William James Rummel v. W. J. Estelle, Jr., Director, Texas Department of Corrections, Respondent ( 1978 )

CHARLES CLARK, Circuit Judge,

with whom GOLDBERG, G0DB0LD, JAMES C. HILL, ALVIN B. RUBIN and VANCE, Circuit Judges, join, dissenting:

In Part VIII the majority concedes that “if the court is forced to assume that Rum-mel’s sentence is automatically and invariably one for his natural life, then the [assertion that the sentence is grossly disproportionate to Rummel’s crimes] is probably accurate.” Nevertheless, the court decides that Rummel’s life sentence is not in fact a life sentence because of Texas’ good time credit system and the possibility of parole. The court reasons that it should not be concerned with “academic possibilities” but with the “real world.”

But what is real and what is academic? The State of Texas has sentenced William Rummel to spend the rest of his life in the penitentiary. If parole ever comes, it comes at the sheer grace of the State. In Rummel’s real world, it is not the possibility that Texas will grant him parole that governs his future. Rather, it is the existing order requiring that he be held in custody until he dies. The eighth amendment either bars affixing the sentence for Rum-mel’s crimes or it does not. If Rummel has a constitutional right to interdict his prison term, this court must declare that right’s existence without regard to the possibility that Texas, by an act of executive grace, may grant him parole.

A.

At the outset it is important to note that the critical factor in determining how to regard Rummel’s life sentence is not the Texas system for awarding good time credit but the Texas system for granting parole. The majority refers to the good time credit system and parole interchangeably, and it relies to a large extent on the relative liberality of the Texas good time credit system. The two systems embody totally different concepts, however, and they have special meanings in the context of a life sentence. Good time credit results in the early release of a prisoner under a sentence to a fixed term of years. For example, one serving a twenty-year sentence may be released after only ten years actual jail time if he has accumulated ten years of good time credit. A person committed for life, however, cannot have his prison term reduced by good time credit. Because the length of his sentence is fixed by the span of his life, there is no fixed term from which his credit can be subtracted. No amount of accumulated good time credit entitles a man serving a life sentence to a release from prison because of credit accumulated.

The only chance for release such a life sentence prisoner has is parole. Texas law specifically provides that parole is not considered a reduction in sentence, Tex. Code Crim.Pro.Ann. art. 42.12 § 22 (Vernon Supp. 1966-1977); the sentence remains in effect during its entire period even if parole is granted. Ex parte Lefors, 165 Tex.Cr.R. 51, 303 S.W.2d 394 (1957). Unlike good time credit, which is an enforceable statutory entitlement subject to constitutional due process protection, Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) parole is a matter of executive grace which constitutional due process does not protect. See part B, infra.

Even under the court’s own premise that it should measure probabilities rather than legally enforceable rights, however, the court’s juxtaposition of Texas’ good time credit system with its parole system tends both to confuse and to understate Rummel’s plight. Although it is true that Texas’ good time credit system may benefit Rummel by causing his eligibility for parole consideration to come earlier than may be the case in other jurisdictions, Rummel’s chances for parole once he becomes eligible are by no means better than they would be in other places. According to the authority quoted in the majority opinion, “Texas . gives the longest sentences and is the most reluctant to grant parole.” Supra p. 658.

Ultimately, however, the constitutional issue should not turn on how good Rum-mel’s chances for parole consideration may be, but on the fact that they are only chances.

B.

A convict is deemed to have been constitutionally deprived of all right to liberty for the length of his sentence, subject only to whatever legal entitlements he may have under state or federal law. Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976); Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976). The possibility of parole is not such an entitlement because it has no legal effect on the right of Texas to confine Rum-mel.

