*1 OF PAROLE OF GREENHOLTZ, CHAIRMAN, BOARD OF NEBRASKA, THE NEBRASKA INMATES et al. PENAL AND CORRECTIONAL COMPLEX et al. Argued May 29, January
No. 78-201. 1979 Decided *2 J., C. opinion Burger, delivered the Court, in which Stewart, White, BlackmuN, and Rehnquist, JJ., joined. Powell, J., filed an opinion concurring part and dissenting in part, post, p. 18. Marshall, J., opinion dissenting part, filed an JJ., in which BreNNAN SteveNS, joined, post, p. 22.
Ralph Gillan, Attorney H. Assistant Nebraska, General of argued petitioners. cause for With him on the brief was Paul Douglas, Attorney L. General.
Brian K. Ridenour argued the cause and filed a brief respondents. argued
William Alsup cause for United States McCree, amicus curiae. On brief were Solicitor General Attorney Assistant Gen Heymann, Deputy General Solicitor Easterbrook, eral and William Otis.* G. Burger opinion delivered the
Mr. Chief Justice *3 Court. granted Process
We certiorari to decide whether the Due discretionary applies Clause of Fourteenth Amendment by Board of parole-release determinations made the Nebraska currently if procedures whether the the Board Parole, and, so, provides requirements. meet constitutional
I Complex Penal Inmates of the Nebraska and Correctional brought claiming § class action under U. S. C. by Board they unconstitutionally parole had been denied Younger, amici Evelle J. curiae urging filed * Briefs of reversal were Winkler., Attorney General, Jack B. Attorney General, Chief Assistant Murphy O’Brien, John T. Edward P. Attorney General, and Assistant and Mayer, Deputy Karl Attorneys California; General, and iS. for the State by Larry Derryberry, Attorney General, II, and John F. Fischer Assistant Attorney General, for the State of Oklahoma. Hill
Alvin J. Bronstein and Dean Bivkin filed a brief for the National of the American Civil Liberties Union Foundation as amicus Project Prison curiae urging affirmance. Weinberg
Pierce O’Donnell and Bobert L. the Jerome filed a brief for Legal et al. as amici curiae. Organization N. Frank Services members individual against filed was The suit of Parole. was that the inmates the claims Board. One procedural denied them procedures Board’s and the statutes process. discretionary mandatory and for both provide The statutes his has served inmate an when Parole is automatic parole. 83-1,107 § Stat. Neb. Rev. credits. good-time less term, maximum for discre eligible becomes An inmate )(b) (1 credits, good-time less term, the minimum tionary parole when discretionary parole Only §83-1,110 (1). been served. has in this case. is involved whether determine Board to by the used procedures statutory from partly discretionary arise deny
grant or types Two practices. from the Board’s partly provisions hearings and parole review initial hearings are conducted: initial review year least once each At hearings. final every regardless inmate, held for hearings must hearing, the initial review (9).1 At §83-192 eligibility. preconfinement entire inmate’s Board examines pro- Following examination record. postconfinement introduced, as such is no evidence hearing; an informal vides any letters inmate and considers Board interviews but the of a claim in support present he wishes or statements for release. of the entire from its examination
If the determines yet a good is not that he interview personal record *4 why inmate informs the parole, it denies release, risk for to designed recommendations makes and deferred release was hearing as follows: scope review of the initial the statute defines The offense, the of the offender's the circumstances shall include "Such review history and criminal previous social investigation report, his presentence commitment, the during and conduct, and attitude record, employment, his The made. as have been examinations and mental reports physical such of concerning his counsel him such offender meet with board shall . Rev. parole . . Neb. future Stat. prospects for progress and his (9) (1976). §83-192 an- also schedules It observed. any deficiencies
help correct year. one place within take hearing initial review other review and the initial file from the Board determines If the a release, for likely a candidate is the that inmate hearing the notifies then The Board hearing is scheduled. final held; will be hearing final in which of the month inmate is that board on a bulletin posted is day and time the exact hearing. At day of the all on the inmates accessible to call evidence, may present inmate hearing, final choice. of his counsel by private represented witnesses the inmate hearing since adversary a not traditional It cross-examine testimony or to adverse to hear permitted complete However, a such evidence. present who witnesses denied, parole is If preserved. hearing is recording of the tape for reasons written statement a Board furnishes (2).2 days. 83-1,111 § within 30 the denial II by the used procedures held District Court concluded It satisfy process. did not Board Parole constitutionally protected kind had the same inmate this Court recognized interest, liberty” “conditional that some held (1972), Brewer, 408 U. S. Morrissey of constitu- fell short by the Parole used procedures requirements. specific several prescribed tional guarantees, agreed Circuit Eighth for Appeals Court appeal, the On - Morrissey had the inmate District with found and also stake conditional type, letters eight cases with period, there were a 23-month Apparently, over A the denial. reasons include statement that did not denial were trial these Parole testified at the Board representative of that these nothing indicate There is practice. from standard departures requested one they had if a statement received not have could inmates not have would the statute departure from challenge that a direct seq. et Rev. Stat. §25-1901 relief. Neb. produced *5 6 in Neb. Rev. Stat. protectible defined,
statutorily F. 576 however, Appeals, The Court (1976). § 83-1,114 Dis by the required procedures modified 1274, 1285, 2d Court as follows: trict must receive inmate each for eligible
(a) When hearing; full formal of the notice written receive the inmate is to (b) of the reasonably in advance hearing of the precise time be consid- may which forth the factors setting hearing, ; decision reaching its in the Board ered inmate considerations, the security only subject to (c) docu- present Board and before the person may appear Except unusual behalf. in his own mentary evidence call right inmate has no however, circumstances, behalf; his own witnesses re- being capable proceedings,
(d) record maintained; must be writing, duced hearing, after time a reasonable (e) within writing, explanation, a full submit Board must Board’s action for the and reasons upon facts relied denying parole. procedures foregoing holding mandating
The court’s other Courts with conflicts decisions parole determinations 2d 1050 F. Lundgren, 528 g., Brown v. see, of Appeals, e. Scarpa v. United 917 denied, (1976); 429 S. cert. U. (CA5), banc), (en Parole, (CA5) F. 2d 278 477 States Board of Kentucky Scott v. (1973); S. moot, U. vacated vacated Board, (CA6 15, 1975), Jan. 74-1899 Parole No. (1976). S. mootness, 429 U. remanded consider (CA4 cert. Shields, 1977), 569 F. 2d also Franklin v. ex Richerson States rel. United (1978); 435 U. denied, S. denied, (CA7 1975), 2d 797 cert. Wolff, 525 F. con to resolve the Circuit granted certiorari We 439 U. S. flicts.
III The Due applies Process Clause government when action deprives a person liberty or property; accordingly, when there is a claimed denial of due process we into inquired have the nature of the individual’s claimed interest. determine whether due process requirements
“[T]o apply in the first place, we must look not to the but 'weight’ the nature of the Regents stake.” Board v. Roth, 408 U. 570-571 (1972). S.
