CONNECTICUT BOARD OF PARDONS v. DUMSCHAT
Legal provision: Due Process
ORAL ARGUMENT OF STEPHEN J. O'NEILL, ESQ., ON BEHALF OF THE PETITIONERS
Chief Justice Burger: We'll hear arguments now in Connecticut Board of Pardons v. Dumschat.
Mr. O'Neill, I think you may proceed whenever you are ready.
Mr. O'Neill: Mr. Chief Justice, and may it please the Court:
The issue in this case is, has the practice of the Connecticut Board of Pardons in granting relief to inmates serving what we call straight life sentences in Connecticut... that is, sentences with no court-imposed minimum term... and relief to the extent that the minimum term set by statute is reduced, thereby accelerating the inmates' eligibility to appear before the Connecticut Board of Parole, giving inmates serving such sentences a due process right to the extent that the Board of Pardons must give written explanations of adverse decisions when they deny such relief.
This is the second occasion upon which we have come to this Court, the parties in this case have come to this Court on the issue of what, if any, kind of a written statement is required when the Board of Pardons denies pardon relief to a so-called lifer in Connecticut.
The first occasion followed a decision in January of 1979 by a panel of the 2nd Circuit which analogized pardons to parole, and held in part that written statements of reasons for denial of parole are part of the due process requirements surrounding parole decisions, this holding was based upon the expectation of inmates in regard to parole possibilities which lead to those inmates acquiring some liberty interest in the parole process.
In May of 1979 this Court decided Greenholtz.
We had petitioned for a writ of certiorari on the January, '79, decision of the 2nd Circuit.
In June of 1979 this Court granted our petition and remanded the case to the 2nd Circuit for further consideration in light of this Court's decision in Greenholtz.
The same panel of the 2nd Circuit, the same three judges, reconsidered the matter.
Parties briefed it by order of the 2nd Circuit but there was no oral argument.
Although concluding that the applicable Connecticut statute, Section 18-26 of the Connecticut General Statutes, offered only the mere hope of pardon, that it does not create a legitimate expectation of freedom, and hence does not implicate due process... and in this regard the panel concluded that Section 18-26 contains neither a presumption in favor of pardon nor a list of factors to be considered by the Board of Pardons, and in fact that the statute gave the Board unfettered discretion.
Despite these conclusions, the court upon reconsideration, affirmed its earlier conclusion, as the consistent issuance of pardons to inmates serving so-called straight life sentences in Connecticut has given inmates serving such sentences a protected liberty interest in the pardons process.
Unidentified Justice: When you say, Mr. O'Neill, the testimony was, what, 75, 85, 90 percent?
It was not straight across the board?
Mr. O'Neill: That's correct, Mr. Justice Rehnquist.
Unidentified Justice: What was the average time, Mr. O'Neill?
Mr. O'Neill: The average time?
Unidentified Justice: Of service?
Mr. O'Neill: The testimony on average time came from the same witness who testified on the percentage of pardons, Mr. Gates, who was then Chairman of the Connecticut Board of Parole.
His testimony was somewhere between 14 and 17 years.
Unidentified Justice: For about 75 percent, is it, of those sentenced under these sentences?
Mr. O'Neill: I think the fairest statement of the testimony is that it's somewhat more than 75 percent, I think is the fairest--
Unidentified Justice: In that sense, there was a pattern, was there?
Mr. O'Neill: --In that sense--
Unidentified Justice: Of parole within 14 to 17 years?
Mr. O'Neill: --Pardon, Your Honor.
Unidentified Justice: Pardon, within 14 to 17 years.
Mr. O'Neill: Within 14 to 17 years.
And that was Mr. Gates' approximation.
It was not based on any study of his records or the Board of Pardons' records.
Unidentified Justice: Well, may I ask, may we accept that as what the practice has been?
Mr. O'Neill: Well, following the... Mr. Gates is a very knowledgeable man and he has been around in the corrections area in Connecticut for decades... following the decision of the 2nd Circuit and before this Court granted certiorari, we did embark upon a process of reviewing the minutes of the Board's meetings for the past five or six years, I believe, to see if we could put together some kind of a pattern, but we really didn't get all that deeply into it when this Court granted certiorari, and we stopped.
One thing that interested me in that search is that I don't know that all inmates serving life sentences apply for pardons.
We get frequent applications from the same inmate, but I wonder if all inmates serving life sentences do in fact apply for pardon, really.
But anyway, that's not in the record up to this point, Your Honor.
Following the ordering of the filing of the records, as the Court has indicated, the 2nd Circuit remanded to the district court to determine how many years a lifer must serve before the probability of a pardon becomes so significant as to give rise to a protected liberty interest.
The finding or conclusion of the 2nd Circuit that the consistent issuance of pardons... again, from the facts in the record, somewhere around 75 percent... and it's also referred to as the regularity of their issuance... is again, as I indicated, based on the testimony of Mr. Gates.
In Board of Regents v. Roth, relied upon by the majority of this Court in Greenholtz, this Court held in part that the Fourteenth Amendment's procedural protection of property is the safeguard of the security of interest that a person has already acquired in specific benefits.
It further held that to have a property interest in a benefit a person clearly must have more than an abstract need or desire for it, he must have more than a unilateral expectation of it, he must instead have a legitimate claim of entitlement to it.
It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined.
In the Leis case, Leis v. Flynt, this Court further held that a claim of entitlement under state law to be enforceable must be derived from statute or legal rule or through a mutually explicit understanding.
There simply is no statute, legal rule, for a mutually explicit understanding such that lifers in Connecticut have a protected or a legitimate claim of entitlement to pardon relief.
In Roth itself there was at least a suggestion that most of the teachers hired on a yearly basis were in fact rehired, and yet that suggestion was not deemed significant enough to give the teacher a legitimate claim of entitlement, thus invoking due process.
Indeed, in Greenholtz itself, in the dissenting opinions, there was detailed reference to parole statistics around the country which showed, in part: that the history of New York was that 75 percent of persons eligible for parole were in fact paroled, and that the figure went as high as 92 percent in other states around the country; that the figures nationally show that some 70 percent of inmates released to the community were in fact released to the community via the parole process.
And yet, the majority of this Court held that there was no legitimate claim of entitlement.
Indeed, even other panels of the 2nd Circuit have in Pugliese and Boothe acknowledged that high percentages of parole releases do not give somebody a legitimate claim of entitlement.
I seem to be the only attorney who has lost this issue, at least in the 2nd Circuit.
In short, even if the Connecticut Board of Pardons may be generous in the exercise of its authorities, its record such as it appears can hardly be interpreted as conveying the message to an inmate serving a life sentence that he has something that he can rely on, that he has something that will not be taken away from him unless he does something about it, or unless certain conditions can be established, which are the grounds upon which such a legitimate claim of entitlement must be premised.
