MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari to decide whether the Due Process Clause of the Fourteenth Amendment applies to discretionary parole-release determinations made by the Nebraska Board of Parole, and, if so, whether the procedures the Board currently provides meet constitutional requirements.
Inmates of the Nebraska Penal and Correctional Complex brought a class action under 42 U. S. C. § 1983 claiming that they had been unconstitutionally denied parole by the Board
The statutes provide for both mandatory and discretionary parole. Parole is automatic when an inmate has served his maximum term, less good-time credits. Neb. Rev. Stat. § 83-1,107 (1) (b) (1976). An inmate becomes eligible for discretionary parole when the minimum term, less good-time credits, has been served. § 83-1,110 (1). Only discretionary parole is involved in this case.
The procedures used by the Board to determine whether to grant or deny discretionary parole arise partly from statutory provisions and partly from the Board's practices. Two types of hearings are conducted: initial parole review hearings and final parole hearings. At least once each year initial review hearings must be held for every inmate, regardless of parole eligibility. § 83-192 (9).
If the Board determines from its examination of the entire record and the personal interview that he is not yet a good risk for release, it denies parole, informs the inmate why release was deferred and makes recommendations designed to
If the Board determines from the file and the initial review hearing that the inmate is a likely candidate for release, a final hearing is scheduled. The Board then notifies the inmate of the month in which the final hearing will be held; the exact day and time is posted on a bulletin board that is accessible to all inmates on the day of the hearing. At the final parole hearing, the inmate may present evidence, call witnesses and be represented by private counsel of his choice. It is not a traditional adversary hearing since the inmate is not permitted to hear adverse testimony or to cross-examine witnesses who present such evidence. However, a complete tape recording of the hearing is preserved. If parole is denied, the Board furnishes a written statement of the reasons for the denial within 30 days. § 83-1, 111 (2).
The District Court held that the procedures used by the Parole Board did not satisfy due process. It concluded that the inmate had the same kind of constitutionally protected "conditional liberty" interest, recognized by this Court in Morrissey v. Brewer, 408 U.S. 471 (1972), held that some of the procedures used by the Parole Board fell short of constitutional guarantees, and prescribed several specific requirements.
On appeal, the Court of Appeals for the Eighth Circuit agreed with the District Court that the inmate had a Morrissey-type, conditional liberty interest at stake and also found a
The Court's holding mandating the foregoing procedures for parole determinations conflicts with decisions of other Courts of Appeals, see, e. g., Brown v. Lundgren, 528 F.2d 1050 (CA5), cert. denied, 429 U.S. 917 (1976); Scarpa v. United States Board of Parole, 477 F.2d 278 (CA5) (en banc), vacated as moot, 414 U.S. 809 (1973); Scott v. Kentucky Parole Board, No. 74-1899 (CA6 Jan. 15, 1975), vacated and remanded to consider mootness, 429 U.S. 60 (1976). See also Franklin v. Shields, 569 F.2d 784, 800 (CA4 1977), cert. denied, 435 U.S. 1003 (1978); United States ex rel. Richerson v. Wolff, 525 F.2d 797 (CA7 1975), cert. denied, 425 U.S. 914 (1976). We granted certiorari to resolve the Circuit conflicts. 439 U.S. 817.
The Due Process Clause applies when government action deprives a person of liberty or property; accordingly, when there is a claimed denial of due process we have inquired into the nature of the individual's claimed interest.
This has meant that to obtain a protectible right
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." Meachum v. Fano, 427 U.S. 215, 224, (1976).
Decisions of the Executive Branch, however serious their impact, do not automatically invoke due process protection; there simply is no constitutional guarantee that all executive decisionmaking must comply with standards that assure error-free determinations. See Id., at 225; Montanye v. Haymes, 427 U.S. 236 (1976); Moody v. Daggett, 429 U.S. 78, 88 n. 9 (1976). This is especially true with respect to the sensitive choices presented by the administrative decision to grant parole release.
