Neese v. Utah Bd. of Pardons & Parole , 416 P.3d 663 ( 2017 )


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  •                    This opinion is subject to revision before final
    Publication in the Pacific Reporter
    
    2017 UT 89
    IN THE
    SUPREME COURT OF THE STATE OF UTAH
    MICHAEL NEESE,
    Appellant,
    v.
    UTAH BOARD OF PARDONS AND PAROLE,
    Appellee.
    No. 20150487
    Filed December 14, 2017
    On Certification from the Utah Court of Appeals
    Sixth District, Manti
    The Honorable Wallace A. Lee
    No. 140600017
    Attorneys:
    Marshall Thompson, Salt Lake City, for appellant
    Sean D. Reyes, Att’y Gen., Brent A. Burnett, Asst. Solic. Gen., Amanda
    N. Montague, Asst. Att’y Gen., Salt Lake City, for appellee
    JUSTICE HIMONAS authored the opinion of the Court, in which
    JUSTICE DURHAM † and JUSTICE PEARCE joined, and in which
    CHIEF JUSTICE DURRANT joined in Parts I, II, and III.A.
    CHIEF JUSTICE DURRANT filed an opinion concurring in part and
    concurring in the result.
    ASSOCIATE CHIEF JUSTICE LEE filed a dissenting opinion.
    †Justice Durham sat on this case and voted prior to her retirement
    on November 15, 2017.
    NEESE v. PAROLE BOARD
    Opinion of the Court
    JUSTICE HIMONAS, opinion of the Court:
    INTRODUCTION
    ¶ 1 Michael Neese, a Utah prison inmate, has never been
    convicted of a sex offense, subjected to prison discipline for sexual
    misconduct, or otherwise adjudicated a sexual offender. Yet the Board
    of Pardons and Parole (Parole Board) has denied him an original
    release date for parole largely based on its determination that he’s a sex
    offender and his refusal to participate in sex offender treatment.
    Applying the principles we articulated in Labrum v. Utah State Board of
    Pardons, 
    870 P.2d 902
    (Utah 1993), we hold today that the district court
    erred in granting summary judgment to the Parole Board on the
    question of whether it violated Mr. Neese’s due process rights under
    article I, section 7 of the Utah Constitution. Before the Parole Board
    may take the refusal of inmates in Mr. Neese’s shoes to participate in
    sex offender treatment into consideration in deciding whether to grant
    them parole, it owes them (1) timely, particularized written notice that
    allegations they committed unconvicted sexual offenses will be
    decided; (2) the opportunity to call witnesses; and (3) a written decision
    adequately explaining its basis for determining that they’re sex
    offenders and asking them to participate in sex offender treatment.
    BACKGROUND
    ¶ 2 After his trial on forcible sodomy ended in a mistrial,
    Mr. Neese pleaded guilty to two counts of obstruction of justice, one
    count of theft, and one count of burglary. Mr. Neese received a
    composite prison sentence of two to thirty years. Under Utah’s
    discretionary sentencing scheme, this meant that the Parole Board was
    authorized to order Mr. Neese’s release any time between two and
    thirty years from his sentence and commitment. A nonbinding
    “sentencing matrix” prepared for the district court estimated that
    Mr. Neese would likely serve forty-six months, with an anticipated
    release date in 2014. 1
    ¶ 3 Mr. Neese’s original parole hearing began on September 13,
    2011. The hearing officer asked Mr. Neese about his criminal history,
    1   Because this is an appeal from an order granting summary
    judgment in favor of the Parole Board, we summarize the facts in the
    light most favorable to Mr. Neese. See Borghetti v. Sys. & Comput. Tech.,
    Inc., 
    2008 UT 77
    , ¶ 12, 
    199 P.3d 907
    .
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                             Opinion of the Court
    his record in prison, and his plans upon release. Mr. Neese only
    partially accepted responsibility for the offenses to which he pleaded
    guilty, and he minimized his prior criminal record. Mr. Neese also
    reported that he’d successfully participated in anger management and
    other prison programming, and he stated that, upon release, he
    intended to work in construction.
    ¶ 4 The hearing officer questioned Mr. Neese extensively about
    allegations that he’d raped his friends’ daughter in 2009, while he was
    an overnight guest at her parents’ house. The hearing officer based his
    questions on Mr. Neese’s presentence report, police reports, a victim
    statement, and correspondence from the prosecuting attorneys in
    Mr. Neese’s case, all of which stated that the seventeen-year-old
    daughter of one of Mr. Neese’s longtime friends had told police that
    she had awoken to find Mr. Neese in her bed with his erect penis
    between the cheeks of her buttocks. 2
    ¶ 5 In response to the hearing officer’s questioning, Mr. Neese
    “denied attempting to sodomize the victim.” He acknowledged that
    he’d entered her room while she was sleeping and that his shirt was off
    at the time, but he explained that he did so because he was about to go
    to sleep, needed a pillow and blanket, and knew that was where his
    host kept spare bedding. He speculated that the alleged victim—who
    he testified had previously been the victim of sexual abuse—had falsely
    accused him because she’d been “startled” by seeing him in her room
    with his shirt off.
    ¶ 6 After his first hearing, the Parole Board declined to set a
    release date and scheduled a rehearing. It based its decision on (1) his
    “[h]istory of similar offenses,” (2) his “[h]istory of unsuccessful . . .
    supervisions,” (3) the fact that he’d been convicted of offenses
    involving “[m]ultiple incidents and/or victims,” (4) the “[p]ersonal
    gain he reaped from the offense,” (5) his “[d]enial or minimization . . .
    of responsibility,” (6) his history of “[r]epeated, numerous . . .
    incarceration[s] or parole revocation[s],” and (7) his lack of “[o]verall
    rehabilitative progress and promise.” The Parole Board scheduled the
    rehearing for Mr. Neese on February 1, 2014, and it stated that a sex
    2 Mr. Neese was tried on these allegations, but the proceeding ended
    in a mistrial. As far as the record reveals, Mr. Neese has never been
    convicted of this or any other sex offense.
    3
    NEESE v. PAROLE BOARD
    Opinion of the Court
    offender treatment memorandum was “due to the Board of Pardons by
    01/2014.”
    ¶ 7 Mr. Neese’s rehearing took place on February 13, 2014. Unlike
    at his first hearing, Mr. Neese accepted responsibility for the crimes of
    which he was convicted and didn’t seek to minimize his prior criminal
    history other than refusing to discuss his juvenile record because he
    considered it “irrelevant.” The hearing officer noted that Mr. Neese had
    been a “good inmate” who had completed numerous life skills classes,
    and Mr. Neese again emphasized that he intended to do construction
    work once he was released.
    ¶ 8 As at Mr. Neese’s first hearing, the hearing officer again asked
    Mr. Neese about his alleged 2009 sex offense. Mr. Neese again denied
    these allegations and testified in detail—and consistent with the
    testimony he gave at his first parole hearing—about what had
    happened, why he believed he was falsely accused, and why he
    thought his accuser was not credible. Mr. Neese stated that he wasn’t
    willing to participate in sex offender treatment.
    ¶ 9 At the end of the second hearing, the hearing officer stated
    that he didn’t “buy [Mr. Neese’s] story on the sex offense.” He also
    telegraphed that Mr. Neese’s refusal to participate in sex offender
    treatment would be, as the district court found it was, a factor in his
    recommendation to the Parole Board, stating, “I’m gonna take the
    matter under advisement as far as what I’m gonna recommend [to the
    Parole Board], but . . . I wish you’d . . . been willing to do sex offender
    treatment, that would have been a lot better.”
    ¶ 10 On February 20, 2014, the Parole Board declined for a second
    time to fix an early release date for Mr. Neese. Among the reasons it
    gave was Mr. Neese’s refusal to accept responsibility—a consideration
    that could only apply on the assumption that Mr. Neese had committed
    a sexual offense because Mr. Neese had accepted responsibility for his
    other crimes. The Parole Board scheduled a third hearing for
    Mr. Neese, and again ordered the Department of Corrections to prepare
    a sex offender treatment memorandum.
    ¶ 11 After he was denied a release date for a second time,
    Mr. Neese filed a pro se petition for a writ of extraordinary relief. His
    lawsuit alleged that the Parole Board’s determination that he was a sex
    offender and its decision to condition his parole on successful
    completion of sex offender treatment violated his due process rights.
    Mr. Neese also asked the district court to appoint counsel. The district
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                              Opinion of the Court
    court denied Mr. Neese’s request for counsel and dismissed
    Mr. Neese’s complaint as frivolous, but the court of appeals reversed
    after concluding that Mr. Neese had raised a nonfrivolous issue
    implicating “the fairness of the process by which the [Parole] Board
    undertakes its sentencing function.” Neese v. Utah Bd. of Pardons &
    Parole, No. 2014647-CA (unpublished order Nov. 20, 2014) (quoting
    Padilla v. Utah Bd. of Pardons & Parole, 
    947 P.2d 664
    , 667 (Utah 1997)).
    ¶ 12 On remand, the Parole Board moved for summary judgment
    and Mr. Neese filed a response in opposition. The district court granted
    summary judgment for the Parole Board, concluding that Mr. Neese
    received due process under the state constitution.
    ¶ 13 Mr. Neese now appeals. He argues that the Parole Board’s
    determinations violate (1) the Utah Constitution’s unnecessary rigor
    provision, (2) the Utah Constitution’s due process provision, (3) the
    Eighth Amendment’s prohibition on cruel and unusual punishment,
    and (4) the Fourteenth Amendment’s Due Process Clause.
    ¶ 14 Utah Code section 78A-3-102(3)(b) gives us jurisdiction.
    PRESERVATION
    ¶ 15 Because this case poses significant preservation problems, we
    first address which of Mr. Neese’s claims are preserved for review.
    ¶ 16 The preservation requirement is a “self-imposed” rule of
    “prudence” that aims to promote fairness and judicial economy. Fort
    Pierce Indus. Park Phases II, III and IV Owners Ass’n v. Shakespeare, 
    2016 UT 28
    , ¶ 13, 
    379 P.3d 1218
    (citation omitted). “As a general rule, claims
    not raised before the trial court may not be raised on appeal.” State v.
    Holgate, 
    2000 UT 74
    , ¶ 11, 
    10 P.3d 346
    (citation omitted). To be
    adequately raised, a claim “must at least be raised to a level of
    consciousness such that the trial [court] can consider it.” State v. Cruz,
    
    2005 UT 45
    , ¶ 33, 
    122 P.3d 543
    (alteration in original) (citation omitted).
    Thus, an issue is preserved when it’s “presented to the trial court in
    such a way that the trial court has an opportunity to rule on that issue.”
    In re Adoption of Baby E.Z., 
    2011 UT 38
    , ¶ 25, 
    266 P.3d 702
    (citation
    omitted) (internal quotation marks omitted). Similarly, when a lower
    court decides “to take up [a] question,” this decision “conclusively
    overc[o]me[s] any objection that the issue was not preserved for
    appeal” because the issue has consciously been addressed by the court.
    Shakespeare, 
    2016 UT 28
    , ¶ 13 (citation omitted). But the mere fact that a
    party “mention[ed] . . . an issue without introducing supporting
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    NEESE v. PAROLE BOARD
    Opinion of the Court
    evidence or relevant legal authority” doesn’t suffice to preserve it for
    appeal. Cruz, 
    2005 UT 45
    , ¶ 33 (second alteration in original) (citation
    omitted) (internal quotation marks omitted).
    ¶ 17 Two of Mr. Neese’s arguments on appeal—his Eighth
    Amendment and unnecessary rigor challenges—are plainly
    unpreserved. Mr. Neese never raised an Eighth Amendment challenge
    to the Parole Board’s actions in his petition for an extraordinary writ,
    and he mentioned the unnecessary rigor provision only once, without
    connecting it to any facts, law, or argument. Neither the Parole Board
    nor the district court considered these claims, nor did the court of
    appeals otherwise put these claims at issue in its order vacating the
    district court’s determination that Mr. Neese’s petition was frivolous
    and remanding to give the Parole Board an opportunity to explain why
    its proceedings respected Mr. Neese’s due process rights. These claims
    are therefore not properly before us. See State v. Worwood, 
    2007 UT 47
    ,
    ¶ 16, 
    164 P.3d 397
    (“[P]erfunctorily mentioning an issue, without more,
    does not preserve it for appeal.” (citation omitted)); see also State v.
    Winfield, 
    2006 UT 4
    , ¶ 19, 
    128 P.3d 1171
    (while pro se litigants “should
    be accorded every consideration that may reasonably be indulged”
    they’re nonetheless “held to the same standard of knowledge and
    practice as any qualified member of the bar” (citations omitted)).
    ¶ 18 On the other hand, Mr. Neese’s due process claims are
    preserved and properly before us. Mr. Neese preserved his federal due
    process claim in his petition for an extraordinary writ. He argued at
    length that the Parole Board’s finding that he’d committed a sex offense
    of which he’d never been convicted and that its decision to factor his
    refusal to participate in sex offender treatment into its early release
    determination violated the Due Process Clause of the Fourteenth
    Amendment. And he adduced detailed facts and pertinent legal
    authority in support of this claim.
    ¶ 19 As the Parole Board acknowledged in its briefing to this court,
    Mr. Neese’s state due process claim was likewise preserved before the
    district court. While Mr. Neese’s petition didn’t itself plead a separate
    due process claim under our constitution, the court of appeals injected
    the issue into the underlying proceeding when it directed the district
    court to solicit a response from the Parole Board on the “fairness of the
    process by which the [Parole] Board undertakes its sentencing
    function” under Padilla v. Utah Board of Pardons & Parole, 
    947 P.2d 664
    ,
    667 (Utah 1997) (citation omitted)—a state due process case. Based on
    the court of appeals’ order, the Parole Board understood the issue
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                              Opinion of the Court
    before the district court to be “whether an inmate not convicted of a sex
    offense can be required to participate in sex offender treatment for
    purposes of determining eligibility for release on parole,” and it cited
    Padilla in support of its argument that Mr. Neese received adequate due
    process protections. Similarly, the district court relied on Labrum v. Utah
    State Board of Pardons, 
    870 P.2d 902
    (Utah 1993)—a case solely
    addressing the due process protections an inmate enjoys under article I,
    section 7 of the Utah Constitution—in concluding that Mr. Neese had
    received adequate due process protections. Thus, because the Parole
    Board understood the state due process provision to be implicated in
    Mr. Neese’s petition for extraordinary relief, and because the district
    court itself “[took] up the question,” Mr. Neese’s state due process
    claim is preserved. Shakespeare, 
    2016 UT 28
    , ¶ 13. 3
    ¶ 20 Because Mr. Neese’s due process claims are preserved for
    appeal, we now turn to their merits.
    STANDARD OF REVIEW
    ¶ 21 The question in this case is whether the district court erred in
    granting summary judgment in favor of the Parole Board on
    Mr. Neese’s due process claims. “Constitutional issues, including
    questions regarding due process, are questions of law that we review
    for correctness.” Salt Lake City Corp. v. Jordan River Restoration Network,
    
    2012 UT 84
    , ¶ 47, 
    299 P.3d 990
    (quoting Chen v. Stewart, 
    2004 UT 82
    ,
    ¶ 25, 
    100 P.3d 1177
    ). When a due process question requires “application
    of facts in the record to the due process standard, we incorporate a
    clearly erroneous standard for the necessary subsidiary factual
    3  While the Parole Board concedes the issue of what process
    Mr. Neese was entitled to “was preserved below,” it notes in passing
    that Mr. Neese’s petition for an extraordinary writ in the district court
    didn’t specify the precise due process protections to which Mr. Neese
    believed he was entitled. This statement, read in context, is a suggestion
    that Mr. Neese hasn’t met his burden of persuasion. But because this
    issue was inadequately briefed, it’s of no consequence. Moreover,
    Mr. Neese asserted that the Parole Board acted in violation of his due
    process rights, and he sought reversal of its determinations on that
    basis. It’s enough under the circumstances that he argued that the
    process he received was insufficient to justify the Parole Board’s
    actions.
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    NEESE v. PAROLE BOARD
    Opinion of the Court
    determinations.” 
    Id. (quoting Chen,
    2004 UT 82
    , ¶ 25). But on summary
    judgment, all factual inferences must be drawn in favor of the
    nonmoving party as a matter of law, and we therefore review an award
    of summary judgment on a due process issue only for correctness. See
    Rupp v. Moffo, 
    2015 UT 71
    , ¶ 5, 
    358 P.3d 1060
    .
    ANALYSIS
    ¶ 22 Our court has on occasion advocated for a primacy approach
    under which “a state court looks first to state constitutional law,
    develops independent doctrine and precedent, and decides federal
    questions only when state law is not dispositive.” State v. Worwood,
    
    2007 UT 47
    , ¶ 15, 
    164 P.3d 397
    (citation omitted). Here we begin with
    Mr. Neese’s state due process claim.
    ¶ 23 Article I, section 7 of the Utah Constitution provides that “[n]o
    person shall be deprived of life, liberty or property, without due
    process of law.” In Labrum v. Utah State Board of Pardons, we held that
    this provision extends the protection of “fundamental principles of due
    process” to inmates at “original parole grant hearings at which
    predicted terms of incarceration are determined.” 
    870 P.2d 902
    , 911
    (Utah 1993); see also Neel v. Holden, 
    886 P.2d 1097
    , 1101 (Utah 1994)
    (state due process protections apply to all parole hearings prior to and
    including the “hearing[] at which an inmate’s release date is fixed”).
    This is because Utah has an indeterminate sentencing scheme under
    which the district court’s role is limited to imposing the statutorily
    prescribed range of years for the offense of conviction. Within this
    range—in this case, two to thirty years—it’s “left to the unfettered
    discretion” of the Parole Board to fix the term of imprisonment. 
    Labrum, 870 P.2d at 908
    (quoting Foote v. Utah Bd. of Pardons, 
    808 P.2d 734
    , 735
    (Utah 1991)). As a consequence of this discretion, original parole grant
    hearings—those hearings at which the Parole Board makes “the first
    determination of the actual term the inmate is to serve in prison”—are
    in “reality . . . analogous to sentencing hearings and require due
    process to the extent that the analogy holds.” 
    Id. ¶ 24
    The hearings at issue here are original parole grant hearings
    directly subject to Labrum’s due process protections. These protections
    vary depending on the demands of the particular situation. See 
    id. at 911
    (“Due process is flexible and calls for the procedural protections
    that the given situation demands.” (quoting In re Whitesel, 
    763 P.2d 199
    ,
    203 (Wash. 1988) (en banc))). To determine what procedural protections
    are due in a given case requires that we attend to the two “critical
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                               Opinion of the Court
    functions” of procedural due process: (1) to reduce the risk of error and
    (2) to “preserve the appearance of fairness and the confidence of
    inmates in the decisionmaking process.” 
    Id. at 909–10
    (citation omitted).
    Labrum also instructs us to develop these procedures with an eye
    toward safeguarding other important criminal procedure values:
    “promot[ing] uniformity in sentences, reduc[ing] the need for trials by
    encouraging rational plea bargains, and provid[ing] incentives for good
    behavior in prison.” 
    Id. at 908.
                 I. MR. NEESE WAS ENTITLED TO GREATER
    PROCESS THAN HE RECEIVED AT HIS
    ORIGINAL PAROLE GRANT HEARINGS
    ¶ 25 With these principles in mind, we turn to what procedural
    protections the Parole Board must respect before it determines that
    someone who has never before been adjudicated a sex offender is one
    and effectively conditions his early release on his participation in sex
    offender treatment. In Labrum, the petitioner argued that he was
    entitled (1) to “receive adequate notice to prepare for [his] parole
    release hearing” and (2) to “receive copies or a summary of the
    information in the [Parole] Board’s file on which the [Parole] Board will
    rely.” Labrum v. Utah State Bd. of Pardons, 
    870 P.2d 902
    , 904 (Utah 1993).
    We agreed. We explained that providing an inmate with notice of both
    his parole hearing and the information on which the Parole Board
    intended to rely in making its determination would both reduce the
    risk of error (by allowing the inmate to point out factual inaccuracies in
    his file) and promote the inmate’s perception of fairness (by ensuring
    that his concerns were taken into account by the Parole Board). 
    Id. at 909.
    And we held that these protections helped promote sentence
    uniformity, the rationality of plea bargains, and good behavior in
    prison. 
    Id. at 908.
        ¶ 26 Labrum didn’t purport to exhaustively list the procedural
    protections to which the Utah Constitution entitles an inmate in an
    original parole hearing. Instead, Labrum “emphasize[d] . . . that this
    opinion . . . addresses only those procedures specifically requested by
    this petitioner.” 
    Id. at 911.
    It also explained that, in many cases, the only
    question will be whether the information before the Parole Board has
    basic factual inaccuracies that the inmate can correct simply by
    bringing them to the hearing officer’s attention. See 
    id. at 909–10
    (quoting Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 
    442 U.S. 1
    ,
    33 & n.15 (1979) (Marshall, J., dissenting)). But it left for another day
    “[t]he extent to which additional due process protections must be
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    NEESE v. PAROLE BOARD
    Opinion of the Court
    afforded inmates in this and other proceedings in the parole system,”
    which it recognized would “require case-by-case review.” 
    Id. at 911.
        ¶ 27 Applying the framework that Labrum articulated, we conclude
    that the case before us calls for additional procedural protections, over
    and above notice of a hearing and the opportunity to review the
    information on which the Parole Board will rely in making its
    determination about whether, and when, to fix Mr. Neese’s initial
    release date. The Parole Board’s conduct in this case is, at a minimum,
    closely analogous to a sentencing court’s considering uncharged or
    unconvicted conduct in fixing a defendant’s sentence. 4 See 
    id. at 908
    (due process protections apply when Parole Board acting analogously
    to a sentencing court). In this case, the Parole Board has concluded that
    Mr. Neese committed a sexual offense of which he’s never been
    convicted (or otherwise found liable), that Mr. Neese was
    unsuccessfully tried on, and culpability for which Mr. Neese
    specifically bargained away in plea negotiations.
    ¶ 28 In this circumstance—essentially turning the presumption of
    innocence on its head and imprisoning a person for decades for a sex
    crime they’ve never been convicted of—the two “critical functions” of
    procedural due process—minimizing error and promoting the
    perception of fairness—require greater procedural protections than thin
    notice and the opportunity to review the Parole Board’s information.
    ¶ 29 Nor is simply giving the inmate an opportunity to speak on
    his own behalf enough to reduce the risk of error when, as here,
    unconvicted sexual conduct logically distinct from the offenses of
    conviction is at issue. See Neel v. Holden, 
    886 P.2d 1097
    , 1103 (Utah 1994)
    (“[T]he touchstone of due process in the context of parole hearings is
    whether the proposed procedural due process requirement
    substantially furthers the accuracy and reliability of the [Parole] Board’s
    fact-finding process.”). This case is different from those instances where
    the Parole Board is reviewing presumptively reliable court and
    disciplinary files or otherwise taking into account undisputed
    background facts about the inmate or his victim. Cf. 
    id. (denying that
    due process provision gives an inmate the right to have counsel
    address the Parole Board when the inmate “failed to show how the
    further participation of counsel at the hearing would have affected the
    4 We take care to say “at a minimum” because it may be more
    accurate for us to describe what happened here as a lopsided trial.
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    accuracy of the information considered by the [Parole] Board”); Monson
    v. Carver, 
    928 P.2d 1017
    , 1030 (Utah 1996) (denying an inmate the right
    to call character witnesses). When the Parole Board is assessing
    whether an inmate has committed unconvicted conduct, it’s sitting as a
    judicial fact-finder for purposes of parole adjudicating the inmate guilty
    of a criminal offense of which the inmate was never convicted. In both
    criminal trials and the closely related context of prison disciplinary
    proceedings, where prison authorities seek to determine whether an
    inmate has committed a disciplinary infraction, due process affords
    inmates greater procedural protections than Mr. Neese received. See
    Wolff v. McDonnell, 
    418 U.S. 539
    , 564, 566 (1974) (with exceptions for
    prison safety, inmates have due process right “to call witnesses and
    present documentary evidence” in prison disciplinary proceedings
    because “the right to present evidence is basic to a fair hearing”; they
    also have a right to a detailed written rationale of the disciplinary
    determination); see also Rock v. Arkansas, 
    483 U.S. 44
    , 52 (1987)
    (compulsory process in criminal cases).
    ¶ 30 Additional procedural protections are particularly important
    when the Parole Board is considering whether an inmate has
    committed an unconvicted sex offense. The determination that an
    inmate has committed a sex offense triggers an unusually—perhaps
    uniquely—harsh set of consequences. Construing the record in the light
    most favorable to Mr. Neese, as we must, it appears that the Parole
    Board places significant and perhaps determinative weight on whether
    an inmate deemed to be a sex offender has participated in sex offender
    treatment in making its early release determinations. But a prerequisite
    to participating in sex offender treatment is admitting to having
    committed a sex offense. See State v. Humphrey, 
    2003 UT App 333
    , ¶ 5,
    
