Young v. Harper – Oral Argument – December 09, 1996

Media for Young v. Harper

Audio Transcription for Opinion Announcement – March 18, 1997 in Young v. Harper

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William H. Rehnquist:

We’ll hear argument now in Number 95-1598, Leroy Young v. Ernest Eugene Harper.

Ms. Howard.

Sandra D. Howard:

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

During the past decade, Oklahoma, like many other States, has experienced a serious prison overcrowding problem.

In an attempt to deal with this crisis, and at the same time to meet the goals of incarceration, the Oklahoma legislature has had to come up with some innovative programs.

One such program is the program at issue here today, the pre-parole conditional supervision program.

Ernest Harper was placed on this program after serving 14 years of a life sentence for first degree murder.

He was reclassified to a higher security level when the Governor of Oklahoma denied his parole.

The Tenth Circuit found that because Mr. Harper had been serving his sentence outside the physical boundaries of a prison, that his program was like parole, and that he was entitled to the full protections of a Morrissey v. Brewer hearing before reclassification.

We believe the Tenth Circuit erred in one major reason.

The Tenth Circuit failed to consider the true nature of the program.

The Tenth Circuit’s approach to the program was really very simple.

The Tenth Circuit found that because this was a program in which a prisoner was serving his sentence outside the four walls of the prison, that it was like parole.

It is really very different from parole in several respects.

First, I think what we need to do is look at the nature of the program.

You told us that in Sandin, and you had told us that previously in Meachum v. Fano and other cases, and when we look at the nature of the program, we have to consider several things.

First, we have to consider the purpose for which the program was instituted.

We have to consider the function of the program, how it operates within the State, and this program, unlike parole, does not function as a program to reintegrate people into society.

It functions as a program to alleviate prison overcrowding.

Sandra Day O’Connor:

Ms. Howard, did the State have any procedures in effect at the time this case arose for a situation like this where one group permitted the preparole but then the Governor subsequently denied parole?

Were there any written procedures in place for that situation–

Sandra D. Howard:

There–

Sandra Day O’Connor:

–when this case occurred?

Sandra D. Howard:

–There were some written procedures at that time.

They did not deal specifically for reclassifying somebody in the particular situation that Mr. Harper was in.

Sandra Day O’Connor:

So the answer is there wasn’t anything that covered this case.

Sandra D. Howard:

Nothing specific.

Sandra Day O’Connor:

And subsequently the State has adopted some procedures?

Sandra D. Howard:

Several procedures have been adopted by our Pardon and Parole Board since that time, and in 1991, after the time Mr. Harper was already brought back onto the program, our Pardon and Parole Board adopted a policy where they now leave people out for 90 days before reexamining them and determining whether to bring–

Sandra Day O’Connor:

And then it’s discretionary with the board whether to terminate it, the pre-parole, simply because the Governor had denied parole?

Sandra D. Howard:

–Actually, it’s a determination made by our Department of Corrections, which is somewhat confusing in this case.

The Pardon and Parole Board recommends people for pre-parole to our Department of Corrections, and the Department of Corrections makes the ultimate decision about–

Sandra Day O’Connor:

And on what basis do they now make that decision?

Is it just totally discretionary–

Sandra D. Howard:

–Yes, it’s–

Sandra Day O’Connor:

–with the Department, or do they consider how the prisoner has behaved on pre-parole?

Sandra D. Howard:

–It is totally discretionary with the Department, and they derive their authority from this Court’s opinion in Meachum v. Fano.

Anthony M. Kennedy:

Well, can they flip a coin?

Sandra D. Howard:

Yes, they can.

Anthony M. Kennedy:

Under Oklahoma law you would advise the board that they can flip a coin?

Sandra D. Howard:

I would advise that that would be permissible in this situation.

Sandra Day O’Connor:

So there… you then take it that the claim before us today doesn’t carry a substantive component to it?

Sandra D. Howard:

No.

Sandra Day O’Connor:

That you go through the motions of a hearing, but then they can flip a coin.

Sandra D. Howard:

I’m not–

Sandra Day O’Connor:

And that gives them due process.

Sandra D. Howard:

–Right.

I’m not–

Sandra Day O’Connor:

Is that right?

Sandra D. Howard:

–Well, I’m not discounting any type of claim, a First Amendment violation or an Eighth Amendment violation, if there were an independent constitutional violation.

We’re not saying that they can revoke on the basis of exercising their First Amendment or, you know, on the basis of race, but other than that, other than some independent constitutional violation–

William H. Rehnquist:

Well, flipping a–

–But what was it in the regulations or the statute at the time that this took place that said that pre-parole can be revoked upon the Governor’s refusing a pardon?

Sandra D. Howard:

–Again, there’s nothing specific in the statute.

What we do have, we have a statute which implements the program, and it indicates that people on that program are inmates within the Department of Corrections.

It indicates that they are subject to escape charges if they don’t report back from the program.

It indicates also that they’re subject to the disciplinary proceedings of the Department of Corrections.

From that we assume, or we know, that this is a type of classification within the Department of Corrections under Meachum v. Fano.

Ruth Bader Ginsburg:

But Mr. Harper was asked at the time he was put in this program, he was asked to sign a form, and I’m lcoking at page 5 of the joint appendix.

Sandra D. Howard:

Yes.

Ruth Bader Ginsburg:

And that form says, reviewed options available in the event of parole denial, and he signs it, and I guess somebody from the Department of Corrections signs it.

Well, what were those options that were reviewed with him that would be available in the event of parole denial?

Sandra D. Howard:

At the end, we don’t have anything specific in our regulations saying what those options were.

I’m told by the Department of Corrections that at that time it was automatic, that if the Governor denied parole they automatically reclassified–

Ruth Bader Ginsburg:

So this was a misrepresentation on the form that they asked him to sign?

It said options?

Sandra D. Howard:

–Well, we don’t know for sure if those options are only limited to… to two options of either being brought back in or being stayed out.

It could be other options that are not directly related to the specific decision about whether to reclassify or not, you know, so–

David H. Souter:

Well, was staying out, as you put it, one of the options?

Sandra D. Howard:

–At that time it was not.

It is now.

At that time it was not.

David H. Souter:

In fact, as I understand it, some of these individuals who were denied parole were brought back like this particular prisoner, and some were not, is that correct?

Sandra D. Howard:

At the time–

David H. Souter:

Not all of them have been brought back.

Sandra D. Howard:

–At the time that Mr. Harper was brought back, everyone in his similar situation was brought back in.

David H. Souter:

But that’s not the case now?

Sandra D. Howard:

That is not the case now.

Antonin Scalia:

Well–

–You mean there were no options, then?

Sandra D. Howard:

Well, there were no options as far as, if you consider the options stay out or come in.

Antonin Scalia:

What other options would there be?

Sandra D. Howard:

Well, like you, I’m somewhat troubled by that language, that I think perhaps it could refer to other types of options once he’s back within the prison.

You know, whether… which institution he’s going to be placed at, whether he’s going to be at a minimum security in the southern part of the State or in the northern part of the State.