A state may, as Nebraska has, establish a parole system, but it has no duty to do so. Moreover, to insure that the
Respondents suggest two theories to support their view that they have a constitutionally protected interest in a parole determination which calls for the process mandated by the Court of Appeals. First, they claim that a reasonable entitlement is created whenever a state provides for the possibility
In support of their first theory, respondents rely heavily on Morrissey v. Brewer, 408 U.S. 471 (1972), where we held that a parole-revocation determination must meet certain due process standards. See also Gagnon v. Scarpelli, 411 U.S. 778 (1973). They argue that the ultimate interest at stake both in a parole-revocation decision and in a parole determination is conditional liberty and that since the underlying interest is the same the two situations should be accorded the same constitutional protection.
The fallacy in respondents' position is that parole release and parole revocation are quite different. There is a crucial distinction between being deprived of a liberty one has, as in parole, and being denied a conditional liberty that one desires. The parolees in Morrissey (and probationers in Gagnon) were at liberty and as such could "be gainfully employed and [were] free to be with family and friends and to form the other enduring attachments of normal life." 408 U. S., at 482. The inmates here, on the other hand, are confined and thus subject to all of the necessary restraints that inhere in a prison.
A second important difference between discretionary parole release from confinement and termination of parole lies in the nature of the decision that must be made in each case. As we recognized in Morrissey, the parole-revocation determination actually requires two decisions: whether the parole in fact acted in violation of one or more conditions of parole and whether the parolee should be recommitted either for his or society's benefit. Id., at 479-480. "The first step in a revocation decision thus involves a wholly retrospective factual question." Id., at 479.
The parole-release decision, however, is more subtle and
The decision turns on a "discretionary assessment of a multiplicity of imponderables, entailing primarily what a man is and what he may become rather than simply what he has done." Kadish, The Advocate and the Expert—Counsel in the Peno-Correctional Process, 45 Minn. L. Rev. 803, 813 (1961).
The differences between an initial grant of parole and the revocation of the conditional liberty of the parolee are well recognized. In United States ex rel. Bey v. Connecticut Board of Parole, 443 F.2d 1079, 1086 (1971), the Second Circuit took note of this critical distinction:
Judge Henry Friendly cogently noted that "there is a human difference between losing what one has and not getting what one wants." Friendly, "Some Kind of Hearing," 123 U. Pa. L. Rev. 1267, 1296 (1975). See also Brown v. Lundgren, 528 F. 2d, at 1053; Scarpa v. United States Board of Parole, 477 F. 2d, at 282; Franklin v. Shields, 569 F. 2d, at 799 (Field, J., dissenting); United States ex rel. Johnson v. Chairman, New
That the state holds out the possibility of parole provides no more than a mere hope that the benefit will be obtained. Board of Regents v. Roth, 408 U. S., at 577. To that extent the general interest asserted here is no more substantial than the inmate's hope that he will not be transferred to another prison, a hope which is not protected by due process. Meachum v. Fano, 427 U. S., at 225; Montanye v. Haymes, supra.
Respondents' second argument is that the Nebraska statutory language itself creates a protectible expectation of parole. They rely on the section which provides in part:
Respondents emphasize that the structure of the provision together with the use of the word "shall" binds the Board of
It is argued that the Nebraska parole-determination provision is similar to the Nebraska statute involved in Wolff v. McDonnell, 418 U.S. 539 (1974), that granted good-time credits to inmates. There we held that due process protected the inmates from the arbitrary loss of the statutory right to credits because they were provided subject only to good behavior. We held that the statute created a liberty interest protected by due process guarantees. The Board argues in response that a presumption would be created only if the statutory conditions for deferral were essentially factual, as in Wolff and Morrissey, rather than predictive.
Since respondents elected to litigate their due process claim in federal court, we are denied the benefit of the Nebraska court's interpretation of the scope of the interest, if any, the statute was intended to afford to inmates. See Bishop v. Wood, 426 U.S. 341, 345 (1976). We can accept respondents' view that the expectancy of release provided in this statute is entitled to some measure of constitutional protection. However, we emphasize 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. We therefore turn to an examination of the statutory procedures to determine whether they provide the process that is due in these circumstances.