“Parole is an act of grace of the sovereign,” Clifford v. Beto, 464 F.2d 1191, 1195 (5th Cir. 1972), that “cannot be demanded as a right.” Jay v. Boyd, 351 U.S. 345, 76 S.Ct. 919, 924-25, 100 L.Ed. 1242 (1956); Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 819, 79 L.Ed. 1566 (1935). Historically, parole in the United States evolved from the practice of the King of England to grant conditional pardons, C. Newman, Source-book on Probation, Parole and Pardons 18-19 (3d ed. 1972). In Texas, parole is still classified as a conditional pardon. Ex parte Lefors, 165 Tex.Cr.R. 51, 303 S.W.2d 394 (1957); Clifford y. Beto, 464 F.2d 1191, 1194 (5th Cir. 1972).

Since parole is totally an act of grace by the state, there is no legal basis for judicial intervention in the merits of parole decisions. The Due Process clause of the Constitution only applies to property interests or liberty interests that are established “entitlements.” E. g., Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). This court has repeatedly emphasized that Texas prisoners do not have any entitlement in the nature of a liberty or property interest in their expectancy of release on parole. Johnson v. Wells, 566 F.2d 1016, 1018 (5th Cir. 1978); Craft v. Texas Board of Pardons and Paroles, 550 F.2d 1054 (5th Cir. 1977). We have frequently distinguished the mere hope of being granted parole from the limited liberty interest that accrues after parole has been granted by steadfastly refusing to extend the minimal due process protection applicable to parole revocation to the initial determination by parole boards on whether to grant parole. Shaw v. Briscoe, 541 F.2d 489 (5th Cir. 1976); Cook v. Whiteside, 505 F.2d 32 (5th Cir. 1974); Clifford v. Beto, 464 F.2d 1191, 1196 (5th Cir. 1972). Thus, we have refused to equate “the possibility of conditional freedom with the right to conditional freedom.” Scarpa v. United States Board of Parole, 477 F.2d 278 (5th Cir.), vacated for consideration of mootness, 414 U.S. 809, 94 S.Ct. 79, 38 L.Ed.2d 44 (1973), dismissed as moot, 501 F.2d 992 (1973). The most thorough statement of this position is in Brown v. Lundgren, 528 F.2d 1050, 1052-1053 (5th Cir. 1976):

At the constitutional level, there is a clear distinction between the loss of a statutory privilege once obtained and the denial of that same privilege, never given. While the threatened loss of a privilege may be “grievous” and therefore require some degree of procedural due process protection, see, e. g., Morrissey v. Brewer, 1972, 408 U.S. 471, 482, 92 S.Ct. 2593, 33 L.Ed.2d 484, the denial of that privilege may only be subject to the procedural demands of the particular enabling statute. Thus, while parole revocation and prison discipline are clearly within the ambit of the Due Process Clause of the Fifth and Fourteenth Amendments, the mere expectation of parole release while still in otherwise lawful custody is not so vested as to result in a “grievous loss” if denied by the parole board. . . .

In any context where it is asserted that constitutional due process is required, the basic, threshold question is whether there is a “grievous loss” of either a liberty or property interest. If there is no such loss, then the second question of whether the particular challenged procedure comports with fundamental fairness is never reached. In short, we find that the denial of parole as distinguished from the revocation of parole as in Morrissey, supra, is not a “grievous loss,” and we therefore do not consider whether the procedures of the parole board deny constitutional due process.

Other circuits have taken the same position as Brown. The Ninth Circuit has stated:

The legally convicted prisoner has no vested right to determination of his sentence at less than maximum, nor to parole. ... No rigid or even measurable criteria dictate that a particular individual must have his sentence set at less than the maximum term. These same principles apply to the granting of paroles.

Dorado v. Kerr, 454 F.2d 892, 897-98 (9th Cir. 1972). The Second Circuit has said that the prisoner seeking parole “neither enjoys freedom from prison walls nor is entitled to it.” Walker v. Oswald, 449 F.2d 481, 485 (2nd Cir. 1971). In Menechino v. Oswald, 430 F.2d 403, 408-409 (2nd Cir. 1970), that Circuit reasoned that a prisoner seeking parole was like an alien seeking entry into the United States.

