source: Caselaw Access Project

author: Chief Justice Rehnquist Justice O’Connor, Justice Stevens,

license: Public Domain

text:
    OHIO ADULT PAROLE AUTHORITY et al. v. WOODARD
    No. 96-1769.
    Argued December 10, 1997
    Decided March 25, 1998

      Rehnquist, C. J., announced the judgment of the Court and delivered the opinion for a unanimous Court with respect to Part III, the opinion of the Court with respect to Part I, in which O’Connor, Scaiia, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined, and an opinion with respect to Part II, in which Scalia, Kennedy, and Thomas, JJ., joined. O’Connor, J., filed an opinion concurring in part and concurring in the judgment, in which Souter, Ginsburg, and Breyer, JJ., joined, post, p. 288. Stevens, J., filed an opinion concurring in part and dissenting in part, post, p. 290.

      William A. Klatt, First Assistant Attorney General of Ohio, argued the cause for petitioners. With him on the briefs were Betty D. Montgomery, Attorney General, Jeffrey S. Sutton, State Solicitor, Simon B. Karas, and Jon C. Walden, Assistant Attorney General.

      Adele Shank argued the cause for respondent. With her on the brief were David H. Bodiker, by appointment of the Court, 522 U. S. 930, Michael J. Benza, by appointment of the Court, 522 U. S. 804, and Gregory W. Meyers.

      Briefs of amici curiae urging reversal were filed for the State of California et al. by Daniel E. Limgren, Attorney General of California, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, William G. Prahl, Supervising Deputy Attorney General, and Ward A. Campbell, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Grant Woods' of Arizona, Winston Bryant of Arkansas, Gale A. Norton of Colorado, M. Jane Brady of Delaware, Robert A. Butter-wo'rth of Florida, Thurbert E. Baker of Georgia, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, James E. Ryan of Illinois, Jeffrey A Modisett of Indiana, Albert B. Chandler III of Kentucky, Richard P. Ieyoub of Louisiana, Andrew Ketterer of Maine, J. Joseph Curran, Jr., of Maryland, Mike Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Peter Vemiero of New Jersey, Dennis G. Vacco of New York, Michael F. Easley of North Carolina, D. Michael Fisher of Pennsylvania, Charles M. Condon of South Carolina, Mark W. Barnett of South Dakota, John Knox Walkup of Tennessee, Dan Morales of Texas, Jan Graham of Utah, Richard Cullen of Virginia, Christine 0. Gregoire of Washington, and William U. Hill of Wyoming; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson.

      Briefs of amici curiae urging affirmance were filed for the American Ovil Liberties Union et al. by Daniel T. Kobil, Steven R. Shapiro, and Diann Y. Rust-Tierrney; and for the National Association of Criminal Defense Lawyers by Andrea D. Lyon and Barbara E. Bergman.

        Jerome J. Shestack filed a brief for the American Bar Association as amicus curiae.

   Chief Justice Rehnquist

announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and III, and an opinion with respect to Part II in which Justice Scalia, Justice Kennedy, and Justice Thomas join.

This ease requires us to resolve two inquiries as to constitutional limitations on state clemency proceedings. The first is whether an inmate has a protected life or liberty interest in clemency proceedings, under either Connecticut Bd. of Pardons v. Dumschat, 452 U. S. 458 (1981), or Evitts v. Lucey, 469 U. S. 387 (1985). The second is whether giving inmates the option of voluntarily participating in an interview as part of the clemency process violates an inmate’s Fifth Amendment rights.

We reaffirm our holding in Dumschat, supra, that “pardon and commutation decisions have not traditionally been the business of courts; as such, they are rarely, if ever, appropriate subjects for judicial review.” Id., at 464 (footnote omitted). The Due Process Clause is not violated where, as here, the procedures in question do no more than confirm that the clemency and pardon powers are committed, as is our tradition, to the authority of the executive. We further hold that a voluntary inmate interview does not violate the Fifth Amendment.

I

The Ohio Constitution gives the Governor the power to grant clemency upon such conditions as he thinks proper. Ohio Const., Art. III, § 2. The Ohio General Assembly cannot curtail this discretionary decisionmaking power, but it may regulate the application and investigation process. State v. Sheward, 71 Ohio St. 3d 513, 524-525, 644 N. E. 2d 369, 378 (1994). The General Assembly has delegated in large part the conduct of clemency review to petitioner Ohio Adult Parole Authority (Authority). Ohio Rev. Code Ann. § 2967.07 (1993).

In the case of an inmate under death sentence, the Authority must conduct a clemency hearing within 45 days of the scheduled date of execution. Prior to the hearing, the inmate may request an interview with one or more parole board members. Counsel is not allowed at that interview. The Authority must hold the hearing, complete its clemency review, and make a recommendation to the Governor, even if the inmate subsequently obtains a stay of execution. If additional information later becomes available, the Authority may in its discretion hold another hearing or alter its recommendation.

Respondent Eugene Woodard was sentenced to death for aggravated murder committed in the course of a carjacking. His conviction and sentence were affirmed on appeal, State v. Woodard, 68 Ohio St. 3d 70, 623 N. E. 2d 75 (1993), and this Court denied certiorari, 512 U. S. 1246 (1994). When respondent failed to obtain a stay of execution more than 45 days before his scheduled execution date, the Authority commenced its clemency investigation. It informed respondent that he could have a clemency interview on September 9, 1994, if he wished, and that his clemency hearing would be on September 16,1994.

Respondent did not request an interview. Instead, he objected to the short notice of the interview and requested assurances that counsel could attend and participate in the interview and hearing. When the Authority failed to respond to these requests, respondent filed suit in United States District Court on September 14, alleging under Rev. Stat. § 1979, 42 U. S. C. § 1983, that Ohio’s clemency process violated his Fourteenth Amendment right to due process and his Fifth Amendment right to remain silent.

