GPO-CONAN-2017-10-15.pdf

1304 408 us at 489 1305 black v romano 471 us 606

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1304 408 U.S. at 489. 1305 Black v. Romano, 471 U.S. 606 (1985). 1306 Bearden v. Georgia, 461 U.S. 660, 672 (1983). 2071 AMENDMENT 14—RIGHTS GUARANTEED
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tary evidence. Presumptively, counsel should be provided where the person requests counsel, based on a timely and colorable claim that he has not committed the alleged violation, or if that issue be un- contested, there are reasons in justification or mitigation that might make revocation inappropriate. 1307 With respect to the granting of parole, the Court’s analysis of the Due Process Clause’s meaning in Greenholtz v. Nebraska Penal Inmates 1308 is much more problematical. The theory was rejected that the mere establishment of the possibility of parole was suffi- cient to create a liberty interest entitling any prisoner meeting the general standards of eligibility to a due process protected expecta- tion of being dealt with in any particular way. On the other hand, the Court did recognize that a parole statute could create an expec- tancy of release entitled to some measure of constitutional protec- tion, although a determination would need to be made on a case-by- case basis, 1309 and the full panoply of due process guarantees is not required. 1310 Where, however, government by its statutes and regu- lations creates no obligation of the pardoning authority and thus creates no legitimate expectancy of release, the prisoner may not by showing the favorable exercise of the authority in the great num- ber of cases demonstrate such a legitimate expectancy. The power of the executive to pardon, or grant clemency, being a matter of grace, is rarely subject to judicial review. 1311 1307 Gagnon v. Scarpelli, 411 U.S. 778 (1973). 1308 442 U.S. 1 (1979). Justice Powell thought that creation of a parole system did create a legitimate expectancy of fair procedure protected by due process, but, save in one respect, he agreed with the Court that the procedure followed was ad- equate. Id. at 18. Justices Marshall, Brennan, and Stevens argued in dissent that the Court’s analysis of the liberty interest was faulty and that due process required more than the board provided. Id. at 22. 1309 Following Greenholtz , the Court held in Board of Pardons v. Allen, 482 U.S. 369 (1987), that a liberty interest was created by a Montana statute providing that a prisoner “shall” be released upon certain findings by a parole board. Accord Swarthout v. Cooke, 562 U.S. ___, 10–333, slip op. (2011) ( per curiam ). 1310 The Court in Greenholtz held that procedures designed to elicit specific facts were inappropriate under the circumstances, and minimizing the risk of error should be the prime consideration. This goal may be achieved by the board’s largely infor- mal methods; eschewing formal hearings, notice, and specification of particular evi- dence in the record. The inmate in this case was afforded an opportunity to be heard and when parole was denied he was informed in what respects he fell short of quali- fying. That afforded the process that was due. Accord Swarthout v. Cooke, 562 U.S.
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