As a matter of law, Rummel’s sentence deprives him of all right to liberty for the rest of his life.¹ To treat Rummel’s sentence as one to serve less than life is, analytically, no different from treating a death sentence as imposing a milder punishment because of the possibility of an executive pardon. Carmona v. Ward, 576 F.2d 405, 420 (2nd Cir. 1978) (Oakes, J., dissenting). Rummel’s future chance for parole has no legal significance, it is merely a statistical possibility of clemency, an unenforceable hope that he may someday benefit from the grace of a parole board.² The eighth amendment demands that Rummel’s claim be judged by the law of rights and duties, not the law of probabilities.

C.

Not only is Rummel’s sentence not legally ameliorated by the possibility of parole, but his actual chances of being paroled have little to do with the crime for which he was sentenced. They largely depend on his subsequent behavior in prison. If he ever does gain parole, his subsequent behavior outside of prison, even if non-criminal, may result in revocation and return to prison forever. Tex.Code Crim.Pro.Ann. art. 42.12 § 22. (Vernon Supp.1978).

Texas repeatedly emphasizes that Rum-mel has a good chance of parole eligibility in 10 to 12 years, implying by its protestations that 10 to 12 years would adequately serve the state’s penological interests. The majority’s intimation that Rummel’s case is an attractive one for relatively early parole also suggests that insofar as Rummel’s punishment is considered in connection with his crimes alone, a life sentence would be disproportionate. Indeed, the court concedes that if it considered his sentence one for life, it would be grossly disproportionate. It relies on Rummel’s chances for something less. The state’s equation then, is that if Rummel’s three crimes do not in themselves justify life imprisonment, three crimes plus subsequent bad behavior in prison would.

It is almost certain to the state that if Rummel does serve the rest of his natural life in jail, it will not be for the crimes for which his sentence was imposed, but rather for other reasons. These reasons the world may never know. No public record need show which of an infinite number of reasons caused Rummel to fall into disfavor with the parole board. He may by laziness or insolence make enemies of prison authorities. His personality may cause trouble with other prisoners. Many forms of behavior which bring discipline in prison are not criminal in the outside world. Rummel has no recourse if the parole board in its virtually unfettered discretion is never moved to release him or tell him why it did not.³

Parole, if it does come, is in no way equivalent to the freedom of an ordinary citizen. The conditions imposed on the parolee are wide-ranging, and any violation may result in a return to prison. The Supreme Court described typical parole restrictions in Morrissey v. Brewer, supra, 92 S.Ct. at 2598-99:

Typically, parolees are forbidden to use liquor or to have associations or correspondence with certain categories of undesirable persons. Typically, also they must seek permission from their parole officers before engaging in specified activities, such as changing employment or living quarters, marrying, acquiring or operating a motor vehicle, traveling outside the community, and incurring substantial indebtedness. Additionally, parolees must regularly report to the parole officer to whom they are assigned and sometimes they must make periodic written reports of their activities.

There is no way for this court to predict whether, in the event that he is paroled, Rummel will run afoul of some parole restrictions which again would not constitute criminal behavior. In Morrissey the Court stated that it is estimated that 35-45 percent of all parolees are returned to prison for parole violations. 92 S.Ct. at 2599, citing President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: Corrections 62 (1967). Rummel will have to toe any line the parole board may draw during his time in prison to have any chance at parole, and he will have to continue to toe its line for the rest of his life to maintain any limited freedom he may gain as a parolee. Rummel has no right to pay a constitutional penalty for his crimes and be done with them. See Weems v. United States, 217 U.S. 349, 366-67, 30 S.Ct. 544, 54 L.Ed. 793 (1909).

A person who receives a twelve-year sentence for a crime in Texas and is totally recalcitrant in his behavior while in prison can do no worse than serve his whole twelve years. The parole board may choose not to let him out early, but it cannot make him stay longer than the term of his sentence. What that person may do after his term is served, so long as it is not criminal, is his own business. If Rummel’s offenses, standing alone, only justify a maximum sentence to a term of years, then he should be able to serve those years and be done with them, no matter what the parole board thinks of him. But that is not Rummel’s condition. Texas has deprived Rummel of any legally enforceable right to his freedom for his entire life and the chances for grace are perilous and without protection of law.

The Constitution says that his sentence should not stand if lifetime deprivation of freedom is grossly disproportionate to his crimes.

D.

Although the Supreme Court has never dealt with the proper construction of a sentence with a chance of parole for the purposes of the eighth amendment, the Court has treated the problem in reviewing sentences under the ex post facto clause. U. S. Const, art. I, § 10. In Lindsey v. State of Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937), the Court reviewed a conviction from the State of Washington. At the time the petitioner, Lindsey, had committed his crime of larceny, the law provided for the sentence to be fixed by the trial judge at a minimum of 6 months and a maximum of 15 years. Parole was authorized in the discretion of the parole board at any point prior to the expiration of the sentence received. At the time Lindsey was sentenced, however, the law had been changed to a scheme similar to the present Texas system. A mandatory 15-year sentence was provided. At the same time, however, the statute provided that “a convicted person may be released on parole by the board after he has served the period of confinement fixed by the board, less time credits for good behavior and diligence.” 301 U.S. at 399, 57 S.Ct. at 798. The Supreme Court held that in determining the constitutionality of the sentence the contingent possibility of parole was irrelevant; the constitutionality of the sentence had to be measured by the mandatory statutory maximum of 15 years:

The effect of the new statute is to make mandatory what was before only the maximum sentence. Under it the prisoners may be held to confinement during the entire fifteen-year period. Even if they are admitted to parole, to which they become eligible after the expiration of the terms fixed by the board, they remain subject to its surveillance and the parole may, until the expiration of the fifteen years, be revoked at the discretion of the board or canceled at the will of the governor. It is true that petitioners might have been sentenced to fifteen years under the old statute. But the ex post facto clause looks to the standard of punishment prescribed by a statute, rather than to the sentence actually imposed.

301 U.S. at 400 — 101, 57 S.Ct. at 798-99. The Supreme Court went on to acknowledge the difference between a release from prison after a number of years at the end of a sentence and release from prison after the same number of years on parole:

Removal of the possibility of a sentence of less than fifteen years, at the end of which petitioners would be freed from confinement and tutelage of a parole revocable at will, operates to their detriment in the sense that the standard of punishment adopted by the new statute is more onerous than that of the old. . It is plainly to the substantial disadvantage of petitioners to be deprived of all opportunity to receive a sentence which would give them freedom from custody and control prior to the expiration of the fifteen-year term.

Id. at 401, 57 S.Ct. at 799. The continued vitality of the Lindsey holding was confirmed in the Supreme Court’s recent opinion in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), in which the Court said with reference to Lindsey:

Even though under the new statute a convict could be admitted to parole at a time far short of the expiration of his mandatory sentence, the Court observed that even on parole he would remain “subject to the surveillance” of the parole board and that his parole itself was subject to revocation.

97 S.Ct. at 2301. Although Lindsey and Dobbert were decided under the ex post facto clause and not the eighth amendment, their reasoning is fully applicable to Rum-mel’s case.

E.

When the petitioner’s punishment is correctly characterized as a life sentence, its excessiveness is striking even with the greatest deference to the state’s legitimate interests in punishing recidivism. My views on the unconstitutional disproportionality of the sentence were set forth in the original panel opinion:

The legislative objective of punishing recidivists certainly is legitimate. However, in view of the dramatically lower minimum penalties that Texas imposes upon defendants who commit even the most violent crimes short of capital murder and even upon defendants with a second conviction and a prior offense involving violent second-degree felonies, it clearly appears that a significantly less severe penalty would fulfill the legislative objectives of protecting citizens and deterring crime. The recent reclassification of Rummel’s third offense as a misdemeanor under Texas law buttresses this view. That at most two other states and perhaps none would require life imprisonment for a defendant in Rummel’s circumstances confirms the constitutional disproportionality of the sentence given Rummel.