You know, other types of restrictions that may be placed on him.

David H. Souter:

Your–

–What is the change in the law between the time he was brought back and the present that explains why some of the prisoners are not being brought back today, whereas he was?

Sandra D. Howard:

Do you mean, what is the rationale behind the change, or–

David H. Souter:

Well, has there been any change in the State statute?

Sandra D. Howard:

–There has been no change in the State statute with regard to that.

Sandra D. Howard:

There’s been one slight change in the statute which deals with educational programs that–

David H. Souter:

But that doesn’t cover this.

Sandra D. Howard:

–Right.

There–

David H. Souter:

What does explain as a matter of law, if anything, the difference in treatment?

Sandra D. Howard:

–I don’t know that there’s anything as a matter of law.

David H. Souter:

So it’s a matter of administrative practice?

Sandra D. Howard:

It’s a matter of administrative policy, which is really my point here, the point we’re trying to make in this case.

David H. Souter:

Well, before you go on to that, how is the decision being made today as to whether he… a given prisoner will be brought back or not?

I mean, I assume they’re not flipping coins.

Sandra D. Howard:

No.

David H. Souter:

But how are they making this decision?

Sandra D. Howard:

A review board in the Department of Corrections is making the decision.

David H. Souter:

And what is it grounding its decision on?

What does it consider?

Sandra D. Howard:

Again, there are no specific statutory or regulatory guidelines, but they–

David H. Souter:

Well–

Sandra D. Howard:

–One–

David H. Souter:

–If it’s not flipping a coin, wouldn’t a hearing with an opportunity to appear and give reasons why one should be brought back or not brought back function as a normal due process hearing would function?

Sandra D. Howard:

–It might would function as that, but I think the question here is whether there’s a liberty interest in this program such that he’s required to have a hearing, and–

David H. Souter:

But in any case, leaving the liberty interest issue aside, there would be the same function for this hearing that there would be, I presume, for a parole revocation hearing.

There would be an opportunity to argue that one should not be brought back, for whatever equitable reasons one could raise.

That’s fair to say, is it?

Sandra D. Howard:

–There would be an argument… there would be… under Meachum v. Fano I keep coming back to, but that case discussed the fact that when you’re dealing with classification systems like this one is, that there’s no… that there’s no right to participate in the decision of whether or not to reclassify.

It’s purely–

David H. Souter:

Well, but this is a question which involves not only a reclassification, but a revocation of liberty, and Morrissey and Brewer says expressly, whatever you call it, by whatever name, the liberty in fact is an interest which deserves a hearing before it is revoked, so I don’t see why you don’t fall within the terms of Morrissey, because you have a) liberty in fact, and b) a discretionary decision about whether to revoke it or not.

Sandra D. Howard:

–I think we have to look at the Morrissey v. Brewer opinion closely to determine whether we do really fall under Morrissey, and there are several–

David H. Souter:

Well, you fall within the language that I just referred to.

You would agree with that, wouldn’t you?

Sandra D. Howard:

–I would agree with that, but I think we also… and the Court talks about this in Morrissey, is you have to look at the function of the program.

William H. Rehnquist:

Well, yes.

I suppose also Morrissey v. Brewer may have decided this… described kind of a generic parole.

It didn’t purport to account for all the different variations in the different States, and I gather what your State is saying is that the Oklahoma system, at least now and perhaps as it was when this respondent was dealt with by it, was different from the ordinary system.

Sandra D. Howard:

That’s exactly the point I wanted to make, Your Honor, that when Morrissey talked about parole, Morrissey talked about the fact that parole had been around for 60 years, it was a well-established part of the penal system, and that–

Sandra Day O’Connor:

Well, suppose we decided here, at least a majority were to conclude that it is most closely analogous to parole, and therefore Morrissey is some… it’s applicable in some respect, do you think the system the State now has in place would suffice if the ultimate decision is arbitrarily decided?

Sandra D. Howard:

–The system they now… the State now has in place still does not entitle the inmate to a hearing; so, you know, if this Court were to find that a Morrissey–

Sandra Day O’Connor:

The new system does not–

Sandra D. Howard:

–No.

Sandra Day O’Connor:

–give the inmate a hearing?

Sandra D. Howard:

No, it does not.

It allows the inmate to stay out for a certain time before the Department of Corrections makes a decision to bring him back in, but the new system does not entitle him to a hearing.

Sandra Day O’Connor:

And if this Court thought that Morrissey were applicable, do you defend that system?

Sandra D. Howard:

If this Court thought–

Sandra Day O’Connor:

If we thought that it was analogous to parole.

Sandra D. Howard:

–If you thought that it was like parole such that Morrissey applied, then I think we would have a hard time defending that system.

William H. Rehnquist:

Well, you can’t under our due proces cases say that we have a particular scheme here, and it doesn’t call for a hearing, and therefore that’s the end of it.

I mean, if the scheme calls for a determination of facts before a particular action can be taken, then due process may be implicated even though there’s no provision for a hearing in the State system.

Sandra D. Howard:

I would agree with that, that first you have to find a liberty interest.

John Paul Stevens:

May I ask you, you said this is different from parole, and you never quite explained why.

Would you tell me, from the standpoint of the person out of jail, what’s the difference?

Sandra D. Howard:

I will answer that question and then I’d like to also make a couple of other comments.

From the standpoint of someone out of jail, like Mr. Harper–

John Paul Stevens:

Right.

Sandra D. Howard:

–there are several differences.

One, Mr. Harper is still bound by the prison disciplinary proceedings, so if he commits some sort of disciplinary violation while he’s out on pre-parole, just something that would be a disciplinary misconduct in the prison, like a disrespect to his supervising parole officers, then he can be charged with a disciplinary violation and earned credits can be taken away.

John Paul Stevens:

And you don’t think that Morrissey, if he was disrespectful to his parole officer, could have been disciplined?

Sandra D. Howard:

There’s no provision for that.

John Paul Stevens:

I see.

Sandra D. Howard:

Under parole, you’re either revoked or you’re… there are no provisions–

John Paul Stevens:

I see.

John Paul Stevens:

In other words, there’s discipline short of revocation.

Sandra D. Howard:

–Exactly.

John Paul Stevens:

Okay.

Sandra D. Howard:

Another important… I think a real important point to make is that prisoners on this pre-parole conditional supervision program are earning earned credits within our Department of Corrections.

Some States call them good time credits.

We have a system where you’re placed on a certain level, and you may earn an additional 44 days or 33 days or 22 days based on things like the management of your living space and hygiene, participation in an education program, or a job–

John Paul Stevens:

These are good time credits shortening the release date?

Sandra D. Howard:

–Right.

John Paul Stevens:

Well, can’t a person on parole earn those, too?

Sandra D. Howard:

No.

People on parole do not earn those.

Again–

Anthony M. Kennedy:

I would take it… correct me if I’m wrong… that a parolee is subject to a certain amount of increased restrictions if he seems to be not quite adjusting to the instructions of the parole.

He’d say, you have to report to me three times a week, instead of once a week.

You must be home at night.

You can’t go out at night.