This has meant that to obtain protectible right person
“a clearly must have more an than need abstract or desire for it. He must have more than a unilateral expectation of it. He must, instead, legitimate have a Id., claim of to it.” entitlement at 577.
There is no or constitutional inherent of a right convicted person conditionally to be released expiration before the of a valid sentence. The natural of an desire to be individual released indistinguishable from the initial resistance to being But confined. with its conviction, procedural all extinguished has safeguards, right: “[G]iven valid conviction, the criminal defendant has been constitu- tionally deprived liberty.” of his Meachum v. 427 U. Fano, S. 215, 224, (1976).
Decisions of the Executive Branch, however their serious impact, do automatically not invoke due protection; simply there is no guarantee constitutional that all executive decisionmaking comply must with standards that assure error- Id., free determinations. Montanye Haymes, at 225; (1976); Moody Daggett, U. S. n. especially This is true with respect to the sensitive presented by choices grant the administrative decision to parole release.
A state has, Nebraska may, parole establish system, but has duty no do so. Moreover, to insure purposes system public-interest serves state-created may specific the state deterrence,3 of rehabilitation the conditions for release and factors general defining parole authority. It is thus be considered should combina- prescribed there is no or defined surprising parole. tion of facts if would mandate release shown, which, very experimental is still in Indeed, institution an siblings probation like its stage. releases, *7 In few certainties exist. each rehabilitation, and institutional judicial the decision differs from the traditional mold of case, synthesis in a of decisionmaking that choice involves the personal record facts and observation filtered through experience leading predictive decisionmaker a and judgment as what is best both for the individual inmate for community.4 requires latter conclusion This in light assess of the whether, crime, nature gravity inmate’s release will minimize the of the offense, weaken the impact respect deterrent on and undermine others, for in justice. the administration The inquiry is, entire a an sense, “equity” type judgment always that cannot articulated in traditional findings.
IV Respondents suggest support two theories to their view that they constitutionally protected parole have a in a determination which process calls mandated Court Appeals. First, they claim that a reasonable entitle- ment is created a provides whenever state for the possibility
3 justifications support These are the traditional adop advanced to system parole. generally Hanrahan, tion of a See A. von Hirsch & K. (1978); Morris, Abolish Parole? Imprisonment 3 N. The Future of (1974); Wilson, Thinking J. (1975); About Crime 171 Stanley, D. Pris Among (1976); Dawson, Deny oners Us The Decision to Grant Study A Parole: of Parole Criteria in Practice, Law and 1966 Wash. Q. 243, U. L. supra Stanley, 50-55; Dawson, supra n. at3, 3,n. at 287-288. parole. they language claim in Alternatively, that (1) (1976), 83-1,114 Nebraska’s Neb. Rev. Stat. statute, § legitimate invoking expectation parole, creates a process protections.
A rely support respondents heavily of their theory, first held Morrissey Brewer, where we (1972), parole-revocation a certain due determination must meet 411 U. S. Gagnon Scarpelli, also standards. See at stake (1973). They argue the ultimate interest in in a determina- parole-revocation both a decision and inter- underlying liberty tion is conditional and that since same be accorded the est is the same the two should situations protection. constitutional fallacy respondents’ position
The crucial different. There quite revocation are liberty has, one being deprived between distinction one desires. parole, being denied conditional Gagnon) were Morrissey parolees (and probationers *8 liberty employed could and gainfully at and as such “be [were] en- form the other family free to with and friends and to The life.” 408 U. during S., attachments of normal subject confined and thus other are here, hand, inmates prison. in a necessary all of restraints that inhere discretionary parole between important difference A second parole of lies from and termination confinement As we in each case. that must be made nature decision determination Morrissey, parole-revocation recognized in fact parolee actually requires two decisions: whether or more conditions of one acted violation or either for his be recommitted parolee should whether the Id., step “The first in a 479-480. society’s benefit. retrospective factual wholly a thus involves decision revocation Id., at 479. question.” is more subtle and however, parole-release decision, elements, on an some of which are
depends amalgam many of purely subjective appraisals factual but which are by upon experience the Board members based their with the advisability evaluating difficult sensitive task of parole release. no set decision, Unlike the revocation there is shown, of facts if mandate to the which, decision favorable prisoner-transfer individual. The determination, like a decision, may be made variety
“for a more reasons and often involve no [s] predictions than informed serve what would best purposes] safety welfare of the [correctional Fano, inmate.” Meachum v. S., at 225.
The decision turns on a “discretionary of multi- assessment plicity of imponderables, entailing primarily what man is may he and what become rather simply than what he has done.” Kadish, The Expert Advocate and the —Counsel the Peno-Correctional Process, 45 Minn. L. Rev.
The differences between an initial grant and the revocation of the conditional parolee are well recognized. United ex Bey States rel. v. Connecticut Parole, 443 F. 2d (1971), the Second Circuit took note of this critical distinction:
“It is not sophistic to attach importance greater to a person’s justifiable reliance in his maintaining conditional freedom so long as he abides of his conditions release, than to his anticipation mere or hope of freedom.” Judge Henry Friendly cogently noted that “there human is a difference between losing what one has and getting what *9 one wants.” Friendly, “Some Kind of Hearing,” 123 U. Pa. Rev. 1267, (1975). L. 1296 See also Brown Lundgren, v. 1053; 528 2d, Scarpa F. at Parole, v. United States Board 477 F. at 282; Franklin 2d, Shields, v. 2d, F. at 799 (Field, United J., dissenting); ex States Chairman, rel. Johnson v. New Parole, 1974) York Board 2d (CA2 State 500 F. (Hay, dissenting). J., possibility parole provides
That holds out the the state hope no more than a mere the benefit will be obtained. Regents Roth, Board at To S.,U. that extent general interest asserted here is no more substantial than hope will an the inmate’s that he not be transferred to a hope protected by process. other which is not prison, Fano, Haymes, Meachum v. 225; Montanye S.,U. supra.
B Respondents’ argument second is that the Nebraska statu- tory language itself a protectible expectation parole. creates They rely on provides the section which in part:
“Whenever the Board of Parole considers the release of committed offender eligible parole, who is for release on order opinion shall his release unless it is of his release should be deferred because:
“(a) There is substantial risk he not con- will form to parole; the conditions of
“(b) His release would depreciate the seriousness his promote disrespect crime or for law;
“(c) substantially His release would have adverse effect on institutional discipline; or
“(d) His continued correctional medical treatment, care, vocational or other training facility will substantially capacity enhance a law-abiding his lead life when released a later date.” Neb. Rev. Stat. §83-1,114 (1976).5 (1)
Respondents emphasize that provision structure of the together with the use of the word binds the “shall” provides explicit The statute also a list of 14 factors and one catchall obligated that the reaching factor Board is to consider in a decision. Neb. (2)(a)-(n) §§83-1,114 Appendix opinion. Rev. Stat. to this *10 12 any to release an inmate unless one of the four
Parole specifically designated reasons are found. their view, be presumption statute creates that release will in legitimate expectation and that this turn creates granted, justifi- of release that one requisite finding absent the cations for deferral exists. argued provi- parole-determination
It the Nebraska sion is similar to Nebraska in statute involved v.Wolff McDonnell, good-time granted 418 U. (1974), S. protected credits to inmates. There held process we that due from arbitrary statutory right inmates of the to loss they only credits provided subject good because were to behavior. We held that the statute created a protected process guarantees. due argues The Board response that a if presumption only would be created statutory for essentially conditions deferral were factual, as Morrissey, rather than predictive. Wolff respondents elected litigate process Since their claim in federal are court, we denied the benefit of the Nebraska interpretation courts' scope of the if any, interest, statute was intended to Bishop afford inmates. v. Wood, 426 U. S. 341, accept respondents’ We can view the expectancy provided of release this statute entitled some measure of protection. constitutional How- emphasize we ever, unique that this statute has structure language any and thus whether other provides state statute a protectible case-by-case entitlement must decided on a basis. We statutory therefore turn to an .examination of the procedures to they determine whether provide process is due these circumstances.