The District Court granted the State’s motion for judgment on the pleadings. The Court of Appeals for the Sixth Circuit affirmed in part and reversed in part. 107 F. 3d 1178 (1997). That court determined that under a "first strand” of due process analysis, arising out of the clemency proceeding itself, respondent had failed to establish a protected life or liberty interest. It noted that our decision in Dumschat, supra, at 464-465, "decisively rejected the argument that federal law can create a liberty interest in clemency.” 107 P. 3d, at 1188.

The Court of Appeals further concluded that there was no state-created life or liberty interest in clemency. Id., at 1184-1185. Since the Governor retains complete discretion to make the final decision, and the Authority’s recommendation is purely advisory, the State has not created a protected interest. Olim v. Wakinekona, 461 U. S. 238, 249 (1983). The court noted that it would reach the same conclusion under Sandin v. Conner, 515 U. S. 472 (1995), to the extent that decision modified the Olim analysis.

The Court of Appeals went on to consider, however, a “second strand” of due process analysis centered on “the role of clemency in the entire punitive scheme.” 107 F. 3d, at 1186. The court relied on our statement in Evitts that “if a State has created appellate courts as ‘an integral part of the . . . system for finally adjudicating the guilt or innocence of a defendant,’... the procedures used in deciding appeals must comport with the demands of” due process. 469 U. S., at 393 (quoting Griffin v. Illinois, 351 U. S. 12, 18 (1956)). The court thought this reasoning logically applied to subsequent proceedings, including discretionary appeals, postconviction proceedings, and clemency.

Due process thus protected respondent’s “original” life and liberty interests that he possessed before trial at each proceeding. But the amount of process due was in proportion tó the degree to which the stage was an “integral part” of the trial process. Clemency, while not required by the Due Process Clause, was a significant, traditionally available remedy for preventing miscarriages of justice when judicial process was exhausted. It therefore came within the Evitts framework as an “integral part” of the adjudicatory system. However, since clemency was far removed from trial, the process due could be minimal. The Court did not itself decide what that process should be, but remanded to the District Court for that purpose.

Finally, the Court of Appeals also agreed with respondent that the voluntary interview procedure presented him with a “Hobson’s choice” between asserting his Fifth Amendment rights and participating in the clemency review process, raising the specter of an unconstitutional condition. 107 F. 3d, at 1189. There was no compelling state interest that would justify forcing such a choice on the inmate. On the other hand, the inmate had a measurable interest in avoiding incrimination in ongoing postconvietion proceedings, as well as with respect to possible charges for other crimes that could be revealed during the interview. While noting some uncertainties surrounding application of the unconstitutional conditions doctrine, the Court of Appeals concluded the doctrine could be applied in this ease.

The dissenting judge would have affirmed the District Court’s judgment. Id., at 1194. He agreed with the majority’s determination that there was no protected interest under Dwmschat But he thought that the majority’s finding of a due process interest under Evitts, supra, was necessarily inconsistent with the holding and rationale of Dumschat. Evitts did not purport to overrule Dumschat. He also concluded that respondent’s Fifth Amendment claim was too speculative, given the voluntary nature of the clemency interview We granted certiorari, 521 U. S. 1117 (1997), and we now reverse.

II

Respondent argues first, in disagreement with the Court of Appeals, that there is a life interest in clemency broader in scope than the “original” life interest adjudicated at trial and sentencing. Ford v. Wainwright, 477 U. S. 399 (1986). This continuing life interest, it. is argued, requires due process protection until respondent is executed. Relying on Eighth Amendment decisions holding that additional procedural protections are required in capital cases, see, e. g., Beck v. Alabama, 447 U. S. 625, 637-638 (1980), respondent asserts that Dumschat does not control the outcome in this ease because it involved only a liberty interest. Justice Stevens’ dissent agrees on both counts. Post, at 291-292.

In Dumschat, an inmate claimed Connecticut’s clemency procedure violated due process because the Connecticut Board of Pardons failed to provide an explanation for its denial of his commutation application. The Court held that “an inmate has ‘no constitutional or inherent right’ to commutation of his sentence.” 452 U. S., at 464. It noted that, unlike probation decisions, “pardon and commutation decisions have not traditionally been the business of courts; as such, they are rarely, if ever, appropriate subjects for judicial review.” Ibid. The Court relied on its prior decision in Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U. S. 1 (1979), where it rejected the claim “that a constitutional entitlement to release [on parole] exists independently of a right explicitly conferred by the State.” Dumschat, 452 U. S., at 463-464. The individual’s interest in release or commutation “‘is indistinguishable from the initial resistance to being confined,’ ” and that interest has already been extinguished by the conviction and sentence. Id., at 464 (quoting Greenholtz, supra, at 7). The Court therefore concluded that a petition for commutation, like an appeal for clemency, “is simply a unilateral hope.” 452 U. S., at 465.

Respondent’s claim of a broader due process interest in Ohio’s clemency proceedings is barred by Dumschat. The process respondent seeks would be inconsistent with the heart of executive clemency, which is to grant clemency as a matter of grace, thus allowing the executive to consider a wide range of factors not comprehended by earlier judicial proceedings and sentencing determinations. The dissent agrees with respondent that because “a living person” has a constitutionally protected life interest, it is incorrect to assert that respondent’s life interest has been “extinguished.” Post, at 291. We agree that respondent maintains a residual life interest, e. g., in not being summarily executed by prison guards. However, as Greenholtz helps to make clear, respondent cannot use his interest in not being executed in accord with his sentence to challenge the clemency determination by requiring the procedural protections he seeks. 442 U. S., at 7.

