JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE SCALIA join, dissenting.
Relying on semantics and ignoring altogether the sweeping discretion granted to the Board of Pardons by Montana law, the Court today concludes that respondents had a legitimate expectation of parole sufficient to give rise to an interest protected by procedural due process. Because I conclude that the discretion accorded the Board of Pardons belies any reasonable claim of entitlement to parole, I respectfully dissent.
In Board of Regents v. Roth, 408 U. S. 564 (1972), this Court observed that, to have a protected interest, one
clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.
Id. at 408 U. S. 577. Applying these principles, the Roth Court found that a teacher had no property interest in a renewal of his 1-year contract despite the fact that most teachers hired on a year-to-year basis by the university were rehired. Id. at 408 U. S. 578, n. 16. The Court concluded that the teacher had no legitimate entitlement to continued employment because the discretion of the university officials to renew or not renew such a contract was subject to no "cause" limitations.
The Roth decision teaches that a mere expectation of a benefit -even if that expectation is supported by consistent government practice -is not sufficient to create an interest protected by procedural due process. Instead, the statute at issue must create an entitlement to the benefit before procedural due process rights are triggered. In my view, the distinction between an "entitlement" and a mere "expectancy" must necessarily depend on the degree to which the decisionmakers' discretion is constrained by law. An individual simply has nothing more than a mere hope of receiving a benefit unless the decision to confer that benefit is in a real sense channeled by law. Because the crucial inquiry in determining the creation of a protected interest is whether a statutory entitlement is created, it cannot be sufficient merely to point to the existence of some "standard." Instead, to give rise to a protected liberty interest, the statute must act to limit meaningfully the discretion of the decisionmakers. In the administrative law context, we have long recognized that some purported standards " are drawn in such broad terms that, in a given case, there is no law to apply.'" Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402, 401 U. S. 410 (1971) (quoting S.Rep. No. 752, 79th Cong., 1st Sess., 26 (1945)). Accordingly, we have held that some agency action is committed to agency discretion within the meaning of the Administrative Procedure Act; as a result, agency action is not subject to judicial review if "no judicially manageable standards are available for judging how and when an agency should exercise its discretion." Heckler v. Chaney, 470 U. S. 821, 830 (1985). It is no less critical in determining whether a statute creates a protected liberty interest to consider whether the statute includes standards that place real limits on decisionmaker discretion.
Under our precedents, an entitlement is created by statute only if "particularized standards or criteria" constrain the relevant decisionmakers. Connecticut Board of Pardons v. Dumschat, 452 U. S. 458, 452 U. S. 467 (1981) (BRENNAN, J., concurring). In Meachum v. Fano, 427 U. S. 215 (1976), for example, we concluded that a state statute did not create a liberty interest in remaining in a particular penal facility because that statute
conferred no right on the prisoner to remain in the prison to which he was initially assigned, defeasible only upon proof of specific acts of misconduct.
Id. at 427 U. S. 226 (emphasis added). The broad discretion granted prison officials to make transfer decisions negated any claim to the creation of a liberty interest:
A prisoner's behavior may precipitate a transfer; and absent such behavior, perhaps transfer would not take place at all. But, as we have said, Massachusetts prison officials have the discretion to transfer prisoners for any number of reasons. Their discretion is not limited to instances of serious misconduct. As we understand it, no legal interest or right of these respondents under Massachusetts law would have been violated by their transfer, whether or not their misconduct had been proved in accordance with procedures that might be required by the Due Process Clause in other circumstances. Whatever expectation the prisoner may have in remaining at a particular prison so long as he behaves himself, it is too ephemeral and insubstantial to trigger procedural due process protections as long as prison officials have discretion to transfer him for whatever reason, or for no reason at all.
Id. at 427 U. S. 228. See also Olim v. Wakinekona, 461 U. S. 238, 461 U. S. 249 (1983) ("[A] State creates a protected liberty interest by placing substantive limitations on official discretion"); Hewitt v. Helms, 459 U. S. 460, 459 U. S. 472 (1983) (observing that the statute in question provided "explicitly mandatory language in connection with requiring specific substantive predicates") (emphasis added); Montanye v. Haymes, 427 U. S. 236, 427 U. S. 243 (1976) (no liberty interest in remaining in particular facility created by state law because state law did not limit transfer only on the occurrence of misconduct); Wolff v. McDonnell, 418 U. S. 539, 418 U. S. 557 (1974) ("[T]he State itself has not only provided a statutory right to good time, but also specifies that it is to be forfeited only for serious misbehavior").
Although paying lipservice to the principle that a statute creates an entitlement sufficient to trigger due process protections only when the decisionmakers' discretion is limited by standards, the Court today utterly fails to consider whether the purported "standards" meaningfully constrain the discretion of state officials. Even a cursory examination of the Montana statute reveals that the Board of Pardons is subject to no real restraint, and that the standards are anything but "particularized." In sharp contrast to the statute at issue in Wolff v. McDonnell, supra, and like the statutes at issue in Meachum v. Fano, supra, and Montanye v. Haymes, supra, the Montana statute does not require specific acts of misconduct before the Board may deny parole. Instead, the Board may deny parole when it determines: that there is not a "reasonable probability that the prisoner can be released without detriment to the prisoner or to the community," Mont.Code Ann. § 46-23-201(1) (1985); that parole is not in "the best interests of society," § 46-23-201(2); or that the Board believes that the prisoner is not "able and willing to fulfill the obligations of a law-abiding citizen." Ibid. An appellate court reviewing the decision of the Board that the release of a prisoner would not be "in the best interests of society" or would be "detriment[al]… to the community" would have little or no basis for taking issue with the judgment of the Board. These broadly framed standards essentially leave the decision whether or not to grant release on parole to the discretion of the Board, and therefore the statute simply fails to create a legitimate entitlement to release. See Herman, The New Liberty: The Procedural Due Process Rights of Prisoners and Others Under the Burger Court, 59 N.Y.U.L.Rev. 482, 550 (1984) ("A parole statute providing that parole shall be granted unless the prospective parolee poses a danger to society' is not significantly different from one under which the parole board's decisions are nonreviewable, since a court would be unlikely to reverse a parole board decision made under such a discretionary standard").
Admittedly, the statute at issue in Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1 (1979), did not offer "particularized" standards, and did not significantly restrain the parole decision. Greenholtz is thus an aberration, and should be reexamined and limited strictly to its facts. Nonetheless, in marked contrast to the Montana statute, at least the Nebraska statute limited to some degree the scope of the factors that parole officials could consider dispositive in granting or denying release on parole. While the Montana statute permits denial of parole when the prisoner's release is not in "the best interests of society" or is "detriment[al] to the prisoner or to the community," the Nebraska statute permits consideration only of four more focused factors: (1) whether "there is a substantial risk that [the prisoner] will not conform to the conditions of parole," (2) whether the "release would depreciate the seriousness of [the] crime or promote disrespect for law," (3) whether the "release would have a substantially adverse effect on institutional discipline," and (4) whether the prisoner's
continued correctional treatment, medical care, or vocational or other training in the facility will substantially enhance [the prisoner's] capacity to lead a law-abiding life.
Neb.Rev.Stat. § 83-1, 114(1) (1981). Therefore, the result in this case is not compelled by Greenholtz, even assuming that case was correctly decided.
In sum, the Court has abandoned the essential inquiry in determining whether a statute creates a liberty interest. Instead of requiring particularized standards that actually constrain the discretion of the relevant decisionmakers, the Court is satisfied simply by the presence of a purported "standard." Because I find the Court's approach at odds with our liberty interest jurisprudence, I dissent.