Further, in Schick v. Reed, this Court dealt with the authority of the United States Constitution of the President to grant pardons.
In Schick the Court characterized one who seeks a pardon as a person who is petitioning for mercy, and held that the President's pardoning power was plenary, in that it entailed the authority to reduce or alter the sentence which conditions which... which themselves are constitutionally unobjectionable.
Since the pardoning process is plenary, it would seem to be conditioned only upon constitutionally unobjectionable reasons.
It would seem that the denial of the pardon, similarly, is plenary, provided pardons are not denied, or pardon relief is not denied for constitutionally impermissible reasons.
There is really no claim in this case that inmates are denied pardon relief in Connecticut or that the petitioners in this case are denied pardon relief in Connecticut for constitutionally impermissible reasons.
The decisions of this Court which have found, in the inmate context, which have found a constitutionally protected claim of entitlement, are really not applicable to this case.
In Wolff, good time was given to the inmate, by law, in Nebraska; good time could be deducted only for failure to obey the rules of the prison.
Thus the inmate had something that he could count on, and from my experience in the Department of Corrections in Connecticut, inmates do count on good time, which should only be taken from them if they do something wrong.
That's not true of an applicant for a pardon.
I know that inmates when they are sentenced expect or base their pleas or base their defenses, or even base their conduct in prison, on the expectation that they're going to get pardon relief.
In Morrissey, the inmate had a parole; he was in the community; he was with his family.
For all but some minor restrictions he was a free man.
It's understandable that in Morrissey this Court held that before those freedoms could be taken from him, he was entitled to some kind of a due process hearing.
Again, the lifer in Connecticut has no such reasons in terms of anticipating a pardon.
In short, we claim that the decision of the 2nd Circuit should be reversed.
Unidentified Justice: Mr. O'Neill, your opposition really isn't asking for very much here, is it?
Just a statement of reasons?
Mr. O'Neill: Yes.
Unidentified Justice: Do you feel that your Board of Pardons is able to deny relief for no reason at all?
Mr. O'Neill: I don't think that any state agency has the right to be capricious and whimsical.
If denying a pardon for no reason constitutes being capricious, arbitrary, then I would say, no, I don't think they have that power.
Unidentified Justice: Well, wouldn't the question be, is the Board entitled to grant a pardon for no reason?
Mr. O'Neill: I don't think they deny or grant pardon for no reason, Mr. Justice.
Unidentified Justice: Well, where does the burden of proof lie?
If there's a problem, a man is sentenced for a fixed term, or for life, who has the burden of establishing a basis for this extraordinary relief?
Mr. O'Neill: I think, Mr. Chief Justice, the answer to your question derives from the concept of a pardon, the Connecticut Board of Pardons, such as this Court indicated in Schick, takes the position that if a man has been sentenced, there's no challenge to the sentence, no challenge to the conviction.
What he's asking for is an act of mercy to commute or shorten that sentence, and in short, their approach is, show us why we should extend this act of mercy to you.
And when a pardon is denied, in effect what the Board is saying is that you haven't given us sufficient reasons why we should do that.
Unidentified Justice: May I ask, Mr. O'Neill, is it... am I correct that the practice, or rather, procedure followed by the Board is, unless a member of the Board moves that a pardon be granted, that's the end of the matter.
There's no consideration whether or not a pardon should be granted.
Doesn't some member of the Board, as a matter of the Board's procedures, actually have to move it?
Is that it?
Mr. O'Neill: Well, I don't know if it's as formal as making a motion, Mr. Justice Brennan.
What happens is that when the Board breaks, the minutes are read, the names of the inmates who appeared are read, and there is a pause.
And if any member of the Board wishes to discuss Stephen O'Neill's case, he says so.
Unidentified Justice: But what if someone doesn't say he'd like to discuss Stephen O'Neill's case, there's no consideration of pardon for Stephen O'Neill?
Mr. O'Neill: That is consideration.
This is a--
Unidentified Justice: Oh, that is consideration?
Mr. O'Neill: --I would claim that it is.
I mean, everybody, the members of the Board know that this is the practice, and they know that when that name is read, that that is the time to speak up.
Unidentified Justice: If a reason were given to Stephen O'Neill in that circumstance, what would the reason be?
No member of the Board moved your case?
Mr. O'Neill: --Well, the reason would be, as I... the real reason would be that I had not given the Board sufficient reasons in their mind to--
Unidentified Justice: For someone to move it?
Mr. O'Neill: --to even consider giving me relief.
That is correct.
Unidentified Justice: What is this Board?
How is it appointed, and how many members does it have?
Mr. O'Neill: It has five members, one of whom by statute must be a Justice of the Connecticut Supreme Court.
They are appointed by the Governor with the approval of one of the branches of the Connecticut Legislature.
Unidentified Justice: For a term of how long?
Mr. O'Neill: I really don't recall.
Unidentified Justice: So there's some turnover on the Board?
Mr. O'Neill: There is a turnover.
Unidentified Justice: A new governor can't have a new Board?
Or does he?
Mr. O'Neill: Each governor could conceivably have a new Board.
Unidentified Justice: Have a brand new Board?
Mr. O'Neill: I believe, have a brand new board.
I've never heard of a situation where the incumbents were discharged when a new governor came to office.
Never heard of--
Unidentified Justice: Mr. Attorney General, maybe I missed it, but what is the reason that they don't give reasons?
Mr. O'Neill: --Well, again, one goes back to the philosophy of the Board.
The reason is that they in effect are telling the applicant, show us why we should do this.
Unidentified Justice: Something like our practice of not giving reasons for why we deny certiorari?
Mr. O'Neill: We don't claim to be a court or to have judicial powers, but it is along those lines, Your Honor; yes.
And as indicated in the majority opinion in Greenholtz, that these are motions and considerations and decisions which don't readily lend themselves to a statement of reasons.
Unidentified Justice: Is there a statute that says that they don't have to give the reasons?
Mr. O'Neill: The statute says nothing on it.
As a matter of fact, the 2nd Circuit said the statute gives them unfettered discretion.
Unidentified Justice: You don't say?
Now, again, do you have any reason?
Mr. O'Neill: I'm sorry, Your Honor.
Unidentified Justice: I still want to know what the reason is why you couldn't give a reason?
Mr. O'Neill: Well, you mean, just administratively decide that, absent constitutional or statutory requirements?
Unidentified Justice: There is no reason, right?
Mr. O'Neill: There is no constitutional requirement requiring it.
There certainly is no statutory requirement in Connecticut.
I said, even the 2nd Circuit said we have unfettered discretion.
Administratively, to decide, to give reasons as an administrative policy?
Unidentified Justice: Well, there might be five different reasons.
I'm only asking for one.
But there might be no one reason.
I'm only asking for one.
There might be no one reason.
Mr. O'Neill: There might well not be.
