HEANEY, Circuit Judge.
Patricia Parker and John Bentley Yancey appeal from district court decisions
We address four issues: (1) Do the Arkansas parole statutes create a liberty interest which is protected by due process? (2) Do the Board's regulations create a liberty interest which is protected by due process? (3) If either the Arkansas statutes or Board regulations create a protected liberty interest, then what process is due? (4) Was Yancey denied equal protection under the fourteenth amendment?
I. THE ARKANSAS PAROLE STATUTES.
Parker and Yancey allege that the district court erroneously ruled that the Arkansas parole statutes do not create a liberty interest protectible under the fourteenth amendment's due process clause. We disagree.
In Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), the Court indicated that, although there is no constitutional right to parole, a protected liberty interest may be created by the statutes governing parole in a given jurisdiction. Id. at 7-11, 99 S.Ct. at 2103-2106. Specifically, the Court held that Neb.Rev.Stat. § 83-1, 114(1) (1976) created an expectancy of release entitled to some measure of constitutional protection because its "unique structure and language" provided that a committed offender who is eligible for release on parole "shall" be paroled
In Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981), the Court reversed a Court of Appeals decision which held that the Connecticut commutation statute created a protected liberty interest because there was a substantial statistical probability of release under the statute. The Supreme Court noted that the "Connecticut commutation statute, having no definitions, no criteria, and no mandated `shalls' creates no analogous duty or constitutional entitlement" such as that created by the statute at issue in Greenholtz. Id. at 466, 101 S.Ct. at 2465.
In Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), and Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983), the Court further clarified the principles outlined in Greenholtz and Dumschat. In Hewitt, the Court held that Pennsylvania's prison regulations governing administrative segregation of inmates created a liberty interest entitled to some degree of constitutional protection. 459 U.S. at 469-70, 103 S.Ct. at 870-71, 74 L.Ed.2d at 687-88. The Court indicated that
Id.
In Olim v. Wakinekona, 461 U.S. at 248, 103 S.Ct. at 1747, 75 L.Ed.2d at 823, the Court found that Hawaii's prison regulations on inmate transfers did not create a liberty interest because they established no substantive criteria which limit the decisionmaker's discretion.
In Williams v. Missouri Board of Probations and Parole, 661 F.2d 697 (8th Cir.1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1621, 71 L.Ed.2d 855 (1982) (Williams II), we held that Missouri's parole statutes created a protected liberty interest.
These cases indicate that there are two standards which determine whether a statute creates a protected liberty interest in parole: 1) does the statute contain particularized substantive standards or criteria which significantly guide parole decisions; and 2) does the statute use mandatory language similar in substance or form to the Nebraska statute's language at issue in Greenholtz?
Parker and Yancey concede that the Arkansas parole statutes fail the mandatory language test. Ark.Stat.Ann. § 43-2808 (1977) provides that
They argue, however, that the permissive/mandatory distinction is immaterial because the Arkansas parole statutes impose sufficient restrictions on the Board's discretion that a liberty interest in parole is created. The Circuits have split on the question of whether a parole statute must be drafted with the mandatory "shall" language to create a liberty interest in parole.
The statutes do not contain particularized substantive standards which significantly guide the Board's discretion to grant parole. We reject appellants' argument that Ark.Stat.Ann. § 43-2808 (1977) establishes a liberty interest because it provides that parole shall not be considered "as an award of clemency" or as "a reduction of sentence or pardon" but shall be ordered only "for the best interest of society" and "only when the Parole Board believes that [the eligible prisoner] is able and willing to fulfill the obligations of a law-abiding citizen."
Nor do we agree with the appellants that a liberty interest is established because the Arkansas parole statutes require certain procedures — such as that "the Parole Board shall have the prisoner appear before it and shall interview him." Ark.Stat.Ann. § 43-2808 (1977). As Hewitt makes clear, a state may establish mandatory procedures to channel a decisionmaker's discretion without thereby creating a liberty interest. 459 U.S. at 469-70, 103 S.Ct. at 870-71, 74 L.Ed.2d at 687-88. See also Lyon v. Farrier, 727 F.2d 766, 768 (8th Cir.1984) (per curiam); Johnson v. Stark, 717 F.2d 1550 (8th Cir.1983) (per curiam). In sum, the Arkansas parole statutes do not create a liberty interest because they provide that the parole board "may" instead of "shall" grant parole and because the substantive limitations on the Board's discretion are minimal. We now turn to whether the Board's regulations establish a protected liberty interest in parole release.
