Judges: WRITTEN BY: Don Stenberg, Attorney General Laurie Smith Camp, Deputy Attorney General
Filed Date: 4/16/1996
Status: Precedential
Modified Date: 7/5/2016
REQUESTED BY: Ronald L. Bartee, Chairman, Nebraska Board of Parole You have asked whether the Parole Board may decline to approve the parole plan of an inmate who intends to live with a "girlfriend" or "boyfriend". You note that the Board has been approving such parole plans since 1993 based on the belief that disapproval would constitute discrimination on the basis of "marital status" and would require the Board to articulate a "compelling reason" for the denial.
We conclude that the Board is under no obligation to approve the parole plan of any inmate who intends to reside with a "girlfriend" or "boyfriend."
Nebraska statutes, and case law interpreting those statutes, make clear the fact that an inmate does not have a right to parole:
The release of a committed offender on parole shall not be upon the application of the offender, but by the initiative of the Board of Parole.
Neb. Rev. Stat. §
Each committed offender eligible for parole shall, in advance of his parole hearing, have a parole plan in accordance with the rules of the Board of Parole.
Neb. Rev. Stat. § 81-1,112(1) (1994).
In making its determination regarding a committed offender's release on parole, the Board of Parole shall take into account each of the following factors:
. . . .
(b) the adequacy of the offender's parole plan;
. . . .
(e) the offender's family status and whether he has relatives who display an interest in him and whether he has other close and constructive associations in the community;
. . . .
(g) the type of residence, neighborhood or community in which the offender plans to live. . . .
Neb. Rev. Stat. §
In Greenholtz v. Nebraska Penal Inmates,
[T]he State may be specific or general in defining the conditions for release and the factors that should be considered by the parole authority. . . . [T]he choice involves a synthesis of record facts and personal observations filtered through experience of the decision maker and leading to a predictive judgment as to what is best both for the individual inmate and for the community.
Id. at 8.
The Court did find that Nebraska statutes created some "expectation" of parole, but that the Board's practice of giving an inmate an opportunity to be heard, and informing the inmate of the reasons for denial, were sufficient to satisfy any due process entitlement. Id. at 16.
Recognizing that there is no constitutional or statutory right to parole, the issue becomes whether the Board can deny parole for an inmate who plans to live with a "girlfriend" or "boyfriend", while granting parole to an inmate who plans to live with a spouse, parent, sibling, or other party. This issue warrants an equal protection analysis.
The Equal Protection Clause of the
Inmates whose parole plans call for them to live with "girlfriends" or "boyfriends" are not a protected class warranting a heightened level of scrutiny under the Equal Protection Clause. A policy disapproving parole plans for inmates who wish to reside with "girlfriends" or "boyfriends" would not discriminate against inmates on the basis of marital status. Marital status is an individual's status of being married or single. See, e.g., Neb. Rev. Stat. §
Marriage is a civil contract recognized under Nebraska law.Neb. Rev. Stat. §
Sincerely,
DON STENBERG Attorney General
Laurie Smith Camp Deputy Attorney General
APPROVED BY:
Don Stenberg Attorney General