Tasker v. Mohn

Decision Date04 June 1980
Docket NumberNo. 14650,14650
Citation267 S.E.2d 183,165 W.Va. 55
CourtWest Virginia Supreme Court
PartiesPaul David TASKER v. Richard MOHN, Supt., West Virginia Penitentiary.

Syllabus by the Court

1. Our parole statute, W.Va.Code, 62-12-13 (1979), creates a reasonable expectation interest in parole to those prisoners meeting its objective criteria.

2. The notice element of due process requires that administrative boards follow their own rules and statutes.

3. Release on parole is a substantial liberty interest and the procedures by which it is granted or denied must satisfy due process standards.

4. Due process requires that parole release interview processes include the following minimum standards:

(1) Each prospective parolee must be given timely and adequate notice of the date and hour of his parole release interview;

(2) An inmate is entitled to access to information in his record which will be used to determine whether he receives parole (absent overriding security considerations which must be recorded in his file);

(3) Each inmate may personally appear before the parole board and give oral and documentary evidence;

(4) A record, which is capable of being reduced to writing, must be made of each parole release interview to allow judicial review; and

(5) Inmates to whom parole has been denied are entitled to written statements of the reasons for denial.

Hugh B. Rogers, Jr., Kerens, for petitioner.

Chauncey H. Browning, Atty. Gen., Frances W. McCoy, Asst. Atty. Gen., Charleston, for respondent.

HARSHBARGER, Justice:

Paul Tasker pled guilty to breaking and entering in July, 1975. He was incarcerated in Huttonsville Correctional Center in May, 1976. Having successfully petitioned for credit for time served in jail, his sentence was made effective as of January 8, 1976.

He had four hearings with the West Virginia Board of Parole. Prior to a hearing in March, 1979, he was on work release and was found guilty of violating Work Release Center regulations. That violation was ordered expunged from his records in Tasker v. McCoy, No. 14293, order filed March 6, 1979. He alleges that the board considered the expunged information in its March, 1979, denial of parole, and that the procedures employed by the board denied him due process. 1 The board members, who were deposed for this proceeding, had no recollection of his interview, and denied his charges.

The United States Supreme Court has held that depending upon the language of a state statute granting eligibility for parole to prisoners, there may be no "interest" sufficient to generate due process rights. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Chief Justice Burger, writing for the majority, noted that although procedural protections were provided for parole revocations in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), parole release was an entirely different matter. "There is a crucial distinction between being deprived of a liberty one has, as in parole, and being denied a conditional liberty that one desires." Greenholtz, supra 99 S.Ct., at 2105. Justices Marshall, Brennan and Stevens disagreed:

While there is obviously some difference, it is not one relevant to the established constitutional inquiry. Whether an individual currently enjoys a particular freedom has no bearing on whether he possesses a protected interest in securing and maintaining that liberty. The Court acknowledged as much in Wolff v. McDonnell, (418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935) when it held that the loss of good-time credits implicates a liberty interest even though the forfeiture only deprived the prisoner of freedom he expected to obtain sometime hence. See Drayton v. McCall, 584 F.2d 1208 (CA2 1978). And in other contexts as well, this Court has repeatedly concluded that the Due Process Clause protects liberty interests that individuals do not currently enjoy. 6

6. See, e. g., Willner v. Committee on Character and Fitness, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958); Konigsberg v. State Bar, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810 (1957); Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957); Simmons v. United States, 348 U.S. 397, 75 S.Ct. 397, 99 L.Ed. 453 (1955); Goldsmith v. Board of Tax Appeals, 270 U.S. 117, 46 S.Ct. 215, 70 L.Ed. 494 (1926).

Greenholtz, supra 99 S.Ct., at 2113.

Justice Powell joined the minority in his separate concurrence in part and dissent in part, citing Morrissey v. Brewer, supra, Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). He wrote that the "Due Process Clause is no less applicable to the parole release determination than to the decisions by state agencies at issue in the foregoing cases." Greenholtz, supra 99 S.Ct., at 2110 (Powell, J., concurring and dissenting).

