Probation and Parole: Procedural Protection

Parole. In Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1 (1979), a closely divided Court rendered what was then a highly significant decision concerning parole release. The basic issue in Greenholtz was the extent to which the due process clause of the Fourteenth Amendment to the Constitution applied to discretionary parole release decisions in Nebraska. Greenholtz involved a challenge to the procedures employed by the board of parole in the exercise of its discretion to grant or withhold the release of an inmate who had reached the point of statutory eligibility. In Nebraska, as is the common practice, a prisoner's eligibility for release was established when he had served his minimum term, minus good-time credits.

Inmates were granted two types of hearings. At least once a year, initial review hearings were required regardless of eligibility. If the board determined from the file and from this initial review that the inmate was a likely candidate for release, a final hearing was scheduled. At the final hearing the inmate was permitted to give evidence, call witnesses, and be represented by retained counsel. The inmate, however, could not hear adverse testimony or engage in cross-examination. A tape recording of the entire hearing was made and preserved, and if denied parole, the inmate would receive a written statement of reasons.

In reviewing these procedures, the Supreme Court dealt a serious blow to the further evolution of due process procedures in this area. The majority found a critical distinction between the grant or denial of conditional freedom and the deprivation of such freedom after it is granted, thereby distinguishing Greenholtz from Morrissey v. Brewer, 408 U.S. 471 (1972), discussed below. An eligible inmate seeking parole was said to have no more than a desire for release, whereas the Constitution safeguards only legitimate expectations of liberty. The nature of the releaseor-retain decision was characterized as being dependent on personal observation and prediction, rather than on a given set of facts that add up to a judgment of releasability.

In this analysis, the Court clearly gave constitutional sanction to decision-making either by intuition or expertise and also validated the characteristically vague statutes governing parole. More basically—and this is the crucial factor that divided the four dissenters from the majority—the existence of a parole system itself, despite the fact that at the time the vast majority of prisoners in this country achieved release by parole, was deemed not to create any constitutionally based claims to procedural fairness.

The majority did find that the somewhat unusual statutory language employed in Nebraska created an expectancy of release entitled to some constitutional protection. The Nebraska statute employed a "shall/unless" approach to parole release, stating that an eligible offender shall be released on parole unless parole is deferred for any one of four rather general factors; for example, if his release were to depreciate the seriousness of his crime.

The Court then concluded that Nebraska was providing the inmate with even more procedures than the Constitution required. Characterizing the function of legal process as being one of minimizing the risk of erroneous decision, the Court ruled that a full hearing is not necessary and that due process does not require the board of parole to specify the particular evidence relied upon. In conclusion, the Court stated: "The Nebraska procedure affords an opportunity to be heard, and when parole is denied it informs the inmate in what respects he falls short of qualifying for parole; this affords the process that is due under these circumstances. The Constitution does not require more" (p. 16).

It must be stressed that the above-stated procedural minima—an opportunity to be heard, and reasons for denial—were constitutionally required only when a given jurisdiction employed statutory language of the sort used by Nebraska. Where there is no such protected expectation, parole boards presumably need not provide even such minimal safeguards.