    79 P.3d 960
    (noting that sex offender treatment programs require
    inmates to “admit[] guilt”). Thus, unlike in other situations where the
    Parole Board might erroneously conclude that an inmate has
    committed unconvicted conduct and ask that the inmate participate in
    additional prison programming, when the Parole Board erroneously
    determines that an inmate is a sex offender, that inmate can’t truthfully
    participate in the treatment program. Unconvicted sex offenses thus
    pose a unique problem that requires unique procedural protections.
    ¶ 31 There are additional reasons why the interest in minimizing
    error is particularly urgent in cases where the Parole Board has
    determined that an inmate has committed a sex offense of which he’s
    not been convicted, and where—as here—it’s alleged that this
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    NEESE v. PAROLE BOARD
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    determination has caused the Department of Corrections to classify the
    inmate as a sex offender. Inmates who are classified as sex offenders are
    beaten and raped at significantly higher rates than others in the prison
    population. See Renchenski v. Williams, 
    622 F.3d 315
    , 326 (3d Cir. 2010)
    (“[S]ex offenders are considered an anathema in the inmate subculture
    . . . [and] inmate norms call for their savage beating.” (alterations in
    original) (citation omitted) (internal quotation marks omitted)); Alice
    Ristroph, Sexual Punishments, 15 COLUM. J. GENDER & L. 139, 159–60
    (2006) (“[S]ex offenders are a distinct and disfavored category within
    prison populations, subject to heightened abuse from both corrections
    officers and fellow inmates. By many reports, sex offenders are
    themselves disproportionately likely to be the target of sexual assault in
    prison.” (citations omitted)); see also U.S. DEP’T OF JUSTICE, NATIONAL
    PRISON RAPE ELIMINATION COMMISSION REPORT 75 (2009),
    https://perma.cc/Y762-K8U5 (noting that inmates with “prior
    convictions for sex offenses against an adult or child” face a heightened
    “risk of victimization” in prison). Additionally, sex offender treatment
    is highly invasive and degrading. Among other things, male
    participants are required to undergo penile plethysmograph tests, in
    which they’re shown pornography while their penis is hooked to a
    device that measures blood flow and, hence, arousal. See UTAH ADMIN.
    CODE R. 251-109-6(2). According to Mr. Neese’s pleadings, they’re also
    removed from the general prison population and placed in more
    restrictive conditions and in closer proximity to sexual predators. These
    deleterious effects, when coupled with the problem that it’s impossible
    for a person who has erroneously been classified as a sex offender to
    truthfully participate in sex offender treatment, make the risk of error
    in cases where the Parole Board decides that an inmate has committed
    an unconvicted sex offense particularly acute.
    ¶ 32 Additional procedural protections are also needed to protect
    the integrity of the parole-grant process and to promote the other
    criminal procedure values that Labrum seeks to safeguard: uniformity
    in sentences, rational plea bargaining, and good behavior in prison.
    
    Labrum, 870 P.2d at 908
    . As far as the record before us reveals,
    Mr. Neese has never been convicted of a sex offense or adjudicated a
    sex offender in a disciplinary, juvenile, or any other proceeding. While
    he was tried for a sex offense, the trial ended in a mistrial, and
    Mr. Neese subsequently entered a plea agreement only to other,
    nonsexual charges. In short, Mr. Neese accepted an offer to plead to
    nonsexual crimes after having steadfastly maintained that he was
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    innocent of sexual misconduct, having gone to trial to hold the State to
    its burden of proving him guilty of a sex offense and having not been
    convicted. We think an inmate in this position would justly question
    the integrity of a system in which the Parole Board could, after all this,
    adjudge him a sex offender and postpone his release date for up to
    twenty-eight years based solely on unproven allegations and without
    giving the inmate the opportunity to call witnesses or affording him a
    meaningful explanation of its decision.
    ¶ 33 The risk of unjustified sentencing disparities in such a system
    is great. By the same token, defendants will be justifiably wary of
    accepting plea deals if they know that bargained-for dismissed charges,
    on which they have steadfastly maintained their innocence and that are
    not logically implicit in the factual basis of their allocution, can come
    roaring back at their parole hearing and result in a sentence decades
    longer than the sentence all parties contemplated based on the
    sentencing matrix at the time. And, given that the perception of fairness
    is important to good behavior in prison, this value will also be well-
    served by according inmates in Mr. Neese’s shoes the procedural
    protections that basic fairness requires. See 
    id. ¶ 34
    The transcripts of the parole-grant hearings in this case
    underscore the need for additional procedural protections for inmates
    like Mr. Neese. In both his initial parole hearing and his rehearing in
    2014, Mr. Neese testified consistently and emphatically that he wasn’t a
    sexual offender. The transcripts of these hearings reveal that both his
    account of the events of the night on which he was accused of
    committing rape and his explanation of why the alleged victim falsely
    accused him have surface plausibility. We’re hard pressed to see how
    Mr. Neese could have mounted a more effective defense while availing
    himself only of the basic due process protections to which Labrum
    entitles all inmates. Yet, without explaining why, the Parole Board
    chose to believe unproven allegations in a police report over
    Mr. Neese’s explanation of why they were false. We lack confidence in
    the accuracy of these proceedings.
    ¶ 35 On appeal, the Parole Board argues that because Mr. Neese
    isn’t entitled to parole, he can’t have a “protectable liberty interest” in
    early release that would trigger the protections of due process over and
    above what Labrum already requires. The Parole Board directs our
    attention to federal cases holding that, in discretionary parole systems,
    parole boards may ask inmates to participate in sex offender treatment
    13
    NEESE v. PAROLE BOARD
    Opinion of the Court
    and even make participation a precondition to early release without
    according any process at all.
    ¶ 36 The Parole Board appears to be correct that Mr. Neese doesn’t
    enjoy federal procedural due process protections in a discretionary
    parole grant hearing. Under federal law, the Due Process Clause
    applies only to prospective parolees who have a protected “liberty
    interest” in early release. Sandin v. Conner, 
    515 U.S. 472
    , 477 (1995). But
    only prospective parolees who enjoy a legal entitlement or presumption
    in favor of early release—for example, because a statute presumptively
    entitles them to good-time credit—are deemed to have such a liberty
    interest. See 
    Greenholtz, 442 U.S. at 7
    (“The Due Process Clause applies
    when government action deprives a person of liberty or property . . .
    [but t]here is no constitutional or inherent right of a convicted person to
    be conditionally released before the expiration of a valid sentence.”); see
    also Bd. of Pardons v. Allen, 
    482 U.S. 369
    , 373 (1987) (“[T]he presence of a
    parole system by itself does not give rise to a constitutionally protected
    liberty interest in parole release.”). Because discretionary parole
    systems don’t create presumptive entitlements to early release, the
    federal Due Process Clause doesn’t apply to require any particular
    process before the Parole Board (1) denies early release based, in part,
    on its determination that an inmate is a sex offender or even (2) makes
    the inmate’s participation in sex offender treatment a precondition of
    early release. See, e.g., Straley v. Utah Bd. of Pardons, 
    582 F.3d 1208
    , 1214–
    15 (10th Cir. 2009) (Because “[t]he Utah parole statutes grant the
    [Parole] Board complete discretion in making parole decisions [and an
    inmate] has no state entitlement to parole . . . [t]he Utah parole statutes
    . . . do not create a liberty interest entitling [an inmate] to federal due
    process protections.”); Hughes v. Owens, 320 F. App’x 271, 272 (5th Cir.
    2009) (“It is axiomatic that because Texas prisoners have no protected
    liberty interest in parole they cannot mount a challenge against any
    state parole review procedure on procedural (or substantive) Due
    Process grounds.” (citation omitted) (internal quotation marks
    omitted)); Grennier v. Frank, 
    453 F.3d 442
    , 446 (7th Cir. 2006) (holding
    that there is no “liberty or property interest in the prospect of parole
    under Wisconsin’s discretionary system” and therefore no due process
    right to hearing before parole board may consider failure of inmate not
    convicted of sex offense to participate in sex offender treatment).
    ¶ 37 Mr. Neese has adduced no contrary authority; each of the
    cases that Mr. Neese cites for the proposition that the federal Due
    Process Clause entitles inmates to procedural protections before they
    14
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    may be classified as sex offenders first found a protected liberty interest
    based on an underlying statutory entitlement to release that the sex
    offender classification jeopardized. See, e.g., Coleman v. Dretke, 
    395 F.3d 216
    , 225 (5th Cir. 2004) (holding that parolees have protected liberty
    interest in not being required to participate in sex offender treatment);
    Gwinn v. Awmiller, 
    354 F.3d 1211
    , 1217 (10th Cir. 2004) (holding that
    classification as sex offender that, by operation of law, reduced rate at
    which inmate could earn good time credits interferes with protected
    liberty interest); Neal v. Shimoda, 
    131 F.3d 818
    , 829 (9th Cir. 1997)
    (holding that inmate’s protected liberty interest is implicated when
    “State’s regulations render the inmate completely ineligible for parole [to
    which the inmate is otherwise statutorily entitled] if the [sex offender]
    treatment program is not satisfactorily completed”).
    ¶ 38 We acknowledge that in Sandin v. Conner, the United States
    Supreme Court retreated somewhat from the view that statutory and
    regulatory entitlements are necessary or sufficient to create protected
    liberty interests, and that Sandin instead urged courts to focus on the
    functional questions whether a parole or correctional decision has
    imposed an “atypical and significant hardship” on the inmate or “will
    inevitably affect the duration of [the] 
    sentence.” 515 U.S. at 484
    , 487. But
    federal circuit courts that have considered whether, after Sandin,
    inmates in discretionary sentencing schemes have any protected liberty
    interest in early release have uniformly concluded that they don’t. See,
    e.g., Jenner v. Nikolas, 
    828 F.3d 713
    , 717 (8th Cir. 2016) (Sandin doesn’t
    change the rule that absent a statutory right to parole there’s no
    “protected liberty interest” for purposes of Due Process Clause);
    Duemmel v. Fischer, 368 F. App’x 180, 182 (2d Cir. 2010) (holding that an
    inmate in discretionary parole system not entitled to due process before
    participation in sex offender treatment made a prerequisite for parole
    eligibility because, absent indication that inmate enjoys a “presumption
    of parole release,” no indication that the requirement “will inevitably
    affect the duration of his sentence” (quoting 
    Sandin, 515 U.S. at 487
    ));
    Michael v. Ghee, 
    498 F.3d 372
    , 378 (6th Cir. 2007) (noting that “Sandin
    was decided only in the context of prison conditions, not parole
    eligibility” and concluding that an inmate “under a discretionary
    parole system” has no protected liberty interest (quoting Swihart v.
    Wilkinson, 209 F. App’x 456, 458–59 (6th Cir. 2006))); McQuillion v.
    Duncan, 
    306 F.3d 895
    , 903 (9th Cir. 2002) (“Sandin does not deal with a
    prisoner’s liberty interest in parole and does not overrule Greenholtz
    and Allen.” (citing Ellis v. District of Columbia, 
    84 F.3d 1413
    , 1417–18
    15
    NEESE v. PAROLE BOARD
    Opinion of the Court
    (D.C. Cir. 1996))); 
    Ellis, 84 F.3d at 1418
    (“Until the Court instructs us
    otherwise, we must follow Greenholtz and Allen because, unlike Sandin,
    they are directly on point. Both cases deal with a prisoner’s liberty
    interest in parole; Sandin does not. And so we return to the language of
    the regulations.”); Orellana v. Kyle, 
    65 F.3d 29
    , 32 (5th Cir. 1995) (Sandin
    doesn’t change the fact that because inmates “ha[ve] no liberty interest
    in obtaining parole in Texas[‘s discretionary parole system], [they]
    cannot complain of the constitutionality of procedural devices
    attendant to parole decisions.”).
    ¶ 39 So the Parole Board is likely right that Mr. Neese doesn’t
    presently enjoy a federally protected liberty interest in parole. But the
    federal cases don’t support the Parole Board’s contention that Labrum
    sets the ceiling for state due process protections, and they’re curious
    cases to press into that service. Instead, if the logic of these cases
    applied under Utah’s Constitution, we’d have to overrule Labrum and
    hold that our constitution requires the same “liberty interest” analysis
    that the federal courts employ. But the Parole Board doesn’t ask us to
    overrule Labrum, and, even more importantly, we believe that Labrum
    got it right: being kept in prison, potentially for decades longer than
    one otherwise would, is a paradigmatic example of a deprivation of
    liberty. Moreover, to the extent that the Parole Board asks us to
    conclude that Labrum is confined to its facts, we decline the invitation.
    The Parole Board has given us no cause to repudiate the reasoning of
    Labrum, and our task is to faithfully apply our precedent. We adhere to
    Labrum absent any argument or indication that it should be overruled.
    See State v. Steed, 
    2015 UT 76
    , ¶ 11 n.9, 
    357 P.3d 547
    (“We should tread
    cautiously in overruling precedent and this is especially true where the
    parties have failed to brief or even argue that a particular precedent
    should be overruled.” (citation omitted)).
    ¶ 40 Based on Labrum’s framework and the undisputed facts
    (1) that Mr. Neese has never been adjudicated a sex offender in any
    proceeding and (2) that the Parole Board nonetheless determined that
    he’d committed a sex offense and thus took his refusal to participate in
    sex offender treatment into consideration as a factor bearing on
    whether he should be released, we conclude that Mr. Neese was
    entitled to greater due process protections than he received.
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                              Opinion of the Court
    II. THE ADDITIONAL PROCEDURAL PROTECTIONS
    TO WHICH MR. NEESE IS ENTITLED
    ¶ 41 Among the crucial elements of due process under article I,
    section 7 of the Utah Constitution are “notice to the person of the
    inauguration and purpose of the inquiry and the time at which such
    person should appear if he wishes to be heard,” the “right to appear in
    person or by counsel,” and a “fair opportunity to submit evidence.”
    Christiansen v. Harris, 
    163 P.2d 314
    , 317 (Utah 1945). In this case, we’re,
    in large measure, concerned with an inmate’s opportunity to submit
    evidence when seeking to challenge a charge that he or she has
    committed an entirely new sexual offense.
    ¶ 42 In Wolff v. McDonnell, 
    418 U.S. 539
    (1974), the United States
    Supreme Court considered what procedures the federal Due Process
    Clause required prison officials to provide inmates in the closely
    related context of prison disciplinary proceedings. It held that inmates
    in disciplinary proceedings were entitled to (1) “advance written notice
    of the claimed violation,” (2) the ability to “call witnesses and present
    documentary evidence in his defense when permitting him to do so
    will not be unduly hazardous to institutional safety or correctional
    goals,” and (3) a “written statement of the factfinder[] as to the
    evidence relied upon and the reasons for the disciplinary action taken.”
    
    Id. at 563,
    566. When a federal liberty interest is implicated, federal
    courts have similarly adopted these protections in proceedings where a
    parole board intends to classify inmates as sex offenders and require
    them to complete sex offender treatment as a precondition for parole
    eligibility. See, e.g., Neal v. Shimoda, 
    131 F.3d 818
    , 830 (9th Cir. 1997).
    ¶ 43 We hold today that the Utah Constitution requires analogous
    procedures in original parole grant hearings where the Parole Board
    intends to classify as a sex offender an inmate who has never been
    convicted of a sex offense or otherwise adjudicated a sex offender. That
    is, the Parole Board (1) must, in advance of the hearing, provide
    particularized written notice that it intends to consider and effectively
    decide unconvicted sexual conduct in making its parole determination;
    (2) unless the safe administration of the prison system requires
    otherwise, it must allow the inmate to call witnesses and present
    documentary evidence in his defense; and (3) it must provide a written
    statement of the evidence it relied upon and the reasons it concluded
    that the inmate committed the unconvicted sexual conduct.
    17
    NEESE v. PAROLE BOARD
    Opinion of the Court
    ¶ 44 These procedures will redress the due process problems that
    we’ve identified with the Parole Board’s considering unconvicted
    sexual conduct in this case. Particularized, advance written notice and
    the ability to call witnesses will reduce the risk of error and promote
    the perception of fairness by allowing inmates to meaningfully present
    evidence in a situation where they’ve never before had the opportunity
    to do so. The requirement that an inmate receive particularized written
    notice flows directly from Labrum’s holding that inmates must be given
    “the materials and information on which the [Parole] Board [intends to]
    rel[y] at an original parole grant hearing.” Labrum v. Utah State Bd. of
    Pardons, 
    870 P.2d 902
    , 909 (Utah 1993). This right of access extends
    broadly to give the inmate the opportunity to review and prepare to
    address any information on which the Parole Board intends to rely. For
    example, notwithstanding the confidential nature of psychological
    reports, an inmate is presumptively “entitled to access psychological
    reports to be considered by the [Parole] Board in hearings at which the
    inmate’s release date may be fixed or extended.” Neel v. Holden, 
    886 P.2d 1097
    , 1103 (Utah 1994). Thus, when the Parole Board plans to
    consider unadjudicated allegations of sexual misconduct, an inmate
    must be given particularized written notice of the nature of those
    allegations sufficiently in advance of the hearing to allow him to
    prepare a defense.
    ¶ 45 An inmate who stands accused of committing an unconvicted
    sexual offense must also be allowed to call witnesses. To be sure, the
    ability to call witnesses isn’t essential to the fairness and accuracy of all
    original parole proceedings. But when the Parole Board considers
    unconvicted sexual conduct, these procedural protections are “basic to
    a fair hearing.” 
    Wolff, 418 U.S. at 566
    . This is because the Parole Board,
    in considering unconvicted sexual conduct, is effectively trying the
    inmate for an offense that has never before been adjudicated in any
    other forum (criminal trial, sentencing proceeding, or prison
    disciplinary hearing). It would be anomalous to allow the Parole Board
    to effectively convict an inmate of a sexual offense— effectively adding
    decades to his sentence and placing him in the impossible bind of
    having to participate in a treatment program he can’t honestly engage
    in—without first giving the inmate the opportunity to put on
    testimony.
    ¶ 46 Similarly, a written statement of the evidence relied upon and
    the reasons that the Parole Board concluded that the inmate committed
    the unconvicted sexual conduct will promote fairness and accuracy,
    18
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                              Opinion of the Court
    both by ensuring that the Parole Board has carefully considered the
    evidence and by creating a record of the Parole Board’s adjudication
    that allows for meaningful due process review. Cf. Preece v. House, 
    886 P.2d 508
    , 512 (Utah 1994) (courts may review only “the process by which
    the [Parole] Board undertakes its sentencing function” (citation
    omitted) (internal quotation marks omitted)). This is particularly
    important when the Parole Board is, in effect, holding a miniature
    criminal trial—a proceeding that, more so than the ordinary functions
    of the Parole Board (reviewing disciplinary, court, criminal, family, and
    victim history and impact records and making a determination
    regarding early release) is squarely within the judiciary’s ken. A
    preprinted form with aggravating and mitigating factors checked off on
    it presupposes that an inmate has committed a sexual offense; it doesn’t
    explain that conclusion. And it’s therefore inadequate.
    ¶ 47 The procedures we require today will also further other
    important interests. First, they’ll eliminate the irrational disparity
    otherwise created by the fact that inmates in disciplinary proceedings—
    where the potential sanctions are often much less severe than extra
    years, decades, or life in prison—are entitled to Wolff’s procedural
    protections, whereas inmates are not entitled to Wolff’s procedural
    protections when the Parole Board is sitting in an analogous capacity
    by adjudicating an inmate’s guilt or innocence of an offense for which
    he’s not otherwise been found guilty. See 
    Wolff, 418 U.S. at 563
    ; Homer v.
    Morris, 
    684 P.2d 64
    , 67 (Utah 1984) (inmates have “due process rights in
    a prison disciplinary proceeding for alleged ‘flagrant or serious
    misconduct’” (quoting 
    Wolff, 418 U.S. at 555
    –56)). Second, they’ll
    promote rationality in sentencing by ensuring that the Parole Board has
    the benefit of adversarial testing in deciding whether an inmate has
    committed unconvicted sexual conduct. See 
    Labrum, 870 P.2d at 908
    .
    Finally, we don’t believe that these additional procedural protections
    are unnecessarily onerous (given that Wolff has applied these
    protections in disciplinary proceedings for years without needless
    disruption of the correctional system) and, to the extent that they
    reduce the Parole Board’s reliance on unconvicted sexual conduct,
    especially conduct that has been bargained out of a plea deal, they’ll
    safeguard the rationality of plea bargaining. See 
    id. ¶ 48
    We accordingly hold Mr. Neese was entitled to the procedural
    protections this opinion outlines before the Parole Board could
    designate him a sex offender based on previously unadjudicated
    allegations of sexual misconduct.
    19
    NEESE v. PAROLE BOARD
    Opinion of the Court
    III. THE DISSENT
    ¶ 49 The dissent believes Mr. Neese has already received more
    process than he’s entitled to under the due process provision.
    According to the dissent, the framers of the Utah Constitution would
    have never understood the mandates of due process to extend beyond
    the guilt phase of a criminal proceeding. A consequence of this is that
    due process protections simply do not apply to sentencing—a view
    that, if taken seriously and to its logical conclusion, would mean that
    “heads you live/tails you die” sentencing doesn’t offend due process in
    this state. And, even if the protections of due process do extend to
    parole proceedings, the dissent thinks Mr. Neese has received all due
    process requires and then some. After all, he’d been told of the parole
    hearing and given an opportunity to speak. He even received the
    packet of information on which the Parole Board relied in denying him
    parole.
    ¶ 50 We reject the dissent’s analysis for two reasons. First, it can’t
    be squared with the kind of fidelity to Labrum and its progeny that our
    commitment to the principles of stare decisis requires. Second, it rests
    exclusively on the dissent’s potentially incomplete review of some
    sources bearing on the original meaning of article I, section 7 of the
    Utah Constitution. See Griffin v. United States, 
    502 U.S. 46
    , 60 (1991)
    (Blackmun, J., concurring in the judgment) (declining to “follow the
    Court on its . . . tour of the common law”). 5
    ¶ 51 These considerations apply with particular force here because
    no party asked us to overrule Labrum or to confine it to its facts on the
    basis that it’s inconsistent with the original meaning of article I, section
    7 of the Utah Constitution. See Munson v. Chamberlain, 
    2007 UT 91
    , ¶ 21,
    