So there are, it seems to me, all sorts of options that the parole officer has, short of revocation.

Sandra D. Howard:

–There may be additional options, depending upon–

Anthony M. Kennedy:

So then that distinction between your pre-parolee respondent here and the parolee in the standard parole case doesn’t seem to hold up in your answer to Justice Stevens.

Sandra D. Howard:

–Well, the distinction, I believe, is the fact that these… the things that I were mentioning to Justice Stevens show that this inmate, people on pre-parole are continuing to serve their sentence under the Department of Corrections.

With a parole program, yes, the parole officer could put additional burdens on a parolee if it was in… if it was within the rules and conditions which were originally imposed upon him.

They couldn’t go outside those rules and conditions, but if they were within those rules and conditions they could put additional burdens on him, but not the type of burdens that would be given to an inmate in a prison, which is what people on pre-parole have.

Antonin Scalia:

Ms. Howard, who administers the pre-parole program.

Is it administered by the prison warden?

Sandra D. Howard:

It’s administered by our Department of Corrections.

Antonin Scalia:

Or… and who administers parole?

Is it a separate organization?

Sandra D. Howard:

It’s… the Pardon and Parole Board recommends people for parole, and they ultimately do administer that–

Antonin Scalia:

No, but once they go out on parole, I mean, who takes care of seeing that everybody’s abiding by his parole restrictions and so forth?

Sandra D. Howard:

–Parole officers would report that to the Pardon and Parole Board.

Antonin Scalia:

Okay, so the Pardon and Parole Board, which is independent of the Bureau of Corrections?

Sandra D. Howard:

Yes.

There are some overlaps, and like in this situation, people on pre-parole, they’re supervised by parole officers, and they’re employees of the Department of Corrections, so there’s some overlap between the two departments.

Ruth Bader Ginsburg:

So the supervisor while he’s at liberty would be the same whether he’s on parole or pre-parole?

Sandra D. Howard:

The specific employee might be the same.

They’re both parole officers.

But that’s just an ease of function with our Department of Corrections, is that they use these parole officers for performing these functions, but they still report to the Department of Corrections as opposed to the Pardon and Parole–

Antonin Scalia:

But the judgment whether to bring him back, for example, or whether to impose some kind of a sanction, whether it’s more frequent consultation with a parole officer or denial of good time credits or whatever else, that judgment is made by the warden or by the Department of Corrections?

Sandra D. Howard:

–The Department of Corrections, yes, Your Honor.

Antonin Scalia:

Not by the parole board?

Sandra D. Howard:

No.

All they do is recommend people for placement on the program.

Anthony M. Kennedy:

I still am not quite clear on the reasons that this respondent could have been brought back at the… under the regulations then in force.

At page 18 and 19 of your brief, 19… the bottom of page 18, you said, an inmate on the program is aware that he may be reclassified to a higher security level… I assume that means being brought back into the facility… for any reason, including that the Governor denied the inmate for parole, that he no longer meets eligibility requirements, whether he violated a rule.

It seems to me that that means that there must be some reason given.

If you said for any reason at all, including flipping a coin, you wouldn’t need those three… those three classifications.

Sandra D. Howard:

That gets us to the point that this Court recently made in Sandin, which is that you don’t look at language like that and pick it apart in a mechanical manner.

You look to the nature of the program, and here, yes, there is some language saying you will be removed or you may be removed if you don’t abide with the educational rules–

Anthony M. Kennedy:

It says two things, you may be removed, which indicates there’s some discretion, for a reason.

Sandra D. Howard:

–But that doesn’t leave an implication that you may not be removed for any other reason, and that’s exactly what this Court was talking about most recently in–

Anthony M. Kennedy:

Well then, I don’t know why you described the program in that way.

Sandra D. Howard:

–In… I’m sorry.

Anthony M. Kennedy:

It seems to me your description is completely unnecessary if no reason at all is necessary to be given.

Sandra D. Howard:

We’re describing the program as a reclassification system.

When the inmate goes on the program, he signs the forms, the orientation that he signed… joint appendix page 4, specifically on page 6.

The inmate knew that he was being classified at a community level.

That is a type of classification.

William H. Rehnquist:

I don’t have the joint appendix before me, Ms. Howard, but what exactly… you say the inmate was aware he can be reclassified to be in fact brought back for several… including the Governor has denied the inmate parole.

Now, what exactly does that section you’re referring to say about being brought back if the Government… if the Governor denies parole?

Sandra D. Howard:

Again, I would admit to you there’s no specific language I can point to that says–

William H. Rehnquist:

Well, is there general language you can point to?

Sandra D. Howard:

–General language that he’s on a community level.

General language that this case fits within Meachum v. Fano, which deals with–

William H. Rehnquist:

Yes, but now, that’s drawing a legal conclusion, but I’m curious to know just what’s there.

Sandra D. Howard:

–We also have a statute, title 57, section 512, which says that the prison officials may transfer between institutions.

William H. Rehnquist:

So the prison officials in effect regarded this as just another form of confinement.

Sandra D. Howard:

Exactly.

William H. Rehnquist:

Except it wasn’t in the prison.

Sandra D. Howard:

Well, it… the restrictions that were placed on the inmate were such that it is a type of confinement.

With parole, as I was saying earlier, parole is an established part of the penal system.

The purpose of it, everyone knew in Morrissey v. Brewer that the purpose of parole was to reintegrate people into society.

Here, this program is implemented for overcrowding.

It was implemented not because it was a integral part of any penalogical system, but implemented for a specific purpose.

William H. Rehnquist:

Well, what restrictions were placed on him that were different from restrictions placed on parolees?

Sandra D. Howard:

As I was mentioning earlier, if he escapes, then he’s subject to escape charges, criminal charges for escape.

That’s different than a parolee.

He’s subject to the disciplinary proceedings of the Department of Corrections… different from a parolee.

If he needs medical treatment and wishes to have it paid for, he may… he can go back into an institution and have that medical treatment.

That’s different from a parolee.

Also, earning the credits and getting not only the time that he’s out serving his sentence but also additional time for credits.

With parole, in Oklahoma a parolee gets credit for time that he’s out on parole credited towards his sentence, his flat time.

That, if a parolee’s sentence is revoked and he’s brought back in, he may or may not get credit for that time that he’s been out serving, so if a parolee, say, has a 10-year sentence and after 8 he’s out, and he has a 2-year suspended sentence–

John Paul Stevens:

May I ask a pretty… maybe it’s the same question the Chief Justice asked in another way.

There are a lot of reasons for it, and a lot of… if he does something wrong, different things can happen to him from the parolee.

But supposing he just works and earns his money and pays his rent and does everything else, and reports to whoever it is he has to report to, is… does he, in his normal daily life, if he behaves himself completely, is there any difference in his life and that of a parolee?

Sandra D. Howard:

–If you’re talking about day-to-day functions like, you know, visiting with his family and, you know, going on about–

John Paul Stevens:

And going to work, and going to the movies, or whatever it is.

Sandra D. Howard:

–Then I can’t think of anything specific in a day-to-day–

Antonin Scalia:

I thought he couldn’t leave the State.

