If the parole board blunders, does the fourteenth amendment set the prisoner free? Balancing the liberty interests of erroneously released prisoners

If the parole board blunders, does the fourteenth amendment set the prisoner free? Balancing the liberty interests of erroneously released prisoners

Lydon, Timothy P


In 1981, Irving Hawkins was convicted in North Carolina For the sale and delivery of one-half gram of cocaine and was given a fifty-year sentence for being a habitual felon.1 While serving his sentence, the North Carolina PostRelease Supervision and Parole Commission sent him conflicting notices of his parole eligibility date. In 1982, shortly after his incarceration, he was told that he might be eligible for parole in several months. Several weeks Later, however, the Parole Commission informed him that his date of eligibility would be October 2410. In 1983, the Commission recalculated his eligibility and stated that he would not qualify for parole until the year 2018. Then, “after a careful investigation of [his] case,” the Commission surprisingly notified Hawkins in 1992 that he would be immediately granted community service parole.2 After serving eleven years of his fifty-year sentence, Hawkins was paroled on July 6, 1992.(3)

Although he had committed several felonies as a young adult, Hawkins made an attempt to reform his behavior. Prior to the fifty-year sentence on the cocaine charge, he had been convicted of rape, aggravated assault with the intent to commit rape, and armed robbery.4 After his incarceration in 1982; Hawkins took several steps to prepare for his eventual return to society. Hawkins participated in a study release program and earned a business degree at a nearby university.5 The Parole Commission noticed his efforts. In 1992, the Commission stated unequivocally that “the best interests of the public and of [Mr. Hawkins] will be served by his release under supervision at this time.”6 Upon his release on parole, Hawkins set out to reintegrate into the community and re-establish ties to his family. He reunited with his son and daughter and received a promotion at his new job.7 Hawkins complied with the conditions of his parole, and his parole officer told him that he was contemplating taking him off parole and recommending his full release.8

On March 25, 1994, Hawkins’s parole officer suddenly approached him at work with a warrant for his arrest. Without giving Hawkins an explanation, the officer handcuffed him and brought him back to prison.9 One week later, Hawkins was informed that the Parole Commission had made a mistake calculating his parole eligibility date and had erroneously released him.10 The Commission issued a letter to Hawkins explaining that it had misinterpreted the North Carolina habitual felon statute under which Hawkins was sentenced and that he would not be eligible for parole until 2018.11 The habitual felon statute, which was repealed four months after his conviction, demanded that he serve seventyfive percent of his fifty-year sentence.12 After allowing him to spend two years as a free man, the Commission forced Hawkins to abandon his new life and return to prison for fourteen more years: Hawkins petitioned the North Carolina State courts13 and the United States District Court for the Middle District of North Carolina for relief, but his efforts were unsuccessful.14

In Hawkins I,15 however, a panel of the United States Court of Appeals for the Fourth Circuit subsequently held that substantive due process prevented North Carolina from reincarcerating him.16 In reaching its decision, the court relied heavily on County of Sacramento v Lewis17 and Washington v Glicksberg.18 The court stated that because Hawkins complied with the conditions of parole. assimilated into society, and did not know that he was erroneously released, he had a fundamental liberty interest in remaining on parole.19 The court held that the North Carolina Parole Commission’s decision to revoke his parole violated his fundamental liberty interest, and he was therefore entitled to release.20

Hawkins’s victory was short-lived. In Hawkins II,21 the Fourth Circuit sitting en banc reversed the Hawkins I panel. Applying the methodology of Leers and Glucksberg, the court held that North Carolina’s reincarceration of Hawkins did not violate substantive due process because his right to remain free on parole was not fundamental and his reimprisonment did not shock the conscience.22

