MILLER, Justice.
In this appeal, we hold that a convicted person has no protected liberty interest in parole and that he is not entitled to a due process hearing prior to rescission of an unexecuted parole.
FACTS
Petitioner and appellant Charles A. Winters appeals the circuit court’s denial of his amended petition for habeas corpus. Winters claims that the court erred when it [723]*723held that he had no liberty interest in his release once his parole had been granted by the South Dakota Board of Pardons and Paroles (Board) and that the court erred in holding that he was not entitled to any due process prior to a summary rescission of his grant of parole by Board.
In September 1986, Winters was convicted of the crime of sexual contact with a child under sixteen years of age. He was sentenced to ten years in the South Dakota State Penitentiary with four years of his sentence suspended. Winters later applied for parole and his application was heard by Board in March 1988. On March 24, Winters was granted parole on the condition that he relocate to Kentucky. He was not immediately released, however, because his parole was subject to approval by Kentucky authorities, pursuant to the Compact on Interstate Parolee Supervision. See SDCL 24-16-1 to 24-16-5. One week after his parole was approved, but while still in custody, Winters was expelled from the sex offenders’ therapy group at the Human Services Center’s trustee unit due to his lack of interest and lack of participation. It was also reported that he had told a prison employee that he was not guilty of the crime of which he was convicted, that he planned to engage in sexual contact with a child once he was released and that he saw nothing wrong in planning to do so. He also told an institutional parole agent that, unlike other inmates, he did not have an urge to go drink, but rather had an urge to go to a “peep show.”
In April, prior to receiving approval from the Kentucky authorities, Winters was called back before Board to reassess the granting of his parole. At the meeting, Winters was not allowed to cross-examine or confront the witnesses against him nor was he allowed to call any witnesses on his behalf. He was not given the opportunity to present any documentary evidence and his request to retain counsel or have counsel appointed was denied.
Board specifically determined that Winters’ rehabilitation had been misrepresented and that his parole had been improvidently granted because he expressed a willingness and desire to reoffend upon his release and because he displayed an attitude inconsistent with the goals of parole. Board further found that society would not be protected if Winters was released. Board concluded as a matter of law that Winters had no greater right to an unexe-cuted grant of parole than he had to release on parole generally, and that it had the same discretion to rescind an unexecut-ed grant of parole as it would to deny a parole application. Finally, Board noted that an unexecuted grant of parole does not vest a prisoner with any protected liberty interest and that unlike a revocation of parole, parole rescission does not require a due process hearing. Board then found that Winters’ parole was unexecuted and determined that his parole should be rescinded.
Winters petitioned the circuit court for a writ of habeas corpus. The court issued the writ and a hearing was held. The circuit court denied Winters’ habeas corpus relief, holding that he did not have a liberty interest in parole and that the rescission of parole without a hearing did not violate his right to due process. Winters appeals. We affirm.
DECISION
I
WHETHER THE CIRCUIT COURT ERRED IN HOLDING THAT WINTERS HAD NO LIBERTY INTEREST IN HIS UNEXECUTED GRANT OF PAROLE.
Winters first claims that the circuit court erred when it determined that he did not have a liberty interest in his unexecut-ed grant of parole. SDCL 24-15-1.1 provides:
Parole is the discretionary conditional release of an inmate from actual penitentiary custody before the expiration of his term of imprisonment. The prisoner remains an inmate under the legal custody of the department of charities and corrections until the expiration of his term of imprisonment. A prisoner is not required to accept a conditional [724]*724parole. A prisoner is never entitled to parole. However, parole may be granted if in the judgment of the board of pardons and paroles granting a parole would be the best interests of society and the prisoner.
Neither this section nor its application may be the basis for establishing a constitutionally protected liberty, property or due process interest in any prisoner. (Emphasis added.)
It is clear from the statute that a prisoner is paroled when he is actually released from penitentiary custody before the expiration of his term of imprisonment. That term does not apply to the waiting period between the grant and the execution of parole. It also would not apply here, where Winters’ release on parole was explicitly conditioned on his acceptance by parole authorities in Kentucky.
