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December 18, 2017

Remarkable Utah Supreme Court opinions debating due process rights (and originalism) in parole decision-making

Via a colleague's tweet, I just learned about a remarkable sent of opinions handed down late last week by the Utah Supreme Court in Neese v. Utah Board of Pardons & Parole, 2017 UT 89 (Utah Dec. 14, 2017) (available here).  The start of the majority opinion in Neese provides just a hint on the remarkable 40+ page discussion that follows:

Michael Neese, a Utah prison inmate, has never been convicted of a sex offense, subjected to prison discipline for sexual misconduct, or otherwise adjudicated a sexual offender. Yet the Board of Pardons and Parole (Parole Board) has denied him an original release date for parole largely based on its determination that he’s a sex offender and his refusal to participate in sex offender treatment. Applying the principles we articulated in Labrum v. Utah State Board of Pardons, 870 P.2d 902 (Utah 1993), we hold today that the district court erred in granting summary judgment to the Parole Board on the question of whether it violated Mr. Neese’s due process rights under article I, section 7 of the Utah Constitution.  Before the Parole Board may take the refusal of inmates in Mr. Neese’s shoes to participate in sex offender treatment into consideration in deciding whether to grant them parole, it owes them (1) timely, particularized written notice that allegations they committed unconvicted sexual offenses will be decided; (2) the opportunity to call witnesses; and (3) a written decision adequately explaining its basis for determining that they’re sex offenders and asking them to participate in sex offender treatment.

Much of the discussion of the majority opinion is in response to the claims of the lone dissent authored by Associate Chief Justice Thomas Lee, which gets started this way:

I share some of the majority’s concerns about the fairness of the procedures afforded to Neese by the Parole Board.  The Board’s refusal to allow Neese to call and question his accuser made it difficult for him to persuasively refute the sex-offense charge against him.  And without a persuasive means of rebuttal, Neese is likely to face substantially more prison time than most other inmates serving time for his crime of conviction (obstruction of justice).  He would also serve that time without a trial-like adjudication of the sex-offense charge in question.

For these and other reasons I might endorse the procedures set forth in the majority opinion if I were in a position to make policy in this field — to promulgate administrative rules governing the Parole Board.  I hedge—saying only that I might—because I am certain that my understanding of the Board’s decisionmaking process is incomplete.  And I frame this conclusion in the subjunctive — speaking of what I might do if I were in a position to promulgate rules for the Board — to underscore the limited scope of our authority in a case like this one.  In deciding this case we are deciding only on the demands of the Utah constitution. We are not deciding what set of procedural rules strike us as ideal under these circumstances.

The line between those two concepts is too often blurred in modern judicial thinking.  And the blurriness is perhaps at its height when we speak of the requirements of “due process.”  Here, perhaps more than in other constitutional fields, it is tempting to think of the constitutional requirement of due process as a general charter for assuring a vague ideal of fairness — an ideal that will ebb and flow or evolve over time.  But that is not what is enshrined in the due process clause.  “[T]he Due Process Clause is not a free-wheeling constitutional license for courts to assure fairness on a case-by-case basis.”  In re Discipline of Steffensen, 2016 UT 18, ¶ 7, 373 P.3d 186.  “[I]t is a constitutional standard” with a specific, if somewhat flexible, meaning. Id.

I hope to find some time to read and comment on these remarkable opinions in the days ahead, and in the meantime I welcome reader perspectives on the philosophies and particulars reflected in this case.

December 18, 2017 at 12:54 PM | Permalink


A lot depends upon if you view parole as a matter of right (an entitlement if you meet certain conditions) or a matter of executive grace.

If you go back far enough, parole is a feudal military concept not a criminal justice concept. A custodian (typically a powerful noble) could let his prisoners of war return home if the prisoner gave parole -- a promise not to return to combat in the current war/campaign. The parole trumped the prisoners prior pledge to come to the military aid of his feudal lord. In the modern society, parole is a pledge by the inmate to not commit any new criminal activities if he is released before he has served his full sentence. Just like the medieval noble, the parole board has to decide if they trust the inmate's pledge. The issue for due process is what standards should apply to the evidence that the parole board receives to aid them in that determination. If you see parole as an entitlement, then the standards should come close to trial-like and the inmate should receive notice of anything in their background that the parole board might consider. If you see parole as a matter of grace (closer to the original concept), then the standards can be relatively loose as the issue is not factual but rather an impression of who the inmate is and what risks he/she might pose if released.

Posted by: tmm | Dec 18, 2017 1:37:09 PM

FFS 81 pages?

So whatever happened to "innocent until proven guilty"? This guy got a mistrial on forcible sodomy and pled down to "two counts of obstruction of justice, one count of theft, and one count of burglary". The problem quickly shows up when his sentence was 2-30 years. This is a major problem for me, because it means the judge isn't deciding the sentence. The judge just says 2-30 and it's left up to a non-judicial agency, the parole board, to decide within that range. Why even have a judge at all? 2-30 is bullshit. That is far, far too wide a range. It effectively, and improperly, delegates almost the whole of judicial power to the parole board.

