Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex , 99 S. Ct. 2100 ( 1979 )

Mr. Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari to decide whether the Due Process Clause of the Fourteenth Amendment applies to discretionary parole-release determinations made by the Nebraska Board of Parole, and, if so, whether the procedures the Board currently provides meet constitutional requirements.

I

Inmates of the Nebraska Penal and Correctional Complex brought a class action under 42 U. S. C. § 1983 claiming that they had been unconstitutionally denied parole by the Board of Parole. The suit was filed against the individual members of the Board. One of the claims of the inmates was that the statutes and the Board’s procedures denied them procedural due process.

The statutes provide for both mandatory and discretionary parole. Parole is automatic when an inmate has served his maximum term, less good-time credits. Neb. Rev. Stat. § 83-1,107 (1)(b) (1976). An inmate becomes eligible for discretionary parole when the minimum term, less good-time credits, has been served. §83-1,110 (1). Only discretionary parole is involved in this case.

The procedures used by the Board to determine whether to grant or deny discretionary parole arise partly from statutory provisions and partly from the Board’s practices. Two types of hearings are conducted: initial parole review hearings and final parole hearings. At least once each year initial review hearings must be held for every inmate, regardless of parole eligibility. §83-192 (9).¹ At the initial review hearing, the Board examines the inmate’s entire preconfinement and postconfinement record. Following that examination it provides an informal hearing; no evidence as such is introduced, but the Board interviews the inmate and considers any letters or statements that he wishes to present in support of a claim for release.

If the Board determines from its examination of the entire record and the personal interview that he is not yet a good risk for release, it denies parole, informs the inmate why release was deferred and makes recommendations designed to help correct any deficiencies observed. It also schedules another initial review hearing to take place within one year.

If the Board determines from the file and the initial review hearing that the inmate is a likely candidate for release, a final hearing is scheduled. The Board then notifies the inmate of the month in which the final hearing will be held; the exact day and time is posted on a bulletin board that is accessible to all inmates on the day of the hearing. At the final parole hearing, the inmate may present evidence, call witnesses and be represented by private counsel of his choice. It is not a traditional adversary hearing since the inmate is not permitted to hear adverse testimony or to cross-examine witnesses who present such evidence. However, a complete tape recording of the hearing is preserved. If parole is denied, the Board furnishes a written statement of the reasons for the denial within 30 days. § 83-1,111 (2).²

II

The District Court held that the procedures used by the Parole Board did not satisfy due process. It concluded that the inmate had the same kind of constitutionally protected “conditional liberty” interest, recognized by this Court in Morrissey v. Brewer, 408 U. S. 471 (1972), held that some of the procedures used by the Parole Board fell short of constitutional guarantees, and prescribed several specific requirements.

On appeal, the Court of Appeals for the Eighth Circuit agreed with the District Court that the inmate had a Morrissey - type, conditional liberty interest at stake and also found a statutorily defined, protectible interest in Neb. Rev. Stat. § 83-1,114 (1976). The Court of Appeals, however, 576 F. 2d 1274, 1285, modified the procedures required by the District Court as follows:

(a) When eligible for parole each inmate must receive a full formal hearing;

(b) the inmate is to receive written notice of the precise time of the hearing reasonably in advance of the hearing, setting forth the factors which may be considered by the Board in reaching its decision ;

(c) subject only to security considerations, the inmate may appear in person before the Board and present documentary evidence in his own behalf. Except in unusual circumstances, however, the inmate has no right to call witnesses in his own behalf;

(d) a record of the proceedings, capable of being reduced to writing, must be maintained; and

(e) within a reasonable time after the hearing, the Board must submit a full explanation, in writing, of the facts relied upon and reasons for the Board’s action denying parole.

The court’s holding mandating the foregoing procedures for parole determinations conflicts with decisions of other Courts of Appeals, see, e. g., Brown v. Lundgren, 528 F. 2d 1050 (CA5), cert. denied, 429 U. S. 917 (1976); Scarpa v. United States Board of Parole, 477 F. 2d 278 (CA5) (en banc), vacated as moot, 414 U. S. 809 (1973); Scott v. Kentucky Parole Board, No. 74-1899 (CA6 Jan. 15, 1975), vacated and remanded to consider mootness, 429 U. S. 60 (1976). See also Franklin v. Shields, 569 F. 2d 784, 800 (CA4 1977), cert. denied, 435 U. S. 1003 (1978); United States ex rel. Richerson v. Wolff, 525 F. 2d 797 (CA7 1975), cert. denied, 425 U. S. 914 (1976). We granted certiorari to resolve the Circuit conflicts. 439 U. S. 817.