The reasoning of Dumschat did not depend on the fact that it was not a capital case. The distinctions accorded a life interest to which respondent and the dissent point, post, at 291-292, 293-295, are primarily relevant to trial. And this Court has generally rejected attempts to expand any distinctions further. See, e. g., Murray v. Giarratano, 492 U. S. 1, 8-9 (1989) (opinion of Rehnquist, C. J.) (there is no constitutional right to counsel in collateral proceedings for death row inmates; cases recognizing special constraints on capital proceedings have dealt with the trial stage); Satterwhite v. Texas, 486 U. S. 249, 256 (1988) (applying traditional standard of appellate review to a Sixth Amendment claim in a capital case); Smith v. Murray, 477 U. S. 527, 538 (1986) (applying same standard of review on federal habeas in capital and noncapital cases); Ford, supra, at 425 (Powell, J., concurring) (noting that the Court’s decisions imposing heightened requirements on capital trials and sentencing proceedings do not apply in the posteonviction context). The Court’s analysis in Dumschat, moreover, turned not on the fact that it was a noncapital case, but on the nature of the benefit sought: “In terms of the Due Process Clause, a Connecticut felon’s expectation that a lawfully imposed sentence will be commuted or that he will be pardoned is no more substantial than an inmate’s expectation, for example, that he will not be transferred to another prison; it is simply a unilateral hope.” 452 U. S., at 464 (footnote omitted). A death row inmate’s petition for clemency is also a “unilateral hope.” The defendant in effect accepts the finality of the death sentence for purposes of adjudication, and appeals for clemency as a matter of grace.

Respondent also asserts that, as in Greenholtz, Ohio has created protected interests by establishing mandatory clemency application and review procedures. In Greenholtz, supra, at 11-12, the Court held that the expectancy of release on parole created by the mandatory language of the Nebraska statute was entitled to some measure of constitutional protection.

Ohio’s clemency procedures do not violate due process. Despite the Authority’s mandatory procedures, the ultimate decisionmaker, the Governor, retains broad discretion. Under any analysis, the Governor’s executive discretion need not be fettered by the types of procedural protections sought by respondent. See Greenholtz, supra, at 12-16 (recognizing the Nebraska parole statute created a protected liberty interest, yet rejecting a claim that due process necessitated a formal parole hearing and a statement of evidence relied upon by the parole board). There is thus no substantive expectation of clemency. Moreover, under Conner, 515 U. S., at 484, the availability of clemency, or the manner in which the State conducts clemency proceedings, does not impose “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Ibid.; see 107 F. 3d, at 1185-1186. A denial of clemency merely means that the inmate must serve the sentence originally imposed.

Respondent also relies on the “second strand” of due process analysis adopted by the Court of Appeals. He claims that under the rationale of Evitts v. Lucey, 469 U. S. 387 (1985), clemency is an integral part of Ohio’s system of adjudicating the guilt or innocence of the defendant and is therefore entitled to due process protection. Clemency, he says, is an integral part of the judicial system because it has historically been available as a significant remedy, its availability impacts earlier stages of the criminal justice system, and it enhances the reliability of convictions and sentences. Respondent further suggests, as did the Sixth Circuit, that Evitts established a due process continuum across all phases of the judicial process.

In Evitts, the Court held that there is a constitutional right to effective assistance of counsel on a first appeal as of right. Id., at 396. This holding, however, was expressly based on the combination of two lines of prior decisions. One line of cases held that the Fourteenth Amendment guarantees a criminal defendant pursuing a first appeal as of right certain minimum safeguards necessary to make that appeal adequate and effective, including the right to counsel. See Griffin v. Illinois, 351 U. S., at 20; Douglas v. California, 372 U. S. 353 (1963). The second line of cases held that the Sixth Amendment right to counsel at trial comprehended the right to effective assistance of counsel. See Gideon v. Wainwright, 372 U. S. 335, 344 (1963); Cuyler v. Sullivan, 446 U. S. 335, 344 (1980). These two lines of eases justified the Court’s conclusion that a criminal defendant has a right to effective assistance of counsel on a first appeal as of right. Evitts, supra, at 394-396.

The Court did not thereby purport to create a new “strand” of due process analysis. And it did not rely on the notion of a continuum of due process rights. Instead, the Court evaluated the function and significance of a first appeal as of right, in light of prior cases. Related decisions similarly make clear that there is no continuum requiring varying levels of process at every conceivable phase of the criminal system. See, e. g., Giarratano, 492 U. S., at 9-10 (no due process right to counsel for capital inmates in state postconviction proceedings); Pennsylvania v. Finley, 481 U. S. 551, 555-557 (1987) (no right to counsel in state postconviction proceedings); Ross v. Moffitt, 417 U. S. 600, 610-611 (1974) (no right to counsel for discretionary appeals on direct review).

An examination of the function and significance of the discretionary clemency decision at issue here readily shows it is far different from the first appeal of right at issue in Evitts. Clemency proceedings are not part of the trial — or even of the adjudicatory process. They do not determine the guilt or innocence of the defendant, and are not intended primarily to enhance the reliability of the trial process. They are conducted by the executive branch, independent of direct appeal and collateral relief proceedings. Greenholtz, 442 U. S., at 7-8. And they are usually discretionary, unlike the more structured and limited scope of judicial proceedings. While traditionally available to capital defendants as a final and alternative avenue of relief, clemency has not traditionally “been the business of courts.” Dumschat, 452 U. S., at 464. Cf. Herrera v. Collins, 506 U. S. 390, 411-415 (1993) (recognizing the traditional availability and significance of clemency as part of executive authority, without suggesting that clemency proceedings are subject to judicial review); Ex -parte Grossman, 267 U. S. 87, 120-121 (1925) (executive clemency exists to provide relief from harshness or mistake in the judicial system, and is therefore vested in an authority other than the courts).

Thus, clemency proceedings are not “‘an integral part of the ... system for finally adjudicating the guilt or innocence of a defendant,’” Evitts, supra, at 393 (quoting Griffin v. Illinois, supra, at 18). Procedures mandated under the Due Process Clause should be consistent with the nature of the governmental power being invoked. Here, the executive’s clemency authority would cease to be a matter of grace committed to the executive authority if it were constrained by the sort of procedural requirements that respondent urges. Respondent is already under a sentence of death, determined to have been lawfully imposed. If clemency is granted, he obtains a benefit; if it is denied, he is no worse off than he was before.