So then the parole board punish Neese for not admitting guilt for the crime he wasn't convicted of. If those charges were dropped pursuant to a plea agreement, what right does the parole board have to re-litigate them? That violates Neese's right to the benefit of his plea bargain. That is basically saying "we couldn't get you at trial where you had rights and a jury, so we are just going to bypass that and get you at your parole hearings, where you have no rights and no jury to protect you". It's an end run around a lot of Constitutional rights, not just due process.

Posted by: lawguy | Dec 18, 2017 5:21:36 PM


Well, Doug, still think Obama's more moral that Trump? That drug money funded IEDs which killed American servicemen. What a betrayal.


Posted by: federalist | Dec 18, 2017 9:39:17 PM

More denial of reality by the filthy lawyer traitor to our country.

The demand for sex therapy is not punishment, you lawyer dirt bags, it is your favorite, rehabilitation.

Posted by: David Behar | Dec 18, 2017 10:30:54 PM

Harvard Law School radicalized Obama is our Neville Chamberlain.

Posted by: David Behar | Dec 19, 2017 1:21:40 AM

federalist, as I may have said before and as I will readily say again, I do think Prez Obama demonstrated more personal and professional morality during his first 11 months in office than Prez Trump has. If you think otherwise, I welcome your using of the comments here to make the case that Prez Trump is has proven himself the more moral Prez in 2017. I am certain I and others would learn a lot from your particular moral accounting on this front.

If/when you deliver this moral accounting, I am eager for your take on some of the (seemingly moral) criticisms Prez Trump has received from members of his own party like Senators Corker and Flake. I do not recall Prez Obama being subject to similar criticisms from folks in his own party during his first 11 months in office; I wonder if intra-party criticisms of Prez Trump seemingly stated in moral terms ("flagrant disregard for truth and decency" / "debasement of America") is of any significance in your accounting.

Posted by: Doug B | Dec 19, 2017 11:05:38 AM

I agree with lawyerguy.

"It effectively, and improperly, delegates almost the whole of judicial power to the parole board." I don't think the problem is the RANGE. I think the problem is that it exists at all.

Posted by: Selfie Man | Dec 19, 2017 11:33:31 AM


I don't think Obama/Ginsburg et al are Chamberlains, history will record them as modern day Neros. A human tragedy unfolded before their eyes and instead of taking aggressive measures to combat it they went to the opera, went jet sking with wealthy businessmen, and in general consoled only themselves. Which is to say I don't think that history will record the modern day liberal establishment as /weak/ so much as it will record them as /selfish/ and self-absorbed. Tom Goldstein (of SCOTUSblog fame) once proudly declared "I got mine." That's the sin. Because liberalism was (once) based on the notion that one couldn't say "I got mine" until such a person made sure that everyone else had theirs.

Posted by: Selfie Man | Dec 19, 2017 11:42:15 AM

Selfie. Obama is a Harvard Law School radicalized lawyer. Harvard Law School must be closed the way an Al Qaeda training camp might be, perhaps using the same method.

Posted by: David Behar | Dec 19, 2017 4:36:59 PM

Doug, read the link.

Obama thwarted attempts to stop the mass importation of drugs into America by a terrorist organization. Some of that money went to fund IEDs in Iraq that killed Americans.

This is a betrayal on so many levels. And that's on top of Musa Ali Daqduq and Bowe Bergdahl.

Posted by: federalist | Dec 19, 2017 7:39:21 PM

I have read the link, federalist, and I continue to encourage you to make the case that Prez Trump has proven himself the more moral Prez in his first 11 months than did Prez Obama. Like with my request that you explain your use of the term "urban discount," I fear your plan is to run away from a request to explain the meaning and import of your assertions.

Assertions that are explained and defended always garner more respect from me. But I suppose Prez Trump has shown that one can succeed by make all sorts of assertions without backing them up --- assertions ranging from a claim Obama was not born in US to the contention millions voted illegally in 2016 to claiming Time was making him person of the year. Maybe your moral compass is calibrated based on assertions alone, not providing support for them, and then I suppose I better understand your Trump fandom.

Posted by: Doug B | Dec 19, 2017 8:34:41 PM

Prof. Berman. The entire criminal code is constructed on lawless, religiously plagiarized, fictitious, supernatural doctrine. You need to clean up all supernatural, "constructive," mala prohibita devoid of harm, and religious doctrine from the criminal code. Where is your criticism of the fictitiousness of the tools you lawyers have to make money? The entire criminal code is bullshit, in violation of the Establishment Clause of the constitution, not to mention due process. The latter requires evidence from this our physical world, not lawyer fantasies.

Posted by: David Behar | Dec 19, 2017 10:58:42 PM

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