II. THE BOARD'S REGULATIONS.
Ark.Stat.Ann. § 43-2804 (1977), which describes the "Duties of the Parole Board," provides that "[a]ll policies, rules and regulations regarding parole shall be formulated
Parker and Yancey argue that this regulation establishes a protected liberty interest in parole. Before we can reach this issue, we must address the state's preliminary arguments that: 1) we should not consider whether the regulation establishes a protected liberty interest because this question was not considered by the district court; and 2) the regulation does not establish a protected liberty interest because it is merely an internal policy memorandum which was not promulgated or published pursuant to the Arkansas Administrative Procedure Act (A.P.A.), Ark.Stat.Ann. §§ 5-701 through 715.3 (1976 & Supp.1983), and was not intended as a "specific rule of law" which would control the Board's discretion.
First, we do not believe that the district court's failure to examine the regulation precludes our consideration of it. Although we are reluctant to decide on appeal an issue not reached below, Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976), both parties at oral argument, and the government on brief, addressed the question of whether the regulation establishes a protected liberty interest in parole. This is primarily a legal question which we may address on appeal. See Lucas v. Hodges, 730 F.2d 1493, 1501 (D.C.Cir.1984).
Second, although the record does not indicate when the regulation was adopted, it does indicate that the Board, at some point in time, did adopt it with the intent of following it and that the Board did follow it up until the time this appeal was brought. The regulation was contained in a section of Board regulations preceded by the statement "The following memorandums shall constitute the policy of the Board of Pardons and Paroles for the State of Arkansas, and shall remain in full effect and force until such time as superseding policy is adopted." Superseding policy was not adopted until this appeal was pending.
The state nonetheless argues that the regulation cannot create a liberty interest because it was not promulgated or published as required by the Arkansas A.P.A. and thus, under Ark.Stat.Ann. §§ 5-702(b) and 5-703(e) (1976), is "invalid." The record, however, does not indicate whether the A.P.A. was followed, or whether the Board was subject to the A.P.A. at the time it issued the regulation.
In any event, our review of the case law indicates that while it may be necessary that a regulation be promulgated or published under A.P.A. standards in order to become a "rule of law," a regulation or policy statement need not necessarily be a "rule of law" in order to create a liberty interest. In Lucas v. Hodges, 730 F.2d 1493 (D.C.Cir.1984), for example, the Court held that official statements of prison policy contained in internal directives of officials at the District of Columbia Detention Facility and the Lorton Reformatory could give rise to a liberty interest, even though the statements were not promulgated under A.P.A. standards or published in the District of Columbia Register or elsewhere. Id. at 1501-04. The Court remanded for a determination of whether the policy memorandums were authoritative statements of the criteria by which prisoner classification decisions are made. The Sixth Circuit, in Walker v. Hughes, 558 F.2d 1247, 1254-56 (6th Cir.1977), found a liberty interest in policy statements issued by the Federal Bureau of Prisons and the warden of a federal institution even though neither had been promulgated under A.P.A. standards or published in the Federal Register or in any other body of federal regulations. See also Bills v. Henderson, 631 F.2d 1287, 1291 (6th Cir.1980) (holding that a liberty interest was established by a prison rule contained in an "Adult Service Policies and Procedure Manual of the Department of Corrections (Guidelines)"). The Tenth Circuit, in Gurule v. Wilson, 635 F.2d 782, 785 (10th Cir.1980), found a protected liberty interest in an "official statement of policy" issued by the Administrator of one Colorado penitentiary. Similarly, the Seventh Circuit has held that a liberty interest may be created by "intra- and inter-institutional directives containing guidelines for allowing and denying compensatory good time." Arsberry v. Sielaff, 586 F.2d 37, 47 (7th Cir.1978). See also Harris v. McDonald, 737 F.2d 662, 664 (7th Cir.1984); Durso v. Rowe, 579 F.2d 1365, 1369 (7th Cir.1978), cert. denied, 439 U.S. 1121, 99 S.Ct. 1033, 59 L.Ed.2d 82 (1979). Dicta from cases in several other Circuits support these holdings.