The reason would again be that--
Unidentified Justice: Well, if there are five, give me one of the five.
Mr. O'Neill: --All right.
The reason would be that what the Board would be telling the inmate is, you have not shown us why we should extend this act of mercy or clemency to you.
That is standard, however it was--
Unidentified Justice: And that would be true in every case?
Mr. O'Neill: --However it was phrased, that would be the message.
Unidentified Justice: I don't see how Mr. Justice Stewart can sit here in Washington and know what's going on in the Board in Connecticut.
Well, I just read the Connecticut statute, and that must be the reason in every case.
Well, I'm asking... I'm asking this, now.
Mr. O'Neill: However, it was stated that would be the reason.
Unidentified Justice: You're speaking for the State of Connecticut, right?
Mr. O'Neill: For the Board of Pardons, yes, Your Honor.
Unidentified Justice: For the State of Connecticut.
And I'm asking you, finally, for the last time, a reason for not giving reasons.
Mr. O'Neill: The reason would simply be to the inmate, you haven't shown us why we should extend that act of clemency.
What that would accomplish--
Unidentified Justice: Well, I mean, that's your idea of a reason.
Mr. O'Neill: --or how that would help anybody--
Unidentified Justice: That's your idea of a reason?
Mr. O'Neill: --That is the reason, that is the thought process that the Board goes through.
Unidentified Justice: Didn't one member of the Board or former member testify there would be no problem in giving a reason?
Mr. O'Neill: Well, he's testified that administratively, if one devised a form with four or five patented answers, it would be no great problem to check two or three boxes on that printed form, but I think he also testified that in his mind that wouldn't tell the inmate much of anything, and doesn't advance or promote any cause or any justice, it's simply a pro forma useless act, that's what I think he was really saying.
Administratively, we could probably handle that.
Unidentified Justice: Mr. O'Neill, I gather that in a fairly large number of cases the Board does act favorably to the request for shortening the sentence?
Mr. O'Neill: In reducing the minimum term.
Unidentified Justice: Yes.
And when it does that, does it give a statement of reasons?
Mr. O'Neill: No, it does not.
Unidentified Justice: It just acts without explanation, either granting or... well what... and there's an issue in this case, or at least there's a question in the case as to... if there is some kind of a liberty interest at some point in time, nobody's really decided when it might attach, and I guess the lower courts were at the view it depends on how soon there's a significant number of people who are getting some kind of relief.
What is in... at what point in the general sentence of a life termer, at what point do most of them finally get some kind of relief from the Board?
Do you have the experience on that subject?
Mr. O'Neill: The only evidence in the record was that somewhere between 14 and 17 years, Mr. Justice Stevens.
Unidentified Justice: Then over half of them would get some kind of relief?
Mr. O'Neill: Roughly around 75 percent, yes.
Unidentified Justice: It's over 75?
Mr. O'Neill, do you think the President in the case like Schick v. Reed could be required to give a statement of his reasons for denying or granting a pardon?
Mr. O'Neill: No, I do not, Your Honor.
Unidentified Justice: Or any governor, where there is still executive clemency?
Incidentally, do you have any vestige of executive clemency in the State of Connecticut?
Mr. O'Neill: Not, really.
I believe there is some authority in the Governor of the State of Connecticut to grant temporary reprieves in capital cases, but nothing along the lines of what we're talking about here.
Unidentified Justice: But otherwise, your Board of Pardons system has taken over completely?
Mr. O'Neill: That is correct; that is correct.
Unidentified Justice: Do you know on the basis of your experience what is the general... well, why do they let 75 percent of the people out early?
It's sort of strange.
Is there any guideline of any kind telling them what sort of rules to follow or procedures, formal or informal?
Mr. O'Neill: There are a multitude of attitudes and philosophies and guidelines and goals that the individual members of the Board use, some of which are really hard to define, as this Court, as a majority of this Court noted in Greenholtz.
Unidentified Justice: These are all cases in which the Legislature has provided a mandatory minimum sentence and in 75 percent of cases the Board of Pardons just decides to overrule the Legislature, is that right?
Mr. O'Neill: Well, one must read, one must read the Legislature's acts together.
The Legislature has done both.
The Legislature has in effect set a minimum sentence and at the same time has given the Board the authority--
Unidentified Justice: And says, well, we really don't mean it in 75 percent of the cases, is what it boils down to, I guess.
In some states, and I think it has happened with the President of the United States, a pardon or dispensation has been granted on a showing, for example, that the prisoner has been in prison for 15 years, he has a terminal cancer, has a year to live or less, and he wants to die at home.
Does that happen in Connecticut?
Mr. O'Neill: --That has happened and that has been the reason.
Unidentified Justice: Yes, but not in 75 percent of the cases, I don't suppose?
Mr. O'Neill: No.
Unidentified Justice: But that's one of the kinds of cases that they might consider, is that true?
Mr. O'Neill: That... there have... and there was testimony in the record to that effect; yes, Mr. Chief Justice, that that has been a factor.
Performance, need, many factors that would go into it, no one of which in any individual case, or in all the cases, would be the predominant effect, and each case is considered on an individual basis.
And it is analogous to the thought process of a judge in passing sentence.
Unidentified Justice: How do cases get before the Board?
Mr. O'Neill: The inmate must apply.
Unidentified Justice: How does he know that?
Mr. O'Neill: I believe it's in the record, Your Honor.
I know the only... it's in the record that the only requirement is that he must serve a year of his sentence before he can apply.
After that he can apply--
Unidentified Justice: But how does he even know he can apply?
Has the Board issued any rules about how you're supposed to proceed?
Mr. O'Neill: --Yes, there are rules.
They're not in the record, but it is well known to the inmates at Somers.
The Board sits there four or five times a year, and it's well known.
Unidentified Justice: Well, does the Board... has the Board issued procedural regulations?
If you want to come before us, you do this, and you do that?
Mr. O'Neill: That you must apply; yes, there are written procedures; yes, Your Honor.
Unidentified Justice: And does it indicate what must be contained in the petition?
What do they call it?
A petition or what?
Mr. O'Neill: Petition; yes.
I believe there are copies of the printed petitions in the evidence.
Unidentified Justice: But is there... does the Board provide a form?
Mr. O'Neill: A form is provided.
Whether it's the Board, or the Department of Corrections, the Board for fiscal purposes is a part of the Connecticut Department of Corrections.
Unidentified Justice: Yes, and do they... and the form says, please give reasons why, or does it say, does it ask some specific questions that it wants answers to?
Mr. O'Neill: I'm looking for a form now.
It provides for the name of the inmate, his age, where he was born, what his crime was, where he was convicted and sentenced, has he earned commutation of credit on his sentence, number of times he has applied for the sentence, and concludes by saying that he claims consideration, because.
And then, on this form, there is--
Unidentified Justice: So, it doesn't indicate at all any of the reasons that might be relevant to the Board?
