Lead Opinion
delivered the opinion of the Court.
The question presented is whether respondents have a liberty interest in parole release that is protected under the Due Process Clause of the Fourteenth Amendment.
I — (
Respondents are George Allen and Dale Jacobsen, inmates of the Montana State Prison.
The District Court first acknowledged that the case was controlled by the principles established in this Court’s decision in Greenholtz v. Nebraska Penal Inmates,
The Court of Appeals reversed. It compared the provisions of the Montana statute to those of the Nebraska statute in Greenholtz and found their structure and language virtually indistinguishable:
“The Montana statute, like the Nebraska statute at issue in Greenholtz, uses mandatory language. It states that the Board ‘shall’ release a prisoner on parole when it determines release would not be harmful, unless specified conditions exist that would preclude parole. There is no doubt that it, like the Nebraska provision in Greenholtz, vests great discretion in the Board. Under both statutes the Board must make difficult and highly subjective decisions about risks of releasing inmates. However, the Board may not deny parole under either statute once it determines that harm is not probable.”792 F. 2d 1404 , 1406 (CA9 1986).
The court thus held that respondents had stated a claim upon which relief could be granted, and remanded the case to the District Court for consideration of “the nature of the process which is due [respondents]” and “whether Montana’s present procedures accord that due process.” Id., at 1408.
We granted certiorari,
Greenholtz set forth two major holdings. The Court first held that the presence of a parole system by itself does not give rise to a constitutionally protected liberty interest in parole release.
The Nebraska statute involved in Greenholtz provides as follows:
*374 “Whenever the Board of Parole considers the release of a committed offender who is eligible for release on parole, it shall order his release unless it is of the opinion that his release should be deferred because:
“(a) There is a substantial risk that he will not conform to the conditions of parole;
“(b) His release would depreciate the seriousness of his crime or promote disrespect for law;
“(c) His release would have a substantially adverse effect on institutional discipline; or
“(d) His continued correctional treatment, medical care, or vocational or other training in the facility will substantially enhance his capacity to lead a law-abiding life when released at a later date.” Neb. Rev. Stat. §83-1,114(1) (1981) (emphasis added).
The statute also sets forth a list of 14 factors (including one catchall factor permitting the Nebraska Board to consider other information it deems relevant) that the Board must consider in reaching a decision. §§ 83-1,114(2) (a)-(n).
In deciding that this statute created a constitutionally protected liberty interest, the Court found significant its mandatory language — the use of the word “shall” — and the presumption created — that parole release must be granted unless one of four designated justifications for deferral is found. See Greenholtz,
The Court recognized — indeed highlighted — that parole-release decisions are inherently subjective and predictive, see id., at 12, but nonetheless found that Nebraska inmates
The Court thus held in Greenholtz that the presence of general or broad release criteria — delegating significant discretion to the decisionmaker — did not deprive the prisoner of the liberty interest in parole release created by the Nebraska statute. In essence, the Court made a distinction between two entirely distinct uses of the term discretion. In one sense of the word, an official has discretion when he or she “is simply not bound by standards set by the authority in question.” R. Dworkin, Taking Rights Seriously 32 (1977). In this sense, officials who have been told to parole whomever they wish have discretion. In Greenholtz, the Court determined that a scheme awarding officials this type of discretion does not create a liberty interest in parole release. But the term discretion may instead signify that “an official must use judgment in applying the standards set him [or her] by authority”; in other words, an official has discretion when the standards set by a statutory or regulatory scheme “cannot be applied mechanically.” Dworkin, supra, at 31, 32; see also id., at 69 (“[W]e say that a man has discretion if his duty is
Throughout this litigation, the Board’s arguments have had a single theme: that the holding of the Court of Appeals is inconsistent with our decision in Greenholtz.
“Prisoners eligible for parole. (1) Subject to the following restrictions, the board shall release on parole . . . any person confined in the Montana state prison or the women’s correction center . . . when in its opinion there is reasonable probability that the prisoner can be released without detriment to the prisoner or to the community [.]
