454 U.S. 14 (1981), 81942, Jago v. Van Curen

Docket Nº:No. 81942
Citation:454 U.S. 14, 102 S.Ct. 31, 70 L.Ed.2d 13
Party Name:Jago v. Van Curen
Case Date:November 09, 1981
Court:United States Supreme Court

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454 U.S. 14 (1981)

102 S.Ct. 31, 70 L.Ed.2d 13



Van Curen

No. 81942

United States Supreme Court

Nov. 9, 1981




Held: The Due Process Clause of the Fourteenth Amendment was not violated by the Ohio Adult Parole Authority's rescission, without a hearing, of its decision to grant respondent early parole. The rescission, which occurred before respondent was released, resulted from the Authority's having learned that respondent had made false statements in an interview conducted before the decision to grant parole and in his proposed parole plan. After conceding that Ohio law created no protected "liberty" interest in early parole, the Court of Appeals erred in concluding that a liberty interest arose from the "mutually explicit understandings" of the parties, and that the rescission without a hearing thus violated due process. The "mutually explicit understandings" language of Perry v. Sindermann, 408 U.S. 593, relied on by the Court of Appeals, relates to the Fourteenth Amendment's protection of "property" interests, rather than "liberty" interests such as that asserted by respondent. Cf. Connecticut Board of Pardons v. Dumschat, 452 U.S. 458.

Certiorari granted; 641 F.2d 411, reversed.

Per curiam opinion.


After pleading guilty to embezzlement and related crimes, respondent was sentenced by an Ohio court to not less than 6 nor more than 100 years in prison. Under existing law, respondent would have become eligible for parole in March 1976. On January 1, 1974, however, Ohio enacted a "shock parole" statute which provided for the early parole of first offenders who had served more than six months in prison for nonviolent crimes. Ohio Rev.Code Ann. § 2967.31 (1975). Pursuant to this statute, respondent was interviewed on April 17, 1974, by a panel [102 S.Ct. 33] representing the Ohio Adult Parole Authority (OAPA). The panel recommended that respondent be paroled "on or after April 23, 1974," and OAPA subsequently

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approved the panel's recommendation. Respondent was notified of the decision by a parole agreement which stated:

The Members of the Parole Board have agreed that you have earned the opportunity of parole, and eventually a final release from your present conviction. The Parole Board is therefore ordering a Parole Release in your case.

Brief in Opposition 1. Respondent attended and completed prison prerelease classes, and was measured for civilian clothes.

At a meeting six days after the panel's interview with respondent, OAPA was informed that respondent had not been entirely truthful in the interview or in the parole plan that he had submitted to his parole officers. Specifically, respondent had told the panel that he had embezzled $1 million when in fact he had embezzled $6 million, and had reported in his parole plan that he would live with his half brother if paroled when in fact he intended to live with his homosexual lover.1 As a result of these revelations, OAPA rescinded its earlier decision to grant respondent "shock parole" and continued his case to a June, 1974, meeting at which parole was formally denied. Neither at this meeting nor at any other time was respondent granted a hearing to explain the false statements he had made during the April interview and in the parole plan which he had submitted.

After denial of his parole, respondent brought a mandamus action against OAPA. The Supreme Court of Ohio held that OAPA was not required to grant respondent a hearing, and that it could not be commanded to recall its decision rescinding

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parole. State ex rel. Van Curen v. Ohio Adult Parole Authority, 45 Ohio St.2d 298, 345 N.E.2d 75 (1976). We denied respondent's petition for certiorari to review the decision of the Supreme Court of Ohio. 429 U.S. 959 (1976).

Respondent then filed a petition for a writ of habeas corpus in the Federal District Court for the Southern District of Ohio, claiming that the rescission without hearing violated his right to due process of law under the United States Constitution. The District Court denied the writ, and the United States Court of Appeals for the Sixth Circuit summarily affirmed the denial. Van Curen v. Jago, 578 F.2d 1382 (1978). We granted certiorari, vacated the judgment of the Court of Appeals, and remanded for further consideration in light of our decision in Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979). Jago v. Van Curen, 442 U.S. 926 (1979).

On remand, the Court of Appeals in turn remanded to the District Court for further consideration. Applying Greenholtz, the District Court determined that "early release in Ohio is a matter of grace," and that Ohio law "is fairly unambiguous that no protectable interest in early release arises until actual release." App. to Pet. for Cert. 24A-25A. Accordingly, the District Court held that the rescission of respondent's parole without a hearing did not violate due process.

On appeal, the Court of Appeals acknowledged that "[p]arole for Ohio prisoners lies wholly within the discretion of the OAPA," and that "[t]he statutes which provide for parole do not create a protected liberty interest for due process purposes." 641 F.2d 411, 414 (1981). Nonetheless, the Court of Appeals reversed the decision of the District Court. Relying upon language from our decision in Perry v. Sindermann, 408 U.S. 593 (1972), [102 S.Ct. 34] the Court of Appeals concluded that a liberty interest such as that asserted by respondent can arise from "mutually explicit understandings." See id. at 601. Thus, it held:

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Having been notified that he "ha[d] been paroled" and that "the Board is ordering a Parole Release in your case," [respondent] had a legitimate expectation that his early release would be effected. This expectation was a liberty interest, the deprivation of which would indeed constitute a grievous loss. It was an interest which could not be taken from him without according [him] procedural due process.

641 F.2d at 416.

We do not doubt that respondent suffered "grievous loss" upon OAPA's rescission of his parole. But we have previously

reject[ed] . . . the notion that any grievous loss visited upon a person by the State is sufficient to invoke the procedural protections of the Due Process Clause.

Meachum v. Fano, 427 U.S. 215, 224 (1976). In this case, as in our previous cases,

[t]he question is not merely the "weight" of the individual's interest, but whether the nature of the interest is one within the contemplation of the "liberty or property language of the Fourteenth Amendment."

Morrissey v. Brewer, 408 U.S. 471, 481 (1972). We hold that the Court of Appeals erred in finding a constitutionally protected liberty interest...

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