    173 P.3d 848
    (overruling the last paragraph of an opinion because it
    resolved a question without the “benefit [of] any adversarial briefing of
    the issue”); see also St. Jeor v. Kerr Corp., 
    2015 UT 49
    , ¶ 14, 
    353 P.3d 137
    (“‘[W]e would be ill-advised’ to reach a decision regarding unsettled
    law ‘without the benefit of adversarial briefing.’” (citation omitted)).
    5 The dissent repeatedly claims safe harbor to launch its assault on
    Labrum and to undertake its independent originalist analysis based
    upon our decision not to seek supplemental briefing. If played out to its
    logical end, the dissent’s argument would allow any justice to write on
    any argument at any time because the court could have, but didn’t,
    request supplemental briefing. We respectfully reject any such notion.
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    Appellate courts have no business unsettling the law by overturning
    significant precedent where the parties have not asked the court to do
    so, nor been provided with an opportunity to brief the issue, nor
    (needless to say) carried their burden of persuasion to show us that the
    precedent should be overturned.
    ¶ 52 With this backdrop in mind, our response to the dissent
    proceeds in four parts. First, we explain why the dissent’s approach to
    Labrum is inconsistent with our stare decisis principles. 6 Second, we
    illustrate the problem with reaching out to resolve an issue that hasn’t
    been briefed to us by giving reasons to question the dissent’s originalist
    analysis—its analysis of the original understanding of both the scope of
    due process and its content. Third, we diagnose a fundamental
    methodological mistake that we believe the dissent’s originalist
    analysis commits. Finally, we close with some reflections on the
    relationship between originalism and policy analysis.
    A. Labrum and Stare Decisis
    ¶ 53 We’ve already explained why Labrum requires that Mr. Neese
    receive additional procedural protections—the right to particularized
    notice, to call witnesses, and to a fuller written explanation of the
    Parole Board’s decision—before the Parole Board may, in effect, extend
    Mr. Neese’s term of incarceration based on untested allegations that he
    committed a sex offense unrelated to the reasons for his incarceration.
    Supra ¶¶ 25–34. Under Labrum, “original release hearings . . . are
    analogous to sentencing hearings and require due process to the extent
    that the analogy holds.” Labrum v. Utah State Bd. of Pardons, 
    870 P.2d 902
    , 908 (Utah 1993); see also supra ¶¶ 27, 46. Labrum requires that we
    balance the goals of (1) minimizing errors in the Parole Board’s
    sentencing process and (2) promoting the perception of fairness with
    (3) ensuring the effective administration of Utah’s prison and parole
    systems. 
    Labrum, 870 P.2d at 909
    –10; see also supra ¶ 28.
    ¶ 54 In the ordinary case, the Parole Board makes its decision
    based on considerations such as a review of an inmate’s criminal,
    6 In response, the dissent makes much of Mr. Neese not citing to
    Labrum in his opening brief. See infra ¶ 129. That is a fair criticism, but
    one that sidesteps the fact that (1) Mr. Neese did make the underlying
    state due process argument in his initial brief and (2) the State
    extensively briefed Labrum in response, as did Mr. Neese on reply.
    21
    NEESE v. PAROLE BOARD
    Opinion of the Court
    psychological, social, and carceral history. The Parole Board examines
    the crimes of which the inmate has already been adjudicated, the
    inmate’s network of social support, his disciplinary, social-
    programmatic, and work record in prison, and (if pertinent)
    uncontested therapeutic opinions of the inmate’s psychologist or
    therapist. When this is the extent of the Parole Board’s review, it need
    not allow an inmate to call witnesses because witnesses won’t
    meaningfully reduce the risk of error or promote the perception of
    fairness. Instead, it’s sufficient to give an inmate the opportunity to
    review the records on which the Parole Board intends to rely, to afford
    the inmate an opportunity to speak, and to provide a brief written
    summary of the factors the Parole Board considered in setting the
    inmate’s release date. 
    Labrum, 870 P.2d at 904
    ; see also Padilla v. Utah Bd.
    of Pardons & Parole, 
    947 P.2d 664
    , 670 (Utah 1997) (reviewing the
    constitutional adequacy of “rationale sheets used by the [Parole] Board
    to explain its parole decision”). This is because to correct errors or
    inaccuracies in the Parole Board’s records, the inmate need only
    (1) have the opportunity to review those records and (2) be allowed to
    point them out to the Parole Board. 
    Labrum, 870 P.2d at 909
    –10
    (focusing on the problem of “substantial inaccuracies in inmate files . . .
    ‘I have seen black men listed as white and Harvard graduates listed
    with borderline IQ’s’” (quoting Greenholtz v. Inmates of Neb. Penal &
    Corr. Complex, 
    442 U.S. 1
    , 33 & n.15 (1979) (Marshall, J., dissenting)). The
    written rationale sheet, in turn, gives the inmate the opportunity to
    make sure the Parole Board has heeded his corrections—and it gives
    courts the opportunity to review arbitrary and capricious decisions to
    rely on inaccuracies that the inmate may have already pointed out.
    ¶ 55 But Labrum requires more when the Parole Board goes beyond
    its usual role and, instead, bases its decisions on untested allegations
    that an inmate has committed a sex offense. In such a situation, the
    Parole Board is sitting not just as a sentencing tribunal, but as a trier of
    fact. Cf. 
    Labrum, 870 P.2d at 908
    ; 
    see supra
    ¶ 29. Fairness and the
    minimization of error thus require more than simply giving the inmate
    an opportunity to speak and “point out errors” in his file. 
    Labrum, 870 P.2d at 909
    (citation omitted). Particularized, advanced written notice of
    the alleged sex offense is crucial to allowing an inmate a fair
    opportunity to prepare and be heard; witnesses are crucial to
    determining whether a person has committed such an offense; and an
    explanation of the Parole Board’s decision is crucial for our reviewing
    its criminal fact-finding. 
    See supra
    ¶¶ 44–47.
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                               Opinion of the Court
    ¶ 56 The dissent disagrees. It acknowledges that Labrum “deserves
    some measure of respect as a matter of stare decisis.” Infra ¶ 125. But the
    dissent thinks it can square its preferred result with upholding Labrum.
    The dissent accuses us of beginning with “the broadest conception of
    our opinion in Labrum” and then extending its “premises . . . to their
    logical extreme.” Infra ¶ 125. Before we apply Labrum’s theory to
    Mr. Neese’s case, the dissent contends “we should carefully consider
    the basis of the court’s analysis in Labrum.” Infra ¶ 125. Because the
    dissent finds this basis wanting, it tells us to confine Labrum to its
    precise facts, see infra ¶ 166 (arguing against “extend[ing] [Labrum]
    further” based on the dissent’s view that Labrum was wrongly decided).
    ¶ 57 The dissent’s stated approach—confine Labrum to its facts on
    the grounds that Labrum was wrongly decided—doesn’t respect stare
    decisis. It’s treating it like a velvet Elvis—hiding the opinion in the attic
    and exhibiting it only to subject it to derision. Respect for past opinions
    demands more. Stare decisis is “a cornerstone of Anglo-American
    jurisprudence that is crucial to the predictability of the law and the
    fairness of adjudication.” State v. Thurman, 
    846 P.2d 1256
    , 1269 (Utah
    1993) (citation omitted). A fundamental requirement of stare decisis is
    that we not “overrule our precedents lightly.” State v. Guard, 
    2015 UT 96
    , ¶ 33, 
    371 P.3d 1
    (citation omitted) (internal quotation marks
    omitted). We thus don’t overrule our precedents unless they’ve proven
    to be unpersuasive and unworkable, create more harm than good, and
    haven’t created reliance interests. See Eldridge v. Johndrow, 
    2015 UT 21
    ,
    ¶ 22, 
    345 P.3d 553
    ; Utah Dep’t of Transp. v. Admiral Beverage Corp., 
    2011 UT 62
    , ¶¶ 16–17, 
    275 P.3d 208
    (“[W]e may overturn our precedent
    [when] more good than harm will come by departing from precedent”
    and the precedent “is simply unworkable in practice.” (citation
    omitted) (internal quotation marks omitted)); see also Helf v. Chevron
    U.S.A. Inc., 
    2015 UT 81
    , ¶ 92, 
    361 P.3d 63
    (Lee, A.C.J., dissenting)
    (“Unless and until our decisions become unworkable . . . they are
    worthy of respect.”).
    ¶ 58 And transparency in the decision-making process and respect
    for our precedent require more than a bare, technical refusal to
    overrule. “[L]aying just claim to be honoring stare decisis requires more
    than beating [precedent] to a pulp and then sending it out to the lower
    courts weakened, denigrated, more incomprehensible than ever, and
    yet somehow technically alive.” Hein v. Freedom from Religion Found.,
    Inc., 
    551 U.S. 587
    , 636 (2007) (Scalia, J., concurring in the judgment); see
    also Geoffrey R. Stone, The Roberts Court, Stare Decisis, and the Future of
    23
    NEESE v. PAROLE BOARD
    Opinion of the Court
    Constitutional Law, 82 TUL. L. REV. 1533, 1534 (2008). In short, respect for
    stare decisis requires us to “extend a precedent to the conclusion
    mandated by its rationale.” Richard L. Hasen, Anticipatory Overrulings,
    Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices
    Move the Law, 61 EMORY L.J. 779, 780 (2012) (citation omitted).
    ¶ 59 The dissent doesn’t even attempt to explain how Labrum’s
    principles are consistent with denying Mr. Neese the due process
    protections he seeks. Instead, the dissent simply tells us to confine
    Labrum to its facts on the grounds that Labrum got it wrong. Infra
    ¶¶ 125, 166. This is not a faithful application of our precedent; rather, it
    is “fail[ing] to extend a precedent to the conclusion mandated by its
    rationale.” Hasen, Anticipatory 
    Overrulings, supra, at 780
    (citation
    omitted). It’s also not how we should do business. We’re an adversarial
    court that ought not upend our precedents absent argument from the
    parties that they be overruled. See State v. Steed, 
    2015 UT 76
    , ¶ 11 n.9,
    
    357 P.3d 547
    (The concurrence argues “that we should overrule
    McBride. We decline to do so, however, because neither party has asked
    us to overrule the case nor argued that it applies in the manner that [the
    concurrence] suggests.” (citation omitted)); see also supra ¶ 39. Absent a
    persuasive invitation to overrule our precedents, we give them a full
    and fair application to the facts before us.
    ¶ 60 Here, Labrum’s full measure commands that we extend
    additional procedural protections to an inmate, like Mr. Neese, whom
    the Parole Board seeks to adjudicate a sex offender based solely on
    previously unadjudicated allegations that he’s committed a sexual
    offense. Labrum rested on the proposition that “original release
    hearings”—such as the hearing at issue here—“are analogous to
    sentencing hearings and require due process to the extent that the
    analogy holds.” 
    Labrum, 870 P.2d at 908
    . The corollary of this
    proposition is that this court must announce “procedural safeguards . . .
    to ensure the accuracy and fairness of [Parole] Board decisions in
    original parole grant hearings.” 
    Id. at 912;
    see 
    id. at 910
    (“Accuracy and
    fairness are essential in proceedings which impinge as directly on
    personal liberty as original parole grant hearings.”). As we’ve
    explained, a faithful application of this framework requires providing
    inmates the opportunity to call witnesses and requires the Parole Board
    to explain its decision when it decides to consider unadjudicated
    allegations of sexual misconduct in setting an inmate’s sentence. Supra
    ¶¶ 25–34.
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    ¶ 61 The dissent would have us provide only the specific
    procedural protections that Labrum required—not additional
    protections based on application of the Labrum framework, which the
    dissent fairly characterizes as Labrum’s “premises.” Infra ¶ 125. These
    premises are the rationale of the decision, the engine that drives the
    Labrum machine. “For all intents and purposes, adoption of [Utah’s]
    indeterminate sentencing system transformed the [Parole] Board from
    an agency having the ability to shorten a prisoner’s judge-determined
    sentence into an agency with power analogous to that of a court to
    actually impose a sentence. Therefore,” we’ve held, “the [Parole]
    Board’s decision of whether to grant parole does implicate the
    offender’s liberty interest because at the time an offender first comes
    before the [Parole] Board, no term of incarceration has been fixed.” Neel
    v. Holden, 
    886 P.2d 1097
    , 1101 (Utah 1994). “[B]y acknowledging . . . that
    the parole function is a complex, multi-dimensional proceeding which
    includes sentencing, we have opened the door to a more extensive review
    of the constitutional adequacy of procedures that the [Parole] Board,
    and probably the legislature, would prefer to exclude from such
    review.” 
    Padilla, 947 P.2d at 669
    (quoting 
    Labrum, 870 P.2d at 911
    ).
    ¶ 62 Labrum’s rationale has thus set the terms of analysis that this
    court has used to analyze the due process protections to which inmates
    at an original parole grant hearing are entitled. Based on the analogy
    between original release hearings and sentencing proceedings, we’ve
    held that an inmate “is entitled to access psychological reports to be
    considered by the [Parole] Board in hearings at which the inmate’s
    release date may be fixed or extended.” 
    Neel, 886 P.2d at 1103
    . In
    reaching this decision, we drew on the rationale underlying
    defendants’ rights to information in connection with sentencing
    proceedings. See 
    id. (“This rationale
    [drawn from sentencing decisions]
    guides our decision in the present case.”). We also “grounded” our
    holding “on concerns about [ensuring] the factual accuracy of the
    information contained in the [Parole] Board’s files.” 
    Id. at 1102
    (citation
    omitted). And we held—as we do here—that this procedural right was
    not unlimited: “due process does not require the disclosure of
    confidential information when that disclosure might lead to harm of a
    third person.” 
    Id. at 1103
    (citation omitted).
    ¶ 63 Labrum also sets the terms of our analysis when we reject
    inmates’ arguments for additional procedural protections. In Monson v.
    Carver, 
    928 P.2d 1017
    (Utah 1996), for example, while we agreed that
    inmates were entitled to test the accuracy of a restitution order, we held
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    NEESE v. PAROLE BOARD
    Opinion of the Court
    that an inmate was not allowed to call character witnesses because the
    inmate had not shown that the proffered testimony had “anything to
    do with substantially furthering the accuracy and reliability of the
    [Parole] Board’s fact-finding process.” 
    Id. at 1030.
    We likewise refused
    the inmate’s request for a lawyer on the grounds that he’d “failed to
    show how the ‘participation of counsel at the hearing would have
    affected the accuracy of the information considered by the [Parole]
    Board.’” Id. (quoting 
    Neel, 886 P.2d at 1103
    ). In each case, we explained
    that our holding rested on the basic premise that “if an inmate fails to
    demonstrate how a particular procedural requirement will
    substantially further the [Parole] Board’s fact-finding process, we have
    no basis for concluding that a failure to provide that procedure
    operated to deny the inmate due process.” 
    Id. (citation omitted).
        ¶ 64 If we were to follow the dissent’s lead, we’d undercut the
    foundations of this entire line of cases. Their discrete procedural
    protections would remain, but there would be no coherence to those
    protections, and the Parole Board, the lower courts, and future litigants
    would be left without guidance on how to reason about our precedent
    in this field. Depending on the specific composition of this court, those
    precedents would either have new life breathed into them or they
    would come in for repeated, sustained criticism, until, one day, they
    found themselves overruled.
    ¶ 65 This can’t be what respect for stare decisis—indeed, respect for
    the rule of law—allows. “If this Court is to decide cases by rule of law
    rather than show of hands, we must surrender to logic and choose
    sides . . . .” 
    Hein, 551 U.S. at 618
    (Scalia, J., concurring in the judgment).
    As nobody has asked us to overrule Labrum and its progeny, much less
    met the heavy burden of showing that they ought to be overruled, we
    must apply them fairly, according not just to their specific dispositions,
    but to the underlying logic they embody. This is what our opinion
    today does.
    B. The Original Meaning of Due Process
    ¶ 66 Our commitment to stare decisis and resolving disputes
    according to the adversarial process thus counsels against discarding
    Labrum and reaching for the original meaning of the due process
    provision. And, ironically, the dissent’s own originalist analysis
    underscores the wisdom of our historiographical restraint. Without the
    benefit of adversarial briefing, the dissent makes two historical claims:
    (1) that, on its original understanding, the due process provision likely
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    wouldn’t have been understood to apply to sentencing or parole
    proceedings, infra ¶¶ 165–66; and (2) that, even if it did, Mr. Neese
    received all the process he was entitled to under the original
    understanding of the due process provision, infra ¶¶ 170–73.
    ¶ 67 We agree with the dissent that this court should look to the
    original meaning of the Utah Constitution when properly confronted
    with constitutional issues. But we don’t think we should revisit our
    precedent without prompting from the parties and based exclusively
    on our own review of ratification-era common law and other historical
    sources. “The lack of adversarial briefing on the issues explored . . . is
    troubling.” Meza v. State, 
    2015 UT 70
    , ¶ 40, 
    359 P.3d 592
    (Lee, A.C.J.,
    concurring in part and concurring in the judgment). To show the
    problem with exploring these issues without the benefit of adversarial
    briefing, we take this opportunity to illustrate how the dissent’s
    historiography may be incomplete. 7
    1. The Original Scope of Due Process: Sentencing and Parole
    ¶ 68 The dissent begins by questioning whether, on the original
    understanding of the due process provision, due process protections
    would have been understood to apply to post-trial proceedings, such as
    sentencing proceedings and parole hearings.
    ¶ 69 The heart of the dissent’s historical case is the supposed
    absence of Reconstruction and Gilded Age case law applying due
    process protections to discretionary sentencing proceedings. The
    dissent sees in this absence “an important ‘dog that didn’t bark’”—“[i]f
    the generation of the framing of the Utah Constitution viewed the
    constitutional guarantee of due process of law to attach to sentencing
    proceedings, surely,” the dissent suggests, “someone would have
    raised the argument.” Infra ¶ 163. And the dissent thinks it knows why
    due process didn’t apply to these proceedings (or, later, to early parole
    proceedings). Any sentence less than the statutory maximum—and any
    decision by a parole board to release an inmate early—was “an act of
    7 In his opinion concurring in part and dissenting in part, the Chief
    Justice suggests that in highlighting why we believe the dissent’s
    historical analysis may be incomplete, we have somehow put “a thumb
    on the scale.” Infra ¶ 118. That is not our intent and we disavow any
    language that might suggest otherwise.
    27
    NEESE v. PAROLE BOARD
    Opinion of the Court
    grace—a grant of greater liberty than the defendant was entitled to.”
    Infra ¶ 164 (footnote omitted).
    ¶ 70 We’re hesitant to come to any definite conclusions about this
    history without the benefit of adversarial briefing. And our own
    independent review of the historical record illustrates why. When we
    examine the historical record, we don’t see as clearly as the dissent a
    settled view that due process protections didn’t apply to sentencing or
    parole proceedings. On this point, the dissent’s historical review falls
    short in three respects: (a) it overlooks a body of law that appears to
    apply procedural protections to sentencing, (b) it overlooks plausible
    competing explanations for why courts didn’t address sentencing due
    process questions more frequently than they did, and (c) its attempt to
    explain why due process might not have been thought to extend to
    sentencing proceedings—because Gilded Age penologists were in the
    grips of a “grace” conception of sub-maximum sentencing and parole—
    may be historically inaccurate.
    a. Examples from the body of eighteenth- and nineteenth-century
    cases that applied procedural protections to sentencing
    ¶ 71 Contrary to the dissent, it appears to us that the reports may
    contain notable examples of cases that applied procedural protections
    to sentencing proceedings. 8 For the contrary view, the dissent relies
    heavily on Williams v. New York, 
    337 U.S. 241
    (1949). Relying on
    Williams, the dissent tells us that “historically, ‘strict evidentiary
    procedural limitations’ governed proceedings where the ‘question for
    consideration [was] the guilt of the defendant,’ but during sentencing, a
    judge was not ‘hedged’ by procedural rules and ‘could exercise a wide
    discretion.’” Infra ¶ 159 n.36 (alteration in original) (quoting 
    Williams, 337 U.S. at 245
    –46); see also infra ¶ 161 (“The due-process clause should
    not be treated as a device for freezing the evidential procedure of
    sentencing in the mold of trial procedure.” (quoting 
    Williams, 337 U.S. at 251
    )); infra ¶ 171 n.52 (“We must recognize that most of the
    information now relied upon by judges to guide them in the intelligent
    imposition of sentences would be unavailable if information were
    8 What does appear to be absent from the reports are any cases in
    which a sentencing body based its sentence on a determination that the
    defendant had committed a hitherto unadjudicated, unadmitted
    criminal offense. This suggests to us that such a basis might well have
    been thought to run afoul of basic constitutional norms.
    28
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                             Opinion of the Court
    restricted to that given in open court by witnesses subject to cross-
    examination.” (quoting 
    Williams, 337 U.S. at 250
    )).
    ¶ 72 Williams, in turn, relied on State v. Reeder, 
    60 S.E. 434
    (S.C.
    1908). It appears to us, however, that Reeder and the cases on which it
    relied may stand for the proposition that sentencing judges must adhere
    to norms of due process when settling on a sentence. The issue in Reeder
    was whether the sentencing court should have accepted into evidence
    affidavits “tending greatly to aggravate the 
    crime.” 60 S.E. at 435
    . The
    Reeder court held that these affidavits were admissible at sentencing.
    But it based this holding not on the absence of procedural protections at
    sentencing, but rather on its view that due process requires sentencing
    courts to receive a wide range of reliable information:
    The American cases lay down the principle that, where it
    devolves upon the court to determine the punishment
    either upon the finding or upon the plea of guilty, it is the
    correct practice for it to hear evidence in aggravation or
    mitigation, as the case may be, where there is any
    discretion as to the punishment. It has likewise been held
    that evidence of the moral character of the accused is
    competent to guide the court in determining the
    punishment to be imposed.
    
    Id. (emphasis added)
    (citations omitted).
    ¶ 73 The cases on which Reeder relies may also stand for the
    proposition that procedural protections apply at sentencing. Reeder was
    a follow-up case to a much earlier South Carolina case: State v. Smith, 2
    S.C.L. (2 Bay) 62 (S.C. Ct. Const. App. 1796). The issue in Smith was
    whether the defendant should have been allowed to submit mitigating
    evidence to the sentencing court. 
    Id. at 62–63.
    The Constitutional Court
    of Appeals of South Carolina held that the sentencing court had erred
    in excluding that mitigating evidence. It held that defendants must be
    allowed to submit mitigating evidence “on affidavits, a reasonable time
    before sentence is pronounced.” 
    Id. It further
    elaborated substantial
    procedural protections for defendants at sentencing, holding that
    in order to guard against a failure of justice, by the non-
    attendance of witnesses to give testimony of such
    extenuating circumstances as a defendant may be
    desirous of submitting to the court on the sentence day . . .
    a defendant [is] entitled to a subpoena, as a matter of
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    NEESE v. PAROLE BOARD
    Opinion of the Court
    right, to compel the attendance of witnesses on such
    occasions, as well as on trials of issues before a jury.
    
