Petitioners Brief — Connecticut Bd. of Pardons v. Dumschat

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No. 79-1997}

Sucrene Court, US,

FILED

NOV 29 1980

MICHAEL RODAK. JR CLERK

IN THE ae

Supreme Court of the United States

OCTOBER TERM. 1979

CONNECTICUT BOARD OF PARDONS. Et Al

Petitioners

ws

Davip DUMSCHAT

Respondent

JAMES BROWN. STANLEY CZAJA and

JAMES SHELTON

Intervening Respondents

CONNECTICUT BOARD OF PARDONS. Et Al

Petitioners

Vv.

JAMES Brown. STANLEY C7ZAJA and

JAMES SHELTON

Respondents

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR PETITIONERS

CARL R. AJELLO

Attorney General

30 Trinity Street

Hartford, Connecticut

STEPHEN J. O'NEILL

Assistant Attorney General

340 Capitol Avenue

Hartford. Connecticut 06106

(203) 566-2832

Counsel for Petitioners

QUESTION PRESENTED FOR REVIEW

Has the practice of the Connecticut Board of Pardons in

reducing the minimum terms of inmates sentenced to life sen-

tences in Connecticut thus accelerating their eligibility to be

considered for release to the community by the Connecticut

Board of Parole given such inmates after serving an as yet

judicially undetermined amount of time, a protected liberty

interest such that the Due Process Clause of the Fourteenth

Amendment to the United States Constitution requires that

such inmates, when they reach this as yet undetermined point

in their sentence, be given written explanations of adverse

decisions by the Board of Pardons?

il

LIST OF PARTIES

This is a class action. The plaintiff class consists of all

inmates currently serving sentences of life imprisonment in the

Connecticut Correctional Institutions at Somers and Enfield

and who have been or will be denied pardons during their

current terms of imprisonment of incarceration by the Connec-

ticut Board of Pardons.

The class consists of all so-called *‘lifers’’ who are serving

what is commonly referred to as a “‘straight life’’ sentence.

This is a life senetence which coniains no court imposed

minimum term. The minimum term of such a sentence is de-

termined according to the formula discussed in footnote | at

page 5, infra. |

There is also a group of inmates serving sentences the

maximum term of which is life and the minimum term of which

as imposed by the sentencing court can be not less than ten (10)

nor more than twenty five (25) years. See Section 53a-35(c) (1)

Connecticut General Statutes. This latter group of inmates are

not parties to this action. These sentencing procedures are the

result of statutory changes which are not applicable to these

plaintiffs or to the class which they represent.

The defendants consist of the members of the Connecticut

Board of Pardons.

SUBJECT INDEX

Question Presented For Review ...........cee0ee

List of Parties uid adraelnna ve ceek webb wee ook eee

BS LEEPER CE CRETET Le PEERS Te en re

SUSCNCINNS oe Ol ie Uc eke aes peewee eee

Constitutional Provision Involved ...............4.

COMSCORE OC C0 CURE: wo oh disci eed ba skew ceeeeaeee

watnsenty OF: ALRROM «ioe cis nctdee rab caneess

Argument

I. The Plaintiffs Do Not Have A Protectible Right To

Fi PUG. cide saa ohe we 6 xk ee eae

II. The Opinion Of The United States Court of Appe-

als For The Second Circuit Is Also In Conflict With

This Court’s Opinion In Schick v. Reed .......

III. The Plaintiffs Do Not Have A Right To Written

Explanations Of Adverse Decisions ...........

CO ic Kao asa CaN bho kK oee ate tine

10

18

20

22

-*

iv

TABLE OF AUTHORITY

CASES CITED: Page

Board of Regents of State Colleges v. Roti, 408 U.S.

564, 92 S.Ct. 2701, 2710, 33 L.Ed.2d 548 .......... 15

Boothe v. Hammock, 605 F.2d 661, (1979) ......... 20

Carrona v. Manson, et al, Civil No. H74-377 (D.Conn.) 6

Connecticut Board of Pardons, et al v. David

EM Mi PEPEISS .ccccccsecccseccvese ie

Dumschat v. Board of Pardons, 462 F.Supp. 509

eS sce peeeesneocceces 2

Dumschat v. Board of Pardons 593 F.2d 165 (2d Cir.

Se uaa scseciccscvecoccceccens 2

Dumschat v. Board of Pardons 432 F.Supp. 1310

eS cash ere cesce eS enccssce 2, 13

Dumschat v. Board of Pardons 618 F.2d 216, (2d Cir.

ELE les ceeded stvecccovccce 1, 8, 10,

12, 17, 20

Fidelity Union Trust Co. v. Field, 311 U.S. 169, 61 S.Ct.

