Jago v. Van Curen

Citation70 L.Ed.2d 13,102 S.Ct. 31,454 U.S. 14
Decision Date09 November 1981
Docket NumberNo. 80-1942,80-1942
PartiesA. R. JAGO, Former Superintendent, Southern Ohio Correctional Facility, et al. v. George D. VAN CUREN
CourtUnited States Supreme Court


After pleading guilty to embezzlement and related crimes, respondent was sentenced by an Ohio court to not less than 6 nor more than 100 years in prison. Under existing law respondent would have become eligible for parole in March 1976. On January 1, 1974, however, Ohio enacted a "shock parole" statute which provided for the early parole of first offenders who had served more than six months in prison for nonviolent crimes. Ohio Rev.Code Ann. § 2967.31 (1975).

Pursuant to this statute, respondent was interviewed on April 17, 1974, by a panel representing the Ohio Adult Parole Authority (OAPA). The panel recommended that respondent be paroled "on or after April 23, 1974," and OAPA subse- quently approved the panel's recommendation. Respondent was notified of the decision by a parole agreement which stated:

"The Members of the Parole Board have agreed that you have earned the opportunity of parole and eventually a final release from your present conviction. The Parole Board is therefore ordering a Parole Release in your case." Brief in Opposition 1.

Respondent attended and completed prison prerelease classes and was measured for civilian clothes.

At a meeting six days after the panel's interview with respondent, OAPA was informed that respondent had not been entirely truthful in the interview or in the parole plan that he had submitted to his parole officers. Specifically, respondent had told the panel that he had embezzled $1 million when in fact he had embezzled $6 million, and had reported in his parole plan that he would live with his half brother if paroled when in fact he intended to live with his homosexual lover.1 As a result of these revelations, OAPA rescinded its earlier decision to grant respondent "shock parole" and continued his case to a June 1974 meeting at which parole was formally denied. Neither at this meeting nor at any other time was respondent granted a hearing to explain the false statements he had made during the April interview and in the parole plan which he had submitted.

After denial of his parole, respondent brought a mandamus action against OAPA. The Supreme Court of Ohio held that OAPA was not required to grant respondent a hearing and that it could not be commanded to recall its decision rescind- ing parole. State ex rel. Van Curen v. Ohio Adult Parole Authority, 45 Ohio St.2d 298, 345 N.E.2d 75 (1976). We denied respondent's petition for certiorari to review the decision of the Supreme Court of Ohio. 429 U.S. 959, 97 S.Ct. 382, 50 L.Ed.2d 326 (1976).

Respondent then filed a petition for a writ of habeas corpus in the Federal District Court for the Southern District of Ohio, claiming that the rescission without hearing violated his right to due process of law under the United States Constitution. The District Court denied the writ and the United States Court of Appeals for the Sixth Circuit summarily affirmed the denial. Van Curen v. Jago, 578 F.2d 1382 (1978). We granted certiorari, vacated the judgment of the Court of Appeals, and remanded for further consideration in light of our decision in Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979); Jago v. Van Curen, 442 U.S. 926, 99 S.Ct. 2854, 61 L.Ed.2d 294 (1979).

On remand the Court of Appeals in turn remanded to the District Court for further consideration. Applying Greenholtz, the District Court determined that "early release in Ohio is a matter of grace" and that Ohio law "is fairly unambiguous that no protectable interest in early release arises until actual release." App. to Pet. for Cert. 24A-25A. Accordingly, the District Court held that the rescission of respondent's parole without a hearing did not violate due process.

On appeal, the Court of Appeals acknowledged that "[p]arole for Ohio prisoners lies wholly within the discretion of the OAPA," and that "[t]he statutes which provide for parole do not create a protected liberty interest for due process purposes." 641 F.2d 411, 414 (1981). Nonetheless, the Court of Appeals reversed the decision of the District Court. Relying upon language from our decision in Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), the Court of Appeals concluded that a liberty interest such as that asserted by respondent can arise from "mutually explicit understandings." Seeid., at 601, 92 S.Ct., at 2699. Thus, it held "Having been notified that he 'ha[d] been paroled' and that 'the Board is ordering a Parole Release in your case,' [respondent] had a legitimate expectation that his early release would be effected. This expectation was a liberty interest, the deprivation of which would indeed constitute a grievous loss. It was an interest which could not be taken from him without according [him] procedural due process." 641 F.2d, at 416.

