explicit statements of rea-
sons for the denial of release; and (9) inform pris-
oners of the evidence relied on in denying release.*
After some preliminary proceedings (Pet. App. 25
n.2), the district court held that all prisoners have a
“liberty” interest in release on parole (id. at 29-36).
In light of this interest, the court held, the Due Proc-
ess Clause requires parole authorities to follow cer-
tain minimum procedures (id. at 39-44): (1) every
eligible inmate must receive a full parole hearing;
(2) the inmate must receive notice, at least 72 hours
before the hearing, of the hearing’s date, and the
notice must include a statement of the factors to be
considered by the Board; (3) subject to considera-
tions of prison security, the inmate must be allowed
to appear and present evidence, including witnesses;
(4) the Board must create written records of the
hearings; (5) within a reasonable time after the
hearing, the Board must give each inmate a written
notice of the reasons for its decision and of the evi-
dence on which it relied. The court denied respond-
ents’ request for money damages (id. at 47).
3. The court of appeals agreed with the district
court that the inmates have a liberty interest in their
applications for release on parole, but it based this
decision on the particular aspects of Nebraska law
* Respondents also challenged the State’s work release pro-
cedures, but this portion of the suit was dismissed for failure
to join an essential defendant. Pet. App. 26-27.
11
creating the entitlement (Pet. App. 4-14). The court
held that “Neb. Rev. Stat. § 83-1,114 provides the in-
mates with a justifiable expectation rooted in state
law that they will be conditionally released if they
meet the statutory standards” (id. at 13).°
* Portions of the court’s opinion appear to agree with the
district court that all prisoners have a liberty interest in their
desire to be released on parole, regardless of the provisions
of state law. See, eg., Pet. App. 6 (“[t]he nature of the
interest at stake in both parole release and parole revocation
is the same—conditional liberty versus incarceration—and
thus the Fourteenth Amendment applies to both”). But other
portions of the court’s opinion expressly place reliance on
the provisions of state law. See, e.g., the passage quoted in the
text and Pet. App. 7 (Nebraska law “provides that a prisoner
eligible for parole is to be released on parole unless he is
found to be unfit for one of the reasons listed in the statute.
Thus, the Board’s decision of whether to grant parole necessi-
tates a factual determination’’), id. at 9 (“[t]he inmates’ in-
terest in this case is the right to be considered for parole, a
right created by Nebraska law’’).
In a more recent decision the court held that Missouri law,
which does not contain a presumption in favor of release but
which sets out rudimentary criteria for parole officials to con-
sider, also creates a liberty interest. The court stated that the
Nebraska and Missouri statutes both “create a justifiable
expectation rooted in state law that if the statutory criteria
are satisfied the inmate will be released on parole.” Williams
v. Missouri Board of Probation and Parole, No. 78-1136 (8th
Cir. Oct. 27, 1978), slip op. 5. The court concluded that this
“justifiable expectation” is a liberty interest, and that the Due
Process Clause therefore applies. In extending the coverage
of the Clause to a parole system that does not contain a pre-
sumption in favor of release—or indeed any criteria that will
call for release—the court in Williams overruled sub silentio
two earlier decisions. See Kelsey v. Minnesota, 565 F.2d 508,
506-507 n.3 (8th Cir. 1977) (“[iJf a parole board refuses to
grant parole, [an] inmate has suffered no deprivation’’) ;
Barnes V. United States, 445 F.2d 260 (8th Cir. 1971).
12
The court of appeals then addressed the question
of what process is due. The court concluded that the
prisoner’s interest in being released is substantial
(Pet. App. 15). The Board’s interest in avoiding
cumbersome procedures, the court thought, also is
important, but it believed that additional procedures
would not be detrimental to the Board’s operations
because the Board, like the prisoner, has an interest
“in seeing that parole is neither granted nor denied
on the basis of inaccurate information or an errone-
ous evaluation” (ibid.).
The court held that the Board must give each pris-
oner a formal parole hearing when he first becomes
eligible for parole, but that it need not hold addi-
tional hearings if it denies parole at the first eligi-
bility (Pet. App. 16-17). The Constitution also re-
quires formal notice, at least 72 hours in advance, of
the “date and hour for * * * the hearing” (id. at 17),
so that the prisoner may have a “fair opportunity to
prepare for his appearance before the Board” (id. at
18). The court held that this notice “must be accom-
panied by a listing of the criteria governing the
Board’s * * * decisions,” because such notice “is only
fair” (ibid.). The statutory criteria themselves give
sufficient notice, the court reasoned, so that this con-
stitutional requirement means only that the Board
must provide each inmate with a copy of the statute
(ibid.).
The court next held that “[s]ubject to prison se-
curity considerations an inmate must be allowed to
appear in person before the Board and to present
13
documentary evidence” (Pet. App. 19). The right to
make a presentation would not be effective, the court
reasoned, unless the prisoner could appear in person.
But, it went on, “in the absence of exceptional cir-
cumstances the prisoner does not have a constitutional
right to call witnesses in his behalf” (ibid.). The
court suggested that the Board exercise its discretion
to permit the calling of witnesses (id. at 20).
The court held that a tape recording of the hearing
is sufficient to satisfy the constitutional requirement
that a record of the proceedings be kept, so long as
the recording is of sufficient quality to permit written
transcription (Pet. App. 20).
Finally, the court concluded, the Board must give
the prisoner a written statement of reasons if it
denies parole (Pet. App. 20). This statement need
not include detailed findings of fact, the court stated,
but must inform the prisoner of the “essential facts
relied on by the Board in reaching its decision” (id.
at 21). The court reasoned that this constitutional
requirement facilitates judicial review of parole deci-
sions, induces the Board to think about its decisions,
promotes the goal of rehabilitation by informing the
prisoners how they can improve their chance of re-
lease, and promotes the development of a body of
administrative precedent (id. at 21-22).
The district court had rejected respondents’ argu-
ment that the Due Process Clause requires the pres-
ence of counsel and an opportunity to confront and
cross-examine adverse witnesses (Pet. App. 38 n.8).
Because respondents did not cross-appeal from the
14
district court’s decision, the court of appeals had no
occasion to consider whether the Constitution requires
these procedures.
INTRODUCTION AND SUMMARY OF ARGUMENT
Parole release decisions are of great importance to
each prisoner, and it is concomitantly important that
such decisions be made only after studied deliberation
and hearings that minimize the chance that the de-
cisions will be based on misapprehensions of fact or
mistaken judgment. For that reason, the federal
Parole Commission provides hearings calculated to
solicit the views of prisoners and to keep them in-
formed of the standards by which decisions will be
made and the reasons for the decision in their par-
ticular cases. The court of appeals, seeking to im-
prove the quality of parole release decisions in the
states, has required Nebraska’s Board of Parole to
follow procedures similar to those of the Commission.
But the question here is not whether more elaborate
procedures would be wise, but rather whether the task
of defining and implementing the government’s policy
with regard to parole proceedings is vested by the
Constitution in the legislative and executive branches,
or rather in the courts under the Due Process Clause.