EEE ES Oa 11

Greenholtz v. Inmates of Nebraska Penal Complex, 442

U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) ....... 13, 20

Holmquist v. Manson, 168 Conn. 389, 362 A.2d 971

Oe CLA a eis sb ons sbedincseccescece 5

Holup v. Gates, 544 F.2d 82 (2d. Cir. 1976) cert. denied,

430 U.S. 941, 97 S.Ct. 1571, 51 L.Ed.2d (1977) ..... 4

Inmates of Nebraska Penal and Correctional Complex

v. Greenholtz, 436 F.Supp. 432 (D.Neb. 1976) ......

Meachum vy. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49

he BR GT Ce ae ce eae ray.

Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33

he a ee rr ce reper er yt en eee

Pugliese v. Nelson, 617 F.2d 916, (2d. Cir. 1980) ...

Tayloryv. Robinson, 171 Conn. 691, 372 A.2d 102 (1976)

Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46

Rie SOPOT hida'cd bc des cbuubdacewabees 6 kau

Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41

LRG OOF CAPPED. i die ce¥00 4 ead a namens ook Oesys

STATUTES AND REGULATIONS CITED:

Federal:

Be Rie LIOR Fines heen ehineeiereldiaeedaneas

State:

Conn. General Statutes § 18-26 ...........ecceeees

Conn. General Statutes § 53a-35(c) (1) ........ eee ee

Conn. General Statutes § 54-125 ............c cee

Page

16

14

21

11

ee

No. 79-1997

l

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

CONNECTICUT BOARD OF PARDONS, Et Al

Petitioners

Vv.

DAvID DUMSCHAT

Respondent

JAMES BRowN, STANLEY CZAJA and

JAMES SHELTON

Intervening Respondents

CONNECTICUT BOARD OF PARDONS, Et Al

Petitioners

Vv.

JAMES BROowN, STANLEY CZAJA and

JAMES SHELTON

Respondents

BRIEF FOR PERITIONERS

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Second Circuit is reported in 618 F.2d 216 (1980) and is also

printed at pp. 2a-l6a in the Petitioners’ Appendix to their

Petition For a Writ Of Certiorari.

This opinion and judgment of the Second Circuit were

rendered following the order of the Supreme Court in Con-

necticut Board of Pardons, et alv. David Dumschat, et al, No.

2

78-1533, entered on June 11, 1979 which provided as follows:

‘*The motion of respondents for leave to proceed in forma

pauperis is granted. The petition for a writ of certiorari is

granted. The judgment is vacated and the case is remanded to

the United States Court of Appeals for the Second Circuit for

further consideration in light of Greenholtz v. Inmates,of Ne-

braska Penal Complex, 442 U.S. (1979).”’ See _._—_ : U.S.

, 99 S.Ct. 2854 (1979). See Petitioners’ Appendix to

their Petition For a Writ of Certiorari p. 17a.

The previous opinion of the Second Circuit upon which

this Court’s order of June 11, 1979 was based is reported in 593

F.2d 165 (1979) and appears in the Petitioners’ Appendix to

their Petition for a Writ of Cetiorari at pp. 18a-20a.

The opinion of the District Court for the District of Con-

necticut is reported in 462 F. Supp. 509 (1978) and appears in

the Petitioners’ Appendix to their Petition For a Writ of Cer-

tiorari at pp. 2la-25a. Incorporated in its decision is an earlier

decision from the District Court in Dumschat v. Board of

Pardons, 432 F. Supp. 1310 (D.Conn. 1977).

JURISDICTION

The opinion and judgment of the United States Court of

Appeals For The Second Circuit were rendered on March 20,

1980. The Petition For A Writ Of Certiorari was filed with this

Court on June 18, 1980. The Petition was granted on October

14, 1980. On the same date this Court granted *‘[t]he motion of

the respondents Brown and Czaja for leave to proceed in furma

pauperis. ..”’

This Court’s judisdiction is invoked under 28 U.S.C. Sec.

1254 (1).

3

CONSTITUTIONAL PROVISION INVOLVED

The constitutional provision involved is the Due Process

Clause of the Fourteenth Amendment to the United States

Constitution.

STATEMENT OF THE CASE

In February, 1976, David K. Dumschat instituted an ac-

tion in the District Court for the District of Connecticut claim-

ing in essence, that he had been deprived of a federally pro-

tected right within the purview of 42 U.S.C. 1983 because the

Connecticut Board of Pardons had, on a number of occasions,

denied him a pardon and on no occasion did the Board provide

him with a statement of reasons for this denial. Dumschat’s

claim was that he was entitled to such a statement under the

Due Process Clause of the Fourteenth Amendment of the Con-

stitution of the United States.

At that time, Mr. Dumschat was confined in the Connec-

ticut Correctional Institution, Somers, serving a life sentence

imposed in 1964 for the crime of murder in the second degree.

(See Dumschat v. Connecticut Board of Pardons, 432 F. Supp.

1310, 1311 (D. Conn. 1977).

