Greenholtz v. Inmates of Nebraska Penal and Correctional Complex

PETITIONER: John B. Greenholtz
RESPONDENT: Inmates of Nebraska Penal and Correctional Complex
LOCATION: Nebraska Board of Parole

DOCKET NO.: 78-201
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 442 US 1 (1979)
ARGUED: Jan 17, 1979
DECIDED: May 29, 1979

Brian K. Ridenour - for respondents
Ralph H. Gillan - for petitioners
William Alsup - for the United States, as amicus curiae, by special leave of Court

Facts of the case

The Nebraska Board of Parole (Parole Board) procedure to determine whether an inmate was eligible for release is based on a yearly review of each inmate’s record and an informal interview in which the inmate could present letters and statements in support of his release on parole. The Parole Board would then determine whether the inmate was a good candidate for release and, if so, schedule a final hearing. Inmates scheduled for a final hearing were informed in advance of the month in which the hearing would take place, but did not receive notice of the specific date until the morning of the hearing. Inmates of the Nebraska Penal and Correctional Complex filed a class action in federal district court alleging that the discretionary parole procedures used by the Parole Board violated their rights to procedural due process under the Fourteenth Amendment. The district court held that the procedures did not satisfy due process and, on appeal, the U.S. Court of Appeals for the Eighth Circuit affirmed. The Court of Appeals instructed the Parole Board to modify its procedures to provide each inmate eligible for parole with a full formal hearing and, in the event of an adverse decision, a statement of evidence relied on by the Board.


Does the Due Process Clause of the Fourteenth Amendment apply to discretionary parole release determinations made by a state’s board of parole?

(1) If so, did the procedures employed by the Nebraska Board of Parole satisfy the requirements of the Due Process Clause?


Media for Greenholtz v. Inmates of Nebraska Penal and Correctional Complex

Audio Transcription for Oral Argument - January 17, 1979 in Greenholtz v. Inmates of Nebraska Penal and Correctional Complex

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.

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 --

Warren E. Burger:

One way to comply might be to abolish of parole.

Ralph H. Gillan:

I beg your pardon.

Warren E. Burger:

One way to comply it might be to abolish the parole system.

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.

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 --

Ralph H. Gillan:

They would be purely predictive Your Honor and then the next is even less susceptible to approve.