That hearings, access to evidence, detailed statements
of reasons and other formal procedures may improve
the comprehensiveness and accuracy of a _ parole
board’s fact-gathering and decision-making functions
does not answer this question, for there is no abstract
constitutional right to be free of procedures that en-
——
15
tail significant risks of error. Due process rights are
implicated only when liberty or property is at stake.
Legislatures and administrators, as well as courts,
are sensitive to the legitimate needs and desires of
prison inmates. Congress recently enacted the Parole
Commission and Reorganization Act, which affords
prisoners many rights. Congress believed that its
action struck a fair balance between the legitimate
interests of the inmate and the needs of society for
protection and deterrence. See S. Conf. Rep. No.
94-648, 94th Cong., 2d Sess. 20-28 (1976). Nebraska
also affords each prisoner a personal interview, but
its procedures differ in other respects from those
used by federal authorities. As we learn more about
the results of the procedures now in use, or as ideas
concerning the role of prisons in our society evolve,
still other procedures may come to appear desirable.
The United States believes that the choice of pro-
cedures usually is constitutionally within the province
of the legislature and the executive, which have the
better opportunity to study the procedures in use and
to evaluate their merits and demerits. If, however,
a legislative elects to create a legitimate claim of
entitlement to parole, then parole procedures become
subject to judicial scrutiny. In our view Nebraska,
but not the United States, has made such a choice,
by creating for eligible inmates a statutory entitle-
ment to early release.
Over the past several decades society’s views with
regard to crime and the purposes of imprisonment
have undergone considerable change; ideas concerning
16
the proper role of parole, and the proper procedures
to use in considering parole, have changed with them.’
We do not yet know which parole release process is
best; indeed, social science research is barely adequate
to enable us to frame the pertinent questions.’ The
7 Punishment and retribution once were viewed as the
major justifications of imprisonment, but society adopted re-
habilitation and then deterrence as substitute rationales. See
United States v. Grayson, No. 76-1572 (June 26, 1978), slip
op. 4-10; Williams v. New York, 337 U.S. 241 (1949) ; F. Zim-
ring & G. Hawkins, Deterrence (1973). Many scholars have
subjected all of these rationales—and the penalty of imprison-
ment itself—to scrutiny. The emerging consensus appears
to concentrate on deterrence and “desert” as justifications for
punishment and suggests that fines and determinate sentences
are the best punishments. See generally H. L. A. Hart, Punish-
ment and Responsibility 1-27, 158-237 (1969) ; N. Morris, The
Future of Imprisonment (1974) ; H. Packer, The Limits of the
Criminal Sanction 17-102 (1968) ; E. van den Haag, Punishing
Criminals (1975); A. von Hirsch, Doing Justice (1976) ;
J. Wilson, Thinking About Crime (1975). See also K. Elzinga
& W. Breit, The Antitrust Penalties 97-138 (1976) ; R. Posner,
Economic Analysis of Law 164-172 (2d ed. 1977).
Dean Morris suggests that presumptive release dates be set
early during an offender’s imprisonment and that the release
dates not depend on the offender’s institutional behavior. The
Parole Commission’s experimental practices are based on
Dean Morris’s analysis, and, under this system, little purpose
is served by detailed adversarial hearings. Von Hirsch sug-
gests that parole be abolished or converted into a system that
is almost automatic; if this system is adopted there would
be little point in holding release hearings. See A. von Hirsch,
Abolish Parole? (1978).
® Compare D. Stanley, Prisoners Among Us: The Problem of
Parole (1976) (surveying the practices of federal and state
parole systems and recommending the abolition of parole),
with Project, Parole Release Decision-making and the Sen-
tencing Process, 84 Yale L.J. 810 (1975) (assessing release
decisions under the federal parole release guidelines).
17
needed knowledge can be acquired, if at all, only by a
painstaking process of experimentation, change, trial,
and error, similar to that in which the federal Parole
Commission is engaged. Perceptions of the role of
imprisonment and of the objectives it can and should
accomplish can be expected to continue to change. So
will ideas about the proper place of parole and the
proper way to go about deciding when to grant parole.
Decisions on these and similar questions are best left
to society at large and to the representatives they
elect, unless the Constitution requires otherwise in
this case.
I
A. The court of appeals’ requirement of more
elaborate parole procedures was based on the Due
Process Clause of the Fourteenth Amendment. But
that Clause applies only where governmental action
threatens to deprive an individual of “liberty” or
“property.” Thus the evaluation of the case must
begin with an inquiry into whether the denial of
parole deprives respondents of a constitutionally
protected liberty or property interest.
B. Denial of parole does not deprive a prisoner of
liberty. He was lawfully deprived of his liberty on
conviction, sentence, and incarceration—all processes
that are surrounded by elaborate constitutional safe-
guards. The denial of parole simply continues the
prisoner’s incarceration for a period within the term
already constitutionally imposed.
Certainly a prisoner is interested in securing his
release on parole. But a prisoner’s desire to obtain
18
his freedom from confinement is not, without more,
constitutionally cognizable as a “liberty” interest.
The values that underlie the analysis of claims of
“liberty” interests in non-prisoner cases do not, by
and large, pertain to persons lawfully confined. See
Meachum v. Fano, 427 U.S. 215 (1976). A prisoner’s
legally protected interests relating to release are
founded not on constitutional concepts of liberty but
on the statutes, regulations, and rules that govern the
terms of his confinement. Apart from concerns under
the Cruel and Unusual Punishment Clause of the
Eighth Amendment, a prisoner has no protected
liberty interest unless those statutes, regulations, and
rules create legitimate claims of entitlement.
This Court’s decisions make clear that a legitimate
claim of entitlement warranting the procedural pro-
tections of due process exists only when the state has
bound itself to take, or refrain from taking, specified
actions on the basis of determinable facts or specific
findings. See Moody v. Daggett, 429 U.S. 78 (1976) ;
Meachum v. Fano, supra. As Mr. Justice White noted
in his concurring and dissenting opinion in Arnett v.
Kennedy, 416 U.S. 134, 181 (1974):
Where Executive discretion is not limited,
there is no need for a hearing. In the latter event,
where the statute has provided * * * no condi-
tions at all, * * * no hearing is required.
It is likewise clear that a legitimate claim of entitle-
ment arises only from substantive law and not from
any person’s unilateral expectation.
19
C. Nebraska law provides that an inmate “shall
be released” on parole at the expiration of a minimum
term, reduced by good time credits, unless the Board
of Parole finds the existence of one or more of four
factors spelled out in the statute. This statutory pre-
sumption in favor of release limits the Board’s dis-
cretion and gives the prisoner a legitimate claim of
entitlement to be released, subject to defeasance only
if the Board satisfies the statutory criteria. Under
the analysis of six Justices in Arnett v. Kennedy,
supra, a statutory presumption of this sort creates
a “property” interest protected by the Due Process
Clause. Accordingly, although we submit that most
parole systems, including the federal system, involve
neither liberty nor property, and thus are not subject
to the procedural requirements of the Due Process
Clause, we conclude that Nebraska’s unusual system
creates such an interest.
