Neese v. Utah Bd. of Pardons & Parole

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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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.
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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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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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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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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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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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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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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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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
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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
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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
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(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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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.
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¶ 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,
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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.
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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.
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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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¶ 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
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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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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.
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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.
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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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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.)
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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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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.
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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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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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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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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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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.)
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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.
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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.
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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.)
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¶ 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.
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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.
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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.”).
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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).
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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.)
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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.
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¶ 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
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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.”).
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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.)
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“[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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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.)
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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.)
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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.
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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)).
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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 . . . .”).
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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.
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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.”).
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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.”).
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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.)
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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.)
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¶ 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)).
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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.)
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¶ 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.
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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.”).
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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.
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¶ 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.)
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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)).
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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.
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¶ 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.
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