Mr. O'Neill: --No, but it gives the inmate a large box to state why the Board should give him some relief.
And again, that is the way the Board looks at it.
Chief Justice Burger: Very well.
Your time has expired now, Mr. O'Neill.
Mr. O'Neill: Thank you, Mr. Chief Justice.
Chief Justice Burger: Mr. Wizner.
ORAL ARGUMENT OF STEPHEN WIZNER, ESQ. ON BEHALF OF THE RESPONDENTS
Mr. Wizner: Mr. Chief Justice, and may it please the Court:
The issue in this case is whether the Court of Appeals correctly applied this Court's decision in Greenholtz v. Nebraska Penal Inmates to the sentence commutation process for a few life inmates in Connecticut.
And the reason that I emphasize a 1975--
Unidentified Justice: Well, the real question in this case is whether or not the Constitution requires the Board to give reasons for its failure to grant a pardon.
Mr. Wizner: --That's right, Justice Stewart.
And the answer to this question must be found in the practices of the Connecticut Board of Pardons because the Connecticut statute does not contain the "shall... unless" language the Nebraska statute, which was at issue in Greenholtz.
So the real issue, I think, is whether or not in the absence of a statute which contains such "shall... unless" language a state board may by consistent practice over an extended period of time establish a practice rooted in the implementation of a state statute which creates an entitlement.
Unidentified Justice: Didn't the Greenholtz opinion for the Court emphasize the key to it was the language of the Nebraska statute?
Mr. Wizner: Yes, it did, Your Honor.
Unidentified Justice: What's that got to do with its practice.
Mr. Wizner: Mr. Chief Justice, if I may respond to that, this Court as you well know, in Greenholtz stated that in that case the Nebraska statute by its terms created an entitlement.
Whether or not such language would be necessary in future cases, the Court said, will have to be decided on a case-by-case basis.
The 2nd Circuit, the circuit from which we come with this case, has already had occasion, several occasions, to consider Greenholtz, and has held that in the absence of any other evidence, if you have a purely discretionary statute such as the one we have here, no entitlement is created and no legitimate claim of entitlement is created.
Our position is that the Connecticut Board of Pardons has structured the exercise of its own discretion that it was given by the legislature, plenary discretion in the nature of any other pardoning authority, but with respect to this particular group of inmates it has limited the exercise of its own discretion by granting relief to almost all of them.
Unidentified Justice: So that it's in effect boxed itself in?
Mr. Wizner: Well, not really, Mr. Justice Rehnquist.
This is not a case where we're claiming just because they'd granted relief consistently in the past they have to keep doing it.
Unidentified Justice: But if after this decision they started not granting any relief at all or granting relief to 20 or 30 percent rather than 70 percent, then the case would be wholly different, I take it.
Mr. Wizner: It would be and we think they can do that.
We think that as long as they are granting relief to at least 75 and perhaps 90 percent of inmates, permitting them to apply every year, the testimony from the Pardon Board Chairman was, we know that they're looking at us very closely.
The Board knows that these applications are being made, and establishing a very complex procedure for determining that reliable fact-finding will take place, a procedure which we don't claim entitlement to, incidentally.
Unidentified Justice: Well, on the basis of that argument, could not an equally plausible argument be made that since you're granting 70 percent in the past, you must grant 70 percent this year?
I want in on that 70 percent.
Mr. Wizner: No, Your Honor.
And that is not our claim in this Court and was not our claim below.
Unidentified Justice: But isn't it equally plausible?
Mr. Wizner: With all respect, Your Honor, I think it is not equally plausible.
I think that what we're claiming is that when relief is granted this consistently, it implicates a liberty interest and creates a legitimate claim of entitlement, a claim of entitlement to have applications for sentence reduction on the part of these inmates fairly considered.
We are not saying that the Board of Pardons has painted itself into a corner as Justice Rehnquist suggests and obligated itself to grant pardons to life inmates into the future.
In fact, it's hard to understand, as Justice Stevens pointed out, why it is that Connecticut is granting relief to so many life prisoners.
Unidentified Justice: Mr. Wizner?
Mr. Wizner: Yes, Mr. Justice Marshall?
Unidentified Justice: What would happen if they gave the following reason?
No member of the Board having wished to discuss it, we didn't discuss it.
Mr. Wizner: Mr. Justice Marshall, we do not think--
Unidentified Justice: Would that be enough reason?
Mr. Wizner: --No.
No, sir, we do not think, Mr. Justice Marshall--
Unidentified Justice: Would you mind addressing to what kind of reason?
Mr. Wizner: --Yes, I will.
Unidentified Justice: Because, you know, I don't know of any case where we've spelt out what reasons ought to be given.
Mr. Wizner: All right.
Unidentified Justice: In due process things.
Mr. Wizner: Yes, sir.
We, of course, have to acknowledge--
Unidentified Justice: And does the 2nd Circuit have a rule for rehearing which says,
"No active judge having voted for rehearing, the rehearing is denied? "
Isn't that a reason?
Mr. Wizner: --It's a reason for them.
Unidentified Justice: Isn't that a reason?
Mr. Wizner: That is a reason for a court not to grant rehearing.
That is not a reason for an administrative--
Unidentified Justice: But... I'm just working on the word, "reason".
Mr. Wizner: --Yes.
As far as we're concerned, that would not be a reason that would be a meaningful reason that would--
Unidentified Justice: What kind of reason, please?
Mr. Wizner: --Very well.
We think a reason has to be given which shows... admittedly, the Board has very broad discretion, and can give almost any reason it wishes other than a constitutionally impermissible basis for denying the pardon.
But we think they have to give a reason which will accomplish several of the objectives of the parole system in Connecticut, of which the sentence commutation process is a part.
It would have to be a reason, if the denial of the sentence commutation were based on institutional conduct, it would have to be a reason which would inform the inmate of what he has to do to improve his conduct so that he might be eligible the next time.
Unidentified Justice: Well, wouldn't the next step after that be that if the inmate denied the reason, there would have to be a hearing?
Mr. Wizner: The Connecticut Board of Pardons already permits an inmate to come back and try to correct any misunderstandings the Board may have.
Unidentified Justice: Well, I know, but you would say it would be constitutionally required?
Mr. Wizner: We wouldn't say--
Unidentified Justice: If this was a liberty... if it's a liberty interest?
Mr. Wizner: --I would say that some mechanism would have to be offered to the inmate to review an erroneously based decision, if the Board--
Unidentified Justice: No, only that there would have to be a mechanism of some kind, a hearing or some other suitable?
Mr. Wizner: --That's right.
I'm not trying to hedge.
Obviously, a statement of reasons opens a decision to review.
Unidentified Justice: How about an attorney?
Mr. Wizner: No, we don't claim a right to an attorney.
Unidentified Justice: Well, you don't now, but, soon?
Mr. Wizner: No.