II
Once a court has concluded that a governmental
decision may deprive a person of liberty or property,
it must decide what process is due. Because respond-
ents did not appeal from the portion of the district
court’s decision that was adverse to them, the Court
need not decide in this case whether the Constitution
requires the elaborate procedures specified by the
Court in Morrissey v. Brewer, 408 U.S. 471 (1972),
for the revocation of parole or whether, instead, the
appropriate procedures should be modeled on those
that the Court selected in Wolff v. McDonnell, 418
20
U.S. 539 (1974), and Baxter v. Palmigiano, 425 U.S.
308 (1976), for use when hearings held within prison
walls may affect the length of confinement.
The court of appeals here has required procedures
that are quite similar to those of Wolff and Baxter.
We therefore believe that its judgment should be af-
firmed in most respects. But the court exceeded con-
stitutional requirements in ordering state officials to
hold oral hearings in every case at the first possible
opportunity. In some cases it will be clear from
written files that the prisoners have no hope of being
paroled; in such cases there is no need for an oral
hearing. Moreover, although this Court often has
held that the Due Process Clause requires a simple
statement of reasons, it never has held that the Clause
requires administrative officials to summarize the evi-
dence that supports their decisions. In these two
respects, therefore, the decision of the court of appeals
should be reversed.
ARGUMENT
I
THE PROCEDURAL PROTECTIONS OF THE DUE
PROCESS CLAUSE APPLY TO PAROLE RELEASE
DECISIONS ONLY IF THE PAROLE STATUTE CRE-
ATES AN ENTITLEMENT TO EARLY RELEASE
Parole is a statutory creation. The rules under
which an inmate is entitled to be considered for parole
are designed by each state and, for federal inmates,
by Congress. A state could design a parole system
21
under which the parole decision is committed to the
unfettered discretion of the parole authorities. The
use of such a discretionary system of parole, although
it might create in inmates an expectation of early
release, would not create legitimate claim of entitle-
ment to release. The United States and most of the
states employ such a discretionary system. See 28
C.F.R. 2.18.
But a state also could design a parole system under
which every prisoner becomes entitled to early release
unless state officials can establish some good reason
for denying release. Nebraska has such a system.
The State’s statute provides that every prisoner
eligible for parole shall be released unless the Board
finds that one of the statutory criteria sufficient to
deny release has been established. Because Nebraska’s
inmates have a justifiable expectation of early release
grounded in state law, the Due Process Clause re-
quires that they be provided with certain procedural
protections before the State can act to disappoint the
statutory expectation.
A. The Procedural Protections of the Due Process Clause
Apply Only to Proceedings That may Result in the
Deprivation of a Person’s “Liberty” or “Property”
The procedural protections of the Due Process
Clause do not extend to all situations in which govern-
mental action or inaction may be adverse to the in-
terests of a particular person or group. By its terms,
the Clause applies only in those circumstances in
which governmental action threatens to deprive a
22
person of “liberty” or “property.” ° Accordingly, this
Court, in evaluating claims of right to procedural
due process, has been careful to identify the nature
of the interests at stake. The Court explained in
Meachum v. Fano, 427 U.S. 215 (1976), that the
range of interests properly characterized as liberty
or property is finite and that, particularly when
prisoners are involved (id. at 215; emphasis in
original) :
To hold that any substantial deprivation imposed
by prison authorities triggers the procedural
protections of the Due Process Clause would
subject to judicial review a wide spectrum of
discretionary actions that traditionally have been
the business of prison administrators rather than
of the federal courts.
See also Moody v. Daggett, 429 U.S. 78, 88 n.9
(1976).
Perhaps the paradigm case is Board of Regents v.
Roth, 408 U.S. 564 (1972). Roth had been hired for
an academic year by Wisconsin State University; the
University declined to renew his contract, and Roth
brought suit, claiming that he was entitled to notice
of charges and a hearing on the nonrenewal. The
Court agreed with Roth that he possessed an “in-
terest” in continued employment, in the sense that
termination of employment is a “grievous loss.” But
that fact, the Court held, was not determinative of
® We need not discuss here the special situation in which
the governmental action threatens to deprive a person of his
life. See generally Gardner v. Florida, 480 U.S. 349 (1977).
23
the due process question (408 U.S. at 570-571; em-
phasis in original) :
[T]o determine whether due process require-
ments apply in the first place, we must look not
to the “weight” but to the nature of the interest
at stake. * * * We must look to see if the interest
is within the Fourteenth Amendment’s protection
of liberty and property.
The Court then determined that Roth’s interest in
continued employment—his desire to obtain a renewal
of his contract—was neither a “liberty” nor a “prop-
erty” interest, and therefore that he could be deprived
of that interest without due process.
The Roth decision illustrates that a showing of
“grievous loss” may be a necessary condition for the
invocation of due process safeguards, but it is not a
sufficient one. Thus, although a prisoner’s “interest”
in being released on parole is substantial, it cannot
be dispositive of the due process claim in this case.
To the contrary, the evaluation of any due process
claim must begin with an inquiry into whether the
interest of which the person may be deprived is a
liberty or property interest. See Smith v. Organiza-
tion of Foster Families, 431 U.S. 816, 838-841 (opin-
ion of the Court), 856-864 (Stewart, J., concurring)
(1977) ; Meachum v. Fano, supra; Goss v. Lopez, 419
U.S. 565, 572-576 (1975). We turn to that inquiry.
24
B. Except to the Extent That he may Have a Legitimate
Claim of Entitlement Grounded in the Statutes, Regu-
lations, or Rules Governing the Terms of his Con-
finement, a Prisoner has no Liberty or Property In-
terest in Being Released on Parole
It may at first blush appear paradoxical to assert
that a prisoner has no “liberty” interest in being re-
leased from confinement on parole. The most ele-
mentary form of liberty, freedom from the state’s
physical control, is at stake in the parole decision.
But the threshold question under the Constitution is
whether an adverse parole decision “deprives” the
prisoner of liberty he possesses or to which he is en-
titled. The answer, we believe, is that it does not.
Meachum v. Fano, supra, demonstrates that,
“given a valid conviction, the criminal defendant has
been constitutionally deprived of his liberty” (427
U.S. at 224). “Lawful incarceration brings about
the necessary withdrawal or limitation of many
privileges and rights, a retraction justified by the
considerations underlying our penal system.” Price v.
Johnston, 334 U.S. 266, 285 (1948). See also Jones v.
North Carolina Prisoners’ Labor Union, Inc., 433
U.S. 119 (1977). A prisoner loses his “liberty”? when
he is lawfully placed in the state’s custody, and his
interest in freedom from confinement is not revived
until he is released.”
1° This is not to say that a prisoner retains no constitu-
tionally cognizable liberty interests. Cf. Procunier v. Mar-
tinez, 416 U.S. 396 (1974) ; Wolff v. McDonnell, 418 U.S. 539,
555-556 (1974).
