Parker v. Corrothers, s. 84-1284

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Citation750 F.2d 653
Docket Number84-1484,Nos. 84-1284,s. 84-1284
PartiesPatricia PARKER, Appellant, v. Helen CORROTHERS, Warden, Women's Unit; Robert Wells, Chairman, Board of Pardons & Paroles; A.L. Lockhart, Director of Arkansas Department of Correction, Appellees. John Bentley YANCEY, Appellant, v. Marvin EVANS, Jr., Administrator, and Robert Wells, Chairman, Arkansas Board of Probation and Parole, Appellees.
Decision Date13 February 1985

Paul D. Gordon, Little Rock, Ark., for appellant.

Randel Miller, Asst. Atty. Gen., Little Rock, Ark., for appellees.

Before HEANEY, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and ARNOLD, Circuit Judge.

HEANEY, Circuit Judge.

Patricia Parker and John Bentley Yancey appeal from district court decisions 1 dismissing their 42 U.S.C. Sec. 1983 petitions which alleged infringement on their fourteenth amendment due process rights by the manner in which the Arkansas parole system was conducted. Yancey also appeals the dismissal of his equal protection claim. The appellants' pro se petitions were dismissed on the ground that Arkansas's statutes governing parole do not give rise to a protected liberty interest. Neither of the district judges inquired whether the Board had adopted regulations governing the parole process, and accordingly did not address whether such regulations, if any, gave rise to a protected liberty interest in parole. On appeal, we received a copy of the Board's handbook entitled, "Policies Established By The Board of Pardons And Paroles" (Board Handbook). 2

We address four issues: (1) Do the Arkansas parole statutes create a liberty interest which is protected by due process? (2) Do the Board's regulations create a liberty interest which is protected by due process? (3) If either the Arkansas statutes or Board regulations create a protected liberty interest, then what process is due? (4) Was Yancey denied equal protection under the fourteenth amendment?


Parker and Yancey allege that the district court erroneously ruled that the Arkansas parole statutes do not create a liberty interest protectible under the fourteenth amendment's due process clause. We disagree.

In Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), the Court indicated that, although there is no constitutional right to parole, a protected liberty interest may be created by the statutes governing parole in a given jurisdiction. Id. at 7-11, 99 S.Ct. at 2103-2106. Specifically, the Court held that Neb.Rev.Stat. Sec. 83-1, 114(1) (1976) created an expectancy of release entitled to some measure of constitutional protection because its "unique structure and language" provided that a committed offender who is eligible for release on parole "shall" be paroled "unless" one or more of four reasons for deferral applied. Id. at 12, 99 S.Ct. at 2106.

In Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981), the Court reversed a Court of Appeals decision which held that the Connecticut commutation statute created a protected liberty interest because there was a substantial statistical probability of release under the statute. The Supreme Court noted that the "Connecticut commutation statute, having no definitions, no criteria, and no mandated 'shalls' creates no analogous duty or constitutional entitlement" such as that created by the statute at issue in Greenholtz. Id. at 466, 101 S.Ct. at 2465.

In Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), and Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983), the Court further clarified the principles outlined in Greenholtz and Dumschat. In Hewitt, the Court held that Pennsylvania's prison regulations governing administrative segregation of inmates created a liberty interest entitled to some degree of constitutional protection. 459 U.S. at 469-70, 103 S.Ct. at 870-71, 74 L.Ed.2d at 687-88. The Court indicated that

the mere fact that Pennsylvania has created a careful procedural structure to regulate the use of administrative segregation [does not] indicate[ ] the existence of a protected liberty interest * * *. [However] * * * the Commonwealth has gone beyond simple procedural guidelines. It has used language of an unmistakably mandatory character, requiring that certain procedures "shall," "will," or "must" be employed * * * and that administrative segregation will not occur absent specified substantive predicates * * *.


In Olim v. Wakinekona, 461 U.S. at 248, 103 S.Ct. at 1747, 75 L.Ed.2d at 823, the Court found that Hawaii's prison regulations on inmate transfers did not create a liberty interest because they established no substantive criteria which limit the decisionmaker's discretion.