It is axiomatic that due “is flexible and calls such procedural protections as particular situation demands.” Morrissey Brewer, S., 481; U. & Restaurant Cafeteria McElroy, Workers v. 367 U. S. Anti- (1961); Joint Refugee Fascist Committee McGrath, 162- function of (1951) concurring). J., (Frankfurter, *11 Constitution, is in the legal concept as that embodied process, risk of is minimize the and in the realm of to factfinding, con spectrum of Because of broad erroneous decisions. flexibility necessary apply, cerns to which the term must is and quantum particular need; to the gear process depend in situation quality process particular of the a of the risk minimizing purpose of upon need to serve the 319, Eldridge, Mathews S. U. error. decision the Parole Board’s previously,
Here, as we noted part in subjective necessarily by defined Nebraska’s statute it vests statutes, parole Like most predictive part. in way ideal, No error-free in Board. very broad discretion developed; has been decisions parole-release to make subject of and will continue to be has been question whole factors analysis psychological involving experimentation experi by practical guided fact with evaluation combined future predicting decisionmakers ence of the actual state encourages this system of federalism Our behavior. are encumbered If parole determinations experimentation. unwar burdensome and regard as that states procedures Rev. Cf. Me. may parole. they abandon curtail ranted, Me. repealed, 1671-1679 (1964), §§ Tit. Ann., Stat. parole system). 71 (repealing the State’s 499, § Acts, ch. purpose the ultimate that we not overlook important It objective of component long-range is a which hopes for anticipations The fact rehabilitation. expectations have fallen far short programs rehabilitation hopes abandon lead ago a need not states generation approach a may adopt balanced objectives; states those of adminis- problems as in all determinations, making parole rehabil- objective systems. the correctional tering members law-abiding useful, persons convicted itating disappointing how no matter society goal can remain desirable to these But will contribute progress. state of ad- continuing encourage to invite or objectives society and the inmate. between versary relations those facts, such as specific elicit designed to Procedures necessarily Wolff, Gagnon, and are not Morrissey, required Board determination. to Nebraska appropriate Horowitz, Curators, Missouri v. Univ. of McElroy, supra, Workers v. Restaurant & (1978); Cafeteria exists cannot statutory expectation because a Merely at 895. required panoply full of due to the addition mean adversary be repeated, also and confine there must to convict since However, the confinement. hearings in to continue order often two provides at least one Nebraska Parole only need we every year eligible inmate, to each hearings *12 by the procedures mandated the additional consider whether in out under the standards set required are Appeals of Court Brewer, Morrissey v. Eldridge, supra, Mathews supra, at Appeals are Court of mandated the procedures Two Board: the challenged by requirement the
particularly require- the every inmate, held for hearing a formal be a statement parole decision include every adverse ment by the Board. upon relied of the evidence by the Court prescribed of a as hearing requirement The decrease negligible at best a provide in all cases would Appeals Among Us Stanley, D. Prisoners risk of error. See in the after the initial review Board defers the (1976). When provide Appeals’ that it objects the order Board to The also hearing with a list reasonably together advance written notice present the Board informs might considered. At factors that be held, hearing be during which the will of the month inmate in advance day statements; thereby allowing secure letters time to either is no claim that posts exact There hearing it notice of the time. seriously prejudices the inmate’s timing the notice or its substance present is con adequately hearing. The notice ability prepare for the to adequate. stitutionally it
hearing, does so because examination of file inmate’s personal and the interview satisfies it inmate is not yet ready for conditional The release. determination therefore must include consideration of the entire record what up shows to the time of the sentence, including gravity of the offense in particular case. behavior The record an inmate during confinement critical the sense that reflects the degree to which the is prepared adjust inmate to release. At the Board’s initial interview hearing, permitted inmate is appear before the Board and present letters and statements on his own behalf. He is thereby provided with an effective opportunity to insure first, that the records before the are the records relat- fact ing to his case; and second, present any special considera- tions why demonstrating he an appropriate candidate for parole. Since the decision is one that largely must made on the basis of the inmate’s files, procedure adequately safeguards against serious risks error and thus satisfies due process.7 Cf. Richardson Perales, U. S.
Next, we find nothing concepts they have thus far evolved requires the Parole Board to specify the particular “evidence” in the inmate’s file or at his interview on which it rests the discretionary determination that an inmate is not ready for conditional release. Board communicates the reason for its denial as guide to the *13 inmate for his future behavior. See Franklin Shields, F. 2d, (en at 800 banc). require To the parole authority to provide a of summary the evidence would tend to the convert process into an adversary proceeding and to equate Board’s the only The possible other risk of error is that relevant adverse factual information the wholly inmate’s file is inaccurate. But the Board has discretion to make to any available the inmate information “[w]henever board the determines that it will facilitate the hearing.” Neb. Rev. 83-1,112 (1) (1976). Stat. Apparently § the inmates are satisfied with the way provision this is administered since there is no issue regard before us ing access to their files. The guilt a determination. with determination parole-release shown, has experience and contemplates, statute Nebraska essentially noted earlier, we is, as decision parole-release the of variables. on a host based prediction experienced an of Study A Deny Parole: or to Grant Decision The Dawson, Q. 243, L.U. Wash. Practice, and in Law Parole Criteria sentencing like much is decision Board’s The 299-300. deny or grant many states —to provided judge’s choice— never choice guilt, of judgment following probation for provides now Nebraska what than more require to thought United Dorszynski Cf. determination. parole-release affords procedure The Nebraska U. States, 418 denied when and heard, to be opportunity an qualify- falls short he respects in what inmate informs these under that is affords the this parole; for ing more. require not does Constitution The circumstances. re- Appeals judgment Accordingly, con- proceedings further remanded case is versed opinion.8 this with sistent ordered.