It is axiomatic that due process "is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U. S., at 481; Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 895 (1961); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 162-163
Here, as we noted previously, the Parole Board's decision as defined by Nebraska's statute is necessarily subjective in part and predictive in part. Like most parole statutes, it vests very broad discretion in the Board. No ideal, error-free way to make parole-release decisions has been developed; the whole question has been and will continue to be the subject of experimentation involving analysis of psychological factors combined with fact evaluation guided by the practical experience of the actual parole decisionmakers in predicting future behavior. Our system of federalism encourages this state experimentation. If parole determinations are encumbered by procedures that states regard as burdensome and unwarranted, they may abandon or curtail parole. Cf. Me. Rev. Stat. Ann., Tit. 34, §§ 1671-1679 (1964), repealed, 1975 Me. Acts, ch. 499, § 71 (repealing the State's parole system).
It is important that we not overlook the ultimate purpose of parole which is a component of the long-range objective of rehabilitation. The fact that anticipations and hopes for rehabilitation programs have fallen far short of expectations of a generation ago need not lead states to abandon hopes for those objectives; states may adopt a balanced approach in making parole determinations, as in all problems of administering the correctional systems. The objective of rehabilitating convicted persons to be useful, law-abiding members of society can remain a goal no matter how disappointing the progress. But it will not contribute to these desirable
Procedures designed to elicit specific facts, such as those required in Morrissey, Gagnon, and Wolff, are not necessarily appropriate to a Nebraska parole determination. See Board of Curators, Univ. of Missouri v. Horowitz, 435 U.S. 78, 90 (1978); Cafeteria & Restaurant Workers v. McElroy, supra, at 895. Merely because a statutory expectation exists cannot mean that in addition to the full panoply of due process required to convict and confine there must also be repeated, adversary hearings in order to continue the confinement. However, since the Nebraska Parole Board provides at least one and often two hearings every year to each eligible inmate, we need only consider whether the additional procedures mandated by the Court of Appeals are required under the standards set out in Mathews v. Eldridge, supra, at 335, and Morrissey v. Brewer, supra, at 481.
Two procedures mandated by the Court of Appeals are particularly challenged by the Board:
The requirement of a hearing as prescribed by the Court of Appeals in all cases would provide at best a negligible decrease in the risk of error. See D. Stanley, Prisoners Among Us 43 (1976). When the Board defers parole after the initial review
Next, we find nothing in the due process concepts as they have thus far evolved that requires the Parole Board to specify the particular "evidence" in the inmate's file or at his interview on which it rests the discretionary determination that an inmate is not ready for conditional release. The Board communicates the reason for its denial as a guide to the inmate for his future behavior. See Franklin v. Shields, 569 F. 2d, at 800 (en banc). To require the parole authority to provide a summary of the evidence would tend to convert the process into an adversary proceeding and to equate the Board's
Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.
APPENDIX TO OPINION OF THE COURT
The statutory factors that the Board is required to take into account in deciding whether or not to grant parole are the following:
(a) The offender's personality, including his maturity, stability,
(b) The adequacy of the offender's parole plan;
(c) The offender's ability and readiness to assume obligations and undertake responsibilities;
(d) The offender's intelligence and training;
(e) The offender's family status and whether he has relatives who display an interest in him or whether he has other close and constructive associations in the community;
(f) The offender's employment history, his occupational skills, and the stability of his past employment;
(g) The type of residence, neighborhood or community in which the offender plans to live;
(h) The offender's past use of narcotics, or past habitual and excessive use of alcohol;
(i) The offender's mental or physical makeup, including any disability or handicap which may affect his conformity to law;
(j) The offender's prior criminal record, including the nature and circumstances, recency and frequency of previous offenses;
(k) The offender's attitude toward law and authority;
(l) The offender's conduct in the facility, including particularly whether he has taken advantage of the opportunities for self-improvement, whether he has been punished for misconduct within six months prior to his hearing or reconsideration for parole release, whether any reductions of term have been forfeited, and whether such reductions have been restored at the time of hearing or reconsideration;
(m) The offender's behavior and attitude during any previous experience of probation or parole and the recency of such experience; and
MR. JUSTICE POWELL, concurring in part and dissenting in part.