“(2) A parole shall be ordered only for the best interests of society and not as an award of clemency or a reduction of sentence or pardon. A prisoner shall be placed on parole only when the board believes that he is able and willing to fulfill the obligations of a law-abiding*377 citizen.” Mont. Code Ann. § 46-23-201 (1985) (emphasis added).7
Significantly, the Montana statute, like the Nebraska statute, uses mandatory language (“shall”)
The legislative history further supports the conclusion that this statute places significant limits on the discretion of the Board. The statute was enacted in 1955, replacing a 1907 statute which had granted absolute discretion to the Board:
“Parole of prisoners in State Prison.— The Governor may recommend and the State Board of Prison Commissioners may parole any inmate of the State Prison, under such reasonable conditions and regulations as may be deemed expedient, and adopted by such state board.” Mont. Rev. Code §9573 (1907).
The new statute made release mandatory upon certain findings and specified its purpose in its title: “An Act Creating a Board of Pardons and Prescribing the Appointment and Composition Thereof, With Power and Duty to Grant Pa
Here, as in Greenholtz, the release decision is “necessarily subjective . . . and predictive,” see
Affirmed.
Notes
Both respondents were released on parole after this suit was filed.
Of the 350 individuals released from prison in Montana in 1985, 276 were conditionally released, the vast majority of them on parole; only 74 persons released had served their full sentences. See U. S. Dept, of Justice, Bureau of Justice Statistics, Prisoners in State and Federal Institutions on December 31, 1985, Table 43 (1985). Only 69 of 363 released in 1984 had discharged their full sentences. See U. S. Dept, of Justice, Bureau of Justice Standards, Prisoners in State and Federal Institutions on December 31, 1984, Table 13 (1984).
There is far more to liberty than interests conferred by language in state statutes. See Hewitt v. Helms,
We proceed, however, to apply the Court’s analysis in Greenholtz, because it too necessitates the conclusion that Montana inmates have a liberty interest in parole release.
Cf. Hewitt v. Helms, supra, at 471-472. In that ease the Court held that Pennsylvania’s administrative segregation statutes and regulations created a protected liberty interest in remaining in the general prison population. The Court relied on the State’s use of “language of an unmistakably mandatory character” and its specification of “substantive predicates” to confinement — “the need for control,” or “the threat of a serious disturbance.”
See also Greenholtz, supra, at 10 (quoting Kadish, The Advocate and the Expert — Counsel in the Peno-Correctional Process, 45 Minn. L. Rev. 803, 813 (1961)) (“The decision turns on a ‘discretionary assessment of a multiplicity of imponderables, entailing primarily what a man is and what he may become rather than simply what he has done’ ”).
See Pet. for Cert. 8 (“Reasons for Granting the Writ[:] The Court of Appeals’ Opinion Clearly Misconstrues Greenholtz”)', Brief for Petitioners 10 (The conclusion that respondents had no protected liberty interest under the Montana statute “is consistent with, and required by, Green-holtz”); id., at 11 (“The Court of Appeals’ opinion deviates from Greenholtz, as well as from related decisions, and must therefore be reversed”); Reply Brief for Petitioners 3, n. 1 (“The parties . . . have not urged abandonment of Greenholtz, but rather have contended that it is consonant with their respective positions”).
This section also provides that
“(a) No convict. . . may be paroled until he has served at least one-half of his full term, . . . except that a convict designated as a nondangerous offender . . . may be paroled after he has served one-quarter of his full term .... Any offender serving a time sentence may be paroled after he has served . . . ITh years.
“(b) No convict serving a life sentence may be paroled until he has served 30 years . . . .” Mont. Code Ann. § 46-23-201 (1985).
Cf. Grifaldo v. State,
The Board argues that this Court is bound by statements of the Montana Supreme Court that parole is a privilege, a matter of grace, not of right. It is true that a State has no duty to establish a parole system or to provide for parole for all categories of convicted persons, see Greenholtz,
The District Court found significant that, while the statute at issue in Greenholtz lists 14 factors that the Nebraska Board is obligated to consider in making the designated findings, the Montana statute “lists no factors required to be considered by the parole board.” App. 17a. In Montana, however, the Board considers these same 14 factors, which are set forth in the Board’s regulations. See Administrative Rules of Montana § 20.25.505 (1980). This Court, and the Courts of Appeals, see n. 10, infra, have recognized the relevance of regulations to a determination of whether a certain scheme gives rise to a liberty interest. See Hewitt v. Helms,
As Justice White has pointed out, the Circuits have split on the question whether the absence of mandatory language creating a presumption of release precludes a finding that a statute or regulation creates a liberty interest. See Anderson v. Winsett,
Courts of Appeals’ decisions since Greenholtz fall into four categories. When statutes or regulatory provisions are phrased in mandatory terms or explicitly create a presumption of release, courts find a liberty interest. See Parker v. Corrothers,
Dissenting Opinion
with whom The Chief Justice and Justice Scalia join, dissenting.
