Phillips v. Williams
| Decision Date | 19 February 1980 |
| Docket Number | No. 51721,51721 |
| Parties | Jimmy Louis PHILLIPS, Petitioner Pro Se, v. Bill WILLIAMS et al., Respondents. |
| Court | Oklahoma Supreme Court |
Original proceeding for writ of mandamus.
Petitioner, a penitentiary inmate, sought a command from this court to the Pardon and Parole Board directing that agency to give him written reasons for removing his name from the parole consideration docket. We assumed original jurisdiction and issued the writ, Phillips v. Williams, Okl., 583 P.2d 488 (1978). On certiorari, the United States Supreme Court vacated our decision and remanded the case for reconsideration in light of Greenholtz v. Inmates of Nebraska Penal Complex, 422 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Phillips re-examined by Greenholtz evolved federal-law criteria and
WRIT DENIED.
Merton M. Bulla, Bulla, Horning & Johnson, Oklahoma City, for petitioner.
Jan Eric Cartwright, Atty. Gen., John F. Fischer, II, Asst. Atty. Gen., Oklahoma City, for respondents.
This case is here on remand from the United States Supreme Court for reconsideration of Phillips v. Williams 1 in light of federal-law criteria pronounced in Greenholtz v. Inmates of Nebraska Penal Complex. 2 In Phillips this court held that minimum standards of federal due process require the Pardon and Parole Board (Board) to give written reasons to a prisoner whose name is removed from a parole consideration docket. The issue on remand is whether parole release provisions of the Oklahoma law, considered as a totality constitutional, statutory, decisional and rule-prescribed create an expectation of liberty to which federal due process will in some measure attach its shield, or afford no more than just a "possibility" of release a mere hope that is unprotected by safeguards of the U.S. Constitution. In this matter of first impression, we hold that the parole procedures here under mandated re-examination do not provide the petitioner/inmate with a liberty interest protected by the fundamental law of the Federal Republic.
Petitioner had been recommended for parole consideration by the correctional review committee (CRC) 3 which placed his name on the monthly parole docket. Some time later the Board removed his name. Unable to learn the reasons for the adverse action, Petitioner sought to compel the Board, by mandamus, to provide him with a written explanation. We assumed jurisdiction and granted the writ. Our judgment, later vacated by the U.S. Supreme Court on certiorari, is back here for mandated reassessment.
Petitioner does not bottom his due process claim on the Forgotten Man Act, 57 O.S.1971 § 332.7, and hence it is not necessary for us to assess here the character of interest a prisoner has in parole consideration that rests on the provisions of that act.
Due process may be invoked whenever government action deprives a person of some legitimate "liberty" or "property" interest within the meaning of the U.S. Constitution. The right-privilege dichotomy of the common law is no longer a relevant factor in gauging whether a threatened interest is fit for federal constitutional protection. 4
Interests protected by due process are not always by some independent source, which consists quite frequently of a state statute or rule entitling the person to certain benefits. 5
One's liberty interest 6 may be entitled to protection even though it is a "statutory creation of the State". Wolff v. McDonnell. 7 In Wolff the interest to receive the federal shield had its roots in state law. Nevertheless, certain minimum procedures, appropriate under the circumstances, were viewed as mandated by federal due process in order "to insure that the state-created right is not arbitrarily abrogated." 8
A prisoner has no constitutionally protected claim to a release on parole before the expiration of his sentence. Due process will attach its shield to parole determination procedures only if the statutory and regulatory framework of the system is such as to fashion a liberty interest within the meaning of fundamental federal law. In short, an inmate who under the state law has a parole release claim sufficient to constitute a liberty interest under federal law may demand the minimum procedural protections of federal due process. This is the teaching of Greenholtz.