So COURT OF THE OPINION TO APPENDIX take to required Board is statutory factors The are grant not to or whether deciding account into following: sta- maturity, his including personality, offender’s (a) The permit all required the Board its order Appeals in The Court parole. Since documentary support for appear present inmates litiga prior to complied with being were requirements of these both order and parts of court’s review those not seek did tion, Appeals The Court us. not before requirements is validity those adverse cross-examine right to provide a not process did that due held also taping practice witnesses. present favorable right a witnesses before us issues are adequate. Those declared hearings also was them. opinion on express no we *14 bility, sense of responsibility apparent and any development in his personality which may promote or hinder his conformity to law;
(b) The adequacy offender’s plan; (c) The offender’s ability and readiness to assume obliga- tions and undertake responsibilities;
(d) The offender’s intelligence and training; (e) The family offender’s status and whether he has rela- tives who display an him or whether he has other close and constructive associations the community;
(f) The offender’s employment history, his occupational skills, and the stability his past employment;
(g) type of residence, neighborhood or community in which the plans offender to live;
(h) The past offender’s use of or narcotics, past habitual and excessive use alcohol;
(i) The offender’s physical mental or including makeup, any disability or handicap which may affect his conformity to law;
(j) The prior offender’s criminal record, the na- including ture and circumstances, recency frequency of previous offenses;
(k) The offender’s attitude authority; toward law and (l) The offender’s conduct including par- facility, ticularly whether he has taken advantage of the opportunities for self-improvement, whether he been punished has for mis- conduct within six prior months his or hearing recon- sideration release, any whether reductions 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 pre- experience vious probation and the recency of such experience; and *15 relevant. be to determines the board factors other Any
(n) (1976). (2) 83-1,114 § Stat. Rev. Neb. dissenting part concurring Powell, Justice
Mr. part. right have a respondents the Court the
I with agree con- in the process due to Amendment the Fourteenth under how- believe, I not do parole. on their of sideration to Clause Due Process the that, of applicability the ever, particular upon depends determinations parole-release deliberations governing of the statute wording hearing final of the notice limited or board, require- with consistent is by the State currently given process. due ments
I
when
stake
legal restraint
liberty from
A substantial
Al-
probation.
regarding parole
decisions
makes
State
citizens
imposed
not
limitations
to
subject
though still
liberty in-
enjoys
parolee
crime,
aof
convicted
never
action
freedom
minimal
whatever
than
greater
comparably
a fact that
walls,
prison
within
have retained
may
he
Brewer,
U. S.
Morrissey v.
recognized
range
wide
him do
to
parolee enables
aof
“The
convicted
been
never
have
who
persons
open to
things
his
conditions
to the
Subject
.
any crime.
.
.
be
to
free
and is
employed
gainfully
he can
parole,
enduring
other
form the
and to
friends
family and
with
properly
the State
Though
life.
of normal
attachments
other
applicable
many restrictions
him
subjects
con-
that of
from
different
very
his condition
citizens,
Id., at 482.
prison.”
in a
finement
recognized as
always has been
bodily restraint
from
Liberty
Clause
Process
by the Due
liberty protected
core
Wright,
Ingraham
action.
arbitrary governmental
from
Roth, 408
Regents v.
(1977);
673-674
S.U.
U. S. 564, 572 (1972). Because this fundamental
liberty “is
valuable” and “its termination
'grievous
inflicts a
loss’ on parolee,” the Court
concluded Morrissey the decision
revoke
must be made in conformity with due process
standards.
S.,U.
at 482. Similarly in Gagnon
Scar
pelli,
no less applicable to the parole-release determination than to by decisions agencies state at issue the foregoing cases. Nothing in the Constitution requires a provide State to probation or parole. But when a State adopts parole sys- a tem that applies general standards of eligibility, prisoners justifiably expect that parole will granted be fairly and ac- cording to law whenever those standards are met. This is so whether the governing statute states, as here, parole that “shall” be granted unless certain provides conditions exist, some other standard for making parole decision. Contrary to the Court’s conclusion, at ante, I am 9-11, convinced that presence of parole a system is sufficient create interest, protected by the Constitution, the parole-release decision. The Court today, however, concludes parole that release “ and parole revocation quite “are different,” because 'there
ais . .. difference between losing what one has and not ” getting what one wants,’ ante, at 10. I am unpersuaded that if difference, indeed it at exists all, is as significant as the implies. Release on parole marks the first time when the severe restrictions imposed on a prisoner’s liberty by prison regimen may be lifted, and his behavior in prison parole securing expectation and hope his by is molded often parole- Thus, by law. permitted time earliest prisoner to the important be as may determination release parole-revocation unanticipated, generally later, some in the may be there difference whatever Moreover, decision. to release parolees prisoners reactions subjective day From the dispositive. not determinations revocation prisoner system, a parole with in a sentenced State he is that the stand- meets he when expects justifiably This system. within applicable eligibility ards disappoint- severe will be less of release if denial even true granted. once of parole revocation than ment suggestion Court’s also unconvinced I am revo- the context rights in has due prisoner “nature different of the because parole release but cation Ante, case.” in each made must decision involves determination parole-revocation It is true re- the facts must ascertain board inquiries: two *17 then must parole, and behavior prisoner’s to the lated to returned should be or not he whether judgment make parole-release makes board unless the But prison. these fashion, random arbitrary or in some determinations also success on future about evaluations subjective ante, findings. See factual retrospective based on be must any if there were even me that seems to In addition, 14—15. to relevant inquiries factual between the difference systematic under difference, determinations, revocation bear slight be too would to systems, currently existing by Due protected liberty interest aof existence on the in deter- course, relevant, might be It Process Clause. setting. in each accorded mining II Court my correctly concludes, view, Court The held hearing be ordering that a formal erred in Appeals in- parole decision every adverse and that every inmate elude a statement the evidence upon relied by the Board. Ante, at 14-16. The type of hearing afforded by Nebraska comports generously with the requirements of due process, report of the Board’s decision also seems adequate. I Accordingly, agree that the judgment of the Court Ap- peals must be reversed and the case remanded.
