1 MARSHALL, J., dissenting in part I It is self-evident that all individuals possess a liberty interest in being free from physical restraint. Upon conviction for a crime, of course, an individual may be deprived of this liberty to the extent authorized by penal statutes.1 But when a State enacts a parole system, and creates the possibility of release from incarceration upon satisfaction of certain conditions, it necessarily qualifies that initial deprivation. In my judgment, it is the existence of this system which allows prison inmates to retain their protected interest in securing freedoms available outside prison. Because parole release proceedings clearly implicate this retained liberty interest, the Fourteenth Amendment requires that due process be observed, irrespective of the specific provisions in the applicable parole statute. This Court's prior decisions fully support the conclusion that criminal offenders have a liberty interest in securing parole release. In Morrissey v. Brewer, supra, the Court held that all persons released on parole possess such an interest in remaining free from incarceration. Writing for the Court, MR. CHIEF JUSTICE BURGER stated that the appli 1 A criminal conviction cannot, however, terminate all liberty interests. Wolff v. McDonnell, 418 U. S. 539, 555-556 (1974); see, e. g., Procunier v. Navarette, 434 U. S. 555 (1978); Bounds v. Smith, 430 U. S. 817 (1977); Pell v. Procunier, 417 U. S. 817, 822 (1974); Cruz v. Beto, 405 U. S. 319 (1972); Wilwording v. Swenson, 404 U. S. 249 (1971); Cooper v. Pate, 378 U. S. 546 (1964); Ex parte Hull, 312 U. S. 546 (1941); Weems v. United States, 217 U. S. 349 (1910). See also Carmona v. Ward, 439 U. S. 1091 (1979) (MARSHALL, J., dissenting). 2 See Bell v. Wolfish, 441 U. S. 520, 568-571 (1979) (MARSHALL, J., dissenting); id., at 580-584 (STEVENS, J., dissenting); Leis v. Flynt, 439 U. S. 438, 448-453 (1979) (STEVENS, J., dissenting); Meachum v. Fano, 427 U. S. 215, 230 (1976) (STEVENS, J., dissenting); cf. Bell v. Wolfish, supra, at 535-536, 545. See generally Smith v. Organization of Foster Families, 431 U. S. 816, 842-847 (1977). MARSHALL, J., dissenting in part 442 U.S. cability of due process protections turns "on the extent to which an individual will be 'condemned to suffer grievous loss,' ,"" citing Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123, 168 (1951) (Frankfurter, J., concurring), and on the "nature of the interest." 408 U. S., at 481. In assessing the gravity and nature of the loss caused by parole revocation, Morrissey relied on the general proposition that parole release enables an individual "to do a wide range of things open to persons who have never been convicted of any crime." Id., at 482.3 Following Morrissey, Gagnon v. Scarpelli, 411 U. S. 778 (1973), held that individuals on probation also retain a liberty interest which cannot be terminated without due process of law. Nowhere in either opinion did the Court even intimate that the weight or nature of the criminal offender's interest in maintaining his parole release or probation depends upon the specific terms of any statute, for in both cases the Court disregarded the applicable statutory language. Rather, this liberty interest derived solely from the 3 Because parolees' enjoyment of these freedoms was subject to a number of restrictions, the Court characterized their liberty interest as "conditional." See 408 U. S., at 480. The risk that violation of those conditions could lead to termination of parole status, however, did not diminish the significance of the parolees' interest, since the Due Process Clause anticipates that most liberty interests may be abrogated under proper circumstances. So, too, here, respondents' interest does not forfeit constitutional protection simply because their freedom would also be subject to conditions or because of the possibility that the Nebraska Parole Board will deny release after providing due process of law. The state law in Morrissey, quoted only in the dissenting opinion, provided that "[a]ll paroled prisoners . . . shall be subject, at any time, to be taken into custody and returned to the institution . . . .' 408 U. S., at 493 n. 2 (Douglas, J., dissenting in part). The statute specified no other criteria for parole revocation. Thus, had the Court relied solely on particular statutory language, it could not have held that parolees possess a constitutionally protected interest in continuing their status. In Scarpelli, the Court completely ignored the pertinent statutory language. See 411 U. S., at 781-782. 1 MARSHALL, J., dissenting in part existence of a system that permitted criminal offenders to serve their sentences on probation or parole. Wolff v. McDonnell, 418 U. S. 539 (1974), adopted a similar approach. There, the Court concluded that abrogation of a prisoner's good-time credits implicates his interest in subsequently obtaining release from incarceration. Although the Court recognized that Nebraska was not constitutionally obligated to establish a credit system, by creating "a right to a shortened prison sentence through the accumulation of credits for good behavior," id., at 557, the State had allowed inmates to retain a liberty interest that could be terminated only for "serious misbehavior." This liberty interest derived from the existence of a credit system, not from the specific language of the implementing statute, see id., at 555-558, as decisions applying Wolff have consistently recognized. B A criminal offender's interest in securing release on parole is therefore directly comparable to the liberty interests we 5 Cf. Baxter v. Palmigiano, 425 U. S. 308, 323–324 (1976). Lower courts