Board of Pardons v. Allen

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

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.

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:

"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 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., at 2107. Nevertheless, the Court rejected the Board's argument "that a presumption [of release] would be...

To continue reading

Request your trial
1269 cases
  • Wiggins v. Wise, Civil Action No. 1:96-0113.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • October 9, 1996
    ...by prison administrators [which was] too speculative to give an inmate a liberty interest"); Cf. Board of Pardons v. Allen, 482 U.S. 369, 377-78, 107 S.Ct. 2415, 2420, 96 L.Ed.2d 303 (1987) (finding that the word "shall" created "`a presumption that parole release will be granted' when the ......
  • Green v. Martin, 3:15–CV–1553 (CSH)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • December 14, 2016
    ...of Nebraska Penal & Correctional Complex , 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) ); Bd. of Pardons v. Allen , 482 U.S. 369, 373, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987) ). Lawfully imprisoned inmates could have a protected liberty interest under the due process clause in being r......
  • Dufur v. U.S. Parole Comm'n, Civil Action No. 17–677 (RDM)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • May 24, 2018
    ...... Id. (Compl. ¶ 6). Dufur appealed that decision to the Commission's National Appeals Board. Id. at 4–5 (Compl. ¶ 7). In that setting, he argued that the Commission (1) lacked ... Id. at 7, 15–16, 99 S.Ct. 2100. In a later decision, Board of Pardons v. Allen , 482 U.S. 369, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987), the Court reaffirmed this approach ......
  • Jimenez v. Cronen, C.A. No. 18–10225–MLW
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • June 11, 2018
    ...... the "McCarthy era," the Supreme Court held that having issued regulations delegating to the Board of Immigration Appeals (the "BIA") the discretion to decide whether an alien should be deported, ...—without dispute from the majority—his view that: like the prisoner in Board of Pardons v. Allen , who sought federal-court review of the discretionary decision denying him parole ......
  • Request a trial to view additional results
1 books & journal articles
  • Proportionality and parole.
    • United States
    • University of Pennsylvania Law Review Vol. 160 No. 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......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT