Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No S. 84-395--Allen Sharp, Chief Judge.
Before CUMMINGS, Chief Judge, and CUDAHY and EASTERBROOK, Circuit Judges.
Sentenced in 1964 to life in prison for first degree murder, Robert Huggins has tried to secure release by clemency or parole. Five times the Governor of Indiana declined to commute Huggins' sentence. In 1984, after serving 20 years, he became eligible for parole. So far the state's parole board has declined at least thrice to release Huggins. Each time the board sent Huggins a form preprinted "it was the decision of the Indiana Parole Board not to grant parole at this time for the following reasons" followed by a handlettered notation. The notation for February 1984 is: "Seriousness of offense." The notation for February 1985 is: "A--Seriousness of the offense." There is no "B".
Insisting that the state had paroled or granted clemency to other murderers, Huggins filed this suit under 42 U.S.C. § 1983, arguing that the due process clause of the fourteenth amendment entitles him to a better reason. As he puts it, "seriousness of the offense" is "too broad and general to comply with due process." In this circuit, at least, such a contention may be raised in § 1983 litigation as well as habeas corpus. Walker v. Prisoner Review Board, 694 F.2d 499, 501 (7th Cir. 1982). See also In re United States Parole Commission, 253 U.S. App. D.C. 267, 793 F.2d 338 (D.C. Cir. June 17, 1986). But cf. Billiteri v. United States Board of Parole, 541 F.2d 938, 946-47 (2d Cir. 1976); Bijeol v. Benson, 513 F.2d 965, 967 (7th Cir. 1975).
The district court concluded that Indiana's parole statutes and regulations do not establish a "liberty" or "property" interest within the meaning of the due process clause, and it therefore dismissed the complaint for failure to state a claim on which relief may be granted. The court observed that Averhart v. Tutsie, 618 F.2d 479, 480-82 (7th Cir. 1980), had come to this conclusion about Indiana's system. Although there had been amendments to Indiana's statute and rules since Averhart, the court relied on Higgason v. Duckworth, 573 F. Supp. 669, 670-71 (N.D. Ind. 1983), which concluded that the amended system still does not establish a "liberty" or "property" interest. The principal question for decision is whether Higgason is correct.
The statute in force until October 1980, Ind. code § 11-1-1-9, entitled the prisoner to appear before the parole board (§ 11-1-1-9(c)) and required the board to "consider all pertinent information regarding each prisoner . . . including the circumstances of his offense, his previous social history and criminal record, his conduct, employment, and attitude in prison, and the reports of such physical and mental examinations as have been made." Ind. Code § 11-1-1-9(b). The only rules guiding the board's exercise of discretion stated: "A parole shall be ordered only for the best interest of society, no as an award of clemency; it shall not be considered to be a reduction of sentence or pardon. A prisoner shall be placed on parole only when arrangements have been made for his proper employment, or for his maintenance and care, and only when the Indiana parole board believes that he is able and willing to fulfill the obligations of a law-abiding citizen." Ind. Code § 11-1-1-9(c). The Supreme Court of Indiana, interpreting this statute, held that "our Legislature has invested the Parole Board with almost total discretion in such matters." Murphy v. Indiana Parole Board, 272 Ind. 200, 397 N.E.2d 259, 263 (1979).
The decision of the Supreme Court of Indiana made for an easy analysis under Greenholtz v. Inmates of the Nebraska Penal and Correctional Center, 442 U.S. 1, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979). Greenholtz established that a prisoner's desire to be released on parole is neither liberty nor property within the meaning of the due process clause unless the state establishes an entitlement that depends on the application of rules to facts. If parole is discretion and nothing but, then there is no liberty or property interest. If rules of law require the parole officials to act in specified ways, then there is a protected interest, a "legitimate claim of entitlement". Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). The essential ingredient is "an entitlement that stands or falls on the application of rules to facts. To the extent a request appeals to discretion rather than to rules, there is no property." Scott v. Village of Kewaskum, 786 F.2d 338, 339-40 (7th Cir 1986). See also Achacoso-Sanchez v. INS, 779 F.2d 1260, 1264 (7th Cir. 1985). Because the judgment of conviction removes, for the duration of the sentence, the prisoner's "natural" liberty, the right to freedom that antedates governments, the definition of a liberty interest in parole or other early release is the same as the definition of a property interest. See Greenholtz, 442 U.S. at 11-12. Indiana's former parole statute, as the Supreme Court of Indiana understood it, did not call for the application of rules to facts but left parole officials with unbounded discretion.
