Andrus v. Lambert
Decision Date | 28 December 1982 |
Docket Number | 3 Div. 689 |
Citation | 424 So.2d 5 |
Parties | Debra Ann ANDRUS v. Honorable Ealon LAMBERT, et al. |
Court | Alabama Court of Criminal Appeals |
Richard Shinbaum, Montgomery, for appellant.
Charles A. Graddick, Atty. Gen., and Richard N. Meadows, Asst. Atty. Gen., for appellees.
The plaintiff pled guilty to and was convicted of the second degree murder of Nigel Harlan. The facts of this horrifying murder are reported in the case of her companion. Nolen v. State, 376 So.2d 1145 (Ala.Cr.App.), cert. denied, 376 So.2d 1148 (Ala.1979). Sentence was twenty years' imprisonment. On May 5, 1981, Andrus was interviewed by two members of the Alabama Board of Pardons and Paroles in order to determine whether she should be granted parole in July of 1981. Parole was denied and on August 20, 1981, Andrus filed a complaint in circuit court alleging that the Board improperly denied her parole and requested that the circuit court issue a writ of mandamus or writ of habeas corpus commanding the Board to either reconsider her for parole or place her on parole. The circuit court denied Andrus' prayer for relief. She appealed that denial to the Supreme Court of Alabama, which transferred the cause to this court.
In denying Andrus' prayer for relief, the circuit court issued a written order. This Court fully agrees with and approves of the legal and factual findings of that court. The order is as follows:
'No prisoner shall be released on parole merely as a reward for good conduct or efficient performance of duties assigned in prison, but only if the board of pardons and paroles is of the opinion that there is reasonable probability that, if such prisoner is released he will live and remain at liberty without violating the law and that his release is not incompatible with the welfare of society.'
'The issue of an inmate's entitlement to the constitutional protections of due process in regard to consideration for parole was addressed by the United States Supreme Court in Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1 [99 S.Ct. 2100, 60 L.Ed.2d 668] (1979). The Supreme Court in Greenholtz held that a statutory provision that holds out the mere possibility of parole does not create a liberty interest entitled to the protection of due process. Id. at 11 . In that case, however, the Supreme Court found that the unique structure and language of the Nebraska parole statute provided an expectation of parole sufficient to create a liberty interest entitled to constitutional protection. Id. at 12 . Since the Supreme Court emphasized the unique structure and language of the Nebraska statute and the need for a case by case analysis of whether other state parole statutes provide a protectible entitlement, the task now before the Court is to compare the features of the Nebraska statute with those of its Alabama counterpart.
'The Nebraska parole statute requires that the Board of Parole order an eligible prisoner's release unless it finds one of four specific reasons to deny release. Section 83-1,114(1) of the Nebraska Revised Statutes provides:
'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:
'The Alabama Parole statutes, on the other hand, are substantially different from the Nebraska statute scrutinized in Greenholtz. Section 15-22-26 of the Alabama Code provides in part:
"No prisoner shall be released on parole merely as a reward for good conduct or efficient performance of duties assigned in prison, but only if the board of pardons and paroles is of the opinion that there is reasonable probability that, if such prisoner is released, he will live and remain at liberty without violating the law and that his release is not incompatible with the welfare of society."
'In addition, Section 15-22-28(d) of the Alabama Code provides in part:
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