Certiorari to the United States Court of Appeals for the Tenth Circuit
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 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 asserted 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. 4-9.
On Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit
This case presents the narrow question whether a program employed by the State of Oklahoma to reduce the overcrowding 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.
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, Section(s) 365(A) (Supp. 1990). An inmate could be placed on preparole after serving 15% of his sentence, Okla. Stat., Tit. 57, Section(s) 365(A)(2) (Supp. 1990), and he was eligible for parole when one-third of his sentence had elapsed, Okla. Stat., Tit. 57 Section(s) 332.7(A) (Supp. 1990). The Pardon and Parole 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 PreParole Conditional Supervision," see App. 7, and after which he executed a document indicating that he "underst[ood] that being classified to community level depend[ed] upon [his] compliance with each of these expectations," App. 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 (Okla. Crim. App. 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. Id., 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. Section(s) 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 certiorari 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 ...