Board of Pardons v. Allen

482 U. S. 369

June 9, 1987

Two prisoners in Montana claimed that they were entitled by statute to release on parole. The statute said that prisoners “shall” be released when the parole board is satisfied that it would serve the best interests of society. Because of the imperative language, the prisoners felt that a court could declare them entitled to freedom should the parole board fail to do so at the proper time. Montana argued that the decision involved too much discretion on the part of the parole board to be amenable toward judicial policing.

In a 6-3 decision, the Court ruled that the prisoners had a statutory right to parole. Brennan focused relentlessly on the “shall” language, and downplayed the degree to which discretion factored into the decision. Critically, he found the statute little different from a Nebraska one that the Court had previously interpreted to create a positive right to release. O’Connor, joined by Rehnquist and Scalia, dissented. The criteria for parole was so vague and broad that judicial oversight was practically impossible. She characterized the Nebraska statute decision as an aberration, and pointed out that even that statute gave the board far less discretion.

This is one of those decisions that unmistakably smacks of judicial activism, and I was a bit surprised and disappointed to see Powell and White fall prey to Brennan’s rather specious arguments. Frankly, in reading the statute for myself, it seems obvious that the word “shall” was not meant to create a positive right. At best the statute was ambiguous, and out of comity, if nothing else, the Court should have deferred to Montana’s interpretation.


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