However, the Fourth Circuit’s reliance Un the Lewis and Glucksberg substantive due process methodology is misplaced. The Supreme Court has not estabfished a consistent test for substantive due process cases.23 The current members of the Court are divided over the validity of two, and perhaps three, conflicting approaches to substantive due process. One faction of the Court utilizes a complex balancing test to resolve substantive due process claims. This test consists of weighing state interests against an individual’s competing Fourteenth Amendment liberty interests.24 Other members of the Court; however, as reflected in the 1997 Glucksberg decision, have rejected the balancing approach to substantive due process and instead analyze history to determine whether an individual’s specific liberty interest has been traditionally protected from state interference.25 In addition, some commentators and the Hawkins I panel have interpreted the Supreme Court’s 1998 Lewis decision as announcing a new two-part substantive due process test for cases reviewing the constitutionality of executive agency action.26 Under this new test, the first prong directs courts to determine whether the executive agency action “shocks the conscience.”27 If a court holds that the action was conscience-shocking, it should then, under the second prong of Lewis, perform the history/tradition test of Glucksberg.28

Hawkins I and Hawkins II were incorrect because both decisions adopted the Lewis and Glucksberg approach and failed to utilize a balancing test.29 Only a balancing test is capable of protecting prisoners like Hawkins from fundamental unfairness.30 As Hawkins II demonstrates, courts applying the Lewis two-part test will deny erroneously released prisoners substantive due process protection. Both prongs of the test impose a demanding inquiry that limits a lower court’s ability to find substantive violations under the Due Process Clause.

The adoption of the Lewis and Glucksberg approach would undermine a body of lower court precedent that has granted limited substantive due process rights to erroneously released prisoners. Several lower federal courts have held that substantive due process protects erroneously released prisoners from reincarceration in fundamentally unfair situation.31 The Lewis and Glucksberg methodology, however, does not provide the substantive protection that is necessary to prevent unreasonable reincarceration. According to the first prong of Lewis, a state’s reincarceration of an erroneously released prisoner would have to be “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.”32 Under the second prong of Lewis, which is essentially the Glucksberg test, the right to remain on parole or remain free after being erroneously released would have to be so “deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty such that neither liberty nor justice would exist if they were sacrificed.”33 As this note will explain, reincarcerating most unlawfully released prisoners does not “shock the conscience” and the history and traditions of the United States demonstrate that states are entitled to imprison improperly discharged inmates.

Because the Lewis and Glucksberg framework does not prohibit states from reincarcerating erroneously released prisoners, it has the potential to produce fundamental unfairness. In some situations, erroneously released prisoners reestablish ties to the community and lead competent, productive lives. Reincarcerating such individuals frustrates the rehabilitative goals of the criminal justice system and needlessly subjects them to several years of additional imprisonment. Under the Lewis and Glucksberg approach, an individual’s settled expectations of remaining free from confinement and escaping his troubled past are insufferably dashed.

Because the Lewis and Glucksberg test does not properly consider the interests of erroneously released prisoners and may produce intolerable results, courts should apply a balancing test. In the great majority of situations, a balancing test will favor the interests of the state. The state’s interests in deterrence, retribution, and public safety are strong. Unlike the Lewis and Glucksberg framework, however, a balancing test will prohibit reincarceration when an individual has successfully reintegrated into the community and the strength of the state’s interests or justifications for reimprisonment are weak. Although Lewis and Glucksberg are the Court’s latest pronouncements on substantive due process, the opinions of several members of the Court and recent precedent suggests that balancing remains a valid test for assessing substantive due process claims.34

Part I of this note demonstrates that the Due Process Clause is the only constitutional provision that affords erroneously released prisoners substantive protections. The Double Jeopardy,35 Ex Post Facto,36 and Cruel and Unusual Punishments Clauses37 do not prevent states from reincarcerating mistakenly released inmates. Part II of this note analyzes substantive due process precedent. It reviews the balancing approach to substantive due process and the Court’s other approaches as reflected in Lewis and Glucksberg. Part III discusses the use of substantive due process doctrine in erroneous-release cases and demonstrates that most of the case law in this area would be deficient under a Lewis and Glucksberg regime.

Part IV recommends that courts adapt a test for erroneous-release cases that weighs the criminal justice interests of the state against the valid liberty interests of erroneously released prisoners. Because the substantive due process tests of Lewis and Glucksberg inadequately protect erroneously released prisoners, fundamental fairness requires a balancing test to safeguard individuals from unreasonable incarceration.



