GREENHOLTZ v. NEBRASKA PENAL INMATES
Legal provision: Due Process
Argument of Ralph H. Gillan
Chief Justice Warren E. Burger: The case is submitted we’ll hear arguments next in Greenholtz against Inmates of Nebraska Correctional Institution.
Mr. Gillan you may proceed whenever you are ready.
Mr. Ralph H. Gillan: Chief Justice and may it please the Court.
This case involve the question of whether procedural due process applies in the granting a parole and if so the extent of the required procedures.
As this Court is aware the Circuits have been pretty evenly divided on this, some of them saying that no procedural due process applies at all and others saying that it applies to the extent that reasons must be given for the denial of parole.
As a matter of fact the Fourth Circuit in Franklin versus Shield required more extensive procedures and the court sitting en banc it reversed the panel and said that the only procedures required was giving of the reasons for the denial.
However, in this case the Court of Appeals mandated very extensive procedures of requiring that each inmate be given a formal hearing at the time that he first became eligible, that he be given notice of the factors that would be considered and so forth, I won’t list all of them.
The most important one, I think the one that we are most concerned with is the last, the Court of Appeals said that an inmate denied parole must be given a full and fair explanation in writing of the essential facts relied on and the reasons for denial.
Now we have no objection to the giving out the reasons for denial, because under State Law he is now required to be given the reasons for denial, but when the Board is required to given him a full and fair explanation in writing of the essential facts relied upon, we think that they are changing the entire type of hearing and making it an evidentiary hearing and it would be very difficult for us to comply with that.
So the issues --
Chief Justice Warren E. Burger: One way to comply might be to abolish of parole.
Mr. Ralph H. Gillan: I beg your pardon.
Chief Justice Warren E. Burger: One way to comply it might be to abolish the parole system.
Mr. Ralph H. Gillan: Yeah, it’s very true Your Honor and I think that there, there may well be a strong inclination for various states to do that if some of these procedures are recorded.
Now so our question here is whether it applies at all and whether Nebraska has complied with any procedures which are required by the Federal Constitution.
We believe that there are two basic reasons why procedural due process should not apply to the granting parole.
I will discuss the weaker of those two arguments first.
First we believe that there is a difference between the deprivation of a right which has already been granted, a freedom which has been granted and the refusal to grant that freedom in the first place.
Now the Fifth Circuit has relied pretty exclusively on that distinction in Scarpa versus U.S. Parole Board and in Morrissey versus Brewer, this Court quoted with approval the language in Bay versus The Board of Parole drawing that distinction, holding that there is a difference between refusing to give some one a benefit and taking away a benefit which are already been given.
I am not contending that that distinction should be decisive in this case because I can visualize a situation in which a state statute provided that upon proof of a certain set of facts that a person should be entitled to a certain benefit or conversely that he should be entitled to a certain benefit in the absence of proof of facts or certain facts.
I do think however that the cases indicate that the showing should be much clearer and the case of the granting of a benefit and that the procedures that would be required would probably be less in that situation.
The primary reason that I believe the -- that procedural due process should not apply in this case, if that under State law there are no provable facts, which require the granting of parole and there are no facts which must be proved to denial.
The Statute that Nebraska operates under is cited in our brief and first of all it makes denial of parole dependent upon the Parole Boards having an opinion.
It’s not – there is nothing in here that says that if the -- if it should be found that certain facts are true that he shall be granted parole that or that he may be denied a parole in the event certain facts are established.
It provides whenever the Board of Parole considers release of a committed defender, it shall order his release unless it is of the opinion that his release should be deferred.
And then look at the factors that are the conditions under which they can deny it.
There is a substantial risk that he will not confirm to the conditions of parole.
What facts would one prove that would show that there is a substantial risk that he will not confirm to the conditions of his parole.
Chief Justice Warren E. Burger: I suppose that might show that he had done parole three times previously and that all was broken, his conditions with parole that could be --
Mr. Ralph H. Gillan: They would be purely predictive Your Honor and then the next is even less susceptible to approve.
His release would depreciate the seriousness of his crime or promote disrespect for law.
Justice William H. Rehnquist: Mr. Gillan this case itself didn’t come up to the Supreme Court of Nebraska did it?
Mr. Ralph H. Gillan: I don’t know Your Honor.
Justice William H. Rehnquist: Has the Supreme Court of Nebraska ever interpreted this language?
Mr. Ralph H. Gillan: Never --
Justice Potter Stewart: The Government as you know, the United States of America is amicus here, construes the Nebraska statutory provisions as being quite different from the mine runners of statutory provisions governing parole in most states.
If you, do I understand that you disagree with their construction of your --
Mr. Ralph H. Gillan: I am startled at the position that the Solicitor General has taken in this case because I have read the Federal Act and I find it virtually indistinguishable from the Nebraska Act in this respect.
Because the Federal Act also says that the inmate shall be paroled unless the Parole Board finds and I believe one of the criteria is that his release would depreciate the seriousness of his crime or promote disrespect for law.
I think that the Federal Act is very similar to Nebraska Act.
Justice Potter Stewart: Well, do you think the Solicitor General has misconstrued your act or misconstrued the Federal Act?
Mr. Ralph H. Gillan: Well, I think that he has attempted to make a distinction -- I think that he has misconstrued our act and --
Justice Potter Stewart: You don’t believe your act confers an entitlement to release in the absence of specific findings?
Mr. Ralph H. Gillan: No Your Honor, I do not because –
Justice Potter Stewart: So that’s why he does construe it as I understand his brief.
Mr. Ralph H. Gillan: Yes, the act say, our act says he – it shall order his release and they apparently take the position that they confer some sort of an entitlement, but the distinction that I draw is that it does not order his release conditional upon the finding of any determinable facts or any provable facts that no one is capable --
Justice Potter Stewart: In a set of fact findings these are subjective opinion.
Mr. Ralph H. Gillan: Exactly, yes.
Chief Justice Warren E. Burger: Sometimes hunches, is that not so?
Mr. Ralph H. Gillan: They certainly could be hunches and very often it maybe based on nothing more than the Parole Board’s appraisal of the man as he stands before them.
They may reach a conclusion as to his character from simply listening to him and watching him and of course they obviously they will have looked at his record to see what previous crimes he has committed and how many convictions he has had and what he has done in the penitentiary and--
Chief Justice Warren E. Burger: His behavior record there?
Mr. Ralph H. Gillan: Yes.
Justice Thurgood Marshall: And then also concludes that all people like him are bound to commit crime.
Mr. Ralph H. Gillan: No, Your Honor, I don’t think that --
Justice Thurgood Marshall: We’ll judge looking his face.
Mr. Ralph H. Gillan: Well, certainly it’s not an exact science and I think nobody can within a great confidence look at anyone and reach a conclusion that he will or will not commit further crimes but nevertheless--
Justice Thurgood Marshall: Where did you get the hunch from?
Mr. Ralph H. Gillan: Well, I think that --
Chief Justice Warren E. Burger: I think you got it from me, didn’t you?