We agree with every Circuit that has squarely considered this issue that these particularized standards or criteria which give rise to liberty interests may be found not only in a state's statutes or administrative code but also within official policy pronouncements which are intended
In Section I, we held that the Arkansas parole statutes do not create a protected liberty interest. We concluded that the controlling case law sets forth two standards which determine whether a parole statute creates a protected liberty interest: 1) does the statute contain particularized substantive standards or criteria which significantly guide the exercise of discretion; and 2) does the statute use mandatory language similar in substance or form to that used in the Nebraska statute which the Supreme Court in Greenholtz held established a protected liberty interest? We believe that these are also the relevant factors for determining whether a parole regulation establishes a protected liberty interest. Evans, 662 F.2d at 526. See also Olim, 75 L.Ed.2d at 813; Lucas v. Hodges, 730 F.2d at 1503.
Because Regulation § 3.09 provides that the Board will base its decision on certain substantive criteria, it satisfies both standards. First, the regulation sets forth particularized substantive criteria which significantly guide the Board's discretionary decision to grant or deny parole release. Evans, 662 F.2d at 526. See also Olim, 461 U.S. at 238, 103 S.Ct. at 1741, 75 L.Ed.2d at 813. Second, the language of the regulation is similar to the language of Neb.Rev.Stat. § 83-1, 114(1) (1976),
Parker and Yancey must be considered for parole under the Board guidelines in use at the time they committed the first crime for which they are now imprisoned. U.S. Const. art. I, § 9; Weaver v. Graham, 450 U.S. 24, 28-9, 101 S.Ct. 960, 963-4, 67 L.Ed.2d 17 (1981); Ark. Const. art. 2, § 17; Bosnick v. Lockhart, 283 Ark. 206, 672 S.W.2d 52 (1984); Ark.Stat.Ann. § 43-2830.3 (Supp.1983). The record does not indicate when the regulation was first adopted, or when Parker and Yancey committed the first crimes for which they are now imprisoned. Accordingly, the district court on remand must determine whether the regulation had been adopted at the time Parker and Yancey committed the first crimes for which they are now imprisoned.
In sum, the district court on remand must determine if the regulation applies to Parker and Yancey. If so, they are entitled to its protection. Assuming that the regulation was in effect when Parker and Yancey committed the first crimes for which they are now imprisoned, and that they are eligible for their first parole release as provided in the regulation, we now must decide whether there were sufficient procedural safeguards to protect the liberty interest which the regulation accords them.
III. PROCEDURAL SAFEGUARDS.
Yancey's complaint below alleged that he was generally denied due process because the Board did not follow its own rules and regulations when it considered him for parole. Parker alleged five procedural inadequacies in the manner in which her parole hearing was handled. Because the district courts summarily dismissed their claims under Fed.R.Civ.P. 12(b)(6), we do not have the factual record necessary to specifically determine in what respects Parker and Yancey were denied due process. As guidance to the district court on remand, however, we have examined Parker's five specific complaints and determined which claims we believe have some merit and should be considered more fully on remand.
First, Parker claimed below that the "serious nature of the offense" is not a valid reason for denying parole. Clearly, the Board may determine that the serious nature of the inmate's offense requires that a longer term be served before parole release. Cf. Greenholtz, 442 U.S. at 15, 99 S.Ct. at 2107; Sweazea v. Missouri Board of Probation & Parole, 742 F.2d 482, 483 (8th Cir.1984). We understand Parker's complaint to be not that the Board cannot consider the seriousness of her offense as a factor in denying her parole but rather that a boilerplate explanation that her parole release was denied because of the "serious nature of the offense" is too broad and general to comply with due process.
In U.S. ex rel. Scott v. Ill. Parole and Pardon Bd., 669 F.2d 1185, 1901 (7th Cir.), cert. denied 459 U.S. 1048, 103 S.Ct. 468, 74 L.Ed.2d 617 (1982), the Court indicated that it is inadequate to deny parole with a boilerplate explanation that parole would deprecate the severity of the crime for which the inmate is imprisoned. The Court noted that if the decisionmaker paroles some inmates convicted of murder, but denies parole to other inmates on the ground that they were convicted of murder, it must explain why the particulars of the murder and the sentence in the denied inmate's case justify deferral of parole release. The Board could also indicate that the severity of the offense, in combination with other factors, calls for deferral of parole release. In sum, the Board may deny Parker parole release because of the severity of her criminal act and sentence, but it must explain in more than boilerplate generalities why the severity of her particular offense and sentence requires deferral of parole.
Parker also claims that the parole board must provide inmates who are denied parole a full and fair explanation, in writing, of the evidence relied upon as reasons for denial of parole. We disagree because this claim was specifically rejected in Greenholtz, 442 U.S. at 15-16, 99 S.Ct. at 2107-2108.
