In re Jerry Lain: Rights of a Parolee in Washington

In re Personal Restraint of Jerry Lain, November 7, 2013.

 (Decision authored by Justice Gonzales and joined by the other justices except Justice Fairhurst (joined by Justice Pro Tem, Robin Hunt, a judge on the Court of Appeals, Division II) who wrote a concurring opinion to “emphasize the limited scope of the protected liberty interest the majority finds under the Fourteenth Amendment to the United States Constitution.”)

The case is interesting because it educates as to the extent of the governor’s power to cancel a prisoner’s parole without any sort of hearing or due process beyond that of consideration of the work of the parole board.  Furthermore, it educates because it explains the scope of a prisoner’s very limited “liberty interests.”

It is also instructive in that it seems the governor may have used her power in reaction to public and thus political pressure to cancel the parole.

Jerry Lain was paroled by the parole board. People became upset and complained to the governor about the dangers of a person like Mr. Lain.

Governor Gregoire, reacting to public pressure, reversed the parole board’s decision and canceled the parole.  The cancellation took place four days before Mr. Lain’s release date.

The governor acted under RCW 9.95.160, which provides that “the governor may cancel or revoke the parole granted to any convicted person by the board.” In response, the board added  36 months to Lain’s minimum term of confinement.

RCW 9.95.160 provides:

 This chapter shall not limit or circumscribe the powers of the governor to commute the sentence of, or grant a pardon to, any convicted person, and the governor may cancel or revoke the parole granted to any convicted person by the board. The written order of the governor canceling or revoking such parole shall have the same force and effect and be executed in like manner as an order of the board.

Lain challenged the governor’s action saying the  statute violated due process.  He brought an “as-applied” and a “facial challenge to the statute.”  He argued that the statute violates  due process because it does not outline procedures for the governor to provide the inmate notice and an opportunity to be heard before the governor acts.

The court held that RCW 9.95.160 is constitutional both on its face and as applied to Lain.

 “A facial challenge fails if a statute can be applied constitutionally in any circumstances. Wash. State Republican Party v. Pub. Disclosure Comm ‘n, 141\ Wn.2d 245, 282 n.14,4 P.3d 808 (2000) (citing In re Det. of Turay, 139 Wn.2d 379, 417 n.28, 986 P.2d 790 (1999)).

“The court’s decision provides some history about what the Fourteenth Amendment to the Constitution does.  It protects individuals from deprivations of life, liberty, or property without due process of law, and from the arbitrary exercise of the powers of government. U.S. CONST, amend. XIV,  1; Wolff v. McDonnell, 418 U.S. 539, 558, 94 S. Ct. 2963,41 L. Ed. 2d 935 (1974); Hurtado v. California, 110 U.S. 516, 527,4 S. Ct. 111, 28 L. Ed. 232 (1884).

“The types of interests that constitute “liberty” and “property” for Fourteenth Amendment purposes are both broad and limited. The interest must rise to more than “an abstract need or desire,” Bd. of Regents of State Colls, v. Roth, 408 U.S. 564, 577,92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972), and must be based on more than “a unilateral hope,” Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458,465,101 S. Ct. 2460,69 L. Ed. 2d 158 (1981). A protected liberty interest may arise from the Constitution itself, by reason of guaranties implicit in the word “liberty,” or it may arise from an expectation or interest created by state laws or policies. Wilkinson v. Austin, 545 U.S. 209,221,125 S. Ct. 2384,162 L. Ed. 2d 174 (2005) (citing Vitek v. Jones, 445 U.S. 480,493-94,100 S. Ct. 1254,63 L. Ed. 2d 552 (1980); Wolff, 418 U.S. at 556-58).

The court held that Lain had a protectable  liberty interest, but that he received due process.

“The court held that Lain’s interest in release fell within the narrow range of protected liberty interests that arise from the Constitution. Due to “the necessary withdrawal or limitation of many privileges and rights” that results from lawful incarceration, Price v. Johnston, 334 U.S. 266,285, 68 S. Ct. 1049, 92 L. Ed. 1356 (1948), protected interests that arise purely from the due process clause are restricted to “the most basic liberty interests in prisoners.” Hewitt v. Helms, 459 U.S. 460,467,103 S. Ct. 864, 74 L. Ed. 2d 675 (1983), overruled in part on other grounds by Sandin v. Conner, 515 U.S. 472,115 S. Ct. 2293,132 L. Ed. 2d 418 (1995). The due process clause does not confer a liberty interest in freedom from state action taken within a prisoner’s imposed sentence. Sandin, 515 U.S. at 480. Thus, the Constitution itself does not guarantee either parole or good-time credit for satisfactory behavior, nor does it protect against either the transfer from one prison to another or “administrative segregation” within a particular prison. Greenholtz, 442 U.S. at 7; Wolff, 418 U.S. at 557; Meachum v. Fano, All U.S. 215,223-24, 96 S. Ct. 2532,49 L. Ed. 2d 451 (1976); Hewitt, 459 U.S. at 467.

