Board of Pardons v. Allen, No. 86-461

CourtUnited States Supreme Court
Writing for the CourtBRENNAN, 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
Citation96 L.Ed.2d 303,482 U.S. 369,107 S.Ct. 2415
Decision Date09 June 1987
Docket NumberNo. 86-461
PartiesBOARD OF PARDONS and Henry Burgess, Petitioners v. George ALLEN and Dale Jacobsen etc

482 U.S. 369
107 S.Ct. 2415
96 L.Ed.2d 303
BOARD OF PARDONS and Henry Burgess, Petitioners

v.

George ALLEN and Dale Jacobsen etc.

No. 86-461.
Argued April 1, 1987.
Decided June 9, 1987.
Syllabus

In Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668, 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

Page 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 (CA9 1986), 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, Helena, Mont., for petitioners.

Stephen L. Pevar, Denver, Colo., for respondents.

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 applica-

Page 371

tions 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 &Par; 6-9, App. 5a-6a, and that the Board does not adequately explain its reasons for denial of parole, id., &Par; 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, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). In Greenholtz the Court held that, despite the necessarily subjective and predictive nature of the parole-release decision, see id., at 12, 99 S.Ct., at 2106, 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.

Page 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, 107 S.Ct. 431, 93 L.Ed.2d 381 (1986), and now affirm.

Page 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, 99 S.Ct., at 2106. 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:

Page 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, 99 S.Ct., at 2106.4

The Court recognized—indeed highlighted—that parole-release decisions are inherently subjective and predictive, see id., at 12, 99 S.Ct., at 2106, but nonetheless found that Nebraska inmates

Page 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, 99 S.Ct., at 2104,5 and acknowledged that the Nebraska statute, like most parole statutes, "vest[ed] very broad discretion in the Board," id., at 13, 99 S.Ct.,...

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1224 practice notes
  • Faheem-El v. Klincar, FAHEEM-EL
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 25, 1988
    ...a limited entitlement rooted in statute rather than the natural liberty of the parolee. E.g., Board of Pardons v. Allen, --- U.S. ----, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987) (a prisoner has a liberty interest in parole only to the extent a statute creates one); Jago v. Van Curen, 454 U.S. 1......
  • In re Rosenkrantz, No. B151016.
    • United States
    • California Court of Appeals
    • January 18, 2002
    ...113 Cal.Rptr. 361, 521 P.2d 97.) The Governor's discretion is significant, but it is not unlimited. (See Board of Pardons v. Allen (1987) 482 U.S. 369, 375, 107 S.Ct. 2415, 96 L.Ed.2d 303; and see In re Ramirez, supra, 94 Cal. App.4th at p. 560, 114 Cal.Rptr.2d The Governor's references to ......
  • In re Lawrence, No. B190874.
    • United States
    • California Court of Appeals
    • May 22, 2007
    ...of Nebraska Penal and Correctional Complex (1979) 442 U.S. 1, 12, 99 S.Ct. 2100, 60 L.Ed.2d 668. 22. Board of Pardons v. Allen (1987) 482 U.S. 369, 381, 107 S.Ct. 2415, 96 L.Ed.2d 23. Board of Pardons v. Allen, supra, 482 U.S. at pages 377-381, 107 S.Ct. 2415. 24. McQuillion v. Duncan (9th ......
  • Hutchison v. City of Huntington, No. 23332
    • United States
    • Supreme Court of West Virginia
    • November 15, 1996
    ...time limitation 26 placed on the decisionmaker to act is necessary to justify post hoc liability. See Board of Pardons v. Allen, 482 U.S. 369, 382, 107 S.Ct. 2415, 2422-23, 96 L.Ed.2d 303 (1987) ("to give rise to a protected [property] interest, the statute must act to limit meaningfully th......
  • Request a trial to view additional results
1218 cases
  • Faheem-El v. Klincar, FAHEEM-EL
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 25, 1988
    ...a limited entitlement rooted in statute rather than the natural liberty of the parolee. E.g., Board of Pardons v. Allen, --- U.S. ----, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987) (a prisoner has a liberty interest in parole only to the extent a statute creates one); Jago v. Van Curen, 454 U.S. 1......
  • In re Rosenkrantz, No. B151016.
    • United States
    • California Court of Appeals
    • January 18, 2002
    ...113 Cal.Rptr. 361, 521 P.2d 97.) The Governor's discretion is significant, but it is not unlimited. (See Board of Pardons v. Allen (1987) 482 U.S. 369, 375, 107 S.Ct. 2415, 96 L.Ed.2d 303; and see In re Ramirez, supra, 94 Cal. App.4th at p. 560, 114 Cal.Rptr.2d The Governor's references to ......
  • In re Lawrence, No. B190874.
    • United States
    • California Court of Appeals
    • May 22, 2007
    ...of Nebraska Penal and Correctional Complex (1979) 442 U.S. 1, 12, 99 S.Ct. 2100, 60 L.Ed.2d 668. 22. Board of Pardons v. Allen (1987) 482 U.S. 369, 381, 107 S.Ct. 2415, 96 L.Ed.2d 23. Board of Pardons v. Allen, supra, 482 U.S. at pages 377-381, 107 S.Ct. 2415. 24. McQuillion v. Duncan (9th ......
  • Hutchison v. City of Huntington, No. 23332
    • United States
    • Supreme Court of West Virginia
    • November 15, 1996
    ...time limitation 26 placed on the decisionmaker to act is necessary to justify post hoc liability. See Board of Pardons v. Allen, 482 U.S. 369, 382, 107 S.Ct. 2415, 2422-23, 96 L.Ed.2d 303 (1987) ("to give rise to a protected [property] interest, the statute must act to limit meaningfully th......
  • Request a trial to view additional results
1 books & journal articles
  • Proportionality and parole.
    • United States
    • University of Pennsylvania Law Review Vol. 160 Nbr. 6, May 2012
    • May 1, 2012
    ...BEHAV. 25, 28-29 (2009) (discussing static and dynamic risk factors used to predict criminal recidivism). (22) Bd. of Pardons v. Allen, 482 U.S. 369, 375 (1987) (quoting Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 8 (23) Greenholtz, 442 U.S. at 10 (quoting Sanford H......

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