I do not agree, with however, the Court’s decision present notice afforded prisoners scheduled for final hear- ings (as opposed to initial review hearings) is constitutionally adequate. Ante, at 14 n. Under present procedures, prisoner is told advance the month during which his final hearing will be held, but is not notified of the exact date of the hearing until morning the day that it will occur. Thus, although prisoner is allowed to “present evidence, call witnesses and be represented by private counsel,” ante, at 5, at the final his hearing, ability to do so necessarily is reduced or nullified completely by the State’s refusal to give notice of the hearing more than a few hours in advance. opinion Court’s asserts that is no “[t]here claim . .. the timing of the notice . . . seriously prejudices the
inmate’s ability to prepare adequately for the hearing.” Ante, at 14 n. 6. But the original complaint in this case cited as an alleged denial of due process the State’s failure to “inform the [respondents] advance the date and time of their hearings before the Board of Parole.” The District Court ordered petitioners give prisoners notice of hearings at least 72 hours in advance of the hearings, and the Court Appeals affirmed that order. The respondents have sup- ported judgment in this arguing that the courts *18 below correctly determined that the current notice procedure undermines prisoner’s the ability to present his case ade- quately at the final review hearing. Brief for Respondents 65. This conclusion accords with common sense, despite peti- the tioners’ comment prisoners that “are seldom gone on vacation or have conflicting appointments on the day parole their hear- a only imposes It also for Petitioners Brief set.” ing de- the with agree I therefore the State. on burden minimal least give to State the require to below courts the of cision require not I would and hearings, final of notice days’ three judgment its of portion modify Appeals of Court the remand. Brennan Justice Mr. whom with Marshall, Mr. Justice part. dissenting join, Stevens Justice Mr. and both extends opinion Court’s the with disagreement My delineation and its interest liberty respondents’ of analysis its required constitutionally procedures the Nebraska that the holds ultimately Although it proceedings. “expectation constitutionally protected a create statutes crimi- argument the rejects nonetheless Court the parole,” establishes State whenever interest an have such offenders nal reflects commentary gratuitous This parole. possibility the narrow unduly an and decisions prior of our misapplication Amendment. Fourteenth the liberty protected view register I must issue, to address chooses Court Since for eligible potentially prisoners that all opinion my deprived be may they which have statutory particular regardless process, without system. implements language that Board Nebraska determines further constitutionally that is all already provides Parole adopted analysis from departs the Court my view, due. Mathews and (1972), U. S. Brewer, 408 Morrissey v. con- disregards (1976), Eldridge, protection. procedural greater militate siderations require I would existing procedures, supplement To hearing notice reasonable inmate each give Parole written as a well considered, factors dates underlying facts essential of reasons statement decisions. adverse
23 I A liberty possess individuals that all It is self-evident con- Upon physical from restraint. free interest being deprived may be an individual crime, course, viction for a by penal statutes.1 authorized liberty of this to the extent and creates parole system, when a enacts But State satisfaction upon from incarceration of release possibility depriva- initial necessarily qualifies that conditions, certain system which In existence my it is the tion. judgment, interest protected their prison inmates retain allows Because prison.2 outside freedoms available securing in- liberty retained implicate this clearly proceedings that due requires Amendment the Fourteenth terest, in the specific provisions irrespective of observed, statute. applicable parole conclusion fully support prior
This Court’s decisions securing interest have that criminal offenders Brewer, supra, Morrissey v. parole release. such an possess on parole released persons all
held that
Writing
incarceration.
remaining free from
Burger
appli-
that the
stated
Court,
Chief
Justice
Mr.
liberty interests.
cannot, however,
terminate
all
1 A
criminal conviction
g.,
Procunier
v.
(1974); see, e.
McDonnell,
539, 555-556
418 U. S.
v. Wolff
(1977) ;
Smith,
817
Navarette,
Bounds
(1978);
v.
430 U. S.
U. S. 555
434
Beto, (1974); Cruz v.
319
Procunier,
817,
S.
822
Pell v.
417 U. S.
Cooper
Pate,
Wilwording
Swenson, 404
(1971);
v.
249
v.
U. S.
(1972);
(1941); Weems
v.
parte
Hull,
S.,U. at 781-782. offenders to serve system permitted
existence of a criminal probation their sentences on or parole. McDonnell, adopted similar (1974), U. S.
Wolff approach. There, abrogation the Court concluded that prisoner’s good-time implicates credits his subse interest quently obtaining Although release from incarceration. recognized constitutionally ob Nebraska was ligated to a creating right to establish credit “a system, prison shortened sentence of credits through the accumulation id., good in behavior,” the State had allowed liberty mates to retain a that could be terminated only for “serious misbehavior.” This interest derived *21 from a specific the existence of credit from the system, not language id., implementing statute, 555-558, see applying consistently recognized.5 decisions have Wolff
B A criminal offender’s interest in securing is therefore directly comparable liberty interests we
5
Palmigiano,
Cf. Baxter v.
(1976).
308,
425 U. S.
323-324
Lower courts
require
have
process safeguards
understood
good-
whenever
Wolff
revoked,
time credits are
language
and have not focused on the
of various
statutory provisions. See,
g.,
Shields,
Franklin v.
784,
e.
569 F. 2d
788-
790,
(CA4) (en banc),
denied,
800-801
United
(1978);
cert.
435 U.
1003
S.
Oswald,
States ex
rel. Larkins v.
(CA2 1975);
Gomes
(CA2
And in other contexts as
this Court
1978).
well,
protects
Due Process Clause
repeatedly concluded
currently enjoy.6
interests that
individuals do not
unrelated to the nature
equally
Court’s distinction is
6 See,
g.,
Fitness,
e. Willner v. Committee on Character and
373 U. S.
Speiser
Konigsberg
(1963);
Randall,
(1958);
v. State
*22
Bar,
(1957);
Examiners,
353
Schware
U. S. 252
v. Board
Bar
353 U. S.
of
(1957);
States,
(1955);
232
Simmons v. United
348
397
v.
U. S.
Goldsmith
Appeals,
(1926).
Board
Tax
270 U.
117
S.
of
The
attempt
Second Circuit has characterized the
be
differentiate
currently enjoyed
subject
termination,
tween a
but
interest
enjoyed
an
following
that can be
in the future
an administrative
proceeding,
actually “nothing'
than
right-
more
a reincarnation of the
privilege dichotomy in
not-too-deceptive disguise.”
United States ex
Parole,
rel. Johnson
Chairman
New York
v.
State Board
500 F.
of
of
925, 927-928,
2,
Regan
2d
Johnson,
n.
vacated as
sub nom.
moot
Bey
419
(1974), construing
U.
1015
United States
S.
ex rel.
v. Connecticut
Parole,
1079,
(CA2 1971),
quotes
443 F. 2d
which the Court
of
ante,
10;
Comment,
see
The Parole System,
282,
120 U. Pa. L.
Rev.
(1971).
or gravity of the interest
affected in
release proceedings.
The nature of a criminal offender’s interest depends on the
range of freedoms available by virtue of
parole system’s
existence. On that -basis, Morrissey afforded constitutional
recognition to a parolee’s interest because his freedom on
parole includes “many of the core
of
values
unqualified lib
erty.”
seeking
release. As the Court of Appeals for the Second Circuit has
recognized, “[w]hether
the immediate issue be
revocation,
the stakes are the same: conditional
freedom
versus incarceration.” United States ex rel. Johnson v. Chair
man
New York State Board
Parole,
F.