    Id. at 63.
    These protections bear a remarkable resemblance to those we
    provide Mr. Neese today.
    ¶ 74 The other cases on which Reeder relied likewise appear to
    potentially recognize the importance of procedural protections in
    connection with sentencing. In Kistler v. State, for example, the Supreme
    Court of Indiana held that the court had erred in failing to allow the
    defendant to “make . . . proof” of mitigating evidence, as well as
    evidence of his good character, at trial. 
    54 Ind. 400
    , 403 (1876). It based
    this decision on Indiana’s cruel and unusual punishments clause, its
    proportionate punishment provision, and “the principles of natural
    justice and of an enlightened public policy.” 
    Id. Similarly, in
    People v.
    Vermilyea, Chief Justice Savage stated that a sentencing court must be
    allowed to consider “the circumstances in evidence” in meting out
    punishment—implying that circumstances not properly in evidence
    couldn’t be considered. 
    7 Cow. 108
    , 143 (N.Y. Sup. Ct. 1827) (emphasis
    added). 9
    9   Each of these cases is also notable for its insistence—really
    presupposition—that all evidence before a sentencing court must be
    sworn. See State v. Reeder, 
    60 S.E. 434
    , 435 (S.C. 1908) (“[I]t is the correct
    practice for [the court] to hear evidence in aggravation or mitigation, as
    the case may be, where there is any discretion as to the punishment.”
    (emphasis added)); Kistler v. State, 
    54 Ind. 400
    , 403 (1876) (court must
    “hear evidence in aggravation or mitigation . . . where there is any
    discretion as to the punishment”); People v. Vermilyea, 
    7 Cow. 108
    , 143
    (N.Y. Sup. Ct. 1827) (requiring sentencing courts to consider “the
    circumstances in evidence”); State v. Smith, 2 S.C.L. (2 Bay) 62, 62–63
    (S.C. Const. Ct. App. 1796) (“[A]ll such extenuating circumstances
    should be submitted to the court, on affidavits, a reasonable time before
    sentence is pronounced.” (emphasis added)). It’s hard to overstate the
    crucial importance that the eighteenth and nineteenth centuries placed
    on the power of oaths to assure the reliability of evidence. See, e.g., 1
    SIMON GREENLEAF, A TREATISE ON THE LAW OF EVIDENCE 377 (Boston,
    Little & Brown 1842) (“[O]ne of the main provisions of the law, for the
    purity and truth of oral evidence, is, that it be delivered under the
    sanction of an oath. Men in general are sensible of the motives and
    restraints of religion, and acknowledge their accountability to that
    (cont.)
    30
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    ¶ 75 So, contrary to the dissent, it appears to us that procedural
    protections may have been understood to apply to sentencing
    proceedings in the period leading up to ratification of the Utah
    Constitution.
    ¶ 76 And there are other reasons to think that the dissent may have
    understated the procedural protections courts devised to ensure
    fairness in sentencing during the eighteenth and nineteenth centuries.
    The eighteenth and nineteenth centuries were a time that didn’t sharply
    Being, from whom no secrets are hid.”); Michael W. McConnell, The
    Origins and Historical Understanding of Free Exercise of Religion, 103
    HARV. L. REV. 1409, 1467 (1990) (“The oath requirement was the
    principal means of ensuring honest testimony and of solemnizing
    obligations. At a time when perjury prosecutions were unusual,
    extratemporal sanctions for telling falsehoods or reneging on
    commitments were thought indispensable to civil society.”). By
    requiring that the evidence be sworn, these courts placed great weight
    on ensuring the reliability of evidence in sentencing proceedings. At
    least one nineteenth-century court expressed concern with a statutory
    scheme for the commitment of the insane in part on the grounds that it
    authorized an investigation to be commenced based on “the filing of an
    information not even sworn to by anybody”—an authorization that, in
    the court’s view, “opened the door to wrong and injustice[,] to the
    making of very serious and unwarranted charges against others by
    wholly irresponsible and evil-minded persons.” State ex rel. Blaisdell v.
    Billings, 
    57 N.W. 794
    , 795 (Minn. 1894). But oaths have largely lost their
    power today. See Albert W. Alschuler, A Peculiar Privilege in Historical
    Perspective: The Right to Remain Silent, 94 MICH. L. REV. 2625, 2632 (1996)
    (“The coercive power of an oath stemmed partly from its mystic and
    religious significance, a significance that modern observers may not
    fully appreciate.”). And because of this, we should hesitate to infer
    from the absence of alternative required procedures for assuring the
    reliability of evidence that the underlying principles of due process in
    the eighteenth and nineteenth centuries wouldn’t have required
    alternative procedures in those places where the oath had lost its sway.
    Cf. infra ¶ 153 (“Thoughtful originalists . . . view the constitution—like
    all law—as consisting of legal principles expressed by the public
    understanding of its terms. But they do not foreclose new applications of
    those principles to circumstances unknown to the past.”).
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    NEESE v. PAROLE BOARD
    Opinion of the Court
    distinguish between the guilt phase and the sentencing phase. As a
    consequence, many trial-level procedural protections may also have
    functioned as sentencing protections. For example, in United States v.
    Wynn, 
    11 F. 57
    (C.C.E.D. Mo. 1882), an appellate court reduced a
    defendant’s sentence in light of its concern that a constitutional error
    had infected the guilt phase of the defendant’s trial. 
    Id. at 57–58.
    And an
    early New York Court of Appeals case—Shepherd v. People—reversed a
    defendant’s conviction, and dismissed the criminal case against him, on
    the basis that his sentence was illegal. 
    25 N.Y. 406
    , 406–07 (1862). And
    the remedy in Shepherd was “typical of the early [sentencing appeals]
    cases.” Livingston Hall, Reduction of Criminal Sentences on Appeal: I, 37
    COLUM. L. REV. 521, 525 n.17 (1937).
    ¶ 77 The dissent may also underestimate the degree to which jury
    sentencing prevailed in the nineteenth century. It appears that a
    comparatively small fraction of eighteenth- and nineteenth-century
    sentences were truly set by a judge. Thus, scholars have discovered that
    “[o]nly a small fraction of eighteenth-century criminal trials [at the Old
    Bailey] were genuinely contested inquiries into guilt or innocence” and
    that the great majority “were sentencing proceedings”—“[t]he main
    object of the defense was to present the jury with a view of the
    circumstances of the crime and the offender that would motivate it to
    return a verdict within the privilege of clergy, in order to reduce the
    sanction . . . .” John H. Langbein, Shaping the Eighteenth-Century
    Criminal Trial: A View from the Ryder Sources, 50 U. CHI. L. REV. 1, 41
    (1983). This practice also appears to have continued into the nineteenth
    century. “[F]rom 1800 to 1900, juries imposed sentences in noncapital
    cases in about half of all the states,” and “[a] handful of other states
    permitted juries in noncapital cases to make sentencing
    recommendations.” Morris B. Hoffman, The Case for Jury Sentencing, 52
    DUKE L.J. 951, 964 (2003) (citations omitted). Moreover, “[e]ven in those
    states that invested trial judges with the exclusive power to sentence,
    their discretion . . . was mostly a mirage. . . . As late as 1870, state
    legislatures commonly set a specific period of incarceration for each
    offense.” 
    Id. at 964–65
    (footnote omitted) (citations omitted); see also
    Jenia Iontcheva, Jury Sentencing as Democratic Practice, 89 VA. L. REV.
    311, 319 & n.40 (2003) (noting the widespread prevalence of jury
    sentencing and observing that “[e]ven in jurisdictions where no direct
    jury sentencing existed, determinate sentencing regimes allowed jurors
    to influence sentencing circuitously . . . by acquitting defendants of
    some charges, despite clear evidence of guilt”—a practice known as
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    “pious perjury”). So, to the extent that the nineteenth century was an
    era of jury sentencing, the absence of appellate cases applying
    procedural protections to the “sentencing phase” of a criminal
    proceeding tells us less than we might think about whether due process
    protections applied at sentencing. 10
    ¶ 78 And there’s good reason to think due process protections may
    have applied at sentencing. For example, many appellate courts during
    the late eighteenth and nineteenth centuries insisted that defendants
    must be allowed to introduce evidence of their good character. See, e.g.,
    
    Reeder, 60 S.E. at 435
    ; State v. Hice, 
    23 S.E. 357
    , 357 (N.C. 1895) (“In all
    cases a person accused of a crime of any grade, whether a felony or a
    misdemeanor, has a right to offer in his defense testimony of his good
    character.” (citations omitted)); Remsen v. People, 
    43 N.Y. 6
    , 8 (1870)
    (“It was error to charge the jury that in any case evidence of good
    character would be of no avail.”). While the historical record is sparse,
    courts appear to have been well aware that character evidence was
    often introduced for sentencing purposes, to allow the jury to decide
    whether it should exercise mercy either through jury nullification or
    “pious perjury” or through the direct sentencing decisions with which
    it was entrusted. See Michael Coenen, Of Speech and Sanctions: Toward a
    Penalty-Sensitive Approach to the First Amendment, 112 COLUM. L. REV.
    991, 1043 n.217 (2012) (“[I]t was not uncommon for English juries—
    sometimes with the encouragement of their overseeing judges—to
    commit what Blackstone called ‘pious perjury,’ deliberately convicting
    defendants of lesser charges so as to spare them from especially harsh
    punishments.” (citation omitted)); see also Daniel D. Blinka, Character,
    Liberalism, and the Protean Culture of Evidence Law, 37 SEATTLE U. L. REV.
    87, 123 (2013) (“[T]he character of the accused or the victim, both in the
    sense of disposition and reputation, was of ‘fundamental importance’
    to juries and judges as they exercised their discretion.” (citation
    omitted)).
    ¶ 79 In short, we’re unconvinced of the dissent’s sweeping
    pronouncement that due process protections didn’t apply to
    10 Kistler v. State, discussed above at paragraph 74, serves as an
    example of both the intermingling of the guilt and sentencing phases
    and jury sentencing in the latter half of the nineteenth century. 
    54 Ind. 400
    .
    33
    NEESE v. PAROLE BOARD
    Opinion of the Court
    sentencings or sentencing proceedings. Before we would be willing to
    reach this issue we would, at minimum, need guidance from counsel.
    b. Competing explanations for why courts didn’t address
    sentencing due process questions more frequently than they did
    ¶ 80 Even if the dissent is right that there were comparatively few
    cases applying due process protections to sentencing proceedings in the
    eighteenth and nineteenth centuries than today, it still wouldn’t be
    obvious to us that this “dog that didn’t bark”—or barely barked—
    authorizes the inference that courts didn’t think due process
    protections extended to sentencing. Infra ¶ 163. This is because it
    appears the dog was, at least, trebly muzzled.
    ¶ 81 First, there’s significant authority for the proposition that
    appellate courts perceived their jurisdiction over criminal appeals—
    that is, their authority to even entertain challenges to process at trial or
    sentencing—to be quite limited. For most of the nineteenth century, the
    United States Supreme Court held that section 22 of the First Judiciary
    Act of 1789 barred it from exercising appellate jurisdiction over
    criminal cases, United States v. More, 
    7 U.S. 159
    , 172–73 (1805), unless a
    trial court certified a legal question to it under section 6 of the Act of
    April 29, 1802, see Briana Lynn Rosenbaum, Righting the Historical
    Record: A Case for Appellate Jurisdiction over Appeals of Sentences for
    Reasonableness Under 28 U.S.C. § 1291, 62 HASTINGS L.J. 865, 880–81
    (2011) (“[W]hile the Act of 1802 made review of [trial] decisions
    possible . . . defendants ‘had no right to ask for’ certificat[ion] to the
    Supreme Court . . . .” (citation omitted)); see also Hoffman, The Case for
    Jury 
    Sentencing, supra, at 964
    (“Federal courts had virtually no role in
    the criminal process in the early republic, let alone a sentencing role.
    Federal criminal law did not begin to become a significant part of the
    national criminal firmament until Prohibition.” (citation omitted)).
    Similarly, “[a]ppellate review [of criminal matters] in the states
    remained quite limited well into the mid-1800s. The number of cases
    heard by state appellate courts remained quite small into the 1900s.”
    7 WAYNE R. LAFAVE ET AL., CRIM. PROC. § 27.1(a) n.3 (4th ed. 2016)
    (citation omitted); see also Martinez v. Court of Appeal of Cal., Fourth
    Appellate Dist., 
    528 U.S. 152
    , 159 (2000) (“The States . . . did not generally
    recognize an appeal as of right until Washington became the first to
    constitutionalize the right explicitly in 1889. There was similarly no
    right to appeal in criminal cases at common law, and appellate review
    of any sort was limited and rarely used.” (citation omitted) (internal
    quotation marks omitted)).
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    ¶ 82 This rule of non-reviewability may have been applied with
    special force in sentencing matters. As Professor LaFave explains, “[t]he
    traditional position in this country . . . has been that ‘once it is
    determined that a sentence is within the limits set forth in the statute
    under which it is imposed, appellate review is at an end.’” 6 WAYNE R.
    LAFAVE ET AL., CRIM. PROC. § 26.3(g) (4th ed. 2016) (citation omitted); see
    Notes and Comments, Appellate Review of Sentencing Procedure, 74 YALE
    L.J. 379, 380 (1964) (“It has long been a uniform policy of federal
    appellate courts not to consider a sentence within the statutory
    limits.”); see also Gurera v. United States, 
    40 F.2d 338
    , 340–41 (8th Cir.
    1930) (“If there is one rule in the federal criminal practice which is
    firmly established, it is that the appellate court has no control over a
    sentence which is within the limits allowed by a statute.”). Thus, part of
    the explanation for any apparent dearth of case law applying
    procedural rights to sentencing proceedings may well be the rules and
    norms of criminal appellate practice—which limited review of these
    proceedings—as opposed to the appellate courts’ considered
    conclusion that due process norms simply didn’t apply.
    ¶ 83 Second, while the evidence is sparse, it appears that there may
    have been significantly fewer prosecutions, in the nineteenth century
    than today. See, e.g., Paul J. Larkin, Jr., Public Choice Theory and
    Overcriminalization, 36 HARV. J.L. & PUB. POL’Y 715, 728, 779 (2013)
    (noting explosive growth in the criminal justice system during the
    twentieth century). And, when a prosecution did arise, it was often
    poorly handled; the quality of the prosecution bar in nineteenth-
    century America was notoriously poor. See Robert M. Ireland, Privately
    Funded Prosecution of Crime in the Nineteenth-Century United States,
    39 AM. J. LEGAL HIST. 43, 43 (1995) (noting the serious “want of talent
    within the office of public prosecutor”). To the extent there were fewer
    prosecutions and more acquittals, this too provides a competing
    explanation for the comparative dearth of reported appellate
    sentencing decisions.
    ¶ 84 Finally—even bracketing the norms against criminal appeals
    and the comparative dearth of prosecutions in the nineteenth century—
    the pattern of criminal appeals in the run-up to ratification appears to
    have been significantly different from today. The dissent thinks it
    obvious that, had a defendant thought he might enjoy due process
    rights in a sentencing proceeding, the defendant would surely have
    “raised” that argument on appeal. Infra ¶ 163. But, as we’ve explained,
    “there usually was only limited appellate review of criminal
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    NEESE v. PAROLE BOARD
    Opinion of the Court
    convictions.” Thomas Y. Davies, Symposium, Correcting Search-and-
    Seizure History: Now-Forgotten Common-Law Warrantless Arrest Standards
    and the Original Understanding of “Due Process of Law,” 77 MISS. L.J. 1, 175
    (2007). And even when they did have the opportunity to appeal,
    defendants didn’t always have access to appellate counsel. See Douglas
    v. California, 
    372 U.S. 353
    (1963) (recognizing right to counsel on appeal
    for the first time); see also Benjamin H. Barton, Against Civil Gideon (and
    for Pro Se Court Reform), 62 FLA. L. REV. 1227, 1265 (2010) (“[A]t the time
    of the passage of the Fourteenth Amendment, there was not a well-
    established right to appointed counsel. The mid-19th Century was, in
    fact, a time of court deprofessionalization where in many states there
    were virtually no requirements for admission to the bar and pro se
    practice was quite common.” (citation omitted)). Moreover, even
    though “states began to codify existing criminal procedure standards
    during the mid to late nineteenth century,” “criminal procedure
    remained primarily a judicial rather than legislative matter,” which
    meant that “state courts were rarely called upon to assess the
    constitutionality of statutes that dealt with criminal procedure”—they
    could preserve due process through the common law. Davies,
    Correcting Search-and-Seizure 
    History, supra, at 175
    (citation omitted).
    Additionally, the formalistic approach of many nineteenth-century
    courts may have made it far more likely that a criminal appeal would
    result in a reversal of conviction—not a sentencing review. As Professor
    Friedman explains:
    Between 1870 and 1900 there are persistent complaints
    that some state supreme courts behaved as if their chief
    function was to reverse decisions of their lower courts for
    technical errors . . . . [E]xcesses in behavior were most
    striking in criminal appeals. Harwell, the defendant in a
    Texas case decided in 1886, had been arrested and
    convicted for receiving stolen cattle. The Texas court
    reversed, because, among other things, the jury found the
    defendant “guity” instead of “guilty.” . . . The same court,
    however, magnanimously upheld a conviction of “guily”
    in 1879, proving that a “t” was less crucial than an “l” in
    the common law of Texas.
    LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 398–400 (2d ed.
    1985) (citations omitted). Indeed, according to Professor Friedman,
    between 1875 and 1887, the Texas Court of Appeals “had reversed 1,604
    criminal cases, and affirmed only 882—a margin of almost two to one.”
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    Id. at 399
    (“In one volume of reports, there were five reversals to every
    single affirmance.”). But this means that the appellate courts had far
    fewer occasions to redress sentencing errors—they were too busy
    reversing convictions!
    ¶ 85 In short, even to the extent the dissent is right about the lack
    of cases articulating procedural protections applicable to sentencing,
    the inference it draws from this “dog that didn’t bark” ignores potential
    competing explanations that don’t imply that the original
    understanding of due process didn’t extend to sentencing and parole
    proceedings. We think it would be rash to overturn our precedent, and
    announce new due process standards under the Utah Constitution,
    based on a chain of historical inferences that may well be misleading or
    incomplete, and that certainly haven’t been tested by the adversarial
    process.
    c. Grace
    ¶ 86 A key lemma in the dissent’s argument for why due process
    didn’t extend to sentencing and parole proceedings is the idea that a
    sentence below the statutory maximum—or a grant of parole before an
    indeterminate term had expired—was thought to be an act of “grace.”
    Infra ¶ 164. If true, this theory might help explain why nineteenth-
    century constitutional actors lacked concern about due process
    protections in sentencing and parole proceedings: mercy, one might
    argue, isn’t a liberty interest.
    ¶ 87 Again, however, while we’re nervous to fly blind, it appears
    to us that the dissent may well be mistaken about the prevalence of the
    “grace” conception of parole. The academic literature supports the
    notion that parole’s progenitors embraced a “medical model of
    criminality.” Julia L. Black, Note, The Constitutionality of Federal
    Sentences Imposed Under the Sentencing Reform Act of 1984 after Mistretta
    v. United States, 75 IOWA L. REV. 767, 771 n.52 (1990) (quoting JANET
    SCHMIDT, DEMYSTIFYING PAROLE 4–5 (1977)). On this model, parole was
    not a matter of grace. Instead, parole determinations “emphasized the
    role of treatment in helping the criminal to understand the external
    forces causing his or her ‘sickness,’” 
    id. at 771
    n.51 (quoting SCHMIDT,
    DEMYSTIFYING PAROLE, at 4). Parole and the indeterminate sentence,
    Professor Friedman explains, were “based on a simple theory.”
    LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 597 (2d ed.
    1985).
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    NEESE v. PAROLE BOARD
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    No judge was wise enough to tell when a prisoner would
    be “cured.” Prison officials, on the other hand, had the
    prisoner in view every day. A criminal should be locked
    up as long as he was “unfit to be free.” He was the
    “arbiter of his own fate”; he carried “the key of his prison
    in his own pocket.” The indeterminate sentence, then,
    emphasized the character and background of the
    offender.
    
    Id. But this
    casts doubt on the dissent’s explanation of why procedural
    protections weren’t thought to apply to sentencing and parole
    proceedings. If those proceedings weren’t merely merciful acts of grace,
    but were, instead, supposed to be responsive to an inmate’s prospects
    for rehabilitation, then it makes little sense for courts to have been
    unconcerned with the standards that might apply to the ascertainment
    of those prospects. And today, of course, all parties to a sentencing fully
    expect reasoned, well thought out Parole Board decisions about when
    an inmate should be released from prison—not random acts of mercy.
    ¶ 88 In short, we are not confident in the dissent’s originalist
    analysis of the scope of the due process provision. We don’t mean to
    say that the dissent is wrong, only that, in the absence of adversarial
    briefing on the question, we don’t know the answer. We believe the
    appropriate course is to stay our hand on the question until such time
    that it’s fairly before us.
    2. The Original Content of Due Process: What’s in a Hearing?
    ¶ 89 The dissent also has a second line of attack: one focused on the
    content of the due process provision. That is, assuming the due process
    provision applies to parole proceedings, the dissent thinks it plain that
    Mr. Neese received all he was entitled to under the original
    understanding of the due process provision. According to the dissent,
    the Utah Constitution embodies a conception of due process on which
    due process is satisfied as long as an inmate receives “notice and an
    opportunity to be heard.” Infra ¶ 169. And the dissent thinks Mr. Neese
    got this: “[h]e was advised of the pendency of the parole hearing and
    given a chance to present his view on the questions presented.” Infra
    ¶ 170 (citation omitted). 11
    11We perceive some tension between this proposition and the view
    our dissenting colleague propounded in In re Adoption of K.A.S. See 2016
    (cont.)
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    ¶ 90 But in surveying the history of due process in the run up to
    ratification, we don’t perceive as clearly as the dissent does that
    constitutional due process protections required only minimal notice
    and opportunity to speak. Instead, it appears to us that the United
    States Supreme Court repeatedly explained during the period leading
    up to Utah’s admission to the Union that due process had bite. It
    required hearings to be conducted according to those procedures that
    were “appropriate to the nature of the case.” Davidson v. New Orleans,
    
    96 U.S. 97
    , 105 (1877); see also Hagar v. Reclamation Dist. No. 108, 
    111 U.S. 701
    , 708 (1884) (“It is sufficient to observe here that by ‘due process’ is
    meant one which, following the forms of law, is appropriate to the case,
    and just to the parties to be affected.”). And it held that the courts, not
    the legislature, were supposed to decide what was “appropriate to the
    case” and “just to the parties.” 
    Hagar, 111 U.S. at 707
    –08. The propriety
    of procedures, said the Court, was to be ascertained “by the gradual
    process of judicial inclusion and exclusion”—that is, by judicial review
    of the fairness of procedures when those procedures were challenged in
    the courts. 
    Id. (emphasis added)
    (quoting 
    Davidson, 96 U.S. at 104
    ).
    ¶ 91 Applying this framework, the Court didn’t hesitate to strike
    down laws that shortcut fair process. One example is Chicago,
    UT 55, ¶ 82, 
    390 P.3d 278
    (Lee, A.C.J., dissenting) (“L.E.S.’s history [of
    the original meaning of the due process provision] falls short because it
    is at far too high a level of generality.”). There, Justice Lee surveyed the
    historical landscape and concluded that—on the prevalent
    understanding of due process principles at the time the Utah
    Constitution was enacted—due process required “regular allegations,
    opportunity to answer, and a trial according to some settled course of
    judicial proceedings.” 
    Id. ¶ 88
    (quoting Murray v. Hoboken Land &
    Improvement Co., 
    59 U.S. 272
    , 280 (1855)). It required “a right to notice
    and a meaningful opportunity to be heard.” 
    Id. ¶ 90
    (citation omitted).
    Here, however, the dissent argues that a litigant’s due process right to
    “trial according to some settled course of judicial proceedings,” 
    id. ¶ 88
    (citation omitted), his right to “a meaningful opportunity to be heard,”
    
    id. ¶ 90,
    requires no more than a “chance to present his view on the
    questions presented.” Infra ¶ 170. It doesn’t appear to us that the
    opportunity to speak on one’s own behalf is equivalent to a “trial” or a
    “meaningful opportunity to be heard.” In re Adoption of K.A.S., 
    2016 UT 55
    , ¶¶ 88, 90 (Lee, A.C.J., dissenting) (emphasis added).
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    NEESE v. PAROLE BOARD
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    Milwaukee and St. Paul Railway Co. v. Minnesota ex rel. Railroad Warehouse
    Commission, 
    134 U.S. 418
    (1890). In 1887, the Minnesota legislature—
    responding to pressures from the Granger Movement (farmers who felt
    gouged by the railways)—established a “railroad and warehouse
    commission” empowered to determine whether railroad rates were
    “unreasonable” or “unequal” and to fix them accordingly. 
    Id. at 418,
    434–35; see James W. Ely, Jr., The Railroad Question Revisited: Chicago,
    Milwaukee & St. Paul Railway v. Minnesota and Constitutional Limits on
    State Regulations, 12 GREAT PLAINS Q. 121, 121 (1992) (“Many
    midwestern and southern state legislatures enacted so-called Granger
    laws to control the price charged by railroads and related utilities, such
    as grain elevators and warehouses.”). After the Minnesota Supreme
    Court held that this commission’s decisions weren’t subject to judicial
    review, the Supreme Court granted a writ of error and reversed. Chi.,
    Milwaukee & St. Paul Ry. 
    Co., 134 U.S. at 458
    –59. This scheme, the Court
    held, violated due process because “[i]t deprive[d] the company of its
    right to a judicial investigation, by due process of law, under the forms
    and with the machinery provided by the wisdom of successive ages for
    the investigation judicially of the truth of a matter in controversy.” 
    Id. at 457.
           No hearing is provided for; no summons or notice to the
    company before the commission has found what it is to
    find, and declared what it is to declare; no opportunity
    provided for the company to introduce witnesses before the
    commission,—in fact, nothing which has the semblance of due
    process of law . . . .
    