Ill

Respondent also presses on us the Court of Appeals’ eon-elusion that the provision of a voluntary inmate interview, without the benefit of counsel or a grant of immunity for any statements made by the inmate, implicates the inmate’s Fifth and Fourteenth Amendment right not to incriminate himself. Because there is only one guaranteed clemency review, respondent asserts, his decision to participate is not truly voluntary. And in the interview he may be forced to answer questions; or, if he remains silent, his silence may be used against him. Respondent further asserts there is a substantial risk of incrimination since posteonvietion proceedings are in progress and since he could potentially incriminate himself on other crimes. Respondent therefore concludes that the interview unconstitutionally conditions his assertion of the right to pursue clemency on his waiver of the right to remain silent. While the Court of Appeals accepted respondent’s rubric of “unconstitutional conditions,” we find it unnecessary to address it in deciding this case. In our opinion, the procedures of the Authority do not under any view violate the Fifth Amendment privilege.

The Fifth Amendment protects against compelled self-incrimination. See Baxter v. Palmigiano, 425 U. S. 308, 316-318 (1976). The record itself does not tell us what, if any, use is made by the board of the clemency interview, or of an inmate’s refusal to answer questions posed to him at that interview. But the Authority in its brief dispels much of the uncertainty:

“Nothing in the procedure grants clemency applicants immunity for what they might say or makes the interview in any way confidential. Ohio has permissibly chosen not to allow the inmate to .say one thing in the interview and another in a habeas petition, and no amount of discovery will alter this feature of the procedure.” Reply Brief for Petitioners 6.

Assuming also that the Authority will draw ¿dverse inferences from respondent’s refusal to answer questions — which it may do in a civil proceeding without offending the Fifth Amendment, Palmigiano, supra, at 316-318 — we do not think that respondent’s testimony at a clemency interview would be “compelled” within the meaning of the Fifth Amendment. It is difficult to see how a voluntary interview could “compel” respondent to speak. He merely faces a choice quite similar to the sorts of choices that a criminal defendant must make in the course of criminal proceedings, none of which has ever been held to violate the Fifth Amendment.

Long ago we held that a defendant who took the stand in his own defense could not claim the privilege against self-incrimination when the prosecution sought to cross-examine him. Brown v. Walker, 161 U. S. 591, 597-598 (1896); Brown v. United States, 356 U. S. 148, 154-155 (1958). A defendant who takes the stand in his own behalf may be impeached by proof of prior convictions without violation of the Fifth Amendment privilege. Spencer v. Texas, 385 U. S. 554, 561 (1967). A defendant whose motion for acquittal at the close of the government’s case is denied must then elect whether to stand on his motion or to put on a defense, with the accompanying risk that in doing so he will augment the government’s ease against him. McGautha v. California, 402 U. S. 183, 215 (1971). In each of these situations, there are undoubted pressures — generated by the strength of the government’s case against him — pushing the criminal defendant to testify. But it has never been suggested that such pressures constitute “compulsion” for Fifth Amendment purposes.

In Williams v. Florida, 399 U. S. 78 (1970), it was claimed that Florida’s requirement of advance notice of alibi from a criminal defendant, in default of which he would be precluded from asserting the alibi defense, violated the privilege. We said:

“Nothing in such a rule requires the defendant to rely on an alibi or prevents him from abandoning the defense; these matters are left to his unfettered choice. That choice must be made, but the pressures that bear on his pretrial decision are of the same nature as those that would induce him to call alibi witnesses at the trial: the force of historical fact beyond both his and the State’s control and the strength of the State’s ease built on these facts. Response to that kind of pressure by offering evidence or testimony is not compelled self-incrimination transgressing the Fifth and Fourteenth Amendments.” Id., at 84-85 (footnote omitted).

Here, respondent has the same choice of providing information to the Authority — at the risk of damaging his ease for clemency or for posteonvietion relief — or of remaining silent. But this pressure to speak in the hope of improving his chance of being granted clemency does not make the interview compelled. We therefore hold that the Ohio clemency interview, even on assumptions most favorable to respondent’s claim, does not violate the Fifth Amendment privilege against compelled self-incrimination.

IV

We hold that neither the Due Process Clause nor the Fifth Amendment privilege against self-inerimination is violated by Ohio’s clemency proceedings. The judgment of the Court of Appeals is therefore

Reversed.

Justice O’Connor,

with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, concurring in part and concurring in the judgment.

A prisoner under a death sentence remains a living person and consequently has an interest in his life. The question this case raises is the issue of what process is constitutionally necessary to protect, that interest in the context of Ohio’s clemency procedures. It is clear that “once society has validly convicted an individual of a crime and therefore established its right to punish, the demands of due process are reduced accordingly.” Ford v. Wainwright, 477 U. S. 399, 429 (1986) (O’Connor, J., concurring in result in part and dissenting in part). I do not, however, agree with the suggestion in the principal opinion that, because clemency is committed to the discretion of the executive, the Due Process Clause provides no constitutional safeguards. The Chief Justice’s reasoning rests on our decisions in Connecticut Bd. of Pardons v. Dumschat, 452 U. S. 458 (1981), and Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U. S. 1 (1979). In those cases, the Court found that an inmate seeking commutation of a life sentence or disere-tionary parole had no protected liberty interest in release from lawful confinement. When a person has been fairly convicted and sentenced, his liberty interest, in being free from such confinement, has been extinguished. But it is incorrect, as Justice Stevens’ dissent notes, to say that a prisoner has been deprived of all interest in his life before his execution. See post, at 291-292. Thus, although it is true that “pardon and commutation decisions have not traditionally been the business of courts,” Dumschat, supra, at 464, and that the decision whether to grant clemency is entrusted to the Governor under Ohio law, I believe that the Court of Appeals correctly concluded that some minimal procedural safeguards apply to clemency proceedings. Judicial intervention might, for example, be warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process.