Defendants are unlikely to find refuge in constitutional doctrines other than substantive due process. The Double Jeopardy; Ex Post Facto, and Cruel and Unusual Punishments Clauses do not prevent states from reincarcerating prisoners. Double jeopardy is inapplicable for several reasons. Although the Double Jeopardy Clause prohibits multiple punishments far the same offense, courts have uniformly held that revocation proceedings are not subject to the Double Jeopardy Clause.38 Revocation does not place a defendant in double jeopardy because such proceedings only determine whether a defendant has violated the conditions of release or whether the defendant’s discharge was valid. Unlike a criminal prosecution, revocation hearings are not “designed to punish a criminal defendant for violation of a criminal law.”39 The revocation is simply a reinstatement of deferred punishment. Rather than constituting an additional punishment for the same offense, the revocation “merely perpetuates the status quo: the prisoner remains incarcerated under a validly imposed sentence.”40 Therefore, when an erroneously released prisoner is reincarcerated, he does not receive additional punishment-the prisoner is subjected to his original sentence and the Double Jeopardy Clause is not violated.

The Ex Post Facto Clause is equally unavailing. The Clause applies to retroactive lawmaking that disadvantages a defendant “by altering the definition of criminal conduct or increasing the punishment for the crime.”41 Several lower courts, however, have stated that the Ex Past Facto Clause is not violated if the state misapplies existing law and then seeks to correct its improper application.42 In Crowley v Landon,43 a Virginia state rule permitted judges to modify a sentence within twenty-one days from sentencing until the defendant was incarcerated. The trial court judge, however, modified the sentences of several defendants after the twenty-one day period expired and released them on probation.44 The Department of Corrections sought to vacate the release order and the prisoners were reimprisoned. The Virginia Supreme Court held that the trial judge misinterpreted the state rule and that he lacked the authority to release the prisoners.45 On habeas petition, the Landon court rejected the defendant’s ex post facto challenge to the Virginia Supreme Court’s ruling. The court stated that the Ex Post Facto Clause did not apply because the Virginia Supreme Court’s interpretation of an existing statute did not create a “new rule of law.”46 According to Landon, the court simply “articulated an existing rule of law which had been erroneously applied.”47 Landon suggests that reincarceration would be unlawful only if a parole board or other executive agency decided to reimprison a defendant under a new rule of law that did not exist at the time the defendant was released. A state’s decision to reincarcerate is valid under the Ex Post Facto Clause unless reimprisonment would violate existing state law.

Reincarcerating a mistakenly released prisoner also does not implicate the Cruel and Unusual Punishments Clause. The Clause protects prisoners from grossly disproportionate punishments and from “‘unnecessary and wanton infliction of pain'” that is “‘totally without penological justification.'”48 First, reincarceration cannot be considered a grossly disproportionate punishment. The Supreme Court has primarily demanded proportionality in capital cases, and defendants have rarely invoked the requirement successfully in other situations.49 Most recently, in Harmelin v. Michigan,50 the Court held that a mandatory sentence of life in prison without the possibility of parole for possessing 672 grams of cocaine was not a cruel and unusual punishment.51 According to the Court, such a “penalt[y] may be cruel, but [it not unusual in a constitutional sense.”52 Justices Scalia and Rehnquist dismissed the notion that the Cruel and Unusual Punishments Clause even required a proportionality determination.53 Three concurring Justices, who upheld a proportionality requirement, nevertheless concluded that the sentence for cocaine possession was not grossly disproportionate. The concurring Justices stated that they were reluctant to interfere with the purposes and objectives of state penal systems even though “reasonable minds may differ about the efficacy” of a state’s sentencing statutes.54 Because the Cruel and Unusual Punishments Clause “forbids only extreme sentences that are ‘grossly disproportionate’ to the crime,” the concurring Justices upheld the sentence.55

Second, the reimprisonment of mistakenly released prisoners would not be considered an infliction of unnecessary and wanton pain. Most forms of punishment that have been held cruel and unusual involve torture or other farms of heinous physical abuse.56 Even if reimprisoning a mistakenly discharged prisoner was an unnecessary and wanton infliction of pain, the imprisonment would not violate the Cruel and Unusual Punishments Clause. Rhodes v Chapmcan57 held that an infliction of pain must be “‘totally without penological justification'” before it is considered unconstitutional.58 The imprisonment of a mistakenly released prisoner, however, serves several legitimate state interests. Imprisonment serves the obvious goals of punishment, deterrence, and public safety, all of which the Supreme Court has deemed compelling.59 Because states have many interests that justify reincarceration, the reimprisonment of erroneously released prisoners does not violate the Cruel and Unusual Punishments Clause.