The United States Supreme Court has specifically held that a convicted person has no constitutional or inherent right to parole. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979).
II
WHETHER THE CIRCUIT COURT ERRED IN HOLDING THAT WINTERS WAS NOT ENTITLED TO A DUE PROCESS HEARING PRIOR TO THE RESCISSION OF HIS GRANT OF PAROLE.
Winters next contends that the circuit court erred when it determined that he was not entitled to a due process hearing prior to the rescission of his grant of parole. We disagree. The United States Supreme Court has clearly held that even though a prisoner has been notified that he is to be paroled, such expectation is not a protected liberty interest which requires a due process hearing prior to its rescission. Jago v. Van Curen, 454 U.S. 14, 102 S.Ct. 31, 70 L.Ed.2d 13 (1981).
In Jago, a penitentiary inmate was interviewed by the Ohio Adult Parole Authority (OAPA) to determine his fitness for parole under Ohio’s “shock parole” statute. An OAPA panel recommended that the inmate be paroled and the inmate was so notified. He attended and completed prison pre-re-lease classes and had even been measured for civilian clothes. Six days after the panel’s interview with the inmate, OAPA was notified that the inmate had not been truthful in his interview concerning the gravity of the offenses he had committed or in his parole plan.
Free access — add to your briefcase to read the full text and ask questions with AI
MILLER, Justice.
In this appeal, we hold that a convicted person has no protected liberty interest in parole and that he is not entitled to a due process hearing prior to rescission of an unexecuted parole.
FACTS
Petitioner and appellant Charles A. Winters appeals the circuit court’s denial of his amended petition for habeas corpus. Winters claims that the court erred when it [723]*723held that he had no liberty interest in his release once his parole had been granted by the South Dakota Board of Pardons and Paroles (Board) and that the court erred in holding that he was not entitled to any due process prior to a summary rescission of his grant of parole by Board.
In September 1986, Winters was convicted of the crime of sexual contact with a child under sixteen years of age. He was sentenced to ten years in the South Dakota State Penitentiary with four years of his sentence suspended. Winters later applied for parole and his application was heard by Board in March 1988. On March 24, Winters was granted parole on the condition that he relocate to Kentucky. He was not immediately released, however, because his parole was subject to approval by Kentucky authorities, pursuant to the Compact on Interstate Parolee Supervision. See SDCL 24-16-1 to 24-16-5. One week after his parole was approved, but while still in custody, Winters was expelled from the sex offenders’ therapy group at the Human Services Center’s trustee unit due to his lack of interest and lack of participation. It was also reported that he had told a prison employee that he was not guilty of the crime of which he was convicted, that he planned to engage in sexual contact with a child once he was released and that he saw nothing wrong in planning to do so. He also told an institutional parole agent that, unlike other inmates, he did not have an urge to go drink, but rather had an urge to go to a “peep show.”
In April, prior to receiving approval from the Kentucky authorities, Winters was called back before Board to reassess the granting of his parole. At the meeting, Winters was not allowed to cross-examine or confront the witnesses against him nor was he allowed to call any witnesses on his behalf. He was not given the opportunity to present any documentary evidence and his request to retain counsel or have counsel appointed was denied.
Board specifically determined that Winters’ rehabilitation had been misrepresented and that his parole had been improvidently granted because he expressed a willingness and desire to reoffend upon his release and because he displayed an attitude inconsistent with the goals of parole. Board further found that society would not be protected if Winters was released. Board concluded as a matter of law that Winters had no greater right to an unexe-cuted grant of parole than he had to release on parole generally, and that it had the same discretion to rescind an unexecut-ed grant of parole as it would to deny a parole application. Finally, Board noted that an unexecuted grant of parole does not vest a prisoner with any protected liberty interest and that unlike a revocation of parole, parole rescission does not require a due process hearing. Board then found that Winters’ parole was unexecuted and determined that his parole should be rescinded.
Winters petitioned the circuit court for a writ of habeas corpus. The court issued the writ and a hearing was held. The circuit court denied Winters’ habeas corpus relief, holding that he did not have a liberty interest in parole and that the rescission of parole without a hearing did not violate his right to due process. Winters appeals. We affirm.