Isn’t he–

Sandra D. Howard:

–He… the medical… I wanted to make a point about if he needs medical treatment he has to go back in for it.

He can’t leave the State–

John Paul Stevens:

–What about… what if the parolee… couldn’t parolee go back in for medical treatment?

Sandra D. Howard:

–Not unless his parole were revoked.

I mean, the Department–

John Paul Stevens:

He could not… oh, not unless his parole is revoked.

Sandra D. Howard:

–Yes.

If he wants to be willing to have his parole revoked I suppose he could, and–

Antonin Scalia:

Can he leave the State, the parolee?

Sandra D. Howard:

–He cannot leave the State.

John Paul Stevens:

So he’s better off than the parolee.

A parolee cannot leave–

Sandra D. Howard:

A parolee can leave the State with permission.

Someone on the pre-parole program cannot even leave the State with permission.

They can only leave the county with permission.

So there are several ways–

John Paul Stevens:

–But on the medical point you made, I think you’re saying that the person on pre-parole is better off than the parolee, right, because he has an option the parolee doesn’t have.

Sandra D. Howard:

–There are certain things about the program, if you just look at one isolated portion like that, that make it appear to be better, but overall, when you look at the true nature of the program–

John Paul Stevens:

Because he wouldn’t… if he could pay for the doctor himself, he could go to his own doctor, just like the parolee could.

Sandra D. Howard:

–Right.

William H. Rehnquist:

Well, of course, in that sense all of the people still in prison are better off than the parolee.

[Laughter]

Sandra D. Howard:

Exactly.

Better off than many of us on some occasions.

Antonin Scalia:

Well, he is confined to the county, and the parolee is confined to the State.

Sandra D. Howard:

A parolee is technically released from his sentence of imprisonment.

His sentence is suspended while he’s on parole, and a person on the pre-parole program is continuing to serve his sentence.

Antonin Scalia:

Yes.

You want to answer my question?

Sandra D. Howard:

I’m sorry.

Antonin Scalia:

The parolee is confined to the State, is that right?

Sandra D. Howard:

I don’t know that he’s–

Antonin Scalia:

Unless he gets permission.

Sandra D. Howard:

–that he’s… oh, physically confined to the State.

Antonin Scalia:

Yes.

Sandra D. Howard:

I’m sorry, I misunderstood your question.

Antonin Scalia:

Yes.

Sandra D. Howard:

Yes, he is.

Antonin Scalia:

And the pre-parolee is confined to the county.

Sandra D. Howard:

Right.

Antonin Scalia:

That’s a pretty big difference, I suppose.

How many people in your estimation… no, how long in your estimation do people spend on pre-parole release?

Sandra D. Howard:

Well, because of the nature of the program, I’d say about a year generally, if they continue on the program, because pre-parole is considered a year earlier than parole is considered.

Stephen G. Breyer:

Are there people who were released for a year before their consideration of parole, and then parole was denied, who have remained out?

Sandra D. Howard:

There may be people like that now.

There were no people at the time Mr. Harper was brought back in, but now there may be such people, yes.

Stephen G. Breyer:

And how many people would you say approximately are on this program?

Sandra D. Howard:

About… at this time I would say about 1,200 or so are probably on the program.

Again, there’s nothing specific in the record dealing with that.

Sandra Day O’Connor:

Does the parole board consider different factors in determining whether a particular prisoner should get pre-parole, such as whether he will be a threat if put on pre-parole to society, and his chances of meeting the requirements and so forth?

Do they consider that?

Sandra D. Howard:

Again, I hate to keep saying this, but there’s nothing in our statute which sets forth what considerations the parole board should make.

Sandra Day O’Connor:

Is there anything in the statute about what they consider for parole?

Sandra D. Howard:

Certain people are–

Sandra Day O’Connor:

Anything in the statute?

Sandra D. Howard:

–Not specifically, no.

Sandra Day O’Connor:

And do we have any reason to know whether they consider the same or different factors?

Sandra D. Howard:

I think one reason that we would know that is that with pre-parole we look at the purpose of the program, which is to alleviate overcrowding.

Sandra Day O’Connor:

So even if it’s a triple ax murderer, you’d automatically give them pre-parole?

Sandra D. Howard:

Not automatically, but they may be given pre-parole–

Sandra Day O’Connor:

They wouldn’t consider, you think, whether they’re going to be a threat on release?

Sandra D. Howard:

–They certainly may consider that, and… but I… but they are not required to consider that.

John Paul Stevens:

May I ask another question along Justice O’Connor’s line?

Supposing the prison is extremely crowded.

Is it permissible for the parole board to take that fact into consideration in deciding whether to grant someone parole that might not… could be right on the margin?

Sandra D. Howard:

It might be permissible, but there are no specific guidelines for when–

John Paul Stevens:

So overcrowding could play a role in either decision.

Sandra D. Howard:

–It possibly could, but–

John Paul Stevens:

Yes.

Sandra D. Howard:

–with this program–

John Paul Stevens:

It specifically is a response to overcrowding.

I understand.

Sandra D. Howard:

–it was the focus of the program.

John Paul Stevens:

Yes.

Sandra D. Howard:

And in doing that, they might have to consider who best to let out.

If they know they’re going to let out a certain number of people, then they might let out the people who are less of a danger to society, but that doesn’t mean that–

Antonin Scalia:

If everybody else is a quadruple ax muroerer, they would presumably let out the triple ax murderer, right?

Sandra D. Howard:

–Right.

Stephen G. Breyer:

But would they do the same–

Sandra D. Howard:

Or the double murderer such as Mr. Harper.

Stephen G. Breyer:

–But would they do the same thing in bringing people back?

That is, suppose they now get some extra cells free, do they now bring people back because they say, we don’t need all these people out there any more.

We have some extra cells, and there are a few people who have done worse things than others, and we’re going to bring them back.

Sandra D. Howard:

I’m not aware of any situations where they’ve done that, because to this point we’ve never had any extra cells, but I think pursuant to our program we could, if the Department of Corrections chose to do that.

When it got to the point to where the prison was no longer crowded, they–

Ruth Bader Ginsburg:

But I thought that under the program currently someone is kept in the program even if they’re denied parole until there’s a 90-day period when they decide what will be done with the person.

Sandra D. Howard:

–They may be left out for 90 days and then still a determination is made whether to bring them back or not, but they’re still not entitled to a hearing at that–

Ruth Bader Ginsburg:

In terms of what is told to a person who is entering such a program, we’ve already established that we don’t know what options there were, but he was also asked, Harper was asked to sign another thing, and this is on page 9 of the joint appendix.

He signed saying, I understand that waiving parole, waiving parole while on pre-parole status will result in reclassification to a higher security status.

What does that mean, waiving parole?

Sandra D. Howard:

–Refusing to be considered, or deciding not to be considered for parole.

Ruth Bader Ginsburg:

He would… why a… would someone decide that they don’t want to be considered for parole?