Parker next claims that the Board should make available to her a list of criteria governing parole decisions. The state argued below that it already provides inmates with this information. The Board's regulations also provide that an institutional parole officer will explain parole procedures and policies to inmates. Board Handbook at 38. We believe that due process
Fourth, Parker claims that she is entitled to present documentary evidence in support of her application for parole. In Greenholtz, 442 U.S. at 15, 99 S.Ct. at 2107, the Court noted that the Nebraska scheme allowed inmates to present letters and statements on their behalf. In Evans, 662 F.2d at 526, we noted that an inmate should be provided an opportunity to respond to statements in his file which he believes are false. While we accept the Court's conclusion in Greenholtz, 442 U.S. at 14-15, 99 S.Ct. at 2107-2108 that a full evidentiary hearing is not required, Parker and Yancey should be allowed to present reasonable documentary evidence, such as letters and statements on their behalf. Because the record is unclear to what extent Parker and Yancey have not been allowed to present reasonable documentary evidence on their behalf, we leave to the district court on remand the task of determining what documentary evidence Parker and Yancey should be but have not been allowed to introduce at their parole hearings.
Finally, Parker claimed that she is entitled to review her parole records and to rebut evidence contained therein which she believes is inaccurate. Certain aspects of an inmate's parole record are already required to be kept in a public file under Ark.Stat.Ann. § 43-2819 (1977). In Williams v. Missouri Bd. of Probation and Parole, 585 F.2d 922, 925-26 (8th Cir.1978), vacated and remanded, 442 U.S. 926, 99 S.Ct. 2853, 61 L.Ed.2d 293 (1979) (Williams I), Williams II, 661 F.2d at 699-700, and Evans, 662 F.2d at 526, we set forth the standards governing inmate access to files. These standards balance the need to remove inaccurate information from files with the state's need to preserve the confidentiality of sources of information and to preserve security and discipline in its institutions. On remand, the court must decide, in light of these standards, what information Parker and Yancey should be allowed access to, and the extent to which they can rebut information which they believe is false.
In summary, we remand this case to the district court to determine if Regulation § 3.09 was in effect at the time Parker and Yancey committed the crimes for which they are now serving time and if the regulation applies to them. If so, the court must determine what procedural safeguards are necessary to accord them due process when they are considered for parole release. The court may take additional evidence, if necessary, and should consider the relevant Arkansas statutes, the Board's applicable rules and regulations, and the principles set forth in this decision. The district court should appoint counsel to represent plaintiffs during the proceedings on remand.
IV. YANCEY'S EQUAL PROTECTION CLAIM.
Yancey argues that the district court erred in holding that he was not denied due process or equal protection by the manner in which his parole hearing was conducted. We have held that if Yancey is covered by Board Regulation § 3.09, then he is entitled to due process protection when he is considered for release on parole. Because we believe this holding fully addresses Yancey's complaint, we need not address his equal protection claim.
In conclusion, we reverse and remand for further proceedings consistent with this opinion.
FLOYD R. GIBSON, Senior Circuit Judge, concurring in part and dissenting in part.
I concur with the majority's holding in Part I that the Arkansas parole statutes do not create a protectable liberty interest.
The Supreme Court stated in Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 871, 74 L.Ed.2d 675 (1983) that "the repeated use of explicitly mandatory language in connection with requiring specific substantive predicates demands a conclusion that the State has created a protected liberty interest" (emphasis added). The inclusion of the amorphous, general subsection (i) in § 3.09 (1) demonstrates that the Arkansas Parole Board was not required to find that a specific substantive predicate existed before denying parole. Indeed, the situation comes close to one in which "the decisionmaker can deny the requested relief for any constitutionally permissible reason or no reason at all." Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 467, 101 S.Ct. 2460, 2465, 69 L.Ed.2d 158 (1981) (J. Brennan, concurring). Absent a finding that the regulation contained explicit mandatory language and required the Parole Board to find that specific substantive predicates existed before making its parole decision, I would not interfere with the Parole Board's decision-making process. The Parole Board has a statutory duty to pass upon the parole application. It is in a much better position to process these parole applications than are the courts. The parole function is an administrative function that is within the jurisdiction and proper sphere of activity of the Executive Branch. I don't think the courts should interfere in the parole process absent a clear constitutional violation, which I do not perceive in this case.
At most I would remand this case to the district court for determination of whether the Board's Regulations were validly adopted. If the district court holds that the Regulations were validly adopted, then that court first should determine whether the regulation in question creates a liberty interest.
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