I agree with the Court that the respondents have a right under the Fourteenth Amendment to due process in the consideration of their release on parole. I do not believe, however, that the applicability of the Due Process Clause to parole-release determinations depends upon the particular wording of the statute governing the deliberations of the parole board, or that the limited notice of the final hearing currently given by the State is consistent with the requirements of due process.
A substantial liberty from legal restraint is at stake when the State makes decisions regarding parole or probation. Although still subject to limitations not imposed on citizens never convicted of a crime, the parolee enjoys a liberty incomparably greater than whatever minimal freedom of action he may have retained within prison walls, a fact that the Court recognized in Morrissey v. Brewer, 408 U.S. 471 (1972).
Liberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental action. Ingraham v. Wright, 430 U.S. 651, 673-674 (1977); Board of Regents v. Roth, 408 U.S. 564,
In principle, it seems to me that the Due Process Clause is no less applicable to the parole-release determination than to the decisions by state agencies at issue in the foregoing cases. Nothing in the Constitution requires a State to provide for probation or parole. But when a State adopts a parole system that applies general standards of eligibility, prisoners justifiably expect that parole will be granted fairly and according to law whenever those standards are met. This is so whether the governing statute states, as here, that parole "shall" be granted unless certain conditions exist, or provides some other standard for making the parole decision. Contrary to the Court's conclusion, ante, at 9-11, I am convinced that the presence of a parole system is sufficient to create a liberty interest, protected by the Constitution, in the parole-release decision.
The Court today, however, concludes that parole release and parole revocation "are quite different," because "`there is a . . . difference between losing what one has and not getting what one wants,'" ante, at 9, 10. I am unpersuaded that this difference, if indeed it exists at all, is as significant as the Court implies. Release on parole marks the first time when the severe restrictions imposed on a prisoner's liberty by the prison regimen may be lifted, and his behavior in prison
I am unconvinced also by the Court's suggestion that the prisoner has due process rights in the context of parole revocation but not parole release because of the different "nature of the decision that must be made in each case." Ante, at 9. It is true that the parole-revocation determination involves two inquiries: the parole board must ascertain the facts related to the prisoner's behavior on parole, and must then make a judgment whether or not he should be returned to prison. But unless the parole board makes parole-release determinations in some arbitrary or random fashion, these subjective evaluations about future success on parole also must be based on retrospective factual findings. See ante, at 14-15. In addition, it seems to me that even if there were any systematic difference between the factual inquiries relevant to release and revocation determinations, this difference, under currently existing parole systems, would be too slight to bear on the existence of a liberty interest protected by the Due Process Clause. It might be relevant, of course, in determining the process to be accorded in each setting.
The Court correctly concludes, in my view, that the Court of Appeals erred in ordering that a formal hearing be held for every inmate and that every adverse parole decision include
I do not agree, however, with the Court's decision that the present notice afforded to prisoners scheduled for final hearings (as opposed to initial review hearings) is constitutionally adequate. Ante, at 14 n. 6. Under present procedures, a prisoner is told in advance the month during which his final hearing will be held, but is not notified of the exact date of the hearing until the morning of the day that it will occur. Thus, although a prisoner is allowed to "present evidence, call witnesses and be represented by private counsel," ante, at 5, at the final hearing, his ability to do so necessarily is reduced or nullified completely by the State's refusal to give notice of the hearing more than a few hours in advance.
The Court's opinion asserts that "[t]here is no claim that . . . the timing of the notice . . . seriously prejudices the inmate's ability to prepare adequately for the hearing." Ante, at 14 n. 6. But the original complaint in this case cited as an alleged denial of due process the State's failure to "inform the [respondents] in advance of the date and time of their hearings before the Board of Parole." The District Court ordered the petitioners to give prisoners notice of hearings at least 72 hours in advance of the hearings, and the Court of Appeals affirmed that order. The respondents have supported that judgment in this Court by arguing that the courts below correctly determined that the current notice procedure undermines the prisoner's ability to present his case adequately at the final review hearing. Brief for Respondents 65. This conclusion accords with common sense, despite the petitioners' comment that prisoners "are seldom gone on vacation or have conflicting appointments on the day their parole hearing
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN and MR. JUSTICE STEVENS join, dissenting in part.
