OCTOBER TERM, 1996
Syllabus
YOUNG ET AL.
v. HARPER
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT
No. 95-1598. Argued December 9, 1996-Decided March 18, 1997
Oklahoma's Preparole Conditional Supervision Program (preparole
or Program) took effect whenever the state prisons became
overcrowded and authorized the conditional release of prisoners
before their sentences expired. The Pardon and Parole Board (Board)
determined who could participate in it, and an inmate could be
placed on preparole after serving 15% of his sentence. An inmate
was eligible for parole only after one-third of his sentence had
elapsed, and the Governor, based on the Board's recommendation,
decided to grant parole. Program participants and parolees were
released subject to similar constraints. Upon reviewing
respondent's criminal record and prison conduct, the Board
simultaneously recommended him for parole and released him under
the Program. At that time, he had served 15 years of a life
sentence. After he spent five apparently uneventful months outside
the penitentiary, the Governor denied him parole, whereupon he was
ordered to, and did, report back to prison. Despite his claim that
his summary reincarceration deprived him of liberty without due
process in violation of the Fourteenth Amendment, he was denied
habeas relief by, successively, the state trial court, the Oklahoma
Court of Criminal Appeals, and the Federal District Court. The
Tenth Circuit reversed, holding that preparole was sufficiently
like parole that a Program participant was entitled to the
procedural protections set forth in
Morrissey v.
Brewer, 408 U.
S. 471.
Held: The Program, as it existed when respondent was
released, was equivalent to parole as understood in
Morrissey.
Morrissey's description of the "nature of the interest of the
parolee in his continued liberty" could just as easily have applied
to respondent while he was on preparole. In compliance with state
procedures, he was released from prison before the expiration of
his sentence. See 408 U. S., at 477. He kept his own residence; he
sought, obtained, and maintained a job; and he lived a life
generally free of the incidents of imprisonment. See
id., at
481-482. Although he was not permitted to use alcohol, to incur
other than educational debt, or to travel outside the county
without permission, and he was required to report regularly to a
parole officer, similar limits on a parolee's liberty did not in
Morrissey render such liberty beyond procedural protection.
Id., at 478. Some of the factors as-
144
serted by petitioners to differentiate the Program from parole
under
Meachum v.
Fano, 427 U. S. 215, 228-that
preparole had the purpose of reducing prison overcrowding, and that
a preparolee continued to serve his sentence and receive earned
credits, remained within the custody of the Department of
Corrections, and was aware that he could have been transferred to a
higher security level if the Governor denied parole-do not, in
fact, appear to distinguish the two programs at all. Other
differences identified by petitioners-that participation in the
Program was ordered by the Board, while the Governor conferred
parole; that escaped preparolees could be prosecuted as though they
had escaped from prison, while escaped parolees were subject only
to parole revocation, and that a preparolee could not leave
Oklahoma under any circumstances, while a parolee could leave the
State with his parole officer's permission-serve only to set
preparole apart from the specific terms of parole as it existed in
Oklahoma, but not from the more general class of parole identified
in
Morrissey. The Program appears to have differed from
parole in name alone. Pp. 147-153.
64 F.3d
563, affirmed.
THOMAS, J., delivered the opinion for a unanimous Court.
Sandra D. Howard, Assistant Attorney General of Oklahoma,
argued the cause for petitioners. With her on the briefs were
W
A. Drew Edmondson, Attorney General, and
Jennifer B.
Miller, Assistant Attorney General.
Margaret Winter, by appointment of the Court, 518 U. S. 1015,
argued the cause for respondent. With her on the brief were
Marjorie Rifkin, Elizabeth Alexander, Micheal Salem, and Steven R.
Shapiro.
*
JUSTICE THOMAS delivered the opinion of the Court.
This case presents the narrow question whether a program
employed by the State of Oklahoma to reduce the overcrowd-
* A brief of
amici curiae urging reversal was filed for
the State of Nevada et al. by
Frankie Sue Del Papa, Attorney
General of Nevada, and
Anne Cathcart, Senior Deputy Attorney
General, joined by the Attorneys General for their respective
States as follows:
Daniel E. Lungren of California,
Gale
A. Norton of Colorado,
Margery S.
Bronster of
Hawaii,
Alan G.
Lance of Idaho,
Joseph P.
Mazurek of Montana, and
Dennis C.
Vacco of New
York.
145
ing of its prisons was sufficiently like parole that a person in
the program was entitled to the procedural protections set forth in
Morrissey v.
Brewer, 408 U. S. 471 (1972),
before he could be removed from it. We hold that the program, as it
appears to have been structured at the time respondent was placed
on it, differed from parole in name alone, and affirm the decision
of the Court of Appeals for the Tenth Circuit.