Sandra D. Howard:

It gets back to the point that Justice Stevens was making earlier, that there are some situations where pre-parole is more advantageous, and because a defendant is earning credits while he’s out on pre-parole, in addition to flat time served, he may get out earlier on pre-parole–

Ruth Bader Ginsburg:

But this says that if he does that… if he waives parole, this says, while he’s on pre-parole status, back he goes.

It will result in reclassification.

Sandra D. Howard:

–That’s to prevent the situation, as an inmate, trying to manipulate the system that way, staying out on pre-parole rather than being placed on parole, where society would have their interests filled by having him in a program where he’s being rehabilitated into society.

Ruth Bader Ginsburg:

So this is telling him, you must be considered for parole when your time comes up, otherwise you go right back.

Sandra D. Howard:

Exactly.

One point I want to make, too, is that the inmate’s understanding of what he will and won’t get from the program is not the critical factor here.

This Court discussed that in Sandin.

This Court discussed it in Connecticut v. Dumschat.

The Court also discussed that in Jago, JAGO, v. Van Kirrin.

In Jago, they had told an inmate that he would get out on parole, and then later the Department of Corrections determined that no, they wouldn’t let him out, and the Court said that even though there was a mutually explicit understanding that he would get out, that that did not give him a liberty interest in the program.

The same thing with the Connecticut v. Dumschat case.

Also, as my time runs down I want to make the point that the purpose of this program is a prison administrative program.

It’s to deal with problems that are inherent in the prison, and this Court was very specific in Sandin that Federal courts should stay out of the day-to-day management of prisons.

We need to be able to have as much opportunity as we can with this programs in order to experiment and try different things.

You know, we used to… we brought people back in automatically if parole was denied.

Now we leave them out 90 days, or maybe even a longer period of time.

That is a function of the program, and the prison administrators are the proper ones to make that determination on what do we need to do with these type of programs.

I’d like to reserve my remaining time… which I don’t have.

William H. Rehnquist:

Which you don’t have.

[Laughter]

Thank you–

Sandra D. Howard:

Thank you.

William H. Rehnquist:

–Ms. Howard.

Ms. Winter, we’ll hear from you.

Margaret Winter:

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

In Morrissey v. Brewer the Court examined the nature of a parolee’s interest in his continued liberty.

The Court defined parole as follows: the essence of parole is release from prison before completion of sentence on condition that the prisoner abide by certain rules during the balance of the sentence.

Margaret Winter:

The Court decided that even though the parolee’s liberty is only partial and conditional, nevertheless it includes many of the core values of unconditional liberty.

William H. Rehnquist:

Do you think the Morrissey opinion was entitled… was intended to apply to every single program that a State might set up under the name of parole, no matter what the conditions of it were?

Margaret Winter:

No.

William H. Rehnquist:

Then you really have to examine the Oklahoma program, don’t you–

Margaret Winter:

Yes.

William H. Rehnquist:

–to see what would be Morrissey’s impact on it in terms of a duty process hearing?

Margaret Winter:

Yes, I agree, and what we are really saying is, is that in the State of Oklahoma they have created two programs, two parole programs, both of which fall well within the parameters discussed in Morrissey.

One of these programs they all parole, and the newer program they call the pre-parole conditional supervision program.

The eligibility requirements are identical for the two programs, with the exception that a prisoner can qualify a little bit earlier for pre-parole than for parole, and the–

Anthony M. Kennedy:

Do you agree with counsel for the State that pre-parole can be revoked for any reason or no reason at all… that pre-parole can be revoked, that the respondent can be told to report to Correction for any reason or no reason at all?

Do you agree with that?

Margaret Winter:

–No.

I’m not sure I’m understanding the question.

We–

Anthony M. Kennedy:

I tried to find out from opposing counsel, the counsel for the State of Oklahoma, the grounds upon which pre-parole could be revoked, and I thought the answer was any reason at all.

You can flip a coin.

The corrections board can say, I’m bored.

We’re not going to… we’ll just revoke all these people.

We don’t want to read all these papers.

Do you agree that that is the proper description of the duties of the corrections board under this program, that they can revoke for no reason at all?

Margaret Winter:

–That statute doesn’t say.

That’s the way the State is interpreting it, and–

Anthony M. Kennedy:

Do you agree with that interpretation?

Margaret Winter:

–I don’t know exactly what Your Honor is asking.

It seems to me that under the regulations they say that they are making a decision.

If they’re making a decision, that has certain due process implications.

Anthony M. Kennedy:

Well… well, apart from due process, under State law, are there any principles that guide the Board of Corrections in determining to revoke pre-parole status?

Margaret Winter:

In… this case was heard in State court.

There was never any… that issue never came up, because this is a very new claim of the State, that they can revoke for any reason or no reason in State–

Anthony M. Kennedy:

Well, would you agree… would you agree that the Board of Corrections can give no reason at all, say, well, we’re… I’m bored today.

Anthony M. Kennedy:

I don’t want to read these papers.

I’m just going to revoke all the parole.

I’m not going to go through this paperwork.

Could he do that, the corrections officer?

Margaret Winter:

–Well, we’re here to see that he can’t do that.

I don’t–

Anthony M. Kennedy:

I’m talking about under State law.

Margaret Winter:

–There is… the statute doesn’t speak to this.

The regulations don’t say, it can be revoked for any reason or no reason.

The regulations… the only existing regulations that have ever been promulgated in the State, either by the Department of Corrections or by the Pardon and Parole Board, would suggest the opposite.

Anthony M. Kennedy:

I think they would suggest the opposite, and I think the form that is set forth at pages 4, 5, and 6 of the joint appendix indicates that he has a certain expectation… that’s the word the form used… that he is expected to be in compliance with all of these rules, which would indicate to me that under the State’s procedure, discretion has certain boundaries.

Margaret Winter:

Under the form that Mr. Harper signed, the time… the form that was used at the time he was let out, the last thing he’s expected to sign off on after having been given all the rules and procedures is a statement, I understand that my being released into the community is dependent upon my compliance with all of these expectations, and so it seems to me clear that at the time that he was released, at least the Department of Corrections and the parole board understood that they couldn’t do it for any reason or no reason.

Antonin Scalia:

Oh, I… it doesn’t mean that.

It just means if you don’t live up to the expectations you will be pulled back.

It doesn’t mean you can’t be for other reasons, necessarily.

Margaret Winter:

Well, you see–

Antonin Scalia:

But you’re sort of compelled to argue, aren’t you… don’t you really have to answer yes to the question Justice Kennedy was asking?

If… if this could be revoked for any reason whatever, what good would a hearing be?

I mean, you usually don’t have a… you usually have a hearing to find out whether a particular legal requirement was complied with or not.

If there’s no legal requirement, what possible good is the hearing?

Margaret Winter:

–It seems to me that what the–

Antonin Scalia:

I mean, your client comes in and says, you know, you pulled me back, and… yes, we did.

Why?

He says, oh, because we felt like it.

A hearing would be utterly useless, wouldn’t it?

Margaret Winter:

–It certainly would be useless.

There would be no point at all if they could bring them back, if under the Constitution they could bring them back for any reason or no reason.

