Campbell v. Montana State Board of Pardons

470 F. Supp. 1301

• Court: District Court, D. Montana
• Decided: June 25, 1979
• Docket: Misc. Civ. 79-6-M
• Status: Published

Opinion

OPINION AND ORDER

RUSSELL E. SMITH, District Judge.

The petition for leave to appear in forma pauperis is denied on the ground that the petition is frivolous. In Greenholtz v. Inmates of Nebraska Pena] and Correctional Complex, - U.S. -, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), the Supreme Court held that, unless a parole statute creates a legitimate entitlement to parole, there is no requirement of due process protection. A mere hope is insufficient. The language of the Montana statute 1 does not in my opinion create an entitlement. Whether or not parole is granted is dependent entirely on the discretion of the parole board.

1 . “Subject to the following restrictions, the board shall release on parole by appropriate order any person confined in the Montana state prison, except persons under sentence of death and persons serving sentences imposed under 46- 18 202(2), when in its opinion there is reasonable probability that the prisoner can be released without detriment to himself or to the community.” Mont. Code Ann. § 46-23-201(1) (1978).