Mr. Ralph H. Gillan: Yes, I think the word came from the Chief Justice.
Well, no one has got, no one can predict with any certainty that this man will or will not commit further crimes.
The Parole Board is charged with the duty of making those predictions and they do it on whatever basis they have and they are frequently wrong.
Chief Justice Warren E. Burger: When I put the question to you, a proposition to you counsel which is in the sense Judge Hutcheson of the Fifth Circuit used at once in a rather notable article.
In that sense do you think that a parole officer and the Parole Board could terminate parole on the basis of a hunch that this fellow was likely to get into trouble?
Mr. Ralph H. Gillan: Definitely not of course --
Chief Justice Warren E. Burger: And that’s the distinction you make that when it comes to granting parole they have a vastly wider range of --
Mr. Ralph H. Gillan: You made it clear in Morrissey versus Brewer that a man who is on parole has an expectation founded on State Law that his parole will not be terminated in the absence of misconduct and so unless they have evidence of specific misconduct they cannot terminate his parole.
Justice Byron R. White: Mr. Gillan, suppose the State statute provided that the Parole Board could act on the basis of a hunch, say the language was very, very broad and said that because these things are largely discretionary they can act on the basis of their personal experience with respect to certain kinds of people and if they just think that there is some risk that the man may not be behaving properly, they have a statutory right to do it, would that statute be on constitution?
Mr. Ralph H. Gillan: I don’t believe that it would be and I haven’t consider that however –-
Justice Byron R. White: If its not then there really is no fundamental distinction between granting and denying.
If you rely on the, is the status, the language of the statute make any difference.
It seems to me you had another government plays -- argues heavily on that basis but --
Mr. Ralph H. Gillan: Well, of course according to the government’s position as I understand it, the statute could provide no standards whatever.
The government seems to takes the position that this period, this could be in the complete discretion of the Parole Board with no standards whatever in which case I suppose they could under the statute at least to do it on any basis they wished on the whim or a hunch or anything that they saw fit.
Nebraska has seen fit to lay down some standards for the Parole Board to guide them and they exercise their discretion and --
Justice Byron R. White: First of all, will you straighten me on one detail, is an inmate in Nebraska permitted to inspect the file prior to approval of review hearing?
Mr. Ralph H. Gillan: No, Your Honor he is not.
Justice Byron R. White: So that if there is something incorrect or adverse in that file, he doesn’t have whack out of them.
Mr. Ralph H. Gillan: No, that’s right, he does not.
Frequently, I believe that his file is discussed with him if there is something in there which the Parole Board feels is important one way or the other and the granting or denial of parole that matter is discussed with him, but there is no guarantee of course that that will be true and he has no access to it.
Justice Potter Stewart: We submit today a fair determination of facts decisive of rights is the basic purpose of procedure or due process.
The reason for having a hearing is to determine facts and unless there are some facts which are capable of being determined which are decisive with rights, we see no purpose in having a due process hearing.
Justice William H. Rehnquist: Well does that mean really that there are three different positions taken here that the State takes a position there is a neither a liberty or property interest involved, the government says there is a -- the Federal Government says there is a property interest because of the statute and your opponent say there is a liberty interest because of the freedom that would resolve from the granting of parole.
Mr. Ralph H. Gillan: I say that there is no liberty interest, because the liberty interest has been taken away from him by his conviction and sense.
And that liberty interest can be revived only in the event that a state statute makes provision for its being revived.
Now, in a situation where he is granted a parole then the State by its action pursuant to the statute has recreated the liberty interest and has provided that cannot be taken away from him in the absence of misconduct.
But until that liberty interest is recreated it does not exist.
I believe that this matter has to be considered pretty much in property right term, property interest terms which must be created by a State statute in this situation and unless we find an interest created by State statute in a parole then it doesn’t exist --
Justice Potter Stewart: Mr. Gillan, doesn’t the Nebraska Statute first provide that after a certain period of time the inmate is eligible for parole.
Mr. Ralph H. Gillan: Yes sir.
Justice Potter Stewart: Doesn’t it secondly provide that one who has reached that point in time shall be released parole unless there is certain adverse findings made.
Mr. Ralph H. Gillan: Yes, Your Honor.
Justice Potter Stewart: And then doesn’t the decision on whether those adverse conditions exist or not determine whether or not he will be in jail?
Mr. Ralph H. Gillan: It does Your Honor, but it --
Justice Potter Stewart: You say that’s not a liberty interest whether or not he is in jail.
Mr. Ralph H. Gillan: Well, it is not dependent upon facts there are no facts.
Justice Potter Stewart: Well your first -- maybe a liberty interest, but it is not a deprivation of liberty because he is already in jail.
Mr. Ralph H. Gillan: That’s correct and there are -- there is nothing, now if we look at a due process hearing as an attempt to discover facts decisive of rights, there are no facts.
Justice John Paul Stevens: May I interrupt with just another, supposing the statute provided a 10-year term, the man was in jail.
The expiration of the 10-year term they decided just to keep him in jail, would he deprive of his liberty?
He is already in jail.
Mr. Ralph H. Gillan: If the sentence is for 10 years.
Justice John Paul Stevens: Right, but he is already in jail, has he been deprived of his liberty if he just stays there.
Mr. Ralph H. Gillan: Well, he is not in jail then for sure to the sentence.
Justice John Paul Stevens: Now the question is whether the deprivation is a deprivation of liberty when he is kept in jail longer than the law provides.
Mr. Ralph H. Gillan: Well, the sentence of 10 years is imposed by the court pursuant to law after the expiration of that 10 years, he is no longer being detained pursuant through the sentence, he is simply being detained by unlawful --
Justice John Paul Stevens: But is he being deprived from his liberty.
Mr. Ralph H. Gillan: I beg your pardon.
Justice John Paul Stevens: But is he been deprived with his liberty?
Mr. Ralph H. Gillan: Yes, because --
Justice John Paul Stevens: Well, then why not if at the end of the parole eligibility period there is a law that says he is entitled to get out unless certain conditions are present.
Why hasn’t he then deprived of his liberty if they keep him in contrary to those provisions of law because, what’s the difference?
Mr. Ralph H. Gillan: In terms of whether there is a deprivation of liberty?
What’s the difference?
Justice John Paul Stevens: Well, if this were dependent upon a factual determination then I would say that if the facts that were true that conditionally give him his liberty, then perhaps he would be deprived of a liberty interest.
Chief Justice Warren E. Burger: On Justice Stevens hypothesis, is that a Guarantee of Liberty as the constitution guarantees your liberty and my liberty right now?
Mr. Ralph H. Gillan: No it’s certainly, not any guarantee of liberty.
Chief Justice Warren E. Burger: It’s an option for possible release, is it not?
Mr. Ralph H. Gillan: Yes, that’s right Your Honor conditioned upon --
Justice Thurgood Marshall: Would you mind reading that statute again it puts an option in them, didn’t that -- would shall in there?
Mr. Ralph H. Gillan: That’s correct.
Justice Thurgood Marshall: Is that an option?