Stephen G. Breyer:

All right, so why on that very point… I… there’s a State court finding here that the reason that your client was removed from the program was because he was not granted parole by the Governor of Oklahoma, and they found that, I guess, in Judge Lumpkin’s opinion, dispositive of the issue is the fact he was not granted parole by the Governor of Oklahoma, right?

Margaret Winter:

No–

Stephen G. Breyer:

That’s what it says.

Stephen G. Breyer:

I’m reading it on page 40a of the record.

It says, dispositive… maybe it’s a different case or something.

Margaret Winter:

–I believe–

Stephen G. Breyer:

40a of your… of their petition.

Margaret Winter:

–The Court may be looking at the district, the U.S. district court opinion.

Stephen G. Breyer:

I’m looking at page 40a of the appendix, where it says, Gary Lumpkin, the presiding… maybe it’s a different case, or–

–The white brief?

Yes, the white brief.

Maybe… is this the district court?

Well, my question is this.

I read that, and I thought that the reason they… we have a finding here, what I thought was… it says Court of Criminal Appeals of Oklahoma, order denying application for writ of habeas corpus.

It’s in the petition for certiorari, and what it says when I read it… maybe I’m asking this because you can clarify it for me… is it says, dispositive of the issue in petitioner’s case is the fact he was not granted parole by the Governor of Oklahoma.

It is for this, not a disciplinary reason, that he was removed from the program.

So I thought everybody agrees to that, that… that’s… am I right?

Is that right, or am I mixing it up, or what?

Margaret Winter:

I… looking at everything that the court of appeals says, they say that we believe that the procedure, that is, the procedure that says–

Stephen G. Breyer:

I’m not asking about procedure.

This is… are you talking… when you say court of appeals, are you talking about the Tenth Circuit or the–

Margaret Winter:

–No, the–

William H. Rehnquist:

–Court of Criminal Appeals that Justice Breyer is talking about?

Margaret Winter:

–Court of Criminal Appeals.

Stephen G. Breyer:

Yes.

I’m saying… what I’m trying to find out is… is, isn’t it… what seems to be true is that he’s saying, this judge, that the reason that your client was removed from the program was because he was not granted parole by the Governor.

Margaret Winter:

Yes, but it seems to–

Stephen G. Breyer:

All right.

Now… all right.

If that’s so, I don’t think your client disputes that he was not granted parole.

Margaret Winter:

–That’s correct.

Stephen G. Breyer:

Am I right about that?

Margaret Winter:

That’s correct.

Stephen G. Breyer:

All right.

So what is… the basic rule, I thought, of the due process law, it’s so basic that nobody ever says it, that you don’t have to have a hearing under the Constitution or any other rule if there’s nothing to have a hearing about–

Margaret Winter:

That’s–

Stephen G. Breyer:

–and if, in fact, he was removed because he wasn’t given parole, and if that isn’t in dispute, what would there possibly be in this case to have a hearing about?

Margaret Winter:

–I don’t think that that is what the Court of Criminal–

Stephen G. Breyer:

I know it isn’t what they said.

All I want to know is, is if the underlying facts are correct, that it is that he was removed, that there was a finding in this court, a State court, that the reason his PP, whatever it is, was revoked is because he wasn’t given a parole.

Margaret Winter:

–Yes.

Stephen G. Breyer:

Yes.

Margaret Winter:

Correct.

Stephen G. Breyer:

All right.

If that’s correct, and he doesn’t dispute that, then what is there to have a hearing about, and if there is nothing to have a hearing about, where in the Constitution does it require a court or an agency or anyone to have a hearing when there is nothing to have a hearing about?

Margaret Winter:

There’s a… the purpose of having a hearing here is exactly the same as it is in Morrissey.

That is, here, the triggering event for a hearing, they say now, can be the Governor refuses to grant parole.

That becomes–

William H. Rehnquist:

Well, it’s not just they say, it’s the Court of Criminal Appeals of Oklahoma that says.

Margaret Winter:

–That’s fine.

We won’t quarrel with that.

When the Governor denies parole under this framework, that becomes a triggering event for a hearing, but–

William H. Rehnquist:

Well, but you say it becomes a triggering event.

That suggests that there are other issues to be inquired into.

But what if the rule in Oklahoma is simply, when the Governor denies parole, you’re recalled, period?

Margaret Winter:

–That would be a different case.

William H. Rehnquist:

Well, how… but there isn’t any intimation in the opinion of the Oklahoma Court of Criminal Appeals that more factors somehow are involved.

Margaret Winter:

But I think there is.

The Court of Criminal Appeals said, and the Attorney General relies on it, they said that what this framework provides is that he may be brought back in, which means that a determination is being made.

Stephen G. Breyer:

Nobody says that parole revocation is a necess… there might be other reasons why you might revoke a person’s pre-parole.

What I take it is the case here is that this would be a sufficient reason under Oklahoma law.

You have a judge of Oklahoma suggesting in the paragraph that it is a sufficient reason–

Margaret Winter:

But–

Stephen G. Breyer:

–under Oklahoma law.

It’s not true under Oklahoma law at that time that it was a sufficient reason to revoke his PPCS?

What would we look to as a matter of Oklahoma law to establish that?

Margaret Winter:

–Why don’t we assume that it is a sufficient reason, just as a parole violation is a sufficient reason, but the court doesn’t stop… the court says you can’t stop with a sufficient reason.

Once you–

Sandra Day O’Connor:

Well, wait a minute.

What if the statute itself expressly said, denial of parole subsequent to having been granted pre-parole status is sufficient, in and of itself, to be grounds for removal from that status?

Suppose the statute said it just that way.

Would you be here?

Would you have a case?

Margaret Winter:

–I think that that would be a different case.

Sandra Day O’Connor:

Well, the suggestion being made to you is it is the same case as when an Oklahoma court says that is what State law is.

How do you have a case if you wouldn’t have under a statute that said it expressly when you have an Oklahoma court decision that that’s the Oklahoma law?

I think that’s the question.

Margaret Winter:

Would you mind posing the question to me again?

Stephen G. Breyer:

Well, it’s the same… I mean, to add to that is, of course you might be entitled to a hearing if it were in dispute as to whether the Governor had in fact or not revoked the parole, but there is no dispute–

–But isn’t there another factor everybody’s overlooking?

The Oklahoma procedure spelled out in 41a of the appendix is that 1) the inmate is denied by parole by the Governor, but their cases shall be reviewed by the parole board 90 days from denial to determine whether that statute will be continued, indicating that the denial is not… it may be a sufficient reason, but it’s not always a sufficient reason.

And that’s true now, but that wasn’t true then.

That’s the new rule.

Margaret Winter:

The assertion that it wasn’t true then is nothing but an assertion.

There’s absolutely nothing in the record, it seems to me… I don’t see it in the Court of Criminal Appeals’ opinion or anywhere else.

Ruth Bader Ginsburg:

Well, they document when the new rules came in.

Well, let’s see if we can get agreement on a basic proposition.

That is, suppose Oklahoma law was, you’re denied parole.

