Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, No. 78-201

CourtUnited States Supreme Court
Writing for the CourtBURGER
Citation99 S.Ct. 2100,442 U.S. 1,60 L.Ed.2d 668
Docket NumberNo. 78-201
Decision Date29 May 1979
PartiesJohn B. GREENHOLTZ, etc., et al., Petitioners, v. INMATES OF the NEBRASKA PENAL AND CORRECTIONAL COMPLEX et al

442 U.S. 1
99 S.Ct. 2100
60 L.Ed.2d 668
John B. GREENHOLTZ, etc., et al., Petitioners,

v.

INMATES OF the NEBRASKA PENAL AND CORRECTIONAL COMPLEX et al.

No. 78-201.
Argued Jan. 17, 1979.
Decided May 29, 1979.
Syllabus

Under Nebraska statutes a prison inmate becomes eligible for discretionary parole when his minimum term, less good-time credits, has been served. Hearings are conducted in two stages to determine whether to grant or deny parole: initial review hearings and final parole hearings. Initial review hearings must be held at least once a year for every inmate. At the first stage, the Board of Parole examines the inmate's preconfinement and postconfinement record, and holds an informal hearing; the Board interviews the inmate and considers any letters or statements presented in support of a claim for release. If the Board determines that the inmate is not yet a good risk for release, it denies parole, stating why release was deferred. If the Board determines that the inmate is a likely candidate for release, a final hearing is scheduled, at which the inmate may present evidence, call witnesses, and be represented by counsel. A written statement of the reasons is given if parole is denied. One section of the statutes (§ 83-1,114(1)) provides that the Board "shall" order an inmate's release unless it concludes that his release should be deferred for at least one of four specified reasons. Respondent inmates, who had been denied parole, brought a class action in Federal District Court,

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which upheld their claim that the Board's procedures denied them procedural due process. The Court of Appeals, agreeing, held that the inmates had the same kind of constitutionally protected "conditional liberty" interest as was recognized in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, also found a statutorily defined, protectible interest in § 83-1,114(1), and required, inter alia, that a formal hearing be held for every inmate eligible for parole and that every adverse parole decision include a statement of the evidence relied upon by the Board.

Held:

1. A reasonable entitlement to due process is not created merely because a State provides for the possibility of parole, such possibility providing no more than a mere hope that the benefit will be obtained. Parole revocation, for which certain due process standards must be met, Morrissey v. Brewer, supra, entails deprivation of a liberty one has and is a decision involving initially a wholly retrospective factual question as to whether the parolee violated his parole. Parole release involves denial of a liberty desired by inmates and that decision depends on an amalgam of elements, some factual but many purely subjective evaluations by the Board. Pp.9-11.

2. While the language and structure of § 83-1,114(1) provides a mechanism for parole that is entitled to some constitutional protection, the Nebraska procedure provides all the process due with respect to the discretionary parole decision. Pp.11-16

(a) The formal hearing required by the Court of Appeals would provide at best a negligible decrease in the risk of error. Since the Board of Parole's decision at its initial review hearing is one that must be made largely on the basis of the inmate's file, this procedure adequately safeguards against serious risks of error and thus satisfies due process. Pp. 14-15.

(b) Nothing in due process concepts requires the Board to specify the particular "evidence" in the inmate's file or at his interview on which it rests its discretionary determination to deny release. The Nebraska procedure affords an opportunity to be heard and when parole is denied, it informs the inmate in what respects he falls short of qualifying for parole; this affords all the process that is due in these circumstances, nothing more being required by the Constitution. Pp 15-16.

576 F.2d 1274, reversed and remanded.

Page 3

Ralph H. Gillan, Lincoln, Neb., for petitioners.

William Alsup, San Francisco, Cal., for the United States, as amicus curiae, by special leave of Court.

Brian K. Ridenour, Lincoln, Neb., for respondents.

Mr. Chief Justice BURGER delivered the opinion of the Court.

We granted certiorari to decide whether the Due Process Clause of the Fourteenth Amendment applies to discretionary parole-release determinations made by the Nebraska Board of Parole, and, if so, whether the procedures the Board currently provides meet constitutional requirements.

I

Inmates of the Nebraska Penal and Correctional Complex brought a class action under 42 U.S.C. § 1983 claiming that they had been unconstitutionally denied parole by the Board

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of Parole. The suit was filed against the individual members of the Board. One of the claims of the inmates was that the statutes and the Board's procedures denied them procedural due process.