Mr. Ralph H. Gillan: Well, but it is condition.
Justice Thurgood Marshall: Does it share your idea with option?
Mr. Ralph H. Gillan: Unless it can be on its condition.
Whenever the Board of Parole considers a release of a committed offender who is eligible for release on parole it shall order his release unless it is of the opinion that his release should be referred because there is substantial risk that he will not confirm to the conditions of parole.
B, his release would depreciate the seriousness of his crime or promote disrespect for law.
His release would have a substantially adverse effect on institutional discipline or D, his continued correctional treatment, medical care or vocation, or other training in the facility will substantially enhance his capacity to lead a law abiding life on release at a later date.
Justice Potter Stewart: That’s really not much difference from saying, your point as it drains all the force, the normal force out of the word “shall”.
Mr. Ralph H. Gillan: Yes.
Justice Potter Stewart: It says though, it said that Parole Board shall order his release unless it decides that it would be a bad idea.
Mr. Ralph H. Gillan: Correct, as I cite in my brief, there are two States, I think as I believe it is Kansas and Iowa, which have substantially identical statutes, not as elaborate as this but in one of them they say “shall” and the other one they say “may” or “shall have the power to” and it would be preposterous I think to say that there is a difference because in the one case it would be saying that the State Parole Board could reach a conclusion that he should be released and that there is no reason why he shouldn’t be released and the statutory criteria had been met and yet because it said that they shall have the power to do so that they could keep him in the penitentiary simply because it didn’t say “shall”.
Justice Thurgood Marshall: Don’t you not responsible for Delaware, but is that true that today we’ve had two unique arguments, one is the man can be put in jail on the hunch and the other is that he can be kept there on a hunch.
Mr. Ralph H. Gillan: I inferred, no one suggests.
Justice Thurgood Marshall: Would then State Delaware doesn’t want?
Mr. Ralph H. Gillan: Well, certainly.
Justice Byron R. White: Mr. Gillan, you were just reading the statutes supposing there are four reasons why parole release may be denied. One that he may be is, we will not confirm the conditions of parole and then they list the other three.
Now assume you have a case in which the members of the Parole Board get together and they all agree that there is A, no substantial risk, B, the letting him out after ten years in jail it wouldn’t create disrespect for the law and C, they say each of these four conditions is met and they’ve put that down in writing and say so.
Don’t they have a statutory duty to release him.
Mr. Ralph H. Gillan: Yes, they do.
Justice Byron R. White: Then there is a duty in some circumstances.
Mr. Ralph H. Gillan: Well, they certainly have a duty to attempt to obey the law to the best of their ability and I think no one has suggested that that they don’t do it.
They reach the -- if they reach the conclusion that he should be released they release him.
Chief Justice Warren E. Burger: They wrote all those things off that probably could be mandamus because the discretionary factor would all be washed wasn’t it?
Mr. Ralph H. Gillan: Yes.
Chief Justice Warren E. Burger: They would have found all the things necessary to release him therefore have to be a mandamus case.
Mr. Ralph H. Gillan: If I’d may, unless there are further questions.
Justice Byron R. White: Yes one further question, if they made those findings would he have a federal constitutional right to be released even though his liberty was then being deprived?
Mr. Ralph H. Gillan: If they were to make the finding off the record that they were listed, the opinion that these things were true and they may, such a finding then I suspect that they could be mandamus to release him or perhaps have--
Justice Byron R. White: But, would it be because as the Federal Constitution would then entitle them to their liberty.
Mr. Ralph H. Gillan: It would be because the State Statute entitled them to their liberty if the court order make, I mean the Parole Board were to make a finding that they were of the opinion that all of these things had been met, but we nevertheless conclude not to parole him for some undisclosed reasons, which is not authorized by the statute then I think that they would be entitled, he would be entitled to his release under the State’s Statute.
Justice Byron R. White: I understand, but they also have federal right to release.
Mr. Ralph H. Gillan: I question that, I haven’t considered it Your Honor, so I would like to give that some thought before I.
Justice Thurgood Marshall: It does applied in Nebraska.
Mr. Ralph H. Gillan: I beg your pardon.
Justice Thurgood Marshall: Federal Constitution does apply to Nebraska.
Is that a part of the reason why you don’t want to put it down in writing?
Mr. Ralph H. Gillan: Well, probably we don’t want to put record in writing.
Justice Thurgood Marshall: The reasons for not granting the parole.
Mr. Ralph H. Gillan: Well, the reason we don’t want to put it in writing is that, it would convert the hearing from a determination of these purely subjective matters to an evidentiary hearing and it would probably require the Parole Board to make a record and present evidence which would justify a denial.
Many times it would be a --
Justice Thurgood Marshall: But the Board admits that and on each case they go through each one of these four points.
Mr. Ralph H. Gillan: Well.
Justice Thurgood Marshall: Do you agree is that true?
Mr. Ralph H. Gillan: They go through yes I assume.
Justice Thurgood Marshall: The statute requires them to.
Mr. Ralph H. Gillan: I’m sure that they.
Justice Thurgood Marshall: So why could they just make a note on each one of them.
Mr. Ralph H. Gillan: Well, suppose that the reason that they decided that, not to grant this man a parole was that because of the nature of his crime his release would depreciate the seriousness of his crime or promote disrespect for law.
That’s just a general subjective feeling of the members of the Board of Parole that this man has convicted a – have been convicted a very serious crime and that to release him now would depreciate the seriousness of the crime.
Now, if they have got to present evidence to show that I don’t know how they would do it.
We had a man who was convicted of robbery and in the process of their robbery he gouts the women witnesses eyes out to prevent her from identifying.
The Parole Board is going to feel that he should probably never be paroled but how does one present any evidence.
Justice Thurgood Marshall: (Inaudible) --
Mr. Ralph H. Gillan: That could be given as a reason perhaps but to present evidence I think that it would --
Justice Thurgood Marshall: That wouldn’t be -- if we had then it would be in the record wouldn’t it?
Mr. Ralph H. Gillan: Yeah, that’s the record but how is that evidence --
Justice Thurgood Marshall: The records in this case show the man gouts down the woman’s eyes.
Mr. Ralph H. Gillan: But is that evidence that his release would depreciate the seriousness of his crime or promote disrespect?
Justice Thurgood Marshall: My point is, I have a question what they say.
I’m just questioning why they can’t say it?
Mr. Ralph H. Gillan: Well, so many times it is purely subjective and it’s simply something that is not susceptible of factual proof.
Justice Potter Stewart: What was this person convicted of?
Mr. Ralph H. Gillan: He was convicted of robbery Your Honor and was given 50 years and the minimum sentence for robbery is 3 years.
So he may have been given something like 20 to 50, but the maximum he was given was 50 --
Justice Potter Stewart: What was he allowable maximum?
Mr. Ralph H. Gillan: The allowable maximum was 50, that was the maximum term he was given, and the greatest minimum he could be given would be one-third of 50.
So he couldn’t have been given more than about 16 years as a minimum and at the end of 16 years he would be eligible for parole.