    Id. (emphases added).
        ¶ 92 State courts behaved similarly. In State ex rel. Blaisdell v.
    Billings, for example, the Minnesota Supreme Court considered
    whether statutory procedures “relating to the commitment of insane
    persons to the state hospitals . . . violate the fourteenth amendment to
    the federal constitution, and are in conflict with a similar article in our
    state constitution, forbidding that any person shall be deprived of his
    life, liberty, or property without due process of law.” 
    57 N.W. 794
    , 794
    (Minn. 1894). Under the statute, whenever a probate judge or court
    commissioner “receive[d] information in writing . . . that there is an
    insane person in his county needing care and treatment,” they were
    required to deputize two physicians as “examiners in lunacy” to certify
    whether the person charged with insanity was mentally unsound. 
    Id. at 795.
    Once “satisfied that the person is insane,” the court commission or
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    probate judge had the authority to “commit[] him to the custody of the
    superintendent of” a mental institution. 
    Id. ¶ 93
    The Minnesota Supreme Court struck this statute down,
    holding that
    [t]o the person charged with being insane to a degree
    requiring the interposition of the authorities and the
    restraint provided for, there must be given notice of the
    proceeding, and also an opportunity to be heard in the
    tribunal which is to pass judgment upon his right to his
    personal liberty in the future. There must be a trial before
    judgment can be pronounced, and there can be no proper
    trial unless there is guarantied the right to produce
    witnesses and to submit evidence. . . . Any statute having
    for its object the deprivation of the liberty of a person
    cannot be upheld unless [these rights are] secured, for the
    object may be attained in defiance of the constitution, and
    without due process of law.
    
    Id. ¶ 94
    It appears to us, then, that the dissent’s reconstruction
    emphasizes only one due process theme from Gilded Age courts: the
    need to ensure flexibility in the procedures that new states must adopt,
    so as not to stifle the rapid industrial and geographic expansion
    characteristic of that “quick and active age.” Hurtado v. California, 
    110 U.S. 516
    , 529 (1884). But by myopically focusing on Hurtado, a case that
    foregrounded this theme, and failing to focus on those cases where the
    Court was more searching in its review of the process before it, the
    dissent disregards the potential continued vitality of due process
    protections during the Gilded Age.
    C. The Underlying Error in the Dissent’s Originalist Approach
    ¶ 95 In our view, the dissent’s originalist analysis rests on one
    fundamental error. Before we address that error, we note that we find
    much to commend in the dissent’s approach to originalism. We agree
    with the dissent that originalist inquiry must focus on ascertaining the
    “original public meaning” of the constitutional text. Infra ¶ 154.
    ¶ 96 We also agree that to ascertain the original public meaning of
    the constitutional text, we must ask what principles a fluent speaker of
    the framers’ English would have understood a particular constitutional
    provision to embody. See infra ¶ 154 n.33 (“[T]he predominant
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    NEESE v. PAROLE BOARD
    Opinion of the Court
    originalist theory” requires seekers of the original meaning to
    “interpret[] the Constitution according to how the words of the
    document would have been understood by a competent and reasonable
    speaker of the language at the time of the document’s enactment.”
    (quoting John O. McGinnis & Michael B. Rappaport, Original Methods
    Originalism: A New Theory of Interpretation and the Case Against
    Construction, 103 NW. U.L. REV. 751, 761 (2009))). See generally Keith E.
    Whittington, The New Originalism, 2 GEO. J.L. & PUB. POL’Y 599 (2004)
    (discussing evolution of originalism from “original intent” originalism
    to “original public meaning” originalism). This understanding is the
    original meaning—or meanings—of the constitutional text.
    ¶ 97 We part ways with the dissent’s originalist approach not in its
    end goal—figuring out what a person steeped in Gilded Age linguistic
    norms would’ve understood the constitutional language to express—
    but in the means appropriate to reaching this goal. In our view, the
    dissent’s application of originalism commits a key methodological
    error—an error that one scholar has recently called “atomistic
    translation”—translating the meaning of the constitutional text through
    a process of “term-for-term . . . substitution.” Jonathan Gienapp,
    Historicism and Holism: Failures of Originalist Translation, 84 FORDHAM L.
    REV. 935, 941–42 (2015).
    ¶ 98 The problem is that to understand what principle a fluent
    speaker of the framers’ English would have understood a particular
    constitutional provision to embody will often—though surely not
    always—require more than just examining the terms used and seeking
    to translate those terms into roughly equivalent contemporary English.
    What is missing from this approach is deep immersion in the shared
    linguistic, political, and legal presuppositions and understandings of
    the ratification era.
    ¶ 99      Linguistically, originalism will often require the
    constitutional interpreter to “access the semantics and pragmatics
    available to a competent speaker of American English at the time each
    provision was framed and ratified.” Lawrence B. Solum, Triangulating
    Public Meaning: Corpus Linguistics, Immersion, and the Constitutional
    Record       17    (Apr.     26,    2017)    (unpublished       manuscript),
    https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3019494            (The
    pragmatics will include presuppositions shared by the community of
    speakers at the time of ratification.); see also André LeDuc, Making the
    Premises About Constitutional Meaning Express: The New Originalism and
    Its Critics, 31 BYU J. PUB. L. 111, 117 (2016) (noting a recent trend within
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    originalism toward “incorporat[ing] pragmatic import as well as
    semantic meaning” into the concept of original public meaning). But
    the semantics and pragmatics of the founding era may well be radically
    different from contemporary linguistic norms and presuppositions. See
    RHYS ISAAC, THE TRANSFORMATION OF VIRGINIA 1740–1790 5 (1999)
    (“Whether one moves away from oneself in cultural space or in
    historical time, one does not go far before one is in a world where the
    taken-for-granted must cease to be so . . . . Ways must be found of
    attaining an understanding of the meanings that the inhabitants of
    other worlds have given to their own everyday customs.”). So
    originalism requires enough engagement with founding-era source
    materials that we may, without tacitly relying on contemporary
    linguistic assumptions, see what the operative constitutional phrases
    connoted.
    ¶ 100 Understanding many of the principles embodied in the Utah
    Constitution will also require fluency in the political and legal
    presuppositions and understandings of the ratification era. This is
    because many constitutional principles are just that—general, abstract
    principles. But this doesn’t mean that we may pour our own
    contemporary moral views into the constitutional text. Instead, we
    must seek to understand the requirements these principles would have
    been understood to embody by the founding generation, and we must
    apply those requirements to contemporary problems. We can’t do this
    without engaging the founding era’s political and legal
    understandings—“trac[ing] intellectual influences . . . [and] situat[ing]
    meaning in the flow of discursive activity”—in order to uncover the
    “presuppositions and silent logical connectives” that collectively
    formed the era’s understanding of the constitutional text, but that time
    has hidden from our view. 12 Gienapp, Historicism and 
    Holism, supra, at 955
    .
    12  In this respect we part ways with Professor Solum, who argues
    that originalist translation doesn’t require immersion in the “ideology
    . . . and ideas” of the ratification period, just its “semantics or
    pragmatics.” Lawrence B. Solum, Triangulating Public Meaning:
    Corpus Linguistics, Immersion, and the Constitutional Record 19 (Apr.
    26,              2017)            (unpublished             manuscript),
    https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3019494.
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    ¶ 101 The fundamental error in the dissent’s originalist analysis is
    that it doesn’t immerse itself in Gilded Age sources to uncover and
    elucidate the principles embodied in the due process provision. It
    commits this error at both the linguistic and ideological level.
    ¶ 102 Linguistically, the dissent relies heavily on Lucius Polk
    McGehee’s treatise to support its claim that “the precise means of
    notice and an opportunity to be heard are not enshrined in the
    guarantee of due process.” Infra ¶ 169. According to the dissent,
    Professor McGehee tells us that “‘[t]he basis of due process’ consists of
    ‘orderly proceedings and an opportunity to defend.’” Infra ¶ 169
    (quoting LUCIUS POLK MCGEHEE, DUE PROCESS OF LAW UNDER THE
    FEDERAL CONSTITUTION 2 (1906)). And the dissent takes this to mean
    that due process only requires a litigant to be given notice of “the
    pendency of [a] hearing and given a chance to present his view on the
    questions presented.” Infra ¶ 170.
    ¶ 103 At first blush, this is a reasonable construction. To our
    contemporary mind “orderly proceedings” and “an opportunity to
    defend” may very well sound like thin concepts. But a broader
    engagement with the relevant source material suggests to us that, at the
    time of ratification, these phrases may have connoted more robust
    restraints on the legislature than the dissent perceives. For example,
    Professor McGehee was surely aware of the Court’s remarks in Chicago,
    Milwaukee and St. Paul Railway Co., where the Court indicated that due
    process would sometimes require elaborate procedural protections,
    including the right to call witnesses. And other courts drew on
    Professor McGehee’s treatise for the proposition that the due process
    provision constrained the legislature’s authority to prescribe rules of
    evidence and procedure. See, e.g., State ex rel. Hurwitz v. North, 
    264 S.W. 678
    , 681 (Mo. 1924) (“The general rule is that the state Legislature has
    the right to prescribe rules of evidence and rules of procedure. Such
    rules and laws must be reasonable, and give to the party an opportunity
    to make a defense, for, if they preclude a full defense, they would
    violate due process.” (emphases added) (citing MCGEHEE, DUE PROCESS
    OF LAW UNDER THE FEDERAL CONSTITUTION 80 (1906)).
    ¶ 104 What this suggests to us is that Professor McGehee’s
    phrase—“orderly proceedings and an opportunity to defend”—might
    well have been understood to mean something different at the time of
    the Utah Constitution’s ratification than it conveys today. Indeed, in
    Blaisdell, the “opportunity to be heard, and to defend” according to an
    “orderly proceeding adapted to the nature of the case” was thought to
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    include the requirement of “a trial” including “the right to produce
    witnesses and to submit 
    evidence.” 57 N.W. at 795
    .
    ¶ 105 This isn’t to take a definitive stand on the meaning of
    “orderly proceedings and an opportunity to defend.” It’s only to
    illustrate that figuring out its meaning—or meanings—requires deep,
    sympathetic engagement with a wide array of Gilded Age source
    material. It’s a mistake to interpret those phrases with tacit reference to
    contemporary linguistic understandings.
    ¶ 106 The dissent also fails to adequately immerse itself in relevant
    political and legal presuppositions and understandings of the Gilded
    Age. Take, for example, the dissent’s analysis of whether the
    protections of due process might have been understood to apply to
    sentencing proceedings. 
    See supra
    Part III.B.1 (responding to this
    portion of the dissent’s analysis). The dissent excerpts a set of treatises
    according to which offenders have “no constitutional right . . . to
    confront witnesses at sentence hearings” and “no recognized
    constitutional right to present witnesses on their [own] behalf.” Infra
    ¶ 171 n.52 (quoting ARTHUR W. CAMPBELL, LAW OF SENTENCING § 13:20
    (3d ed. 2004)); see also infra ¶ 159 n.37 (“There were no announced
    standards, procedural or substantive, to control a sentencing judge or
    jury.” (quoting Stephen A. Saltzburg, Due Process, History, and
    Apprendi v. New Jersey, 38 AM. CRIM. L. REV. 243, 244 (2001)).
    ¶ 107 The problem with the dissent’s decision to rely on these
    claims—to the extent they’re even accurate, 
    see supra
    Part III.B.1—is that
    the dissent doesn’t consider the degree to which they presuppose or
    depend on background legal and political assumptions and realities. As
    we’ve explained, perhaps there were no “announced standards”
    applicable to the sentencing phase of a case because there was no
    meaningful line between the guilt and sentencing phases. 
    See supra
    ¶¶ 77–78. Or perhaps it was because appellate courts had little
    opportunity, and even less occasion, to even consider what
    constitutional protections should apply at sentencing. 13 
    See supra
    ¶¶ 82–
    13  For example, courts may not have had a need to invoke
    constitutional principles because their authority over the common law
    gave them adequate means to articulate procedural protections. For
    most of the nineteenth century, criminal law and procedure was
    exclusively judge-made common law. LAWRENCE M. FRIEDMAN, A
    HISTORY OF AMERICAN LAW 407 (2d ed. 1985) (noting that the
    (cont.)
    45
    NEESE v. PAROLE BOARD
    Opinion of the Court
    83. Or perhaps it was because the nineteenth century took it for
    granted (1) that sentencing evidence would be sworn and (2) that oaths,
    by themselves, were sufficiently powerful to assure the reliability of
    evidence. 
    See supra
    ¶ 74 n.9.
    ¶ 108 If the claims on which the dissent relies turned on any of
    these background realities or presuppositions, then the dissent is
    wrong to rely on them. If there were no cases applying due process
    protections to sentencing because there were no sentencing
    proceedings, or because few courts had the authority to entertain
    sentencing appeals, then that tells us little about what due process
    would’ve been understood to require in sentencing proceedings had it
    actually applied. Similarly, if no court applied the due process
    provision to require confrontation rights or other substantive
    evidentiary protections only because of the ratification era’s general
    presupposition that sworn testimony was presumptively reliable—
    backed by the force of a deity—then the demise of this general
    understanding of the power of the oath suggests that the principle
    embodied in the due process provision would apply very differently
    today.
    ¶ 109 In sum, only through deep immersion in ratification-era
    language and debates can an originalist hope to uncover the principles
    that many constitutional provisions originally embodied. A failure of
    deep immersion will lead to atomistic originalist analysis, and, in turn,
    constitutional error. We’ve illustrated how this error may have infected
    the dissent. And we urge litigants who undertake originalist argument
    to engage in this kind of deep reading in future cases before us.
    accomplishments of the codification movement were “fairly meager . . .
    up to the end of the 19th century”); see also Aniceto Masferrer, The
    Passionate Discussion Among Common Lawyers About Postbellum American
    Codification: An Approach to Its Legal Argumentation, 40 ARIZ. ST. L.J. 173,
    177 (2008) (noting that the codification debate took place “[i]n the 1880s
    and 1890s”). And, common law decisions can be reviewed, and
    overturned, without invoking constitutional principles. It was therefore
    only after the success of codification that courts would’ve felt a need to
    invoke constitutional principles. But this doesn’t mean that those
    principles wouldn’t have been understood to embody many of the
    common law decisions courts made.
    46
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                               Opinion of the Court
    D. The Relationship Between the Dissent’s
    Methodological Mistake and Its Policy Analysis
    ¶ 110 This brings us to the relationship between the dissent’s
    originalist analysis and its policy analysis. The relationship between
    originalism and policy analysis is different from the relationship
    between policy and other modes of interpretation. When we’re not
    engaged in originalist research, contemporary policy concerns are
    never far from our mind. They affect our understanding of the plain
    meaning of the text, see Warner v. Goltra, 
    293 U.S. 155
    , 158 (1934)
    (statutes must be read “in the light of the mischief to be corrected and
    the end to be attained”); In re Letters Rogatory Issued by Dir. of Inspection
    of Gov’t of India, 
    385 F.2d 1017
    , 1020 (2d Cir. 1967) (statutes “must be
    interpreted in terms of the mischief [they were] intended to rectify”),
    and they help determine when we reach for secondary canons of
    construction and what to do when we reach for them, Bagley v. Bagley,
    
    2016 UT 48
    , ¶ 27, 
    387 P.3d 1000
    (“[T]he absurd consequences canon . . .
    resolve[s] an ambiguity by choosing the reading that avoids absurd
    results.” (second alteration in original) (citation omitted) (internal
    quotation marks omitted)). But originalist analysis requires us to
    discard our own policy views in order to get a full, sympathetic
    understanding of the policy considerations that animated a generation
    with radically different practices, understandings, and concerns.
    ¶ 111 This is difficult to do. Indeed, there’s a long, proud
    American tradition—dating at least to John Adams—of reading our
    contemporary policy preferences into ancient texts. See BERNARD
    BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 24–25
    (2d ed. 1992) (noting that in 1774, John Adams “had cited Plato as an
    advocate of equality and self-government but . . . was so shocked when
    he finally studied the philosopher that he concluded that the Republic
    must have been meant as a satire”). Scholars have even recognized that
    this makes up part of the deep rhetorical power of originalism.
    [T]he deeper power of originalist argument sounds in the
    romance of national identity. Whether originalist
    arguments have [rhetorical] purchase depends less on the
    accuracy of their historical accounts—or the plausibility of
    their theories of intertemporal authority—than on
    whether their audiences recognize themselves, or perhaps
    their idealized selves, in the portrait of American origins
    that is on offer.
    47
    NEESE v. PAROLE BOARD
    Opinion of the Court
    Richard Primus, The Functions of Ethical Originalism, 88 TEX. L. REV. SEE
    ALSO 79, 80 (2010).
    ¶ 112 We worry that the dissent has fallen into this trap. The
    dissent excoriates Labrum. The approach Labrum employs
    “undermine[s] the orderly evolution of our law [by] . . .
    constitutionaliz[ing] fields meant for policymakers.” Infra ¶ 177. It is
    “fuzzy and unworkable.” Infra ¶ 185. “[U]nmanageable.” Infra ¶ 185. It
    “dashe[s]” the expectations of the good, law-abiding citizens of this
    state (who presumably sleep easier when inmates who haven’t been
    convicted of sex crimes are hooked up to penile plethysmograph
    machines based on a parole officer’s hunch). Infra ¶ 188. It’s a one-way
    ratchet, laying the groundwork “for ever-expanding procedural
    mechanisms.” Infra ¶ 184. “[W]hat about the victim . . . ?” Infra ¶ 186.
    “And what about the general public . . . ?” Infra ¶ 186.
    ¶ 113 We, of course, disagree with the dissent’s analysis. Our
    decision isn’t a one-way ratchet; it plainly balances administrability
    with concerns for accuracy in meting out punishment. 
    See supra
    ¶ 43. 14
    The public’s interest in sex offenders’ receiving treatment is leavened
    by its commitment to ensuring that we reliably distinguish between
    those who have committed sex crimes and those who haven’t—a
    commitment to the rule of law that is at the very heart of our society.
    See State v. McClellan, 
    2009 UT 50
    , ¶ 29, 
    216 P.3d 956
    (“[O]ur
    constitutional system is primarily designed to protect the innocent, not
    punish the guilty.”). This protects victims too—it protects all of us from
    the arbitrary hand of law enforcement. 15
    14 The dissent is concerned that the logic of our decision “provides
    no stopping point” for new due process protections and will lead to an
    ever-expanding ambit of procedural requirements. Infra ¶ 184. But this
    decision repeatedly emphasizes that its purpose is to ensure that Parole
    Board determinations about whether an inmate has committed an
    unconvicted crime are adequately supported by notice, evidence, and a
    rationale--concepts that are basic to the system’s historic commitment
    to due process. The dissent’s concerns thus appear to be with the entire
    enterprise of courts’ ensuring procedural protections, not with anything
    distinctive about this case.
    15We disagree with the dissent’s suggestion that we’ve
    demonstrated inadequate concern for the victim in this case. Infra
    (cont.)
    48
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                              Opinion of the Court
    ¶ 114 More importantly, however, we‘re troubled by the dissent’s
    willingness to locate its perspective on the law in the past without the
    benefit of adversarial briefing. The dissent’s view—that due process
    protections may not apply to sentencing and parole, and, even if they
    do, they don’t require any procedural protections designed to ensure
    accurate, non-arbitrary decisions—is discomfiting. For Mr. Neese, it
    would mean that the Parole Board could rely on untested allegations to
    force him to choose between (1) being labeled a sex offender, subjected
    to the increased risk of violence to which sex offenders are exposed,
    and required to complete a profoundly invasive and degrading
    program of treatment (one he can’t truthfully participate in if, as he
    maintains, he isn’t a sex offender) or (2) being kept in prison for much
    of the rest of his life. Even the dissent expresses discomfort with this
    consequence of its conception of due process—a conception that
    privileges bright lines over fairness. See infra ¶ 120.
    ¶ 115 But, as we’ve explained, the past doesn’t unambiguously
    support the dissent’s analysis. The dissent’s analysis hasn’t been briefed
    to us. And we’re accordingly unable to deprive Mr. Neese of the due
    process protections to which he is entitled under a faithful application
    of Labrum.
    CONCLUSION
    ¶ 116 Based on the undisputed facts, we conclude that before the
    Parole Board considers the unconvicted sexual offense that its hearing
    officers have questioned Mr. Neese about, article I, section 7 of the Utah
    Constitution requires it to provide Mr. Neese with the additional
    procedural protections that this opinion has described. We therefore
    reverse the district court’s order granting summary judgment to the
    Parole Board in this case and remand for proceedings consistent with
    this opinion.
    ¶¶ 186–191. While it’s correct that Mr. Neese was “convicted of crimes
    sustaining a sentence of up to thirty-two years in prison,” the victim
    had no legitimate expectation that such a sentence would be sustained
    based upon unconvicted crimes. Infra ¶ 187. In addition, our opinion
    today doesn’t even bar the Parole Board from taking into account
    unconvicted crimes, it only requires it to afford Mr. Neese a minimal
    amount of due process before doing so.
    49
    NEESE v. PAROLE BOARD
    DURRANT, C.J., concurring in part and concurring in the result
    CHIEF JUSTICE DURRANT, concurring in part and concurring in the result:
    ¶ 117 I concur in sections I, II, and part A of section III of the
    majority opinion, but write separately to express my disagreement with
    parts B, C, and D of section III. I share the majority’s view that in
    Labrum v. Utah State Board of Pardons 16 we adopted the proposition that
    “‘original release hearings’—such as the hearing at issue here—‘are
    analogous to sentencing hearings and require due process to the extent
    that the analogy holds.’” 17 I also agree that, while the due process
    protections the majority identifies here were not specifically addressed
    by the Labrum court, they are consistent with the core premise of the
    Labrum opinion and are a logical and reasonable extension of that
    premise. Additionally, I share the majority’s view that the dissent’s
    central argument—that “the historical record does not suggest that the
    nineteenth century understanding of the constitutional right of ‘due
    process’ would have extended to sentencing proceedings” 18—is
    inconsistent with Labrum’s central holding and that to adopt that
    argument would be to effectively overrule Labrum. Finally, I agree with
    the majority that because Mr. Neese has not sought to overrule Labrum,
    and because neither party has provided us with adequate briefing on
    the Utah Constitution’s due process clause, it is unnecessary to conduct
    a historical analysis in this case. 19
    ¶ 118 But I part paths with the majority’s decision to substantively
    address the dissent’s historical analysis. I believe the majority errs in
    engaging in a debate on the merits as to arguments presented by the
    dissent, and further errs in putting a thumb on the scale with respect to
    some of those issues. While the majority refrains from stating “any
    definite conclusions about this history without the benefit of
    adversarial briefing,” 20 it nevertheless appears to indicate a preferred
    16   
    870 P.2d 902
    (Utah 1993).
    17   Supra ¶ 60 (quoting 
    Labrum, 870 P.2d at 908
    ).
    18   Infra ¶ 163 n.45.
    19 I also would not seek further briefing on the question of the
    historical meaning of the due process clause because it is unnecessary
    to the resolution of this case.
    20   Supra ¶ 70.
    50
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            DURRANT, C.J., concurring in part and concurring in the result
    resolution of some key issues. 21 I understand the majority’s reluctance
    to let the dissent’s arguments go uncontested, but, for the reasons
    offered by the majority in support of its view that the dissent has
    unnecessarily and without adequate briefing set forth a historical
    analysis, I would not engage in a substantive rebuttal of that analysis.
    ¶ 119 Determining the correct historical understanding of our
    state constitution’s due process clause is an issue of obvious
    importance. And it is an issue, as the competing opinions in this case
    illustrate, fraught with complexity. In my view, this is not the case to
    engage in substantive debate on this issue, either in the first instance or
    in rebuttal.
    21See, e.g., supra ¶ 71 (“Contrary to the dissent, it appears to us that
    the reports may contain notable examples of cases that applied
    procedural protections to sentencing proceedings.”); supra ¶ 72
    (“Williams, in turn, relied on State v. Reeder. It appears to us, however,
    that Reeder and the cases on which it relied may stand for the
    proposition that sentencing judges must adhere to norms of due process
    when settling on a sentence.”(citation omitted)); supra ¶ 74 (“The other
    cases on which Reeder relied likewise appear to potentially recognize
    the importance of procedural protections in connection with
    sentencing.”); supra ¶ 75 (“So, contrary to the dissent, it appears to us
    that procedural protections may have been understood to apply to
    sentencing proceedings in the period leading up to ratification of the
    Utah Constitution.”); supra ¶ 78 (“And there’s good reason to think due
    process protections may have applied at sentencing.”).
    51
    NEESE v. PAROL BOARD
    LEE, A.C.J., dissenting
    ASSOCIATE CHIEF JUSTICE LEE, dissenting:
    ¶ 120 I share some of the majority’s concerns about the fairness of
    the procedures afforded to Neese by the Parole Board. The Board’s
    refusal to allow Neese to call and question his accuser made it difficult
    for him to persuasively refute the sex-offense charge against him. And
    without a persuasive means of rebuttal, Neese is likely to face
    substantially more prison time than most other inmates serving time
    for his crime of conviction (obstruction of justice). He would also serve
    that time without a trial-like adjudication of the sex-offense charge in
    question.
    ¶ 121 For these and other reasons I might endorse the procedures
    set forth in the majority opinion if I were in a position to make policy in
    this field—to promulgate administrative rules governing the Parole
    Board. I hedge—saying only that I might—because I am certain that my
    understanding of the Board’s decisionmaking process is incomplete.
    And I frame this conclusion in the subjunctive—speaking of what I
    might do if I were in a position to promulgate rules for the Board—to
    underscore the limited scope of our authority in a case like this one. In
    deciding this case we are deciding only on the demands of the Utah
    constitution. We are not deciding what set of procedural rules strike us
    as ideal under these circumstances.
    ¶ 122 The line between those two concepts is too often blurred in
    modern judicial thinking. And the blurriness is perhaps at its height
    when we speak of the requirements of “due process.” Here, perhaps
    more than in other constitutional fields, it is tempting to think of the
    constitutional requirement of due process as a general charter for
    assuring a vague ideal of fairness—an ideal that will ebb and flow or
    evolve over time. But that is not what is enshrined in the due process
    clause. “[T]he Due Process Clause is not a free-wheeling constitutional
    license for courts to assure fairness on a case-by-case basis.” In re
    Discipline of Steffensen, 
    2016 UT 18
    , ¶ 7, 
    373 P.3d 186
    . “[I]t is a
    constitutional standard” with a specific, if somewhat flexible, meaning.
    