My disagreement with the Court's opinion extends to both its analysis of respondents' liberty interest and its delineation of the procedures constitutionally required in parole release proceedings. Although it ultimately holds that the Nebraska statutes create a constitutionally protected "expectation of parole," the Court nonetheless rejects the argument that criminal offenders have such an interest whenever a State establishes the possibility of parole. This gratuitous commentary reflects a misapplication of our prior decisions and an unduly narrow view of the liberty protected by the Fourteenth Amendment. Since the Court chooses to address the issue, I must register my opinion that all prisoners potentially eligible for parole have a liberty interest of which they may not be deprived without due process, regardless of the particular statutory language that implements the parole system.
The Court further determines that the Nebraska Board of Parole already provides all the process that is constitutionally due. In my view, the Court departs from the analysis adopted in Morrissey v. Brewer, 408 U.S. 471 (1972), and Mathews v. Eldridge, 424 U.S. 319, 335 (1976), and disregards considerations that militate for greater procedural protection. To supplement existing procedures, I would require that the Parole Board give each inmate reasonable notice of hearing dates and the factors to be considered, as well as a written statement of reasons and the essential facts underlying adverse decisions.
It is self-evident that all individuals possess a liberty interest in being free from physical restraint. Upon conviction for a crime, of course, an individual may be deprived of this liberty to the extent authorized by penal statutes.
This Court's prior decisions fully support the conclusion that criminal offenders have a liberty interest in securing parole release. In Morrissey v. Brewer, supra, the Court held that all persons released on parole possess such an interest in remaining free from incarceration. Writing for the Court, MR. CHIEF JUSTICE BURGER stated that the applicability
Wolff v. McDonnell, 418 U.S. 539 (1974), adopted a similar approach. There, the Court concluded that abrogation of a prisoner's good-time credits implicates his interest in subsequently obtaining release from incarceration. Although the Court recognized that Nebraska was not constitutionally obligated to establish a credit system, by creating "a right to a shortened prison sentence through the accumulation of credits for good behavior," id., at 557, the State had allowed inmates to retain a liberty interest that could be terminated only for "serious misbehavior." This liberty interest derived from the existence of a credit system, not from the specific language of the implementing statute, see id., at 555-558, as decisions applying Wolff have consistently recognized.
A criminal offender's interest in securing release on parole is therefore directly comparable to the liberty interests we
First, the Court finds a difference of constitutional dimension between a deprivation of liberty one has and a denial of liberty one desires. Ibid. While there is obviously some difference, it is not one relevant to the established constitutional inquiry. Whether an individual currently enjoys a particular freedom has no bearing on whether he possesses a protected interest in securing and maintaining that liberty. The Court acknowledged as much in Wolff v. McDonnell, supra, when it held that the loss of good-time credits implicates a liberty interest even though the forfeiture only deprived the prisoner of freedom he expected to obtain sometime hence. See Drayton v. McCall, 584 F.2d 1208, 1219 (CA2 1978). And in other contexts as well, this Court has repeatedly concluded that the Due Process Clause protects liberty interests that individuals do not currently enjoy.
The Court's distinction is equally unrelated to the nature
The Court's second justification for distinguishing between parole release and parole revocation is based on the "nature of the decision that must be made in each case." Ante, at 9. The majority apparently believes that the interest affected by parole release proceedings is somehow diminished if the administrative decision may turn on "subjective evaluations." Yet the Court nowhere explains why the nature of the decisional process has even the slightest bearing in assessing the nature of the interest that this process may terminate.
But even assuming the subjective nature of the decisionmaking process were relevant to due process analysis in general, this consideration does not adequately distinguish the processes of granting and revoking parole. See Morrissey v. Brewer, 408 U. S., at 477-480; Gagnon v. Scarpelli, 411 U. S., at 781-782. Contrary to the Court's assertion that the decision to revoke parole is predominantly a "`retrospective factual question,'" ante, at 9, Morrissey recognized that only the first step in the revocation decision can be so characterized. And once it is
Morrissey thus makes clear that the parole revocation decision includes a decisive subjective component. Moreover, to the extent parole release proceedings hinge on predictive determinations, those assessments are necessarily predicated on findings of fact.