Some cases have relied on estoppel to grant improperly released prisoners relief from reincarceration.61 The doctrine prevents a state from repudiating the release of a prisoner when the prisoner has reasonably relied on the decision to release and will be significantly harmed if he is reimprisoned. Estoppel is a nonconstitutional theory that is only available on direct appeals from state or federal sentences.62 Because estoppel is not constitutionally based, prisoners seeking habeas review of their state convictions cannot use it to prevent states from reincarcerating prisoners.63 Although the Supreme Court has not adopted a per se rule against the use of estoppel against the government, it has never affirmed a lower court’s decision to estop the government.64 Therefore, substantive due process remains the exclusive remedy for state prisoners seeking relief from unreasonable reincarceration in federal courts.


Substantive due process is the only constitutional provision that courts have used to protect erroneously released prisoners. The Fourteenth Amendment’s Due Process Clause45 provides two categories of protection for individuals. The first, procedural due process. guarantees that a state may not deprive an individual of life, liberty, or property without first providing adequate procedural safeguards. Procedural due process provides an “opportunity to try to prevent the deprivation from happening, but the deprivation itself” is not a constitutional violation.66 The second category, substantive due process, “prohibits a state from taking certain actions regardless of the fairness of the procedures used to implement them.”67 In addition, substantive due process “provides heightened protection against government interference with certain fundamental rights and liberty interests.”68


One approach that the Supreme Court uses to evaluate the substantive due process rights of individuals is a balancing test. Under this approach, a court first inquires into the nature of the liberty interest or right that is asserted.69 A balancing approach typically defines the asserted liberty interest broadly. Those members of the Supreme Court who favor balancing typically view substantive liberty interests as existing along a broad ” `continuum’ ” and as having protection from ” `arbitrary impositions and purposeless restraints.'”70 Analysis of liberty interests for most proponents of balancing is not confined to isolating specific rights or textual provisions in the Constitution. Although history and tradition inform the process of defining liberty interests, rights are not fixed at a specific point in time. Justices who support the use of balancing tests in substantive due process cases have held that rights under the Due Process Clause gradually evolve and that “tradition is a living thing.”71

After defining the scope of an individual’s liberty interest under the Due Process Clause, balancing requires that the individual’s interest be balanced against the legitimate interests of the state.72 Because liberty interests exist along a continuum, interests that a court deems fundamental or significant receive greater weight when conducting the balance and limit a state’s ability to abridge an individual’s liberty.73 As a state’s constraint on an individual’s liberty interest becomes more severe; the state must demonstrate that its interests are truly substantial and its policies or actions are carefully limited to furthering its goals. Those individual liberty interests that outweigh the proffered interests of the state are considered to be “rights” and cannot be burdened by state action.74 Balancing essentially seeks to protect an individual from ” `arbitrary impositions and purposeless restraints’ ” and proscribes unreasonable government action.75 Judges are able to maintain their proper role by checking abuses of legislatures, executive agencies, and states, but are mindful of the deference to be accorded to coordinate branches of government.76


1. County of Sacramento v Lewis

In contrast to the balancing approach, Lewis employed a two-part substantive due process test to review the constitutionality of executive agency action.77 The first part of the test is the “shocks the conscience” prong. Lewis states that as a threshold determination antecedent to recognizing a substantive due process right involving executive action, a court must first determine that the executive’s conduct “shocks the conscience.”78 The Court stated that due process protects an individual only from government action that is so egregious that it may be considered “arbitrary.”79 The purpose of substantive due process then is not to serve as an alternative to common-law tort liability, but to ” `deal[j with the large concerns of the governors and the governed.’ “80 Substantive due process injuries, according to the Court, are not created by simple negligence, but require executive action that intentionally violates a liberty interest or is deliberately indifferent to an individual’s rights. The “deliberate indifference” liability standard is applicable only to a governmental actor who actually has the ability to contemplate his actions and was not under pressure to make a judgment hastily.81

