Ellis v. District of Columbia

• Decision Date: 28 May 1996
• Docket Number: Nos. 95-7090,95-7109,s. 95-7090
• Citation: 84 F.3d 1413,318 U.S. App. D.C. 39
• Parties: Michael ELLIS, et al., Appellees/Cross-Appellants, v. DISTRICT OF COLUMBIA, et al., Appellants/Cross-Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1413

84 F.3d 1413

318 U.S.App.D.C. 39

Michael ELLIS, et al., Appellees/Cross-Appellants, v.DISTRICT OF COLUMBIA, et al., Appellants/Cross-Appellees.

Nos. 95-7090, 95-7109.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 30, 1996.

Decided May 28, 1996.

Appeal and Cross-Appeal from the United States District Court for the District of Columbia(91cv03041).

Mary L. Wilson, Assistant CorporationCounsel, argued the cause, for appellants/cross-appellees.With her on the briefs were Charles F. Ruff, CorporationCounsel, and Charles L. Reischel, Deputy CorporationCounsel.Garland Pinkston, Jr., PrincipalDeputy CorporationCounsel, Washington, DC, entered an appearance.

Edwin H. Wheeler, argued the cause, for appellees/cross-appellants.With him on the briefs was Jonathan M. Smith, Washington, DC.

Before HENDERSON, RANDOLPH, and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

Opinion concurring in part and dissenting in part filed by Circuit Judge TATEL.

RANDOLPH, Circuit Judge:

In this class action by prisoners and former prisoners of the District of Columbia, brought under 42 U.S.C. § 1983, the district court ruled that the Due Process Clause of the Fifth Amendment required the District of Columbia Board of Parole to hold parole hearings far enough in advance of prisoners' parole eligibility dates so that prisoners may be released on that date if the Board's decisions are in favor of parole; to provide certain material to prisoners to assist them in understanding the Board's parole decisions in their cases; and, with respect to parole revocations, to offer prompt "preliminary hearings" after parole warrants are executed and to provide parole revocation hearings no more than 90 days thereafter.This is an appeal from the permanent injunction issued to enforce the court's ruling.

I

We will deal first with the district court's judgment that some, but not all, prisoners have a due process liberty interest in parole, an interest protected by the procedural rules imposed in the court's order concerning the Board's parole eligibility determinations.

A

Because the Constitution itself does not create any liberty interest in parole (seeGreenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103-04, 60 L.Ed.2d 668(1979)), such an interest must emanate from state law, or in this case, District of Columbia law.The statutory law of parole, contained in the District of Columbia Code, is as follows:

Whenever it shall appear to the Board of Parole that there is a reasonable probability that a prisoner will live and remain at liberty without violating the law, that his release is not incompatible with the welfare of society, and that he has served the minimum sentence ... the Board may authorize his release on parole.

D.C.CODE § 24-204(a).We held in Price v. Barry, 53 F.3d 369(D.C.Cir.1995)(per curiam), that this statute created "no 'expectancy of release' entitling a prisoner to due process protections."Id. at 371.Our reasoning was straightforward and rested on the language of § 24-204(a): even if a prisoner established everything the statute required, the Board of Parole still had discretion to deny parole.Yet state laws may only give rise "to a constitutionally protected liberty interest if they contain substantive limitations on official discretion, embodied in mandatory statutory or regulatory language."Id. at 370.

While plaintiffs thus cannot establish a liberty interest stemming from the District's parole statute, they say one may be derived from parole regulations the Board adopted in 1987 pursuant to its authority "to establish rules and regulations for its procedure."D.C.CODE § 24-201a(1987), superseded byD.C.CODE §§ 24-204.1-.3.Like the statute, the regulations state that the Board may "release a prisoner on parole in its discretion" after the prisoner has served one-third of his sentence, provided that the prisoner substantially complied with prison rules, there was a reasonable probability the prisoner would not violate the law upon release, and releasing the prisoner would not be "incompatible with the welfare of society."D.C.Mun.Regs. tit. 28, § 200.1.¹

The regulations establish a scoring system to guide the Board's parole decisions.§ 204.1.Each parole candidate is assigned a "Salient Factor Score" to assist in determining the risk of releasing the prisoner.As the regulations put it, the "SFS" serves as "one of the factors used in calculating parole eligibility pursuant to the provisions of this section."§ 204.2.To calculate the SFS, the Board assigns a numerical value for each of six categories:

.Prior convictions and adjudications (ranging from 0-3),

.Prior commitments of more than thirty days (0-2),

.Age at the time of the commission of the current offense (0-2),

.Recent commitment-free period (0-1),

.Status of the prisoner at the time of commission of the current offense (0-1), and

.History of heroin or opiate dependence (0-1).