Justice Potter Stewart: Was he, well so much of this depends upon the original sentence in which theirs is a, never have been thought, would be any requirement of any fact finding or any entitlement on the part of the convicted defendant to short sentence or a medium sentence as contrasted with an allowable longer sentence.
Mr. Ralph H. Gillan: That’s correct.
Everybody is eligible for parole after one-third of the maximum sentence and -–
Justice Potter Stewart: One-third of the maximum sentence.
Mr. Ralph H. Gillan: Yes.
Justice Potter Stewart: Regardless of what was imposed by the Judge.
Mr. Ralph H. Gillan: Yeah, regardless of what the Judge may want to do.
Justice Potter Stewart: But what he actually imposed?
Mr. Ralph H. Gillan: Yes, they’re eligible after serving one-third of the statutory maximum sentence.
Argument of William Alsup
Chief Justice Warren E. Burger: Mr. Alsup?
I know that you said in your mixed brief that the re-acknowledge the government acknowledges, the requirement of statement of reasons has become an accepted part of due process safeguards then also sentencing Judge is oppress to grant probation and suppose let’s defense counsel argue that as they often do and then he precedes to sentence a man to 10 to 30 years or 3 to 9 years, does the sentencing Judge give reasons for it?
Mr. William Alsup: Absolutely not, Your Honor.
Chief Justice Warren E. Burger: Now that statements are little bit sweetening isn’t that you?
Now in your brief at page 45, little bit broad.
Mr. William Alsup: Well, Mr. Chief Justice, the decisions and the Court sends the Roth case at least in many instances that’s including the Morrissey case have required a statement of reasons as part of the bundle of rights that the Court has prescribed for given circumstance and our reference in the brief an acknowledgment of the fact that on occasion the Court has required a statement of reason.
Chief Justice Warren E. Burger: You say in these circumstances, you regard the circumstances the same in Morrissey and here?
Mr. William Alsup: No Your Honor, they’re different circumstances.
Chief Justice Warren E. Burger: Quite different, aren’t they?
Mr. William Alsup: Yes, Your Honor.
Justice William H. Rehnquist: Do you think Morrissey turned on in the presence of a liberty interest or the presence of the property interest?
Mr. William Alsup: Morrissey turned upon an entitlement to liberty that was created by the implicit promise as the Chief Justice recognized in the opinion for the Court that that conditional liberty would not be revoked unless certain specified conditions were met.
Justice William H. Rehnquist: So you feel that parole provisions of Nebraska here are different than the Morrissey type provisions that you were just describing as refereed from the Chief Justice as it had been, because I take the government’s position is a property interest of the.
Mr. William Alsup: Well, the government recognizes that the entitlement of property cases are analogous to the entitlement of liberty cases just in fact that very analogy was used by the Court in Wolff versus McDonnell that there could be a statutorily created right to liberty just as there could be a statutorily created right to property.
I should -- if there’s any confusion on the.
Justice Byron R. White: Whatever it is, you’re talking about something rooted in the State Law.
Mr. William Alsup: That’s correct or in a Federal Statute.
Justice William H. Rehnquist: Yes, but here in the State Laws.
Mr. William Alsup: That’s correct.
Justice William H. Rehnquist: I take it of Supreme Court of Nebraska next month were to say that the Federal Governments constructed its parole statute were wrong and that it’s a purely discretionary thing.
The government’s argument would be somewhat different in this case?
Mr. William Alsup: If the Supreme Court of Nebraska were to give an authoritative ruling saying that this statute does not mean what it appears to mean, and it’s a purely discretionary parole preceding with no right or entitlement to release upon certain conditions then we would take the position that there would be no due process hearing required.
So I think the answer is Mr. Chief Justice Rehnquist, yes, if they were to change the law then –
Justice William H. Rehnquist: You flatter me.
Justice John Paul Stevens: Mr. Alsup, on that point supposing Nebraska adopted a statute that said that the revocation of parole shall be purely discretionary with the Parole Board.
Okay do it on a hunch for any arbitrary reasons, so that be no reasonable expectation of continued parole if the Board decided to change its mind and such a statute would be constitutional on your judgment.
Mr. William Alsup: Let me respond Mr. Chief Justice Stevens in two respects.
First, there might be a cruel and unusual punishment problem with such a form of punishment that allowed an individual to go back into his community to reestablish roots with his family and then for an arbitrary and capricious reasons to be ripped out of that environment.
Whether or not that would be unconstitutional on that ground I can’t say but certainly such an issue would arise –
Justice John Paul Stevens: Just under the rationale of Morrissey against Brewer just going and staying in the four corners of that opinion the statute I described be constitutional or unconstitutional on your review.
Mr. William Alsup: Again not to fight the hypothetical too much I think this Court.
Justice John Paul Stevens: It is listed in your brief in some way.
Mr. William Alsup: Well, I think we would have to say if in fact it were purely discretionary right to revoke then the particular person out on parole would have no legitimate expectation of continuing with his liberty.
I have to say Mr. Justice Stevens.
Justice John Paul Stevens: And would it follow then that such a statute would be constitutional.
Are you saying even on parole revocation that the parolee’s right to a hearing is entirely based on a statutory grant?
Mr. William Alsup: Let’s say, if I understand the circumstances.
We have a parolee who has been released subject to the normal conditions and in addition there’s a statute which allows the Board to revoke parole out of whim.
Justice John Paul Stevens: That’s right and the parolee when he’s released gets a copy of the statute and he’s told if we get worried about the way you’re behaving even if we don’t have any proof of anything at all we have the power to revoke your parole like that.
Is then that statute constitutional?
Mr. William Alsup: There might be a problem with such a statute under the division that was apparent in the Court in the Arnett case in which some of the Justices took the position that a substantive right could be prescribed by the state legislature but the procedure for revoking it could not be and I believe six Justices rejected the position that such arbitrary procedures could be huge.
Justice John Paul Stevens: I’m familiar with Arnett case, I’m just curious about whether the government has a position on the question which I’ve asked you which you, would you willing identify for us.
You surely have thought about it before you came here today.
Mr. William Alsup: Well, that of course is not the case is presented here.
Justice John Paul Stevens: Well, I know but if you just decline to answer you say so.
Mr. William Alsup: Well, I would, I’d say subject to the --
Justice John Paul Stevens: I would like to know what it is.
Mr. William Alsup: Well, we do not have a position and I can only say that there would be Arnett versus Kennedy problem.
Chief Justice Warren E. Burger: Well, in the Federal system particularly on many of the States, inmates are released on what’s now called work release very frequently independent of any statute and independent of the parole system they want to go somewhere and work on a job and report back.
Would you think that once an inmate is allowed to go and work on a job, he has acquired some new or different interest from what he had before he was allowed to go on a work release program?
Mr. William Alsup: In such cases that Mr. Chief Justice I think the government’s position would be clear most of these worked furlough programs are for short durations up to 30 days, and it is in absolute condition of any of those work study or work release programs that the Warden or the Bureau of Prisons has a absolute authority to terminate the program or the liberty at anytime.
