BOARD OF PARDONS v. ALLEN(1987)

No. 86-461

Argued: April 1, 1987Decided: June 9, 1987

In Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 , the Court held that the mandatory language and structure of a Nebraska parole-release statute created an “expectancy of release,” a liberty interest entitled to protection under the Due Process Clause. The Montana statute at issue in this case provides that a prisoner eligible for parole “shall” be released when there is a reasonable probability that no detriment will result to him or the community, and specifies that parole shall be ordered for the best interests of society, and when the State Board of Pardons (Board) believes that the prisoner is able and willing to assume the obligations of a law-abiding citizen. After being denied parole, respondent prisoners filed a civil rights action against petitioners, the Board and its Chair, alleging that the Board denied them due process by failing to apply the statutorily mandated criteria in determining parole eligibility, and failing adequately to explain its reasons for parole denials. Although acknowledging that the case was controlled by principles established in Greenholtz, the District Court ruled that respondents were not entitled to due process protections in connection with their parole denials, concluding that, because the Board is required to make determinations with respect to the best interests of the community and the prisoner, its discretion is too broad to provide a prisoner with a liberty interest in parole release. The Court of Appeals reversed and remanded, finding the Montana statute virtually indistinguishable in structure and language from the statute considered in Greenholtz.

Held:

When scrutinized under the Greenholtz standards, the Montana statute clearly creates a liberty interest in parole release that is protected by the Due Process Clause of the Fourteenth Amendment. Although, as in Greenholtz, the release decision here is “necessarily . . . subjective and predictive” and the Board’s discretion “very broad,” nevertheless, the Montana statute, like the Nebraska statute, uses mandatory language (“shall”) to create a presumption that parole release will be granted when the designated findings are made. This presumption exists whether, as in Greenholtz, the statute mandates release “unless” the required findings are made, or whether, as here, release is necessary “when” or “if” the findings are made or is mandated “subject to” them. Moreover, the “substantive predicates” of release in Montana are similar [482 U.S. 369, 370] to those in Nebraska, since each statute requires consideration of the impact of release on both the prisoner and the community, of the prisoner’s ability to lead a law-abiding life, and of whether release will cause a “detriment to . . . the community,” and each statute vests the State’s parole board with equivalent discretion. That the Montana statute places significant limits on the Board’s discretion is further demonstrated by its replacement of an earlier statute which allowed absolute discretion, its specifying as its purpose the creation of restrictions on that discretion, and its addition of a provision authorizing judicial review of parole-release decisions. Pp. 373-381.

792 F.2d 1404, affirmed.

BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. O’CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C. J., and SCALIA, J., joined, post, p. 381.

Clay R. Smith, Assistant Attorney General of Montana, argued the cause for petitioners. With him on the briefs was Michael T. Greely, Attorney General.

Stephen L. Pevar argued the cause for respondents. With him on the brief were Edward I. Koren, Elizabeth Alexander, and Alvin J. Bronstein. *

[ Footnote * ] Randall D. Schmidt filed a brief for Eugene Newbury as amicus curiae urging affirmance.

Dennis E. Curtis, Judith Resnik, William J. Genego, John L. Pottenger, Jr., and Stephen Wizner filed a brief for the Yale Law School Legal Services Organization et al.

JUSTICE BRENNAN 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. 1 In 1984, after their applications [482 U.S. 369, 371] for parole were denied, they filed this action pursuant to 42 U.S.C. 1983 on behalf of a class of all present and future inmates of the Montana State Prison who were or might become eligible for parole. Seeking declaratory and injunctive relief, as well as compensatory damages, the complaint charged the State Board of Pardons (Board) and its Chair with violations of the inmates’ civil rights. Specifically, respondents alleged that the Board does not apply the statutorily mandated criteria in determining inmates’ eligibility for parole, Complaint §§ 6-9, App. 5a-6a, and that the Board does not adequately explain its reasons for denial of parole, id., §§ 9, 10, App. 6a. 2

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, 442 U.S. 1 (1979). In Greenholtz the Court held that, despite the necessarily subjective and predictive nature of the parole-release decision, see id., at 12, state statutes may create liberty interests in parole release that are entitled to protection under the Due Process Clause. The Court concluded that the mandatory language and the structure of the Nebraska statute at issue in Greenholtz created an “expectancy of release,” which is a liberty interest entitled to such protection. Ibid. [482 U.S. 369, 372]

Although the District Court recognized that the Montana statute, like the Nebraska statute in Greenholtz, contained language mandating release under certain circumstances, it decided that respondents “were not entitled to due process protections in connection with the board’s denial of parole.” App. 17a. The court concluded that, because the Board is required to make determinations with respect to the best interest of the community and the prisoner, its discretion is too broad to provide a prisoner with a liberty interest in parole release.

