Connecticut Board of Pardons v. Dumschat

452 U.S. 458, 101 S. Ct. 2460, 69 L. Ed. 2d 158, 1981 U.S. LEXIS 113, 49 U.S.L.W. 4711

• Court: Supreme Court of the United States
• Decided: June 17, 1981
• Docket: 79-1997
• Status: Published

Opinions

Chief Justice Burger

delivered the opinion of the Court.

The question presented is whether the fact that the Connecticut Board of Pardons has granted approximately three-fourths of the applications for commutation of life sentences creates a constitutional “liberty interest” or “entitlement” in life-term inmates so as to require that Board to explain its reasons for denial of an application for commutation.

I

In 1964, respondent Dumschat was sentenced to life imprisonment for murder. Under state law, he was not eligible for parole until December 1983.¹ The Connecticut Board of Pardons is empowered to commute the sentences of life inmates by reducing the minimum prison term,² and such a commutation accelerates eligibility for parole.³ The authority of the Board of Pardons derives from Conn. Gen. Stat. § 18-26 (1981), which provides in pertinent part:

“(a) Jurisdiction over the granting of, and the authority to grant, commutations of punishment or releases, conditioned or absolute, in the case of any person convicted of any offense against the state and commutations from the penalty of death shall be vested in the board of pardons.

“(b) Said board shall have authority to grant pardons, conditioned or absolute, for any offense against the state at any time after the imposition and before or after the service of any sentence.”

On several occasions prior to the filing of this suit in February 1976, Dumschat applied for a commutation of his sentence. The Board rejected each application without explanation. Dumschat then sued the Board under 42 U. S. C. § 1983, seeking a declaratory judgment that the Board’s failure to provide him with a written statement of reasons for denying commutation violated his rights guaranteed by the Due Process Clause of the Fourteenth Amendment.

After hearing testimony from officials of the Board of Pardons and the Board of Parole, the District Court concluded (a) that Dumschat had a constitutionally protected liberty entitlement in the pardon process, and (b) that his due process rights had been violated when the Board of Pardons failed to give “a written statement of reasons and facts relied on” in denying commutation. 432 F. Supp. 1310, 1315 (1977). The court relied chiefly on a showing that “at least 75 percent of all lifers received some favorable action from the pardon board prior to completing their minimum sentences” and that virtually all of the pardoned inmates were promptly paroled.⁴ Id., at 1314. In response to postjudgment motions, the District Court allowed other life inmates to intervene, certified the suit as a class action, and heard additional evidence.⁵ The court held that all prisoners serving life sentences in Connecticut state prisons have a constitutionally protected expectancy of commutation and therefore that they have a right to a statement of reasons when commutation is not granted. The Court of Appeals affirmed. 593 F. 2d 165 (CA2 1979). A petition for a writ of certiorari was filed, and we vacated and remanded for reconsideration in light of Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1 (1979). 442 U. S. 926 (1979).

On remand, the Court of Appeals reaffirmed its original decision, 618 F. 2d 216 (CA2 1980), stating:

“In marked contrast [to the Nebraska statute considered in Oreenholtz], Connecticut’s pardons statute contains neither a presumption in favor of pardon nor a list of factors to be considered by the Board of Pardons. Instead, the statute grants the board unfettered discretion in the exercise of its power. The statute offers only the 'mere hope’ of pardon; it does not create a legitimate expectation of freedom and therefore does not implicate due process.” Id., at 219 (citation omitted).

The Court of Appeals also noted that the District Court’s holding that the mere possibility of a pardon creates a constitutionally cognizable liberty interest or entitlement was “no longer tenable” in light of Greenholtz. 618 F. 2d, at 221; see 442 U. S., at 8-11. However, the Court of Appeals then proceeded to conclude that “[t]he overwhelming likelihood that Connecticut life inmates will be pardoned and released before they complete their minimum terms gives them a constitutionally protected liberty interest in pardon proceedings.” 618 F. 2d, at 220. The Court of Appeals also understood our opinion in Greenholtz to hold that under the Due Process Clause, a brief statement of reasons is “not only constitutionally sufficient but also constitutionally necessary.”⁶ 618 F. 2d, at 222. On that reading of Greenholtz, the case was remanded to the District Court for a determination of “how many years life inmates must serve before the probability of pardon becomes so significant as to give rise to a protected liberty interest.”⁷

II

A

A state-created right can, in some circumstances, beget yet other rights to procedures essential to the realization of the parent right. See Meachum v. Fano, 427 U. S. 215, 226 (1976); Wolff v. McDonnell, 418 U. S. 539, 557 (1974). Plainly, however, the underlying right must have come into existence before it can trigger due process protection. See, e. g., Leis v. Flynt, 439 U. S. 438, 442-443 (1979).