We do not doubt that respondent suffered "grievous loss" upon OAPA's rescission of his parole. But we have previously "reject[ed] . . . the notion that any grievous loss visited upon a person by the State is sufficient to invoke the procedural protections of the Due Process Clause." Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976). In this case, as in our previous cases, "[t]he question is not merely the 'weight' of the individual's interest, but whether the nature of the interest is one within the contemplation of the 'liberty or property language of the Fourteenth Amendment.' " Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). We hold that the Court of Appeals erred in finding a constitutionally protected liberty interest by reliance upon the "mutually explicit understandings" language of Perry v. Sindermann, supra.

Our decision in Sindermann was concerned only with the Fourteenth Amendment's protection of "property" interests, and its language, relied upon by the Court of Appeals, was expressly so limited:

"We have made clear in [Board of Regents v. Roth, 408 U.S. 564, 571-572, 92 S.Ct. 2701, 2705-2706, 33 L.Ed.2d 548 (1972)], that 'property' interests subject to procedural due process protection are not limited by a few rigid, technical forms. Rather, 'property' denotes a broad range of interests that are secured by 'existing rules or understandings.' Id., at 577 . A person's interest in a benefit is a 'property' interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing." 408 U.S., at 601, 92 S.Ct., at 2699.

To illustrate the way in which "mutually explicit understandings" operate to create "property" interests, we relied in Sindermann upon two analogous doctrines. First, we compared such understandings to implied contracts:

"[The] absence of . . . an explicit contractual provision may not always foreclose the possibility that a teacher has a 'property' interest in re-employment. . . . [T]he law of contracts in most, if not all, jurisdictions long has employed a process by which agreements, though not formalized in writing, may be 'implied.' " Id., at 601-602, 92 S.Ct., at 2699-2700.

That the implied-contract aspect of Sindermann "understandings" has been limited to the creation of property interests is illustrated by Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976), another property interest case in which we relied upon the "understandings" language of Sindermann to conclude that "[a] property interest in employment can, of course, be created by ordinance, or by an implied contract." 426 U.S., at 344, 96 S.Ct., at 2077 (footnote omitted).

Principles of contract law naturally serve as useful guides in determining whether or not a constitutionally protected property interest exists. Such principles do not, however, so readily lend themselves to determining the existence of constitutionally protected liberty interests in the setting of prisoner parole. In Meachum v. Fano, supra, we recognized that the administrators of our penal systems need considerable latitude in operating those systems, and that the protected interests of prisoners are necessarily limited:

"Our cases hold that the convicted felon does not forfeit all constitutional protections by reason of his conviction and confinement in prison. He retains a variety of important rights that the courts must be alert to protect. See Wolff v. McDonnell, 418 U.S. [539] at 556 [94 S.Ct. 2963, at 2979, 41 L.Ed.2d 935], and cases there cited. But none of these cases reaches this one; and to hold as we are urged to do that any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the federal courts." 427 U.S., at 225, 96 S.Ct., at 2538.

We would severely restrict the necessary flexibility of prison administrators and parole authorities were we to hold that any one of their myriad decisions with respect to individual inmates may, as under the general law of contracts, give rise to protected "liberty" interests which could not thereafter be impaired without a constitutionally mandated hearing under the Due Process Clause.

The second analogy relied upon in Sindermann to give content to the notion of "mutually explicit understandings" was the labor law principle that the tradition and history of an industry or plant may add substance to collective-bargaining agreements. See 408 U.S., at 602, 92 S.Ct., at 2700. Just last Term, however, we rejected an argument that a sort of "industrial common law" could give rise to a liberty interest in the prisoner parole setting. The prisoners in Connecticut Board of Pardons v. Dumschat, 452 U.S. 458,...

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