In my view, however, a remand to permit the District Court to address respondent’s specific allegations of due process violations is not required. The Ohio Death Penalty Clemency Procedure provides that, if a stay has not yet issued, the parole board must schedule a clemency hearing 45 days before an execution for a date approximately 21 days in advance of the execution. The board must also advise the prisoner that he is entitled to a prehearing interview with one or more parole board members. Although the Ohio Adult Parole Authority complied with those instructions here, respondent raises several objections to the process afforded him. He contends that 3 days’ notice of his interview and 10 days’ notice of the hearing were inadequate; that he did not have a meaningful opportunity to prepare his clemency application because posteonviction proceedings were pending; that his counsel was improperly excluded from the interview and permitted to participate in the hearing only at the discretion of the parole board chair; and that he was precluded from testifying or submitting documentary evidence at the hearing. I do not believe that any of these allegations amounts to a due process violation. The process respondent received, including notice of the hearing and an opportunity to participate in an interview, comports with Ohio's regulations and observes whatever limitations the Due Process Clause may impose on clemency proceedings. Moreover, I agree that the voluntary inmate interview that forms part of Ohio’s process did not violate respondent’s Fifth and Fourteenth Amendment privilege against self-incrimination.

Accordingly, I join Parts I and III of the Court’s opinion and concur in the judgment.

Justice Stevens,

concurring in part and dissenting in part.

When a parole board conducts a hearing to determine whether the State shall actually execute one of its death row inmates — in other words, whether the State shall deprive that person of life — does it have an obligation to comply with the Due Process Clause of the Fourteenth Amendment? In my judgment, the text of the Clause provides the answer to that question. It expressly provides that no State has the power to “deprive any person of life, liberty, or property, without due process of law.”

Without deciding what “minimal, perhaps even barely perceptible,” procedural safeguards are required in clemency proceedings, the Court of Appeals correctly answered the basic question presented and remanded the case to the District Court to determine whether Ohio’s procedures meet the “minimal” requirements of due process. In Part II of his opinion today, however, The Chief Justice takes a different view — essentially concluding that a clemency proceeding could never violate the Due Process Clause. Thus, under such reasoning, even procedures infected by bribery, personal or political animosity, or the deliberate fabrication of false evidence would be constitutionally acceptable. Like Justice O’Connor, I respectfully disagree with that conclusion.

I

The text of the Due Process Clause properly directs our attention to state action that may “deprive” a person of life, liberty, or property. When we are evaluating claims that the State has unfairly deprived someone of liberty or property, it is appropriate first to ask whether the state action adversely affected any constitutionally protected interest. Thus, we may conclude, for example, that a prisoner has no “liberty interest” in the place where he is confined, Meachun v. Fano, 427 U. S. 215 (1976), or that an at-will employee has no “property interest” in his job, Bishop v. Wood, 426 U. S. 341 (1976). There is, however, no room for legitimate debate about whether a living person has a constitutionally protected interest in life. He obviously does.

Nor does Connecticut Bd. of Pardons v. Dumschat, 452 U. S. 458 (1981), counsel a different conclusion. In that ease the Court held that a refusal to commute a prison inmate’s life sentence was not a deprivation of his liberty because the liberty interest at stake had already been extinguished. Id., at 461, 464. The holding was supported by the “crucial distinction between being deprived of a liberty one has, as in parole, and being denied a conditional liberty one desires.” Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U. S. 1, 9 (1979). That “crucial distinction” points in the opposite direction in this case because respondent is contesting the State’s decision to deprive him of life that he still has, rather than any conditional liberty that he desfres. Thus, it is abundantly clear that respondent possesses a life interest protected by the Due Process Clause.

II

There are valid reasons for concluding that even if due process is required in clemency proceedings, only the most basic elements of fair procedure are required. Presumably a State might eliminate this aspect of capital sentencing entirely, and it unquestionably may allow the executive virtually unfettered discretion in determining the merits of appeals for mercy. Nevertheless, there are equally valid reasons for concluding that these proceedings are not entirely exempt from judicial review. I think, for example, that no one would contend that a Governor could ignore the commands of the Equal Protection Clause and use race, religion, or political affiliation as a standard for granting or denying clemency. Our eases also support the conclusion that if a State adopts a clemency procedure as an integral part of its system for finally determining whether to deprive a person of life, that procedure must comport with the Due Process Clause.

Even if a State has no constitutional obligation to grant criminal defendants a right to appeal, when it does establish appellate courts, the procedures employed by those courts must satisfy the Due Process Clause. Evitts v. Lucey, 469 U. S. 387, 396 (1985). Likewise, even if a State has no duty to authorize parole or probation, if it does exercise its discretion to grant conditional liberty to convicted felons, any decision to deprive a parolee or a probationer of such conditional liberty must accord that person due process. Morrissey v. Brewer, 408 U. S. 471, 480-490 (1972); Gagnon v. Scarpelli, 411 U. S. 778, 781-782 (1973). Similarly, if a State establishes postconvietion proceedings, these proceedings must comport with due process.

The interest in life that is at stake in this case warrants even greater protection than the interests in liberty at stake in those cases. For “death is a different kind of punishment from any other which may be imposed in this country. From the point of view of the defendant, it is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.” Gardner v. Florida, 430 U. S. 349, 357-358 (1977) (citations omitted) (plurality opinion). Those considerations apply with special force to the final stage of the decisional process that precedes an official deprivation of life.

Accordingly, while I join Part III of the Court’s opinion, I cannot accept the reasoning or the conclusion in Part II. Because this ease comes to us in an interlocutory posture, I agree with the Court of Appeals that the case should he remanded to the District Court, “in light of relevant evi-dentiary materials submitted by the parties,” for a determination whether Ohio’s procedures meet the minimum requirements of due process.

       Justice Stevens in dissent says that a defendant would be entitled to raise an equal protection daim in connection with a demeney decision. Post, at 292. But respondent has raised no such daim here, and therefore we have no occasion to decide that question.