In that action Judge Blumenfeld concluded that **. . .due

process attaches to the denial of a pardon to an inmate like

Dumschat sentenced to life-imprisonment who has served al-

most two-thirds of his minimum term.’’ Dumschat v. Connec-

ticut Board of Pardons, 432 F. Supp. 1310, 1315n.17(D. Conn. |

1977).

The Court further ‘‘conclude[d] therefore that the four-

teenth amendment requires that the Connecticut Board of Par-

dons furnish plaintiff a written statement of reasons and facts

relied on when he is denied a pardon.”’Dumschat, supra, p.

1315.

4

The authority to pardon which is involved is the authority

of the Connecticut Board of Pardons under Section 18-26,

Connecticut General Statutes, to reduce the minimum term of

an inmate including, of course, an inmate serving a life term,

thereby accelerating the inmate’s eligibility for consideration

for release to the community by the Connecticut Board of

Parole. (See, Dumschat v. Board of Pardons, State of Connec-

ticut, 432 F. Supp. 1310, 1312 (D. Conn. 1977) and the opinion

of the Second Circuit following remand, reported in 618 F.2d

216, 217, footnote 1, Petitioners’ Appendix to their Petition For

A Writ of Certiorari, p. Sa footnote 1).

The Board of Pardons took an appeal to the United States

Court of Appeals for the Second Circuit from that judgment.

On June 16, 1977, Dumschat was given relief by the Board

of Pardons. The parties agreed that this relief rendered the

appeal moot pu:suant to Weinstein v. Bradford, 423 U.S. 147,

96 S.Ct. 347, 46 L.Ed.2d 350 (1975); Holup v. Gates, 544 F.2d

82 (2d Cir. 1976) cert. denied, 430 U.S. 941, 97 S.Ct. 1571, 51

L.Ed.2d 787 (1977). ~

By order of the Court dated January 12, 1978, the case was

remanded to the District Court.

In December, 1977, James Brown, Stanley Czaja and

James Shelton, each of whom are also serving life sentences,

filed an action in the District Court making the same claims as

Dumschat.

As with Dumschat, these three plaintiffs had been denied a

pardon without being given a statement of reasons.

5

Brown is serving a life sentence for murder which was first

imposed in 1967. Absent any reduction in his minimum term '

by the Board of Pardons, he will be eligible for parole in 1987.

(Paragraphs 18-19 of the Complaint, Joint Appendix p. 11).

Czaja is serving a life sentence for murder in the second

degree which was imposed in 1962. Absent any reduction in his

minimum term by the Board of Pardons he will be eligible for

parole in 1982. (Paragraphs 28-29, of the Complaint, Joint Ap-

pendix p. 13).

Shelton is serving a life sentence for murder in the second

degree which was imposed in 1969. Absent any reduction in his

minimum term by the Board of Pardons he would have been

eligible for parole in 1989. (Paragraphs 38-39 of the Complaint,

Joint Appendix, p. 15).

Although it does not appear in the Record, since it occur-

red after the last evidentiary hearing in the District Court,

Shelton’s minimum term was reduced by action of the Board of

Pardons on October 23, 1978.

The defendants moved in the District Court to vacate its

judgment in Dumschat and to dismiss as moot. This motion was

denied.

‘Insofar as these plaintiffs and the class which they represent are

concerned, their parole eligibility is governed by those provisions of

Sec. 54-125, Conn. Gen. Stat. which, at the time these men were

sentenced provided that ‘‘Any person... if sentenced for life, after

having been in confinement under such sentence for not less than

twenty-five years, less such time, not exceeding a total of five years,

as may have been earned under the provisions of section 18-7, may be

allowed to go at large on parole...”

So-called ‘‘lifers’’ such as these plaintiffs, absent relief from the

Board of Pardons must, therefore serve a minimum of twenty years

less ‘‘jail time’’ credit, if applicable, in order to be eligible for parole.

Holmquist v. Manson, 168 Conn. 389, 362 A.2d 971 (1975).

6

The plaintiffs in both actions in the District Court were

represented by the same counsel. The plaintiffs Brown, Czaja

and Shelton filed a Motion to Intervene in Dumschat, to con-

solidate their action with Dumschat, and to have the consoli-

dated action certified as a class action.

All of these motions were granted by Judge Blumenfeld.

An additional evidentiary hearing was held in the District

Court at which the parties agreed and the Court approved that

the record before the Court in Dumschat would be included in

the record in the consolidated actions then before the Court as

well as the record in a previous similar action which became

moot after trial but before decision. Carrona v. John R. Man-

son, et al. (D. Conn.). Civil No. H-74-377.

Judge Blumenfeld reached the same conclusion that he

had reached in his earlier decision in Dumschat and, in addi-

tion, went beyond that earlier decision and held that:

‘*Therefore, because an inmate’s liberty interest is

seriously affected by the pardon procedure, I need

not ‘draw the constitutional line’ in the present ac-

tion.? In a pardon hearing of an inmate sentenced to

life imprisonment, the Due Process Clause protects

the inmate’s interest in obtaining reasons for denial

of pardon irrespective of the time served on his sen-

tence when his pardon application is considered.