As a matter of fact, Justice White, we don't even claim the procedures that are now conferred upon inmates.
Our position is that those procedures express an intention upon the Board to engage in reliable fact finding and a communication to the inmate that meritorious applications will be fairly considered and will be granted, if they deserve to be granted.
Unidentified Justice: Well, Mr. Wizner, what Mr. O'Neill told us, or I thought he did, about their present practice, which is that they have a list of names.
If no one raises a particular name as one for consideration, that's the end of the matter as to him.
Now, they'd have to change all that now under your submission, would they not?
Mr. Wizner: That's right.
They would have--
Unidentified Justice: Now, what they'd have to do, they'd have to sit down, they'd have to take up John Jones, or Stephen O'Neill, and decide that, why in Stephen O'Neill's case they ought not grant it if they're not going to.
Then they'd have to agree on a reason, wouldn't they?
Mr. Wizner: --Yes, Mr. Justice Brennan.
Unidentified Justice: By a majority vote or something like that?
Mr. Wizner: Justice Brennan, yes; in that respect Justice Rehnquist is correct, they have painted themselves into a corner.
If they're granting relief... and our position is that it's not three-quarters of the cases, it's almost 90 percent of the cases... if they're granting relief that consistently, then they have to give a reason that explains why it is that they're denying it to the few people that--
Unidentified Justice: They'd have to agree upon the reason, wouldn't they?
Mr. Wizner: --And they would have to deliberate.
The problem with the way they decide cases now is they sit all day long and hear 60 cases, one after another after another, and the testimony from the Pardons Board Chairman was that it was an emotionally exhausting experience.
At the end of the day, at 7 or 8 in the evening--
Unidentified Justice: Well, why wouldn't it satisfy your requirement if all members of the Board indicated his reasons individually and they had no meeting of the Board?
Mr. Wizner: --That would satisfy us, if we got a reason from each member of the Board.
We just want reasons.
Unidentified Justice: They'd have to agree by majority vote, then, on a single reason?
Mr. Wizner: --It doesn't have to be a majority vote on a single reason.
Unidentified Justice: Each of them, Jones, Smith, so forth, can have a separate reason?
Mr. Wizner: Yes; yes.
Unidentified Justice: And it wouldn't need to have a meeting or deliberate.
Mr. Wizner: That's right.
If each of them gave a reason so at least the inmate could be informed why it was that he was singled out for differential treatment when most other people whom he thinks are similarly situated in the same prison are receiving relief.
Unidentified Justice: How many members of the Board are there?
Mr. Wizner: There are five.
Unidentified Justice: So he might have been told five different reasons?
Mr. Wizner: He might have been told five different reasons and in fact the kinds of reasons which the Chairman testified did control these decisions were at least five.
I can suggest some of the reasons that are in the record.
Unidentified Justice: And if one or more of the five is incorrect, what to do?
Get a review by the full Board?
Mr. Wizner: If four out of the five members have valid reasons--
Unidentified Justice: If we have five separate reasons, as you suggest would satisfy the requirement, but one or two is incorrect, what happens then?
Mr. Wizner: --The issue is not whether or not they're incorrect.
Conceding as we do that the criteria for granting relief can be very broad and--
Unidentified Justice: Nevertheless, there may be a stated reason by one of the Board members that the prisoner says, that just isn't true.
That simply isn't true.
Mr. Wizner: --He would have to be afforded an opportunity to correct that reason.
Unidentified Justice: Even though the other four were accepted?
Mr. Wizner: Yes.
In our judgment even one member of the five-member Board cannot deny a pardon for a constitutionally impermissible reason.
Unidentified Justice: Well, Mr. Wizner, supposing that the Parole Board... you say that the Court of Appeals for the Second Circuit and the Supreme Court of Connecticut and the statute confer upon it unfettered discretion, at least by statute.
Mr. Wizner: Statute; yes.
Unidentified Justice: And supposing it chose to operate in a manner that, simply, they met once every six months and any member of the Board could put an applicant's name on a list to be considered, and if the applicant's name wasn't put on the list to be considered he simply never would be considered.
Mr. Wizner: Yes, we think that would be constitutionally permissible and consistent with the kind of traditional plenary exercise of the pardon power that was described by the Court in Schick.
But that's not what's happening here.
What's happening here is an administrative agency constituted by the Legislature receiving applications, some 300 a year, and deciding 60 cases in each of four cities and rendering decisions on--
Unidentified Justice: Why do you distinguish between an administrative body and a judicial body?
Mr. Wizner: --If Your Honor please--
Unidentified Justice: For constitutional purposes?
Mr. Wizner: --For constitutional purposes, for the same reason that judges are not required to give reasons for their sentences and juries are not normally required to give reasons for their verdicts.
We think that the decisions by the judiciary, by the judicial department, are different from these kinds of decisions.
First of all, the actions of juries are reviewable by the judge, as was shown in one of the cases decided this morning.
Actions by a judge are reviewable by appellate courts, some of them.
Unidentified Justice: What about this Court?
Mr. Wizner: But not by this Court.
And, incidentally, the granted--
Unidentified Justice: When we deny certiorari, as I suggested to your friend, you do not suggest that we must give a reason?
Mr. Wizner: --While some of us might like reasons, I wouldn't suggest that you're obligated to or that we're entitled to them.
But there is a difference, if I could point it out.
Unidentified Justice: What if each of the members of the Board filed a statement essentially saying, denied because the petitioner has presented no reason that it should be granted?
Mr. Wizner: The Connecticut Board of Pardons would be perfectly within its discretion to do that if it weren't granting relief to almost every member of our class.
I think that wouldn't be a sufficient reason to--
Unidentified Justice: I understand.
My question is, suppose in every case from now on they gave that,
"because no reason has been advanced why the petition should be granted. "
Isn't that a reason?
Mr. Wizner: --Mr. Chief Justice Burger, that is not a reason.
It doesn't explain anything to the inmate about why he was singled out as a member of that small group of perhaps ten percent of inmates who was not granted relief.
Unidentified Justice: These are only inmates serving life sentences?
Mr. Wizner: These are--
Unidentified Justice: And why is that?
Mr. Wizner: --There is an explanation for this, Your Honor.
Unidentified Justice: I'd be interested in it.
Mr. Wizner: And it's an explanation that I... I puzzled, as did Justice Stevens, about why all of these lifers who are after all, all of them convicted of murder, why they are getting relief so consistently.
Unidentified Justice: Well, why is the plaintiff class limited to those serving life sentences?
Mr. Wizner: --Because they're the only ones who are not eligible for parole unless the Pardon Board grants them a sentence commutation.
They are not paroled--
Unidentified Justice: I thought that a life sentence meant 20 years, if the person--
Mr. Wizner: --Here's how a state life sentence works.
Prior to the repeal of the Penal Code in 1971, lifers received a sentence of 25 years to life.
