Phillips v. Williams

1980 OK 25, 608 P.2d 1131, 1980 Okla. LEXIS 356

• Court: Supreme Court of Oklahoma
• Decided: February 19, 1980
• Docket: 51721
• Status: Published

Opinions

OPAL A, Justice:

This case is here on remand from the United States Supreme Court for reconsideration of Phillips v. Williams1 in light of federal-law criteria pronounced in Green-holtz v. Inmates of Nebraska Penal Complex2 In Phillips this court held that minimum standards of federal due process require the Pardon and Parole Board [Board] to give written reasons to a prisoner whose name is removed from a parole consideration docket. The issue on remand is whether parole release provisions of the Oklahoma law, considered as a totality — constitutional, statutory, decisional and rule-prescribed — create an expectation of liberty to which federal due process will in some measure attach its shield, or afford no more than just a “possibility” of release — a mere hope that is unprotected by safeguards of the U.S. Constitution. In this matter of first impression, we hold that the parole procedures here under mandated re-examination do not provide the petitioner/inmate with a liberty interest protected by the fundamental law of the Federal Republic.

Petitioner had been recommended for parole consideration by the correctional review committee [CRC]³ which placed his name on the monthly parole docket. Some time later the Board removed his name. Unable to learn the reasons for the adverse action, Petitioner sought to compel the Board, by mandamus, to provide him with a written explanation. We assumed jurisdiction and granted the writ. Our judgment, later vacated by the U.S. Supreme Court on certiorari, is back here for mandated reassessment.

Petitioner does not bottom his due process claim on the Forgotten Man Act, 57 O.S.1971 § 332.7, and hence it is not necessary for us to assess here the character of interest a prisoner has in parole consideration that rests on the provisions of that act.

Due process may be invoked whenever government action deprives a person of some legitimate “liberty” or “property” interest within the meaning of the U.S. Constitution. The right-privilege dichotomy of the common law is no longer a relevant factor in gauging whether a threatened interest is fit for federal constitutional protection.⁴

Interests protected by due process are not always “created by the [Federal] Constitution. Rather, they are [often] created and their dimensions are defined” by some independent source, which consists quite frequently of a state statute or rule entitling the person to certain benefits.⁵

One’s liberty interest⁶ may be entitled to protection even though it is a “statutory creation of the State”. Wolff v. McDonnell.7 In Wolff the interest to receive the federal shield had its roots in state law. Nevertheless, certain minimum procedures, appropriate under the circumstances, were viewed as mandated by federal due process in order “to insure that the state-created right is not arbitrarily abrogated.”⁸

A prisoner has no constitutionally protected claim to a release on parole before the expiration of his sentence. Due process will attach its shield to parole determination procedures only if the statutory and regulatory framework of the system is such as to fashion a liberty interest within the meaning of fundamental federal law. In short, an inmate who under the state law has a parole release claim sufficient to constitute a liberty interest under federal law may demand the minimum procedural protections of federal due process. This is the teaching of Greenholtz.

Greenholtz rests on the distinction drawn between being deprived by parole revocation of a liberty once granted and being denied a conditional liberty to which one aspires through parole release. Revocation procedures are protected from state’s arbitrary action.⁹ Parole release procedures do not automatically fall in like category.¹⁰ A parole system which provides for the “possibility of release” does not create a constitutionally protected liberty interest. A federally protectible expectation of liberty must rest upon more than “a mere possibility or hope” for a favorable result.¹¹

This case must turn on our appraisal of the Oklahoma parole release process. If it fashions more than a chance or hope of release, Phillips must be reaffirmed; otherwise the writ has to be denied. Helpful in the task is the recent analysis of this subject by the Tenth Circuit in Shirley v. Chestnut, 603 F.2d 805 [10th Cir. 1979], where the issue was identical to that before us. We set out that assessment at length:

“Thus, in the present case, the Oklahoma statutes must be examined to determine whether a liberty interest has been created thereby. Basically, Oklahoma has a three-tier system for parole release. The Correctional Review Committee compiles the Pardon and Parole Board’s monthly docket scheduling inmates for parole consideration. Pursuant to the Forgotten Man Act, 57 Okl.Stat.Ann. § 332.7 (1971), every inmate must be considered for parole on or before the expiration of one-third of his maximum sentence. In addition, any inmate serving 45 years or more, including a life sentence, shall be considered for parole or clemency after serving 15 years. See Rules of the Board, 57 Okl.Stat.Ann., Chap. 7, App. (Supp. 1977).