The new statute, like the old, requires the parole board to meet with the prisoner and to consider his background. Ind. Code § 11-13-3-3(b), (i). Two new provisions restrict the board's discretion. Section 11-13-3-3(h) provides that the board "shall adopt rules, under IC 4-22-2, and make available to offenders the criteria considered in making parole release determinations. The criteria must include the: (1) nature and circumstances of the crime for which the offender is committed; (2) offender's prior criminal record; (3) offender's conduct and attitude during commitment; and (4) offender's parole plan." With these criteria in mind, the board must decide whether to release an applicant. The statute does not say what combination of criteria requires release. It does say (§ 11-13-3-3(j)):
If parole is denied, the parole board shall give the person written notice of the denial and the reasons for the denial. The parole board may not parole a person if it determines that there is a substantial reason to believe that he: (1) will engage in further specified criminal activity; or
(2) will conform to appropriate specified conditions of parole.
Huggins argues that this statute means that the board shall release an eligible prisoner unless he will "engage in further specified criminal activity" or "will not conform to appropriate specified conditions of parole." If so, the new statute establishes a liberty or property interest under the analysis of Greenholtz.
United States ex rel. Scott v. Illinois Parole and Pardon Board, 669 F.2d 1185 (7th Cir.), cert. denied, 459 U.S. 1048, 74 L. Ed. 2d 617, 103 S. Ct. 467 (1982), held that a statute with a structure similar to the new Indiana law does restrict the parole officials' discretion and establish a liberty or property interest. This case shows, however, that a similar structure is not enough to require an identical outcome. The district court, whose interpretation of Indiana law deserves some deference, concluded that it does not. We read the Illinois statute in Scott as confining the parole officials' discretion, granting that the same language could be read differently. 669 F.2d at 1189. Indiana's language must be read differently.
Section 11-13-3-3(j) is phrased in the negative; it sometimes forbids release but never requires release. The regulations issued under § 11-13-3-3(h) could restrain the board's discretion, which would establish a liberty or property interest, see Hewitt v. Helms, 459 U.S. 460, 471-72, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983), but they do not. The regulations, codified at 220. I.A.C. § 1.1-2-3, enlarge the list of considerations beyond those enumerated in § 11-13-3-3(h), but they do not attach weights to any factor or fetter the board's discretion in the least. The substantive regulation, 220 I.A.C. § 1.1-2-3(j), tracks the statutory language by sometimes forbidding parole but never requiring parole. Neither the statute nor any regulation requires the board to give a particular reason for denying parole. It may, for example, give a reason that is not among the two criteria that compel it (under § 11-13-3-3(j)) to deny parole. This is enough to establish that the statute leaves the parole officials with discretion.
It is not important that the statute and regulation require the parole board to hold meetings with applicants for parole. Liberty or property is defined by the substantive criteria that guide the decision, not by the procedural trappings. Hewitt, 459 U.S. at 471; Olim v. Wakinekona, 461 U.S. 238, 248-51, 75 L. Ed. 2d 813, 103 S. Ct. 1741 (1983). Cf. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 1491-93, 84 L. Ed. 2d 494 (1985). It is also unimportant that the board releases many murderers. The essential liberty or property interest comes from rules, not from empirical regularities under discretionary regimes. Connecticut pardoned or granted clemency to a very large portion of its prisoners, yet this did not establish a ...