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Parole Procedure

Statutes or regulations that provide that a parole board may release an inmate on parole do not give rise to a protected liberty interest[i].  The board’s decision whether to grant parole to a prisoner is discretionary and the prisoner therefore had no protected liberty interest in receiving it[ii].

A prisoner has no inherent constitutional right to parole[iii].  Nor does s/he has any state-created liberty interest in parole[iv].  Unless there is a liberty interest in parole, the procedures followed in making the parole determination are not required to comport with standards of fundamental fairness[v].

Thus, the mere existence of a parole system does not create a liberty interest in the parole release decision or a reasonable entitlement of prison inmates to due process protection in the parole process, since the possibility of parole provides no more than a mere hope that the benefit will be obtained[vi].

However, a protectable expectation of release may arise where the parole statute is phrased in such a way that it creates a real or justifiable expectation of, and not just a unilateral hope for parole.  A state may create a liberty interest by using mandatory language in a statute that restricts the parole authority’s discretion or creates a presumption of release[vii].

Whenever a parole board considers the release of a prisoner for parole, the board should order his/her release, if it is of the opinion that the following five conditions are met[viii]:

  • the release is compatible with public safety and security,
  • it is substantially likely that the prisoner will abide by the law and the conditions of parole,
  • release on parole would not depreciate the seriousness of the inmate’s crime or promote disrespect for the law,
  • release would not have an adverse effect on institutional discipline, and
  • continued incarceration will not substantially enhance the inmate’s capacity to lead a law-abiding life when released at a later date.

Due process in the context of an inmate seeking parole includes at a minimum an opportunity to be heard and a written statement explaining why s/he was denied parole[ix].  Also, due process requires that a parole applicant be given advance notice of the parole hearing and the prisoners be informed of parole board procedures and parole criteria.

Further, parole hearings are informal and the rules of evidence do not apply[x].  Also, a convict has no constitutional or other right to be represented by counsel at hearings of a parole board called for the purpose of determining the convict’s eligibility for the granting of parole[xi].

A statute may expressly make parole release date determinations immune from judicial review[xii].  Where a parole statute does not create a liberty interest, even if some due process standards would apply, there is no right to a direct appeal from a denial of parole.

[i] Seavolt v. Escamilla, 17 Fed. Appx. 806, 807 (10th Cir. Wyo. 2001).

[ii] Closs v. Weber, 238 F.3d 1018, 1022 (8th Cir. S.D. 2001).

[iii] Coffey v. Tennessee, 8 Fed. Appx. 503 (6th Cir. Tenn. 2001).

[iv] Whiteside v. Wilkinson, 3 Fed. Appx. 372, 373 (6th Cir. Ohio 2001).

[v] Jones v. Hannigan, 1 Fed. Appx. 856 (10th Cir. Kan. 2001).

[vi] Wetzel v. Edwards, 635 F.2d 283 (4th Cir. N.C. 1980).

[vii] Trumbly v. Kan. Parole Bd., 8 Fed. Appx. 857 (10th Cir. Kan. 2001).

[viii] Bermudez v. Duenas, 936 F.2d 1064 (9th Cir. Guam 1991).

[ix] George v. Montana Bd. of Pardons, 2001 MT 163 (Mont. 2001).

[x] Furnari v. Warden, Allenwood Fed. Correctional Inst., 218 F.3d 250 (3d Cir. Pa. 2000).

[xi] McCall v. Pataki, 232 F.3d 321 (2d Cir. N.Y. 2000).

[xii] Quintero v. Board of Parole & Post-Prison Supervision, 329 Ore. 319 (Or. 1999).

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