§ 204.4;App. 2-1, at 2-31 to -32.These categories and the determinants of the numerical values are described in detail in §§ 204.5-.16.The numerical values assigned to these six categories are added to determine the SFS, which can range from 0-10. App. 2-1, at 2-31 to -32.Prisoners with an SFS of 9-10 are regarded as low risk; those with scores of 6-8 are regarded as fair risk; those with scores of 4-5 are regarded as moderate risk; and those with scores of 0-3 are regarded as high risk.§ 204.17;App. 2-1, at 2-32.

The Board modifies a prisoner's risk category by adding or subtracting points for pre- and post-incarceration factors.Points are added if:

.The prisoner's current conviction involved violence against a person, the use of a dangerous weapon, or drug distribution; or if the prisoner has two or more previous convictions for these types of crimes; or

.The prisoner has committed serious disciplinary infractions.

§ 204.18(a)-(h);App. 2-1, at 2-32 to -34.A point is subtracted if the inmate has demonstrated sustained achievement in prison programs, industries or work assignments.§ 204.18(i);App. 2-1, at 2-33 to -34.Application of these pre- and post-incarceration factors to the prisoner's risk category yields the "total point score," which can range from 0-5.§§ 204.19-.20;App. 2-1, at 2-34.In initial parole hearings, the regulations state that adults with total point scores of 0-2 and youth offenders with a total point score of 0 "shall be granted" parole; adults with total points scores of 3-5 and youth offenders with total point scores of 1-5 "shall be denied" parole.§§ 204.19-.20;App. 2-1, at 2-34, 2-36.In later parole hearings, the Board begins with the total point score from the previous hearing and either adds or subtracts one point depending upon whether the inmate's institutional adjustment was negative or positive.Adult and youth offenders with point scores of 0-3 "shall be granted" parole; adult and youth offenders with point scores of 4-5 "shall be denied" parole.§ 204.21;App. 2-2, at 2-37.

The regulations permit the Board to deviate from the outcome suggested by the total point score "in unusual circumstances."§ 204.22.²Appendix 2-1 lists six reasons for denying parole despite a low total point score:

.Repeated failure under parole supervision,

.Current offense involves on-going criminal behavior,

.Lengthy history of criminally related alcohol abuse,

.History of repetitive sophisticated criminal behavior,

.Unusually extensive and serious prior record (at least five felony convictions), and

.Unusual cruelty to victims.

App. 2-1, at 2-34 to -35.The list in Appendix 2-1 also contains categories for "Other" and "Other change in circumstances."Id. at 2-35.The Board supplemented these appendices with an "Addendum to Board Order" which laid out four additional factors that could justify deviating from the numerical guidelines.³

The district court, impressed by the mandatory language of §§ 204.19-.21, held that inmates with low total point scores had an "expectation of release" and thus a liberty interest in parole.As the court saw it, the command of the regulations--prisoners with low total point scores "shall be released"--so limited the Board's discretion that the "total point score effectively determine[d] the parole decision."Although the Board could disregard the parole determination indicated by its guidelines, the Board could do so only for unusual circumstances.The court therefore concluded that the Constitution required the Board to conduct parole hearings of prisoners with low total point scores sufficiently in advance of their parole eligibility dates that they could be released as soon as they became eligible and to provide all prisoners denied parole with more information explaining the reasons for the denial.

B

By the time of the district court's decision, the Supreme Court had settled on an approach to the Due Process Clause that made the existence, or lack thereof, of a liberty interest in parole turn on the language of the regulations governing parole.While there "is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence"(Greenholtz, 442 U.S. at 7, 99 S.Ct. at 2104), a state's parole regulations might require release after a parole board "determines (in its broad discretion) that the necessary prerequisites exist"(Board of Pardons v. Allen, 482 U.S. 369, 376, 107 S.Ct. 2415, 2419, 96 L.Ed.2d 303(1987)), in which event the state has created an expectation of release rising to the level of a liberty interest within the meaning of the Due Process Clause.Greenholtz, Allen, and Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675(1983), came to stand for the proposition that a state's "use of 'explicitly mandatory language,' in connection with the establishment of 'specified substantive predicates'...