‘After hearing the testimony of the present Chair-

man of the Board of Pardons, it appears that the

conditions present at the time of my original decision

2As noted above, Judge Blumenfeld’s previous decision was limited

to persons sentenced to a term of life imprisonment who have served

‘** . . almost two-thirds of [their] minimum term.”

7

on this matter continue to exist without interruption

or change. Therefore, in all respect, I adhere to my

prior decision in this matter and rule that the Connec-

ticut Board of Pardons furnish any member of the

plaintiff class a written statement of reasons and the

facts relied on when he is denied a pardon.”’ (See

Dumschat v. Board of Pardons, 462 F. Supp. 509,

511-12 (D. Conn. 1978), Petitioners’ Appendix to

Petitioners’ Petition For A Writ of Certiorari, p. 25a.

Two judgments were entered in the District Court, one in

Dumschat as consolidated with Brown, Czaja and Shelton as

intervening plaintiffs (District Court Docket No. H-76-102) and

the second in the action brought by Brown, Czaja and Shelton

(District Court Docket No. H-77-657).

Insofar as is pertinent, these judgments provided that ‘‘It

is therefore accordingly ORDERED and ADJUDGED that

Judgment enter and hereby does enter. . . that the Connecticut

Board of Pardons furnish any member of the Plaintiff class

[inmates currently serving sentences of life imprisonment at the

Connecticut Correctional Institution, Somers and the Connec-

ticut Correctional Institution, Enfield] a written statement of

reasons and facts relied upon when such member of the Plain-

tiff class is denied a pardon by the Board.’’ (See Appendix to

Petitioners’ Petition For A Writ Of Certiorari, pp. 26a-27a.)

In a per curiam opinion, the judgments were affirmed by

the United States Court of Appeals for the Second Circuit. That

Court’s opinion is contained in the Appendix to Petitioners’

Petition For A Writ of Certiorari at p. 18a, and is reported in 593

F.2d 165 (2d Cir. 1979).

The Board of Pardons then petitioned this Court for a Writ

of Certiorari. This petition was granted by this Court on June

8

11, 1979 and this Court ordered that ‘‘The judgment is vacated

and the case is remanded to the United States Court of Appeals

for the Second Circuit for further consideration in light of

Greenholtz v. Inmates of Nebraska Penal Complex, 442 U.S.

(1979). —

The Second Circuit requested the parties to file further

briefs with that Court taking into consideration this Court’s

opinion in Greenholtz. The parties filed their respective briefs,

and on March 20, 1980 the Second Circuit entered the following

judgment which is the basis upon which this Petition for a Writ

of Certiorari was filed:

‘‘Upon reconsideration, we affirm our earlier con-

clusions that (1) the consistent issuance of pardons to

inmates serving life sentences in Connecticut has

given them a protected ‘liberty’ interest in the par-

dons process, and (2) the due process rights which

attend this protected interest require that life inmates

receive written explanations of adverse decisions by

the Board of Pardons. We remand to the district

court to determine at what point in an inmate’s in-

carceration the likelihood of his receiving a pardon

becomes sufficiently great to vest him with a pro-

tected ‘liberty’ interest and due process rights.’’ See

Appendix to Petitioners’ Petition For A Writ of Cer-

tiorari, pp. 4a-Sa, Dumschat v. Board of Pardons,

618 F.2d 216, 217.

The Connecticut Board of Pardons Petition for A Writ Of

Certiorari was granted October 14, 1980.

9

SUMMARY OF ARGUMENT

Members of the plaintiff-respondent class do not have

such a legitimate expectation of receiving pardon relief so as to

give them a protectible right in the pardoning process.

Neither the statutory authority under which the Board of

Pardons operates nor the Board’s prior history in granting relief

to lifers warrants the conclusion that a pardon is other than an

act of clemency or mercy which is plenary in character subject

only to the condition that this authority may not be exercised or

withheld for constitutionally impermissable reasons. Such

reasons are not even claimed in this case.

Requiring a written explanation of adverse decisions to

lifers who have served some, as yet undetermined portion of

their sentence, not only does not comport with the rationale of

previous decisions of this Court calling for similar statements

but would seem to encumber, for no good reason, those states

where the authority to pardon is liberally used.

10

ARGUMENT

I. THE PLAINTIFFS DO NOT HAVE A PROTECTIBLE

RIGHT TO A PARDON.

The authority of the Board of Pardons, insofar as is relev-

ant to this action, is provided for in Section 18-26, Conn. Gen.

Stat. In material part this statute provides as follows:

‘*(a) Jurisdiction over the granting of, and the author-

ity to grant, commutations of punishment or re-

leases, conditioned or absolute, in the case of any

person convicted of any offense against the state and

commutations from the penalty of death shall be

vested in the board of pardons.

