From our colleague, Rita Latsinova:

The State Supreme Court upheld RCW 9.95.160, which permits the governor to cancel the parole granted by the Indeterminate Sentencing Review Board, in a due-process challenge by an inmate whose parole had been approved and release date set by the Board but abruptly cancelled by the governor, who also denied the inmate’s request for an in-person hearing.

In 1982 Terry Lain was convicted of assaulting a police officer and sentenced to a maximum of life imprisonment. The Board set his minimum sentence at 240 months. After denying parole three times, in 2010 the Board found Lain conditionally parolable. Lain submitted a release plan that would relocate him to Iowa, and the State of Iowa agreed to allow parole there. The Board ordered him paroled effective December 20, 2010.

The police officer whom Lain had assaulted lodged a complaint with “the Problem Solvers” at KOMO news. KOMO ran a story opposing parole. The local police guild also objected to the parole. The governor cancelled the parole, ordered the Department of Corrections not to release Lain, and remanded the case to the Board for further proceedings. The Board held a hearing and added 36 months to Lain’s minimum term. Lain filed a personal restraint petition.

The Washington Supreme Court rejected Lain’s facial and as-applied challenges to RCW 9.95.160, which empowers the governor to “cancel or revoke the parole granted to any convicted person by the board.” Although it concluded that where parole has been ordered “an inmate acquires a liberty interest that attaches before he or she steps foot out the door,” and that this liberty interest is entitled to “some due process protection” before the state could deprive the inmate of his interest in release on parole, the due process was satisfied because Lain had a hearing before the Board and received written reasons for the governor’s decision. An additional full hearing before the governor was not constitutionally required. The court reasoned that the “limited liberty interest” at stake did not warrant the same due process protection as the revocation of parole. “Unlike for a parolee, who may have been on parole for a number of years and may be living a relatively normal life at the time he is faced with revocation, the deprivation of expected parole for an inmate who is still incarcerated does not then and there work any change in the conditions of his liberty.” Opinion, at 16 (citations omitted) (distinguishing Morrissey v. Bowen, 408 U.S. 421 (1972)).

The Court’s constitutional analysis approached the liberty interest at stake — and the process that is due — as a continuum. Not all liberty interests are worthy of the same due process protection. Where “limited” liberty interest is at stake, minimal due process protections may meet the constitutional due process requirements.