       Respondent alternatively tries to characterize his claim as a challenge only to the application process conducted by the Authority, and not to the final discretionary decision by the Governor. Brief for Respondent 8. But, respondent still must have a protected life or liberty interest in the application process. Otherwise, as the Court of Appeals correctly noted, he is asserting merely a protected interest in process itself, which is not a cognizable claim. 107 F. 3d 1178, 1184 (CA6 1997); see also Olim v. Wakinekona, 461 U. S. 238, 249-250 (1983).

       For the same reason, respondent’s reliance on Ford v. Wainwright, 477 U. S. 399, 425 (1986), is misplaced. In Ford, the Court held that the Eighth Amendment prevents the execution of a person who has become insane since the time of trial. Id., at 410. This substantive‘constitutional prohibition implicated due process protections. This protected interest, however, arose subsequent to trial, and was separate from the life interest already adjudicated in the inmate’s conviction and sentence. See id., at 425 (Powell, J., concurring). This interest therefore had not been afforded due process protection. The Court’s recognition of a protected interest thus did not rely on the notion of a continuing “original” life interest.

       The dissent provides no basis for its assertion that the special considerations afforded a capital defendant’s life interest at the trial stage “apply with special force to the final stage of the decisional process that precedes an official deprivation of life.” Post, at 295. This not only ignores our case law to the contrary, supra, at 281 and this page, but also assumes that executive clemency hearings are part and parcel of the judicial process preceding an execution.

       The dissent miseharacterizes the question at issue as a determination to deprive a person of life. Post, at 290. That determination has already been made with all required due process protections.

       107 F. 3d 1178, 1187-1188 (CA6 1997).

       “Our language in Greenholtz leaves no room for doubt: ‘There is no constitutional or inherent right of a convicted person to be conditionally-released before the expiration of a valid sentence. The natural desire of an individual to be released is indistinguishable from the initial resistance to being confined. But the conviction, with all its procedural safeguards, has extinguished that liberty right: “[G]iven a valid conviction, the criminal defendant has been constitutionally deprived of his liberty.”’ 442 U. S., at 7 (emphasis supplied; citation omitted). Greenholtz pointedly distinguished parole revocation and probation revocation cases, noting that there is a ‘critical’ difference between denial of a prisoner’s request for initial release on parole and revocation of a parolee’s conditional liberty. Id., at 9-11, quoting, inter alia, Friendly, ‘Some Kind of Hearing,’ 123 U. Pa. L. Rev. 1267, 1296 (1975).” Connecticut Bd. of Pardons v. Dumschat, 452 U. S. 458, 464 (1981) (footnote omitted).

       While it is true that the constitutional protections in state postconviction proceedings are less stringent than at trial or on direct review, e. g., Pennsylvania v. Finley, 481 U. S. 551, 555-557 (1987), we have never held or suggested that the Due Process Clause does not apply to these proceedings. Indeed, Finley itself asked whether the State’s postconvietion proceedings comported with the “fundamental fairness mandated by the Due Process Clause.” Id., at 556-557; see also Murray v. Giarratano, 492 U. S. 1, 8 (1989) (opinion of Rehnquist, C. J.) (“ ‘[T]he fundamental fairness mandated by the Due Process Clause does not require that the [S]tate supply a lawyer’” (quoting Finley, 481 U. S., at 557)). The Chief Justice, then, is simply wrong when he states that these cases “make dear that there is no continuum requiring varying levels of process at every... phase of the criminal system,” ante, at 284; instead, these eases simply turned on what process is due. If there could be any question whether state postconvietion proceedings are subject to due process protections, our unanimous opinion in Yates v. Aiken, 484 U. S. 211, 217-218 (1988), makes it clear that they are.