(b) Said board shall have authority to grant pardons,

conditioned or absolute, for any offense against the

state at any time after the imposition and before or

after the service of any sentence.”’

Upon reconsideration following remand from this Court,

the Court of Appeals correctly concluded that **. . . Connec-

ticut’s pardons statute contains neither a presumption in favor

of pardon nor a list of factors to be considered by the Board of

Pardons. Instead, the statute grants the board unfettered dis-

cretion in the exercise of its power . . . The statute offers only

the ‘mere hope’ of pardon; it does not create the legitimate

expectation of freedom and therefore does not implicate due

process’’ Dumschat, 618 F.2d 216, 219 (Emphasis addeuw).

Further, both the Court of Appeals and the District Court

recognized that the authority of the Board which is involved in

this action, is the authority to reduce the minimum term of an

inmate with the result being that the inmate’s eligibility to be

considered for release to the community by the Connecticut

Board of Parole is accelerated. See Dumschat, 618 F.2d 216,

217, note 1 and Dumschat, 432 F.Supp. 1310, 1312.

The Connecticut Board of Parole is a separate and distinct

agency from the Board of Pardons.

With regard to this paroling authority the Connecticut

Supreme Court has held that:

‘*The sole statute concerning parole, §54-125, simply

provides that an inmate who has served his minimum

sentence ‘may be allowed to go at large on parole in

the discretion of the panel of the board of parole for

the institution in which the person is confined.’ There

is no statutory requirement that the panel actually

consider the eligibility of any inmate for parole, the

statute does not vest an inmate with the right to

demand parole, and there is no statutory provision

which even permits an inmate to apply for parole.”

Taylor v. Robinson, 171 Conn. 691, 697, 372 A.2d 102

(1976).

The interpretation of this statute by ‘‘[t]he highest state

court is the final authority on state law . . .’’ Fidelity Union

Trust Co. v. Field, 311 U.S. 169, 177, 61 S.Ct. 176, 178 (1940).

Even though a lifer in Connecticut can have no statutorily

based expectation of being released on parole or of even being

considered eligible or applying for parole (Taylor v. Robinson,

supra) and despite its conclusion that a lifer applies for a pardon

to a board with ‘‘unfettered discretion’’, the Court of Appeals

held that:

‘*Upon reconsideration, we afirm our earlier conclusions that

(1) the consistent issuance of pardons to inmates serving life

sentences in Connecticut has given them a protected ‘liberty’

interest in the pardons process, and (2) the due process rights

12

which attend this protected interest require that life inmates

receive written explanations of adverse decisions by the Board

of Pardons. We remand to the district court to determine at

what point in an inmate’s incarceration the likelihood of his

receiving a pardon becomes sufficiently great to vest him witha

protected ‘liberty’ interest and due process rights."’ Dumschat,

618, F.2d 216,217.

In so holding, the Court of Appeals accepted the conten-

tion of Connecticut’s life inmates **. . . that they had a legiti-

mate expectation of pardon and release - and due process rights

in a pardon proceeding - by virtue of the regularity with which

the Board of Pardons grants them relief.’’ Dumschat, 618 F.2d

at p. 219.

With regard to this ‘‘legitimate expectation’’ the Court

noted that:

‘*Though the statistical evidence provided below by

State officials was not, as Judge Blumenfeld noted,

‘as extensive as might be desired,’ 432 F.Supp. at

1314, it was sufficient to establish that pardons are

granted to Connecticut’s life inmates with compel-

ling frequency. Bernard Gates, then chairman of the

Board of Parole, testified that more than 75 percent

of Connecticut's ‘lifers’ have their eligibility for

parole accelerated by the Board of Pardons. Ninety

percent of these inmates are then granted parole

within their first year of eligibility, and all are paroled

after no more than a few years’ wait.’” Dumschat,

618 F.2d 216, 219.

The Court of Appeals aslo noted that ‘‘In addition, the

board grants immediate release to a number of other life in-

mates by cummuting their sentences to time served’’.

Dumschat, 618, F.2d 219, 220.

13

The petitioners do not know where that observation is

supported in the record. This was certainly not the finding of

the District Court. The trial court found that **Although the

board has the power to grant absolute pardons to inmates, that

power is never employed. Instead, the board commutes an

inmate’s minimum sentence so as to render him eligible for

parole at an earlier date. For persons sentenced to long impris-

onment terms, particularly ‘lifers’ like plaintiff, accelerated

release may often be a two-step process consisting of a commu-

tation of their minimum sentence by the pardon board and then

a parole from the board of parole.’’ Dumschat, 432 F.Supp.

1310, 1312.

The conclusion that a ‘‘lifer’’ at some point in his sentence,

acquires a ‘‘protectible liberty interest’’ is in conflict with this

Court’s opinion in Greenholtz v. Inmates of Nebraska Penal

and Correctional Complex, 442 U.S. 1, 99 S.Ct., 2100, 60

L.Ed.2d 668 (1979).

