Probation and Parole: Procedural Protection

With the decision in Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court may have overruled that aspect of Greenholtz finding a protected liberty interest in the shall/unless–type statutory language used in Nebraska. In Sandin, a federal appeals court found that a Hawaii prison regulation that required substantial evidence to support a finding of guilt to a charge of prison misconduct created a liberty interest in the prisoner. That is, without a finding of guilt by substantial evidence, held the lower federal court, the prison misconduct hearing was void as a denial of due process.

The Supreme Court used Sandin as the vehicle to re-examine a series of the Courts' decisions, including Greenholtz, where the verbal arrangement in the state law was used to find or reject a state-created liberty interest enforceable in federal court.

The Court stated it was time to shift the focus of the liberty (or protected) interest inquiry from the "language" of a regulation to the "nature" of the deprivation. One reason for doing so is to show deference to the states and further remove the federal courts from review of state correctional processes.

Henceforth, a state-created liberty interest depends on whether the state seeks to impose an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life" (Sandin v. Conner, p. 484). Phrased differently, prisoners (including parolees in waiting) must suffer a very significant or grievous loss before they are entitled even to the rudiments of procedural due process. Post-Sandin inmates have been placed in disciplinary segregation for up to a year without even a rudimentary hearing, and the federal courts have found no grievous loss.

The Court describes Greenholtz as one of those decisions practicing the now disfavored "semantic due process," and while Greenholtz is not explicitly overruled, it is difficult to imagine that it is still breathing. After Sandin, paroling authorities may be constitutionally free to decide these cases simply on the written record.