The iron curtain: Alabama's practice of excluding inmates from parole release hearings and its flawed underpinnings.

• Author: Ramamurthy, Erin Lange

TABLE OF CONTENTS I. INTRODUCTION II. BACKGROUND A. History and Importance of Parole Release Decisions B. Current Practices of the Alabama Board of Pardons and Paroles C. The Context of Greenholtz: Supreme Court Decisions Defining Constitutional Protections in Parole Release and Revocation III. DISCUSSION A. The First Prong of Greenholtz was Incorrectly Decided B. The Second Prong of Greenholtz is Misguided Under Sandin v. Conner C. Assuming a Protected Liberty Interest Exists at Parole Release, Alabama's Policy of Inmate Exclusion is a Violation of Due Process IV. CONCLUSION I. INTRODUCTION

In 1974, Justice Byron White stated in Wolff v. McDonnell, "There is no iron curtain drawn between the Constitution and the prisons of this country." (1) In 1979, however, the U.S. Supreme Court held that such a curtain could be drawn between Fourteenth Amendment due process and a prisoner's discretionary parole release hearing. (2) For roughly the past three decades, the Court's decision in Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex has given state parole boards unbridled discretion to release or reject inmates that seek grants of discretionary parole release. (3) It has even permitted some states, such as Alabama, to exclude inmates from their hearings altogether.

The actual costs of excluding inmates in this fashion remains unknown. But in a recent study involving Israeli judges, researchers concluded that judicial rulings--and in the case of the study, parole decisions--can be greatly influenced by external factors such as how recently a judge took a break to eat. (4) Remarkably, the study showed that the percentage of favorable rulings drops gradually from roughly 65% to nearly zero within each decision session and returns abruptly to roughly 65% after a break. (5) These findings raise intriguing questions about the factors that affect parole decisions across the globe.

In the United States, "[p]arole is a period of conditional supervised release in the community following a prison term." (6) Unlike in Israel, where parole decisions are made by judges, panels of Americans appointed to administrative agencies, such as state parole boards, make parole release decisions. (7) U.S. parole board members do not necessarily have any legal training. (8)

Perhaps the most critical determination made by a parole board is the likelihood that an inmate will reoffend if released, or in other words, how significantly his criminal ways have been rehabilitated. (9) In order to conduct this recidivism analysis during the discretionary parole release process, a long list of states, including Missouri, Texas, Arizona, Indiana, Kansas, Montana, and Illinois, provide an inmate with the opportunity to appear before at least one member of a parole board in a hearing or an interview. (10)

Not every state parole board, however, permits inmates to speak on their own behalf at parole release hearings. In fact, policies employed by some state parole boards, such as the Alabama Board of Pardons and Paroles (the Board), make this geographically impossible. Specifically, the Board currently holds all parole hearings in Montgomery, Alabama, (11) yet an inmate could be incarcerated hours away from Montgomery by car. Therefore, to attend his hearing in person, the inmate would need to be transferred to Montgomery by the Alabama Department of Corrections (DOC). Responding to a request for information about Board policies filed under Alabama's open records law, Board representatives maintained that "[t]o transport inmates to the Board for their parole hearing would create an added financial responsibility for the Department of Corrections." (12) While Board representatives insist that there is no formal policy concerning inmates' hearing attendance, (13) the system is structured so that there may be no other practical effect than to exclude the inmates from the very process that could secure their freedom. (14)

Regardless of the formality of the policy, however, it is quite clear that, "[i]n Alabama, inmates do not attend parole hearings." (15) This Comment contends that this practice violates Fourteenth Amendment procedural due process. In so arguing, this Comment seeks to reject the reasoning underlying the U.S. Supreme Court case of Greenholtz, which held that Fourteenth Amendment due process does not apply to parole release hearings. (16)

2. BACKGROUND

   1. HISTORY AND IMPORTANCE OF PAROLE RELEASE DECISIONS

      Since the nineteenth century, parole release has been an integral part of our criminal justice system. Today, it is still part of an ongoing dialogue concerning the release and rehabilitation of the offender population. The earliest example of parole in this country was a program implemented in 1876 at a youth facility in New York. (17) New York formally adopted a parole system in 1907 and was the first state to do so. (18) All states and the federal government had a parole system in place by 1942. (19)