In Greenholtz this Court held that:

‘‘The Due Process Clause applies when government action

deprives a person of liberty or property; accordingly, when

there is a claimed denial of due process we have inquired into

the nature of the individual’s claimed interest.

‘[T]o determine whether due process requirements apply

in the first place, we must look not to the ‘‘weight’’ but to

the nature of the interest at stake... .’ Board of Regents v.

Roth, 408 U.S. 564, 570-571, 92 S.Ct. 2701, 2705-2706, 33

L.Ed.2d 548 (1972).

This has meant that to obtain a protectible right

‘a person clearly must have more than an abstract need or

desire for it. He must have more than a unilateral expecta-

14

tion of it. He must, instead, have a legitimate claim of

entitlement to it.’ Id., at 577, 92 S.Ct. at 2709.

‘*There is no constitutional or inherent right of a convicted

person to be conditionally released before the expiration of a

valid sentence. The natural desire of an individual to be re-

leased is indistinguishable from the initial resistance to being

confined. But the conviction, with ail its procedural

safeguards, has extinguished that liberty right: ‘[G]iven a valid

conviction, the criminal defendant has been constitutionally

deprived of his liberty.’ Meachum v. Fano, 427 U.S. 215, 224,

96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1977).”’ (Emphasis added)

442 U.S. at page 7, 99 S.Ct., at pp. 2103-2104.

When one considers the vast discretion vested in the Board

of Pardons, it is impossible to see how a ‘‘lifer’’ can acquire and

hold to ‘‘a legitimate claim of entitlement’’ to a pardon.

The ‘‘lifers’’ expectation of obtaining a pardon is compar-

able to that of a prisoner in remaining at a particular institution.

It is simply **. . . too ephemeral and insubstantial to trigger

procedural due process proctections ...’’ Meachumv. Fano,

427, U.S. 215, 228, 96 S.Ct., 2532, 2540, 49 L.Ed.2d, 451

(1976).

In basing its conclusions upon the history of the Board in

granting pardons to ‘‘lifers’’ such as that history appears in the

record, the Court of Appeals attached constitutional signifi-

cance to percentages not deemed of such importance even by

other panels of the Second Circuit.

In Pugliese v. Nelson, 617 F.2d 916, 923, (2d.Cir. 1980)

another panel of the Court of Appeals considered prior deci-

sions of that Circuit in light of Greenholtz and concluded that:

‘*Equally important for our purposes is the Supreme

Court’s recent holding in Grenholtz, that a lawfully

15

imprisoned convict’s interest in the possibility of

being released on parole prior to expiration of the

term of his sentence does not entitle him to due

process protection, absent the creation of a regula-

tory system giving him a right to claim parole release

upon meeting certain conditions. Prior thereto we

had taken the oppisite view in United States ex rel.

Johnson v. Chairman of New York State Board of

Parole, 500 F.2d 925 (2d Cir. 1974), based mainly on

the fact that the prisoner’s interest in parole, though

only an expectation, was emormous, representing as

it does ‘the difference between incarceration and

conditional liberty’ and that most prisoners-more

than 70%-were in fact customarily released on

parole. In our view, that rendered the interest far

from an ephemeral expectation. In light of

Greenholtz, however, United States ex rel. Johnson

no longer represents the law. Booth v. Hammock,

605 F.2d 661 (2d Cir. 1979).’’ (Emphasis added)

In Board of Regents of State Colleges v. Roth, 408 U.S.

564, 578, 92 S.Ct. 2701, 2710, 33 L.Ed.2d 548 this Court did not

regard the suggestion ‘‘that most teachers hired on a year-to-

year basis by Wisconsin State University—Oshkosh are, in

fact, rehired’ to be of sufficient import to infer the presence of

‘‘a legitimate claim of entitlement’’ to be rehired. (See Roth,

supra. footnote 6.)

With regard to this Court’s opinion in Greenholtz, the Sec-

ond Circuit held that in basing their conclusion on the Board's

history **We find nothing in Greenholtz that precludes this

holding.’’ 618 F.2d at p. 220. In so doing, the Second Circuit

rejected the claim of the petitione:s that Greenholtz does pre-

clude such a holding. (footnote 16)

In Greenholtz, similar statistics were available to this

Court, by virtue of the certified record, for the District Court

16

had included in its decision a table showing numbers of inmates

eligible for discretionary parole and the number who obtained

it. Inmates of Nebraska Penal and Correctional Complex v.

Greenholtz, 436 F.Supp. 430 (1976) table at 439.

Simple calculation shows that among Caucasians, Blacks

and Mexicans eligible for discretionary parole approximately

sixty percent of each group achieved release. Thus, if local

Board practice which resulted in a statistical showing that it

was more likely than not, that one would achieve discretionary

parole were a sufficient basis for a protected liberty interest

then this Court would have so found in Greenholtz.

