Labrum v. Utah State Bd. of Pardons, 920222

CourtSupreme Court of Utah
Writing for the CourtDURHAM; Marshall; HALL, C.J., HOWE, Associate
Citation870 P.2d 902
PartiesRobert William LABRUM, Petitioner, v. UTAH STATE BOARD OF PARDONS, H.L. Haun, Chairman of the Utah State Board of Pardons, and Tommy House, Warden of the Utah State Prison, Draper Facility, Respondents.
Docket NumberNo. 920222,920222
Decision Date06 December 1993

Page 902

870 P.2d 902
Robert William LABRUM, Petitioner,
UTAH STATE BOARD OF PARDONS, H.L. Haun, Chairman of the Utah
State Board of Pardons, and Tommy House, Warden of
the Utah State Prison, Draper Facility,
No. 920222.
Supreme Court of Utah.
Dec. 6, 1993.

Page 903

V. Lowry Snow, Lewis P. Reece, St. George, for petitioner.

R. Paul Van Dam, Atty. Gen., Kirk M. Torgensen, Lorenzo Miller, Asst. Attys. Gen., Salt Lake City, for respondents.

Craig S. Cook, Salt Lake City, for amicus inmates of Utah State Prison.

Joan C. Watt, Salt Lake City, for amicus Salt Lake Legal Defenders.

DURHAM, Justice:

Petitioner Robert William Labrum petitions this court for an extraordinary writ directing the Utah Board of Pardons (the Board) to disclose its entire file on him or a summary of its contents, afford him the opportunity to rebut any misinformation in the file, vacate its determination of his original parole release date, and rehear his parole request. We grant the writ.

In March 1987, Labrum pleaded guilty to manslaughter, a second degree felony. The plea agreement required Labrum to disclose information leading to the location of the victim's body, in exchange for which the State dismissed charges of witness tampering, obstruction of justice, and second degree murder. The parties also agreed that Labrum

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should undergo psychological testing, evaluation, and treatment.

Labrum was sentenced in May 1987 to a term of one to fifteen years and fined $5000. The trial judge forwarded to the Board a recommendation that Labrum serve ten years of the sentence before being considered for parole.

In June 1987, the Board notified Labrum that his initial parole determination hearing was scheduled for November of that year. At the hearing, the Board considered his criminal history, the presentence investigation report prepared for the sentencing judge, his family history, statements to his friends, entries in his journal, his participation in a college program and substance abuse therapy at the prison, prison disciplinary information, petitions from community members, and reports from prison staff alleging displays of threatening behavior. Labrum's parents spoke on his behalf at the hearing.

The Board informed Labrum at the hearing that the Utah Sentence and Release Guidelines (Guidelines) 1 recommended that he serve at least thirty-six months of the fifteen-year term. Notwithstanding the Guidelines, the Board determined that Labrum should "expire" his sentence, meaning that he should serve the entire fifteen years and be released in 2002. The Board chairman stated, "This is one of the few cases, Mr. Labrum, in which it is the consensus of the board that it's a pity we didn't have longer than 15 years to keep you."

In his petition to this court, Labrum asserts that he was not informed of the procedures by which he could have obtained advance notice of the information used against him at the parole determination hearing. None of the materials apparently containing adverse information used at the hearing had been disclosed to him prior to the hearing. Because of this nondisclosure, on October 15, 1990, Labrum requested a special attention hearing; the Board denied the request. Labrum asked for rehearing, and that request was likewise denied. Labrum's counsel again requested a rehearing in October 1991, in part because of Labrum's inability to review the contents of his file at or prior to the parole determination hearing. The Board responded with a letter to counsel explaining that an offender may have access to only those portions of his file deemed "public documents"; however, the Board did not identify or provide any documents with the letter.

In March 1992, Labrum's counsel requested Labrum's entire file. The Board responded by providing copies of all documents not designated confidential, including petitions from the community, newspaper clippings, letters from Labrum's friends and family, letters from counsel, and internal Board reports. However, the Board refused to disclose post-sentence or investigative reports, letters from the victim's family, and other information Labrum and his counsel believed would have been helpful in preparing rebuttal to the allegations against him. Labrum filed this petition for an extraordinary writ in April 1992 pursuant to rule 65B(e) of the Utah Rules of Civil Procedure and rule 19 of the Utah Rules of Appellate Procedure.