    Id. ¶ 123
    The idea of a fixed construct is inherent in the very nature of
    constitutional law. The whole point of having a written constitution is
    to “establish the fundamental ground rules for lawmaking”—the “fixed
    bulwarks” we deem essential to protect us against “tyrannies of the
    majority.” State v. Houston, 
    2015 UT 40
    , ¶ 149, 
    353 P.3d 55
    (Lee, A.C.J.,
    concurring in part and concurring in judgment) (citation omitted).
    52
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                              LEE, A.C.J., dissenting
    Without those “fixed bulwarks” we lose our grip on the rule of law,
    and we substitute in its place the preferences of mere judges. See
    Washington v. Trump, 
    858 F.3d 1168
    , 1184 (9th Cir. 2017) (Bybee, J.,
    dissenting) (offering the important reminder that “[w]e are judges, not
    Platonic Guardians”).
    ¶ 124 The point is not that our law cannot evolve. It is to
    remember that the constitution preserves extra-judicial means of our
    law’s adaptation: (a) “amendment of the constitution through the
    super-majoritarian procedures set forth in its provisions,” and
    (b) “implementation of policies embraced by the people through their
    representatives in the political branches of government” (such as by
    “adoption of statutes, regulations, and other laws within the limitations
    prescribed in the constitution”). Houston, 
    2015 UT 40
    , ¶ 151 (Lee, A.C.J.,
    concurring in part and concurring in judgment).
    ¶ 125 For these reasons I find it important to take a step back from
    the approach embraced by the majority. I would not begin by accepting
    the broadest conception of our opinion in Labrum v. Utah State Board of
    Pardons, 
    870 P.2d 902
    , 909–10 (Utah 1993). That decision admittedly
    deserves some measure of respect as a matter of stare decisis. But the
    majority in my view is extending the premises of the Labrum decision to
    their logical extreme—a step that stare decisis does not require. 
    See supra
    ¶ 39 (noting that the Parole Board has asked us to limit Labrum “to its
    facts,” but concluding that “our task is to faithfully apply our
    precedent” absent a request that we overrule it). Labrum did not decide
    the question presented here. 22 See infra ¶¶ 139–43. So we can uphold
    22 Neese himself has not asserted that this case is controlled by
    Labrum. The Labrum opinion isn’t even cited in Neese’s opening brief.
    And the discussion of Labrum in the reply brief amounts only to (a) an
    assertion that Labrum “did not address what process was due in a
    parole hearing in which the prisoner’s status as a sex offender was
    adjudicated”; and (b) an assertion that the federal Due Process Clause
    should be interpreted more expansively and that those “broader
    protections . . . are supreme.” Appellant Reply Br. at 11–12.
    For these reasons it seems to me that the majority is engaging in the
    very enterprise it seeks to pin on me—of advocating a basis for
    resolving this case that is not precisely presented by the parties. The
    majority’s extension of Labrum is a matter of the court’s own
    independent analysis. I say that to highlight what I see as some
    (cont.)
    53
    NEESE v. PAROLE BOARD
    LEE, A.C.J., dissenting
    Labrum without ruling in Neese’s favor. And in my view we should
    carefully consider the basis of the court’s analysis in Labrum before
    extending it in the manner that the court does today.
    ¶ 126 The majority criticizes my approach on two principal
    grounds—(a) the concern that I am engaged in independent analysis of
    historical material without the benefit of adversary briefing, 
    see supra
    ¶ 67; and (b) the assertion that I am urging a decision overruling
    Labrum while the court is just upholding that decision on stare decisis
    grounds, supra ¶¶ 51, 57. I respond to these and other points in detail
    below. For now I would note (1) that I favor supplemental briefing on
    the historical basis for our decision in this case; (2) that my colleagues
    are not just preserving Labrum but are extending it—establishing a new
    standard of due process in parole hearings that is nowhere dictated on
    the face of Labrum; and (3) that the majority’s extension of Labrum is not
    one expressly requested by Neese (and accordingly not subjected to
    adversary briefing). See infra ¶¶ 137–43.
    ¶ 127 My colleagues apparently prefer not to seek further briefing
    from the parties on the historical questions that I am addressing. That is
    their prerogative. But I would think that their decision to decline
    further briefing, 
    see supra
    ¶¶ 50 n.5, 51, might blunt their criticism of
    my historical analysis of the due process clause.
    ¶ 128 The majority is establishing a significant new rule of
    constitutional law in resolving this case. It holds for the first time that
    the Utah Constitution guarantees a right to cross-examination in a
    parole hearing. That right is nowhere enshrined in our precedent—or at
    all dictated by the analytical framework of Labrum.
    ¶ 129 Neese himself has not invoked the Labrum opinion as a basis
    for the parole procedures he claims to be lacking. He bases his due
    process argument principally on federal authorities—citing Labrum
    only in his reply brief, and only there in an attempt to try to distinguish
    it (in response to the Parole Board’s argument that Neese was afforded
    all of the process that he was due under Labrum).
    overexuberance in the court’s criticism of my independent analysis of
    the due process clause, and not to question the court’s right to engage
    in this independent analysis. The due process question is adequately
    presented and briefed, after all, and the court is not just entitled but
    expected to use its own lights in resolving it.
    54
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                              LEE, A.C.J., dissenting
    ¶ 130 The bottom line is that the briefing on the state
    constitutional question presented is quite minimal. That leaves us with
    two choices—either to seek supplemental briefing or to move forward
    with what we have. I would seek further briefing. But I also find the
    matter adequately presented, and I see no barrier to our resolving it
    (either by application of precedent or by resort to historical materials).
    ¶ 131 I would resolve this issue by analyzing the text and original
    meaning of the due process clause of the Utah Constitution. Thus, I
    would apply the historical framework of due process that I have
    outlined previously. See In re Adoption of K.A.S., 
    2016 UT 55
    , ¶¶ 45–100,
    