;
25
This consideration distinguishes the denial of parole
from its revocation. A prisoner’s generalized liberty
interest in freedom has been extinguished for the
lawful term of confinement. Parole, once granted,
revives that interest. At a parole revocation proceed-
ing, the parolee attempts to defend his liberty, albeit
conditional, against those who would take it from
him; “execution of the [parole violator’s] warrant
and custody under that warrant [are] the operative
events triggering any loss of liberty attendant upon
parole revocation. This is a functional designation,
for the loss of liberty * * * does not occur until the
parolee is taken into custody under the warrant.”
Moody v. Daggett, supra, 429 U.S. at 87. See also
Morrissey v. Brewer, 408 U.S. 471, 480-482 (1972);
Gagnon v. Scarpelli, 411 U.S. 778 (1973). A prisoner
seeking parole, however, has no generalized “liberty”
interest in the parole board’s decision, for he is not
at liberty and does not stand to lose any liberty as a
result of that decision. In short, the fact that a
prisoner’s freedom may be affected does not, in and of
itself, mean that a constitutionally protected liberty
interest is at issue.
Wolff v. McDonnell, 418 U.S. 539 (1974), supports
this analysis. The question in Wolff was whether the
protections of due process extend to prison discipli-
nary proceedings that may result in the reduction of
a prisoner’s statutory good-time credits. This Court
held that the protections of due process do apply to
such proceedings. But the Court’s decision did not
turn on the mere fact that a reduction in good-time
26
credits might affect the timing of the prisoner’s re-
lease; the Court did not conclude that the prospect of
release from prison is constitutionally protected lib-
erty. Instead, the Court focused narrowly on the
nature and source of the prisoner’s interest in the
retention of his accumulated good-time credits. Be-
cause that interest was created by statute, and by
statute could be extinguished only “[i]n cases of
flagrant or serious misconduct” (418 U.S. at 546),
the Court determined that “the prisoner’s interest has
real substance and is sufficiently embraced within
Fourteenth Amendment ‘liberty’ to entitle him to
those minimum procedures appropriate under the cir-
cumstances and required by the Due Process Clause to
insure that the state-created right is not arbitrarily
abrogated” (418 U.S. at 557).
This approach makes the existence of a liberty
interest turn on the difference between personal ex-
pectation and statutory entitlement. It has been con-
firmed by recent cases. Meachwm v. Fano, supra, held
that a prisoner has no right to a hearing concerning
his transfer to a prison the conditions of which are
substantially less favorable to him. Because state law
“conferred no right on the prisoner to remain in the
prison to which he was initially assigned, defeasible
only upon proof of specific acts of misconduct[,] * * *
[t]he predicate for invoking the protection of the
Fourteenth Amendment * * * [was] totally non-
existent” (427 U.S. at 226-227). Similarly, in Smith
v. Organization of Foster Families, supra, the Court
rejected the district court’s conclusion that the magni-
27
tude of a person’s interest is sufficient to require
procedural protections, pointing out that the existence
of even a very important interest “does not, in and
of itself, implicate the due process guarantee” (431
U.S. at 840). The Court has “rejected the notion
that every state action carrying adverse consequences
for prison inmates automatically activates a due proc-
ess right” (Moody v. Daggett, supra, 429 U.S. at
88 n.9).
Meachum, Moody and Wolff recognize that the
generalized interest in personal freedom from re-
straint is part of “liberty” only for the general popu-
lation and not, in the main, for persons lawfully
confined. A prisoner’s interests relating to release
are based not on constitutional concepts of liberty but
on the statutes, regulations, and rules that govern
the terms of his confinement. Except to the extent
that those statutes, regulations, and rules create a
legitimate claim of entitlement to release, a prisoner
has no liberty or property interest in obtaining an
early release from confinement to which the pro-
cedural protections of due process could pertain. Ac-
cordingly, although a prisoner’s interests in release
from confinement may for purposes of convenience
be called “liberty” interests, they are simply entitle-
ments created by positive law.’ Once a prisoner has
11 Indeed, this may also be true with respect to a parolee’s
interest in retaining his freedom. In Morrissey v. Brewer,
supra, a case that purportedly turned on the parolee’s “‘lib-
erty” interest, the right of which the parolee would be
deprived by wrongful revocation was in fact a statutorily
created “property” interest—the entitlement to remain at
28
been released on parole, he has a legitimate claim of
entitlement—created by positive law—not to be re-
imprisoned unless he violates the terms and condi-
tions of his release. A prisoner seeking release in the
first instance has such an interest only if the state
creates it.
In short, whatever the scope of Fourteenth Amend-
ment “liberty” interests may be in other cases, a
prisoner’s interest relating to release from confine-
ment, to be constitutionally entitled to the procedural
protections of due process, must rest on a legitimate
claim of entitlement grounded in the statutes, regu-
lations, or rules governing the terms of his confine-
ment. Thus the analysis to be applied here must be
similar to that employed by this Court in decisions
involving the assertion of property interests.
Those decisions make it clear that a property in-
terest arises only when the condition limiting the
Executive’s freedom of action exists in substantive
law and not merely in the hopes or expectations of
the person. This Court in Roth explicitly rejected
the argument that a property interest could arise
merely from the individual’s need, desire, or expecta-
tion (408 U.S. at 577):
To have a property interest in a benefit, a person
clearly must have more than an abstract need
or desire for it. He must have more than a
unilateral expectation of it. He must, instead,
have a legitimate claim of entitlement to it.
large unless and until it was demonstrated that he had vio-
lated the terms of his parole. See Moody v. Daggett, supra,
which analyzed impending parole revocations in these terms.
29°
See also Smith v. Organization of Foster Families,
supra, 431 U.S. at 860 (Stewart, J., concurring) ;
Meachum v. Fano, supra, 427 U.S. at 228.
A legitimate claim of entitlement exists only when
the state has bound itself, either by statute, regu-
lation, rule, or well-settled course of practice, to take,
or refrain from taking, specified actions on the basis
of determinable facts or specific findings. So, for
example, in Morrissey v. Brewer, supra, the parolee
had a statutory right to remain free unless he vio-
lated the terms of his parole; in Goss v. Lopez, supra,
the student had a statutory right to attend school
unless he was guilty of misconduct; in Arnett v. Ken-
nedy, 416 U.S. 184 (1974), the employee could be
terminated only for cause; in Perry v. Sindermann,
408 U.S. 593 (1972), the teacher asserted a well-
settled practice of reemployment absent “sufficient
cause.” * Where the state has bound itself to extend
or confer a benefit, or withhold a sanction, on the
determination of a particular set of facts, the Due
Process Clause requires the implementation of pro-
cedures designed to ensure that those findings will be
12 See also Memphis Light, Gas & Water Division v. Craft,
436 U.S. 1, 9-12 (1978) (receipt of water is a property in-
terest because statute guarantees service as long as bill is
paid) Dizon v. Love, 431 U.S. 105, 112-118 (1977) (driver’s
license is a property interest because it could be revoked only
for cause) ; Ingraham Vv. Wright, 430 U.S. 651, 672-674 (1977)
(a student has a liberty interest in his bodily integrity) ;
Mathews Vv. Eldridge, 424 U.S. 319, 332 (1976) (a person has
a property interest in disability benefits because his entitle-
ment turns on specific facts) ; Richardson v. Perales, 402 U.S.
