Reply Brief — Patuxent Institution Board of Review v. Hancock

No.

In THE

_ Supreme Court of the Anited States

OcTOBER TERM, 1993

PATUXENT INSTITUTION BOARD OF REVIEW,

Petitioner,

Vv. Pte

CLARENCE J. HANCOCK, as

‘ On Petition for Writ of Certiorari to the |

: Court of Appeals of Maryland =

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TABLE OF CONTENTS

i Ms ee eee ee ee 1

THIS CASE PRESENTS THE

SUBSTANTIAL QUESTION OF

WHETHER A LIBERTY INTEREST IN

PAROLE RELEASE CAN EVER BE

CREATED SOLELY BY THE ACTS OF

ree as ee re l

THIS CASE PRESENTS THE

SIGNIFICANT ISSUE OF FIRST

IMPRESSION OF WHAT NOTICE IS

REQUIRED WHEN REVOKING THE

PAROLE OF A PRISONER IN A

MENTAL HEALTH FACILITY ....... 7

ae et eee rey Tees eee ee TT 10

TABLE OF AUTHORITIES

Page

Cases

Addington v. Texas, 441 U.S. 418 (1979) ...... 8

Biser v. Town of Bel Air,

991 F.2d 100 (4th Cir. 1993) .......... 4

Board of Pardons v. Allen,

482 U.S. SOP ET) oc ke cee eewwen 3

Byrant v. State, 848 F.2d 492

te | rere rr re” 4

Connecticut Board of Pardons v.

Dumschat, 452 U.S. 458 (1981) ....... 3,4

Greenholtz v. Inmates of the Nebraska

Penal and Correctional Complex,

Ok MT. ee eer 3

Hewitt v. Helms, 459 U.S. 460 (1983) ...:.... 3

Ingrassia v. Purkett, 985 F.2d 987,

ee a Se. 6a ek pate ee ae ee 4

Inmates of Orient Correctional

Institute v. Ohio State Adult

Parole Authority, 929 F.2d

ane Ge ee ee se ss 2 4 ae 4

Jago v. Van Curen,

Tee Ss SS EPO) os s 4k wR 2,3,4,5

Johnson v. Pennsylvania Board of

Probation and Parole, 532 A.2d

oe Er 4

aon | Dept. of Corrections v.

ompson, 490 U.S. 454 (1989) ....... 3

Morrissey v. Brewer,

Ee 5,6,7

Olim v. Wakinekona,

ee 3

Winters v. Solem, 444 N.W.2d 722,

ak ke hee es ew 4

Wolff v. McDonnell,

I EDD fo tt tc ce 3

S Provisi

Maryland Annotated Code, Art. 31B

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No. 92-1933

October Term, 1992

IN THE

SUPREME COURT OF THE UNITED STATES

PATUXENT INSTITUTION BOARD OF REVIEW,

Petitioner,

v.

CLARENCE J. HANCOCK,

Respondent.

On Petition for Writ of Certiorari to the

Court of Appeals of Maryland

REPLY TO BRIEF IN OPPOSITION

REPLY ARGUMENT

i. THIS CASE PRESENTS THE

SUBSTANTIAL QUESTION OF

WHETHER A LIBERTY INTEREST

IN PAROLE RELEASE CAN EVER BE

CREATED SOLELY BY THE ACTS

OF STATE OFFICIALS.

Respondent’s Brief in Opposition ("Br.") confirms

that the decision of the Court of Appeals of Maryland is

in conflict with Jago v. Van Curen, 454 U.S. 14 (1981),

because respondent does not dispute that the actions of

State officials form the sole basis of the lower court’s

holding that respondent has a constitutionally-protected

liberty interest in parole. The State’s actions in this case

are indistinguishable from the conduct that this Court in

Jago held did not give rise to a liberty interest. Review

is warranted to decide whether conduct alone can ever

establish such a constitutional right and whether this

Court’s per curiam decision in Jago requires reversing

the Court of Appeals’ holding that the State’s actions

here “created . . . a liberty interest in parole release."

(App. at 58a.)

In asserting that “[uJnder the Patuxent statute, Mr.

Hancock’s Order of Parole created a protected liberty

interest in retaining parole," Br. at 5-6 (citation

omitted), respondent begs the first issue that petitioner

asks this Court to review because the Court of Appeals

2

engaged in no analysis of that statute. Despite this

Court’s repeated emphasis that pertinent State law must

be scrutinized in determining whether a prisoner has a

liberty interest entitled to due process protection, see

Kentucky Dept. of Corrections v, Thompson, 490 U.S.

454 (1989); Board of Pardons v, Allen, 482 U.S. 369

(1987); Olim_v. Wakinekona, 461 U.S. 238 (1983);

Hewitt v. Helms, 459 U.S. 460 (1983); Jago v. Van

Curen, 454 U.S. 14; Connecticut Board of Pardons v,

Dumschat, 452 U.S. 458 (1981); Greenholtz v. Inmates

of the Nebraska Penal and Correctional Complex, 442

U.S. 1 (1979); Wolff v. McDonnell, 418 U.S. 539

(1974), the Court of Appeals conducted no analysis of

"the language of the relevant statutes and regulations."