During the first 20 years of their sentence they did not receive the benefit of their good time, although five years of good time was given to them during the first 13 years of their sentence.
At the point where they reached 20 years, the five years good time was given to them as a lump, and they were immediately reduced to 20 years and eligible for parole.
By reducing the lifer sentence to 20 years at same point during the first 20 years, the lifer gets the benefit of those five years.
That automatically reduces him to 15 years.
So that Mr. Gates's testimony of somewhere between 14 and 17 years has quite a rational basis.
What the Pardon Board is doing in these cases is saying that lifers should have the benefit, as a rule, of good time just as all other inmates do, and the reason that they're doing it is so that lifers won't feel totally frustrated that they have no opportunity for ever getting released.
Unidentified Justice: --To earn good time?
Mr. Wizner: To earn good time.
Unidentified Justice: Until they've served--
Mr. Wizner: Until they have served--
Unidentified Justice: --Twenty years.
Mr. Wizner: --the full 20 years.
And that is why, if you look at--
Unidentified Justice: That law has been changed, hasn't it?
Mr. Wizner: --That law has been changed.
Since 1971 the Legislature has elected to give lifers minimum terms, so that some lifers have minimum terms as low as ten years.
With the benefit of good time they are eligible for parole after serving something like two-thirds of their minimum sentence.
What the Legislature did is it acknowledged that some lifers should receive minimum sentences lower and some higher.
However, as of July of this year, the sentence is going back to 25 years to life.
And the reason for that is that Connecticut is abolishing parole, as of July of this year.
So that the only inmates for whom this decision, a decision in this case, would have any impact, would be this small group of 30 or fewer inmates.
Unidentified Justice: Thirty-five--
Mr. Wizner: Or 35.
I'm sure it's not 35 anymore.
It was 35 in 1975.
Unidentified Justice: --Perhaps not.
And did I understand you to say that in Connecticut murder is the only offense for which a life sentence can be imposed?
Mr. Wizner: That's not the only offense, and there's a footnote in our brief that... all of our clients have committed murder, but there's a footnote in our brief that also provides for life sentences in certain limited situations for persons who lie in wait and pluck out the eyes of the victim or do damage to certain parts of their bodies.
Unidentified Justice: There's nobody in the Connecticut prisons convicted of--
Mr. Wizner: No.
Unidentified Justice: --Mr. Wizner, have you ever read an opinion of a court which says,
"We have examined all of the points raised and find no merit in any of them? "
Mr. Wizner: I have read opinions like that, Your Honor.
Unidentified Justice: Yes.
Well, would that be all right if this Board said, we have examined this whole case of Mr.... whatever this man's name was?
Mr. Wizner: O'Neill, I think, was the example, Mr. Justice Marshall.
Unidentified Justice: Well, Marshall, and we find no merit in it.
That wouldn't be sufficient?
Mr. Wizner: No, it would not, Justice Marshall.
Unidentified Justice: Why would that... would a conviction that puts a man in jail not require it, but this one to get out of jail does require it?
Mr. Wizner: --Because the Legislature has made clear in the case of a man convicted and sent to jail what it is that has to be found before that can happen.
The Pardon Board hasn't told us what reasons or criteria it is applying.
If the Pardon Board said--
Unidentified Justice: Well, what rules are there in Connecticut that tell the court how to decide a case?
Mr. Wizner: --There is only the statute, the Legislature--
Unidentified Justice: Well, what statute?
Does the statute say what you must find?
Mr. Wizner: --The statutes defining crimes define the elements of the offenses.
Unidentified Justice: Does the statute define what reasons have to be given?
Mr. Wizner: The reasons have to be that the defendant has been found guilty beyond a reasonable doubt of each and every element of the offense prescribed by the statute.
Unidentified Justice: Does the statute say what reason the appellate court has to give?
That's what I was talking about.
Mr. Wizner: No, it does not.
I'm sorry; I misunderstood.
Unidentified Justice: Right.
Mr. Wizner: I should listen to your questions.
Unidentified Justice: Now we're back to your case, in which you say that for this reason you must get more than you get out of an appellate court.
Mr. Wizner: The reason why you must get more is, first of all, when the appellate court is reviewing a decision of the trial court, it is deciding several things, but above all it is looking at a conviction for a crime in a criminal case where each of the elements of the offense has been proved to the satisfaction of the trier of fact beyond a reasonable doubt.
We have no criteria here.
If the Connecticut Board of Pardons said, sentence commutations for persons serving life sentences under the old penal law which was repealed in 1971, the following five criteria will be considered, and then the Board can say, we have considered all the five criteria and we find that he doesn't satisfy them, that would be enough.
Unidentified Justice: Well, didn't some of your people go all through a trial and an appeal?
Mr. Wizner: All of our people were convicted.
Unidentified Justice: I thought so.
I'm ready to bet anything you want to get more now than you got all the way up.
Mr. Wizner: Your Honor, Mr. Justice Marshall, I'm not here asking for the release of my clients.
Unidentified Justice: You see my problem with that?
Mr. Wizner: I am not here asking for the release of my clients, and it may well be that a requirement that reasons be given will inhibit arbitrary granting of relief as well as arbitrary denial of relief, and I really don't know what the consequence of it would be.
All I know is that our clients, the named plaintiffs in this case, do not understand why they were not granted the same relief that everyone else was granted.
Unidentified Justice: Do your defendants have that sort of reason-giving in the process of finding their guilt?
A jury comes in with a general verdict of guilty.
Do you think it has to state a reason why it found them guilty?
Mr. Wizner: No, I don't, Justice Rehnquist.
The decision of the jury, as this Court decided today, may be set aside by a judge if there was not sufficient evidence to support it.
There is no such check on the actions in the Connecticut Board of Pardons.
Unidentified Justice: But a jury's verdict of guilty is defined by the metes and bounds of the instructions on the law given to it.
Mr. Wizner: That's right.
Similarly, we have no such instructions from the Legislature given to the Board of Pardons.
What the Legislature has told the Board of Pardons of this case, basically, is you can do whatever you want to as long as it's not arbitrary.
Unidentified Justice: From what you have said so far, Mr. Wizner, I get the impression that you're saying that when a prisoner files the petition it should be in effect treated as an order to show cause directed to the Board why, to state why he should not be released.
Isn't that the practical effect of it?
Mr. Wizner: With all respect, Mr. Chief Justice, that is not the practical effect.
Unidentified Justice: You tell me why it isn't.
Mr. Wizner: I will tell you why it isn't.
I wouldn't be here today if the Connecticut Board of Pardons were not granting relief to almost 90 percent of the members of the class I represent.
Unidentified Justice: Well, then, is not the petition, doesn't it function as a direction to the Board, on your submission, that you must give me a reason why you do not release me, or else release me?
That's what you're asking for.
Mr. Wizner: I'm not seeking release.