    390 P.3d 278
    (Lee, A.C.J., dissenting). And I would affirm the district
    court’s decision dismissing Neese’s claims because I find no basis in the
    text or original meaning of the Utah due process clause to call into
    question the procedural framework adopted by the Parole Board (much
    less, to sustain the specific procedures deemed required by the
    majority).
    ¶ 132 In the paragraphs below I begin with some background on
    the due process framework that I would apply. Then I analyze Neese’s
    claim against this backdrop. And I close with some observations about
    concerns with the majority’s approach even accepting the
    (non-originalist) premises of its analysis.
    I
    ¶ 133 The due process clause does not confer on the judiciary a
    roving “duty to establish ideal systems for the administration of justice,
    with every modern improvement and with provision against every
    possible hardship that may befall.” In re Discipline of Steffensen, 
    2016 UT 18
    , ¶ 7 n.2, 
    373 P.3d 186
    (quoting Ownbey v. Morgan, 
    256 U.S. 94
    , 110–11
    (1921)). It implicates a historically driven test “measured by reference to
    ‘traditional notions of fair play and substantial justice.’” 
    Id. ¶ 7
    (quoting
    ClearOne v. Revolabs, 
    2016 UT 16
    , ¶ 8, 
    369 P.3d 1269
    ).
    ¶ 134 We have warned against the perils of a notion of due
    process as “a free-wheeling constitutional license for courts to assure
    fairness on a case-by-case basis.” 
    Id. Yet our
    cases have not always
    heeded these principles. As judges, too often we skate past the words
    “due process” and blithely assume the prerogative of
    constitutionalizing our personal sense of fair procedure. In so doing we
    forget about the “usual course” for assuring procedural fairness—the
    legal means of promulgating rules or laws regulating procedure. See 
    id. (noting that
    the “usual course” for assuring fairness “is by
    55
    NEESE v. PAROLE BOARD
    LEE, A.C.J., dissenting
    promulgating rules of procedure”). That means is available here; the
    Parole Board has the authority and means of promulgating and
    amending the administrative rules that govern its proceedings. 23 And
    the Parole Board’s rules should stand unless they can be shown to run
    afoul of the historically rooted standard of “due process.”
    ¶ 135 The constitutional standard, moreover, can be understood
    only by reference to its text and historical meaning. The text of the
    clause is simple: “No person shall be deprived of life, liberty or
    property, without due process of law.” UTAH CONST. art. I, § 7. This text
    implicates two sets of questions: (a) what sorts of proceedings trigger a
    right to “due process of law”; and (b) what procedures are secured by
    the guarantee of “due process of law.”
    ¶ 136 We should answer both questions with reference to the
    historical understanding of the terms of the due process clause. First,
    the applicability of the due process clause should depend on whether
    the proceeding in question is one historically understood to threaten a
    deprivation of “life, liberty or property.” And second, the procedures
    secured by this provision should look to those historically understood
    as rooted in the guarantee of “due process.”
    ¶ 137 I consider these questions because, unlike the majority, I
    find no answer to the question presented in our precedent. The
    majority claims to find an answer in Labrum v. Utah State Board of
    23  UTAH CONST. art. VII, § 12(2)(a) (“The Board of Pardons and
    Parole . . . may grant parole, . . . commute punishments, and grant
    pardons after convictions, . . . subject to regulations as provided by
    statute.”); UTAH CODE § 77-27-5(5) (“In determining when, where, and
    under what conditions offenders serving sentences may be paroled [or]
    pardoned, . . . the board shall . . . develop and use a list of criteria for
    making determinations under this [s]ubsection . . . .”); 
    id. § 77-27-9(4)(a)
    (“The board may adopt rules consistent with law for its government,
    meetings and hearings, the conduct of proceedings before it, the parole
    and pardon of offenders, the commutation and termination of
    sentences, and the general conditions under which parole may be
    granted and revoked.”); UTAH ADMIN. CODE r. 671-101 (“Board of
    Pardons rules shall be processed according to state rulemaking
    procedures. . . . Rules are to be interpreted with the interests of public
    safety in mind so long as the rights of a party are not substantially
    affected.”).
    56
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                               LEE, A.C.J., dissenting
    Pardons, 
    870 P.2d 902
    (Utah 1993). It cites that opinion for the
    proposition that the due process clause “require[s] more than simply
    giving the inmate an opportunity to speak and ‘point out errors’ in his
    file” when the Parole Board “bases its decisions on untested allegations
    that an inmate has committed a sex offense.” Supra ¶ 55 (citation
    omitted). In that circumstance the majority says that Labrum requires
    “advanced written notice of the alleged sex offense,” an opportunity to
    call and examine “witnesses,” and “an explanation of the Parole
    Board’s decision.” 
    Id. ¶ 138
    Yet none of these requirements are anywhere set forth in the
    Labrum opinion. Indeed there is nothing in Labrum that at all dictates
    the procedure that the court today endorses as a requirement of due
    process. And the court’s extension of Labrum is not advocated by Neese,
    and thus has not been subjected to adversary briefing.
    ¶ 139 The majority claims to be following the “framework” of the
    Labrum opinion. Supra ¶¶ 27, 60–61. But Labrum doesn’t establish an
    operative constitutional framework for application in future cases. It
    simply concludes—based on the “reality” that parole hearings “are
    analogous to sentencing 
    hearings,” 870 P.2d at 908
    —(a) that an inmate
    has some due process rights at the initial parole hearing, 
    id. at 911
    ; and
    (b) that those rights include the right to “know what information the
    Board will be considering at the hearing . . . soon enough in advance to
    have a reasonable opportunity to prepare responses and rebuttal of
    inaccuracies,” 
    id. at 909.
       ¶ 140 There is no clear rationale or “framework” for these
    decisions in the Labrum opinion. The closest the Labrum court comes to
    identifying a basis for its decision is the assertion that the procedure
    embraced by the court advances “two critical functions related to
    fundamental fairness”—“minimizing error and preserving the integrity
    of the [parole] process.” 24 Id.; see also 
    id. at 910
    (asserting that
    24 The doctrine of stare decisis urges courts to apply “the first
    decision by a court on a particular question of law . . . [to] later decisions
    by the same court.” State v. Thurman, 
    846 P.2d 1256
    , 1269 (Utah 1993)
    (emphasis added). And my approach is consistent with that principle.
    Labrum says that some process is due “to the extent that the analogy
    [between parole hearings and sentencing hearings] holds.” Labrum v.
    Utah State Bd. of Pardons, 
    870 P.2d 902
    , 908 (Utah 1993). But Labrum also
    notes that determining “[t]he extent to which additional due process
    (cont.)
    57
    NEESE v. PAROLE BOARD
    LEE, A.C.J., dissenting
    “[a]ccuracy and fairness are essential in proceedings which impinge as
    directly on personal liberty as original parole grant hearings”). The
    majority repeats that assertion here. 
    See supra
    ¶ 24. It says that the right
    to call and cross-examine witnesses is similarly essential to advance
    these “critical functions.” Supra ¶¶ 44–45.
    ¶ 141 But that conclusion is by no means dictated by Labrum. The
    “critical functions” formulation in Labrum is not a workable legal
    standard; it is a circular confirmation for whatever procedure a
    majority of this court may deem appropriate. Any additional
    procedure, after all, can be said to “minimiz[e] error” and “preserv[e]
    the integrity of the [parole] 
    process.” 870 P.2d at 909
    .
    ¶ 142 Labrum thus leaves unanswered the crucial question of the
    “framework” for deciding any future requirements of the Due Process
    Clause in parole hearings. To the extent there is a “framework” in
    Labrum it is the notion that due process requires whatever additional
    “procedure” a majority of this court deems to be helpful. And that is
    not a framework or rationale that is deserving of stare decisis deference.
    See State v. Guard, 
    2015 UT 96
    , ¶ 56, 
    371 P.3d 1
    (overruling the “clear
    break” rule in part because it is unworkable and requires courts to
    exercise a large amount of discretion, “introduc[ing] a level of
    unpredictability that is not appropriate when dealing with the
    application of critically important rules”).
    ¶ 143 Labrum did not resolve the question of the demands of the
    due process clause in response to “untested allegations” of a sex offense
    raised in a parole setting. Supra ¶ 55. We are answering that question as
    a matter of first impression here. And I see no way to answer that
    question without a careful analysis of the original meaning of the due
    process clause of the Utah Constitution.
    II
    ¶ 144 Historically, only certain proceedings were understood to
    threaten a deprivation of “life, liberty or property” in a manner
    protections must be afforded inmates in [a parole hearing] will require
    case-by-case review.” 
    Id. at 911.
    Applying the decision in Labrum
    simply requires this court to afford due process rights to the extent that
    a parole hearing is analogous to a sentencing hearing and to assess
    additional due process on a case-by-case review. My analysis does
    exactly that. See infra Part II.
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    triggering a right to “due process.” See infra Part II.A. The threshold
    question in my view is whether the parole hearings at issue here should
    count as that sort of proceeding. And for reasons set forth below I think
    the historical record cuts against such a conclusion. See infra Part II.B.
    ¶ 145 The Labrum court concluded otherwise. See Labrum v. Utah
    State Bd. of Pardons, 
    870 P.2d 902
    , 911 (Utah 1993). And Labrum, as
    noted, may be entitled to stare decisis deference on this threshold point.
    But stare decisis does not demand blind extension of our past decisions
    to their logical extreme. At most it requires a logical extension of our
    precedents. And to decide on the logical extension of Labrum we should
    inquire into the logic—or the theoretical basis—of that decision. 25
    ¶ 146 The majority claims only to be applying the holding of the
    Labrum decision. But again the court is doing more than that. It is
    establishing a broad conception of Labrum—the notion that due process
    requires any additional parole procedure that a majority of the court
    views as advancing the interest of fundamental fairness. 
    See supra
    ¶ 33.
    25  I seek not to overrule Labrum. Or even to “confine [it] to its precise
    facts.” Supra ¶¶ 56–57. I am just observing that the Labrum opinion does
    not dictate an answer to the question presented here. To decide how
    much procedure is constitutionally required in response to “untested
    allegations” of a sex crime in a parole hearing we must do more than
    just apply Labrum.
    The majority is surely doing more than that in its opinion. It is not
    just citing Labrum as dictating the answer to the question presented. It is
    establishing a wholly new constitutional requirement based on the
    majority’s sense of where best to draw the line—concluding that the
    right to cross-examination is essential to “due process” in response to
    an allegation of a sex crime raised in a parole hearing, except where
    “the safe [and effective] administration of the prison system requires
    otherwise.” Supra ¶¶ 43, 53. That may be a good line to draw. But the
    line doesn’t come from Labrum. It comes from the majority’s sense of
    fairness in the unique circumstances presented in this case.
    I’m all for “transparency.” Supra ¶ 58. That’s the whole point of my
    opinion. Because I find no answer to the question presented here in
    Labrum I am seeking to identify a basis for decision in the text and
    original meaning of the Utah Constitution—the source of first
    principles for any question not clearly controlled by settled precedent.
    This seems to me the path of true transparency. Supra ¶ 58.
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    NEESE v. PAROLE BOARD
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    Labrum nowhere expressly articulates that as the controlling
    constitutional framework. So in that sense the majority itself is also
    revisiting the underlying basis for our decision in Labrum. It is just
    doing so implicitly.
    ¶ 147 The majority’s due process construct yields no logical
    stopping point—and no real guiding legal principle. Indeed the
    majority itself nowhere expressly articulates an “anything a majority of
    us deem necessary is required” standard of due process. If that is in fact
    the operative principle then we should say so. If there is some other
    basis for the decision then we should say that. We owe it to the
    parties—and to lower courts and to the bar, who will be governed by
    our opinion—to identify a transparent legal basis for the direction of
    our law in this important area. 26
    ¶ 148 To do that we need to return to first principles. And those
    principles, in my view, must start with an inquiry into the historical
    basis for extending the protections of the Due Process Clause to the
    parole process. We can reexamine the premises of the Labrum decision
    while still respecting the premises of the doctrine of stare decisis. 27 I
    would do so here on grounds set forth below.
    26  I cannot see how my resort to first principles would undermine
    the “coherence” of our jurisprudence in this field. Supra ¶ 64. I find the
    implicit premises of the Labrum line of cases to be quite incoherent. And
    the whole point of my historical inquiry is to try to bring discipline and
    transparency to this important field.
    It seems to me that it is the majority that is engaged in the enterprise
    of deciding our cases by a “‘show of hands’” rather than a “‘rule of
    law.’” Supra ¶ 65 (quoting Hein v. Freedom From Religion Found., Inc., 
    551 U.S. 587
    , 618 (2007) (Scalia, J., concurring in the judgment)). The
    standard the court attributes to the Labrum line of cases is all about a
    show of hands—attributing to the due process clause whatever
    standards of fairness a majority of this court can agree to in any given
    circumstance. That is not a coherent legal standard. And it is not a
    workable rule of law.
    27Cf. Gen. Motors Corp. v. Tracy, 
    519 U.S. 278
    , 312 (1997) (Scalia, J.,
    concurring) (stating that “the so-called ‘negative’ Commerce Clause is
    an unjustified judicial invention, not to be expanded beyond its existing
    (cont.)
    60
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    ¶ 149 At a minimum we need to consider the extent of the
    “process” that is due in a case like this one. Labrum, again, doesn’t
    dictate an answer to that question. 28 And our determination of the
    demands of due process must accordingly be informed by an inquiry
    into the original understanding of the constitutional guarantee. 29 That
    domain” but also reaffirming willingness to “enforce on stare decisis
    grounds” the applications of that doctrine in prior cases).
    28 Nor do the cases handed down in Labrum’s wake. Our subsequent
    decisions admittedly accepted the premises of Labrum—that the due
    process guarantee extends to at least some parole proceedings, that due
    process is aimed at assuring fairness in those proceedings, and that
    “this procedural right [i]s not unlimited.” Supra ¶ 62. Thus, in Neel v.
    Holden, 
    886 P.2d 1097
    (Utah 1994), and Monson v. Carver, 
    928 P.2d 1017
    (Utah 1996), we established a few new due process rights in the parole
    process and declined to establish others. But our opinions still failed to
    provide a concrete legal basis for the lines that we were drawing—
    except the bare notion that the procedures we required struck the court
    as necessary to protect a vague principle of fairness and the procedures
    we refused to endorse seemed unnecessary. See 
    Neel, 886 P.2d at 1103
    (refusing to require the disclosure of confidential information “when
    that disclosure might lead to harm of a third person”); 
    Monson, 928 P.2d at 1030
    (refusing to allow inmate to call character witness because the
    court concluded that the proffered testimony would not “substantially
    further[] the accuracy and reliability of the [Parole] Board’s fact-finding
    process”). Thus, our precedents don’t answer the question presented in
    this case. And in my view that requires us to return to first principles to
    find a guiding standard for our decisions in this important field.
    29  The majority, to its credit, recognizes the importance of an inquiry
    into the “original meaning of the Utah Constitution when [we are]
    properly confronted with constitutional issues.” Supra ¶ 67. But it then
    criticizes my historical inquiry on the basis of a supposed lack of
    “prompting from the parties.” Supra ¶ 67. And it questions my
    originalist analysis on the basis of a lack of adversary briefing. Supra
    ¶ 67.
    To the extent the majority is suggesting that the originalist questions
    that I am exploring are not properly presented I disagree. The question
    of the reach and extent of the due process guarantee in a parole
    proceeding like this one is the key question presented for our decision.
    (cont.)
    61
    NEESE v. PAROLE BOARD
    LEE, A.C.J., dissenting
    understanding is simple and straightforward. The due process clause
    “refers to certain fundamental rights which [our] system of
    jurisprudence . . . has always recognized.” In re Adoption of K.A.S., 
    2016 UT 55
    , ¶ 87, 
    390 P.3d 278
    (Lee, A.C.J., dissenting) (alterations in
    original) (quoting Hurtado v. California, 
    110 U.S. 516
    , 536 (1884)). Basic
    “notice” of the pendency of a legal proceeding is one of the
    “fundamental rights” long understood to be protected as a matter of
    due process. See In re Adoption of B.Y., 
    2015 UT 67
    , ¶ 16, 
    356 P.3d 1215
    .
    The other is an essential “opportunity” to be heard. 
    Id. Yet the
    precise
    terms and conditions of these guarantees, if any, must be based on
    historical inquiry. The constitutionally guaranteed manner and means of
    notice and the right to be heard are not to evolve in accordance with the
    policy preferences of judges over time. Instead the core constitutional
    right is the preservation of some minimal notice and opportunity to be
    heard. And history is an important guide: “Procedures . . . consistent
    with the common law and historical tradition [are] presumptively
    permissible, while new procedures [are] permissible so long as they
    [do] not deny one of the core protections of due process, such as a right
    to notice and a meaningful opportunity to be heard.” In re Adoption of
    K.A.S., 
    2016 UT 55
    , ¶ 90 (Lee, A.C.J., dissenting).
    ¶ 150 This is another basis for questioning the majority’s extension
    of Labrum. The historical precedent cuts against the recognition of the
    now-constitutionalized right to call witnesses in a sentencing-like
    proceeding. I can accept, on stare decisis grounds, Labrum’s premise that
    initial parole hearings are analogous to sentencing proceedings for due
    process purposes. 30 
    See supra
    ¶¶ 26–28; 
    Labrum, 870 P.2d at 908
    . But that
    And because I find no answer to that question in our precedent it is
    essential to resort to first principles. In that sense the parties have
    effectively prompted an analysis of the historical material that I am
    examining.
    To the extent the court is lamenting the lack of detailed briefing on
    the historical questions at issue I agree—but I find the majority’s
    criticism puzzling. Because I find the originalist questions I address
    here properly presented but not adequately briefed I would have
    preferred requesting supplemental briefing.
    30  “Our cases,” after all, “have not said that an original parole
    hearing is identical for all purposes to a sentencing hearing before the
    trial court.” 
    Monson, 928 P.2d at 1029
    .
    62
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                              LEE, A.C.J., dissenting
    does not end the inquiry. We must also determine whether additional
    due process protections—beyond those identified in Labrum—must be
    afforded here. 
    Labrum, 870 P.2d at 911
    . And we will search the historical
    record in vain for support for the idea that a defendant at sentencing
    had a due process right to be “heard” by calling witnesses or cross-
    examining them. See infra Part II.B. The newly-established due process
    right to a written sentencing decision is even more novel. To my
    knowledge no court has ever found such a right—not historically (as of
    the founding of the Utah Constitution) and not even in modern
    jurisprudence. And these are further reasons to doubt the constitutional
    propriety of the majority’s decision.
    A
    ¶ 151 The threshold question is whether a parole hearing is the
    sort of proceeding that triggers a constitutional right to due process.
    Textually, that question turns on whether such a hearing threatens the
    deprivation of “life, liberty or property.” And the originalist gloss on
    that question is whether the public understanding of this provision
    would encompass a hearing like the one at issue here.
    ¶ 152 One version of the originalist inquiry might start with the
    premise that modern parole hearings were unknown to the generation
    of the framing of the Utah Constitution. Because today’s parole
    hearings were not invented until nearly two decades after the framing
    of our Due Process Clause, 31 the argument could be made that the right
    to due process does not attach.
    ¶ 153 The argument could be made. But it wouldn’t be a good
    argument. It would be an argument based on a debunked form of
    originalism. Thoughtful originalists distinguish between an application
    of the constitution and the public understanding of the legal principle
    expressed by its terms. 32 They view the constitution—like all law—as
    31 Our state constitution was written and adopted in 1895 and took
    effect in 1896. Utah’s indeterminate sentencing regime was instituted
    by statute in 1913. See 1913 Utah Laws 192–93.
    32Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in
    Original Meaning, 91 NOTRE DAME L. REV. 1, 21 (2015) (“[T]he
    communicative content of the constitutional text is fixed at the time of
    framing and ratification, but the facts to which the text can be applied
    change over time.” (emphasis omitted)).
    63
    NEESE v. PAROLE BOARD
    LEE, A.C.J., dissenting
    consisting of legal principles expressed by the public understanding of its
    terms. But they do not foreclose new applications of those principles to
    circumstances unknown to the past. Quite the contrary, they view the
    prospect of such applications as essential to and inherent in the notion
    of constitutional law. Thoughtful originalists acknowledge that a
    constitution incapable of extending its principles to new applications
    cannot fulfill the promise of establishing fixed bulwarks to protect
    fundamental rights. And they thus adopt an originalist inquiry that
    looks to the public understanding of the constitution’s terms, not the
    applications envisioned by the framers.
    ¶ 154 This is mainstream originalism, or “original public
    meaning” originalism. This form of originalism should be
    distinguished from “original intent” originalism. 33 The original intent
    inquiry is sometimes framed (often by critics) as turning on pure
    silliness—on “what would James Madison have thought” (or what
    would our Utah framers have thought) about a particular modern
    problem. And the answer to that question is usually obvious—nothing,
    because the framers never could have thought about our modern
    problems. But that is irrelevant to an original public meaning
    originalist, because she is looking for the public understanding of the
    operative legal principle at play. It doesn’t really matter what the
    framers might have thought about particular modern problems,
    because that oversimplified inquiry has to do with applications, not the
    public understanding, of the legal principles enshrined in a
    constitutional text.
    ¶ 155 A Fourth Amendment problem may help to illustrate. The
    framers obviously would not have had any specific opinion about
    whether using a thermal-imaging device to examine a private home for
    unusual sources of heat (a sign of marijuana cultivation) is a “search”
    33  John O. McGinnis & Michael B. Rappaport, Original Methods
    Originalism: A New Theory of Interpretation and the Case Against
    Construction, 103 NW. U.L. REV. 751, 761 (2009) (“[O]riginal public
    meaning, in contrast to original intent, interpret[s] the Constitution
    according to how the words of the document would have been
    understood by a competent and reasonable speaker of the language at
    the time of the document’s enactment . . . [and] is now the predominant
    originalist theory . . . .”).
    64
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                              LEE, A.C.J., dissenting
    triggering the protections of the Fourth Amendment. But that is the
    wrong question to ask.
    ¶ 156 The right question to ask is whether the original public
    meaning of the legal principle encompassed within the protection
    against “unreasonable search and seizure,” U.S. CONST. amend. IV,
    would have prohibited using a thermal-imaging device in that way,
    sans warrant. And it is entirely possible to conclude that the original
    understanding of that principle encompasses visual inspection by
    thermal-imaging—if, for example, we think of the notion of a “search”
    as any operation that violates, in any manner, a homeowner’s
    reasonable expectation of privacy. See Kyllo v. United States, 
    533 U.S. 27
    ,
    34–35 (2001) (Scalia, J., for the majority) (concluding that the original
    meaning of a Fourth Amendment “search” encompasses the use of a
    device by the government that “is not in general public use,” to obtain
    information “regarding the interior of [a] home” that would previously
    have been unknowable without “physical ‘intrusion into a
    constitutionally protected area’” (citation omitted)).
    ¶ 157 The Fourth Amendment example helps to focus the question
    presented in this case. The proper question before us is not whether the
    framers of the Utah Constitution would have thought that parole
    hearings trigger a right to due process. Instead we should ask what
    legal principle the Utah public would have understood in the guarantee
    of “due process” as a prerequisite to any deprivation of “life, liberty or
    property.” And to answer that question we may need to look for
    historical analogies to the modern premises before us.
    ¶ 158 The majority, citing Labrum, says that the best analogy is to
    criminal sentencing proceedings. 34 Supra ¶ 27. That seems fair in a
    functional sense, as it is the parole board that makes the ultimate
    decision of how long a given person will remain incarcerated. 
    See supra
    ¶ 27 (“The Parole Board’s conduct in this case is, at a minimum, closely
    analogous to a sentencing court’s considering uncharged or
    34  The majority also analogizes Neese’s parole hearing to “a judicial
    fact-finder . . . adjudicating the inmate guilty of a criminal offense,” or a
    “criminal trial[] and the closely related context of [a] prison disciplinary
    proceeding[].” Supra ¶ 29. Yet the court nowhere explains how these
    alternative analogies cut.
    65
    NEESE v. PAROLE BOARD
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    unconvicted conduct in fixing a defendant’s sentence.”). I will accept
    the analogy for present purposes. 35
    ¶ 159 Even accepting the analogy, however, the historical record
    cuts against the majority’s decision. There is little historical basis for a
    conclusion that the due process clause was understood to extend in any
    meaningful way to sentencing proceedings. The historical view—from
    the time of the framing of the U.S. Constitution and continuing through
    the nineteenth century—was that a person’s “liberty” was implicated
    only by the determination of guilt. 36 The historical record suggests that
    no one thought that sentencing involved a second deprivation.37
    35 But this premise is by no means a given. See, e.g., Vitek v. Jones, 
    445 U.S. 480
    , 493 (1980) (“Undoubtedly, a valid criminal conviction and prison
    sentence extinguish a defendant’s right to freedom from confinement.
    Such a conviction and sentence sufficiently extinguish a defendant’s
    liberty ‘to empower the State to confine him in any of its prisons.’”)
    (emphases added) (citations omitted); Meachum v. Fano, 
    427 U.S. 215
    ,
    224 (1976) (“[G]iven a valid conviction, the criminal defendant has been
    constitutionally deprived of his liberty to the extent that the State may
    confine him and subject him to the rules of its prison system so long as
    the conditions of confinement do not otherwise violate the
    Constitution”). It would not be unreasonable to say that a convicted
    defendant’s due process rights are exhausted after “a conviction and
    sentence.” Under this view, the due process clause would require
    absolutely nothing during original parole hearings, because the
    defendant’s liberty interest has been extinguished “until the maximum
    [incarceration] period has been reached unless sooner terminated or
    commuted by authority of the Board of Pardons and Parole.” UTAH
    CODE § 77-18-4(3).
    36Cf. Williams v. New York, 
    337 U.S. 241
    , 245–46 (1949) (highlighting
    how, historically, “strict evidentiary procedural limitations” governed
    proceedings where the “question for consideration [was] the guilt of
    the defendant,” but during sentencing, a judge was not “hedged” by
    procedural rules and “could exercise a wide discretion”).
    37 See Stephen A. Saltzburg, Due Process, History, and Apprendi v.
    New Jersey, 38 AM. CRIM. L. REV. 243, 244 (2001) (“[T]here were no
    announced standards, procedural or substantive, to control a
    sentencing judge or jury . . . .”).
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    ¶ 160 In the eighteenth century and early nineteenth century there
    was no such thing as a sentencing proceeding as we understand it
    today. Upon a conviction after trial the court imposed a statutorily
    required penalty.38 And that was the end of the matter. Things changed
    over the ensuing decades leading up to the framing of the Utah
    Constitution. There was a marked shift toward discretionary
    sentencing—first by judges and eventually through decisions made by
    parole boards. 39 Even then, however, no one conceived of trial-level
    “due process” rights as attaching to sentencing.
    ¶ 161 Throughout the late nineteenth and early twentieth
    centuries, judges and parole boards enjoyed wide discretion to
    determine the appropriate sentence. 40 Yet sentencing and parole
    proceedings were never treated like trials. The rules of evidence
    generally did not apply. Cf. Williams v. New York, 
    337 U.S. 241
    , 251
    (1949) (“The due-process clause should not be treated as a device for
    freezing the evidential procedure of sentencing in the mold of trial
    38  Alan M. Derschowitz, Criminal Sentencing in the United States: An
    Historical and Conceptual Overview, 423 ANNALS AM. ACAD. POL. & SOC.
    SCI. 117, 124–25, 128 (1976) (“Specific crimes were punished, according
    to the colonial criminal codes, with relatively specific penalties.”); see,
    e.g., COMPILED LAWS OF THE TERR. OF UTAH § 1840 (1876) (“The several
    sections of this code which declare certain crimes to be punishable as
    therein mentioned devolve a duty upon the court authorized to pass
    sentence, to determine and impose the punishment prescribed.”).
    39 Derschowitz, Criminal 
    Sentencing, supra, at 128
    (describing the
    movement over time from statutorily-prescribed sentences for specific
    offenses to an indeterminate sentencing regime); Alan C. Michaels, Trial
    Rights at Sentencing, 
    81 N.C. L
    . REV. 1771, 1812 n.169 (2003); ARTHUR W.
    CAMPBELL, LAW OF SENTENCING §§ 1:2–1:3 (3d ed. 2004).
    40  See generally Carissa Byrne Hessick & F. Andrew Hessick,
    Procedural Rights at Sentencing, 90 NOTRE DAME L. REV. 187 (2014); see
    also    CAMPBELL,       LAW    OF    
    SENTENCING, supra
    ,  at   § 9:3
    (“[S]entences . . . determined by trial judges . . . ride upon one of the
    most powerful and pervasive doctrines in the law of sentencing: any
    sentence within constitutional and statutory limits will be upheld on
    appeal as long as it was selected by the proper exercise of judicial
    discretion.”).
    67
    NEESE v. PAROLE BOARD
    LEE, A.C.J., dissenting
    procedure.”). 41 Sentencing judges had “wide discretion” to consider
    “[o]ut-of-court affidavits.” 
    Id. at 246.
    And there is no evidence that
    41 The majority cites cases purportedly undermining this conclusion.
    It says that the cases cited in Williams establish that certain “procedural
    protections may have been understood to apply to sentencing
    proceedings in the period leading up to ratification of the Utah
    Constitution.” Supra ¶ 75. The majority’s interpretation of the cases it
    cites may well be correct. But these cases tell us nothing of relevance to
    the question presented here. The question before us is whether the
    procedural guarantees of the due process clause were understood to apply
    in sentencing proceedings. Nothing in the majority’s cited cases speaks
    to that question. These cases suggest, at most, that certain rules of
    evidence and procedure were deemed to apply at sentencing. Compare
    supra ¶ 72 (stating that the cases Williams relied on “may stand for the
    proposition that sentencing judges must adhere to norms of due process
    when settling on a sentence”), with State v. Reeder, 
    60 S.E. 434
    , 435 (S.C.
    1908) (upholding the trial court’s consideration of “affidavits tending
    greatly to aggravate the crime” without any reference to due process),
    and State v. Smith, 2 S.C.L. (Bay) 62, 63 (S.C. Ct. Const. App. 1796)
    (allowing the defendant to submit mitigating evidence to the
    sentencing court without any reference to due process), and Kistler v.
    State, 
    54 Ind. 400
    , 404 (Ind. 1876) (relying on the Cruel and Unusual
    Punishments Clause to ensure “that all penalties are proportioned to
    the nature of the offence” without any reference to due process), and
    People v. Vermilyea, 
    7 Cow. 108
    , 143 (N.Y. Sup. Ct. 1827) (nothing that
    sentencing courts should consider “the circumstances in evidence”
    without any reference to due process). In fact, the Reeder court even
    notes that admitting aggravating affidavits does not raise constitutional
    concerns because “the verdict of the jury is not 
    affected.” 60 S.E. at 435
    .
    And the defendant’s “constitutional right to be confronted by witnesses
    against him and to have the privilege of cross-examining them”
    terminates once the jury decides the guilt phase of the trial, so long as
    the trial judge does not “attempt to alter the verdict of the jury.” 
    Id. The majority’s
    cases on character evidence, 
    see supra
    ¶ 78, fall short
    for similar reasons. We can stipulate to the possibility that “character
    evidence was often introduced for sentencing purposes” during the
    nineteenth century. Supra ¶ 78. But that tells us nothing about whether
    the right to introduce such evidence—or to present any other
    evidence—was viewed as an element of the constitutional right to “due
    (cont.)
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    defendants had any constitutional right to call 42 or cross-examine
    witnesses. 43 
    Id. at 250
    (“We must recognize that most of the information
    now relied upon by judges to guide them in the intelligent imposition
    of sentences would be unavailable if information were restricted to that
    given in open court by witnesses subject to cross-examination.”).
    ¶ 162 At no point in this important timeframe (the nineteenth
    century—the period leading up to the framing of the Utah
    Constitution) did anyone raise a due process challenge to these
    process.” The majority has cited nothing in support of that proposition.
    And the cases it does cite speak only to the applicability of rules of
    evidence or procedure—not the requirements of due process. Our rules
    of evidence and procedure are certainly amenable to adaptation and
    amendment over time. And I’m quite open to the possibility of
    amending such rules to account for the current needs of our sentencing
    system. But the availability of that mechanism of adaptation does not
    tell us that the constitutional guarantee of due process must also
    evolve.
    42See CAMPBELL, LAW OF 
    SENTENCING, supra
    , at § 13:20 (“Just as there
    is no constitutional right for all offenders to confront witnesses at
    sentence hearings, there is as yet no recognized constitutional right to
    present witnesses on their behalf.”); see also 
    Reeder, 60 S.E. at 435
    .
    43 
    Reeder, 60 S.E. at 435
    (“Certainly there is no ground for saying that
    [submitting affidavits in aggravation during a sentencing proceeding]
    would deny to the defendant the constitutional right to be confronted
    by witnesses and to have the privilege of cross-examining them, for the
    reason that the verdict of the jury is not affected.”). It is not even
    necessarily true that a defendant’s traditional right to attend his own
    sentencing hearing, see FRANCIS WHARTON, A TREATISE ON THE CRIMINAL
    LAW OF THE UNITED STATES 54, 298 (1874), springs from due process.
    CAMPBELL, LAW OF 
    SENTENCING, supra
    , at § 9:14 (“American caselaw
    reveals no uniform source of authority for an offender’s right to be
    present at sentencing. Depending on the jurisdiction, it is said to arise
    from common law, the federal constitution, state constitution, statutes,
    or court rules.”). Due process might not even require a sentencing
    hearing at all. Cf. CAMPBELL, LAW OF 
    SENTENCING, supra
    , at 10:4 (“Most
    jurisdictions consign to judicial discretion the decision to hold
    sentencing hearings.”).
    69
    NEESE v. PAROLE BOARD
    LEE, A.C.J., dissenting
    discretionary sentencing proceedings. Certainly there are no judicial
    decisions establishing a constitutional right to due process in these
    proceedings. 44
    ¶ 163 That is an important “dog that didn’t bark.” If the
    generation of the framing of the Utah Constitution viewed the
    constitutional guarantee of due process of law to attach to sentencing
    proceedings, surely someone would have raised the argument. 45 Surely
    a court would have endorsed that view.46
    44  Stephen Saltzburg, for example, quotes Justice O’Connor’s
    dissenting opinion in Apprendi v. New Jersey, 
    530 U.S. 466
    , 523–54 (2000),
    and states that she “is undoubtedly correct that the Court never . . .
    worried about due process when it came to non-capital sentencing.
    However, she did not explain why the Court should not have, or why
    liberty had been given such short shrift for so many years.” Saltzburg,
    Due 
    Process, supra, at 249
    . A plausible explanation, given the historical
    record, is simply that litigants never raised the issue. It is not that
    “liberty had been given such short shrift,” but rather that no defense
    attorney ever imagined that “due process” might demand extra
    procedures at sentencing.
    45 The majority implies that appellate avenues for asserting a due
    process challenge to a sentencing proceeding may have been foreclosed
    by governing rules of appellate jurisdiction. 
    See supra
    ¶¶ 81–82. But the
    majority’s cited authority does not support this conclusion. See Appellate
    Review of Sentencing Procedure, 74 YALE L.J. 379, 381–82 & n.22 (1964)
    (noting that “[s]everal cases . . . stand as exceptions to the rule of non-
    review” and that “[c]lose examination of this group of
    decisions . . . reveals that they contain an implicit distinction between
    review of the merits of a sentence and review of the procedure leading
    to a sentence,” where procedure “cover[s] not only . . . traditional
    elements, but also the format and criteria which the judge uses in
    imposing sentences, including presentencing reports, requests for
    probation and referrals for mental examination”). Other authority,
    moreover, cuts the other way—indicating that a party with a federal
    constitutional basis for challenging a sentence was entitled to raise that
    challenge on appeal. See e.g., United States v. Tucker, 
    404 U.S. 443
    , 447
    (1972) (holding that federal due process is violated when a sentence is
    imposed on the basis of “misinformation of constitutional magnitude”);
    Townsend v. Burke, 
    334 U.S. 736
    , 741 (1948) (holding that federal due
    (cont.)
    70
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                              LEE, A.C.J., dissenting
    process is violated when a court relies on “extensively and materially
    false” evidence to impose a sentence on an uncounseled defendant).
    I will stipulate that state courts in the nineteenth century “were
    rarely called upon to assess the constitutionality of statutes that dealt
    with criminal procedure.” Supra ¶ 84 (citation omitted). And it seems
    likely that this grew out of the fact that the historical basis for assuring
    fair process was “through the common law.” 
    Id. But that
    seems to me to
    cut against the majority’s conclusions and in favor of mine. My whole
    point is that the historical record does not suggest that the nineteenth
    century understanding of the constitutional right of “due process”
    would have extended to sentencing proceedings. And for that reason I
    would leave the development of fair procedure for other (non-
    constitutional) mechanisms like rulemaking.
    46  It may well be that the lack of any historical right to
    cross-examination in sentencing was rooted in a longstanding (but
    today outmoded) faith in “the power of oaths to assure the reliability of
    evidence.” Supra ¶ 74 n.9. And the evolution in our thinking about the
    power of an oath could well be a reason to amend our rules of evidence
    to allow for more procedure in sentencing. But that doesn’t tell us that
    the historical understanding of due process must likewise evolve in a
    manner that responds to our modern sensibilities. The Utah
    Constitution prescribes mechanisms for amendment. See UTAH CONST.
    art. XXIII, § 1. If the people think that a principle enshrined in the
    document has outlived its usefulness they are free to initiate the process
    for amending that principle. But if the guarantee of “due process” was
    not historically understood to apply to sentencing then it is not the role
    of a court to revise the principle of due process to conform to modern
    sensibilities.
    Sentencing is not some “new application” of the principle of due
    process. 
    See supra
    ¶ 74 n.9. Sentencing proceedings have been around
    since well before the founding of our Utah Constitution. So if the
    founding-era notion of “due process” was not viewed as extending to
    sentencing then the due process guarantee doesn’t apply to sentencing.
    The scope of the due process guarantee is an aspect of the governing
    “legal principle.” We may now view the thinking behind that principle
    to be outmoded. But that is at most a basis for amending the
    constitution. It is not a license for a judicial reformulation. And it
    (cont.)
    71
    NEESE v. PAROLE BOARD
    LEE, A.C.J., dissenting
    ¶ 164 Yet the historical record is silent on this matter. And that is
    significant. 47 It suggests that the public understanding of the right to
    “due process of law” largely did not extend to sentencing
    proceedings. 48 The apparent premise of this view is that a sentencing
    does not involve an independent “depriv[ation] of life, liberty or
    property”—such deprivation occurs at the guilt phase of a trial, and
    there is no second deprivation of liberty implicated by sentencing. Any
    decision to impose less than the maximum sentence, in this view, is an
    certainly isn’t a “new application” that the framers hadn’t thought
    about.
    47  It may be that sentencing was more a matter for jury
    determination during the nineteenth century. 
    See supra
    ¶ 77. And that
    may be part of the explanation for a lack of “appellate cases applying
    procedural protections to the ‘sentencing phase’ of a criminal
    proceeding” in the relevant time period. Supra ¶ 77. But that doesn’t tell
    us anything of relevance to the question of whether the guarantee of
    due process was understood to apply in sentencing proceedings. I have
    cited extensive historical material supporting my answer to that
    question. The majority, at most, has identified explanations for a lack of
    historical material cutting the other way. That is insufficient. The
    burden of establishing the unconstitutionality of existing parole
    procedures falls on Neese. So if the most that can be said is that the
    historical record is at best hazy then the burden has not been carried.
    48   Cf. 
    Apprendi, 530 U.S. at 545
    (O’Connor, J., dissenting) (“During
    the age of broad judicial sentencing discretion, judges frequently made
    sentencing decisions on the basis of facts that they determined for
    themselves, on less than proof beyond a reasonable doubt, without
    eliciting very much concern from civil libertarians.” (emphasis added)
    (quoting Gerald E. Lynch, Towards A Model Penal Code, Second (Federal?):
    The Challenge of the Special Part, 2 BUFF. CRIM. L. REV. 297, 320 (1998)));
    