have understood Wolff to require due process safeguards whenever goodtime credits are revoked, and have not focused on the language of various statutory provisions. See, e. g., Franklin v. Shields, 569 F. 2d 784, 788790, 800-801 (CA4) (en banc), cert. denied, 435 U. S. 1003 (1978); United States ex rel. Larkins v. Oswald, 510 F. 2d 583 (CA2 1975); Gomes v. Travisono, 510 F. 2d 537 (CA1 1974); Willis v. Ciccone, 506 F. 2d 1011, 1017 (CA8 1974); Workman v. Mitchell, 502 F. 2d 1201 (CA9 1974). See also United States ex rel. Miller v. Twomey, 479 F. 2d 701, 712–713 (CA7 1973) (Stevens, J.), cert. denied sub nom. Gutierrez v. Department of Public Safety of Ill., 414 U. S. 1146 (1974). Meachum v. Fano, 427 U. S. 215 (1976), signals no departure from the basic principles recognized in Morrissey, Gagnon, and Wolff. While the majority in Meachum concluded that the prisoners did not have a protected liberty interest in avoiding transfers between penal institutions, the Court's opinion rested on the absence of any limitation on such transfers rather than on particular statutory language. 427 U. S., at 225-228. See Tracy v. Salamack, 572 F. 2d 393, 395 n. 9 (CA2 1978); Four Certain Unnamed Inmates v. Hall, 550 F. 2d 1291, 1292 (CA1 1977). MARSHALL, J., dissenting in part 442 U.S. recognized in Morrissey, Scarpelli, and Wolff. However, because the Court discerns two distinctions between "parole release and parole revocation," ante, at 9, it refuses to follow these cases here. In my view, the proffered distinctions do not support this departure from precedent. First, the Court finds a difference of constitutional dimension between a deprivation of liberty one has and a denial of liberty one desires. Ibid. While there is obviously some difference, it is not one relevant to the established constitutional inquiry. Whether an individual currently enjoys a particular freedom has no bearing on whether he possesses a protected interest in securing and maintaining that liberty. The Court acknowledged as much in Wolff v. McDonnell, supra, when it held that the loss of good-time credits implicates a liberty interest even though the forfeiture only deprived the prisoner of freedom he expected to obtain sometime hence. See Drayton v. McCall, 584 F. 2d 1208, 1219 (CA2 1978). And in other contexts as well, this Court has repeatedly concluded that the Due Process Clause protects liberty interests that individuals do not currently enjoy." The Court's distinction is equally unrelated to the nature 6 See, e. g., Willner v. Committee on Character and Fitness, 373 U. S. 96 (1963); Speiser v. Randall, 357 U. S. 513 (1958); Konigsberg v. State Bar, 353 U. S. 252 (1957); Schware v. Board of Bar Examiners, 353 U. S. 232 (1957); Simmons v. United States, 348 U. S. 397 (1955); Goldsmith v. Board of Tax Appeals, 270 U. S. 117 (1926). The Second Circuit has characterized the attempt to differentiate between a liberty interest currently enjoyed but subject to termination, and an interest that can be enjoyed in the future following an administrative proceeding, as actually "nothing more than a reincarnation of the rightprivilege dichotomy in a not-too-deceptive disguise." United States ex rel. Johnson v. Chairman of New York State Board of Parole, 500 F. 2d 925, 927-928, n. 2, vacated as moot sub nom. Regan v. Johnson, 419 U. S. 1015 (1974), construing United States ex rel. Bey v. Connecticut Board of Parole, 443 F. 2d 1079, 1086 (CA2 1971), which the Court quotes ante, at 10; see Comment, The Parole System, 120 U. Pa. L. Rev. 282, 363 (1971). 1 MARSHALL, J., dissenting in part or gravity of the interest affected in parole release proceedings. The nature of a criminal offender's interest depends on the range of freedoms available by virtue of the parole system's existence. On that basis, Morrissey afforded constitutional recognition to a parolee's interest because his freedom on parole includes "many of the core values of unqualified liberty." 408 U. S., at 482. This proposition is true regardless of whether the inmate is presently on parole or seeking parole release. As the Court of Appeals for the Second Circuit has recognized, "[w]hether the immediate issue be release or revocation, the stakes are the same: conditional freedom versus incarceration." United States ex rel. Johnson v. Chairman of New York State Board of Parole, 500 F. 2d 925, 928, vacated as moot sub nom. Regan v. Johnson, 419 U. S. 1015 (1974). The Court's second justification for distinguishing between parole release and parole revocation is based on the "nature of the decision that must be made in each case." Ante, at 9. The majority apparently believes that the interest affected by parole release proceedings is somehow diminished if the administrative decision may turn on "subjective evaluations." Yet the Court nowhere explains why the nature of the decisional process has even the slightest bearing in assessing the nature of the interest that this process may terminate.' Indeed, the Court's reasoning here is flatly inconsistent with its subsequent holding that respondents do have a protected liberty interest under Nebraska's parole statutes, which require a decision that is "subjective in part and predictive in part." Ante, at 13. For despite the Parole Board's argument that such an interest exists "only if the statutory con "Government decisionmakers do not gain a "license for arbitrary procedure" when legislators confer a "substantial degree of discretion" regarding the assessment of subjective considerations. Kent v. United States, 383 U. S. 541, 553 (1966); see Thorpe v. Housing Authority of City of Durham, 386 U. S. 670, 678 (1967) (Douglas, J., concurring). |