decided as amended september 30 1980.: September 23, 1980.
ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX C.A. No. 80-0032
Before Seitz, Chief Judge, Adams, Circuit Judge, and Lord, District Judge.*fn*
In this appeal from the denial of a petition for a writ of habeas corpus, we are asked to review the grounds upon which the Virgin Islands Board of Parole refused to grant John Block's parole application. Specifically, we must determine whether the Board violated Block's rights to due process and equal protection by basing its decision on impermissible considerations. In denying the writ the district court concluded that the Board had applied valid criteria. We reverse.
In the spring of 1979 appellant Block was convicted of fraudulent use of a credit card in violation of 14 V.I.C. § 3004 (Supp.1978). He was sentenced to an eighteen month prison term, which is due to expire before the end of this calendar year. Under 5 V.I.C. § 4601 (Supp.1978) a prisoner with a good institutional record becomes eligible for parole after serving one-third of his sentence if release is recommended by the warden of the prison and by a psychiatrist. Having satisfied these eligibility standards, Block applied for parole in December, 1979. The Board of Parole denied the application, however, despite its determination that there was no danger that Block would again violate the laws if released. The proffered reason for the denial was that a person like Block who had enjoyed the social advantages of financial security, a college and post-graduate education, and professional employment, should be treated more harshly than the "typical Virgin Islands parole applicant." At the hearing before the district court, the Chairman of the Board of Parole elaborated on these reasons, distinguishing Block from the "typical" applicant on the grounds that he was not black, Puerto Rican, or unskilled.
Block filed a habeas petition in the Virgin Islands district court under 28 U.S.C. § 2255 (1976) and 5 V.I.C. §§ 1301 et seq. (1967).*fn1 He sought release from custody on the ground that the Board's action constituted an abuse of discretion in contravention of his rights to due process and equal protection. After a hearing, the district court denied the petition, holding that a prisoner's advantageous social background may aggravate the severity of his offense. Reasoning that offense severity is a proper parole consideration because it bears on the goal of deterring future criminal conduct, the court concluded that the Board had based its decision on appropriate criteria. The district court did not address Block's equal protection argument that he had been denied parole because of his race. This appeal followed.
A. Nature of Appellant's Due Process Interest
In order to assess Block's due process claim, it is important first to recognize that this is not a procedural due process case. Block does not contend that he has a liberty interest, or entitlement, to parole that must be preserved by imposing procedural safeguards. Instead, Block complains that otherwise satisfactory procedures and standards were applied to him in an arbitrary and impermissible manner.
Thus, the Supreme Court's recent decision in Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979), would appear to be no barrier to Block's assertion that his due process rights were violated. In Greenholtz the Court held that there is no liberty interest in parole release, derived either from the Constitution or from the mere existence of a discretionary parole system, to which procedural due process protections attach. This holding, however, does not stand for the proposition that once a state decides to provide that which it is not constitutionally compelled to offer, there are no constitutional limitations whatsoever on the basis for making decisions under the program. See Maher v. Roe, 432 U.S. 464, 468, 97 S. Ct. 2376, 2379, 53 L. Ed. 2d 484 (1977); Perry v. Sindermann, 408 U.S. 593, 597, 92 S. Ct. 2694, 2697, 33 L. Ed. 2d 570 (1972). To interpret Greenholtz as so holding would be to ascribe to that opinion the intent to initiate a major upheaval in due process jurisprudence. The case, however, does not contravene the time-honored principle that "the touchstone of due process is protection of the individual against arbitrary action of government." Wolff v. McDonnell, 418 U.S. 539, 558, 94 S. Ct. 2963, 2976, 41 L. Ed. 2d 935 (1974); Dent v. West Virginia, 129 U.S. 114, 123, 9 S. Ct. 231, 233, 32 L. Ed. 623 (1889).
As the Supreme Court emphasized in Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972), "(f)or at least a quarter-century (the Supreme) Court has made clear that even though a person has no "right' to a valuable government benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely." Id. at 597, 92 S. Ct. at 2697. Thus, as Justice Powell recognized in Greenholtz, although "nothing in the Constitution requires a State to provide for probation or parole ... when a State adopts a parole system that applies general standards of eligibility, prisoners justifiably expect that parole will be granted fairly and according to law whenever those standards are met." 442 U.S. at 19, 99 S. Ct. at 2110 (Powell, J., concurring in part and dissenting in part).