I
As pertinent to this case, Oklahoma operated two programs under
which inmates were conditionally released from prison before the
expiration of their sentences. One was parole, the other was the
Preparole Conditional Supervision Program (preparole or Program).
The Program was in effect whenever the population of the prison
system exceeded 95% of its capacity. Okla. Stat., Tit. 57, § 365(A)
(Supp. 1990). An inmate could be placed on preparole after serving
15% of his sentence, § 365(A)(2), and he was eligible for parole
when one-third of his sentence had elapsed, § 332.7(A). The Pardon
and Parole Board (Board) had a role in the placement of both
parolees and preparolees. The Board itself determined who could
participate in the Program, while the Governor, based on the
Board's recommendation, decided whether a prisoner would be
paroled. As we describe further in Part II,
infra,
participants in the Program were released subject to constraints
similar to those imposed on parolees.
In October 1990, after reviewing respondent Ernest Eugene
Harper's criminal record and conduct while incarcerated, the Pardon
and Parole Board simultaneously recommended him for parole and
released him under the Program. At that time, respondent had served
15 years of a life sentence for two murders. Before his release,
respondent underwent orientation, during which he reviewed the
"Rules and Conditions of Pre-Parole Conditional Supervision," see
App. 7, and after which he executed a document
146
indicating that he "underst[ood] that being classified to
community level depend[ed] upon [his] compliance with each of these
expectations,"
id., at 6. He spent five apparently
uneventful months outside the penitentiary. Nonetheless, the
Governor of Oklahoma denied respondent parole. On March 14, 1991,
respondent was telephoned by his parole officer, informed of the
Governor's decision, and told to report back to prison, which he
did later that day.
Respondent filed a petition for a writ of habeas corpus in state
court complaining that his summary return to prison had deprived
him of liberty without due process. The state trial court denied
relief and the Oklahoma Court of Criminal Appeals affirmed. 852 P.
2d 164 (1993). The Court of Criminal Appeals concluded that
respondent's removal from the Program impinged only upon an
interest in his "degree of confinement," an interest to which the
procedural protections set out in
Morrissey did not attach.
852 P. 2d, at 165. The court found "[d]ispositive of the issue" the
fact that respondent "was not granted parole by the Governor of
Oklahoma."
Ibid. The court noted that the Board had adopted
a procedure under which preparolees subsequently denied parole
remained on the Program, and had their cases reviewed within 90
days of the denial for a determination whether they should continue
on preparole. According to the court, "such a procedure gives an
inmate sufficient notice when he is placed in the program that he
may be removed from it when the governor exercises his discretion
and declines to grant parole."
Ibid.
Respondent fared no better in District Court on his petition for
relief under 28 U. s. C. § 2254. But the Tenth Circuit reversed.
64 F.3d
563 (1995). It determined that preparole "more closely
resembles parole or probation than even the more permissive forms
of institutional confinement" and that "[d]ue process therefore
mandates that program participants receive at least the procedural
protections described in
Morrissey." Id., at 566-567.
Petitioners sought certio-
147
rari on the limited question whether preparole "is more similar
to parole or minimum security imprisonment; and, thus, whether
continued participation in such program is protected by the Due
Process Clause of the Fourteenth Amendment." Pet. for Cert. i. We
granted certiorari, 517 U. S. 1219 (1996), and, because we find
that preparole as it existed at the time of respondent's release
was equivalent to parole as understood in
Morrissey, we
affirm.1
II
"The essence of parole is release from prison, before the
completion of sentence, on the condition that the prisoner abide by
certain rules during the balance of the sentence."
Morrissey, 408 U. S., at 477. In
Morrissey, we
described the "nature of the interest of the parolee in his
continued liberty":
"[H]e can be gainfully employed and is free to be with family
and friends and to form the other enduring attachments of normal
life. Though the State properly subjects him to many restrictions
not applicable to other citizens, his condition is very different
from that of confinement in a prison .... The parolee has relied on
at
1 Respondent contends that the petition for certiorari was filed
out of time, and that we are thus without jurisdiction. We
disagree. A timely filed petition for rehearing will toll the
running of the 90-day period for filing a petition for certiorari
until disposition of the rehearing petition.
Missouri v.
Jenkins, 495 U.