The denial of parole by the Governor means you go back, no ifs, ands, or buts, there wouldn’t be any due process, right, would there, if that were the situation?

Margaret Winter:

I would agree.

Ruth Bader Ginsburg:

So the question is, is that what we have in this case?

You would agree that there’s no need for a hearing if it follows like the night the day the Governor denies parole, you’re required to go back.

Margaret Winter:

I do have one caveat.

Margaret Winter:

It seems to me that there are circumstances in which you could have a problem, a substantive due process problem, in having automatic revocation for a reason that is utterly irrational when you’re talking about a precious–

Ruth Bader Ginsburg:

The reason is, the Governor denies parole.

The Governor has the discretion to grant or deny parole.

The Governor denies parole.

The rules are, denial of parole, you go back to prison.

Margaret Winter:

–In a situation like this, where it happens quickly, I think that makes it like a furlough problem and that there’s no problem with that.

The statue says that.

Ruth Bader Ginsburg:

Well, the question is, is that what this statute says, because a 90-day period didn’t come in until later.

Margaret Winter:

The record has so much evidence, including a dozen statements by the Attorney General in its briefs.

It’s a very… it’s a late argument that the statute means anything other than that it is discretionary.

There are literally a dozen times that the Attorney General has said it in its briefs to this Court and the lower court.

There are the documents that Mr. Harper himself signed saying that there were options in the event of parole, and saying that his continuing out remained on his compliance with conditions, and finally, the only evidence in the record as to what the statute means, whether or not there’s discretion, are regulations… a number of sets of regulations by the Pardon and Parole Board, and a set of regulations by the Department of Corrections which appears in the appendix to their cert petition.

Antonin Scalia:

That is an essential part of your case, though.

You… in order to get to the due process procedural point you have to establish that there was not an automatic revocation of pre-parole status if parole was denied, that that was not the rule.

Margaret Winter:

Yes, that that was not the policy.

John Paul Stevens:

Does the record tell us whether there were… I think your opponent said there were something like 1,200 people in the program, and does the record tell us whether or not when other people had their parole denied they were automatically taken off the program?

Margaret Winter:

No, the record doesn’t tell us that.

At the time that he was in the prison, when he was let out of the prison the record is completely silent.

John Paul Stevens:

I suppose then the question is, who has the burden of establishing what the rule of law was?

Margaret Winter:

Well, it seems to me that–

William H. Rehnquist:

Your client was the plaintiff in the Federal court.

I would think he would have the burden.

Margaret Winter:

–Our client was pro se.

He asked for an evidentiary hearing–

William H. Rehnquist:

Well, does that change the burden because he was pro se?

Margaret Winter:

–I think it changes the burden that he asked for an evidentiary hearing in the Court of Criminal Appeals and in the Federal courts.

This is an issue that is–

William H. Rehnquist:

Well now, wait a minute.

We’re kind of sliding around several things here.

It’s… I take it it’s up to the Court of Criminal Appeals of Oklahoma to decide whether or not someone is pro se would change the burden of proof there.

William H. Rehnquist:

Are you saying that as a matter of Federal law, a Federal court must shift the burden of proof because a plaintiff is pro se?

Margaret Winter:

–I’m not sure that it’s… I think that the pro se habeas plaintiff is entitled at some stage to a full and fair hearing.

William H. Rehnquist:

Well, he’s got a right to a full and fair hearing on disputed facts.

Margaret Winter:

This is a fact that at the time was not disputed.

If the State had come in and said to our client, which they did not, the reason we brought you back in is because it’s mandatory, everybody is being brought back in, he could have tried to controvert that.

He could have answered that.

Instead, they argued two things that were clearly not true.

One, that he was in confinement, and that’s what everyone’s fire was directed at.

Is he in confinement?

Is he in prison?

And two, they made an argument that was so palpably untrue that no one could accept it, namely that he became ineligible.

That became a mantra that we sometimes heard, but we know from the statute that he does not become ineligible for pre-parole once parole is denied.

Antonin Scalia:

Well, isn’t that argument the same as the argument that he had to go back?

Once parole was denied, he had to go off of pre-parole?

Now, you say it’s so inherently incredible.

I mean, maybe.

Why is it incredible that that would be the policy?

Margaret Winter:

No, I don’t think it’s at all incredible.

I’m only saying that the Attorney General of Oklahoma has contradicted that position many, many times in its briefs to this Court and to the lower courts, and that it never asserted its automatic–

John Paul Stevens:

Indeed, if that were the law, they couldn’t have adopted the 90-day procedure.

Margaret Winter:

–No.

It became put in a bind in the court of appeals.

In the court of appeals they first asserted a person becomes ineligible.

William H. Rehnquist:

You’re talking about now the Tenth Circuit?

Margaret Winter:

No, the–

William H. Rehnquist:

The Court of Criminal Appeals.

Margaret Winter:

–Criminal Appeals, and the Court of Criminal Appeals said in an interim order, which is in the record, please show me the… I want to see the law.

Where are the regulations that say they become ineligible?

At which point the Attorney General produced 004-11, which says you get a review in 90 days, making it clear that it wasn’t mandatory.

That’s what the Court of Criminal Appeals, the very issue it was interested in, and that is the document the Attorney General gave it, and I don’t think that the Court of Criminal Appeals found either that there was an unvarying practice at the time, because that factual question never, never arose in the court of appeals.

Stephen G. Breyer:

What… what–

Margaret Winter:

It simply didn’t arise.

Stephen G. Breyer:

–I’ve another question.

Assuming… for this I’m assuming you’re right that really the standard was vague, and there are all kinds of reasons for… any nonarbitrary, nondiscriminatory, nonprotected reason they could revoke this.

All right, on that theory… on that theory, why is your client entitled to a hearing?

To be quite specific, there are lots of things called intermediate punishments involving half-way houses, involving nights and weekends in prison, involving a whole host of experimental things, and what you’ve heard the State say is, you know, we’re not going to experiment if to experiment means that every time we change our mind about any person we have to go through some tremendous procedural process.

Margaret Winter:

A half–

Stephen G. Breyer:

So what is your response?

What is the… which of those half-way intermediate punishments, in your view, trigger the procedural protection, which don’t?

How do you distinguish the one from the other?

Margaret Winter:

–I think it’s not too… I’m sure there could be grey areas, but at this point I’ve seen nothing that’s a seriously grey area.

A half-way house, you’re still in prison.

You’re in a State facility.

You’re not in your own home or in your own bed, and you’re constantly–

Stephen G. Breyer:

Home under house arrest would be different?

Margaret Winter:

–That could be different.

Stephen G. Breyer:

The line they want to draw is a line which says, look to whether authorities have retained virtually total discretion to revoke it.

Under those circumstances, the prisoner doesn’t have an expectation of remaining free, unlike parole, where you’re releasing the prisoner, giving the prisoner an expectation of remaining free but for certain specified circumstances.

Now, that’s their line, and so I’m asking you what’s your line?