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, 479 U.S. 947 (1986), and now affirm. [482 U.S. 369, 373]

II

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. 3 The Court also held, however, that the Nebraska statute did create an “expectation of parole” protected by the Due Process Clause. 442 U.S., at 11 . To decide whether the Montana statute also gives rise to a constitutionally protected liberty interest, we scrutinize it under the standards set forth in Greenholtz.

The Nebraska statute involved in Greenholtz provides as follows: [482 U.S. 369, 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, 442 U.S., at 11 -12. 4

The Court recognized – indeed highlighted – that parole-release decisions are inherently subjective and predictive, see id., at 12, but nonetheless found that Nebraska inmates [482 U.S. 369, 375] possessed a liberty interest in release. The Court observed that parole release is an equity-type judgment involving “a synthesis of record facts and personal observation filtered through the experience of the decisionmaker and leading to a predictive judgment as to what is best both for the individual inmate and for the community,” id., at 8, 5 and acknowledged that the Nebraska statute, like most parole statutes, “vest[ed] very broad discretion in the Board,” id., at 13. Nevertheless, the Court rejected the Board’s argument “that a presumption [of release] would be created only if the statutory conditions for deferral were essentially factual, . . . rather than predictive.” Id., at 12.

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 [482 U.S. 369, 376] defined by standards that reasonable [people] can interpret in different ways”). The Court determined in Greenholtz that the presence of official discretion in this sense is not incompatible with the existence of a liberty interest in parole release when release is required after the Board determines (in its broad discretion) that the necessary prerequisites exist.

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. 6 The Board is mistaken. The Montana statute, like the Nebraska statute, creates a liberty interest in parole release. It provides in pertinent part:

“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[.]

. . . . .

[482 U.S. 369, 377]

Significantly, the Montana statute, like the Nebraska statute, uses mandatory language (“shall”) 8 to “creat[e] a presumption that parole release will be granted” when the designated [482 U.S. 369, 378] findings are made. Greenholtz, 442 U.S., at 12 . 9 See Statement of Assistant Attorney General of Montana, Tr. of Oral Arg. 6 (“under our statute once the Board of Pardons determines that the facts underlying a particular parole application are such that the release can occur consistently with the three criteria the statute specifies, then under our law the Board is required to order release”). We reject the argument that a statute that mandates release “unless” certain findings are made is different from a statute that mandates release “if,” “when,” or “subject to” such findings being made. Any such statute “creates a presumption that parole release will be granted.” Greenholtz, supra, at 12. 10 [482 U.S. 369, 379]

Moreover, the “substantive predicates,” see Hewitt v. Helms, 459 U.S. 460, 472 (1983), of parole release in Montana are similar to those in Nebraska. In both States, the [482 U.S. 369, 380] Parole Board must assess the impact of release on both the prisoner and the community. A central concern of each is the prisoner’s ability “to lead a law-abiding life.” Neb. Rev. Stat. 83-1,114(1)(d) (1981); see 83-1,114(1)(a) (prisoner may not be released if there is “a substantial risk that he will not conform to the conditions of parole”); Mont. Code Ann. 46-23-201(2) (1985) (prisoner must be released when, inter alia, it will cause no detriment to him or her and must not be released unless the prisoner is “able and willing to fulfill the obligations of a law-abiding citizen”). An interrelated concern of both statutes is whether the release can be achieved without “detriment to . . . the community.” Mont. Code Ann. 46-23-201(1) (1985); see 46-23-201(2) (prisoner must be released only “for the best interests of society”); see Neb. Rev. Stat. 83-1,114(1)(b) (1981) (prisoner must not be released if it “would depreciate the seriousness of his crime or promote disrespect for law”). The discretion left with the parole boards is equivalent in Montana and Nebraska.

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 Paroles, [482 U.S. 369, 381] Within Restrictions . . . .” Act of Mar. 3, 1955, 1955 Mont. Laws, ch. 153 (emphasis added). The new statute also added a provision for judicial review of the Board’s parole-release decisions, see Mont. Code Ann. 46-23-107 (1985), thus providing a further indication of a legislative intent to cabin the discretion of the Board.

Here, as in Greenholtz, the release decision is “necessarily subjective . . . and predictive,” see 442 U.S., at 13 ; here, as in Greenholtz, the discretion of the Board is “very broad,” see ibid.; and here, as in Greenholtz, the Board shall release the inmate when the findings prerequisite to release are made. See supra, at 377-378 and 379-380. Thus, we find in the Montana statute, as in the Nebraska statute, a liberty interest protected by the Due Process Clause.

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