The statutes provide for both mandatory and discretionary parole. Parole is automatic when an inmate has served his maximum term, less good-time credits. Neb.Rev.Stat. § 83-1,107(1)(b) (1976). An inmate becomes eligible for discretionary parole when the minimum term, less good-time credits, has been served. § 83-1,110(1). Only discretionary parole is involved in this case.

The procedures used by the Board to determine whether to grant or deny discretionary parole arise partly from statutory provisions and partly from the Board's practices. Two types of hearings are conducted: initial parole review hearings and final parole hearings. At least once each year initial review hearings must be held for every inmate, regardless of parole eligibility. § 83-192(9).1 At the initial review hearing, the Board examines the inmate's entire preconfinement and postconfinement record. Following that examination it provides an informal hearing; no evidence as such is introduced, but the Board interviews the inmate and considers any letters or statements that he wishes to present in support of a claim for release.

If the Board determines from its examination of the entire record and the personal interview that he is not yet a good risk for release, it denies parole, informs the inmate why release was deferred and makes recommendations designed to

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help correct any deficiencies observed. It also schedules another initial review hearing to take place within one year.

If the Board determines from the file and the initial review hearing that the inmate is a likely candidate for release, a final hearing is scheduled. The Board then notifies the inmate of the month in which the final hearing will be held; the exact day and time is posted on a bulletin board that is accessible to all inmates on the day of the hearing. At the final parole hearing, the inmate may present evidence, call witnesses and be represented by private counsel of his choice. It is not a traditional adversary hearing since the inmate is not permitted to hear adverse testimony or to cross-examine witnesses who present such evidence. However, a complete tape recording of the hearing is preserved. If parole is denied, the Board furnishes a written statement of the reasons for the denial within 30 days. § 83-1,111(2).2

II

The District Court held that the procedures used by the Parole Board did not satisfy due process. It concluded that the inmate had the same kind of constitutionally protected "conditional liberty" interest, recognized by this Court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), held that some of the procedures used by the Parole Board fell short of constitutional guarantees, and prescribed several specific requirements.

On appeal, the Court of Appeals for the Eighth Circuit agreed with the District Court that the inmate had a Morrissey- type, conditional liberty interest at stake and also found a

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statutorily defined, protectible interest in Neb.Rev.Stat. § 83-1,114 (1976). The Court of Appeals, however, 576 F.2d 1274, 1285, modified the procedures required by the District Court as follows:

(a) When eligible for parole each inmate must receive a full formal hearing;

(b) the inmate is to receive written notice of the precise time of the hearing reasonably in advance of the hearing, setting forth the factors which may be considered by the Board in reaching its decision;

(c) subject only to security considerations, the inmate may appear in person before the Board and present documentary evidence in his own behalf. Except in unusual circumstances, however, the inmate has no right to call witnesses in his own behalf;

(d) a record of the proceedings, capable of being reduced to writing, must be maintained; and

(e) within a reasonable time after the hearing, the Board must submit a full explanation, in writing, of the facts relied upon and reasons for the Board's action denying parole.

The court's holding mandating the foregoing procedures for parole determinations conflicts with decisions of other Courts of Appeals, see, e. g., Brown v. Lundgren, 528 F.2d 1050 (CA5), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 283 (1976); Scarpa v. United States Board of Parole, 477 F.2d 278 (CA5) (en banc), vacated as moot, 414 U.S. 809, 94 S.Ct. 79, 38 L.Ed.2d 44 (1973); Scott v. Kentucky Parole Board, No. 74-1899 (CA6 Jan. 15, 1975), vacated and remanded to consider mootness, 429 U.S. 60, 97 S.Ct. 342, 50 L.Ed.2d 218 (1976). See also Franklin v. Shields, 569 F.2d 784, 800 (CA4 1977), cert. denied, 435 U.S. 1003, 98 S.Ct. 1659, 56 L.Ed.2d 92 (1978); United States ex rel. Richerson v. Wolff, 525 F.2d 797 (CA7 1975), cert. denied, 425 U.S. 914, 96 S.Ct. 1511, 47 L.Ed.2d 764 (1976). We granted certiorari to resolve the Circuit conflicts. 439 U.S. 817, 99 S.Ct. 76, 58 L.Ed.2d 107.

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III

The Due Process Clause applies when government action deprives a person of liberty or property; accordingly, when there is a claimed denial of due process we have inquired into the nature of the individual's...