In Greenholtz, far from spelling out any judicially divined “entitlement,” we did no more than apply the unique Nebraska statute. We rejected the claim that a constitutional entitlement to release from a valid prison sentence exists in-dependency of a right explicitly conferred by the State. Our language in Greenholtz leaves no room for doubt:

“There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence. The natural desire of an individual to be released is indistinguishable from the initial resistance to being confined. But the conviction, with all its procedural safeguards, has extinguished that liberty right: ‘[G]iven a valid conviction, the criminal defendant has been constitutionally deprived of his liberty.’ ” 442 U. S., at 7 (emphasis supplied; citation omitted).

Greenholtz pointedly distinguished parole revocation and probation revocation cases,⁸ noting that there is a “critical” difference between denial of a prisoner’s request for initial release on parole and revocation of a parolee’s conditional liberty. Id., at 9-11, quoting, inter alia, Friendly, “Some Kind of Hearing,” 123 U. Pa. L. Rev. 1267, 1296 (1975). Unlike probation, pardon and commutation decisions have not traditionally been the business of courts; as such, they are rarely, if ever, appropriate subjects for judicial review.⁹ Cf. Meachum v. Fano, supra, at 225.

A decision whether to commute a long-term sentence generally depends not simply on objective factfinding, but also on purely subjective evaluations and on predictions of future behavior by those entrusted with the decision. A commutation decision therefore shares some of the characteristics of a decision whether to grant parole. See Greenholtz, 442 U. S., at 9-10. Far from supporting an “entitlement,” Greenholtz therefore compels the conclusion that an inmate has “no constitutional or inherent right” to commutation of his sentence.

Respondents nevertheless contend that the Board’s consistent practice of granting commutations to most life inmates is sufficient to create a protectible liberty interest. They argue:

“[T]he State Board has created an unwritten common law of sentence commutation and parole acceleration for Connecticut life inmates. ... In effect, there is an unspoken understanding between the State Board and inmates. The terms are simple: If the inmate cooperates with the State, the State will exercise its parole power on the inmate’s behalf. Both the State and the inmate recognize those terms. Each expects the other to abide by them.” Brief for Respondents 17-18.

This case does not involve parole, and respondents’ argument wholly misconceives the nature of a decision by a state to commute the sentence of a convicted felon. The petition in each case is nothing more than an appeal for clemency. See Schick v. Reed, 419 U. S. 256, 260-266 (1974). In terms of the Due Process Clause, a Connecticut felon’s expectation that a lawfully imposed sentence will be commuted or that he .will be pardoned is no more substantial than an inmate’s expectation, for example, that he will not be transferred to another prison;¹⁰ it is simply a unilateral hope. Greenholtz, supra, at 11; see Leis v. Flynt, 439 U. S., at 443-444. A constitutional entitlement cannot “be created — as if by estoppel — merely because a wholly and expressly discretionary state privilege has been granted generously in the past.” Id., at 444, n. 5. No matter how frequently a particular form of clemency has been granted, the statistical probabilities standing alone generate no constitutional protections; a contrary conclusion would trivialize the Constitution. The ground for a constitutional claim, if any, must be found in statutes or other rules defining the obligations of the authority charged with exercising clemency.

B

The Court of Appeals correctly recognized that Connecticut has conferred “unfettered discretion” on its Board of Pardons, but — paradoxically—then proceeded to fetter the Board with a halter of constitutional “entitlement.” The statute imposes no limit on what procedure is to be followed, what evidence may be considered, or what criteria are to be applied by the Board. Respondents challenge the Board’s procedure precisely because of “the absence of any apparent standards.” Brief for Respondents 28. We agree that there are no explicit standards by way of statute, regulation, or otherwise.

This contrasts dramatically with the Nebraska statutory procedures in Greenholtz, which expressly mandated that the Nebraska Board of Parole “shall” order the inmate’s release “unless” it decided that one of four specified reasons for denial was applicable. 442 U. S., at 11. The Connecticut commutation statute, having no definitions, no criteria, and no mandated “shalls,” creates no analogous duty or constitutional entitlement.

