On remand from the Supreme Court vacating the judgment of this court, 593 F.2d 165 (2d Cir. 1979). We affirm our earlier decision and remand to the district court for further proceedings consistent with this opinion.
Before Kaufman, Chief Judge, and Smith*fn* and Oakes, Circuit judges.
This case returns to us on remand from the United States Supreme Court. In our previous decision we affirmed, per curiam, the judgment of the United States District Court for the District of Connecticut, M. Joseph Blumenfeld, Judge, that inmates serving life sentences in Connecticut prisons have a due process right to written statements from the state Board of Pardons explaining the denial of their applications for pardon. See 593 F.2d 165 (2d Cir. 1979). The Supreme Court vacated our judgment, 442 U.S. 926, 99 S. Ct. 2854, 61 L. Ed. 2d 294 (1979), and remanded for reconsideration in light of Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979).
Upon reconsideration, we affirm our earlier conclusions that (1) the consistent issuance of pardons to inmates serving life sentences in Connecticut has given them a protected "liberty" interest in the pardons process, and (2) the due process rights which attend this protected interest require that life inmates receive written explanations of adverse decisions by the Board of Pardons. We remand to the district court to determine at what point in an inmate's incarceration the likelihood of his receiving a pardon becomes sufficiently great to vest him with a protected "liberty" interest and due process rights.
This action was commenced by plaintiff David Dumschat in February 1976. Dumschat was serving a life sentence following a 1964 homicide conviction, and, under state law, he was not eligible for parole until December 1983. Dumschat had appeared several times before the Connecticut Board of Pardons, which is empowered by statute to grant a life inmate his immediate release or to accelerate his eligibility for parole. Conn.Gen.Stat.Ann. § 18-26.*fn1 On each occasion, the board rejected Dumschat's application without written or oral explanation.
After rehearing testimony from officials of the pardon and parole boards, Judge Blumenfeld concluded that Dumschat had a protected liberty interest in the pardons process. See 432 F. Supp. 1310 (D.Conn.1977). Accordingly, he issued a declaratory judgment holding that the Board of Parole violated Dumschat's due process rights when it failed to provide a written statement of reasons explaining its action.
On the very date that Judge Blumenfeld issued his decision, June 16, 1977, the Board of Pardons commuted Dumschat's sentence to time served, thereby granting him his immediate release. Nevertheless, Judge Blumenfeld denied the defendants' motion to vacate his judgment as moot.*fn2 Instead, he allowed three other life inmates to intervene and to consolidate their pending suit against the Board of Pardons with Dumschat's. The judge also granted the intervenors' motion to certify the consolidated suit as a class action, brought on behalf of all inmates serving life sentences in Connecticut state prisons. After a new round of hearings, Judge Blumenfeld expanded his original decision to encompass the new plaintiff class. The Board of Pardons, he ruled, must furnish a written statement of reasons whenever a life inmate is denied a pardon. 462 F. Supp. 509 (D.Conn.1978). This court affirmed his decision in a per curiam opinion. Our affirmance was then vacated by the Supreme Court and remanded with instructions to reconsider in light of the Court's recent decision in Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, supra.
In Greenholtz, the Supreme Court held that Nebraska state inmates were not constitutionally entitled to formal hearings before the Nebraska Board of Parole or to detailed written explanations of adverse parole decisions. The Court declared, first, that a state does not create a constitutionally cognizable liberty interest in parole release simply by establishing the possibility of parole. The "mere hope" of future freedom, without more, was deemed insufficient to invoke due process. See 99 S. Ct. at 2103-05. Analogizing to the standards for determining the existence of a protected property interest, as articulated in Board of Regents v. Roth, 408 U.S. 564, 576-78, 92 S. Ct. 2701, 2708-09, 33 L. Ed. 2d 548 (1972), the Court indicated that the existence of a protected liberty interest in parole depends on whether inmates enjoy a "legitimate expectation" of parole release. 99 S. Ct. at 2103-05. The Court found that such an expectation was generated by Nebraska's statutory parole scheme and that "the expectancy of release provided in this statute is entitled to some measure of constitutional protection." Id. at 2105-06. The Court held, however, that this protection did not extend so far as to mandate formal hearings before the parole board or detailed explanations of parole rejections. Id. at 2106-08.
Our first task is to consider, in the wake of Greenholtz, whether Connecticut's life inmates have a protected interest in the pardons process. In Boothe v. Hammock, 605 F.2d 661 (2d Cir. 1979), this court embraced the Supreme Court's declaration in Greenholtz that the establishment of a parole system does not in itself give rise to due process rights in parole procedures. Similarly, in Pugliese v. Nelson, 617 F.2d 916 (2d Cir. 1980), we acknowledged that Greenholtz required us to overrule our decision in Cardaropoli v. Norton, 523 F.2d 990 (2d Cir. 1975), which held that simply the threat of "grievous loss" was sufficient to trigger due process protection. Thus, we held that no liberty interest was implicated in a classification scheme that hindered an inmate's ability to participate in social furlough, work release, and halfway house programs.
An inmate's stake in the pardons process is essentially the same as his stake in parole, furlough, or work release: early release from incarceration. A state no more creates a protected interest by holding out the possibility of pardon, absolute or conditional, than it does by offering the possibility of parole or furlough. To prevail, therefore, Connecticut's life inmates must show more than a "mere hope" or subjective anticipation of pardon; they must, instead, show an expectation with some concrete, objective basis. See Greenholtz, supra, 99 S. Ct. at 2103-05; Board of Regents v. Roth, supra, 408 U.S. at 576-78, 92 S. Ct. at 2708-2709. As we stated in Pugliese, supra, at 922, to "qualify as constitutionally protected "liberty', the prisoner's interest must be . . . one that he would normally expect to have as a matter of custom and practice."
In Greenholtz, the Supreme Court found that a constitutionally significant expectation of parole was created by the language of the Nebraska parole statute. It provided that the parole board "shall order" an inmate's release when he becomes eligible for parole in the absence of specific disqualifying conditions. See Neb.Rev.Stat. §§ 83-1, 114(1).*fn3 In marked contrast, Connecticut's pardons statute contains neither a presumption in favor of pardon nor a list of factors to be considered by the Board of Pardons. Instead, the statute grants the board unfettered discretion in the exercise of its power. See Conn.Gen.Stat.Ann. § 18-26.*fn4 The statute offers only the "mere hope" of pardon; it does not create a legitimate expectation of freedom and therefore does not implicate due process. See Pugliese, supra, slip op. at 1608; Boothe, supra, 605 F.2d at 664; Wagner v. Gilligan, 609 F.2d 866 (6th Cir. 1979). ...