Under those circumstances under a statute or in regulation which conferred no entitlement to work release or furlough, we would say there will be no right to a due process hearing at all.
Because there has been some questions raised about the Federal Parole System or perhaps I could take just a moment to draw the Court’s attention to two features of the Federal Parole Statute which at least for purposes of the issue that’s presented here distinguish the Federal Parole System.
Unlike the Nebraska Statute which creates a presumption that the prisoner will be released at the first moment of eligibility or shortly thereafter, the United States Parole Commission Statute establishes utmost a presumption that the prisoner will be released at sometime during the guidelines established by the United States Parole Commission.
The Commission is absolutely free in its discretion to select a date within that guideline range, although if the commission selects a date outside the guideline range, the commission must have good cause to do so.
Because the commission has absolute discretion to select a date within the guideline range under the position that we have taken no due process hearing and all would be required so long as the release date is selected does fall within that guideline period.
Now that’s under the statute itself.
I should hasten to say as a second distinguishing feature that by regulation, the United States Parole Commission has adopted a procedure of setting a presumptive release date which, very soon after the prisoner arrives at the Federal Institution which tells the prisoner that on, for example, March 3rd 1981, the prisoner will be released so long as a, there’s good behavior be a satisfactory release plan has established and finally there’s no subsequent new information that comes to light which shows that the original plan was a mistake in the first place or the original date was a mistake.
Now, in fact just by regulations issued yesterday by the Parole Commission this presumptive release date practice is now been extended –-
Chief Justice Warren E. Burger: Did you state that Federal?
Mr. William Alsup: That’s correct.
Chief Justice Warren E. Burger: Okay.
Mr. William Alsup: This Federal procedure of a presumptive release date has now been extended by regulation issued yesterday to virtually all Federal prisoners.
The significance of that is that under the position of the United States, once a presumptive release date is set subject to those conditions it cannot be changed or altered without some sort of the due process hearing.
With respect to the merits, it is our position that denial of parole requires a due process hearing only where the statute or regulations or some mutual expectation as the Court said in the Leis versus Flynt case last Monday, exist to create an entitlement to release.
We think this follows from two propositions.
First, the denial of parole itself does not result in a deprivation of liberty, the deprivation of liberty occurs upon conviction.
The denial of parole continues the incarceration under that lawfully imposed sentence.
Now, if the Court accepts that argument then the remainder of the argument seems to be dictated by this Court’s decisions since Roth in which the question has been very clearly posed in terms of whether or not to State or Federal Statute or some custom has created an entitlement under given circumstances.
Here the Nebraska Statute does create an entitlement to release so as the Court of Appeals found upon subject to defeasance upon any of four conditions and we believe that does fall within this Court’s definition of what an entitlement.
Justice Potter Stewart: Of the Court of Appeals found that you say that there wasn’t a single Nebraska Judge on the Court of Appeal.
Mr. William Alsup: I’m not sure what States the --
Justice Potter Stewart: I’m – no, there wasn’t any.
Mr. William Alsup: Well, I can only say that they’re responsible when they take cases from the District Court of Nebraska and in the past, this Court has been willing to defer to a Court of appeals understanding on State Law involved.
Chief Justice Warren E. Burger: Sometimes the Jury defer a little bit more when there is a Judge of a particular state sitting on the panel although that doesn’t ride us to constitutional dimensions of course.
Mr. William Alsup: Well, quite right Mr. Chief Justice.
Justice William J. Brennan: Sometimes we defer when – it’s even in the different circuit for.
If not other state involved.
Mr. William Alsup: Well, whether or not there should be deference in this case it does appear that the plain language of the statute does provide a presumption of release subject to defeasance for one of any four conditions.
Justice William J. Brennan: Is that you’re using entitlement as setting [ph] them for properties –-
Mr. William Alsup: No, an entitlement either to liberty or to property.
Justice William J. Brennan: I see, and you don’t use, here entitlement to what?
Mr. William Alsup: It looks more like liberty than property but because it an entitlement and because both liberty and property are used together in the Due Process Clause, we would think that the analysis which respect to each would be the same whether or not there is some entitlement either to liberty or to property.
With respect to what processes do there is normally the due process cases in this Court have address the full panoply of rights or components on the hearing.
In this particular case the petition only raise two issues.
One of those issues was when should the hearing be held not about the components should be and other issue is whether or not a summary of the evidence of fact should be required.
In my remaining time I would like to address briefly just the first of those.
It is a very important question that differentiates parole releases from parole revocation and at one with the question of when the hearing itself should be held.
Unlike the case in Morrissey where the revocation hearing had to come in the wake of the alleged violation, here we have a sensitive process of monitoring the progress of an inmate and the very question itself was determining when is most propitious movement to hold the hearing is itself a delicate question subject to the expertise in the Parole Board.
And for that reason we would suggest that perhaps the Court of Appeals was an error in mandating that that hearing be held at the first movement of eligibility rather than perhaps at a movement when the hearing might really do the inmate or good.
Argument of Brian K. Ridenour
Chief Justice Warren E. Burger: Very well, Mr. Alsup, thank you.
Mr. Brian K. Ridenour: Mr. Chief Justice, may it please the Court.
The crucial and overriding question presented by this case is a fundamental fairness of parole release proceedings in the State of Nebraska.
Chief Justice Warren E. Burger: What do you think about the question I put first to you on Brandon, if a Judge who has the option to grant probation at the time of the verdict permits a hearing, an argument on whether it should be granted and then simply without any elucidation denies probation and sentences this defendant to traditional term, must you give reasons?
Mr. Brian K. Ridenour: I would start first from the proposition Your Honor, that in sentencing the process if there’s typically not been a requirement for a statement of reasons for the sentencing --
Chief Justice Warren E. Burger: I’m trying to find it out.
I’m trying to see if there’s some analogy.
What if he then carried on suppose he – the counsel says I’d like to argue and present some evidence as to why you should grant probation here and the judge says no I don’t need any argument and I don’t need any evidence, I’ll decide this matter on my own and he adjourns Court and later or at this very time opposes the sentence 10 to 30 years, 3 to 9 years, must he give reasons, must he conduct the hearing, it’s been the question.
Mr. Brian K. Ridenour: Yeah of course in the concept -- in the process of the criminal proceeding the inmate or the individual has been accorded a great deal of due process, the facts upon which a judge will base his assertion.
Chief Justice Warren E. Burger: Well, but now that’s all have been terminated with the verdict of the jury.
Mr. Brian K. Ridenour: Correct Your Honor, but the judge is acquainted with the facts that came through that process and that’s the facts that will influence his decision as to whether or not to grant probation, as to whether or not what sentence is going to be complied.
Chief Justice Warren E. Burger: But in most states as you’ll find the statute that permits the judge to grant probation, does that create a reasonable expectation that the judge might grant probation?
Mr. Brian K. Ridenour: It creates a reasonable expectation in my line that the judge might grant probation and to the -- the due process has been accorded throughout the criminal proceeding accords the inmate or the individual what he is entitled to.