Lewis involved a liability action82 against a police officer who ran over the plaintiff’s son during a high-speed police chase.83 The Court held that deliberate indifference in this situation was insufficient to shack the conscience. Because the police-officer’s action required instant judgment and he did not have time for adequate deliberation, the deliberate indifference standard was an inappropriate measure of liability for claims involving high-speed police chases.84 To find a violation of a substantive due process right, the officer had to act with the “intent to harm suspects physically or to worsen their legal plight.”85 Because the Court decided that the officer’s behavior was not intentional, his actions did not shock the conscience and the constitutional claim was dismissed.86

The “shocks the conscience” test is only employed in substantive due process challenges that involve executive action. Commentators have noted that Lewis reflects the Court’s desire to use substantive due process to protect against “systematic” infringement of individual rights.87 The decision expresses a concern that using due process as a “font of tort law” would usurp the traditional function of state liability regimes and violate principles of federalism.gs According to the Court, state tort law adequately addresses individual harms that do not involve intolerable abuses of governmental authority.s`9 Therefore, the aim of the Due Process Clause is not to protect against the negligent wrongs of individual executive actors, but to root out systemic harm and address issues affecting the ” `governors and the governed.’ “90

2. Washington it Glucksberg

If an executive action is sufficiently conscience-shocking, the second step of the Lewis test is to apply the Glucksberg test, which requires a court to determine if the liberty interest at issue is considered fundamental.91 In determining whether a liberty interest is fundamental, Glucksberg first requires a “careful description of the asserted fundamental liberty interest.”92 Unlike a balancing approach that usually defines liberty interests broadly, Glucksberg’s insistence on a careful description forces a court to define rights and liberties at a very low level of generality. In Glucksberg, several physicians challenged a Washington State statute that prohibited assisted suicides. The doctors argued that the Due Process Clause protects “a liberty interest in determining. . .one’s death,” or put more simply, “a right to die.”93 The Court rejected the respondents’ asserted liberty interest and held that it was imprecise. Citing the Washington statute, the majority stated that the proper question was “whether the `liberty’ specially protected by the Dun Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so.”94

Such narrowly described liberty interests or rights are considered fundamental under Glucksberg only if they are “deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty.”95 The asserted right must be firmly grounded in the American legal system as reflected in statutes, case law, English common law, or legal scholarship.96 This standard acknowledges only those rights that ” `neither liberty nor justice would exist if they were sacrificed’ ,97 and confers protection to liberties that have been consistently honored in the past. Glucksberg”s history/tradition test is an expression of judicial reluctance to intrude upon the policy preferences of state legislatures.98 The extremely demanding standard is exceptionally deferential to legislative and executive decisionmaking and emphasizes judicial restraint.99 In Glucksberg, after an exhaustive review of the history and tradition of suicide and assisted suicide, the Court concluded that legal history and custom evidenced a rejection of the right to assisted suicide.100 Because such a right was not reflected in the history or traditions of the United States, the Court held that the right to assisted suicide was “not a fundamental liberty interest protected by the Due Process Clause.”101

State legislation or executive action that violates fundamental liberty interests is reviewed under strict scrutiny.102 Under this standard, a state action that infringes upon a fundamental right will be held unconstitutional unless it is “narrowly tailored to serve a compelling state interest.”103 Most government policy or conduct does not survive strict scrutiny and is usually determined to be unconstitutional.104The majority of liberty interests, however, are not considered to be fundamental under the Glucksberg history/tradition test, State statutes or regulations that are “rationally related to legitimate government interests” can abridge nonfundamental liberty interests.105 This rational relation standard requires only minimal scrutiny of state actions and allows a court simply to defer to the policy decisions of the executive and legislative branches.106 Because Glucksberg held that the right to assisted suicide was not a fundamental liberty interest, it applied the rational relation test to Washington’s prohibition on assisted suicide. The Court discussed several of the. State’s interests which included preserving human life, preserving the integrity of the medical community, and protecting vulnerable groups. Concluding that these interests were “important and legitimate” and that the ban on assisted suicide was “reasonably related to their promotion and protection,” the majority unsurprisingly held that the statute did not violate substantive due process.107