Margaret Winter:

That it’s not just about expectations, it’s being out of prison, and that once you’ve crossed the threshold of the prison door and you are told get a life, get a job, go to work, pay your bills, have relations with other human beings, have friends and family and come and go and go to the movies and to the grocery store, you know that you’re not in prison, and when you know that you’re not in prison, something very precious has happened, and it shouldn’t be taken away without a hearing.

That’s what I would say, and I know when I’m in a half-way house that I’m still in prison, and it may be that when I have a… and be electronically surveilled all day, I know I’m not in… I know that I am in prison, because something of the essence of freedom is having a choice to obey the rules or not, instead of because every minute you’re being electronically surveilled or surveilled by a guard.

This is a man who knew that he wasn’t in prison, and that’s why he’s entitled to a hearing, for that reason and because the State retained the discretion to pick and choose, to send some people back to prison when the Governor denied parole and to let others stay out.

William H. Rehnquist:

But I thought you said the record simply didn’t show on that point.

Margaret Winter:

I think that the reason it doesn’t show is because it’s a newly developed theory of the case.

William H. Rehnquist:

Well, but then you really don’t have the factual basis to say the Governor… that… or the board retained discretion, if the record simply doesn’t show what happened to other people whose parole was denied by the Governor.

Margaret Winter:

Well, Chief Justice, it seems to me that even if, in 1990, when Ernest Harper was let out of prison, there was an unvarying practice of bringing people back to jail when parole was denied by the Governor, that wouldn’t necessarily show that there was a policy.

The evidence that their… the evidence that they think that they have discretion to do it is in the later enacted regulations, and it may be that they felt like bringing everybody back in last week and this week they feel like leaving everybody out, but they’ve already said it’s the toss of a coin, and it seems to me that that kind of reasoning shouldn’t be determining the very precious right that’s at stake here.

Ruth Bader Ginsburg:

They didn’t say it is.

They said it could be–

Margaret Winter:

It could be.

Ruth Bader Ginsburg:

–as far as the Constitution is concerned, because there’s nothing to which due process right could attach, a due proces procedural right.

Do we know whether anyone else was exposed to this telephone call, or whatever it was, shall return to the prison within 5 hours?

Was that… how long did the situation persist before the 90-day procedure came into play?

Margaret Winter:

That was… that regulation came into being 5 months after he was returned to prison in August, I believe.

John Paul Stevens:

May I ask if there was a statutory change during that 5-month period?

Margaret Winter:

There was a statutory change as follows.

There is one… And there was… there’s been a couple of misstatements of the record that I would like to clear up here, and I’m not sure of the significance of this–

John Paul Stevens:

Before you do, will you tell me what the statutory change was?

Margaret Winter:

–It’s one that says… there’s an identical provision for both parolees and pre-parolees, and I believe they were enacted at the same time, and that provision says, if you don’t keep up with the educational and job requirements that we put on you as a condition, you will become ineligible for parole, and that’s the only thing–

John Paul Stevens:

And does either the statute before or after that amendment make any reference to the Governor’s denial of parole as a reason for terminating pre-parole?

Margaret Winter:

–No, neither before nor after.

One other thing–

Sandra Day O’Connor:

But we do have this opinion of the Oklahoma Court of Criminal Appeals, is it?

Margaret Winter:

–Yes.

Sandra Day O’Connor:

Which denied the respondent’s writ of habeas at the State level saying, dispositive of the issue in petitioner’s case is the fact that he was not granted parole by the Governor.

It is for this, not a disciplinary reason, he was removed from the pre-parole program.

So do we interpret that as meaning that the criminal appeals court thought that not being granted parole was a valid and sufficient reason for revocation of pre-parole status, and that in this very case that was the reason?

I mean, it seems to me what the Oklahoma court is saying.

Margaret Winter:

I believe that what they’re saying is that it is… they are–

Sandra Day O’Connor:

What if we read it that way anyway?

Margaret Winter:

–May I… I just want to make sure that I’m understanding the question.

I do not believe that what they’re saying is, you must be brought in, that they did not understand it to mean that.

Stephen G. Breyer:

That’s not the question.

Margaret Winter:

They… they understood it–

Sandra Day O’Connor:

The court understood that dispositive of the habeas petition in this very case is the fact that he was not granted, eventually, parole by the Governor, and it was for that reason that his status was revoked, not for some disciplinary reason or some other reason.

Margaret Winter:

–I believe that I misspoke before–

Sandra Day O’Connor:

Now, what if we interpret that… not you.

What if we, this Court thinks that that constitutes a valid explanation of what the State law was at the time of this revocation?

Margaret Winter:

–Then it seems to me that you should find… you should say that the State law denies due process, and that people must have a hearing, because–

Ruth Bader Ginsburg:

A hearing to do what, because I think as… first, there’s no dispute on the fact that it wasn’t any disciplinary reason, right?

Ruth Bader Ginsburg:

You concede–

Margaret Winter:

–Yes.

Ruth Bader Ginsburg:

–that the only reason given–

Margaret Winter:

Yes.

Ruth Bader Ginsburg:

–was that the Governor denied parole, so there’d be no hearing to decide what was the reason.

Everybody agrees that he didn’t commit any disciplinary offense.

He was a model–

Margaret Winter:

Yes.

Ruth Bader Ginsburg:

–pre-parolee, and he was called back for one reason only, that parole was denied.

Margaret Winter:

In parole… a person can admit that they have violated a condition of their release and they’re still entitled to a hearing because there’s a second decision.

The parole board is exercising discretion.

And Morrissey says, and Gagnon says, and Black v. Romano… it’s dictum, but it goes on at considerable length… says, once you’re exercising… that’s just the first step, did he violate parole, because if they can say he violated but we’ll leave him out, then you want to have a chance to argue that you should be one of those people who–

David H. Souter:

Are you saying that as a result of this pre-release, pre-parole scheme that the discretion the Governor previously had, which I assume was unreviewable, is now in some sense subject to a due process requirement simply because he was on release before the Governor made his discretionary decision?

Is that your argument?

Margaret Winter:

–No, not at all, Justice Souter, because there’s a huge difference between parole… refusal to grant someone parole and bringing them back into prison.

Ruth Bader Ginsburg:

But all the examples–

–I think the argument you’re making is that this excerpt from the Court of Criminal Appeals only establishes that denial of parole is a permissible reason–

Margaret Winter:

Yes.

Antonin Scalia:

–for revoking pre-parole, not that it is an automatic and mandatory reason.

That isn’t established.

Margaret Winter:

Yes.

Antonin Scalia:

And your point is that if it is only a permissible reason, he should have the opportunity to argue that in this case it shouldn’t be permitted.

Margaret Winter:

Exactly.

Anthony M. Kennedy:

Which is the purpose of the 90-day—-

–And in support of that you quote from page 11… 41a of the opinion, the last paragraph, where it says the Governor’s… where it says, we believe such a procedure gives an inmate sufficient notice when he is placed on the program that he may be removed from it when the Governor exercises his discretion.

Margaret Winter:

Yes, exactly.

I believe that the Criminal Court of Appeals understood it to be discretionary.

William H. Rehnquist:

Thank you, Ms. Winter.

The case is submitted.