Allen v. Board of Pardons, No. 85-3600

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before SNEED, SCHROEDER, and BRUNETTI; SCHROEDER
• Citation: 792 F.2d 1404
• Docket Number: No. 85-3600
• Decision Date: 26 June 1986
• Parties: George ALLEN and Dale Jacobsen, on their own behalf and on behalf of all other persons similarly situated, Plaintiffs-Appellants, v. BOARD OF PARDONS; Henry E. Burgess, Chairman, Defendants-Appellees.

Page 1404

792 F.2d 1404 George ALLEN and Dale Jacobsen, on their own behalf and on
behalf of all other persons similarly situated,
Plaintiffs-Appellants,
v.
BOARD OF PARDONS; Henry E. Burgess, Chairman, Defendants-Appellees. No. 85-3600. United States Court of Appeals,
Ninth Circuit. Argued and Submitted Oct. 10, 1985.
Decided June 26, 1986.

Page 1405

Stephen L. Pevar, Denver, Colo., for plaintiffs-appellants.

Clay R. Smith, Asst. Atty. Gen., Helena, Mont., for defendants-appellees.

Appeal from the United States District Court for the District of Montana.

Before SNEED, SCHROEDER, and BRUNETTI, Circuit Judges.

SCHROEDER, Circuit Judge.

The appellants seek to maintain a class action under 42 U.S.C. Sec. 1983 on behalf of "all present and future inmates of the Montana State Prison who are now or may become eligible for parole." They seek to show that the Montana Board of Pardons is failing to use proper standards for determining parole eligibility and thereby denying prisoners due process of law as guaranteed by the fourteenth amendment of the Constitution.

Appellants' suit is one of many which followed in the wake of the Supreme Court's decision in Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979). The Supreme Court there held that a state prison inmate does not have a federally guaranteed right to parole. Id. It also held that a state, through its own enactments, can create an "expectancy of release," which is a liberty interest entitling inmates to some due process protections before parole is denied. 442 U.S. at 12; see also Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (holding that state statute granting good-time credits to inmates created a liberty interest protected by due process guarantees).

The district court dismissed appellants' action. It concluded that the Montana statute did not create a liberty interest because it made the granting of parole too dependent upon the exercise of Parole Board discretion. The district court in this case followed Campbell v. Montana State Board of Pardons, 470 F.Supp. 1301 (D.Mont.1979), a one-paragraph opinion stating that the Montana statute did not create a liberty interest in parole.

The only issue before us is whether the Montana statute creates a protected liberty interest. This is a question of law which we must determine under the standards of Greenholtz, as illuminated by the decisions of other federal courts in cases spawned by Greenholtz. It is a question which must be decided by examining the particular provisions of the state enactment in question, pursuant to Greenholtz 's admonition to proceed on a case-by-case basis. Greenholtz, 442 U.S. at 12, 99 S.Ct. at 2106. We hold that the Montana statute does create such a liberty interest and therefore we reverse the district court.

In Greenholtz, the Nebraska statute which the Court held conferred a due process entitlement provided:

Page 1406

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 ... in the facility will substantially enhance his capacity to lead a law-abiding life when released at a later date.

Neb.Rev.Stat. Sec. 83-1,114(1) (1976).

The Supreme Court in Greenholtz focused upon the structure of that statute. By using the word "shall," it mandates parole unless the Board determines that one or more enumerated reasons exist which would make parole unwise in the given case. The Court recognized that the statute vests very broad discretion in the Board and "is necessarily subjective in part and predictive in part." 442 U.S. at 13, 99 S.Ct. at 2107.

The Montana statute is similar in structure to the Nebraska statute in Greenholtz. The Montana statute provides:

(1) Subject to the following restrictions, the board shall release on parole ... any person confined in the Montana state prison ... when in its opinion there is reasonable probability that the prisoner can be released without detriment to the prisoner or to the community:

(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 ... 17 1/2 years.

(b) No convict serving a life sentence may be paroled until he has served 30 years....

(2) A parole shall be ordered only for the best interest of society and not as an award of clemency...