Neese v Utah Board of Pardons and Parole

Neese appealed summary judgment to Board on his claim that requiring sex offender treatment as a condition of parole; was unconstitutional given the lack of a sex offense conviction. The Court, 4 (3justice majority plus Durrant concurring in part and in judgment)-1, reversed and remanded. It held that Neese’s undue rigor and 8th Amendment claims were not presented below and thus were unpreserved, but, his federal due process argument was made below and Board believed the state due process claim was at issue and the district court ruled on the state issue and thus both were preserved. Four justices held that under Article I, section 7 of the Utah Constitution, Neese was entitled to procedural protections beyond the notice and opportunity to respond mandated in the Court’s Labrum decision as allowing parole to be denied for lack of sex offender treatment based on a conclusion the applicant committed a sex offense based on unadmitted conduct which has not resulted in conviction increases the risk of error , undermines perceptions of fairness as Neese here faces 28 additional years of imprisonment for conduct which did not lead to a conviction, has been labeled a sex offender and placed in segregated housing  and affirming the outcome here would undermine uniformity in sentencing and plea bargaining as well as public perception of fairness. The four justices agreed there was no federal requirement for additional protection here. Four justices adopted the federal standard of process in analogous circumstances of prison discipline and held Board must provide a particularizes written notice of the conduct it intends to rely on to find a sex offense was committed despite the lack of a conviction, allow the applicant to call and cross examine witnesses absent legitimate security concerns and provide a written statement of evidence relied upon in deciding a sex offense occurred and reasoned these additional protections were necessary as Board essentially is putting Neese on trial for a sex offense, the additional procedural protections will decrease the risk of error, disparity in sentencing and will not impose on onerous burden on Board. Four justices rejected the dissent’s analysis for affirmance here holding Labrum’s underlying rationale of requiring more procedural protection when Board acts a finder of fact requires the outcome here and limiting Labrum to its facts is not consistent with Utah stare decisis doctrine particularly as no party asked for Labrum to be limited or overturned. Three justices held that the dissent committed error in not having eh parties undertake the necessary historical review as there is  evidence which undermines the dissent’s contention due process did not apply at sentencing and parole as of 1896, there are possible alternative explanations for the proposed lack of authority for due process at sentencing and parole, the dissent’s reliance on grace based parole may be historically inaccurate as may its view that parole hearings were not required as of 1896 and held the dissent committed methodological error in not setting out the linguistic, political and legal presuppositions and understandings of the ratification era by immersing in the era’s sources before attempting to discern what the fluent speakers of that era would understand due process to mean. Three justices also held that it is difficult to remove modern policy concerns from the analysis and expressed concern the dissent did not keep modern policy out of its analysis. Durrant added a concurrence in part and result arguing the majority should not have responded to the dissent as it now appears to have foreshowed its desired answers to future due process questions. Lee dissented arguing Labrum did not decide the issue here and lacks any framework beyond whatever a majority of justices thinks is appropriate in the circumstances, due process did not extend to parole hearings as of 1896 as they did not implicate a life, liberty or property interest under the public understanding approach to originalism and even if Article I, section 7 applies, Neese got all the process he was entitled to as he was given notice of the possible use of the acts which did not lead to a conviction as basis to deny parole and was allowed to offer his version of the facts and argue for parole, and argued constitutionalizing parole hearings disrespects the board and its assigned discretionary role and threatens the crime justice system as a whole by not giving weight to the interests of crime victims and the general public.