The presence of a large measure of discretion in a parole system, such as that in the Virgin Islands, does not alter the fundamental due process limitation against capricious decisionmaking. A legislative grant of discretion does not amount to a license for arbitrary behavior. Kent v. United States, 383 U.S. 541, 553, 86 S. Ct. 1045, 1053, 16 L. Ed. 2d 84 (1966); cf. Winsett v. McGinnes, 617 F.2d 996, 1006 (3d Cir. 1980) (in banc), petition for cert. filed sub nom. Anderson v. Winsett, 49 U.S.L.W. 3001 (July 1, 1980) (No. 79-2014) (to be consistent with due process, discretion of prison authorities under Delaware work release program cannot be "absolute" or "unbridled"). Although Greenholtz indicates that a state may condition the expectation of parole, or even deny it completely, a state statute may not sanction totally arbitrary parole decisions founded on impermissible criteria.*fn2 Under the Supremacy Clause, a state statute may not vitiate the fundamental due process right to be free from arbitrary governmental action. See Meachum v. Fano, 427 U.S. 215, 230, 96 S. Ct. 2532, 2541, 49 L. Ed. 2d 451 (1976) (Stevens, J., dissenting). Thus, Greenholtz does not affect the vitality of the numerous cases holding that courts can review the substance of parole decisions, as distinguished from the adequacy of the procedures, to determine whether a parole board exercised its authority arbitrarily. See, e.g., Zannino v. Arnold, 531 F.2d 687 (3d Cir. 1976); Calabro v. United States Board of Parole, 525 F.2d 660 (5th Cir. 1975); Clay v. Henderson, 524 F.2d 921, 924 (5th Cir. 1975); Childs v. United States Board of Parole, 167 U.S. App. D.C. 268, 511 F.2d 1270 (D.C.Cir.1974). Even if a state statute does not give rise to a liberty interest in parole release under Greenholtz, once a state institutes a parole system all prisoners have a liberty interest flowing directly from the due process clause in not being denied parole for arbitrary or constitutionally impermissible reasons. Consequently, in alleging that the Virgin Islands Board of Parole acted arbitrarily by basing its decision on impermissible grounds, we believe that Block has stated a valid due process claim that this Court must resolve.
B. Standard of Review and Scope of Discretion
The Virgin Islands parole statute confers considerable latitude on the Board of Parole:
If it appears to the Board of Parole from a report by the proper officers of the penitentiary, prison or jail or upon application by a prisoner for release on parole that there is a reasonable probability that such applicant will live and remain at liberty without violating the laws and if in the opinion of the Board such release is not incompatible with the welfare of society, the Board may, in its discretion, authorize the release of such applicant on parole.
5 V.I.C. § 4604 (Supp.1978). When presented with such a discretionary scheme, the role of judicial review on application for a writ of habeas corpus "is to insure that the Board followed criteria appropriate, rational and consistent with the statute and that its decision is not arbitrary and capricious nor based on impermissible considerations. In other words, the function of judicial review is to determine whether the Board abused its discretion." Zannino v. Arnold, 531 F.2d 687, 690 (3d Cir. 1976).
In order to assess whether the Virgin Islands Board of Parole abused its discretion so as to violate Block's right to due process of law, it is necessary to define the scope of their discretion. As a starting point, discretion is always curtailed by the commands of the Constitution. Clearly, the Board would violate due process if it bases a decision on constitutionally impermissible criteria such as race, religion, or the exercise of free speech rights. See Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972).
The parole statute itself also defines the limits of the Board's discretion. Section 4604 directs the Board to consider whether a prisoner is a likely recidivist and whether release would serve the welfare of society. These criteria must be applied so as to effectuate the purpose and policies underlying the parole system, namely, reintegrating offenders into society and deterring future criminal conduct. See Greenholtz, supra, 442 U.S. at 8, 13 99 S. Ct. at 2104, 2106-2107; Morrissey v. Brewer, 408 U.S. 471, 477, 92 S. Ct. 2593, 2598, 33 L. Ed. 2d 484 (1972). When the Parole Board bases its decision on factors that bear no rational relationship to rehabilitation or deterrence, it transgresses the legitimate bounds of its discretion. Cf. Winsett v. McGinnes, supra, at 1007 (discretion under prisoners' work release statute must be exercised consistently with the purpose and policy behind work release).
We turn then to an evaluation of the decision of the Virgin Islands Parole Board in light of these standards.
C. Analysis of the Parole Board's Decision
The Parole Board minutes explaining the denial of Block's application state that:
In complete contrast to the usual parole candidate presented to the board, this man had a college education and after post graduate training had for some years practiced dentistry in New York. There were no indications of financial want; .... When asked why he should make use of someone else's credit card despite all his advantages, his answer was-and it appeared to be a completely honest answer-"greed." There seemed to be no danger that he would get into trouble again, as far as the Board members could see.
Voted to deny (vote not unanimous). The negative vote was based on the theory that a person who has had so many more advantages in life than those who are usually brought before the Virgin Islands courts and convicted should be dealt with by the Board more harshly than those who are the typical Virgin Islands parole applicants.
At the hearing before the district court the Chairman of the Parole Board elaborated on this explanation, describing the typical parole applicant as black or Puerto Rican, grossly under-educated, unskilled, and unsophisticated. He declared that Block shared none of these characteristics, and then ...