S. 33, 46 (1990). The petition for certiorari was filed within
90 days of the denial of rehearing. Although the petition for
rehearing was filed two days late, the Tenth Circuit granted
petitioners "leave to file a late petition for rehearing and
suggestion for rehearing en bane," as it had authority to do. See
Fed. Rule App. Proc. 40(a). Moreover, after granting petitioners
leave to file the petition for rehearing, the Tenth Circuit treated
it as timely and no mandate issued until after the petition was
denied. See Fed. Rule App. Proc. 41(a). In these circumstances, we
are satisfied that both the petition for rehearing and the
subsequent petition for certiorari were timely filed.
148
least an implicit promise that parole will be revoked only if he
fails to live up to the parole conditions." Id., at 482.
This passage could just as easily have applied to respondent
while he was on preparole. In compliance with state procedures, he
was released from prison before the expiration of his sentence. He
kept his own residence; he sought, obtained, and maintained a job;
and he lived a life generally free of the incidents of
imprisonment. To be sure, respondent's liberty was not unlimited.
He was not permitted to use alcohol, to incur other than
educational debt, or to travel outside the county without
permission. App. 7-8. And he was required to report regularly to a
parole officer.
Id., at 7. The liberty of a parolee is
similarly limited, but that did not in
Morrissey, 408 U. S.,
at 478, render such liberty beyond procedural protection.
Petitioners do not ask us to revisit
Morrissey; they
merely dispute that preparole falls within its compass. Our
inquiry, they argue, should be controlled instead by
Meachum
v.
Fano, 427
U. S. 215 (1976). There, we determined that the interest of a
prisoner in avoiding an intrastate prison transfer was "too
ephemeral and insubstantial to trigger procedural due process
protections as long as prison officials have discretion to transfer
him for whatever reason or for no reason at all."
Id., at
228; see also
Sandin v.
Conner, 515 U. S. 472, 487
(1995). Petitioners contend that reincarceration of a preparolee
was nothing more than a "transfe[r] to a higher degree of
confinement" or a "classification to a more supervised prison
environment," Brief for Petitioners 18, which, like transfers
within the prison setting, involved no liberty interest.
In support of their argument that preparole was merely a lower
security classification and not parole, petitioners identify
several aspects of the Program said to render it different from
parole. Some of these do not, in fact, appear to distinguish the
two programs. Others serve only to set preparole
149
apart from the specific terms of parole as it existed in
Oklahoma, but not from the more general class of parole identified
in
Morrissey. None of the differences-real or
imaginedsupports a view of the Program as having been anything
other than parole as described in
Morrissey.
We first take up the phantom differences. We are told at the
outset that the purposes of preparole and parole were different.
Preparole was intended "to reduce prison overcrowding," while
parole was designed "to help reintegrate the inmate into society."
Reply Brief for Petitioners 10. This alleged difference is less
than it seems. Parole could also be employed to reduce prison
overcrowding, see Okla. Stat., Tit. 57, §332.7(B) (Supp. 1990). And
the Program's requirement that its participants work or attend
school belies the notion that preparole was concerned only with
moving bodies outside of teeming prison yards. In fact, in their
brief below, petitioners described the Program as one in which the
Department of Corrections "places eligible inmates into a community
for the purpose of reintegration into society." Brief for Appellees
in No. 95-5026 (CAlO), p. 7, n.2.
We are also told that "an inmate on the Program continues to
serve his sentence and receives earned credits ... , whereas a
parolee is not serving his sentence and, if parole is revoked, the
parolee is not entitled to deduct from his sentence time spent on
parole." Reply Brief for Petitioners 11. Our review of the statute
in effect when respondent was released, however, reveals that a
parolee was "entitled to a deduction from his sentence for all time
during which he has been or may be on parole" and that, even when
parole was revoked, the Board had the discretion to credit time
spent on parole against the sentence. Okla. Stat., Tit. 57, § 350
(Supp. 1990).
Petitioners next argue that preparolees, unlike parolees,
remained within the custody of the Department of Corrections. This
is said to be evidenced by respondent's having
150
had to report to his parole officer weekly and to provide the
officer with a weekly itinerary. Reply Brief for Petitioners 13. We
are at a loss to explain why respondent's regular visits to his
parole officer rendered him more "in custody" than a parolee, who
was required to make similar visits. See App. to Brief for
Respondent 28a. Likewise, the provision that preparolees "be
subject to disciplinary proceedings as established by the
Department of Corrections" in the event that they "violate any rule
or condition during the period of community supervision," Okla.
Stat., Tit. 57, § 365(E) (Supp. 1990), did not distinguish their
"custodial" status from that of parolees, who were also subject to
the department's custody in the event of a parole violation. See
Reply Brief for Petitioners 13.