925,
2d
928,
vacated as moot sub
Regan
nom.
v. Johnson,
The Court’s second justification for distinguishing between parole release and parole revocation is based on the “nature of the decision that must be made in each case.” Ante, majority apparently believes that the interest affected parole release proceedings is somehow diminished if the ad- ministrative decision may turn on “subjective evaluations.” Yet the Court nowhere explains why the nature the de- cisional process has even slightest bearing assessing nature the interest this process may terminate.7 In- deed, the Court’s here reasoning is flatly inconsistent with its subsequent holding that respondents do have protected liberty interest under Nebraska’s statutes, which re- quire a decision that is “subjective in part predictive in part.” Ante, at 13. For despite the Parole Board’s argu- ment that such an interest exists “only if the statutory con- 7 Government decisionmakers gain do not a “license arbitrary proce dure” legislators when confer a degree “substantial of discretion” regarding the assessment subjective considerations. Kent v. United States, U. S. 553 (1966); Thorpe see Housing Authority City Durham, (1967) (Douglas, J., concurring). *23 inas factual, essentially parole Wolff [denying are] ditions the Court ante, at predictive,” Morrissey, rather than and is sufficient respondents’ that concludes nonetheless protection. constitutional to merit decision- nature subjective assuming the even
But analysis gen- to relevant were making process distinguish adequately not does consideration eral, Morrissey v. See parole. revoking and granting processes S., 411 U. Gagnon Scarpelli, v. 477-480; at Brewer, S., 408 U. the deci- assertion Court’s Contrary to the 781-782. at “ fac- 'retrospective predominantly is revoke to sion ” only Morrissey recognized at ante, question,’ tual characterized. can be so decision revocation step in the the first it is And once conditions did violate the parolee
“determined pa should arise question [s]: second parole, a] [of steps should other prison or to be recommitted rolee of rehabili chances improve protect society taken is second relatively simple; step first tation? The appli involves question The complex. second more making authority of expertise cation to live ability of individual to the prediction as . acts. . . committing [T]his antisocial society without once the violation to do about deciding step, what second predictive but also purely it is identified, factual (emphasis at 479-480 discretionary.” S., added). de- revocation
Morrissey thus makes clear component. Moreover, subjective decisive cision includes predictive on proceedings hinge parole release the extent necessarily predicated are assessments determinations, those subjective presence Accordingly, of fact.8 findings Dawson, 2d, 791; Shields, 569 F. Decision Franklin Study Practice, Deny of Parole Law A Criteria Parole: Grant or Morrissey S., Q. 243, 248-285; Brewer, 408 U. cf. L. 1966 Wash. U. *24 a completely considerations is distinguish- basis for untenable the
ing interests at stake from the liberty here interest recog- in nized Morrissey.
C The Court also concludes the that existence of a parole system by itself creates “no more a hope than mere that benefit will be obtained,” ante, at and thus give does rise to a interest. This appears conclusion somewhat gratuitous, given the Court’s holding ultimate that Ne- braska generate statutes do a “legitimate expectation [pa- release” which protected by is role] the Due Process Clause. Ante, at Moreover, unclear purpose what can be served the Court’s depreciate endeavor expectations arising solely from the parole system. existence of a The same, parole in many statutes jurisdictions embody the stand- ards used in the Model upon Penal Code, which both the Nebraska provisions and federal are Court’s patterned, analysis of the Nebraska statutes would suggest therefore that the other statutes must protectible also create expectations of release.9
479-480. The statutes, particular, Nebraska in demonstrate the factual nature parole inquiry. of the provision, quoted ante, 16-18, One at enumerates family factual considerations intelligence, such the inmate’s status, and employment history, upon predictive which bear the four underlying determinations parole ultimate decision. ante, at 11. parole statutes of 47 particular States standards, criteria, establish applied or factors parole to be release determinations. A list of these statutes is set out in the Brief for Legal Organi Jerome N. Frank Services zation et 30-31, al. as Amici Curiae 23a-26a. presumably These criteria significant will be “legitimate expectations” source of inmates’ regarding availability parole. Expectations shaped by would also be the role parole actually jurisdiction’s assumes penological in a system, infra, see at 30-31. It respects in these that most statutes are similar. statutory While there are language some differences among jurisdictions, it is unrealistic to believe such “may” variations as the use of rather “shall,” ante, 11-12, than negate expectations see could derived from has assumed role light Furthermore, its misapplies Court I believe sentencing process, in the acknowledge by refusing ante, 11-12, test, own see release whenever expectation legitimate inmates have ob- system. As establishes government Morrissey: served *25 releasing of practice years, the the 60
“During past has sentences of their end before the parole on prisoners . . system. . penological of integral part become an parole clemency, of exercise ad hoc being than an Rather of convicted imprisonment established variation is an at 477. 408 U. S., criminals.” as- broad majority’s belies the evidence
Indeed, the available re- with at least expectations, concerning inmate sumptions that suggestion no there is system, and spect to the federal is different.10 jurisdictions significantly other experience in than substantially less reveal statistics Government prison are held federal all first-time offenders one-third of judges In of the mandatory addition, until release.11 88% they considered survey recent stated responding ac and sentence, availability imposing of when 47% re be would expectation their that defendants knowledged granting for parole system criteria experience enumerated with release. 10 granted parole in Board, for-example, The New York State Parole ex rel. during United States it 1972. See cases considered 75.4% Parole, 2d, at York 500 F. Johnson v. Chairman State Board New addition, of release In recent show that is method studies year returned to the approximately for criminal offenders each all 70% community. Reports, in the United States: Uniform Parole Parole (1978). States, figure high as 1977, p. is as some 97%. Decision-Making: Rehabilitation, Eglit, & Parole Release See Kastenmeier Expertise, Mythology, the Demise 22 Am. U. L. 481- Rev. (1973). Addonizio, States v. O. for United States United T. See Brief 78-156, p. 55 n. 47. No. sentences.12 their one-third serving after
leased on Conference Administrative views, these In accord with maxi courts set Congress that has advised the United States demon who prisoner “that a anticipating sentences mum serve will rehabilitation for his desire strates maximum.”13 approaching anything term or maximum proposed of the provisions sentencing discussing the And 1437, the Senate Code, S. Federal Criminal of the revision observed: Judiciary Committee offender that an today believes who judge
“A federal a sentence impose may prison years four should serve offender vicinity knowing of ten years, in the sentence.” after one third parole release eligible p. Rep. 95-605, No. judges both has led system federal in the experience Thus, sub- paroled inmates will expect and legislators Insofar expire. sentences their stantially before under- process analysis, under the Court’s critical *26 on the expectation a certainly justify similar would standing is I it unrealistic believe Hence, inmates. of the federal part of a existence the speculate for hope” of a mere more “no than prisoners provides system at 11. Ante, release.
II A pro- of the assessment the Court’s I cannot subscribe to also interest. respondents’ safeguard necessary cedures Morrissey v. on rely purports majority the Although 12 Process, Sentencing Decisionmaking and the Project, Parole Release 810, 882 n. 361 Yale L. J. 84 13 the Subcommittee Bills before 1598 and Identical Hearings on H. R. House the of Justice of Liberties, the Administration and Courts, Civil on (1973) 193 163-164, Sess., Judiciary, Cong., 1st 93d the Committee of the Administra Scalia, Chairman of Antonin (testimony and statement States). United of the tive Conference
32 424 Eldridge, Mathews v. enunciated
Brewer the test and funda- of these standards its application U. S. (1976), respects. mentally deficient in several on the exclusively almost focuses begin with,
To the Court significantly will procedure particular likelihood Ante, proceedings. the risk of error reduce to be con- three factors Mathews advances 14-16. Yet process: of due determining specific dictates sidered by be affected that will “First, private depriva risk of an erroneous action; second, official procedures and through tion of such interest used, or if of additional substitute probable value, any, in procedural finally, the Government’s safeguards; function involved and the fiscal terest, including the or the additional substitute administrative burdens that procedural requirement would entail.” U. atS., By forth in ignoring Mathews, the other two factors set example, Court skews the in favor of the Board. For inquiry identify any justification the Court Parole does provide specific Board’s refusal to inmates with advance notice hearing may date with list factors be considered. Nor does the Board would demonstrate that unduly summary burdensome to provide brief of the justifying parole. evidence denial of To be sure, these may measures cause some but “the Constitu inconvenience, higher recognizes speed efficiency.” tion values than Illinois, Stanley v. (1972); 405 U. S. Frontiero 645, accord, Richardson, Bell (1973); Burson, U. 540-541 (1971). Similarly U. S. in the Court’s lacking analysis any recognition private interest affected *27 Certainly the Board’s action. in being released from incarceration is of magnitude sufficient to have some on the bearing due.14 severity While of a loss does not of itself establish that an interest protection,
deserves constitutional
weigh heavily
this factor does
in deter-
The second
analysis
fundamental
flaw the Court’s
incorrectly
only
evaluates the
actually
factor
discussed.