In Williams v. Missouri Board of Probations and Parole, 661 F.2d 697 (8th Cir.1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1621, 71 L.Ed.2d 855 (1982) (Williams II ), we held that Missouri's parole statutes created a protected liberty interest. 3 We concluded "that the Missouri law providing that when the statutory and regulatory guidelines are met the inmate shall be released on parole gives rise to the same protectible entitlement as the Nebraska scheme providing that the prisoner shall be paroled unless certain findings are made." Id. at 699 (emphasis in original). In Evans v. Dillahunty, 662 F.2d 522 (8th Cir.1981), we held that the federal parole statutes and regulations established a limited liberty interest. Although the statute did not use the specific "shall/unless" language of the Nebraska statute examined in Greenholtz, it provided that "if" an eligible prisoner meets certain statutory criteria, then, subject to Parole Commission guidelines, the prisoner "shall be paroled." Id. at 526. We noted that the Commission's guidelines made the "exercise of discretion under the federal statute more limited than that exercisable under the Nebraska scheme." Id.

These cases indicate that there are two standards which determine whether a statute creates a protected liberty interest in parole: 1) does the statute contain particularized substantive standards or criteria which significantly guide parole decisions; and 2) does the statute use mandatory language similar in substance or form to the Nebraska statute's language at issue in Greenholtz?

Parker and Yancey concede that the Arkansas parole statutes fail the mandatory language test. Ark.Stat.Ann. Sec. 43-2808 (1977) provides that

[t]he Parole Board may release any individual eligible under the provisions of Section 28 [Sec. 43-2807] * * * when in its opinion there is reasonable probability the prisoner can be released without detriment to the community or himself. [Emphasis added.]

They argue, however, that the permissive/mandatory distinction is immaterial because the Arkansas parole statutes impose sufficient restrictions on the Board's discretion that a liberty interest in parole is created. The Circuits have split on the question of whether a parole statute must be drafted with the mandatory "shall" language to create a liberty interest in parole. 4 Our opinions in Williams II and Evans suggest that, while the presence or absence of mandatory language is not necessarily talismanic, it is an important factor in determining whether a parole statute creates a liberty interest. We need not decide, however, whether a parole statute must always use mandatory language in order to establish a liberty interest because the Arkansas statutes also do not meet the particularized standards test.

The statutes do not contain particularized substantive standards which significantly guide the Board's discretion to grant parole. We reject appellants' argument that Ark.Stat.Ann. Sec. 43-2808 (1977) establishes a liberty interest because it provides that parole shall not be considered "as an award of clemency" or as "a reduction of sentence or pardon" but shall be ordered only "for the best interest of society" and "only when the Parole Board believes that [the eligible prisoner] is able and willing to fulfill the obligations of a law-abiding citizen." 5 These criteria leave the Board with almost unlimited discretion. This very broad discretion is set forth in Ark.Stat.Ann. Sec. 43-2804 (1977) which provides:

[t]he Parole Board shall have the power to determine what persons shall be placed on parole and to fix the time and conditions of such parole. * * * All policies, rules and regulations regarding parole shall be formulated by the Parole Board.

Nor do we agree with the appellants that a liberty interest is established because the Arkansas parole statutes require certain procedures--such as that "the Parole Board shall have the prisoner appear before it and shall interview him." Ark.Stat.Ann. Sec. 43-2808 (1977). As Hewitt makes clear, a state may establish mandatory procedures to channel a decisionmaker's discretion without thereby creating a liberty interest. 459 U.S. at 469-70, 103 S.Ct. at 870-71, 74 L.Ed.2d at 687-88. See also Lyon v. Farrier, 727 F.2d 766, 768 (8th Cir.1984) (per curiam); Johnson v. Stark, 717 F.2d 1550 (8th Cir.1983) (per curiam). In sum, the Arkansas parole statutes do not create a liberty interest because they provide that the parole board "may" instead of "shall" grant parole and because the substantive limitations on the Board's discretion are minimal. We now turn to whether the Board's regulations establish a protected liberty interest in parole release.


Ark.Stat.Ann. Sec. 43-2804 (1977), which describes the "Duties of the Parole Board," provides that "[a]ll policies, rules and regulations regarding parole shall be formulated by the Parole Board." Pursuant to this authority, the Board has prepared what it describes as "a comprehensive handbook for parole procedure in the State of Arkansas." Board...

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