I'm assuming that the Board of Pardons has a reason for not releasing my clients.
I'm just saying, tell them why.
But you're right; in that sense it's like an order to show cause.
I'm saying that 90 percent of my clients are getting it, ten percent are not getting it.
It rises to the level of you having to show us why it is that they're not getting it.
But then our position is, almost any reason is sufficient so long as it's a reason which explains why they haven't gotten it and it's not based on constitutionally impermissible grounds.
Unidentified Justice: Well, and as long as you don't challenge it as being inaccurate, in which event you suggest that there should be a review procedure.
Mr. Wizner: But the Connecticut Board of Pardons already permits that, sir.
Unidentified Justice: Well, I know, but you are also saying, I'm sure, that it would be constitutionally required?
Mr. Wizner: If the Board of Pardons decides a case on constitutionally impermissible grounds.
Unidentified Justice: No, I didn't say that.
I said, just inaccurate grounds.
Mr. Wizner: The scope of review would be like the review of an administrative agency, very narrow.
Unidentified Justice: Well, review by whom?
Mr. Wizner: It could be review by the Board of Pardons itself, or judicial review in the state courts.
Unidentified Justice: I know, but would you say the Constitution required judicial review of it?
Mr. Wizner: I don't say the Constitution requires judicial review.
I would say it would require some mechanism for correcting constitutionally impermissible--
Unidentified Justice: Well, let's suppose one of the five says, I'm not going to vote to give you a pardon, because you battered your cellmate over the head with a club the other day.
And he says, I never did anything of the kind, that's not true, I never did anything of the kind.
Now, as I understand it, you're suggesting that he's entitled to some kind of administrative review of the truth of that, isn't he?
Mr. Wizner: --He has the burden of proving that it didn't happen.
Unidentified Justice: I know.
But he says, it isn't true, and the Board then has to hear him and decide whether it's true or not.
Mr. Wizner: I think the Board is entitled to rely on the information it receives from the prison authorities, provided that he had a fair institutional disciplinary hearing.
Unidentified Justice: I know, but he says, I will carry the burden of proving that I never did anything of the kind.
It's just not true.
I didn't do that.
And I thought you told me earlier that he'd be entitled to review by the Board of of such claim?
Mr. Wizner: He is entitled to some review, to a chance to show that--
Unidentified Justice: All right, and the member who gave that reason is finally persuaded that, no, it wasn't true, and I withdraw those reasons.
What does he get?
Mr. Wizner: --Then he gets whatever the Board orders that he gets, either--
Unidentified Justice: Four other members have given other reasons which he hasn't challenged.
Mr. Wizner: --Then he has nothing left.
If four other members have given reasons why he should be denied relief, then he should be denied relief.
And what we're saying in this case, that it... excuse me, Mr. Justice Stevens.
Unidentified Justice: Mr. Wizner, isn't it probable in the case where a Board member relied on a disciplinary infraction, that would have been supplied to him in some kind of a report as a result of a proceeding that had already taken place?
Mr. Wizner: That's the point I was trying to make.
Unidentified Justice: He doesn't know about the facts that go on in the prison, other than what's supplied at the Board hearings.
Mr. Wizner: That's correct, and that's what--
Unidentified Justice: And the review presumably would have already been had on that kind of an issue.
Mr. Wizner: --That's right, Justice Stevens.
Unidentified Justice: I just want to be sure you've said everything you want to say on the question of, why must these officials give reasons when judges don't have to give reasons in a whole host of situations?
And the one that I find the closest, frankly, is the sentencing function performed by the trial judge.
Does your position require as a matter of consistency that we also say a trial judge should have to give reasons when he decides how long a sentence shall be imposed?
Mr. Wizner: No, it doesn't.
Unidentified Justice: And why not?
Mr. Wizner: It doesn't, Justice Stevens, although assuming it would favor a rule which required trial judges to give statements of reasons for sentences, the Legislature in the case of sentencing has created outer bounds for sentencing.
Unidentified Justice: That's right.
Here we've got outer bounds too.
Mr. Wizner: And here we have outer bounds too, but we have an agency which has limited its own bounds, it has structured the exercise of its discretion by acting in a certain way over and over and over again.
Unidentified Justice: Trial judges do this too.
Some judges give certain sentences in certain kinds of crimes, but they just don't bother to say so.
Why wouldn't your argument compel this end?
And I'm not saying this necessarily makes your argument wrong, but is there really a principal distinction between what you're asking us to hold for this part of the sentencing process... because, in a sense, this is really a part of the sentencing process... is this really constitutionally different from what the trial judge does at the time that the man is found guilty?
Mr. Wizner: It has to be constitutionally significant, although I agree with you that... I don't know if I'm agreeing with you... I would prefer, obviously, to have judges give reasons, but I think that when a state agency and a branch of the executive acts, it's different than when a court or a judge acts.
If a judge is acting within the discretion that has been conferred upon him by the Legislature and is imposing a sentence within the limits set by the statute and if you know what the sentence is being imposed for, which is a particular crime with particular elements, then I don't think the judge is constitutionally required to give reasons.
Another reason is just based on the separation of powers, I would think.
Unidentified Justice: Supposing, following up on Justice Stevens' question, that a particular judge has a reputation for being very severe on narcotics cases and generally sentences to the maximum authorized by law in those cases, say in 90 percent of the cases that come before him, but in ten percent he doesn't.
Now, do you think that one, a member of that ten percent has a right to go to some court and claim, or go to the appellate court and claim that he has a constitutional right to have an explanation from the sentencing judge as to why he of the ten percent was singled out, whereas 90 percent were not?
Mr. Wizner: There might well be such a reason in that case and the analogy I think of, Justice Rehnquist, is the draft evasion cases where appellate courts held that where judges automatically sentenced draft evaders to the five-year maximum sentence under the statute, the cases had to be remanded to the trial courts so that the trial judge would exercise discretion in determining what sentence should be applied to the particular offender.
Unidentified Justice: Did this Court ever hold that?
Mr. Wizner: Not to my knowledge, Your Honor.
It's a good rationale, though, I think, and one that I would urge upon the Court.
If the trial judge consistently and systematically without considering the individual characteristics of offenders were to impose the maximum sentence for a particular crime, I would think that that kind of practice should be subject to appellate review.
I would think that, perhaps not a statement of reasons but at least a remand to the trial court to insist that discretion be exercised in the imposition of the sentence.
Unidentified Justice: But how would you know that discretion was being exercised unless you had a statement of reasons.
Just a remand, and then the judge simply imposes the same sentence again without saying anything more?
Mr. Wizner: I think a sentencing judge who is engaging in the practice I have just described ought to be required constitutionally to give reasons for what he's doing.
Yes, Your Honor.
Fortunately, that issue doesn't have to be reached in this case.
Unidentified Justice: In abolishing parole did Connecticut also set definite terms for certain crimes?