Instead, this Court found **That the State holds out the

possibility of parole provides no more than a mere hope that the

benefit will be obtained.’’ Greenholtz, supra, 442 U.S. 11, 99

S.Ct., 2105. (Court’s emphasis).

That Connecticut may grant a slightly higher percentage of

reduced terms to lifers through its pardons process than Ne-

braska does discretionary paroles through its parole process is

not constitutionally significant, There is no basis upon which to

draw a constitutional line at seventy-five percent.

In any event, as *‘Judge Henry Friendly cogently noted...

‘[T]here is a human difference between losing what one has and

not getting what one wants.’ Friendly, ‘Some Kind of Hearing’,

123 U.Pa.L.Rev. 1267, 1296, (1975).”’ Greenholtz, supra, 442

U.S. 10, 99 S.Ct., 2105.

The life inmate in Connecticut who is denied a reduction in

his minimum term is not in the situation of losing what he has

but rather in the situation of not getting what he wants.

Even the Court’s rationale for requiring ‘‘written expla-

nations of adverse decisions’’ seems to contradict its conclu-

sion with regard to a ‘‘legitimate expectation.”

17

This rationale is that ‘‘The need to give reasons encour-

ages fair and thoughtful deliberations by the board, thus pro-

tecting against arbitrary and constitutionally impermissable

decisions. Moreover, it promotes consistency, an important

consideration in light of the board’s frequent changes in per-

sonnel.’ [Thirteen different people sat on the five person board

between November 1973 and November 1976.] Finally, it helps

inmates to correct misunderstandings by the board or to re-

medy their own behavioral or other problems which influenced

the board’s denial of relief.’’ Dumschat, supra, 618 F.2d, 221.

It is respectfully claimed that it is simply inconsistent to

say that a lifer, at some point in his sentence, acquires a

constitutionally protected legitimate expectation of relief from

the Board because of the Board’s history in dealing with lifers

and at the same time, justify the constitutional relief given on

the grounds that this relief ‘‘encourages fair and thoughtful

deliberations .. .’’ and that it ‘‘protect{s] against arbitrary and

constitutionally impermissable decisions’’ and that it ‘‘pro-

motes consistancy”’ and that it ‘‘corrects misunc -rstandings.’’

Putting the Board’s statutorily ‘‘unfettered discretion”’

aside, since the Court feels that the administrative process

itself is subject to such defects, and in this regard the petition-

ers do not concede this to be the case, then one has to wonder

how a lifer could have any expectation of favorable action from

a Board whose history of prior decisions upon which that

expectation is premised, has been and presumably will con-

tinue to be so influenced by chance.

18

II, THE OPINION OF THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT IS ALSO IN

CONFLICT WITH THIS COURT’S OPINION IN SCHICK V.

REED.

This conclusion of the Second Circuit of a ‘‘liberty in-

terest’’ is contrary to the opinion of this Court in Schick v.

Reed, 419 U.S. 256, 95 S.Ct. 379, 42 L.Ed.2d 430 (1974).

In Schick this Court dealt with the authority of the Presi-

dent to ‘*. . . have Power to grant Reprieves and Pardons for

Offenses against the United States, except in Case of Im-

peachment.”’ Article 2, Section 2, Clause 1, United States

Constitution.

In Schick this Court characterized one who seeks a pardon

as a‘*... person who petitions for mercy ...’’Schick, supra,

419 U.S. 267, 95 S.Ct. 385 (emphasis added).

In Schick, this Court considered the origins of the Presi-

dent’s pardoning power and observed the following:

‘*At the time of the drafting and adoption of our

Constitution it was considered elementary that the

prerogative of the English crown could be exercised

upon conditions:

‘It seems agreed, That the king may extend his mercy

on what terms he pleases, and consequently may

annex to his pardon any condition that he thinks fit,

whether precedent or subsequent, on the perfor-

mance whereof the validity of the pardon will de-

pend.’ 2 W. Hawkins, Pleas of the Crown 557 (6th ed.

1787).’’ Schick, supra, 419 U.S. 261, 95 S.Ct. 382.

This Court then went on to hold that:

19

‘‘The history of our executive pardoning power re-

veals a consistent pattern of adherence to the English

common law practice.’’ Schick, supra, 419 U.S. 262,

95 S.Ct. 383.

This Court further held that *‘The plain purpose of the

broad power conferred by Section 2, cl. 1, was to allow plenary

authority in the President to ‘forgive’ the convicted person in

part or entirely, to reduce a penalty in terms of a specified

number of years, or to alter it with conditions which are in

themselves constitutionally unobjectionable.’’ Schick, supra,

419 U.S. 266, 95 S.Ct. 385. (Emphasis added).

Thus, since the pardoning power is ‘‘plenary’’ subject only

to the attachment of conditions which are constitutionally un-

objectionable then the denial of a pardon must be ‘‘plentary’”’

subject only to the condition that a denial may not be based

upon constitutionally impermissable reasons. There is no claim

in this case that the denial was based upon constitutionally

impermissable reasons.