Relying on semantics and ignoring altogether the sweeping discretion granted to the Board of Pardons by Montana law, the Court today concludes that respondents had a legitimate expectation of parole sufficient to give rise to an interest protected by procedural due process. Because I conclude that the discretion accorded the Board of Pardons belies any reasonable claim of entitlement to parole, I respectfully dissent.
In Board of Regents v. Roth,
The Roth decision teaches that a mere expectation of a benefit — even if that expectation is supported by consistent government practice — is not sufficient to create an interest protected by procedural due process. Instead, the statute at issue must create an entitlement to the benefit before procedural due process rights are triggered. In my view, the distinction between an “entitlement” and a mere “expectancy” must necessarily depend on the degree to which the decisionmakers’ discretion is constrained by law. An individual simply has nothing more than a mere hope of receiving a benefit unless the decision to confer that benefit is in a real sense channeled by law. Because the crucial inquiry in determining the creation of a protected interest is whether a statutory entitlement is created, it cannot be sufficient merely to point to the existence of some “standard.” Instead, to give rise to a protected liberty interest, the statute must act to limit meaningfully the discretion of the decision-makers. In the administrative law context we have long recognized that some purported standards “‘are drawn in such broad terms that in a given case there is no law to apply.’” Citizens to Preserve Overton Park v. Volpe,
Under our precedents, an entitlement is created by statute only if “particularized standards or criteria” constrain the
“A prisoner’s behavior may precipitate a transfer; and absent such behavior, perhaps transfer would not take place at all. But, as we have said, Massachusetts prison officials have the discretion to transfer prisoners for any number of reasons. Their discretion is not limited to instances of serious misconduct. As we understand it no legal interest or right of these respondents under Massachusetts law would have been violated by their transfer whether or not their misconduct had been proved in accordance with procedures that might be required by the Due Process Clause in other circumstances. Whatever expectation the prisoner may have in remaining at a particular prison so long as he behaves himself, it is too ephemeral and insubstantial to trigger procedural due process protections as long as prison officials have discretion to transfer him for whatever reason or for no reason at all.” Id., at 228.
See also Olim v. Wakinekona,
Although paying lipservice to the principle that a statute creates an entitlement sufficient to trigger due process protections only when the decisionmakers’ discretion is limited by standards, the Court today utterly fails to consider whether the purported “standards” meaningfully constrain the discretion of state officials. Even a cursory examination of the Montana statute reveals that the Board of Pardons is subject to no real restraint, and that the standards are anything but “particularized.” In sharp contrast to the statute at issue in Wolff v. McDonnell, supra, and like the statutes at issue in Meachum v. Fano, supra, and Montanye v. Haymes, supra, the Montana statute does not require specific acts of misconduct before the Board may deny parole. Instead, the Board may deny parole when it determines: that there is not a “reasonable probability that the prisoner can be released without detriment to the prisoner or to the community,” Mont. Code Ann. §46-23-201(1) (1985); that parole is not in “the best interests of society,” §46-23-201(2); or that the Board believes that the prisoner is not “able and willing to fulfill the obligations of a law-abiding citizen.” Ibid. An appellate court reviewing the decision of the Board that the release of a prisoner would not be “in the best interests of society” or would be “detriment[al] ... to the community” would have little or no basis for taking issue with the judgment of the Board. These broadly framed standards essentially leave the decision whether or not to grant release on parole to the discretion of the Board, and therefore the statute simply fails to create a legitimate entitlement to release. See Herman, The New Liberty: The Procedural Due Process Rights of Prisoners and Others Under the Burger Court, 59 N. Y. U. L. Rev. 482, 550 (1984) (“A parole statute providing
Admittedly, the statute at issue in Greenholtz v. Nebraska Penal Inmates,
In sum, the Court has abandoned the essential inquiry in determining whether a statute creates a liberty interest. Instead of requiring particularized standards that actually constrain the discretion of the relevant decisionmakers, the Court is satisfied simply by the presence of a purported “standard.” Because I find the Court’s approach at odds with our liberty interest jurisprudence, I dissent.