Glucksberg’s reliance on history and tradition to determine which liberty interests are fundamental demonstrates the Court’s aversion to recognizing substantive due process rights.108 It rejects the notion that substantive due process protects a continuum of rights and refuses to acknowledge traditions that have emerged fairly recently. After Glucksberg., liberty interests are either deemed fundamental and guarded by strict scrutiny or they are essentially ignored and overridden by state interests. Individuals challenging executive action on substantive due process grounds are likely to be unsuccessful, especially in light of the threshold “shocks the conscience” test announced in Lewis.. Lewis and Glicksberg may impose a two-tiered structure of substantive due process analysis on lower courts reviewing the due process claims of erroneously released prisoners.109 This approach to substantive due process is contrary to a developing body of erroneous-release ease case law110 and does not prevent state governments from reincarcerating unlawfully discharged inmates.


Chief Justice Rehnquist, in writing for the Glucksberg Court, rejected a balancing approach to substantive due process. Justices O’Connor, Kennedy, Scalia, and Thomas joined his opinion, which held that the Due Process Clause only protects those rights and liberty interests that are fundamental.111 According to the Chief Justice’s opinion, a focus on the historical foundations of an asserted fundamental liberty interest “avoids the need for a complex balancing of competing interests in every cast.”112 Recent precedent and the opinions of several concurring Justices in Glucksberg, however, belie the assertion that the Court has abandoned the use of balancing tests.113 Balancing remains a valid methodology of substantive due process adjudication, especially where the Court determines that the individual has a protected liberty interest. The vitality of balancing is demonstrated by a line of cases from the past two decades that involve substantive due process issues of incarceration or confinement. The Court has consistently recognized that individuals have a protected liberty interest in freedom from physical restraint and it has carefully weighed this liberty interest against competing state interests in several contexts.114

Although a brief review of the Glucksberg opinion suggests that the Court displaced substantive due process balancing tests,115 further analysis reveals that a majority of the Justices may favor the use of balancing in some cases. The concurring opinions of Justices Breyer, Stevens, Ginsburg, Souter, and O’Connor indicate that they will perform a balancing test if they hold that an individual has a general liberty interest. In Glucksberg, the respondents argued that individuals have the right to commit suicide, which includes the right to physician-assisted suicide.116 In a unanimous decision, the Court rejected the respondents’ assertion that the Due Process Clause guarantees an absolute right to assisted suicide. Four of the concurring Justices, however, did seem to recognize an individual’s liberty interest in alleviating personal physical pain and suffering and suggested that they would balance the interests of a person in great pain against “a State’s interest in protecting those who might seek to end life mistakenly or under pressure.”117 The fifth concurring Justice, Justice Souter, performed a balancing test. He stated that “the importance of the individual interest demanded “careful scrutiny of the State’s contrary claim,”118 but concluded that the State’s interests in protecting terminal patients from euthanasia outweighed the respondents’ claim.119

The five concurring Justices’ adherence to a balancing approach in substantive due process cases is supported by recent precedent.120 Balancing tests are frequently employed when a protected liberty interest is implicated. Protected interests have been balanced against state interests even though they may not have been held to be fundamental.121 For example, in Cruzan v Director, Missouri Department of Health,12 the petitioners brought a substantive due process challenge against a Missouri law that prohibited physicians from withdrawing life support unless the patient’s desire to end her life was demonstrated by clear and convincing evidence.123 The Court held that individuals have a general liberty interest in “refusing unwanted medical treatment.”124 In order to determine whether the petitioners’ substantive due process rights had been violated, the Court then proceeded to balance their liberty interest against Missouri’s interests in preserving human life and preventing potential abuses involved with the termination of life support.125 The Court than concluded that Missouri’s interests in imposing the clear and convincing standard outweighed the petitioners’ general liberty interest in refusing medical treatment.126