Amicus curiae briefs have been filed through counsel by a number of inmates at the Utah State Prison, asking this court to undertake a due process review of virtually all of the Board's rules and practices regarding parole. While we hope this opinion clarifies the scope of due process requirements in original parole release proceedings, we decline the invitation to undertake a sweeping review of the parole system. Instead, we address only the specific questions raised by petitioner, namely, whether due process requires (1) that an inmate receive adequate notice to prepare for a parole release hearing, and (2) that an inmate receive copies or a summary of the information in the Board's file on which the Board will rely. We answer both questions in the affirmative.

The concept of parole in American theory and practice dates back to the 19th century:

The first official recognition [of parole] came in 1876 at New York's Elmira Reformatory. Parole for juveniles, sometimes referred to as "aftercare," can be traced

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back to the houses of refuge for children established in the latter half of the 19th century. Juvenile parole developed for many years as part of the general child welfare field, but recently, while still retaining a close involvement with child welfare programs, has assumed a more distinct status.

Robert M. Carter & Leslie Wilkins, Probation and Parole: Selected Readings 185 (1970). Its expansion has been constant, particularly in the field of adult corrections. See generally Joseph A. Zechman, Casenote, Constitutional Law--Due Process in Federal Parole Recission Hearings--Green v. McCall, 822 F.2d 284 (2d Cir.1987), 61 Temple L.Rev. 1509 (1988). The theoretical underpinnings of parole have been said by one commentator to include

three basic concepts of what happens when a prisoner is paroled: (1) grace or privilege--the idea that the offender could be kept in prison for his full sentence but the government gratuitously extends him the privilege of release; (2) contract or consent--the idea that the government makes a deal with the offender, letting him out in return for his promise to abide by certain conditions; and (3) custody--the idea that a parolee, even though free, is in the keeping of the government.

David T. Stanley, The Brookings Institution, Prisoners Among Us: The Problem of Parole 1 (1976) [hereinafter Stanley].

That same commentator observes, based on his research and analysis, "how far reality deviates from these rationales." Id. This discussion illustrates the complex operation of parole in real life:

Parole board members and parole officers must work daily with prison administrators, judges, prosecutors, and police. Differences in judgment on decisions and priorities must be reconciled; detailed complexities in processing have to be adjusted. Hence, boundary lines are not clear, and one criminal justice agency gets involved in the work of another. Parole actually serves a complex of functions and is related to decisions made by other parts of the criminal justice system.

Parole is sentencing. Boards decide how long criminals stay in prison. Hence parole is also a way of controlling prisoners: well-behaved inmates are more likely to be released.

Parole is policing. Some parole officers make searches and have power to arrest.

Parole is attempted rehabilitation. Parole officers offer counseling, referral, and job-finding services.

Parole is re-imprisonment. Parole officers may propose and boards approve action to put back in prison a parolee who has violated his agreement.

Id. at 3-4 (emphasis added).

The conceptual origins of parole have supported a tradition of extreme judicial deference to parole board decision making in both the federal and state systems. Much thoughtful criticism has been directed at this approach, based in large part on an examination of the functional realities of parole in operation. An extensive analysis published in 1975 summarized the problems:

The inadequacies of traditional justifications for judicial nonintervention, including their failure to conform to legal or social realities, have been well demonstrated.... The "act of grace" theory is inconsistent with the legislative purpose of the parole statute, which was to establish an additional mechanism in a unified correction system to promote its penological and rehabilitative purposes. And regardless of whether parole was originally intended to be administered solely to mitigate the harshness of criminal sanctions, it has since come to serve the economic and administrative needs of the courts and penal institutions.

The parens patriae or "rehabilitative expertise" theory for permitting parole boards to exercise unreviewable discretion is also subject to objections. Even though a parole board may conceive of itself as assisting the inmate to achieve rehabilitation ... its decision can have a substantial negative impact on personal freedom. A denial of parole ... results in continued incarceration. In other areas of the law involving restraints on personal liberty,

Page 906

courts have come to recognize that the decisionmakers' presumed identity of interest with the subject of the decision does not eliminate the need for procedural protections, and this learning should be applicable to the parole process.

In addition to the above criticisms, continuing judicial deference to parole board expertise is mistaken for an even more fundamental reason--it is based upon a misapprehension of the facts concerning a...

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