Rummel v. Estelle, 568 F.2d 1193, 1200 (5th Cir. 1978).

The sentence which Texas imposed is society’s judgment and, if upheld, society has every legal right to enforce it. If Texas chooses to make good the threat which the sentence itself imposes, no court may be a refuge for Rummel. We may speculate as to Rummel’s likely fate, but these guesses are without constitutional significance. “The threat makes the punishment obnoxious.” Trop v. Dulles 356 U.S. 86, 102, 78 S.Ct. 590, 599, 2 L.Ed.2d 630, 643 (1957).

It is true that Rummel’s severe sentence arises not merely from the inherent nature of his crimes but from the fact that his felonies were three in number. It is equally true that Texas may treat recidivists more harshly than other offenders and that the Texas statute on its face is constitutional. Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). But Rummel is not Spencer. Nor is the constitutionality of Texas’ imposition of life imprisonment on Spencer a determination that life imprisonment can constitutionally be imposed on Rummel. Recidivism is no talisman that justifies life imprisonment for any three felonies without regard to their underlying seriousness.

William Rummel is now sentenced to life imprisonment because, in addition to a 1973 conviction for obtaining $120.75 by false pretences, he had previously been convicted in 1969 for passing a forged check for $28.36 and in 1964 for credit card fraud involving $80.00. Even when enhanced by the fact that Rummel repeated his petty cheating conduct three times over a period of nine years, the action of the State of Texas in ordering him imprisoned until he dies is so shockingly disproportionate to his offenses that I am obliged to respectfully dissent.

1 . The cases cited on this issue in our own circuit as well as the Ninth and Second Circuits clearly rely on the classic right-privilege distinction, a distinction that has drawn scholarly and judicial attack. See, e.g., Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 2601, 33 L.Ed.2d 484 (1972); Goldberg v. Kelly, 397 U.S. 254, 262 and n.8, 90 S.Ct. 1011, 1017, 25 L.Ed.2d 287 (1970); Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv.L.Rev. 1439 (1968). However, the Supreme Court’s more recent pronouncements in the due process area, Roth, Sindermann, and Bishop, supra, clearly require the existence of a legal entitlement to a property or liberty interest before the due process clause applies. The entitlement doctrine is in fact the right-privilege distinction resurrected in new verbal garb. See generally Note, Democratic. Due Process: Administrative Procedure After Bishop v. Wood, 1977 Duke L.J. 453. Whatever the hope of release on parole may be labeled, under the cases cited in the text, it definitely does not rise to the level of a “right” or an “entitlement” and it definitely confers no legally protectable interest on the prisoner.

2 . The California Supreme Court in In re Lynch, 8 Cal.3d 410, 419, 105 Cal.Rptr. 217, 223, 503 P.2d 921, 926, (1972), held that a life sentence with parole had to be treated as a life sentence for the purposes of eighth amendment analysis. One of the factors relied on by the court was the fact that the penalogical function of parole is only to mitigate a punishment which would otherwise be deserving. 105 Cal.Rptr. at 217, 503 P.2d at 921. The holding in Lynch was followed by New York in People v. Broadie, 37 N.Y.2d 100, 110, 371 N.Y.S.2d 471, 474, 332 N.E.2d 338, 341 (1975).

3 . The substantive standard applied by the board is “the best interest of society,” Tex. Code Crim.Pr.Ann. art. 42.12 § 22. The situation is not novel. In 1637, the annals of the General Court of the Massachusetts Bay Colony record the following dialogue in the Banishment of Anne Hutchinson:

“Ms. Hutchinson: I desire to know wherefore I am banished.

“Gov. Winthrup: Say no more. The court knows wherefore and it is satisfied.”