Kentucky Dept. of Corrections v, Thompson, 490 U.S.

at 461.

The lower court instead confined its constitutional

inquiry to the actions of State officials in granting

3

respondent parole. Jago and the decisions of other

courts make clear that those actions, by themselves, do

not create a liberty interest. See Bryant v. State, 848

F.2d 492 (4th Cir. 1988); Ingrassia v. Purkett, 985 F.2d

987, 988 (8th Cir. 1993); Inmates of Orient Correctional

Institute v, Ohio State Adult Parole Authority, 929 F.2d

233, 235-238 (6th Cir. 1991); Winters v. Solem, 444

N.W.2d 722 (S.D. 1989). See also Johnson v.

Pennsylvania Board of Probation and Parole, 532 A.2d

50, 52 (Pa.Cmwilth. 1987).

Neither that State conduct, nor the Court of Appeals’

determination that petitioner was estopped from asserting

respondent was ineligible for parole, provides any basis

for the court’s holding that respondent had a

constitutional entitlement in parole release. See

Connecticut Board of Pardons vy. Dumschat, 452 U.S. at

465. See also Biser v, Town of Bel Air, 991 F.2d 100,

104 (4th Cir. 1993) ("A subsequent order by a court of

4

equity estopping a municipality from relying on its legal

right does not represent a legitimate claim of

entitlement.").

Respondent asserts that Jago is _ factually

distinguishable from this case and that Morrissey v.

Brewer, 408 U.S. 471 (1972), "governs the process due

Mr. Hancock." Br. at 5. But Morrissey addressed a

parolee’s interest "in his continued liberty" and involved

the very different scenario where "[t]he parolee hafd]

been released from prison... ." 408 U.S. at 482

(emphases added). Respondent does not dispute that

simultaneously with being served with an Order of

Parole, the Patuxent Institution Board of Review served

him with a parole revocation warrant (App. 14a-15a),

with the result that, as one of the courts below explicitly

found, he was "never on parole" because his parole was

"revoked before he was released. . . ." (App. at 108a,

llla.) See also (App. at 131a) (circuit court opinion)

5

(stating that respondent “has not been on parole

physically").

Moreover, the Court of Appeals found no need to

even rely on Morrissey, finding instead that the State’s

decision to parole respondent “may not, without

complying with due process, be rescinded based on new

information discovered before physical release has

actually occurred." (App. at 6la) (emphasis added).

Thus, the court found that respondent had a liberty

interest in parole not because he physically had been

released from incarceration as was the parolee in

Morrissey, but solely because the State provided him

with an Order of Parole. This Court should review this

case and decide whether such a constitutional right can

arise out of that State conduct.

ll. THIS CASE PRESENTS THE

SIGNIFICANT ISSUE OF FIRST

IMPRESSION OF WHAT NOTICE IS

REQUIRED WHEN REVOKING THE

PAROLE OF A PRISONER IN A

MENTAL HEALTH FACILITY, _

Review is also warranted because the constitutional

standard that the Court of Appeals applied seriously

impairs the State’s authority to revoke the parole of an

inmate who no longer responds favorably to mental

health treatment and who is deemed to pose a threat to

the safety of the community. The Court of Appeals held

the State may not constitutionally revoke the parole of

such an inmate in the absence of criminal behavior or

"the institutional equivalent of criminal conduct" (App.

at 68a-69a), unless the inmate is explicitly notified in

advance of the precise circumstances that could lead to

the loss of liberty. This issue has not been addressed

by this Court either in Morrissey or any other case, and

yet is one that affects the use of parole as a therapeutic

technique by all governmental institutions that treat

mentally ill inmates.

Respondent concedes that the notice component of

~~ the due process clause requires only that “individuals be

given fair warning of those acts that may lead to a loss

of liberty." Br. at 13 (citation omitted). Respondent

received at least as much notice as that which is

constitutionally due in an involuntary civil commitment

proceeding, where an individual may lose his or her

liberty indefinitely as long as that person is mentally ill

and poses a danger to himself and others. See

Addington v, Texas, 441 U.S. 418 (1979). Indeed, the

governing statute explicitly warned respondent that early

parole required that he remain an "eligible person" who

is “likely to respond favorably to the programs and

services provided at Patuxent" and whose release “will

not impose an unreasonable risk on society." Md. Ann.

Code Art. 31B, §§ 11(b)(2), 1(g) (1957, 1990 Repl.

8

Vol.).

Furthermore, the statute governing his tenure at

Patuxent was not the only source of fair warning; in its

decision revoking his parole, Patuxent noted that it

issued “numerous directives regarding his conduct,"

cautioned him a number of times regarding the need to

satisfactorily participate in treatment, and provided him -

with "[t]reatment plans detailing specific areas of

concern." (App. at 118a.) This Court should resolve

the question of whether due process requires more of the

State in order to revoke the paroie of a mentally ill

inmate.