Greenholtz rests on the distinction drawn between being deprived by parole revocation of a liberty once granted and being denied a conditional liberty to which one aspires through parole release. Revocation procedures are protected from state's arbitrary action. 9 Parole release procedures do not automatically fall in like category. 10 10 A parole system which provides for the "possibility of release" does not create a constitutionally protected liberty interest. A federally protectible expectation of liberty must rest upon more than "a mere possibility or hope" for a favorable result. 11
This case must turn on our appraisal of the Oklahoma parole release process. If it fashions more than a chance or hope of release, Phillips must be reaffirmed; otherwise the writ has to be denied. Helpful in the task is the recent analysis of this subject by the Tenth Circuit in Shirley v. Chestnut, 603 F.2d 805 (10th Cir. 1979), where the issue was identical to that before us. We set out that assessment at length:
"Thus, in the present case, the Oklahoma statutes must be examined to determine whether a liberty interest has been created thereby. Basically, Oklahoma has a three-tier system for parole release. The Correctional Review Committee compiles the Pardon and Parole Board's monthly docket scheduling inmates for parole consideration. Pursuant to the Forgotten Man Act, 57 Okl.Stat.Ann. § 332.7 (1971), every inmate must be considered for parole on or before the expiration of one-third of his maximum sentence. In addition, any inmate serving 45 years or more, including a life sentence, shall be considered for parole or clemency after serving 15 years. See Rules of the Board, 57 Okl.Stat.Ann., Chap. 7, App. (Supp.1977).
An inmate may be placed on the docket for consideration of parole by recommendation of the Correctional Review Committee or by any member of the Board. Any inmate who is rejected for docketing is afforded the opportunity to appear in person before the CRC. All inmates considered and denied docketing by the CRC or by the Parole Board are to be reconsidered by the CRC no later than twelve months subsequent to their last review.
Pursuant to 57 Okl.Stat.Ann. § 332.2, § 354 (1971), the Board is authorized to examine into the merits of applications for parole and make recommendations to the Governor as, in its discretion, the public interest requires, said recommendations being advisory to the Governor and not binding. According to the Board rules, inmates are entitled to a hearing before the Board. The Board does not object to lawyers or any other person appearing personally before the Board and the inmate may present evidence in documentary form. 57 Okl.Stat.Ann., Chap. 7, App. (Supp.1977).
It is stipulated that there are no written criteria for parole release to guide the Parole Board members in their determinations. Chairman Chestnut stated in his deposition that the Board members use their own good judgment. Littleton Fowler, a member of the Board, mentioned education, prior record, family, the severity of the offense, rehabilitative efforts, and future plans as factors which he considers.
When the Pardon and Parole Board determines not to recommend parole, the inmate is notified by the Department of Corrections. No reasons are given for the denial of parole. Favorable recommendations are forwarded to the Governor. 57 Okl.Stat.Ann. § 332 (1971) states that the Governor shall have the power to grant parole upon such conditions and restrictions as he may deem proper. This authority is limited to the extent that it can be exercised only after a recommendation for clemency by the Pardon and Parole Board. No personal interviews are granted. The Governor has no written criteria for parole release.
Thus, the critical distinctions between the Oklahoma statutory scheme and the Nebraska statutes are that the former do not declare that parole 'shall' be granted unless certain conditions exist, and there are no written and formally established factors to be considered by the Parole Board or the Governor in evaluating parole applicants. The Board's only statutory guidance in the exercise of its discretion is that it act as the public interest requires, and the sole existing statutory criteria dictate only the time of parole consideration.
We have carefully considered the Oklahoma statutes and other information concerning parole procedures provided in the record. We hold that the Oklahoma statutory scheme outlined above does no more than create a parole system, which in the Supreme Court's view as expressed in Greenholtz does not establish a liberty interest. In the absence of such liberty interest, the specific due process procedures requested by the appellants are not applicable."
We agree with the analysis of Shirley. While the pronouncement on a federal-law question by an inferior federal court is not necessarily binding on us, it is indeed highly persuasive. 12 This is especially so here because we are called upon to measure state law by a federal constitutional-law gauge evolved by the U.S. Supreme Court.
Petitioner's name, initially placed on the docket by CRC recommendation, was later stricken from it by the Board. This occurred before the Board gave its approval to the compilation of names next to be considered and before any formal hearings were held on the CRC-recommended list of prisoners.
Although some minimum departmental criteria are required for each CRC recommendation, an inmate meeting these criteria...
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