389, 401-402 (1971) (same).
30
made fairly and accurately. That is why the Court
held in Morrissey that the Due Process Clause applies
to revocations of parole, which turn on a finding of
violation of the terms of release.
On the other hand, where the state has not set up
rules that make particular decisions turn on particu-
lar findings, there can be no legitimate claim of
entitlement. In Meachum v. Fano, for example, the
state had discretion to transfer the prisoner without
regard to his misconduct, and no set of facts he could
prove would entitle him to remain at the place of
original incarceration. In Board of Regents v. Roth,
the University had discretion not to reemploy the
teacher, and no set of facts he could prove would
entitle him to stay on the job. When there is no
statutory presumption and no determinable set of
facts that could give rise to an entitlement, the pro-
cess of determining the facts cannot result in the
deprivation of any entitlement; in such circumstances,
the procedural protections of due process are not
implicated. As Mr. Justice White noted in his con-
curring and dissenting opinion in Arnett v. Kennedy,
supra, 416 U.S. at 181:
Where Executive discretion is not limited,
there is no need for a hearing. In the latter
event, where the statute has provided * * * no
conditions at all, * * * no hearing is required.
We turn, therefore, to an application of these
principles to the facts of this case.
31
C. Nebraska Law Gives Prisoners Eligible for Parole a
Legitimate Claim of Entitlement to Release
Application of the test we have outlined above to
the parole procedures of most states, and of the
United States, leads to the conclusion that prisoners
have no legitimate claim of entitlement to release, and
that the Due Process Clause therefore does not apply.
We have taken that position with respect to the parole
systems of North Carolina,” Kentucky,“ New York,”
and the United States. We adhere to that position.
Under most systems of parole consideration, the de-
cision to postpone further parole consideration for a
particular period of time depends on a “discretionary
assessment of a multiplicity of imponderables, entail-
ing primarily what a man is and what he may become
rather than simply what he has done.” Kadish, The
Advocate and the Expert—Counsel in the Peno-
Correctional Process, 45 Minn. L. Rev. 8038, 813
(1961). Parole may be granted or denied “for a
variety of reasons [that] often involve no more than
informed predictions as to what would best serve
[penological purposes] or the safety and welfare of
the inmate.” Meachum v. Fano, supra, 427 U.S. at
225.
13 Brief for the United States as amicus curiae in Weinstein
v. Bradford, 423 U.S. 147 (1975).
14 Brief for the United States as amicus curiae in Scott v.
Kentucky Parole Board, 429 U.S. 60 (1976).
15 Brief for the United States as amicus curiae in New York
State Parole Board v. Coralluzzo, cert. dismissed as impro-
vidently granted, 435 U.S. 912 (1978).
16 Jd, at 31 n.15.
32
Unless a parole system sets up 4 presumption in
favor of release or specifies particular facts that
govern the release decision, the parole system could
not involve a legitimate claim of entitlement to re-
lease. So long as the system of release is funda-
mentally an exercise of informed discretion, no fact
or set of facts that a prisoner could prove would
establish an entitlement to have parole authorities
place trust in his character or believe that the in-
terests of society require his release.” Because the
17 The federal Parole Commission’s guidelines articulate
some objective criteria that influence release decisions. These
guidelines do not, however, diminish the Commission’s dis-
cretion or give any prisoner a legitimate claim of entitlement
to release. They indicate a convenient point of reference, a
“normal” range of release times, but the Commission is free
at any time, and for any constitutionally permissible reason,
to depart from these ranges. See 28 C.F.R. 2.18 (“[t]he
granting of parole to an eligible prisoner rests in the discre-
tion of the United States Parole Commission’’) ; 28 C.F.R.
2.20(c) (the “time ranges are merely guidelines. Where the
circumstances warrant, decisions outside of the guidelines
(either above or below) may be rendered’).
Because the Parole Commission has not made the exercise
of its discretion turn on the presence or absence of deter-
minable facts, a federal prisoner has no legitimate claim of
entitlement to release. A more difficult problem arises with
respect to a contention by a prisoner that he should be re-
leased no later than the maximum time set by the guidelines
for cases similar to his. Congress has provided in 18 U.S.C.
4206(c) that the Commission may deny release notwithstand-
ing the guidelines “if it determines that there is good cause
for so doing * * *.” That “good cause” requirement, like the
requirement of Arnett v. Kennedy, supra, may give the pris-
oner some claim of entitlement to release, subject to defeas-
ance only for good cause. But, because the Commission retains
33
parole decision usually is not controlled by any par-
ticular controvertible facts, prisoners usually have no
liberty or property interest in being granted parole at
any particular time.”
substantial discretion to determine “good cause,” and because
“good cause” itself may involve subjective judgments that
are not capable of proof or disproof, it may be that the prison-
er’s only entitlement is to thorough consideration and a state-
ment of reasons, rather than to release. If the prisoner’s
entitlement is so viewed, the Due Process Clause would not
necessarily apply.
The federal parole system does, however, create one clear
liberty or property interest. 18 U.S.C. 4206(d) establishes a
presumption in favor of release after a prisoner has served
two-thirds of his sentence, or 30 years’ imprisonment, which-
ever is less. This operates much like Nebraska’s system, and
it creates a legitimate claim of entitlement for the reasons
discussed in the text.
*® The courts of appeals are divided on the question whether
the Due Process Clause applies to the processing of applica-
tions for parole. The Third, Fifth, Sixth, Ninth and Tenth
Circuits hold that it does not. See Mosley v. Ashby, 459 F.2d
477 (3d Cir. 1972); Madden v. New Jersey State Parole
Board, 438 F.2d 1189 (8d Cir. 1971) ; Cruz v. Skelton, 548
F.2d 86 (5th Cir. 1976) ; Brown v. Lundgren, 528 F.2d 1050
(5th Cir.), cert. denied, 429 U.S. 917 (1976); Scarpa Vv.
United States Board of Parole, 477 F.2d 278 (5th Cir.) (en
banc), vacated as moot, 414 U.S. 809 (1978); Scott v. Ken-
tucky 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) ; Walker v. Hughes, supra;
Dorado v. Kerr, 454 F.2d 892 (9th Cir. 1972) ; Schawartzberg
v. United States Board of Parole, 399 F.2d 297 (10th Cir.
1968). But cf. Hill v. Attorney General of the United tSates,
550 F.2d 901 (3d Cir. 1977) (by discussing the constitutional
adequacy of reasons given for denial of parole, the court
implies that the Due Process Clause applies).