DECISION
I
WHETHER THE CIRCUIT COURT ERRED IN HOLDING THAT WINTERS HAD NO LIBERTY INTEREST IN HIS UNEXECUTED GRANT OF PAROLE.
Winters first claims that the circuit court erred when it determined that he did not have a liberty interest in his unexecut-ed grant of parole. SDCL 24-15-1.1 provides:
Parole is the discretionary conditional release of an inmate from actual penitentiary custody before the expiration of his term of imprisonment. The prisoner remains an inmate under the legal custody of the department of charities and corrections until the expiration of his term of imprisonment. A prisoner is not required to accept a conditional [724]*724parole. A prisoner is never entitled to parole. However, parole may be granted if in the judgment of the board of pardons and paroles granting a parole would be the best interests of society and the prisoner.
Neither this section nor its application may be the basis for establishing a constitutionally protected liberty, property or due process interest in any prisoner. (Emphasis added.)
It is clear from the statute that a prisoner is paroled when he is actually released from penitentiary custody before the expiration of his term of imprisonment. That term does not apply to the waiting period between the grant and the execution of parole. It also would not apply here, where Winters’ release on parole was explicitly conditioned on his acceptance by parole authorities in Kentucky.
The United States Supreme Court has specifically held that a convicted person has no constitutional or inherent right to parole. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979).
II
WHETHER THE CIRCUIT COURT ERRED IN HOLDING THAT WINTERS WAS NOT ENTITLED TO A DUE PROCESS HEARING PRIOR TO THE RESCISSION OF HIS GRANT OF PAROLE.
Winters next contends that the circuit court erred when it determined that he was not entitled to a due process hearing prior to the rescission of his grant of parole. We disagree. The United States Supreme Court has clearly held that even though a prisoner has been notified that he is to be paroled, such expectation is not a protected liberty interest which requires a due process hearing prior to its rescission. Jago v. Van Curen, 454 U.S. 14, 102 S.Ct. 31, 70 L.Ed.2d 13 (1981).
In Jago, a penitentiary inmate was interviewed by the Ohio Adult Parole Authority (OAPA) to determine his fitness for parole under Ohio’s “shock parole” statute. An OAPA panel recommended that the inmate be paroled and the inmate was so notified. He attended and completed prison pre-re-lease classes and had even been measured for civilian clothes. Six days after the panel’s interview with the inmate, OAPA was notified that the inmate had not been truthful in his interview concerning the gravity of the offenses he had committed or in his parole plan. As a result, OAPA rescinded its earlier decision to grant the inmate parole and continued his case to a later OAPA meeting, at which time his parole was formally denied. At no time was the inmate granted the opportunity to explain the statements he had made in his initial parole interview or in his parole plan.
The inmate ultimately filed a petition for writ of habeas corpus claiming that the rescission without a hearing violated his due process rights under the United States Constitution. The district court denied the writ. After that decision was remanded by the United States Supreme Court, the district court determined that no due process hearing was necessary because early release in Ohio was a matter of grace, that its law was unambiguous, and that no pro-tectible interest in early release arises until actual release. The United States Supreme Court affirmed, holding that parole for Ohio prisoners lied wholly within OAPA’s discretion, and that Ohio’s parole statutes did not create a protected liberty interest for due process purposes.
[725]*725Following the rationale set forth in Jago, and reviewing our unambiguous statutes, we likewise believe that early release under our law is a matter of grace and that SDCL 24-15-1.1 gives Board the right to rescind an unexecuted grant of parole without the necessity of a due process hearing.
Affirmed.
WUEST, C.J., and MORGAN, J., concur.
SABERS, J., specially concurs.
HENDERSON, J., dissents.
The Greenholtz court did, however, provide that a statute which instills an expectancy of release may create a liberty interest in parole. We note that certain legislation regarding parole, SDCL 24-15-1.1 and 24-15-8, specifically disclaims any intent to create a protected liberty, property or due process interest in any prisoner. These provisions respond to the Greenholtz caveat.