III

The Due Process Clause applies when government action deprives a person of liberty or property; accordingly, when there is a claimed denial of due process we have inquired into the nature of the individual’s claimed interest.

“[T]o determine whether due process requirements apply in the first place, we must look not to the 'weight’ but to the nature of the interest at stake.” Board of Regents v. Roth, 408 U. S. 564, 570-571 (1972).

This has meant that to obtain a protectible right

“a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Id., at 577.

There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence. The natural desire of an individual to be released is indistinguishable from the initial resistance to being confined. But the conviction, with all its procedural safeguards, has extinguished that liberty right: “[G]iven a valid conviction, the criminal defendant has been constitutionally deprived of his liberty.” Meachum v. Fano, 427 U. S. 215, 224, (1976).

Decisions of the Executive Branch, however serious their impact, do not automatically invoke due process protection; there simply is no constitutional guarantee that all executive decisionmaking must comply with standards that assure error-free determinations. See Id., at 225; Montanye v. Haymes, 427 U. S. 236 (1976); Moody v. Daggett, 429 U. S. 78, 88 n. 9 (1976). This is especially true with respect to the sensitive choices presented by the administrative decision to grant parole release.

A state may, as Nebraska has, establish a parole system, but it has no duty to do so. Moreover, to insure that the state-created parole system serves the public-interest purposes of rehabilitation and deterrence,³ the state may be specific or general in defining the conditions for release and the factors that should be considered by the parole authority. It is thus not surprising that there is no prescribed or defined combination of facts which, if shown, would mandate release on parole. Indeed, the very institution of parole is still in an experimental stage. In parole releases, like its siblings probation release and institutional rehabilitation, few certainties exist. In each case, the decision differs from the traditional mold of judicial decisionmaking in that the choice involves a synthesis of record facts and personal observation filtered through the experience of the decisionmaker and leading to a predictive judgment as to what is best both for the individual inmate and for the community.⁴ This latter conclusion requires the Board to assess whether, in light of the nature of the crime, the inmate’s release will minimize the gravity of the offense, weaken the deterrent impact on others, and undermine respect for the administration of justice. The entire inquiry is, in a sense, an “equity” type judgment that cannot always be articulated in traditional findings.

IV

Respondents suggest two theories to support their view that they have a constitutionally protected interest in a parole determination which calls for the process mandated by the Court of Appeals. First, they claim that a reasonable entitlement is created whenever a state provides for the possibility of parole. Alternatively, they claim that the language in Nebraska’s statute, Neb. Rev. Stat. § 83-1,114 (1) (1976), creates a legitimate expectation of parole, invoking due process protections.

A

In support of their first theory, respondents rely heavily on Morrissey v. Brewer, 408 U. S. 471 (1972), where we held that a parole-revocation determination must meet certain due process standards. See also Gagnon v. Scarpelli, 411 U. S. 778 (1973). They argue that the ultimate interest at stake both in a parole-revocation decision and in a parole determination is conditional liberty and that since the underlying interest is the same the two situations should be accorded the same constitutional protection.

The fallacy in respondents’ position is that parole release and parole revocation are quite different. There is a crucial distinction between being deprived of a liberty one has, as in parole, and being denied a conditional liberty that one desires. The parolees in Morrissey (and probationers in Gagnon) were at liberty and as such could “be gainfully employed and [were] free to be with family and friends and to form the other enduring attachments of normal life.” 408 U. S., at 482. The inmates here, on the other hand, are confined and thus subject to all of the necessary restraints that inhere in a prison.

A second important difference between discretionary parole release from confinement and termination of parole lies in the nature of the decision that must be made in each case. As we recognized in Morrissey, the parole-revocation determination actually requires two decisions: whether the parolee in fact acted in violation of one or more conditions of parole and whether the parolee should be recommitted either for his or society’s benefit. Id., at 479-480. “The first step in a revocation decision thus involves a wholly retrospective factual question.” Id., at 479.

The parole-release decision, however, is more subtle and depends on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the Board members based upon their experience with the difficult and sensitive task of evaluating the advisability of parole release. Unlike the revocation decision, there is no set of facts which, if shown, mandate a decision favorable to the individual. The parole determination, like a prisoner-transfer decision, may be made

“for a variety of reasons and often involve [s] no more than informed predictions as to what would best serve [correctional purposes] or the safety and welfare of the inmate.” Meachum v. Fano, 427 U. S., at 225.