Mr. Wizner: Yes, it did, Your Honor.
Unidentified Justice: And eliminated judicial discretion to a great degree?
Mr. Wizner: Yes, it did.
It did eliminate judicial discretion, substantially.
It has done what other states have done in abolishing parole, which is to establish fixed sentences and inmates know exactly when they're going to get out, less good time, once, when those sentences are imposed.
Unidentified Justice: So a good many times it wouldn't do a judge any good to have any reason at all?
He's just required to impose a sentence?
Mr. Wizner: That's right.
I mean, the Legislature has spoken to that exact issue, and they want to limit the discretion of everyone involved in the sentence-imposing and sentence-reduction process in Connecticut.
Unidentified Justice: But Connecticut has retained, while eliminating discretion, has retained this provision giving the Board complete discretion on parole?
Mr. Wizner: That's right.
And they have returned to 25-year minimum sentences for lifers commencing in July of this year.
The situation will be somewhat different, however, since they won't be eligible for parole accelerations because there won't be any parole.
So we continue to be faced only with the problem of the small group of people whom we represent.
Unidentified Justice: Are you familiar with how many states have abolished or cut back their parole statutes?
Mr. Wizner: I am not.
I gather from my reading that it is a movement that is afoot to abolish parole and--
Unidentified Justice: I am sure it is not a desire on your part to see this dispensation that now exists under the Board in Connecticut abolished too?
That's not what you're after?
Mr. Wizner: --I'm not asking the Court to do that; certainly not.
And that's not what I'm after.
In fact, what I'm after seems to me to be very little, although the issue of whether or not there is an entitlement to it is of course a major issue.
What I'm after is an explanation to the few people who aren't getting the relief that almost everyone else who committed the same crime is getting about why they're not getting it.
Unidentified Justice: Mr. Wizner?
Mr. Wizner: Yes, Justice Marshall?
Unidentified Justice: Is it true that in Connecticut you can appeal the sentence?
Mr. Wizner: Yes.
There is a Sentence Review Board in Connecticut in which you can have your sentence reviewed by a panel of three judges.
That is correct.
Unidentified Justice: Upon a conviction?
And these people went through that?
Mr. Wizner: No, I don't think lifers are eligible for sentence review.
They have a mandatory 25-year to life sentence, Justice Marshall.
Unidentified Justice: Well, that's what I wanted to know.
Mr. Wizner: That's another reason why the Pardon Board may have been granting relief on a higher percentage of cases of lifers than other people, that they can't get the benefit of their good time and they can't get their sentences reduced any other way.
Unidentified Justice: Well, it would be the next... it would a consistent step to take for Connecticut to eliminate this discretionary part of sentencing also, wouldn't it?
Mr. Wizner: Yes, it would.
They haven't done that, and I doubt that they could do it retroactively to affect my clients, but certainly they could do that.
Unidentified Justice: But that isn't your objective, you've indicated previously?
Mr. Wizner: That is not my objective, Your Honor, I would not come to court to seek the elimination of discretion and the denial of relief to clients whom I'm representing.
On the other hand, I want the Court to understand that our position is that the Legislature has that discretion.
They can do that if they want to.
Unidentified Justice: But you are aware, I take it, that the states which have abolished parole have done so because of the difficulties imposed by entitlement claims over the last few years?
Mr. Wizner: That is correct, Your Honor, and I am not opposed to that.
It seems, if I may address your question, which is not directly involved in our case, it seems to me that correctional officials ought to be applying fixed sentences and that there ought not to be so much discretion in the system, because it creates the risk of arbitrariness which I think exists in this case.
If there were a consistent set of criteria and a... may I finish my question?
if there were a consistent set of criteria being applied and fair deliberation being had on each application for parole, and there were sensitive consideration being given to the rehabilitative goals of the penal correctional process, it might be different.
But our experience has been, both in state and federal parole systems, that that is not happening.
Unidentified Justice: But it's only 15 or 20 years ago, Mr. Wizner, though not literally every one, but almost every one dealing with these problems thought the indeterminate sentence was the great wave of the future, the best thing that ever happened.
And now, in a short period of time, for the very reasons you have just suggested the indeterminate sentence is now regarded 180 degrees differently, and--
Mr. Wizner: That's right, Your Honor.
Unidentified Justice: --And there's a move to abolish it and make sentences fixed.
Now, what you're asking is that we constitutionalize a proposition that's, really, no one knows fully and understands fully.
Mr. Wizner, may I ask you a question?
Or am I interrupting you, Mr. Chief Justice?
You're not asking for a hearing, as I understand it?
Mr. Wizner: We are not.
Unidentified Justice: If the Court should create a liberty interest, would it not follow that these inmates would be entitled to a hearing as well as a statement of reasons?
Mr. Wizner: I hesitate to argue against myself, but I do not think so, Justice Powell.
I think the process that's due in this situation is a statement of reasons.
I don't think that, in view of the very broad discretion that the Legislature has given the Pardon Board and the fact that it is in effect commuting sentences validly imposed, that a full hearing is not necessary.
However, the Connecticut Board of Pardons now does give a full hearing with a right to counsel, with a right to produce witnesses, with a right to examine the prison file, and they even invite the State's Attorney from the county in which the individual defendant has been convicted to come and state his view.
And indeed one of the grounds why pardon, sentence commutation applications are denied, is when a State's Attorney vehemently opposes it because of communications he might have received from the victim's family or for other reasons.
Unidentified Justice: I understand that the liberty interest you are asserting in this case would not even require that the Board hold a meeting.
Is that correct?
Mr. Wizner: I think that's true, except that... I hesitate to say that it's true, again because of the consistency with which relief has been granted.
If you have a situation as we do here where more than three-quarters and perhaps as many as 90 percent of a particular small defined class of inmates are getting relief, then it may be that they have to have something more than just some superficial statement of reasons when they are singled out for denial of that relief.
That is not the system we have now.
The system we have now is that the Connecticut Board of Pardons grants these kinds of hearings to anybody who applies to it, so I have to assume that I'm operating within a system in which anybody after he's served one year of a sentence may apply for a sentence commutation and that the Board as a matter of practice, deeply rooted practice over a period of some three decades, has singled out one class of inmates to give a very high level of relief to.
Unidentified Justice: Isn't it true your 90 percent figure is a little bit misleading because in any set of applicants in one day, 90 percent of those don't get relief on that day?
Mr. Wizner: That's right.
Our... I want to be very clear about what I'm saying about that, Justice Stevens.
Of persons convicted of murder or related crimes and serving life sentences under a statute that was repealed in 1971, sometime during the first 20 years of their life sentence 75 to 90 percent of them will have their sentences reduced by the Connecticut Board of Pardons, and that's all that I'm saying.
Chief Justice Burger: Thank you, gentlemen.
The case is submitted.