      State and federal parole systems have created two distinct categories of parole release: discretionary and mandatory parole. Discretionary parole consists of indeterminate sentences, a specific system for granting release, and post-release supervision. (20) Mandatory parole, on the other hand, can be described as "a matter of bookkeeping: one calculates the amount of time served plus good time and subtracts it from the prison sentence imposed." (21) In other words, once an inmate has served a certain amount of his sentence, parole release is mandatory by state law.

      Time spent on parole release is vastly different from time spent in a correctional facility--the obvious difference being that a parolee is not confined within prison walls. Nonetheless, the life of a parolee is far different from that of an ordinary citizen. Once released on parole, inmates are placed under supervision for a period of one to three years in most states, although parole supervision can be as long as ten to twenty years in some states, such as Texas. (22) This supervision typically consists of check-ins as well as field contacts by parole agents, (23) whose responsibilities include "drug testing, monitoring curfews, and collecting restitution." (24)

      Despite the fact that serving time on parole still requires individuals to abide by strict guidelines, discretionary parole remains controversial. Many feel that discretionary parole release permits unnecessary leniency for convicted criminals and contributes to high recidivism rates. (25) Others argue that abolishing discretionary parole will lead to "greater honesty in sentencing decisions." (26) In fact, many states and the federal government abolished discretionary parole. (27)

      Even though discretionary parole release has fallen out of favor with many states and the federal government, it is far from irrelevant. For example, the Supreme Court recently held in Miller v. Alabama that state sentencing laws could no longer dictate mandatory life imprisonment without the possibility of parole for individuals who were under the age of eighteen when they committed their crimes. (28) This decision is important not only because it demonstrates that parole release is still relevant, but also because it highlights the inescapable connection between an inmate's sentence and his possibility of obtaining discretionary parole. (29) As this Comment discusses in Part III, this connection strengthens the justification for providing greater constitutional protection to the parole release process.

      In addition, state parole systems unquestionably affect a large number of individuals across the United States. In 2009, 5,018,900 individuals were supervised on either parole or probation. (30) In 2011, roughly 1.1 million people moved through the parole system while "the state parole population increased by 1.1%." (31) Given these statistics, questions of when to incarcerate, when to release, and how to rehabilitate the offender population are critical.

      In fact, many states and the federal government have recently allocated additional resources to rehabilitate criminal offenders. For example, several states, including New York, Maryland, and Michigan, have created special committees, task forces, or initiatives designed to deal specifically with prisoner reentry. (32) Additionally, many states now have formal reentry programs run by both state and federal courts in which voluntary participants are able to seek help and guidance in the process of reintegrating into society after incarceration. (33)

      The process of rehabilitating an offender, however, sometimes begins with a determination that he is ready to be released into society through the vehicle of parole release. The underpinnings of the release process, therefore, deserve attention--particularly in states such as Alabama where the Board has absolute discretion to either grant or deny an inmate's parole at the conclusion of a parole release hearing.

   2. CURRENT PRACTICES OF THE ALABAMA BOARD OF PARDONS AND PAROLES

      In light of recent concerns regarding the size of the offender population, (34) one might expect state parole boards to be more amenable to granting discretionary parole in an effort to reduce the number of incarcerated individuals. This has not been the case, however, in Alabama. According to annual reports released by the Board each fiscal year, the denial rate has increased from 56.6% in 2007-2008 (35) to 58.6% in 20082009, (36) and from 60.4% in 2009-2010 (37) to 69.5% in 2010-2011. (38) This statistic rose even higher in the 2011-2012 report, which disclosed that 70.6% of inmates were denied parole in the that fiscal year. (39)

      The Alabama statistics confirm a nationwide trend. Since the late 1970s, the percentage of inmates released on discretionary parole in the United States has declined steadily from 72% in 1977 to just 24% in 1999. (40) Yet as states like Alabama continue to provide for discretionary parole but deny it to the vast...