Gilmore v. Kansas Parole Bd.
| Citation | 756 P.2d 410,243 Kan. 173 |
| Decision Date | 23 May 1988 |
| Docket Number | 61030,Nos. 60882,60905,s. 60882 |
| Parties | Lamar GILMORE, Appellant, v. KANSAS PAROLE BOARD, Appellee. John STASSE, Appellee, v. KANSAS PAROLE BOARD, Appellant. Robert E. MURPHY, Appellee, v. KANSAS PAROLE BOARD, Appellant. Gary Dean DARBY, Appellee, v. KANSAS PAROLE BOARD, Appellant. Joseph DYCHE, Appellee, v. KANSAS PAROLE BOARD, Appellant. to -61032. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court
1. K.S.A. 1987 Supp. 22-3717 does not create a liberty interest in parole release.
2. The notices given to each petitioner upon denial of parole are examined and found to comply with statutory requirements.
3. The present policy of the three-member parole board to require unanimity before parole is granted to persons convicted of a Class A or B felony is procedural, and is not a violation of the prohibition against ex post facto laws contained in article I, section 9, of the United States Constitution.
William F. Bradley, Jr., of Martindell, Swearer, Cabbage, Ricksecker & Hertach, of Hutchinson, argued the cause and was on the brief for appellant Lamar Gilmore.
John K. Bork, Asst. Atty. Gen., argued the cause and was on the brief for appellant and appellee Kansas Parole Bd.
Edward V. Byrne, of Byrne Law Offices, of Olathe, argued the cause and was on the brief for appellees John Stasse, Robert E. Murphy, Gary Dean Darby, and Joseph Dyche.
Lamar Gilmore, John Stasse, Robert E. Murphy, Gary Dean Darby, and Joseph Dyche are all in the custody of the Secretary of Corrections of the State of Kansas, following their respective convictions for various felony offenses. Each petitioner met with the Kansas Parole Board, and each was denied parole. Petitioners then commenced separate actions against the Kansas Parole Board, claiming that the reasons given by the Board for denying parole do not comply with constitutional and statutory requirements, and petitioner Gilmore also contends that the "unanimous vote rule," implemented by the Board, violates his constitutional rights.
The district court of Reno County denied Gilmore's petition for habeas corpus, finding that he has no constitutional or inherent right to parole; that the reasons set forth by the Board for denial of parole were sufficient; and that the Board has the authority to adopt the "unanimous vote rule." On the other hand, the district court of Leavenworth County granted the petitions of Stasse, Murphy, Darby, and Dyche, finding that the Board had not furnished each of them with specific, articulated reasons for denial of parole, and the court ordered the Board to furnish a new parole hearing for each of those petitioners, and directed that a detailed statement of reasons be furnished if the Board denied parole to any of those men. Gilmore appeals from the decision of the Reno District Court, and the Kansas Parole Board appeals from the decision of the Leavenworth District Court. All five cases were consolidated for hearing before this court.
The first issue is whether the reasons given by the Parole Board for denying parole to each of the petitioners complies with constitutional and statutory requirements. We turn first to the statutory law. K.S.A. 1987 Supp. 22-3717(h) provides in applicable part:
"Whenever the Kansas parole board formally considers placing an inmate on parole and does not grant the parole, the board shall notify the inmate in writing of the reasons for not granting the parole."
The Kansas Administrative Regulation, K.A.R. 45-4-7 (1987 Supp.), provides not only for the furnishing of written reasons for denial of parole but also for recommendations. The regulation reads:
"Inmates who have not been granted parole shall be furnished written reasons for the board's decision as soon as practical through the unit team as well as any recommendations as to the manner in which the inmate may improve the inmate's status at the designated pass date."
The Reno District Court found:
Let us now examine the reasons advanced by the Board in denial of petitioners' parole. Each of the petitioners received a written notification, listing four or five reasons why parole was denied. One paragraph appears in all of the documents. It reads:
"The [Parole] Board recommends that you cooperate with institutional staff, participate in programs recommended by the staff, and maintain a good conduct record, all of which will be considered by the [Parole] Board at your next scheduled hearing."
All except the notice to Murphy contained the following two paragraphs:
The notice to Darby and Stasse contained the following paragraph:
"The [Parole Board] recommends that you participate in mental health counseling prior to your next scheduled hearing."
The following paragraphs appeared in only one of the notices. The one provided to Dyche said:
"The [Parole Board] recommends that you participate in sex offenders program prior to your next scheduled hearing."
Gilmore's said:
"The Kansas Parole Board also recommends that you participate in continued mental health counseling for sexual offenders and anger management, and substance abuse counseling prior to your next scheduled hearing."
Murphy's notice included the following four paragraphs:
Finally, Stasse's notification included this paragraph:
"Because of your prior criminal history, the [Parole Board] feels your continued confinement within the institution will enhance your capacity to lead a law abiding life when released at a later date."
In Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), the United States Supreme Court recognized that the rationale behind requiring reasons for a denial of parole is to guide the prisoner in future conduct. 442 U.S. at 15-16, 99 S.Ct. at 2108. The opinion, however, does not require that a separate and individually written statement, in language entirely different from that written for any other inmate, be provided. Similarly, neither the Kansas statute nor the administrative regulation requires separately written and distinctive language addressed to each inmate. It is obvious that the Board has formulated certain language which it uses to address most of the common reasons and recommendations. The Board, however, does not issue the same statement to each inmate. The reasons and recommendations appear to be carefully selected in order that each inmate may know the reasons for denial of parole and may receive guidance as to his (or her) further conduct and activity while in custody.
The Board is required by K.S.A. 1987 Supp. 22-3717(h) to interview each inmate. Under 22-3717(g), the Board is required to consider all pertinent information regarding each inmate, including, but not limited to, the circumstances of the offense; the presentence report; the previous social history and criminal record; the conduct, employment, and attitude of the inmate in prison; and the reports of any physical and mental examinations. The argument is advanced that the crime itself cannot be the reason for denial of parole unless all inmates convicted of a certain crime are denied parole. In support of this contention, petitioners cite U.S. ex rel. Scott v. Ill. Parole and Pardon Bd., 669 F.2d 1185, 1190 (7th Cir.1982). That case is distinguishable. The Seventh Circuit found that the Illinois parole statute created a liberty interest in parole release. However, the Kansas statute, which we shall discuss later, does not create a liberty interest. Thus, the question is whether the reasons for denial comply with Kansas statutory law. Certainly the nature of the crime is a consideration to be taken into account and thus can be cited as a reason for denial of parole. K.S.A. 1987 Supp. 22-3717(g) requires the Board to consider the circumstances of the offense of the inmate. The acts of one person in committing an offense may be quite different and much less or much more shocking and heinous than the acts of another person in committing the same statutorily defined offense.
That a parole board may properly consider the nature of the crime is answered in Greenholtz, where the United States Supreme Court stated:
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