[Footnote continued on page 34]
34
Nebraska law, however, follows a_ different
pattern. The pertinent statute (Neb. Rev. Stat.
§ 83-1,111(1) (1976)) provides that every prisoner
shall have a release hearing “within sixty days before
the expiration of his minimum term less any reduc-
tions.” Neb. Rev. Stat. § 83-1,114(1) (1976), then
18 [Continued]
The Second, Fourth, Seventh and District of Columbia
Circuits, on the other hand, have held that the expectation of
parole release always is a form of liberty that cannot be de-
nied without procedural protections. Each court has reached
this conclusion by a process that indicates that the details of
a particular parole program are irrelevant; each court con-
siders the prospect of personal freedom after parole, by itself,
to be the “liberty” interest involved. See United States ex rel.
Johnson Vv. Chairman, New York State Board of Parole, 500
F.2d 925 (2d Cir. 1974), vacated as moot, 419 U.S. 1015
(1975); Coralluzzo v. New York State Parole Board, 566
F.2d 875 (2d Cir. 1977), cert. dismissed as improvidently
granted, 485 U.S. 912 (1978); Bradford v. Weinstein, 519
F.2d 728 (4th Cir. 1974), vacated as moot, 423 U.S. 147
(1975) ; Franklin v. Shields, 569 F.2d 784 (4th Cir. 1977) (en
banc), cert. denied, 485 U.S. 1003 (1978) ; 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).
A closely related question is whether the setting of a tenta-
tive release date establishes a “liberty” interest so that hear-
ings are required before the date can be altered. Compare
Sexton v. Wise, 494 F.2d 1176 (5th Cir. 1974), and McIntosh
v. Woodward, 514 F.2d 95 (5th Cir. 1975) (no liberty interest
until actual release), with Drayton v. McCall, No. 78-2030
(2d Cir. Oct. 2, 1978), and Robinson v. Benson, 570 F.2d 920
(10th Cir. 1978) (setting of tentative release date creates
a liberty interest). The Solicitor General is considering
whether to authorize the filing of a petition for a writ of
certiorari in Drayton.
35
provides that “[w]henever the Board of Parole con-
siders the release of a committed offender who is eligi-
ble for release on parole, it shall order his release un-
less it is of the opinion that his release should be
deferred because [of one of several enumerated possi-
bilities].” These two statutes, read together, give
every Nebraska prisoner a legitimate claim of entitle-
ment to release on parole, subject to defeasance only if
the parole authorities find one of a limited number of
things.
This presumption in favor of release—missing from
the federal parole statute and from most other state
statutes—operates much like the system of good-time
credits at issue in Wolff v. McDonnell, supra. The
State statute creating good-time credits gave every
inmate an entitlement to early release; the entitle-
ment could be withdrawn only on the occurrence of
specified circumstances (usually misconduct). The
Court held that this system of entitlements was a
form of liberty or property (418 U.S. at 546).
Under Nebraska law the system of good-time
credits and the system of parole differ in the nature
of the findings that are sufficient to withhold early
release. Only serious misconduct justifies withdraw-
ing good-time credits; a number of more diffuse and
discretionary criteria may be invoked to deny early
release on parole. Petitioners argue that this differ-
ence prevents a conclusion that the statutory pre-
sumption in favor of parole creates a legitimate claim
of entitlement. Cf. Meachum v. Fano, supra, 427
U.S. at 226-227.
36
But Meachum involved essentially unbridled dis-
cretion; the Court held that the Due Process Clause
did not apply to transfers from one prison to another
because there was no rule giving a prisoner an entitle-
ment to reside in any particular prison. Here, how-
ever, there is a statutory presumption in favor of
parole; administrative discretion is not unbridled.
The Nebraska parole statute is quite similar to the
federal statute involved in Arnett v. Kennedy, supra,
and in Arnett six Justices concluded that the statute
had created a property interest.
Arnett involved federal employment. The govern-
ing statute provided that a person who had com-
pleted a probationary term of employment had an
expectation that he would continue to be employed.
He could be fired or suspended “only for such cause
as will promote the efficiency of the service.” 5 U.S.C.
7501. Although this requirement of “good cause” is
surely vague, and calls for discretionary decisions,
the Court held that, when coupled with the statutory
presumption in favor of continued employment, the
statute set up a property interest that could be termi-
nated only in accord with procedures established by
the Due Process Clause. See 416 U.S. at 165-166
(opinion of Powell, J.), 177-186 (opinion of White,
J.), 207-211 (Marshall, J., dissenting). Here, as in
Wolff and Arnett, a statute has created an expectation
that the state may not disappoint without following
procedures required by the Due Process Clause.”
1” Although we have argued above that other statutes, with-
out the presumption in favor of release found in Nebraska’s
37
statute, do not create a legitimate claim of entitlement to
release, we do not argue that no constitutionally protected
interest is involved in the federal parole process and the
process of these other states. Under federal law, and the law
of most states, an inmate has a right to be considered for
parole at a particular time. The government may not refuse
to consider a prisoner for parole, or change the date of eligi-
bility for consideration, without due process. But this case
does not involve a contention that any person, otherwise eli-
gible for parole, was denied consideration.
It bears repeating, however, that the fact that state law
requires consideration of a person for parole does not, stand-
ing alone, require the use of any particular procedures on
that consideration. Unless the right to be considered entails
a legitimate claim of entitlement to a particular outcome
contingent on particular facts, there is no liberty or property
interest. (In Meachum v. Fano, supra, for example, state
regulations gave every inmate transferred from one prison
to another a right to a rudimentary hearing. The Court held,
however, that the Constitution did not require any particular
procedures to be used during the hearing, because the ultimate
decision to transfer depended entirely on the discretion of
prison officials.)
If our constitutional analysis is correct, Nebraska may
avoid any constitutional procedural requirements by amend-
ing its statutes to eliminate the presumption in favor of
release. Respondents may argue that the state should not be
allowed this option. They may contend, as the prisoners in
recent parole cases have contended, that parole has become
an accepted feature of our prisons, and that prisoners acquire
a legitimate expectation of release because most prisoners are
released sometime before the ends of their terms. Because
eventual parole is the rule rather than the exception, the argu-
ment would run, the prisoner’s expectation has real substance.
But the same argument was rejected in Roth; there, too,
most teachers were rehired. It was rejected again in Mea-
chum; few prisoners were sent to more secure prisons unless
they misbehaved in some way, but the Court held that this
did not give any prisoner a legitimate claim to avoid his own
transfer. The problem with the argument based on the ob-
servation that parole (or retention on the job) is common
38
i
THE DUE PROCESS CLAUSE REQUIRES NEBRAS-
KA PAROLE OFFICIALS TO GIVE PRISONERS A
FAIR OPPORTUNITY TO BE CONSIDERED FOR
PAROLE
If, as we have argued above, the Due Process
Clause applies to parole release proceedings in
Nebraska, then the Court must decide what process
is due. It need not, however, essay a definite reso-
lution to that question. Nebraska already employs
certain procedures, including (in many cases) per-
sonal hearings that are tape-recorded, and it gives
statements of reasons when it denies release (see page
7, supra). There is no need for the Court to con-
sider whether the Constitution requires the State to
follow these procedures. On the other hand, the dis-
trict court rejected several of respondents’ original
contentions and held, for example, that the Consti-
tution does not require the attendance of counsel and
cross-examination of witnesses at the hearings (Pet.