       The Court has recognized the integral role that demency proceedings play in the decision whether to deprive a person of life. Herrera v. Collins, 506 U. S. 390, 411-417 (1993). Indeed, every one of the 38 States that has the death penalty also has clemency procedures. Ala. Const., Amdt. 38, Ala. Code § 15-18-100 (1995); Ariz. Const., Art. V, § 5, Ariz. Rev. Stat. Ann. §§31-443, 31-445 (1996); Ark. Const., Art. VI, § 18, Ark. Code Ann. § 5-4-607 (1997), and § 16-93-204 (Supp. 1997); Cal. Const., Art. V, § 8, Cal. Penal Code Ann. §§ 4800-4807 (West 1982 and Supp. 1998); Colo. Const., Art. IV, § 7, Colo. Rev. Stat. §§ 16-17-101, 16-17-102 (1997); Conn. Const., Art. IV, §13, Conn. Gen. Stat. § 18-26 (1997); Del. Const., Art. VII, §1, Del. Code Ann., Tit. 29, § 2103 (1997); Fla. Const., Art. IV, § 8, Fla. Stat. § 940.01 (1997); Ga. Const., Art. IV, § 2, ¶ 2, Ga. Code Ann. §§ 42-9-20, 42-9-42 (1997); Idaho Const., Art. IV, §7, Idaho Code § 20-240 (1997); Ill. Const., Art. V, §12, Ill. Comp. Stat., ch. 730, § 5/3-3-13 (1997); Ind. Const., Art. V, §17, Ind. Code §§ 11-9-2-1 to 11-9-2-4, 35-38-6-8 (1993); Kan. Const., Art. I, § 7, Kan. Stat. Ann. § 22-3701 (1995); Ky. Const., § 77; La. Const., Art. IV, § 5(E), La. Rev. Stat. Ann. § 15:572 (West 1992); Md. Const., Art. II, § 20, Md. Ann. Code, Art. 27, § 77 (1996), and Art. 41, § 4-513 (1997); Miss. Const., Art. V, § 124, Miss. Code Ann. § 47-5-115 (1981); Mo. Const., Art. IV, § 7, Mo. Rev. Stat. §§ 217.220, 217.800, 552.070 (1994); Mont. Const., Art. VI, § 12, Mont. Code Ann. §§ 46—23—301 to 46-23-316 (1994); Neb. Const., Art. IV, §13, Neb. Rev. Stat. §§ 83-1,127 to 83-1,132 (1994); Nev. Const., Art. V, § 13, Nev. Rev. Stat. § 213.080 (1995); N. H. Const., pt. 2, Art. 52, N. H. Rev. Stat. Ann. § 4:23 (1988); N. J. Const., Art. V, § 2, ¶ 1, N. J. Stat. Ann. § 2A:167-4 (West 1985); N. M. Const., Art. V, § 6, N. M. Stat. Ann. § 31-21-17 (Supp. 1997); N. Y. Const., Art. IV, § 4, N. Y. Exec. Law §§ 15-19 (McKinney 1993); N. C. Const., Art. III, §5(6), N. C. Gen. Stat. §§ 147-23 to 147-25 (1993); Ohio Const., Art. III, § 11, Ohio Rev. Code Ann. §§ 2967.01 to 2967.12 (1996); Okla. Const., Art. VI, §10, Okla. Stat., Tit. 21, § 701.11a (Supp. 1998); Ore. Const., Art. V, § 14, Ore. Rev. Stat. §§ 144.640 to 144.670 (1991); Pa. Const., Art. IV, § 9; S. C. Const., Art. IV, § 14, S. C. Code Ann. §§ 24-21-910 to 24-21-1000 (1977 and Supp. 1997); S. D. Const., Art. IV, § 3, S. D. Codified Laws §§ 23A-27A-20 to 23A-27A-21, 24-14-1 to 24-14-7 (1988); Term. Const., Art. III, §6, Tenn. Code Ann. §§ 40-27-101 to 40-27-109 (1997); Tex. Const., Art. IV, § 11, Tex. Code Crim. Proc. Ann., Art. 48.01 (Vernon Supp. 1997); Utah Const., Art. VII, § 12, Utah Code Ann. § 77-27-5.5 (1995); Va. Const., Art. V, § 12, Va. Code Ann. §§ 53.1-229 to 53.1-231 (1994); Wash. Const., Art. III, § 9, Wash. Rev. Code § 10.01.120 (1994); Wyo. Const., Art. IV, § 5, Wyo. Stat. §7-13-801 (1995). It is, of course, irrelevant that States need not establish clemency proceedings; having established these proceedings, they must comport with due process. See Evitts v. Lacey, 469 U. S. 387, 393, 400-401 (1985).

       107 F. 3d, at 1194.


author: Justice Scalia

text:
    TEXAS v. UNITED STATES
    No. 97-29.
    Argued January 14, 1998
    Decided March 31, 1998

      S calía, J., delivered the opinion for a unanimous Court.

      Javier Aguilar, Special Assistant Attorney General of Texas, argued the cause for appellant. With him on the briefs were Dan Morales, Attorney General, Jorge Vega, First Assistant Attorney General, and Deborah A. Verbil, Special Assistant Attorney General.

      Paul R. Q. Wolf son argued the cause for the United States. With him on the brief were Solicitor General Waxman, Acting Assistant Attorney General Pinzler, Deputy Solicitor General Wallace, Mark L. Gross, and Miriam R. Eisenstein.

        Daniel J. Popeo filed a brief for the Washington Legal Foundation et al. as amici curiae urging reversal.

        Pamela S. Karlan, Laughlin McDonald, Neil Bradley, Cristina Cor-reia, Elaine R. Jones, Theodore M. Shaw, Norman J. Ghachhin, Jacqueline Berrien, Victor A Bolden, and Steven R. Shapiro filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.

   Justice Scalia

delivered the opinion of the Court.

Appellant, the State of Texas, appeals from the judgment of a three-judge District Court for the District of Columbia. The State had sought a declaratory judgment that the pre-clearance provisions of § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U. S. C. § 1973c, do not apply to implementation of certain sections of the Texas Education Code that permit the State to sanction local school districts for failure to meet state-mandated educational achievement levels. This appeal presents the question whether the controversy is ripe.

I

In Texas, both the state government and local school districts are responsible for the public schools. There are more than 1,000 school districts, each run by an elected school board. In 1995, the Texas Legislature enacted a comprehensive scheme (Chapter 39) that holds local school boards accountable to the State for student achievement. Tex. Educ. Code Ann. §§39.021-39.131 (1996). Chapter 39 contains detailed prescriptions for assessment of student academic skills, development of academic performance indicators, determination of accreditation status for school districts, and imposition of accreditation sanctions. It seeks to measure the academic performance of Texas schoolchildren, to reward the schools and school districts that achieve the legislative goals, and to sanction those that fall short.

When a district fails to satisfy the State’s accreditation criteria, the State Commissioner of Education may select from 10 possible sanctions that are listed in ascending order of severity. §§39.131(a)(1)-(10). Those include, “to the extent the [C]ommissioner determines necessary,” § 39.131(a), appointing a master to oversee the district’s operations, § 39.131(a)(7), or appointing a management team to direct the district’s operations in areas of unacceptable performance or to require the district to contract for services from another person, § 39.181(a)(8). When the Commissioner appoints masters or management teams, he “shall clearly define the[ir] powers and duties” and shall review the need for them every 90 days. § 39.131(e). A master or management team may approve or disapprove any action taken by a school principal, the district superintendent, or the district’s board of trustees, and may also direct them to act. §§ 39.131(e)(1), (2). State law prohibits masters or management teams from taking any action concerning a district election, changing the number of members on or the method of selecting the board of trustees, setting a tax rate for the district, or adopting a budget which establishes a different level of spending for the district from that set by the board. §§ 39.131(e)(3)-(6).