The decision turns on a “discretionary assessment of a multiplicity of imponderables, entailing primarily what a man is and what he may become rather than simply what he has done.” Kadish, The Advocate and the Expert — Counsel in the Peno-Correctional Process, 45 Minn. L. Rev. 803, 813 (1961).

The differences between an initial grant of parole and the revocation of the conditional liberty of the parolee are well recognized. In United States ex rel. Bey v. Connecticut Board of Parole, 443 F. 2d 1079, 1086 (1971), the Second Circuit took note of this critical distinction:

“It is not sophistic to attach greater importance to a person’s justifiable reliance in maintaining his conditional freedom so long as he abides by the conditions of his release, than to his mere anticipation or hope of freedom.”

Judge Henry Friendly cogently noted that “there is a human difference between losing what one has and not getting what one wants.” Friendly, “Some Kind of Hearing,” 123 U. Pa. L. Rev. 1267, 1296 (1975). See also Brown v. Lundgren, 528 F. 2d, at 1053; Scarpa v. United States Board of Parole, 477 F. 2d, at 282; Franklin v. Shields, 569 F. 2d, at 799 (Field, J., dissenting); United States ex rel. Johnson v. Chairman, New York State Board of Parole, 500 F. 2d 925, 936 (CA2 1974) (Hay, J., dissenting).

That the state holds out the possibility of parole provides no more than a mere hope that the benefit will be obtained. Board of Regents v. Roth, 408 U. S., at 577. To that extent the general interest asserted here is no more substantial than the inmate’s hope that he will not be transferred to another prison, a hope which is not protected by due process. Meachum v. Fano, 427 U. S., at 225; Montanye v. Haymes, supra.

B

Respondents’ second argument is that the Nebraska statutory language itself creates a protectible expectation of parole. They rely on the section which provides in part:

“Whenever the Board of Parole considers the release of a committed offender who is eligible for release on parole, it shall order his release unless it is of the opinion that his release should be deferred because:

“(a) There is a substantial risk that he will not conform to the conditions of parole;

“(b) His release would depreciate the seriousness of his crime or promote disrespect for law;

“(c) His release would have a substantially adverse effect on institutional discipline; or

“(d) His continued correctional treatment, medical care, or vocational or other training in the facility will substantially enhance his capacity to lead a law-abiding life when released at a later date.” Neb. Rev. Stat. §83-1,114 (1) (1976).⁵

Respondents emphasize that the structure of the provision together with the use of the word “shall” binds the Board of Parole to release an inmate unless any one of the four specifically designated reasons are found. In their view, the statute creates a presumption that parole release will be granted, and that this in turn creates a legitimate expectation of release absent the requisite finding that one of the justifications for deferral exists.

It is argued that the Nebraska parole-determination provision is similar to the Nebraska statute involved in Wolff v. McDonnell, 418 U. S. 539 (1974), that granted good-time credits to inmates. There we held that due process protected the inmates from the arbitrary loss of the statutory right to credits because they were provided subject only to good behavior. We held that the statute created a liberty interest protected by due process guarantees. The Board argues in response that a presumption would be created only if the statutory conditions for deferral were essentially factual, as in Wolff and Morrissey, rather than predictive.

Since respondents elected to litigate their due process claim in federal court, we are denied the benefit of the Nebraska courts' interpretation of the scope of the interest, if any, the statute was intended to afford to inmates. See Bishop v. Wood, 426 U. S. 341, 345 (1976). We can accept respondents’ view that the expectancy of release provided in this statute is entitled to some measure of constitutional protection. However, we emphasize that this statute has unique structure and language and thus whether any other state statute provides a protectible entitlement must be decided on a case-by-case basis. We therefore turn to an .examination of the statutory procedures to determine whether they provide the process that is due in these circumstances.

It is axiomatic that due process “is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U. S., at 481; Cafeteria & Restaurant Workers v. McElroy, 367 U. S. 886, 895 (1961); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123, 162-163 (1951) (Frankfurter, J., concurring). The function of legal process, as that concept is embodied in the Constitution, and in the realm of factfinding, is to minimize the risk of erroneous decisions. Because of the broad spectrum of concerns to which the term must apply, flexibility is necessary to gear the process to the particular need; the quantum and quality of the process due in a particular situation depend upon the need to serve the purpose of minimizing the risk of error. Mathews v. Eldridge, 424 U. S. 319, 335 (1976).