App. 38 n.8). Because respondents did not appeal
from this adverse determination, these questions are
is that it does not explain how the fact that most teachers are
rehired, that most prisoners stay where they are, and that
most prisoners eventually are paroled can be converted into a
legitimate claim of entitlement for this teacher to be rehired
or for this prisoner to be paroled. That conversion couid be
accomplished only through a set of rules of general applica-
bility establishing substantive release criteria binding on the
decision maker. The United States does not have such a set
of criteria; Nebraska does, but could change or abolish them.
39
no longer in the case. Petitioners apparently seek
review of only two aspects of the court of appeals’
procedural holding: that contend that the parole
authorities need not grant a personal hearing at the
first possible opportunity in every case and that the
statement of reasons for denial need not summarize
the facts on which the Board relied (Pet. 10-12).
If, as respondents may contend, parole officials
should use, in giving initial consideration to parole
release, the same procedures established by Morrissey
v. Brewer, supra, for parole revocation, then the
judgment of the court of appeals should be affirmed
in all respects. We believe, however, that the Morris-
sey procedures should not be applied to parole release.
Three things set the revocation of parole apart from
applications for the grant of parole, and they call for
different procedures.
First, those who seek release on parole are prison-
ers. The hearings are held within prison walls. Con-
sequently, all of the considerations identified by the
Court in Wolff v. McDonnell, supra, and Baxter v.
Palmigiano, 425 U.S. 308 (1976), are in play here.
The calling of witnesses, the use of counsel, the con-
frontation of persons giving adverse evidence, all may
undermine the relationship between prisoner and
jailer that is essential to successful management of
what may be a tense and hostile environment. Some-
times hearings may set the stage for violence. The
Court held in Wolff and Baxter that, in light of these
and other considerations, prison disciplinary hearings
need not involve counsel, confrontation, or live wit-
40
nesses, even though the hearings might lead to de-
cisions that would affect the length of confinement.
The same principles apply here.
Second, parole is revoked only because of identi-
fiable misconduct. A revocation hearing involves
“charges,” and the parolee must have an opportunity
to meet those charges. Applications for release on
parole, to the contrary, do not involve charges of
misconduct. There is no clearly defined question that
is to be proved or disproved. The vague criteria in
the Nebraska statute (see pages 7-8, supra), may call
for simply a discretionary assessment of non-verifi-
able beliefs. A denial of parole cannot be “erroneous”
in the same sense that the revocation of parole could
be. Because the release decision does not turn on
particular facts, it is not well suited to trial-type
procedures. The paroling decision comes much closer
to the judicial decision concerning the length of
sentence to be imposed in the first instance. The
sentencing decision traditionally has been made after
informal inquiries rather than a trial-type hearing.
See generally United States v. Grayson, No. 76-1572
(June 26, 1978); Gardner v. Florida, 430 U.S. 349
(1977). It is difficult to see why the Constitution
would require for parole decisions procedures more
elaborate than it requires for sentencing decisions.
Third, because the procedural requirements of the
Due Process Clause depend on a careful balancing of
the relevant interests (see Mathews v. Eldridge, 424
U.S. 319, 335 (1976)), it is significant that a
prisoner who applies for parole is seeking liberty,
41
rather than trying to avert its loss. A parolee whose
freedom is withdrawn is bound to feel the loss much
more acutely than will a prisoner who simply is
turned down in his request to be released. As the
Court put it in Morrissey, supra, 408 U.S. at 482 n.8,
“i]t is not sophistic to attach greater importance
to a person’s justifiable reliance in maintaining his
conditional freedom so long as he abides by the con-
ditions of his release, than to his mere anticipation
or hope of freedom.’ ”
We therefore submit that Morrissey is not an apt
model of the procedures to be used in considering
applications for parole. The court of appeals also
reached this conclusion; it selected Wolff as a model,
apparently because Wolff involved a decision (the
revocation of accumulated good-time credits) that
would affect the length of imprisonment. The court
of appeals apparently concluded that the paroling
decision is no less important and should be accom-
panied by procedures equally likely to avert unwise
or uninformed decisions.
There is much to be said for that view. As we have
discussed above, the federal Parole Commission uses
procedures that in many respects are more elaborate
than those spelled out in Wolff. But we submit that
the second consideration that distinguishes this case
from Morrissey (see page 40, supra) also distin-
guishes it from Wolff. An application for release on
parole does not involve charges of misconduct. The
questions that influence the release decision are not
susceptible of objective proof in most instances. For
42
example, the question whether a prisoner’s “release
would depreciate the seriousness of his crime or pro-
mote disrespect for [the] law” (Neb. Rev. Stat.
§ 83-1,114(1) (b) (1976) ) cannot be proved by evi-
dence. It is a question similar to that asked by a judge
at sentencing, and it should be resolved by the same
procedures that are used at sentencing.” We there-
fore agree with petitioners that the court of appeals
erred in identifying the nature of the requirements
that the Due Process Clause requires to be followed
in considering applications for parole in Nebraska.
The court’s requirement of an oral hearing, in every
case, on the first occasion of parole eligibility will
require at least some hearings that serve no sig-
nificant purpose. Parole authorities usually can
identify at least some cases in which hearings would
be pointless; cases in which prisoners have committed
additional crimes while in prison, or in which they
have received unusually short sentences for serious
crimes, would be among those in which release at the
earliest possible opportunity is so unlikely that a
hearing could be nothing but an empty formality.”
20 Cf. Board of Curators v. Horowitz, 485 U.S. 78 (1978)
(although the Due Process Clause applies to the academic dis-
missal of a medical student, it does not require the use of any
particular procedures in light of the subjective nature of the
inquiry that is made by the faculty).
21 The question whether a prisoner had committed a crime
or disciplinary infraction in prison may already have been
the subject of a criminal trial or a Wolff hearing. Parole au-
thorities would not be required to hear the evidence anew.
Morrissey, supra, 408 U.S. at 490 (“[o]bviously a parolee
cannot relitigate issues determined against him in other
forums”’).
43
The Due Process Clause does not require the state to
conduct a charade in these cases, and it therefore
should be accorded the opportunity to follow some
more flexible procedure.”