The contribution
additional
safeguards
will make to
reaching an accurate decision necessarily depends the risk
error
in existing procedures.
inherent
Eldridge,
See Mathews v.
supra, at 334-335,
supple-
343-347.
finds
Here,
procedures
mental
be inappropriate
because it assumes exist-
procedures
ing
adequately reduce
an
the likelihood that
in-
mate’s files will
incorrect
contain
information which could
lead to an erroneous decision.
support
No
cited
this
and the
assumption,
record affords
none.
fact, researchers
and courts have
many
discovered
substantial
inaccuracies in
inmate files, and
evidence
case
instant
revealed similar
errors.15 Both the District Court and the Court of Appeals
mining
procedural safeguards
mandated
the Fourteenth Amend-
Lopez,
ment.
Goss
419 U. S.
(1975);
575-576
Board of
Regents Roth,
found Particu- proceedings. release parole in Nebraska’s of error ato decision parole tie the the Nebraska statutes larly since ante, 16-18, see at factual highly specific inquiries, number the lower courts’ rejecting in the record for I no basis see conclusion. error, this risk of actual apart avoiding from
Finally, procedures importance adopting Court has stressed of in- and the confidence appearance fairness preserve the The Chief Justice decisionmaking process. in the mates in revoca- Morrissey parole “fair treatment recognized avoiding by the chance of rehabilitation tions will enhance (citation 484 arbitrariness,” to at S., reactions American by omitted), legislators, courts, a view shared and other commentators.16 This considera- Association, Bar significant whether interests are extin- equally tion is proceedings. revocation As guished Refugee argued Justice Frankfurter Joint Anti-Fascist Mr. McGrath, (concurring Committee v. 341 171-172 U. at S., opinion): validity authority largely
“The and moral of a conclusion Secrecy mode depend which was reached. congenial truth-seeking and self-righteousness too an gives rightness. slender assurance No better arriving instrument been devised for than to has truth person jeopardy of serious give loss notice 16See, g., (1975) Rep. 94-369, p. (“It essential, e. then, No. appearance has both the Nothing fact and of fairness all. necessary integrity jus less is for the maintenance of the criminal of our institutions”); tice United States ex rel. Johnson Chairman New Parole, 2d, 928; Phillips York State Board Williams, 500 F. (Okla. 1978), 488, pending, 78-1282; P. 2d ABA, cert. No. Standards Relating Legal (Tent. to the Status of 1977), Prisoners Draft in 14 Am. (1977); Davis, Discretionary Crim. L. Rev. K. Justice: A Prelim inary Inquiry (1969); Report 126-133 Official of the New York State Special (Bantam Commission on Attica 1972). ed. Nor has meet it. opportunity him and against
case *29 im- so feeling, the generating for found way been better has been justice government, popular to a portant done.” appearance, the assure need the my judgment, requirement supports of fairness existence, as the
well for dates their specific advise inmates Board Parole the es- and the reasons and applied, to be tho criteria hearings, can For “‘[o]ne decisions. underlying adverse facts sential frustrating than inhuman, and cruel, more nothing imagine meas- be what will knowledge of without prison term serving a re- for ready one is determining whether rules the and ured ” In- Preliminary A Discretionary Justice: Davis, K. lease.’ quiry
B I Mathews, believe Morrissey and analysis of the Applying parole necessary is protection procedural substantially more types requires. than proceedings limited however, are addressed here, be that should safeguards issues specific only three Thus, this case.17 posture be considered. need not 8, I ante, do at n. majority opinion, In accordance with holding that correct Appeals was the Court
address whether already pro it procedures may abandon Parole Nebraska present appear inmates to permitting safeguards include These vides. of reasons a statement providing hearings, and documentary support at to seek failed inmates Because the or deferred. denied when is on whether no decision, view express I also Appeals’ the Court of review present allowing inmates practice of correctly the Board’s held that it hearings constitution was not final counsel for and retain witnesses sugges to consider inappropriate Finally, it would ally compelled. be allowed access inmates should time that the first here for advanced tion ante, 15 n. Cf. inaccuracies. factual in order to correct files to their currently does affect afforded protections Nevertheless, range specific compelled. The constitutionally procedures are additional whether particular situation depend on what course, process, dictates question I close, While agree with majority hearing formal is not always required when an inmate first be- eligible for discretionary parole. Ante, comes 14^15. The Parole Board conducts an initial hearing review once a year every for even inmate, before the is eligible inmate for Although release. scope of this in- hearing limited, mates are allowed to appear present letters or statements supporting their case. If the Board concludes an eligible inmate is a good candidate release, schedules a final substantially more formal hearing.
The Court of Appeals directed the Parole Board to conduct such a formal hearing as soon as an inmate eligible' becomes *30 for even parole, where the likelihood of a favorable decision is but negligible, the required court hearing no thereafter. 2d 1274, (CA8 1978). P. From practical a standpoint, this relief offers no appreciable advantage to the inmates. If the Board would not have a conducted final hearing cur- under rent procedures, inmates gain little from requirement a such a hearing be held, since the certainly evidence almost would be justify granting insufficient release. because And the Court of Appeals required the Board to only conduct one hearing, inmates risk losing right to a proceeding formal at very point additional safeguards may have a beneficial impact. The inmates’ this modification procedures Board’s relatively slight.18 is thus Yet the burden & Restaurant demands. See McElroy, Workers 886, 367 U. S. Cafeteria Nebraska’s use of hearings formal possibility when the granting parole is substantial and informal hearings cases, in other for example, provision combined with of a statement of reasons for adverse decisions, obviously reduces the supplemental need for procedures. 18Although hearing a point formal at eligibility of initial would reduce the risk of error and appearance enhance the fairness, providing. summary a of essential infra, reasons, evidence and see together n. with allowing appear inmates to hearings, informal justification decreases the for requiring the Board to hearings conduct formal every case. See supra. n. hearings formal the additional imposed on the Parole I Board’s believe the Accordingly, would be substantial. hear- informal combining both formal and practice current constitutionally ings sufficient. respect is warranted with a different conclusion
However, currently inmates. The Board given notices hearing an only informs inmates that it will conduct initial review the next parole hearing particular final month within during day or hour of year. specify The notice does not bulletin hearing. Instead, designated inmates must check for if is scheduled hearing board each to see their morning day. refuses inmates addition, the Board to advise despite in parole proceedings, of the criteria relevant must listing state the Board expressly statute factors 4 permissible denying parole. consider and for reasons ante, Neb. 16-18. 83-1,114 (1976), quoted § Rev. Stat. at 11, Finding these the District Court procedures insufficient, Appeals the Court of ordered that each inmate receive along written advance notice of the set for his hearing, time may 2d, with a of factors the Board consider. 576 F. list Although proffered justification 1285.19 the Board has no id., refusing procedures, institute these at 1283, ground Court sets aside relief ordered below on is no claim timing that either the of the notice or “[t]here *31 seriously prejudices ability pre- its substance to inmate’s hearing.” Ante, pare for adequately at 14 n. 6. But respondents plainly have contended throughout litigation this necessary that reasonable advance notice is to enable them to organize permitted by their call the witnesses evidence, notify private Board, participate counsel allowed to in the 19 ordinarily The courts below found that 72 hours’ advance notice prisoners prepare appearances. would enable for their 2d, 576 F. at Appeals statutory 1283. The Court of further determined that criteria sufficiently specific only were the Board need include a list of those hearing post public criteria with the notices or such a list through areas out institution. Ibid.