The Court also concludes that the existence of a parole system by itself creates "no more than a mere hope that the benefit will be obtained," ante, at 11, and thus does not give rise to a liberty interest. This conclusion appears somewhat gratuitous, given the Court's ultimate holding that the Nebraska statutes do generate a "legitimate expectation of [parole] release" which is protected by the Due Process Clause. Ante, at 12. Moreover, it is unclear what purpose can be served by the Court's endeavor to depreciate the expectations arising solely from the existence of a parole system. The parole statutes in many jurisdictions embody the same standards used in the Model Penal Code, upon which both the Nebraska and federal provisions are patterned, and the Court's analysis of the Nebraska statutes would therefore suggest that the other statutes must also create protectible expectations of release.
Indeed, the available evidence belies the majority's broad assumptions concerning inmate expectations, at least with respect to the federal system, and there is no suggestion that experience in other jurisdictions is significantly different.
Government statistics reveal that substantially less than one-third of all first-time federal offenders are held in prison until mandatory release.
Thus, experience in the federal system has led both judges and legislators to expect that inmates will be paroled substantially before their sentences expire. Insofar as it is critical under the Court's due process analysis, this understanding would certainly justify a similar expectation on the part of the federal inmates. Hence, I believe it is unrealistic for this Court to speculate that the existence of a parole system provides prisoners "no more than a mere hope" of release. Ante, at 11.
I also cannot subscribe to the Court's assessment of the procedures necessary to safeguard respondents' liberty interest. Although the majority purports to rely on Morrissey v.
To begin with, the Court focuses almost exclusively on the likelihood that a particular procedure will significantly reduce the risk of error in parole release proceedings. Ante, at 14-16. Yet Mathews advances three factors to be considered in determining the specific dictates of due process:
By ignoring the other two factors set forth in Mathews, the Court skews the inquiry in favor of the Board. For example, the Court does not identify any justification for the Parole Board's refusal to provide inmates with specific advance notice of the hearing date or with a list of factors that may be considered. Nor does the Board demonstrate that it would be unduly burdensome to provide a brief summary of the evidence justifying the denial of parole. To be sure, these measures may cause some inconvenience, but "the Constitution recognizes higher values than speed and efficiency." Stanley v. Illinois, 405 U.S. 645, 656 (1972); accord, Frontiero v. Richardson, 411 U.S. 677, 690 (1973); Bell v. Burson, 402 U.S. 535, 540-541 (1971). Similarly lacking in the Court's analysis is any recognition of the private interest affected by the Board's action. Certainly the interest in being released from incarceration is of sufficient magnitude to have some bearing on the process due.
Finally, apart from avoiding the risk of actual error, this Court has stressed the importance of adopting procedures that preserve the appearance of fairness and the confidence of inmates in the decisionmaking process. THE CHIEF JUSTICE recognized in Morrissey that "fair treatment in parole revocations will enhance the chance of rehabilitation by avoiding reactions to arbitrariness," 408 U. S., at 484 (citation omitted), a view shared by legislators, courts, the American Bar Association, and other commentators.
In my judgment, the need to assure the appearance, as well as the existence, of fairness supports a requirement that the Parole Board advise inmates of the specific dates for their hearings, the criteria to be applied, and the reasons and essential facts underlying adverse decisions. For "`[o]ne can imagine nothing more cruel, inhuman, and frustrating than serving a prison term without knowledge of what will be measured and the rules determining whether one is ready for release.'" K. Davis, Discretionary Justice: A Preliminary Inquiry 132 (1969).
Applying the analysis of Morrissey and Mathews, I believe substantially more procedural protection is necessary in parole release proceedings than the Court requires. The types of safeguards that should be addressed here, however, are limited by the posture of this case.
The Court of Appeals directed the Parole Board to conduct such a formal hearing as soon as an inmate becomes eligible for parole, even where the likelihood of a favorable decision is negligible, but the court required no hearing thereafter. 576 F.2d 1274, 1285 (CA8 1978). From a practical standpoint, this relief offers no appreciable advantage to the inmates. If the Board would not have conducted a final hearing under current procedures, inmates gain little from a requirement that such a hearing be held, since the evidence almost certainly would be insufficient to justify granting release. And because the Court of Appeals required the Board to conduct only one hearing, inmates risk losing the right to a formal proceeding at the very point additional safeguards may have a beneficial impact. The inmates' interest in this modification of the Board's procedures is thus relatively slight.