An inmate may be placed on the docket for consideration of parole by recommendation of the Correctional Review Committee or by any member of the Board. Any inmate who is rejected for docketing is afforded the opportunity to appear in person before the CRC. All inmates considered and denied docketing by the CRC or by the Parole Board are to be reconsidered by the CRC no later than twelve months subsequent to their last review.

Pursuant to 57 Okl.Stat.Ann. § 332.2, § 354 (1971), the Board is authorized to examine into the merits of applications for parole and make recommendations to the Governor as, in its discretion, the public interest requires, said recommendations being advisory to the Governor and not binding. According to the Board rules, inmates are entitled to a hearing before the Board. The Board does not object to lawyers or any other person appearing personally before the Board and the inmate may present evidence in documentary form. 57 Okl.Stat.Ann., Chap. 7, App. (Supp.1977).

It is stipulated that there are no written criteria for parole release to guide the Parole Board members in their determinations. Chairman Chestnut stated in his deposition that the Board members use their own good judgment. Littleton Fowler, a member of the Board, mentioned education, prior record, family, the severity of the offense, rehabilitative efforts, and future plans as factors which he considers.

When the Pardon and Parole Board determines not to recommend parole, the inmate is notified by the Department of Corrections. No reasons are given for the denial of parole. Favorable recommendations are forwarded to the Governor. 57 Okl.Stat.Ann. § 332 (1971) states that the Governor shall have the power to grant parole upon such conditions and restrictions as he may deem proper. This authority is limited to the extent that it can be exercised only after a recommendation for clemency by the Pardon and Parole Board. No personal interviews are granted. The Governor has no written criteria for parole release.

Thus, the critical distinctions between the Oklahoma statutory scheme and the Nebraska statutes are that the former do not declare that parole ‘shall’ be granted unless certain conditions exist, and there are no written arid formally established factors to be considered by the Parole Board or the Governor in evaluating parole applicants. The Board’s only statutory guidance in the exercise of its discretion is that it act as the public interest requires, and the sole existing statutory criteria dictate only the time of parole consideration.

We have carefully considered the Oklahoma statutes and other information concerning parole procedures provided in the record. We hold that the Oklahoma statutory scheme outlined above does no more than create a parole system, which in the Supreme Court’s view as expressed in Greenholtz does not establish a liberty interest. In the absence of such liberty interest, the specific due process procedures requested by the appellants are not applicable.”

We agree with the analysis of Shirley. While the pronouncement on a federal-law question by an inferior federal court is not necessarily binding on us, it is indeed highly persuasive.¹² This is especially so here because we are called upon to measure state law by a federal constitutional-law gauge evolved by the U.S. Supreme Court.

Petitioner’s name, initially placed on the docket by CRC recommendation, was later stricken from it by the Board. This occurred before the Board gave its approval to the compilation of names next to be considered and before any formal hearings were held on the CRC-recommended list of prisoners.

Although some minimum departmental criteria are required for each CRC recommendation, an inmate meeting these criteria and receiving a CRC endorsement for next month’s consideration, is not absolutely assured of his position on the parole docket. The very same procedures that authorize a CRC docket placement of a convict’s name also authorize its removal from the docket by a majority vote of the Board. Consideration for release, via CRC docketing endorsement, clearly does not rise to the same level of interest that attaches to a parole consideration opportunity under the Forgotten Man statute, supra. The latter appears to be mandated by law.

Oklahoma law lacks not only mandated standards of inmate-parole-release eligibility but also those that would structure eligibility for mere consideration of parole release. The only exception is that created by the Forgotten Man Act. That act assures the prisoner eligible under its terms a chance for parole release consideration. Want of structured and mandated parole eligibility standards does not per se constitute denial of due process.¹³ The absence of mandated state-law standards— both for release eligibility as well as for eligibility to be considered for parole release — does set Oklahoma apart from Nebraska whose law was considered in Green-holtz. It also militates strongly against the notion that our procedures might give rise to some “expectancy of release”.

Oklahoma law, viewed as a totality, does not mandate for this petitioner an assured “spot” for parole release consideration. His state-law claim to an opportunity for parole release consideration lacks the necessary attributes of an “expectancy” and hence of a federally-recognized liberty interest. As a “hope” or “possibility”, his claim stands unprotected by the Due Process Clause of the Fourteenth Amendment.