38 for Brief Answer 65-66; Respondents Brief see
hearing, 28; 25, pp. 6, 8-9, (CA8), 77-1889 in No. Inmates Appellee 17-18; pp. (Neb.), 72-L-335 in Civ. for Inmates Brief Trial ; 1283 2d, F. at 576 obviously agreed. See below and the courts Pet. App. to 1977), Oct. 21, (Neb., 72-L-335 Op. in Civ. Mem. interests private significant 45-47. Given 25, 39, for Cert. preserving notice of reasonable importance and the stake, at from depart here I no reason to see fairness, appearance notice is adequate recognition longstanding Court’s Memphis g., process, of due e. requirement a fundamental (1978); U. 131, 436 S. Light, Craft, & Water Division v. Gas Co., 314 Mullane Central Hanover Trust v. in the equally applicable heretofore found principle a (1950), McDonnell, atS., 563-564; 418 v. U. present context. Wolff Brewer, 786; Morrissey v. Gagnon Scarpelli, 411 atS., v. U. S., 486-487, 408 at U. provide I a statement require the
Finally, would
denying parole.20
relies in
the crucial evidence on which it
merely
noting
the Parole Board
uses
form letter
present,
At
ordering
Board to
general
for its decision.
reasons
20Every
Appeals holding
applica
other Court of
the Due Process Clause
proceedings
board
ble to
has also concluded that
writing
denying parole.
must advise the inmates in
of the reasons for
See
Shields,
Franklin
United States ex rel.
2d,
(en banc);
569 F.
at 800-801
Wolff,
Richerson (CA7 1975),
denied,
525
2d 797
cert.
U. S. 914
F.
Parole,
Childs v. United States Board
(1976);
App.
167 U. S.
D. C.
rel.
United States ex
Johnson v. Chairman
(1974);
2d
F.
Parole,
New York State Board
(CA2),
moot,
500 F. 2d
vacated
to Franklin v. Shields did not
parties
request
findings be unwar- to relief even this believes however, here, majority ad- more proceedings might render it because ranted, awith determina- decisions unfavorable equate versary and at 15-16. Ante, of guilt. tion considera- particular how these explains nowhere
The Court Morrissey and required inquiry relevant are tions subse- believe difficult to Moreover, Mathews. will decision for a justification factual disclosing the quently when especially adversary, more proceeding render the And of reasons.21 statement general already provides Board a deter- resemble decisions unfavorable the extent in con- legitimate has no Board guilt, mination of he of which failings the conduct or an inmate cealing from guilty. purportedly might evidence of the essential a summation requiring
While Morrissey in neither inconvenience, administrative some entail 786; supra, Scarpelli, Gagnon v. 489; Brewer, supra, at v. the Court did 563, 564-565, McDonnell, supra, v. nor Wolff statement a written denying justified factor find decision. underlying a reasons evidence essential unduly simply is not It When reasons exist. when give reasons
“burdensome to be should . . there is denied . application ... ever an scarcely argued can It for the decision. reason some by requirement crippled would be government directly person most to the be communicated the reason Regents action.” government’s by the affected J., (1972) Roth, (Marshall, 408 U. S. dissenting). McDonnell, atS., here, in supposition Contrary its Wolff can prison disruption that “prospect no perceive could
565, the Court requirement of these statements.” from the flow *33 40 Eldridge, S., 345-346;
See Mathews v.
424
SEC v.
U.
Chenery
(1943).
Corp.,
inability
Moreover, Mathews militate favor a statement of requiring a requirement essential evidence. Such would direct Board’s focus to the statutory relevant criteria promote more careful consideration of the evidence. It would also enable inmates to detect and correct inaccuracies could impact.23 have decisive And the obligation justify a publicly decision provide would assurance, critical to appearance of fairness, that Board’s decision capri is not cious. Finally, imposition obligation of this would afford inmates instruction on the measures needed improve their prison behavior and prospects for parole, surely consequence consistent goals.24 with rehabilitative these con Balancing
22 Hirschkop Millemann, & Unconstitutionality The Life, of Prison 55 795, (1969). Va. L. Rev. 811-812, 839 23 preprinted list of denying parole reasons for unlikely to dis types close these of factual errors. Out of 375 inmates denied dur ing period, only a 6-month given reason 285 of them was: “Your treatment, continued correctional vocational, educational, job assignment or facility substantially your will enhance capacity to lead a law- abiding life when released App. at a later date.” Although 40-42. denial forms also include a list of six correcting “[r]ecommendations deficiencies,” such as responsibility some and maturity,” “[e]xhibit the evi dence at trial showed that all six items were checked on 370 of the 375 forms, regardless of the particular facts of the App. 42; case. 38-39, Tr. 45-46. 24See, g., e. supra; cases cited in 20, Attorney n. Candarini v. General States, United Supp. 1132, (EDNY F. 1974); Monks Jersey New State Board, Parole 238, 58 N. J. 249, 277 A. 2d (1971); Discretionary K. Davis, Justice: Preliminary Inquiry A 126-133 (1969); Frankel, M. Criminal 40-41 (1972); Sentences Dawson, The Deci Deny sion to Grant Study Parole: A of Parole Criteria in Law Practice, Q. 243, 302; Wash. U. L. Comment, 6 Mary’s St. L. J. against
siderations the Board’s minimal in avoiding I am procedure, convinced that the Fourteenth Amend requires ment the Parole provide Board to inmates state ment of the essential evidence as well meaningful as a explanation of the reasons for denying parole release.25
Because the opinion Court’s depreciates both inmates’ *34 fundamental securing parole release and sanctions denial rudimentary most protec- I respectfully dissent. tion, 25 This summary statement of reasons and evidence essential provided actually
should be to all eligible parole, inmates whether the following adverse decision rendered an initial review a final hearing.