    Williams, 337 U.S. at 246
    (“[B]oth before and since the American
    colonies became a nation, courts in this country and in England
    practiced a policy under which a sentencing judge could exercise wide
    discretion in the sources and types of evidence used to assist him in
    determining the kind and extent of punishment to be imposed within
    limits fixed by law. Out-of-court affidavits have been used
    frequently . . . .” (citations omitted)).
    72
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                              LEE, A.C.J., dissenting
    act of grace 49—a grant of greater liberty than the defendant was entitled
    to. And on that basis the original understanding of the right to due
    process does not extend to sentencing proceedings. 50
    ¶ 165 This does not, of course, mean that no process should ever
    be afforded in such proceedings. It just means that the question is
    primarily left to policymakers—to those charged with exercising the
    discretion to decide on appropriate rules for sentencing proceedings. 51
    49  The majority resists this premise, citing historical material
    suggesting that parole is based on a “treatment” model and not a
    principle of mercy or grace. 
    See supra
    ¶ 87. But “treatment” and “grace”
    are hardly incompatible. The material cited by the majority suggests
    not that parole was not a discretionary matter of legislative grace but
    instead that such discretion was to be exercised with an eye toward
    prospects for treatment.
    The constitutional question presented is whether a discretionary
    parole decision—whether as an act of grace or as an inquiry into fitness
    for release under a “treatment” framework—is a proceeding that was
    historically understood to be protected by the constitutional right to
    due process. Nothing in the majority’s historical materials contradict
    my conclusion on this core question.
    50 See, e.g., Alan C. Michaels, Trial Rights at 
    Sentencing, supra, at 1812
    n.169 (noting that the reason that defendants were not entitled to see
    the information to be used at sentencing could “perhaps . . . [be]
    derived from a view that a sentence below the maximum was . . .
    considered a potential act of leniency that created no procedural
    entitlements”) (citing Sanford H. Kadish, Legal Norm and Discretion in
    the Police and Sentencing Processes, 75 HARV. L. REV. 904, 919–20 (1962)).
    51  A legislative or administrative decision to offer more process,
    moreover, would not alter the underlying constitutional due process
    baseline. Cf. McMillan v. Pennsylvania, 
    477 U.S. 79
    , 92 (1986) (“We have
    some difficulty fathoming why the due process calculus would change
    simply because the legislature has seen fit to provide sentencing courts
    with additional guidance.”); see also 
    Williams, 337 U.S. at 250
    –51 (“The
    due-process clause should not be treated as a device for freezing the
    evidential procedure of sentencing in the mold of trial procedure. So to
    treat the due-process clause would hinder if not preclude all courts—
    state and federal—from making progressive efforts to improve the
    (cont.)
    73
    NEESE v. PAROLE BOARD
    LEE, A.C.J., dissenting
    ¶ 166 Our Labrum opinion resolved this matter the other way. See
    
    Labrum, 870 P.2d at 909
    (“[D]ue process . . . requires that the inmate
    know what information the Board will be considering at the hearing
    and that the inmate know soon enough in advance to have a reasonable
    opportunity to prepare responses and rebuttal of inaccuracies.”). That
    decision may be entitled to deference as a matter of stare decisis. But,
    again, that does not mean that we are required to extend that decision
    further. And the above history provides grounds for leaving Labrum
    where it is and not inventing additional procedures not established by
    that opinion.
    B
    ¶ 167 The above-cited history is also relevant to the second due
    process question presented—to the nature or extent of the procedures
    guaranteed by “due process.” Here we can assume that a parole
    hearing is the sort of proceeding involving a deprivation of liberty that
    triggers a right to due process. But we still have to decide on the
    content of the constitutional guarantee—on how much process is
    constitutionally due.
    ¶ 168 I see no ground for constitutionalizing whatever procedure a
    majority of this court might find reasonable. That kind of policymaking
    is not in the nature of constitutional interpretation. If we are to
    constitutionalize a field of law we must root our decision in the text and
    original meaning of the constitution. And such an inquiry would look
    to the procedures viewed as inherent in due process at the time of the
    framing of the Utah Constitution.
    ¶ 169 Those procedures, as noted above, encompassed the basic
    rights of notice and an opportunity to be heard in accordance with
    “some settled course of judicial proceedings,” In re Adoption of K.A.S.,
    
    2016 UT 55
    , ¶ 88, 
    390 P.3d 278
    (Lee, A.C.J., dissenting) (citation
    omitted)—rights long viewed as “fundamental” to our “system of
    jurisprudence,” 
    id. ¶ 87
    (Lee, A.C.J., dissenting) (quoting Hurtado v.
    California, 
    110 U.S. 516
    , 529 (1884)). See also LUCIUS POLK MCGEHEE, DUE
    administration of criminal justice.”). That is because article I, section 7’s
    “due process” guarantee is based on the original public understanding
    of that language in 1896, not the public understanding in 2017. Later
    developments—whether legal, political, or social—do not change that
    baseline.
    74
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                             LEE, A.C.J., dissenting
    PROCESS OF LAW UNDER THE FEDERAL CONSTITUTION 2 (1906) (“The basis
    of due process” consists of “orderly proceedings and an opportunity to
    defend.”). Yet the precise means of notice and an opportunity to be
    heard are not enshrined in the guarantee of due process. See In re
    Adoption of K.A.S., 
    2016 UT 55
    , ¶ 87. Our system leaves decisions on
    those matters to adaptation and evolution over time by policymakers.
    ¶ 170 Neese was afforded a basic right of notice and an
    opportunity to be heard. He was advised of the pendency of the parole
    hearing and given a chance to present his view on the questions
    presented. See UTAH ADMIN. CODE r. 671-202-1. In other words he was
    afforded the procedures established by this court in our Labrum
    decision. See 
    Labrum, 870 P.2d at 909
    (“[D]ue process . . . requires that
    the inmate know what information the Board will be considering at the
    hearing and that the inmate know soon enough in advance to have a
    reasonable opportunity to prepare responses and rebuttal of
    inaccuracies.”). And I see no reason to conclude that the original
    understanding of “due process” would have entitled him to any more
    than that.
    ¶ 171 Certainly the historical record does not support the notion of
    a right to call witnesses. 52 Or to receive a written decision explaining
    the basis of the sentencing decision. 53
    ¶ 172 Historically, the defendant’s rights at sentencing were
    minimal. At the time of the framing of the Utah Constitution no one
    would have thought that the right to due process implicated a right to
    call witnesses or review a written sentencing decision. See CAMPBELL,
    LAW OF 
    SENTENCING, supra
    , at § 10:5 (stating that the “strong nationwide
    52Cf. CAMPBELL, LAW OF 
    SENTENCING, supra
    , at § 13:20 (“Just as there
    is no constitutional right for all offenders to confront witnesses at
    sentence hearings, there is . . . no recognized constitutional right to
    present witnesses on their behalf.”); 
    Williams, 337 U.S. at 250
    (“We must
    recognize that most of the information now relied upon by judges to
    guide them in the intelligent imposition of sentences would be
    unavailable if information were restricted to that given in open court by
    witnesses subject to cross-examination.”).
    53  See Hessick & Hessick, Procedural 
    Rights, supra, at 190
    –91
    (“[S]entencing courts were not required to provide the reasons for the
    sentences that they imposed.”).
    75
    NEESE v. PAROLE BOARD
    LEE, A.C.J., dissenting
    trend to require reasons for sentences” began only in the “late-1970s”).
    Indeed the process afforded by the Parole Board far exceeds anything
    that would have been available historically. The Board gives
    prospective parolees a right to review everything in the Board’s file,
    UTAH ADMIN. CODE r. 671-303-1(1), 54 an opportunity to respond in
    writing to any matters in the file, 
    id. r. 671-303-1(2),
    the prerogative of
    appearing and testifying to the Board, 
    id. r. 671-301-1(A)
    & (B), and
    even a right to file requests for reconsideration or “special attention
    reviews,” 
    id. r. 671-316-1
    (redetermination review procedure); 
    id. r. 671-311-1
    (special attention review procedure). And the Board
    guarantees that its “[d]ecisions . . . will be reduced to a written order,”
    which generally are “accompanied by a brief rationale for the order.”
    
    Id. r. 671-305-1.
        ¶ 173 This process goes well beyond that afforded to convicted
    persons at sentencing proceedings in the nineteenth century. And that
    is a further basis for rejecting the majority’s decision.
    III
    ¶ 174 The majority hedges in its articulation of the due process
    rights available in a parole hearing. It says that the constitutional right
    “to call witnesses and present documentary evidence” attaches “unless
    the safe and effective administration of the prison system requires
    otherwise.” Supra ¶ 43. That may be a helpful caveat. At the very least it
    is a wise recognition of our lack of expertise and understanding of the
    parole process.
    ¶ 175 But the court’s caveat also highlights a basic problem with
    the majority’s analysis. We have little knowledge of the day-to-day
    operations of the Parole Board. And the briefing in this case offers little
    insight into the possible effects of a decision to announce a new
    constitutional right to call witnesses. Perhaps that means that any right
    to call witnesses must be framed as tentative and conditional. But this
    also underscores a problem with the decision to constitutionalize this
    field of law.
    54 Compare that Board-created right with the historical approach:
    “Despite repeated litigation on a variety of grounds, disclosure of a
    court’s presentence report was not constitutionally required until a few
    tribunals started doing so in the late 1970s.” CAMPBELL, LAW OF
    
    SENTENCING, supra
    , at § 9:12.
    76
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                              LEE, A.C.J., dissenting
    ¶ 176 We have a means of preserving the need for a “safe and
    effective administration of the prison system.” It is to respect the
    traditional role of the Parole Board in adopting rules of procedure in
    this field—and to leave the limits of the Due Process Clause to the
    procedures historically understood to be guaranteed by the
    constitution.
    ¶ 177 We undermine the orderly evolution of our law when we
    constitutionalize fields meant for policymakers. Our constitutional
    decisions are set in stone, so to speak, and are not easily set aside. We
    should take that into account before we enshrine a right to call
    witnesses or to receive a written sentencing decision.
    ¶ 178 It may be a step in the right direction to acknowledge the
    countervailing interest in “the safe and effective administration of the
    prison system.” But that does not adequately capture the costs and
    concerns on the other side of the balance. We cannot properly talk
    about the best process—let alone the constitutionally mandated
    process—for a parole system if we are focused only on the “effective
    administration of the prison system.” We must also account for the needs
    of an effective parole system. And the most we can say on that point here
    is that those charged with managing that system have determined that
    the right to call or cross-examine witnesses is a procedure that
    interferes with the “safe and effective administration” of parole in
    Utah. Surely there are good reasons for that decision.
    ¶ 179 We can characterize the Parole Board’s process as effectively
    “a miniature criminal trial.” Supra ¶ 46. But that does not make it so. In
    our system of justice the Parole Board performs a very different
    function from the trial court. The Board is not deciding on guilt or
    innocence. Nor is it even resolving the questions presented to a trial
    court at sentencing—like the important question, for example, of
    whether to impose a sentence or instead suspend it upon conditions of
    probation. See UTAH CODE § 77-18-1(2)(a).
    ¶ 180 Instead, the Parole Board is making a more holistic,
    discretionary decision—whether and when to allow an inmate
    committed to serve up to a statutory maximum term to be released on
    parole at an earlier date. 55 These decisions are sensitive ones. And our
    55 See Mission and Jurisdiction, UTAH BOARD OF PARDONS & PAROLE,
    https://goo.gl/At6Fes (last visited July 1, 2017) (“The mission . . . is to
    (cont.)
    77
    NEESE v. PAROLE BOARD
    LEE, A.C.J., dissenting
    law has long recognized that we can account for all of these sensitive
    considerations only if we preserve the subjective, discretionary
    judgment of the Parole Board.
    ¶ 181 We interfere with that discretion when we constitutionalize
    the Parole Board’s processes. And in so doing we threaten the
    longstanding premises of parole in our criminal justice system. The
    more we formalize this process the more we threaten the equilibrium of
    our existing system of criminal justice. We should hesitate before
    proclaiming a full understanding of the costs and benefits of
    superimposing additional procedures on a system that remains mostly
    hidden from judicial scrutiny. See UTAH CODE § 77-27-5(3) (“Decisions
    of the board in cases involving paroles, pardons, commutations or
    terminations of sentence . . . are final and are not subject to judicial
    review.”).
    ¶ 182 The “critical functions” of due process cited in Labrum are
    not a legal test. 
    See supra
    ¶ 28 (citing the minimization of “error” and
    the promotion of the “perception of fairness” as considerations
    requiring the procedures required by the majority); 
    Labrum, 870 P.2d at 910
    (describing “[a]ccuracy and fairness” as “essential” concerns of due
    process). They are just benefits of additional procedure. And if we cite
    only the benefits—the upsides—of additional procedure we will have a
    one-way ratchet that will always result in more constitutionally
    required procedure.
    ¶ 183 That is the majority’s methodology. It treats the
    minimization of error and the promotion of the perception of fairness
    as the touchstones for assessing the requirements of the due process
    clause. 
    See supra
    ¶ 28. And, not surprisingly, the court concludes that
    more procedure—a right to call witnesses and to a written ruling—is
    required.
    provide fair and balanced release, supervision, and clemency decisions
    that address community safety, victim needs, offender accountability,
    risk reduction, and reintegration.”); UTAH CODE § 77-18-5 (allowing the
    judge and prosecutor to send a statement to the board “with any
    information which might aid the board”); 
    id. § 77-27-13(1)
    (requiring
    corrections officers to “furnish the board with pertinent information
    regarding an offender’s physical, mental, and social history and his
    institutional record of behavior, discipline, work, efforts of
    self-improvement, and attitude toward society”).
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    ¶ 184 This is another fatal flaw in the majority’s approach. The
    court ultimately does not identify an operative legal principle or legal
    test. It simply identifies grounds for ever-expanding procedural
    mechanisms. The court purports to identify only two new due process
    rights at parole hearings—the right to call witnesses and the right to a
    written ruling. But its mode of reasoning provides no stopping point. If
    we take the majority opinion at face value we can anticipate that more
    and more procedural rights are to come. Under the majority’s approach
    any additional mechanisms that can be thought to decrease the risk of
    error and increase the perception of fairness may eventually be
    “required” by the due process clause. So long as a majority of the court
    concludes that additional procedures advance these goals, they may be
    viewed as required by the Utah Constitution. 56
    ¶ 185 The court’s articulated factors are as fuzzy and unworkable
    as they are unmoored from history. The inquiry into the perception of
    fairness seems particularly unmanageable. Fairness is a two-way street.
    And the inmate is only one side of the criminal justice equation. The
    other side encompasses interests protected by the state—the public
    generally and also victims. And fairness to those groups’ interests
    should also be weighed in the balance.
    ¶ 186 I understand that an inmate in Neese’s position might
    “question the integrity of a system in which the Parole Board could . . .
    adjudge him a sex offender and postpone his release date for up to
    twenty-eight years based solely on unproven allegations and without
    . . . the opportunity to call witnesses.” Supra ¶ 32 (emphasis omitted).
    But what about the victim of Neese’s crimes? And what about the
    general public, with an interest in seeing that inmates are not released
    on parole in circumstances in which there is a perceived risk to the
    public? What about the perception of fairness on this side of the
    balance?
    56   Cf. ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL
    COURTS AND THE LAW 39 (1997) (rejecting a theory of constitutional
    interpretation premised on the question of “the desirable result for the
    case at hand,” where “the Constitution . . . mean[s] what it ought to
    mean[;] Should there be . . . a constitutional right to die? If so, there is.
    Should there be a constitutional right to reclaim a biological child put
    out for adoption by the other parent? Again, if so, there is. If it is good,
    it is so.” (citations omitted)).
    79
    NEESE v. PAROLE BOARD
    LEE, A.C.J., dissenting
    ¶ 187 Neese’s victim saw him convicted of crimes sustaining a
    sentence of up to thirty-two years in prison. And the victim understood
    that Neese could be required to serve that full term unless the Parole
    Board exercised its discretion to authorize his early release on parole.
    Under longstanding procedures, the Parole Board could be expected to
    exercise its discretion to consider conduct not resulting in a conviction,
    see Alvillar v. Bd. of Pardons & Parole, 
    2014 UT App 61
    , ¶ 6, 
    322 P.3d 1204
    ,
    1208 (“[T]he Board may consider and weigh any factors that it deems
    relevant to its determination of whether or not an inmate will be
    afforded parole . . . .”), and to require Neese to participate in
    rehabilitation programs in prison to assure that any release would not
    cause undue risk to the public. See, e.g., UTAH ADMIN. CODE
    r. 671-402-1(A) (“The Board may add special conditions to a standard
    parole agreement. Special conditions are generally intended to help
    hold an offender accountable or to help rehabilitate an offender.”). And
    Neese’s victim would have understood that Parole Board procedures
    would not have allowed Neese to call witnesses in any parole hearings.
    
    Id. r. 671-308-3(b)
    (“Only the offender, a person appointed by the Board
    to assist an offender pursuant to this rule, or a victim as provided for by
    Utah law may present testimony or comment during a hearing.”).
    ¶ 188 All of these expectations will be dashed by the majority’s
    decision today. And Neese’s victim will “justly question the integrity of
    a system,” supra ¶ 32, that allows Neese to change the rules of the
    parole game midstream.
    ¶ 189 The majority’s warning about the effects of the Parole
    Board’s procedures on plea bargains strikes me as backwards. I do not
    see how we can say that a defendant has a “justifiabl[e]” expectation
    that charges dismissed on a plea bargain will not “come roaring back at
    their parole hearing.” Supra ¶ 33. Our longstanding parole system
    makes that a very real possibility. It tells convicted defendants that they
    may well have to serve the full extent of their imposed sentence, see
    UTAH CODE § 77-18-4(2) & (3), that the decision to release them early is
    a matter within the discretion of the Parole Board, see 
    id. § 77-18-4(3),
    that that discretion can take into account a range of considerations
    affecting the inmate’s risk to the public, see Alvillar, 
    2014 UT App 61
    ,
    ¶ 6, and that the inmate has no right to call witnesses at a parole
    hearing, see UTAH ADMIN. CODE r. 671-308-3(b). With all this in mind, a
    defendant like Neese is in no position to claim surprise at the Parole
    Board’s approach—or concern about the effect on incentives in
    plea-bargaining.
    80
    Cite as: 
    2017 UT 89
                             LEE, A.C.J., dissenting
    ¶ 190 If anything it is Neese’s victim whose interests and
    expectations are being undermined. By establishing a new set of
    procedural rights never before established in the parole system the
    majority undermines Neese’s victim’s justifiable expectations. It is the
    victim whose expectations are being undermined here. And victims like
    her “will be justifiably wary” of plea deals involving the dismissal of
    sex-offense charges, if the victims know they may be called in to testify
    in future parole hearings.
    ¶ 191 We can disagree about whether a right to call witnesses at a
    parole hearing is a good idea. But so long as we are talking about
    fairness and justifiable expectations we should paint the full picture.
    And that picture must include victims and the public.
    81
    

Document Info

Docket Number: Case No. 20150487

Citation Numbers: 2017 UT 89, 416 P.3d 663

Judges: Lee, Himonas, Durham, Pearce

Filed Date: 12/14/2017

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (65)

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in-the-matter-of-letters-rogatory-issued-by-the-director-of-inspection-of , 385 F.2d 1017 ( 1967 )

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General Motors Corp. v. Tracy , 117 S. Ct. 811 ( 1997 )

Jau-Fei Chen v. Stewart , 510 Utah Adv. Rep. 9 ( 2004 )

State v. Winfield , 2006 Utah LEXIS 4 ( 2006 )

State v. Humphrey , 484 Utah Adv. Rep. 3 ( 2003 )

State v. Cruz , 530 Utah Adv. Rep. 30 ( 2005 )

In Re Adoption of B.Y. , 356 P.3d 1215 ( 2015 )

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Warner v. Goltra , 55 S. Ct. 46 ( 1934 )

Clearone, Inc. v. Revolabs, Inc. , 2016 Utah LEXIS 37 ( 2016 )

State v. McClellan , 635 Utah Adv. Rep. 85 ( 2009 )

Hagar v. Reclamation District No. 108 , 4 S. Ct. 663 ( 1884 )

Williams v. New York , 69 S. Ct. 1079 ( 1949 )

Kyllo v. United States , 121 S. Ct. 2038 ( 2001 )

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Kuchcinski v. Box Elder County , 2019 UT 21 ( 2019 )

State v. Sisneros , 2022 UT 7 ( 2022 )

Widdison v. Bd of Pardons , 2021 UT 12 ( 2021 )

State v. Hintze , 2022 UT App 117 ( 2022 )

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Rutherford v. Talisker Canyons Fin., Co. , 445 P.3d 474 ( 2019 )

Zimmerman v. Univ. of Utah & Dr. William McMahon , 417 P.3d 78 ( 2018 )

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