Nebraska reviews the file of each prisoner yearly to
determine the likelihood of parole release. Whenever
there is a significant chance of release, the State holds a
formal hearing at which the inmate is entitled to be
present and present evidence. The prisoner appar-
ently can contribute written materials to the file
review. This system, if fairly administered, is a
constitutionally permissible screening device that
holds to a minimum the number of unnecessary oral
hearings. A prisoner who has been identified, on the
22 The federal courts that have found a constitutionally
protected interest in the parole release process generally have
held that informal procedures are sufficient to satisfy the
requirements of the Due Process Clause. See, e.g., Franklin
v. Shields, supra, 569 F. 2d at 801 (“the only explicit con-
stitutional requisite is that the Board furnish to the prisoner
a statement of its reasons for denial of parole’) ; Garcia v.
Board of Parole, 557 F.2d 100 (7th Cir. 1977) (general
statement of reasons relying on the severity of the offense is
an adequate explanation for denial of parole) ; Williams V.
Ward, 556 F.2d 1143 (2d Cir.), pet. for cert. dismissed, 434
U.S. 944 (1977) (no general need for parole authorities to dis-
close evidence) ; Hill v. Attorney General of the United States,
supra (general explanation of the Parole Commission’s salient
factor scores and guideline system is sufficient); Ganz V.
Bensinger, 480 F.2d 88 (7th Cir. 1973) (no need to provide
a lawyer at public expense). But see Drayton v. McCall, supra
(recission of a parole date before release requires all pro-
cedures identified in Wolff plus pre-hearing disclosure of evi-
dence, a right to call witnesses, cross-examination of all wit-
nesses, and a right to counsel).
44
basis of a file review, as an unlikely candidate for
parole does not lose much, if anything, by being
denied an oral hearing. There seems to be little
chance of an “erroneous” deprivation; the circum-
stances that call for postponing an oral hearing (e.g.,
the commission of serious offenses while in prison or
the receipt of an unusually low sentence, so that
parole eligibility comes too soon for serious considera-
tion to be given to release) are objective and capable
of accurate resolution in written proceedings.” Cf.
Richardson v. Perales, 402 U.S. 389, 407 (1971);
Mathews v. Eldridge, supra, 424 U.S. at 344. It may
be that a very few persons, although identified by writ-
ten proceedings as unlikely to be paroled, nevertheless
could use an oral hearing to persuade parole authori-
ties to grant early release, but this possibility does not
require that an oral hearing be held in every case.
“{P]rocedural due process rules are shaped by the
risk of error inherent in the truth finding process as
applied to the generality of cases, not the rare ex-
ceptions.” Mathews v. Eldridge, supra, 424 U.S. at
344,
*8 Indeed, as the Court observed in Moody v. Daggett, supra,
429 U.S. at 89, a prisoner may have much to gain by de-
ferring his consideration for parole. Forcing parole authori-
ties to hold hearings at the earliest possible date—as the
court of appeals has done—could “deprive the parole au-
thority of vital information” and lead to a decision that
“would often be foreordained” (ibid.).
** If a prisoner should contend that evidence would be lost
during a delay, he could make the argument initially in writ-
ing, and a hearing then might become appropriate. See
Moody V. Daggett, supra, 429 U.S. at 88 n.9.
45
We also believe that the court of appeals has re-
quired too much in the statement of reasons for
denying parole. We have no quarrel with the proposi-
tion (Pet. App. 21) that a full statement of reasons
and a summary of the evidence relied on may relieve
“frustration” on the part of some inmates, but that
relief is not a necessary part of due process. Judges
need not state reasons when imposing sentence,” and
although the lack of a summary of evidence to ac-
company a statement of reasons may be frustrating,
it is not unconstitutional.
We acknowledge that a requirement of a statement
of reasons has become an accepted part of due process
safeguards. See, e.g., Wolff v. McDonnell, supra, 418
U.S. at 564-565. But the court of appeals’ expansion
of that requirement into a constitutional compulsion
of a summary of the evidence in a case like this one
is unsupported. Because many of the criteria that
lead to a denial of parole are subjective assessments
of the prisoner’s personality and of the crime he com-
mitted, there may be little or no “evidence” in the
traditional sense. Or it may be that parole authorities
follow guidelines indicating an expected range of time
to be served for particular offense and offender combi-
nations; in that event the only “evidence” that would
explain a decision to deny parole before the guideline
range would be that nothing in the prisoner’s case
25 See, e.g., Dorszynski v. United States, 418 U.S. 424
(1974).
46
was out of the ordinary.’ In still other cases the
parole authorities may rely on evidence from confi-
dential sources; so long as this reliance is permissible,
the Constitution does not require the evidence to be
summarized. It is enough that the evidence can be
found in the record. Cf. Arizona v. Washington, 434
U.S. 497, 516-517 (1978) (state trial judge need not
summarize the considerations that led him to declare
a mistrial, so long as the record as a whole discloses
the basis for the decision).
Perhaps the court of appeals’ requirement of a
summary of the evidence means no more than that
parole authorities must indicate the sort of considera-
tions that influenced their decision; we would not
object to such a reading of the Due Process Clause.
But if the requirement means more than that, it
exceeds the requirements of the Constitution.”
26 See Garcia v. Board of Parole, supra; Hill v. Attorney
General, supra.
27 The court of appeals gave three reasons—in addition to
its reference to “frustration,” which is discussed in the text—
for its requirement of a statement of reasons and a summary
of the evidence. It asserted that this requirement would
assist in judicial review, compel members of the board to
think about each case, and allow the development of a body
of precedent. Pet. App. 21-22. None of these reasons with-
stands scrutiny.
The court of appeals’ statement that reasons and a sum-
mary of evidence will assist “judicial review in those situa-
tions where it is allowed” may amount to an assertion that
such review is “allowed” in the federal courts. That would be
incorrect. Cf. Bishop v. Wood, 426 U.S. 341, 349-350 (1976)
(no judicial review of state decisions for mere error). If the
court was referring, instead, to review in the state courts,
47
CONCLUSION
The judgment of the court of appeals should be
vacated, and the case should be remanded for further
proceedings consistent with the opinion of this Court.
Respectfully submitted.
WADE H. McCREE, JR.
Solicitor General
PHILIP B. HEYMANN
Assistant Attorney General
FRANK H. EASTERBROOK
Deputy Solicitor General
WILLIAM G. OTIS
ANDREW S. GORDON
NOVEMBER 1978 Attorneys
then there is no reason for the imposition of the requirement.
State courts are competent to determine what is necessary for
their own review; the Constitution does not compel state
courts to have records more complete than those courts believe
is necessary. The court’s second reason—that a statement of
reasons will compel board members to think—is based on the
unsupported proposition that they now do not think. At all
events, this reason would pertain only to a requirement of a
statement of reasons; it would not compel a summary of the
evidence. The court’s final reason—that reasons contribute
to the establishment of a body of precedent—rests on the un-
articulated premise that the Constitution requires the estab-
lishment of a body of rrecedent. We know of no support for
such a premise; certainly federal judges routinely announce
sentences without resort to a body of precedent on that sub-
ject. Once more, however, even on its own terms the court of
appeals’ analysis supports only a requirement of a statement
of reasons, not a requirement of a summary of the evidence.
3X ov. 8. GOVERNMENT PRINTING OFFICE; 1978 277857 195
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