As to your question on reasons I think there is a fundamental distinction between sentencing and the parole system.
In sentencing if you deny -- if you indicate that you are not going to grant probation, there is no function served as such by the reasons.
It does not advise that individual of anything that he could do to get probation in the future.
It’s the decision made at that point.
On the other hand in the parole process if you advise the inmate of the reasons for his denial of parole, then at a future time he can work or as he goes along he can work on those items and attempt to convince the Board at his next hearing that he should be granted parole.
Chief Justice Warren E. Burger: Isn’t that almost exactly the same thing if the judge is required to say why he denies probation, and then denies it, and the prisoner goes to the institution he has got a little bit of a idea of what he should do in order to qualify for a parole, is that not so?
Mr. Brian K. Ridenour: I have not -- frankly certainly Your Honor the factors or considerations would be precisely same in the probation versus a parole concept.
I would agree with you it would probably help the inmate though to know something about what he should be doing to correct his personality problems whatever they maybe, so that he can better convince the parole board to grant him parole, but that might be several years, three, four, five years off and the parole board’s attitudes maybe significantly different than what that sense in judge’s attitudes maybe.
As the Solicitor General has argued here, a liberty interest is created by the statutes in the State of Nebraska.
That interest is routinely deprived by the practices employed by the Nebraska Parole Board, but it’s not yet been pointed out to the Court with any specificity if the stage at which the parole release decision is made in the State of Nebraska and the lack of procedural protections which are there afforded.
In fact the parole release decision is seldom made at the final parole hearing rather it is made in the State of Nebraska at a case in record review, a proceeding at which few of any procedural safeguards are employed.
In these reviews the inmate is not entitled to present evidence either documentary or live.
He is not entitled to the assistance of counsel or counsel substitute.
He is not entitled to see, hear, or know of any adverse information received or considered by the Board.
Indeed the most fundamental of the procedural protection is his presence of that hearing is in practical reality denied.
The Board of Parole Nebraska conducts these review hearings on two days out of each month.
During the period of July 1, 1975 through June 30, 1976 they conducted 645 of these hearings on those two days out of each month.
At average it is out to about seven minutes per hearing at which the Board’s principal function is ask the inmates a few questions and then excuse him from the room while they make their determination.
Justice William H. Rehnquist: Well, Mr. Ridenour would you suggest that litigants are entitled to be present at our conference following the open sessions of the Court because that’s where we really decide the case even though they had an opportunity to have their counsel argue at an open Court?
Mr. Brian K. Ridenour: No Your Honor I’m not suggesting that at all.
I’m suggesting that an inmate is entitled at least to an appearance before that Board at which he has a realistic opportunity to make his case if you want to call it that known to the Parole Board as to why he should be granted parole, I’m saying Nebraska in effect denies that right.
Justice William H. Rehnquist: But he does have an opportunity to appear before the Parole Board, doesn’t he?
Mr. Brian K. Ridenour: For five minutes at a review hearing.
Justice William H. Rehnquist: Well, you say that we are prohibited by the constitution from limiting arguments to say 30 minutes?
Mr. Brian K. Ridenour: I think there is a requirement -- no I don’t think that you are prohibited by the constitution from limiting arguments to 30 minutes.
I don’t think you’re required to give me an argument at all in this case you could, you could submit the case on briefs.
Chief Justice Warren E. Burger: We decide in our cases without argument than with argument, don’t we?
Mr. Brian K. Ridenour: Certainly, but you are not affecting, Your Honor, my interest, you are not affecting me the person appearing before you, statements in the parole context and the risk of the erroneous decisions inherent in the types of records of Parole Board deals with and the type of discretionary decisions they make, that inmate must have or his counsel or someone must have the ability to examine those records and to make corrections and to appear before that Board and make his case.
Justice John Paul Stevens: Mr. Ridenour what if the Nebraska law simply listed these factors just like they are and said, the decisions shall be entirely within the discretion of the parole officers and not subjected to judicial review, it is completely within the discretion of the parole boards.
Mr. Brian K. Ridenour: I think the very listing of factors Your Honor regardless of the prefatory language in the statute limits in some effect that discretion.
It channels --
Justice John Paul Stevens: But the statute says that all you have to do is to-- is hear the factors then you apply it.
But I suppose you could say, couldn’t you?
And I think our cases might indicate this, you could have a liberty of property interest, but no right to procedures simply because the hearing would do no good.
Mr. Brian K. Ridenour: But I believe in the contexts that we are dealing with Your Honor hearing in fact will do good because there are objective factors required to be considered by the Nebraska Statutes associate be shall consider -- the Board shall consider the 14 factors.
Justice John Paul Stevens: What -- at the most so far what you’re saying is that the inmate should be assured that they went through the procedure?
Mr. Brian K. Ridenour: That they considered the factors and that the factors were in fact correct.
Justice John Paul Stevens: That has very much to do with the hearing.
Mr. Brian K. Ridenour: It does in the sense it gives the inmate the ability to know whether the factors --
Justice John Paul Stevens: But what if the statutes said that when they are through, they will certify what they did.
They, we considered the following factors and we exercised our discretion, we arrived at this conclusion.
And if you had a hearing, if you put him on the stand, they would say, yes we considered every one of them.
And the statute says, the result is within your discretion.
Now does due process require anymore than that?
Mr. Brian K. Ridenour: Due process requires or the state statutes in the first place Your Honor requires those factors to be considered, many of those factors can come only from the inmate and the only opportunity he would have is either through a written submission--
Justice John Paul Stevens: Or he might have an opportunity to make sure they considered it.
Mr. Brian K. Ridenour: I would suggest that a written submission Your Honor in the case of many inmates would not be an adequate opportunity for that inmate to make his case.
There are many inmates who simply cannot express themselves in writing, cannot bring forth factual information they might need to.
They need the opportunity to appear before that Board to have a meaningful chance to talk to that Board and to make the case for parole.
Justice John Paul Stevens: Do you think you should be able to testify or call witnesses?
Mr. Brian K. Ridenour: I do Your Honor.
Let me clarify I think in that respect why I think that is true.
In Nebraska there are two types of parole proceedings, the review hearing and the final hearings.
It’s at the review hearing the decision is typically made.
They decide at the review hearing whether the inmate should be set for a final hearing in the case.
It’s used as a screening device.
I would suggest to the Court in Nebraska that the final hearing is in fact simply confirmation of the prior decision of the Board at the review hearing.
Roughly, well in a six month period 375 inmates at Nebraska who were eligible for parole were denied that final hearing on the basis of the review hearing.
Now the final hearing Nebraska statute permit --
Justice Thurgood Marshall: -- hearing with a lawyer, I shudder.
Mr. Brian K. Ridenour: I shudder at the thought too if all hearings were to have lawyers at it and if it was of very adversarial nature.
I don’t suggest that it should be anything but in formal; I think that the inmate should have the opportunity to bring in the witness for in an in formal discussion if he has witnesses who indeed can present evidence that --
Justice Thurgood Marshall: He can ask some of the inmates or someone like that.