However, a different conclusion is warranted with respect to the hearing notices given inmates. The Board currently informs inmates only that it will conduct an initial review or final parole hearing during a particular month within the next year. The notice does not specify the day or hour of the hearing. Instead, inmates must check a designated bulletin board each morning to see if their hearing is scheduled for that day. In addition, the Board refuses to advise inmates of the criteria relevant in parole release proceedings, despite a state statute expressly listing 14 factors the Board must consider and 4 permissible reasons for denying parole. See Neb. Rev. Stat. § 83-1,114 (1976), quoted ante, at 11, 16-18.
Finding these procedures insufficient, the District Court and the Court of Appeals ordered that each inmate receive written advance notice of the time set for his hearing, along with a list of factors the Board may consider. 576 F. 2d, at 1285.
Finally, I would require the Board to provide a statement of the crucial evidence on which it relies in denying parole.
The Court nowhere explains how these particular considerations are relevant to the inquiry required by Morrissey and Mathews. Moreover, it is difficult to believe that subsequently disclosing the factual justification for a decision will render the proceeding more adversary, especially when the Board already provides a general statement of reasons.
While requiring a summation of the essential evidence might entail some administrative inconvenience, in neither Morrissey v. Brewer, supra, at 489; Gagnon v. Scarpelli, supra, at 786; nor Wolff v. McDonnell, supra, at 563, 564-565, did the Court find that this factor justified denying a written statement of the essential evidence and the reasons underlying a decision. It simply is not unduly
Moreover, considerations identified in Morrissey and Mathews militate in favor of requiring a statement of the essential evidence. Such a requirement would direct the Board's focus to the relevant statutory criteria and promote more careful consideration of the evidence. It would also enable inmates to detect and correct inaccuracies that could have a decisive impact.
Because the Court's opinion both depreciates inmates' fundamental liberty interest in securing parole release and sanctions denial of the most rudimentary due process protection, I respectfully dissent.
"Such review shall include the circumstances of the offender's offense, the presentence investigation report, his previous social history and criminal record, his conduct, employment, and attitude during commitment, and the reports of such physical and mental examinations as have been made. The board shall meet with such offender and counsel him concerning his progress and his prospects for future parole . . . ." Neb. Rev. Stat. § 83-192 (9) (1976).
Meachum v. Fano, 427 U.S. 215 (1976), signals no departure from the basic principles recognized in Morrissey, Gagnon, and Wolff. While the majority in Meachum concluded that the prisoners did not have a protected liberty interest in avoiding transfers between penal institutions, the Court's opinion rested on the absence of any limitation on such transfers rather than on particular statutory language. 427 U. S., at 225-228. See Tracy v. Salamack, 572 F.2d 393, 395 n. 9 (CA2 1978); Four Certain Unnamed Inmates v. Hall, 550 F.2d 1291, 1292 (CA1 1977).
The Second Circuit has characterized the attempt to differentiate between a liberty interest currently enjoyed but subject to termination, and an interest that can be enjoyed in the future following an administrative proceeding, as actually "nothing more than a reincarnation of the right-privilege dichotomy in a not-too-deceptive disguise." United States ex rel. Johnson v. Chairman of New York State Board of Parole, 500 F.2d 925, 927-928, n. 2, vacated as moot sub nom. Regan v. Johnson, 419 U.S. 1015 (1974), construing United States ex rel. Bey v. Connecticut Board of Parole, 443 F.2d 1079, 1086 (CA2 1971), which the Court quotes ante, at 10; see Comment, The Parole System, 120 U. Pa. L. Rev. 282, 363 (1971).
Nevertheless, the range of protections currently afforded does affect whether additional procedures are constitutionally compelled. The specific dictates of due process, of course, depend on what a particular situation demands. See Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 895 (1961). Nebraska's use of formal hearings when the possibility of granting parole is substantial and informal hearings in other cases, for example, combined with provision of a statement of reasons for adverse decisions, obviously reduces the need for supplemental procedures.