Texas is a covered jurisdiction under §5 of the Voting Rights Act of 1965, see 28 CFR pt. 51, App. (1997), and consequently, before it can implement changes affecting voting it must obtain preclearanee from the United States District Court for the District of Columbia or from the Attorney General of the United States. 42 U. S. C. § 1973e. Texas submitted Chapter 39 to the Attorney General for administrative preclearanee. The Assistant Attorney General requested further information, including the criteria used to select special masters and management teams, a detailed description of their powers and duties, and the difference between their duties and those of the elected boards. The State responded by pointing out the limits placed on masters and management teams in § 39.131(e), and by noting that the-actual authority granted “is set by the Commissioner at the time of appointment depending on the needs of the district.” App. to Juris. Statement 99a. After receiving this information, the Assistant Attorney General concluded that the first six sanctions do not affect voting and therefore do not require preclearanee. He did not object to §§ 39.131(a)(7) and (8), insofar as the provisions are “enabling in nature,” but he cautioned that “under certain foreseeable circumstances their implementation may result in a violation of Section 5” which would require preclearanee. Id., at 36a.

On June 7, 1996, Texas filed a complaint in the United States District Court for the District of Columbia, seeking a declaration that § 5 does not apply to the sanctions authorized by §§ 39.131(a)(7) and (8), because (1) they are not changes with respect to voting, and (2) they are consistent with conditions attached to grants of federal financial assistance that authorize and require the imposition of sanctions to ensure accountability of local education authorities. The District Court did not reach the merits of these arguments because it concluded that Texas’s claim was not ripe. We noted probable jurisdiction. 521 U. S. 1150 (1997).

H-i 1 — 4

A claim is not ripe for adjudication if it rests upon “ ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’” Thomas v. Union Carbide Agricultural Products Co., 473 U. S. 568, 580-581 (1985) (quoting 13A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3532, p. 112 (1984)). Whether Texas will appoint a master or management team under §§ 39.131(a)(7) and (8) is contingent on a number of factors. First, a school district must fall below the state standards. Then, pursuant to state policy, the Commissioner must try first “the imposition of sanctions which do not include the appointment of a master or management team,” App. 10 (Original Complaint ¶12). He may, for example, “order the preparation of a student achievement improvement plan ..., the submission of the plan to the [C]ommissioner for approval, and implementation of the plan,” § 39.131(a)(3), or “appoint an agency monitor to participate in and report to the agency on the activities of the board of trustees or the superintendent,” § 39.131(a)(6). It is only if these less intrusive options fail that a Commissioner may appoint a master or management team, Tr. of Oral Arg. 16, and even then, only “to the extent the [C]ommissioner determines necessary,” § 39.131(a). Texas has not pointed to any particular school district in which the application of § 39.131(a)(7) or (8) is currently foreseen or even likely. Indeed, Texas hopes that there will be no need to appoint a master or management team for any district. Tr. of Oral Arg. 16-17. Under these circumstances, where “we have no idea whether or when such [a sanction] will be ordered,” the issue is not fit for adjudication. Toilet Goods Assn., Inc. v. Gardner, 387 U. S. 158, 163 (1967); see also Renne v. Geary, 501 U. S. 312, 321-322 (1991).

Even if there were greater certainty regarding ultimate implementation of paragraphs (a)(7) and (a)(8) of the statute, we do not think Texas’s claim would be ripe. Ripeness “re-quir[es] us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Laboratories v. Gardner, 387 U. S. 136, 149 (1967). As to fitness of the issues: Texas asks us to hold that under no circumstances can the imposition of these sanctions constitute a change affecting voting. We do not have sufficient confidence in our powers of imagination to affirm such a negative. The operation of the statute is better grasped when viewed in light of a particular application. Here, as is often true, “[d3etermination of the scope ... of legislation in advance of its immediate adverse effect in the context of a concrete case involves too remote and abstract an inquiry for the proper exercise of the judicial function.” Longshoremen v. Boyd, 347 U. S. 222, 224 (1954). In the present ease, the remoteness and abstraction are increased by the fact that Chapter 39 has yet to be interpreted by the Texas courts. Thus, “[postponing consideration of the questions presented, until a more concrete controversy arises, also has the advantage of permitting the state courts further opportunity to construe” the provisions. Renne, supra, at 323.

And as for hardship to the parties: This is not a ease like Abbott Laboratories v. Gardner, supra, at 152, where the regulation at issue had a “direct effect on the day-to-day business” of the plaintiffs, because they were compelled to affix required labeling to their products under threat of criminal sanction. Texas is not required to engage in, or to refrain from, any conduct, unless and until it chooses to implement one of the noneleared remedies. To be sure, if that contingency should arise compliance with the preclearance procedure could delay much needed action. (Prior to this litigation, Texas sought preclearance for the appointment of a master in a Dallas County school district, and despite a request for expedition the Attorney General took 90 days to give approval. See Brief for Appellant 37, n. 28.) But even that inconvenience is avoidable. If Texas is confident that the imposition of a master or management team does not constitute a change affecting voting, it should simply go ahead with the' appointment. Should the Attorney General or a private individual bring suit (and if the matter is as clear, even at this distance, as Texas thinks it is), we have no reason to doubt that a district court will deny a preliminary injunction. See Presley v. Etowah County Comm’n, 502 U. S. 491, 506 (1992); City of Lockhart v. United States, 460 U. S. 125, 129, n. 3 (1983). Texas claims that it suffers the immediate hardship of a “threat to federalism." But that is an abstraction — and an abstraction no graver than the “threat to personal freedom” that exists whenever an agency regulation is promulgated, which we hold inadequate to support suit unless the person’s primary conduct is affected. Cf. Toilet Goods Assn., supra, at 164.

In sum, we find it too speculative whether the problem Texas presents will ever need solving; we find the- legal issues Texas raises not yet fit for our consideration, and the hardship to Texas of biding its time insubstantial. Accordingly, we agree with the District Court that this matter is not ripe for adjudication.

The judgment of the District Court is affirmed.

It is so ordered.

      The authority for determinations under §5'has been delegated to the Assistant Attorney General for the Civil Rights Division. 28 CFR §51.3(1997).