Board of Pardons v. Allen

PETITIONER: Board of Pardons
LOCATION: Bentonville, Arkansas

DOCKET NO.: 86-461
DECIDED BY: Rehnquist Court (1986-1987)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 482 US 369 (1987)
ARGUED: Apr 01, 1987
DECIDED: Jun 09, 1987

Clay R. Smith - for petitioners
Clay Riggs Smith - on behalf of the Petitioners
Stephen L. Pevar - on behalf of the Respondents

Facts of the case


Media for Board of Pardons v. Allen

Audio Transcription for Oral Argument - April 01, 1987 in Board of Pardons v. Allen

William H. Rehnquist:

We will hear argument first this morning in Number 86-461, the Board of Pardons and Henry Burgess versus George Allen and Dale Jacobsen.

Mr. Smith, you may proceed whenever you are ready.

Clay Riggs Smith:

Mr. Chief Justice, and may it please the Court:

The issue before the Court today is straightforward: does Section 46-23-201 of the Montana Code Annotated create a liberty interest in parole release protected under the due process clause of the Fourteenth Amendment.

The facts giving rise to this case are equally straightforward.

In May 1984 the Respondents, on behalf of themselves and all present and future inmates at the Montana State Prison initiated an action in the United States District Court for the District of Montana alleging in relevant part that the petitioners, who are the Montana Board of Pardons and its Chairman had denied their parole release application without an appropriately worded individual determination.

Attached to the complaint were communications from the petitioners to the respondents stating that the respondents' parole applications had been denied because of the nature of their offenses, and further recommending that the respondents commence, or continue participation in psychological therapy programs.

In January of 1985 the district court dismissed the complaint for failure to state a claim, relying on this Court's 1979 decision in Greenholtz versus inmates of the Nebraska Correctional and Penal Institute.

The respondents appealed to the United States Court of Appeals for the Ninth Circuit, raising as the only question that presented before the Court today.

In June of last year the court of appeals reversed the district court's judgment, finding that the Montana statute did create a protected interest.

In relevant part the Montana law provides that the Board of Pardons shall release on parole any inmate who otherwise satisfies certain specified minimum time of incarceration requirements.

When in the Board's opinion there is reasonable probability that the inmates may be released without detriment to themselves or to the community.

The statute further provides that the Board may release on parole prisoners only when the Board determines that such release is in the best interest of society and only when the Board concludes that the prisoner is able and willing to fulfill the obligations of a law-abiding citizen.

The Montana Supreme Court in a series of cases commencing in the early 1960's has construed parole under our statute as creating only a privilege or an act of grace and not a right.

In 1962 in the case of Goff versus State, the Court held in the context of an initial parole decision denial that,

"Because of the discretion vested our Board under our statute, such decisions were not reviewable by state courts. "

Several years later in another case, In Re Frost, our Court held that merely because an inmate satisfied the minimum time of incarceration requirement, that parole was not automatically required under the statute.

The issue before the Court today must in the petitioner's view be resolved by answering a single question: does the Montana law convey to an inmate a reasonable expectation of favorable action upon his parole application simply by virtue of the inmate's having satisfied the minimum time of incarceration requirements which under the law are a condition precedent to the right to even submit an application for parole release.

This is question which, we respectfully submit, was not straightforwardly addressed by the Court of Appeals below, nor has it been addressed directly by the respondents in their briefs before this Court in this case.

It is a question which the petitioners believe must be answered negatively.

In resolving this question--

John Paul Stevens:

General Smith, may I just ask, the statute certainly doesn't give them that right because it says they can't be released unless they meet the time requirement, but it says they shall be released when, in the opinion of the Board, there is reasonable probability the prisoner can be released without detriment to the prisoner or to the community.

Is it your view they don't have a duty to release him even when they make that finding?

Clay Riggs Smith:

--Your Honor, under our statute once the Board of Pardons determines that the facts underlying a particular parole application are such that the release can occur consistently with the three criteria the statute specifies, then under our law the Board is required to order release.

John Paul Stevens:

So, he has a right to release if those conditions are met?

Clay Riggs Smith:

If the Board determines in its discretion that those conditions are met, that is correct, sir.

Antonin Scalia:

What are the three conditions?

Clay Riggs Smith:

The three conditions are as follows: in Subsection 1 of 36-23-201 the statute states that a prisoner shall be released on parole when in the Board's opinion such release can be effected without detriment to the prisoner or to the community.

In Subsection 2 of that provision it states that release shall only be ordered if the best interests of society will be furthered and only when the Board concludes that the prisoner is able and willing to fulfill the obligations of a law-abiding citizen.

As a consequence, in the petitioner's view, the statute sets forth three general criteria which govern its decision making.