Petitioners, for their final nonexistent distinction, argue
that, because a preparolee "is aware that he may be transferred to
a higher security level if the Governor, through his discretionary
power, denies parole," he does not enjoy the same liberty interest
as a parolee. Brief for Petitioners 20. Preparole, contend
petitioners, was thus akin to a furlough program, in which liberty
was not conditioned on the participant's behavior but on extrinsic
events. By this reasoning, respondent would have lacked the
"implicit promise" that his liberty would continue so long as he
complied with the conditions of his release,
Morrissey, 408
U. S., at 482. Respondent concedes the reasoning of petitioners'
argument as it relates to furloughs, but challenges the premise
that his participation in the Program was conditioned on the
Governor's decision regarding parole.
In support of their assertion that a preparolee knew that a
denial of parole could result in reincarceration, petitioners
rely-as they have throughout this litigation-on a procedure
promulgated in August 1991, nearly five months
after
respondent was returned to prison. See Pardon and Parole Board
Procedure No. 004-011 (1991), App. to Pet. for Cert.
151
56a.2 The Court of Criminal Appeals also relied on this
provision, but because it was not in effect when respondent was
released, it has little relevance to this case.
Nor have we been presented with any other evidence to
substantiate this asserted limitation on respondent's release. The
closest petitioners come is to direct us to the orientation form
reviewed with respondent upon his release. Item 9 of that
orientation form says: "Reviewed options available in the event of
parole denial." App. 5. Mindful of Procedure No. 004-011, as
amended after respondent was reincarcerated, it is
possible
to read this item as indicating that respondent was told his
participation in the Program could be terminated if parole were
denied. But the mere possibility of respondent's having been so
informed is insufficient to overcome his showing of the facially
complete, written "Rules and Conditions of Pre-Parole Conditional
Supervision," App. 7-9, which said nothing about the effect of a
parole denial.
Counsel for the State also claims that at the time respondent
was participating in the Program, preparolees were always
reincarcerated if the Governor denied them parole. Tr. of Oral Arg.
8. In the absence of evidence to this effect-and the State points
to none-this assertion is insufficient to rebut the seemingly
complete rules and conditions of respondent's release. On the
record before us, therefore, the premise of petitioners'
argument-that respondent's continued participation was conditioned
on extrinsic events-is illusory, and the analogy to furlough
inapposite.3
2The version of Procedure No. 004-011 in effect when respondent
was placed on the Program was silent as to a parole denial's
effect. See App. to Pet. for Cert. 43a-52a. The procedure was
amended again in 1994, and now provides that "[i]nmates denied
parole by the Governor while on [preparole] will remain on the
program, unless returned to higher security by due process." App.
to Brief for Respondent 38a.
3 Equally illusory is the argument, which petitioners made for
the first time in this Court, that the Board had authority to
reimprison a preparolee for any reason or for no reason. The
written rules and conditions
152
Petitioners do identify some actual differences between
preparole and Oklahoma's version of parole, but these do no better
at convincing us that preparole was different from parole as we
understood it in
Morrissey. As petitioners point out,
participation in the Program was ordered by the Board, while the
Governor conferred parole. In this regard, preparole was different
from parole in Oklahoma; but it was no different from parole as we
described it in
Morrissey. See 408 U. S., at 477-478. In
addition, preparolees who "escape[d]" from the Program could be
prosecuted as though they had escaped from prison, see Okla. Stat.,
Tit. 57, § 365(F) (Supp. 1990), while it appears that parolees who
"escaped" from parole were subject not to further prosecution, but
to revocation of parole, see Reply Brief for Petitioners 11. That
the punishment for failure to abide by one of the conditions of his
liberty was potentially greater for a preparolee than for a parolee
did not itself diminish that liberty. Petitioners also note that a
preparolee could not leave Oklahoma under any circumstances, App.
7, while a parolee could leave Oklahoma with his parole officer's
permission, App. to Brief for Respondent 27a. This minor difference
in a released prisoner's ability to travel did not, we think, alter
the fundamentally parole-like nature of the Program.4
III
We conclude that the Program, as it existed when respondent was
released, was a kind of parole as we understood pa-
of respondent's release identify no such absolute discretion,
and petitioners point to nothing to support their contention.
4 A comparison of the conditions of preparole of which
respondent was informed, App. 7-9, and those of which a roughly
contemporary parolee would have been informed, App. to Brief for
Respondent 27a-30a, reveals that-except for the travel and "escape"
provisions-the two sets of conditions were essentially
identical.
153
role in
Morrissey.5 The judgment of the Tenth Circuit is
therefore affirmed.
It is so ordered.
5 The Program appears to be different now. We have no occasion
to pass on whether the State's amendments to the Program, adopted
since respondent was reincarcerated, render the liberty interest of
a presentday preparolee different in kind from that of a
parolee.
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