State-constitutional-law questions were not considered in the original opinion now on remand from the U.S. Supreme Court. We are not called upon to reach these questions now.'

Writ is therefore denied.

LAVENDER, C. J., IRWIN, V. C. J., and WILLIAMS, BARNES and HARGRAVE, JJ., concur. HODGES, DOOLIN and SIMMS, JJ., dissent.

1 . Okl., 583 P.2d 488 [1978],

2 . 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 [1979],

3 . At the various adult correctional institutions there is a five-member committee consisting of a parole board interviewer, the inmate’s case manager and three other Corrections Department employees. The CRC is an arm of that department’s community services division. Its primary function is to compile the monthly docket with the names of inmates to be considered by the Board for parole recommendation to the Governor. 57 O.S.Supp.1979 § 514.

4 . Board of Regents of State Colleges v. Roth, 408 U.S. 564, 571, 92 S.Ct. 2701, 2706, 33 L.Ed.2d 548 [1972]; Morrissey v. Brewer, 408 U.S. 471, 481-482, 92 S.Ct. 2593, 2600-2601, 33 L.Ed.2d 484 [1972]; In a Court of Appeals decision affirmed by the U.S. Supreme Court— Bailey v. Richardson, 86 U.S.App.D.C. 248, 182 F.2d 46 [D.C.Cir.1950], aff’d 341 U.S. 918, 71 S.Ct. 669, 95 L.Ed. 1352 — it was held that procedural due process did not extend to government employees since public employment was a “privilege” and not a “right”. The U.S. Supreme Court has rejected the “wooden distinction between ‘rights’ and ‘privileges’ ” and looked instead to the significance of the state-created or state-enforced interest under consideration with a view to assessing the substan-tiality of the alleged deprivation. Roth, supra, 408 U.S. at 571, 92 S.Ct. at 2706.

5 . Board of Regents of State Colleges v. Roth, supra note 4, 408 U.S. at 577, 92 S.Ct. at 2709.

6 . In Board of Regents of State Colleges v. Roth, supra note 4, 408 U.S. at 572, 92 S.Ct. at 2706-2707, the Court stated that liberty “denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized ... as essential to the orderly pursuit of happiness by free men.” [Emphasis added]

7 . 418 U.S. 539, 558, 94 S.Ct. 2963, 2976, 41 L.Ed.2d 935 [1974]. In Wolff the Court held that the due process clause entitles a state prisoner to certain procedural protections when he is deprived of good-time credits because of serious misconduct. The liberty interest there identified did not originate in the federal constitution, which “itself does not guarantee good-time credit for satisfactory behavior while in prison”. Wolff, 418 U.S. at 557, 94 S.Ct. at 2975. The Court stressed that the “touchstone of due process is protection of the individual against arbitrary action of government.” Wolff, 418 U.S. at 558, 94 S.Ct. at 2976.

8 . Wolff v. McDonnell, supra note 7, 418 U.S. at 557, 94 S.Ct. at 2975.

9 . Morrissey v. Brewer, supra note 4, 408 U.S. at 482-484, 92 S.Ct. at 2600-2602.

10 . Greenholtz v. Inmates of Nebraska Penal Complex, supra note 2, 442 U.S. at 10, 99 S.Ct. at 2105.

11 . “Hope” — Latin spes — is a term frequently used to describe future interests which are not legally cognizable and hence lie beyond the possibility of judicial vindication. See, for instance, [a] spes accrescendi — the hope of surviving, Black’s Law Dictionary, 4th Ed. and [b] spes successionis — a hope to succeed to property upon the death of its owner, 4 Stroud’s Judicial Dictionary 8239 [3rd ed. 1953]; and 1 Stroud’s Judicial Dictionary [3rd ed. 1953],

12 . Dean v. Crisp, Okl.Cr., 536 P.2d 961, 963 [1975]; Jones v. Lorenzen, Okl., 441 P.2d 986, 989 [1965]; Bruce v. Everston, 180 Okl. 111, 68 P.2d 95, 97 [1937],

13 . Greenholtz v. Inmates of Nebraska Penal Complex, supra note 2, 442 U.S. at 9-10, 99 S.Ct. at 2104-2105.