Shock Incarceration and Parole: A Process Without Process

The idea that an inmate could possess a liberty interest in parole is a relatively recent development in Fourteenth Amendment law. It was not until 1979, in Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, that the Supreme Court examined Nebraska’s parole scheme and found that inmates could have a liberty interest in parole. The primary implication of Greenholtz was that parole statutes that contained certain mandatory language could confer upon inmates a liberty interest in parole. Applying the Greenholtz analysis, numerous parole schemes across the country were held to create a liberty interest and to require procedures that conformed with due process. In 1978, the New York state legislature repealed its parole law and replaced it with a statute that contained none of the mandatory language analyzed in Greenholtz. As a result, state and federal courts have consistently held that the New York parole scheme does not create a liberty interest. Further, any discussion of a liberty interest in parole for the general New York prison population has been purely academic, as New York already affords these inmates procedural safeguards that would conform with due process. Yet there is a small fraction of the New York prison population that is neither subject to the nonmandatory language of the 1978 parole statute nor afforded the same procedural safeguards as other inmates. These inmates make up New York’s Shock Incarceration Program. This note argues that under Greenholtz, the mandatory language in the New York statutes governing the parole review process for Shock inmates creates a liberty interest in release on parole. Further, the procedures currently in place for reviewing Shock inmates’ eligibility for parole fall short of the minimum requirements of due process. As a solution to this problem, this note recommends that Shock inmates be afforded the same procedural protections in the parole review process as the general New York prison population