Here, as we noted previously, the Parole Board’s decision as defined by Nebraska’s statute is necessarily subjective in part and predictive in part. Like most parole statutes, it vests very broad discretion in the Board. No ideal, error-free way to make parole-release decisions has been developed; the whole question has been and will continue to be the subject of experimentation involving analysis of psychological factors combined with fact evaluation guided by the practical experience of the actual parole decisionmakers in predicting future behavior. Our system of federalism encourages this state experimentation. If parole determinations are encumbered by procedures that states regard as burdensome and unwarranted, they may abandon or curtail parole. Cf. Me. Rev. Stat. Ann., Tit. 34, §§ 1671-1679 (1964), repealed, 1975 Me. Acts, ch. 499, § 71 (repealing the State’s parole system).

It is important that we not overlook the ultimate purpose of parole which is a component of the long-range objective of rehabilitation. The fact that anticipations and hopes for rehabilitation programs have fallen far short of expectations of a generation ago need not lead states to abandon hopes for those objectives; states may adopt a balanced approach in making parole determinations, as in all problems of administering the correctional systems. The objective of rehabilitating convicted persons to be useful, law-abiding members of society can remain a goal no matter how disappointing the progress. But it will not contribute to these desirable objectives to invite or encourage a continuing state of adversary relations between society and the inmate.

Procedures designed to elicit specific facts, such as those required in Morrissey, Gagnon, and Wolff, are not necessarily appropriate to a Nebraska parole determination. See Board of Curators, Univ. of Missouri v. Horowitz, 435 U. S. 78, 90 (1978); Cafeteria & Restaurant Workers v. McElroy, supra, at 895. Merely because a statutory expectation exists cannot mean that in addition to the full panoply of due process required to convict and confine there must also be repeated, adversary hearings in order to continue the confinement. However, since the Nebraska Parole Board provides at least one and often two hearings every year to each eligible inmate, we need only consider whether the additional procedures mandated by the Court of Appeals are required under the standards set out in Mathews v. Eldridge, supra, at 335, and Morrissey v. Brewer, supra, at 481.

Two procedures mandated by the Court of Appeals are particularly challenged by the Board: ⁶ the requirement that a formal hearing be held for every inmate, and the requirement that every adverse parole decision include a statement of the evidence relied upon by the Board.

The requirement of a hearing as prescribed by the Court of Appeals in all cases would provide at best a negligible decrease in the risk of error. See D. Stanley, Prisoners Among Us 43 (1976). When the Board defers parole after the initial review hearing, it does so because examination of the inmate’s file and the personal interview satisfies it that the inmate is not yet ready for conditional release. The parole determination therefore must include consideration of what the entire record shows up to the time of the sentence, including the gravity of the offense in the particular case. The behavior record of an inmate during confinement is critical in the sense that it reflects the degree to which the inmate is prepared to adjust to parole release. At the Board’s initial interview hearing, the inmate is permitted to appear before the Board and present letters and statements on his own behalf. He is thereby provided with an effective opportunity first, to insure that the records before the Board are in fact the records relating to his case; and second, to present any special considerations demonstrating why he is an appropriate candidate for parole. Since the decision is one that must be made largely on the basis of the inmate’s files, this procedure adequately safeguards against serious risks of error and thus satisfies due process.⁷ Cf. Richardson v. Perales, 402 U. S. 389, 408 (1971).

Next, we find nothing in the due process concepts as they have thus far evolved that requires the Parole Board to specify the particular “evidence” in the inmate’s file or at his interview on which it rests the discretionary determination that an inmate is not ready for conditional release. The Board communicates the reason for its denial as a guide to the inmate for his future behavior. See Franklin v. Shields, 569 F. 2d, at 800 (en banc). To require the parole authority to provide a summary of the evidence would tend to convert the process into an adversary proceeding and to equate the Board’s parole-release determination with a guilt determination. The Nebraska statute contemplates, and experience has shown, that the parole-release decision is, as we noted earlier, essentially an experienced prediction based on a host of variables. See Dawson, The Decision to Grant or Deny Parole: A Study of Parole Criteria in Law and Practice, 1966 Wash. U. L. Q. 243, 299-300. The Board’s decision is much like a sentencing judge’s choice — provided by many states — to grant or deny probation following a judgment of guilt, a choice never thought to require more than what Nebraska now provides for the parole-release determination. Cf. Dorszynski v. United States, 418 U. S. 424 (1974). 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.

Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.⁸

So ordered.

APPENDIX TO OPINION OF THE COURT

The statutory factors that the Board is required to take into account in deciding whether or not to grant parole are the following:

(a) The offender’s personality, including his maturity, stability, sense of responsibility and any apparent development in his personality which may promote or hinder his conformity to law;

(b) The adequacy of the offender’s parole plan;

(c) The offender’s ability and readiness to assume obligations and undertake responsibilities;

(d) The offender’s intelligence and training;

(e) The offender’s family status and whether he has relatives who display an interest in him or whether he has other close and constructive associations in the community;

(f) The offender’s employment history, his occupational skills, and the stability of his past employment;

(g) The type of residence, neighborhood or community in which the offender plans to live;

(h) The offender’s past use of narcotics, or past habitual and excessive use of alcohol;

(i) The offender’s mental or physical makeup, including any disability or handicap which may affect his conformity to law;

(j) The offender’s prior criminal record, including the nature and circumstances, recency and frequency of previous offenses;

(k) The offender’s attitude toward law and authority;

(l) The offender’s conduct in the facility, including particularly whether he has taken advantage of the opportunities for self-improvement, whether he has been punished for misconduct within six months prior to his hearing or reconsideration for parole release, whether any reductions of term have been forfeited, and whether such reductions have been restored at the time of hearing or reconsideration ;

(m) The offender’s behavior and attitude during any previous experience of probation or parole and the recency of such experience; and

(n) Any other factors the board determines to be relevant. Neb. Rev. Stat. § 83-1,114 (2) (1976).

1 The statute defines the scope of the initial review hearing as follows: "Such review shall include the circumstances of the offender's offense, the presentence investigation report, his previous social history and criminal record, his conduct, employment, and attitude during commitment, and the reports of such physical and mental examinations as have been made. The board shall meet with such offender and counsel him concerning his progress and his prospects for future parole . . . Neb. Rev. Stat. §83-192 (9) (1976).

2 Apparently, over a 23-month period, there were eight cases with letters of denial that did not include a statement of reasons for the denial. A representative of the Board of Parole testified at trial that these were departures from standard practice. There is nothing to indicate that these inmates could not have received a statement if they had requested one or that a direct challenge to this departure from the statute would not have produced relief. See Neb. Rev. Stat. §25-1901 et seq. (1975).

3 These are the traditional justifications advanced to support the adoption of a system of parole. See generally A. von Hirsch & K. Hanrahan, Abolish Parole? 3 (1978); N. Morris, The Future of Imprisonment 47 (1974); J. Wilson, Thinking About Crime 171 (1975); D. Stanley, Prisoners Among Us 59, 76 (1976); Dawson, The Decision to Grant or Deny Parole: A Study of Parole Criteria in Law and Practice, 1966 Wash. U. L. Q. 243, 249.

4 See Stanley, supra n. 3, at 50-55; Dawson, supra n. 3, at 287-288.

5 The statute also provides a list of 14 explicit factors and one catchall factor that the Board is obligated to consider in reaching a decision. Neb. Rev. Stat. §§83-1,114 (2)(a)-(n) (1976). See Appendix to this opinion.

6 The Board also objects to the Court of Appeals’ order that it provide written notice reasonably in advance of the hearing together with a list of factors that might be considered. At present the Board informs the inmate in advance of the month during which the hearing will be held, thereby allowing time to secure letters or statements; on the day of the hearing it posts notice of the exact time. There is no claim that either the timing of the notice or its substance seriously prejudices the inmate’s ability to prepare adequately for the hearing. The present notice is constitutionally adequate.

7 The only other possible risk of error is that relevant adverse factual information in the inmate’s file is wholly inaccurate. But the Board has discretion to make available to the inmate any information “[w]henever the board determines that it will facilitate the parole hearing.” Neb. Rev. Stat. § 83-1,112 (1) (1976). Apparently the inmates are satisfied with the way this provision is administered since there is no issue before us regarding access to their files.

8 The Court of Appeals in its order required the Board to permit all inmates to appear and present documentary support for parole. Since both of these requirements were being complied with prior to this litigation, the Board did not seek review of those parts of the court’s order and the validity of those requirements is not before us. The Court of Appeals also held that due process did not provide a right to cross-examine adverse witnesses or a right to present favorable witnesses. The practice of taping the hearings also was declared adequate. Those issues are not before us and we express no opinion on them.