It is clear that the requirement for articulating reasons for denial of parole in Greenholtz derived from unique mandates of the Nebraska statutes. Thus, although we noted that under the terms of the Nebraska statute, the inmates’ expectancy of parole release “is entitled to some measure of constitutional protection,” we emphasized that

“this statute has unique structure and language and thus whether any other state statute provides a protectible entitlement must be decided on a case-by-case basis.” Id., at 12.

Moreover, from the standpoint of a reasons requirement, there is a vast difference between a denial of parole — particularly on the facts of Greenholtz — and a state’s refusal to commute a lawful sentence. When Nebraska statutes directed that inmates who are eligible for parole “shall” be released “unless” a certain finding has been made, the statutes created a right. By contrast, the mere existence of a power to commute a lawfully imposed sentence, and the granting of commutations to many petitioners, create no right or “entitlement.” A state cannot be required to explain its reasons for a decision when it is not required to act on prescribed grounds.

We hold that the power vested in the Connecticut Board of Pardons to commute sentences conferred no rights on respondents beyond the right to seek commutation.

Reversed.

1 A Connecticut inmate serving a life sentence, imposed before 1971, that does not have a specified minimum term must serve a minimum of 25 years in prison, less a maximum of 5 years’ good-time credits, unless the Board of Pardons commutes the sentence. See Conn. Gen. Stat. §54r-125 (1981).

Effective in 1971, the sentencing judge must specify a minimum term, which may be as low as 10 years or as high as 25 years. Conn. Gen. Stat. § 53a-35 (c)(1) (1981).

2 The Board of Pardons also has the power to grant immediate release in the form of an absolute pardon, but according to the District Court, that power has not been employed in recent history. 432 F. Supp. 1310, 1313 (Conn. 1977).

The District Court noted that by virtue of this statute, Connecticut “stands outside the traditional scheme of clemency through application to the state’s chief executive.” The Governor of Connecticut has only the power to grant temporary reprieves. Id., at 1312.

3 Parole determinations are made by the Board of Parole, a separate body. This case does not involve parole procedure; it involves only denials of commutations.

4 Of the inmates whose minimum sentences have been commuted by the Board of Pardons, the Board of Parole has paroled approximately 90% during the first year of eligibility, and all have been paroled within a few years. App. 33, 39. The Chairman of the Board of Parole testified that “no more than 10 or 15 per cent” of Connecticut’s life inmates serve their 20-year minimum terms. Id., at 31.

5 On the day that the District Court entered its declaratory judgment, the Board commuted Dumschat’s sentence to time served and granted him immediate release. The Board then moved to dismiss the suit as moot. The District Court denied the Board’s motion and permitted three other inmates to intervene. Those inmates were serving life terms for murder and had been denied commutation without statements of reasons. Two of them are still serving their sentences. According to respondents, there are approximately 35 persons in the certified class, which consists of all “inmates of the State of Connecticut who are currently serving sentences of life imprisonment [without court-imposed minimum terms] and who have been, or who will be, denied pardons during their current terms of incarceration” by the Board of Pardons. App. to Pet. for Cert. 21a; Brief for Petitioners ii; Tr. of Oral Arg. 36; see n. 1, supra.

6 In the cited passage of Greenholtz, we said: “The Nebraska [statutory) procedure affords an opportunity to be heard, and when parole is denied it informs the inmate in what respects he falls short of qualifying for parole; this affords the process that is due under these circumstances. The Constitution does not require more.” 442 U. S., at 16.

7 The Court of Appeals remarked that “[o]nly after this period has elapsed are lifers entitled to due process safeguards in the pardon process.” 618 F. 2d, at 221. Because it believed that every life inmate who is denied a pardon is constitutionally entitled to a statement of reasons, the District Court did not make such a determination prior to the decision of the Court of Appeals that is now before us. Id., at 220-221; see App. to Pet. for Cert. 25a.

8 Gagnon v. Scarpelli, 411 U. S. 778 (1973); Morrissey v. Brewer, 408 U. S. 471 (1972).

9 Respondents have not raised any equal protection claim.

10 See Meachum v. Fano, 427 U. S. 215, 228 (1976).