Mr. Brian K. Ridenour: We are not contending here that he has a right to an attorney in this type of proceedings.
Nebraska at the final hearings permits the inmate if he can afford counsel on his own to have those -- to have counsel present.
Chief Justice Warren E. Burger: I think you mentioned 645 hearings.
Mr. Brian K. Ridenour: 645.
Chief Justice Warren E. Burger: Seven minutes, seven minutes was the average.
Mr. Brian K. Ridenour: That’s my computation.
Chief Justice Warren E. Burger: My take at that means that some hearings might have been 30 minutes and some might have been two minutes or --
Mr. Brian K. Ridenour: It’s not my understanding Your Honor in review hearings of many there would be a rare exception that any would run 30 minutes.
The testimony of the Chairman of Board of Parole was that in general these hearings take no longer than 10 minutes.
Chief Justice Warren E. Burger: Well of course in many courts, including this one.
Some matters are resolved with finality, with no -- not only no hearing, no discussion, just after the Justices have reviewed the papers.
Do you suggest there’s any denial of due process there?
Mr. Brian K. Ridenour: No, I think most cases arising in this Court however have come from lower courts where there was in fact a great deal of due process court and that’s significantly different in the parole situation.
Chief Justice Warren E. Burger: And now when you talk about the informal procedure the very purpose, historic purpose of procedure and formality is to speed up the process instead of letting people just wander all over the lot and talk at will in any form they want.
So how much time do you think it will take to conduct all the hearings that you are talking about?
Mr. Brian K. Ridenour: I think that it first needs to --
Chief Justice Warren E. Burger: Have you done a calculation on that?
Mr. Brian K. Ridenour: No, I have not done a calculation on that but for each of the formal hearings that we would, in the words of the board they would call it a formal hearing, if they could call it due process right so the due process this Court might say was applicable.
They would have one less review hearing that they would have to conduct because the review hearing now serves essentially as a substitute.
Chief Justice Warren E. Burger: Would you guess that would double or triple or add 50% or add --?
Mr. Brian K. Ridenour: It would approximately double the number of formal hearings that were likely to be held by the Nebraskan Parole Board during the year.
I don’t believe that that adds a significant burden to them nor that’s a burden that can be easily handled.
They have five members currently; all five members sit at every formal hearing.
The Nebraska statute does not require that, it requires only a majority of the board members to sit with the hearings.
Chief Justice Warren E. Burger: Do you think we should tell Nebraska how many of its parole officers should sit in that hearing?
Mr. Brian K. Ridenour: No, this Court should not tell Nebraska that.
I simply say that because this Court is under its own cases concerned with an analysis of what the burden is to the state of the additional safeguards that it might employ.
I am saying that the burdens incurred in this case wouldn’t be burdens that could be handled by the Nebraska Board of Parole because they have the extra members that they could utilize and because it would result in a like reduction in the number of review hearings that would be held.
I do not argue that there is not some increased burden to the state.
I say simply that the interest of the inmate and his liberty outweighs that burden.
The discussion we have been having of course assumes the applicability of the Due Process Clause to parole release proceedings.
That analysis requires an examination of the nature of the interest at stake.
The analysis must begin I think with an examination of Nebraska’s statutory provisions.
The statute has been quoted here several times.
I think it bears reading again, “whenever the Board of Parole considers a release of committed offender who was eligible for release on parole, it shall order his release unless it is of the opinion that his release should be deferred because,” it lists then the four statutory grounds upon which parole maybe denied.
That same statute lists 14 factors that must be considered by the Parole Board in its decision. The statute comes from the Model Penal Code, is an exact adoption of that, of the provisions of the Model Penal Code.
Justice Potter Stewart: Is that word shall or may, you wouldn’t have any case at all, you concede that?
Mr. Brian K. Ridenour: I do not concede that at all Your Honor.
I say that the simplest and easiest grounds that this Court can find for my clients on it is on the basis of that statute.
I think there is larger question involved in this case, obviously as to whether an inmate has a constitutional liberty interest in parole, separate and apart from the Nebraska statute.
Justice Potter Stewart: At least in being fully and fairly considered for parole?
Mr. Brian K. Ridenour: At least in that respect, whether it be considered the right to parole or the right to be fully considered, it’s the same result.
I think my clients they have a right to the due process of that --
Justice Thurgood Marshall: You mean their expectations, don't you, because he doesn’t have any liberty now?
Mr. Brian K. Ridenour: I agree with you in that respect.
I think Nebraska statute goes almost as far to create in essence a statutory entitlement to parole not to -- it also creates a statutory entitlement to consideration for parole, but if it goes almost as far as seeing statutory entitlement to parole.
Justice William H. Rehnquist: Mr. Ridenour could I ask you a question about the stipulation of facts that appears in page 30, and 31 of the appendix?
Mr. Brian K. Ridenour: Certainly, Your Honor.
Justice William H. Rehnquist: Paragraph one says discretionary parole is used by the Nebraska Board of Parole as the release on parole by virtue of an exercise of discretion on the part of Board of Parole.
Is that something different than what we are talking about here?
Mr. Brian K. Ridenour: No, we are talking about discretionary parole.
Discretionary parole is a term that the state has long used in describing the process.
I don’t think that by the stipulation we mean to say that it’s an exercise solely of discretion or that discretion is unbridled or un-channeled by the state statutes however.
Justice William H. Rehnquist: But you say in the stipulation that there is a release on parole by virtue of an exercise of discretion on the Board of Parole?
Mr. Brian K. Ridenour: I do not deny that there are large elements of discretion in the parole release proceeding, but I suggest that Nebraska statutes channel and instruct the Parole Board on how to exercise that discretion.
And under those circumstances there is a statutory entitlement to a fair consideration of parole.
In discussing that very statute the National Advisory Commission on the Criminal Justice Standards and Goals stated that the model penal code represents a turnaround in the traditional assumption that the burden of proof however evaluated rests on the inmate.
It proposes that an inmate is to be released on parole when he is first eligible unless one of the four conditions exists.
I suggest to the Court that the statute therefore creates a presumption in favor of release defeasible only if one of the limited number of grounds for denial is found to be present.
This case thus unlike is Meachum versus Fano where there was no such statutory entitlement.
It rather is like the Morrissey case, it is like Wolff versus McDonnell both in that it affects the term of confinement of the inmate rather than the conditions of confinement as were at issue in Meachum and because --
Chief Justice Warren E. Burger: What if, what if the record showed that a particular inmate coming up for eligibility and his record is being processed in the board and by the staff and it shows that seven times in four years he was put in solitary confinement for assaulting fellow prisoners and guards, and the most recent being within 30 days.
Chairman of the Parole Board says that, no use of even wasting seven minutes on this fellow, no hearing at all.
Mr. Brian K. Ridenour: You are asking me, do I think he has been denied due process?
I certainly do.
Part of the risk in the Nebraska procedure and I think in any Parole Board, the procedure that might be the file of another individual and at least by that, it might be the file of another individual.