Prior to Greenholtz, federal circuits and scholars differed about the due process required for parole release. 2 We agree with Our due process analysis involves two steps: defining the nature of the interest and delineating the elements that give the protection.

four Supreme Court justices, five circuit courts (including our own Fourth Circuit) 3 and several writers that the interest involved in parole release requires due process protection.

NATURE OF THE INTEREST

Parole is the release of a prisoner from the rigid confinement of a penitentiary or jail to a less restrictive form of custody. Conner v. Griffith, W.Va., 238 S.E.2d 529 (1977). It involves a greater freedom from bodily restraint than imprisonment, and although not unqualified, it certainly is a "liberty interest". This was recognized by the Supreme Court in Morrissey v. Brewer, supra :

By whatever name, theliberty (of parole) is valuable and must be seen as within the protection of the Fourteenth Amendment

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* * *

The parolee is not the only one who has a stake in his conditional liberty. Society has a stake in whatever may be the chance of restoring him to normal and useful life within the law.

Morrissey v. Brewer, supra 408 U.S., at 482, 484, 92 S.Ct., at 2601 (emphasis added).

The Court recognized that parole represented "a long step toward regaining lost freedom" in Warden v. Marrero, 417 U.S. 653, 662, 94 S.Ct. 2532, 2537, 41 L.Ed.2d 383 (1974).

The liberty interest that one has in remaining on parole has been recognized and granted significant due process protection by our court. Dobbs v. Wallace, 157 W.Va. 405, 201 S.E.2d 914 (1974).

The problem that the Supreme Court majority has is whether expectation of parole release is coextensive with the liberty interest in staying on parole. 4 It doubts the The entitlement concept is consistent with the Supreme Court's approach to due process in other contexts, 5 but we believe the court falters in its emphasis on the statutory language. The Court, prior to Greenholtz and in another context, recognized that "only an unusual prisoner could be expected to think that he was not suffering a penalty when he was denied eligibility for parole." Warden v. Marrero, supra 417 U.S., at 662, 94 S.Ct., at 2538.

legitimacy of the expectation of parole. If the expectation represents a statutory entitlement, it recognizes that due process is required. In Greenholtz, supra, it decided that the language of the Nebraska parole statute gave prisoners a legitimate "entitlement" to parole if they met the eligibility requirements and did not fall within statutory exceptions.

Nothing in the constitution requires a State to provide for probation or parole. But when a State adopts a parole system that applies general standards of eligibility, prisoners justifiably expect that parole will be granted fairly and according to law whenever those standards are met. . . . I am convinced that the presence of a parole system is sufficient to create a liberty interest, protected by the Constitution, in the parole release decision. . . . From the day that he is sentenced in a State with a parole system, a prisoner justifiably expects release on parole when he meets the standards of eligibility applicable within that system.

Greenholtz, supra 99 S.Ct., at 2110 (Powell, J., concurring and dissenting).

Our statute governing granting parole 6 makes a prisoner eligible (with some

exceptions) when he has served [165 W.Va. 62] the minimum term of his indeterminate sentence or one-third of his definite term sentence, is not under punishment or in solitary confinement for any infraction of prison rules, has maintained a good conduct record for at least three months prior to his parole release, and has satisfied the board that he will act lawfully when released, and his release is compatible with the best interests and welfare of society. The first three criteria are objective. A prisoner knows whether he has or has not met those criteria. The last factor involves subjective, discretionary evaluation by the board, and due process rights, which attempt to limit malevolent, arbitrary or reckless decisions, apply. We hold that our parole statute creates a legitimate reasonable expectation that parole will be granted. 7

DUE PROCESS REQUIREMENTS

Basic ingredients of due process are notice and an opportunity to be heard. "Notice contemplates meaningful notice which affords an opportunity to prepare a defense and to be heard on the merits." State ex rel. Hawks v. Lazaro, W.Va., 202 S.E.2d 109, 124 (1974). Also, see North v. West Virginia Board of Regents, et al., W.Va., 233 S.E.2d 411 (1977). A fundamental of "notice" is that one be informed about what factors are to be considered by the hearing authority. See State ex rel. Gillespie v. Kendrick, W.Va., 265 S.E.2d...

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