 “But once an individual has been released into society under the constraints of either parole or probation, the resulting freedom, “although indeterminate, includes many of the core values of unqualified liberty” and thus inherently falls “within the protection of the Fourteenth Amendment.” Morrissey v. Brewer, 408 U.S. 471,482,92 S. Ct. 2593,33 L. Ed. 2d 484 (1972) (parole); see Gagnon v. Scarpelli, 411 U.S. 778,93 S. Ct. 1756,36 L. Ed. 2d 656 (1973) (probation).

“Physical confinement is relevant to whether an individual has a liberty interest, but the existence of a protectable liberty interest is not dependent exclusively on actual physical release from custody. See Kelch v. Dir., Nev. Dep’t of Prisons, 10 F.3d 684 (9th Cir. 1993) (rejecting argument that no liberty interest arises until actual physical release and finding inmate obtained liberty interest when his sentence was commuted by formal order); Patuxent Inst. Bd. of Review v. Hancock, 329 Md. 556, 620 A.2d 917 (1993) (finding liberty interest flowed from order of parole, prior to release); Monohan v. Burdman, 84 Wn.2d 922,929, 530 P.2d 334 (1975) (holding that “once parole or a promise of parole has been granted in the form of a tentative release date, we are satisfied that the prospective parolee enjoys a unique status and is deserving of minimal due process safeguards before cancellation of that date”). The need for flexibility in prison administration, including the administration of a parole system, is certainly substantial, and a liberty interest does not flow from every recommendation to grant parole. See Jago v. Van Curen, 454 U.S. 14,20-21,102 S. Ct. 31,70 L. Ed. 2d 13 (1981) (holding per curiam that no liberty interest was created either by Ohio statutes or by the “‘mutually explicit understanding'” of parole board and inmate that inmate would be granted ‘”shock parole'”); Inmates of Orient Corr. Inst. v. Ohio State Adult Parole Auth, 929 F.2d 233 (6th Cir. 1991) (no liberty interest where board agreed to grant parole on or after a specific date subject to approval of a release plan); Berrien County Prosecutor v. Hill, 298 Mich. App. 404, 827 N.W.2d 407 (2012) (no liberty interest where board’s parole order was under review by circuit court as part of contemplated parole procedures). But where parole has been ordered, or a sentence commuted, several courts have found that an inmate acquires a liberty interest that attaches before he or she steps foot out the door. Kelch, 10 F.3d at 688; Hancock, 329 Md. at 592. Not only was Lain found parolable by an administrative  decision, but his release plan was approved and an order was signed by the board members; at that point his liberty interest amounted to more than a “unilateral hope.”  Dumschat, 452 U.S. at 465. To determine whether due process requirements apply,we “‘look not to the “weight” but to the nature of the interest at stake.'” Greenholtz,  442 U.S. at 7 (quoting Roth, 408 U.S. at 570-71). Liberty from bodily restraint is atthe core of the due process clause, and although Lain’s interest prior to actual release is more minimal than that of a parolee, the nature of the interest is substantially similar.

“Lain received the process he was due when he had a hearing before the board and received written reasons for the governor’s decision. See In re Habeas Corpus of Arafiles, 6 Cal. App. 4th 1467,1479-81, 8 Cal. Rptr. 492 (1992) (holding that where governor’s review is limited to record before the parole board and the governor considers the same factors as the board, inmate is not entitled to a second probability hearing before governor); Styre v. Adams, 645 F.3d 1106, 1108 (9th Cir. 2011) argues that the governor’s decision violated his substantive due process rights. “[0]nly the most egregious official conduct can be said to be ‘arbitrary in the constitutional sense.'” County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S. Ct. 1708,140 L. Ed. 2d 1043 (1998) (quoting Collins v. City of Harker Heights, 503 U.S. 115,129, 112S.Ct. 1061, 117L.Ed.2d261 (1992)). Clearly, where Lain received due process and the governor properly exercised her discretion he does not have a cognizable claim that she violated substantive due process.


“Lain was entitled to minimal due process protections, and he received the process he was due under the circumstances when he had a hearing before the board and received written reasons for the governor’s decision. The governor considered the evidence before the board and supported her decision to cancel parole with objective facts from the record. “

The court also held that the Governor could tell the board add 36 months Lain’s minimum term.

Despite the legal reasoning, the rationale of the court’s decision, it is possible that the action of the governor may have been due to public reaction — the murders of four police officers in Lakewood, Washington, a part of the metropolitan area of Tacoma.

 Concurring Opinion

Justice Fairhurst’s concurring opinion adds a discussion, an explanation, and the importance of understanding that prisoners have very limited “liberty interests.”

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