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5016 practice notes
  • Franklin v. District of Columbia, No. 97-7162
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 22, 1999
    ...held the same with respect to the local statute regarding parole. And the Supreme Court held in Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 9-11, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), that a liberty interest in parole cannot be derived from the Constitution Without taking account of E......
  • Strang v. Marsh, Civ. A. No. 83-0409 P.
    • United States
    • U.S. District Court — District of Rhode Island
    • February 21, 1985
    ...process `is flexible and calls for such procedural protections as the particular situation demands.'" Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 12, 99 S.Ct. 2100, 2106, 60 L.Ed.2d 668 (1979), quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972).......
  • C.J.L.G. v. Sessions, No. 16-73801
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • January 29, 2018
    ...of the process" provided "serve[s] the purpose of minimizing the risk of error," Greenholtz v. Inmates of Neb. Penal & Corr.Complex , 442 U.S. 1, 13, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) (citing Mathews , 424 U.S. at 335, 96 S.Ct. 893 ), and so the third Mathews factor must take a back seat......
  • Guido v. Booker, No. 98-3266-RDR.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • February 18, 1999
    ...to be conditionally released before the expiration of a valid sentence. See Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103-04, 60 L.Ed.2d 668 (1979). Nor does § 3621(e)(2)(B) create a liberty interest. Fristoe, 144 F.3d at 630. The languag......
  • Request a trial to view additional results
5015 cases
  • Franklin v. District of Columbia, No. 97-7162
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 22, 1999
    ...held the same with respect to the local statute regarding parole. And the Supreme Court held in Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 9-11, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), that a liberty interest in parole cannot be derived from the Constitution Without taking account of E......
  • Strang v. Marsh, Civ. A. No. 83-0409 P.
    • United States
    • U.S. District Court — District of Rhode Island
    • February 21, 1985
    ...process `is flexible and calls for such procedural protections as the particular situation demands.'" Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 12, 99 S.Ct. 2100, 2106, 60 L.Ed.2d 668 (1979), quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972).......
  • C.J.L.G. v. Sessions, No. 16-73801
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • January 29, 2018
    ...of the process" provided "serve[s] the purpose of minimizing the risk of error," Greenholtz v. Inmates of Neb. Penal & Corr.Complex , 442 U.S. 1, 13, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) (citing Mathews , 424 U.S. at 335, 96 S.Ct. 893 ), and so the third Mathews factor must take a back seat......
  • Guido v. Booker, No. 98-3266-RDR.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • February 18, 1999
    ...to be conditionally released before the expiration of a valid sentence. See Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103-04, 60 L.Ed.2d 668 (1979). Nor does § 3621(e)(2)(B) create a liberty interest. Fristoe, 144 F.3d at 630. The languag......
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5 books & journal articles
  • Schoolhouse Property.
    • United States
    • Yale Law Journal Vol. 131 Nbr. 5, March 2022
    • March 1, 2022
    ...him for later professional training, and in helping him to adjust normally to his environment."). (447.) Greenholtz v. Neb. Penal Inmates, 442 U.S. 1, 13 (1979) ("The function of legal process, as that concept is embodied in the Constitution, and in the realm of factfinding, is to minimize ......
  • Proportionality and parole.
    • United States
    • University of Pennsylvania Law Review Vol. 160 Nbr. 6, May 2012
    • May 1, 2012
    ...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. Kadish, The Advocate and the Ex pert--Counsel in the Peno-Correctional Process, 45 MINN. L.......
  • What states should do to provide a meaningful opportunity for review and release: recognize human worth and potential.
    • United States
    • St. Thomas Law Review Vol. 24 Nbr. 2, March 2012
    • March 22, 2012
    ...to comply with Graham, very little progress has been made statutorily). (87.) Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 19 (1979) (Powell, J., concurring) ("Nothing in the Constitution requires a State to provide for probation or (88.) TIMOTHY A. HUGHES ET AL., supr......
  • Instilling hope: Suggested legislative reform for Missouri regarding juvenile sentencing pursuant to Supreme Court decisions in Miller and Montgomery.
    • United States
    • Missouri Law Review Vol. 82 Nbr. 1, January - January 2017
    • January 1, 2017
    ...Caplan, supra note 220, at 16) (224) Id. (225) Id. at 1076 (226) Id. at 1077, Greenholtz v Inmates of the Neb Penal & Corr Complex, 442 U.S. 1,7, (227) Cohen, supra note 1, at 1077 (citing N J STAT ANN [section] 30 4-123 53 (West 2017)) (228) Id. (229) Id. at 1078 (230) Id. (231) Id. (2......
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