If the Connecticut Board of Pardons were required to state

reasons for denying relief, then it would seem inescapable that

the President of the United States in denying pardon relief

would similarly be required to state his reasons. Such a conclu-

sion seems ridiculous on its face.

So long as the Board does not deny a pardon for a consti-

tionally immpermissable reason there is no statement which it

could give which would serve any purpose. It is impossible to

conceive of a situation wherein any court absent the denial of a

pardon because of the applicant's race, religion, etc. would

overrule a Pardon Board decision to deny clemency.

20

Ii. THE PLAINTIFFS DO NOT HAVE A RIGHT TO

WRITTEN EXPLANATIONS OF ADVERSE DECISIONS.

The Court of Appeals concluded, in part that ‘* Nothing in

Greenholtz requires us to overrule Judge Blumenfeld’s deter-

mination regarding the requirements of due process in this

case. In fact, dicta in Greenholtz suggests support for Judge

Blumenfeld’s conclusion’, Dumschat, 618 F.2d at p. 221.

The Court of Appeals then quoted from that portion of this

_ Court's opinion in Greenholtz which stated that **[W)hen

“parole is denied [the board] informs the inmate in what respects

he falls short of qualifying for parole; this affords the process

thatis due under these circumstances.’ Dumschat, 618 F.2d at

p. 222, emphasis supplied by the Court of Appeals.

This statement from Greenholtz, of course, must be read in

the context of this Court’s acceptance of the ‘‘view that the

expectancy of release provided in [the Nebraska statute] is

entitled to some measure of protection.”’ Greenholtz, supra,

411 U.S. at p. 12, 99 S.Ct. at p. 2106.

This ‘‘expectancy of release”’ is precisely what is absent

from Sec. 18-26, Connecticut General Statutes and this ab-

sence was noted by the Court of Appeals as has been discussed

above. Unlike the Nebraska statute in Greenholtz. by no

stretch of the imagination can the Connecticut Statute be con-

strued as providing that the inmate ‘‘shall’’ obtain release

‘‘unless’’ some designated reason is found.

The Second Circuit has itself recognized the pivotal role

which the ‘‘uniqueness’’ of the Nebraska statute played in the

majority opinion in Greenholtz. See Boothe v. Hammock, 605

F.2d 661, 663-664 (1979).

There is simply no basis either in statutory provisions or

administrative practice to find a ‘‘legitimate expectation”’ that

21

a ‘‘lifer’’ in Connecticut ‘‘shall’’ obtain pardon relief unless

some disqualifying condition arises.

Nor is this case similar to other cases wherein this Court

ordered a written explanation from an administrative agency.

See Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.

2d. 484 (1972) wherein such statement was predicated upon the

fact that a parolee enjoys numerous benefits and ‘‘has relied on

at least an implicit promise that parole will be revoked only if he

fails to live up to the parole conditions [and] [iJn many cases...

faces lengthy incarceration if his parole is revoked.”’’ Morris-

sey, supra, 404 U.S. p. 482, 92 S.Ct. 2601 and Wolffv. McDon-

nell, 418 U.S. 539, 94 S.Ct. 2963, 11 L.Ed.2d 935, wherein such

statement was based upon the fact that ‘‘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’’, Wolff,

supra. 418 U.S. p. 557, 94 S.Ct. 2975.

Even if the Connecticut Board of Pardons may be liberal in

the exercise of its authority, its record, such as it appears, can

hardly be interpreted as conveying the message to anyone that

he *‘shall’’ be pardoned or that he can enjoy the certainty of this

act of clemency coming to him unless he disqualifies himself by

his conduct. —

In fact, if one regards the pardoning process as a socially

useful instrument then it is difficult to understand the burden-

ing of this process only because of its liberal use. ©

Certainly the rationale of the Court of Appeals, turning as

it does on the attitudes, philosophies and personalities of board

members would result in the applicability of due process differ-

ing from state to state and even in the same state as membership

changes.

This rationale would seem to require the conclusion that a

written explanation is not required where prior history showed

infrequent use of this authority.

22

CONCLUSION

The judgment of the Court of Appeals should be reversed

and action remanded to the District Court for the entry of

judgment for the petitioners-defendants.

CARL R. AJELLO

Attorney General

30 Trinity Street

Hartford, Connecticut 06106

STEPHEN J. O’ NEILL

Assistant Attorney General

340 Capitol Avenue

Hartford, Connecticut 06106

Tel. (203) 566-2832

CERTIFICATION

This is to certify that on this@3t day of November, 1980,

three copies of Brief For Petitioners and Joint Appendix were

mailed, postage prepaid, to Stephen Wizner, 127 Wall Street,

New Haven, Connecticut, counsel for the Respondents.

STEPHEN J. O’ NEILL

Assistant Attorney General