PROCEDURAL DUE PROCESS IN PAROLE RELEASE DECISIONS

• NCJ Number: 44644
• Journal: Arizona Law Review Volume: 18 Issue: 4 Dated: (1976) Pages: 1023-1060
• Author(s): J C REA
• Date Published: 1977
• Length: 38 pages
• Corporate Author: University of Arizona
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THE METHOD BY WHICH PAROLE RELEASE DECISIONS ARE MADE IN THE UNITED STATES IS REVIEWED, AND THE RATIONALES SUPPORTING AND OPPOSING THE APPLICATION OF DUE PROCESS PROTECTIONS TO THE PAROLE RELEASE DECISION ARE EXAMINED.

Abstract

PAROLE -- THE MEANS BY WHICH PRISON INMATES ARE SELECTED FOR RELEASE BEFORE THE EXPIRATION OF THEIR LAWFUL SENTENCES -- IS THE MOST COMMON FORM OF RELEASE FROM PRISON. BEYOND THE STATUTORY PERIOD OF ELIGIBILITY, THE PAROLE RELEASE DECISION IS WHOLLY WITHIN THE DISCRETION OF THE PAROLE BOARD. PAROLE BOARDS ARE BOUND BY FEW GUIDELINES AND USUALLY CONSIDER ANY INFORMATION REGARDING A PAROLE APPLICANT THAT IS AVAILABLE. MOST OF THIS INFORMATION IS PREPARED BY THE STAFF OF THE CORRECTIONAL INSTITUTION. THE SCOPE OF JUDICIAL REVIEW OF PAROLE BOARD DECISIONS IS UNCERTAIN; THE COURTS HAVE NOT BEEN AN EFFECTIVE FORCE IN RECTIFYING ANY DEFICIENCIES IN THE PAROLE RELEASE PROCESS. THE MOST COMMON ARGUMENT FOR DENYING DUE PROCESS PROTECTION IN PAROLE RELEASE DECISIONS IS THE 'PRESENT ENJOYMENT DOCTRINE,' WHICH HOLDS THAT THE ONLY TYPE OF INTEREST PROTECTED BY PROCEDURAL DUE PROCESS IS ONE THAT IS CURRENTLY ENJOYED. BECAUSE INMATES APPLYING FOR PAROLE DO NOT ENJOY FREEDOM OF MOVEMENT OUTSIDE THE PRISON, IT IS ASSERTED THAT THERE IS NO INTEREST IN LIBERTY CURRENTLY ENJOYED AND THAT AN INMATE'S INTEREST IN PAROLE IS NOT PROTECTED BY THE CONSTITUTION. HOWEVER, CONSTITUTIONALLY PROTECTED INTEREST IN PAROLE CAN BE DEFINED IN EITHER OF TWO WAYS: THE INMATE MAY BE VIEWED AS SUFFERING A 'GRIEVOUS LOSS' OF AN INTEREST IN CONDITIONAL LIBERTY UPON BEING DENIED PAROLE, OR MAY BE VIEWED AS HAVING A CLAIM OF ENTITLEMENT TO PAROLE WHICH IS CONSTITUTIONALLY PROTECTED. ANALYSIS OF THE INTERESTS AT STAKE IN A PAROLE DECISION SUGGESTS THAT PROCEDURAL DUE PROCESS SHOULD ENCOMPASS THE RIGHT TO NOTICE (INCLUDING THE DECISIONMAKING CRITERIA USED BY THE PAROLE BOARD AND A STATEMENT OF REASONS FOR DENIAL) AND THE RIGHT TO BE HEARD (INCLUDING, WITHIN REASON, THE RIGHT TO PRESENT EVIDENCE, BUT NOT THE RIGHT TO CONFRONT AND CROSS-EXAMINE WITNESSES). IT IS SUGGESTED THAT THE RIGHT TO COUNSEL BE DECIDED ON A CASE-BY-CASE BASIS.