You may have two John Does and you are looking at the wrong John Doe and you deny the hearing to the individual who was --
Chief Justice Warren E. Burger: That’s what we are suggesting. Morrissey is the only reason for holding it, but suppose there is only one John McCormick Doe in the entire prison, and the Chairman says, check this out and they say, yes there is only one.
Mr. Brian K. Ridenour: I certainly agree with you Your Honor that in some extreme circumstances we are going to know, and the Parole Board is going to know, beforehand that a hearing-- and perhaps the inmate will know, is essentially useless.
But in many cases I think it will be very useful both to the inmate and the Board.
And if the Court can instruct us on how to draw a line between what will be useful and what won’t in that standpoint, I think you know it would be very helpful to our concern, but absent that kind of a line I think that all of those hearings are going to have to be conducted for the benefit of the many over those -- over the extreme examples.
The Board has argued here in some of the questions of concern this objective of discretionary nature of the decision.
I think it’s important to note that this Court’s cases have required a consideration of the interest at stake, not the nature of the board’s proceedings in determining whether due process applies.
Release proceedings in my mind are two step process, the first is a fact gathering process, through the file, through the social history of the inmate, through the correctional department talking to the employee, the people he may be employed by, it gathers many objective facts that the Parole Board will consider in the exercise of its discretion; that discretion being the second step in the parole process.
But it’s significant and important to the inmate and so they have the ability to ensure that the facts upon which that predictive expertise of the Parole Board is exercised are accurate and correct in order to prevent the occurrence of inaccurate decisions based upon inaccurate facts.
Briefly I’d like to call the Court’s attention as well the notice provisions undertaken by the State of Nebraska as to parole proceedings.
In the State of Nebraska at a parole release review hearing or at a final hearing if the inmate is either deferred or denied parole, he is informed of the month during which he will next appear before the Board.
He is not advised however as to the day or the hour at which that hearing will occur, that information is supplied to the inmate only on the day of the actual hearing through the posting of a list at the penal complex of the inmates who will be heard on that day.
In notifying the inmates of the reasons for denial particularly following a review hearing the notice takes on the effect of being almost meaningless to the inmate.
The Board uses a pre-printed form called a PB-1 an example of which is located at page 35 of the appendix.
While the Board continues a statuary ground or the form contains statuary grounds for denial of parole, the Board simply checks it off without explanation of what the specific facts upon which it is relying are.
In 80% of the cases it checks item A which reads, your continued correctional treatment, vocational, educational or job assignment in the facility will substantially enhance your capacity to lead a law abiding life when you are released at a later date.
No explanation is ever given on this form to the inmate as to which of the alternatives listed in that item apply to him, and no response is made to an inmate if he requests the Board specifically to tell him whether it is correctional treatment, vocational treatment, educational treatment or job assignment that they are concerned with.
The second part of the form is entitled correctional deficiencies.
It’s commendable that the Board would want to tell the inmates how to correct their deficiencies, but six listed deficiencies are stated on that form, and in 379 I think the figure is, out of 385 cases covered in the survey in the back of the appendix, the inmates had all six items checked, items such as joining self improvement clubs regardless of the fact that the inmate was a member of every self improvement club at the penitentiary.
Justice Lewis F. Powell: Mr. Ridenour.
Mr. Brian K. Ridenour: Yes Your Honor.
Justice Lewis F. Powell: Could you tell us a little bit about the Board in Nebraska, how large is it, how is it selected, for what terms do they serve, how they are compensated and what staff do they have?
Mr. Brian K. Ridenour: I can answer some of those questions, I am not sure I can answer all of them for you Your Honor.
The Board is a five-member board, there of which are part time, two of which are -- three of which are full time, two of which are part time.
They are appointed by the Governor of the State.
Could you repeat some of your other questions to me Your Honor?
Justice Lewis F. Powell: Do they serve the specified terms?
Mr. Brian K. Ridenour: I believe they do.
Justice Lewis F. Powell: And what sort of staff do they have?
Mr. Brian K. Ridenour: I think I am going to have to defer to Mr. Gillan because he works with them on a daily basis and I --
Justice Lewis F. Powell: They do have a staff.
Mr. Brian K. Ridenour: They do have a staff, I do not know how large that staff is, they do much of their own work.
I will acknowledge they do much of their own work and that we are creating a system which may require them to hire additional staff or put on hearing--
Justice Lewis F. Powell: Are the two permanent members the board --
Mr. Brian K. Ridenour: Three permanent members Your Honor.
Justice Lewis F. Powell: Three permanent subject to the jurisdiction of the same individual in-charge of the penal system or they’re independent?
Mr. Brian K. Ridenour: No they are not, they are separate.
Justice Lewis F. Powell: They are independent.
Justice Potter Stewart: Are they compensated?
Mr. Brian K. Ridenour: They are compensated.
Justice Potter Stewart: All five of them?
Mr. Brian K. Ridenour: All five of them, they are compensated.
Justice Lewis F. Powell: And they meet only twice a month?
Mr. Brian K. Ridenour: No, they meet more frequently than that.
They have five days that they conduct hearings during each month.
One of those days is at the woman’s reformatory and for the youth offenders, while two others days are spend on final hearings.
The two days that I was referring two are spend on review hearings.
That’s their general practice throughout the year.
Chief Justice Warren E. Burger: But you are not suggesting that the part-time people put in only two days a month in the aggregate?
Mr. Brian K. Ridenour: No I am not Your Honor.
I really could not tell you how much but I assume they do spend sometime beforehand looking at some of the files at least for the final hearings.
Review hearings I think the process is generally to open the file at the hearing and look at it at that point, just because of the sheer numbers they are dealing with at that point.
With respect to the interest at stake, I could say only that in Morrissey, the Chief Justice indicated that the liberty of a parolee although indeterminate includes many of the core values of unqualified liberty, by whatever name that liberty is valuable and must be seen as within the protection of the Fourteenth Amendment.
I submit to this Court that there is not a significant difference between the present liberty interest whether it be created by statute or it arise from the constitution and this Court should conclude that parole in Nebraska is-- and parole release decisions are subject to the Due Process Clause and that in order for Nebraska to comply with the Due Process Clause the inmate must be afforded a reasonable advance notice, a meaningful hearing, a record of those proceedings, and the opportunity and a written statement of the reasons for denial including the essential facts relied upon.
So that he may specifically know what it is that he needs to do to correct his behavior and to perhaps gain a parole at a future time.
Rebuttal of Ralph H. Gillan
Chief Justice Warren E. Burger: All right well, do you have something further in counsel?
Mr. Ralph H. Gillan: We’ve, not Your Honor except that I will say that the Attorney General’s office does not work with the Parole Board on a daily basis, and so we are not as intimately familiar with their procedures as Mr. Ridenour would indicate.
I will answer one question, they serve six year terms and they have a secretarial staff only.
They have -- there are parole counselors at the penitentiary, but they do not serve under the Parole Board and the Parole Board has no control of them.
The only staff that the Parole Board has is secretarial.
Chief Justice Warren E. Burger: Thank you gentlemen.
The case is submitted.