The balancing approach is often used when an individual is confronted with imprisonment or confinement. The Supreme Court has recognized that an individual has a protected liberty interest in freedom from restraint and has held that this interest “has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.”127 This liberty can only be compromised if the state has substantial interests that justify incarceration or institutionalization.128 An analytical balancing of these considerable interests is necessary to ascertain which party should predominate. Although the Court has acknowledged that an individual’s significant interest in freedom may give way to reasonable state action. it has repeatedly perFormed a careful assessment of the relative weights of each asserted interest.129 Based on the concurring opinions in Glucksberg and the complexity of assessing the important interests of individuals in retaining their freedom from physical restraint, the Court is likely to favor balancing tests in substantive due process cases involving imprisonment or confinement.130


Courts have analyzed the rights of erroneously released prisoners under three different substantive due process tests.131 Most courts have applied the waiver test, which prevents states from reincarcerating mistakenly released prisoners in limited situations.1 32 Courts have also relied on balancing tests`33 and, most recently, the lewis two-part test.134 Only the waiver and balancing tests are flexible enough to prohibit states from reincarcerating rehabilitated individuals who have reintegrated into society and do not pose a threat to public safety. The Lewis and Glucksberg two-part test, on the other hand, does not accord substantive protections to erroneously released prisoners even in the most compelling situations.


The Supreme Court has never recognized the waiver test as a valid substantive due process test. The due process concept of waiver evolved from Shields v Beto.135 Lower courts created the waiver test to determine when substantive due process prevented a state from reincarcerating an erroneously released prisoner.136 According to Shields and subsequent cases, when a state fails to reincarcerate a prisoner after a certain period of time, the state cannot re.imprison the erroneously released prisoner if certain criteria are met.137 First, the release cannot be attributed to the prisoner.-138 Second, the state’s conduct must evidence more than mere negligence. “[T]he waiving state’s action must be so affirmatively wrong or its inaction so grossly negligent that it would be unequivocally inconsistent with `fundamental principles of liberty and justice’ to require a legal sentence to be served in the aftermath of such action or inaction.”139 Although many federal circuits have recognized waiver as a valid constitutional test, most claims have failed on the merits. Courts rarely conclude that a prisoner suffered an affirmative wrong contrary to “fundamental principles of liberty and justice,” unless he had experienced prolonged periods of freedom or reintegrated into society.140

The waiver test, however, is inconsistent with Lewis and Glucksberg. Analysis under both elements of the waiver test is generally ad hoc and is a simple “totality of the circumstances” test.141 Before a defendant can invoke substantive due process under Lewis and Glucksberg, however, he must have a fundamental liberty interest protected by the Fourteenth Amendment. As stated above, the defendant would have to show that his reincarceration shocked the conscience and that the right to remain free has been consistently recognized throughout United States legal history.142 Using waiver as a method of due process is less demanding and would circumvent this inquiry. At most, the waiver test is analogous to the “shocks the conscience” prong of Lewis: an affirmative wrong that leads to a prisoner”s reincarceration and violates fundamental principles of Liberty and justice may be sufficiently arbitrary to pass the “shocks the conscience” test in Lewis.143 Nevertheless; under the Lewis and Glucksberg approach, a court would still have to conduct Glucksberg’s rigorous history/tradition analysis.144


A handful of courts have applied a balancing test to erroneous-release cases. These cases uniformly have stated that an individual who has been mistakenly released has a constitutionally protected liberty interest in remaining free from incarceration.145 The cases derive a substantive liberty interest from Morris,sev v. Brewer,146 where the Supreme Court held that parolees have a Fourteenth Amendment procedural due process liberty interest in maintaining their parole status.147 The Court held in Morrissey that a state could not revoke parole unless a revocation hearing was conducted to determine whether the parolee violated the conditions of the parole. According to the Court, parole systems operate with the understanding that the parolee will retain his freedom unless he violates one of several parole conditions. Noting that parole revocation causes a “grievous loss” and that the state and the individual have significant interests in rehabilitation, the Court mandated that the parolee be given a revocation hearing in order to further the important interest in maintaining parole.148

Two lower federal courts have held that the Liberty interest in Morrissey also confers substantive protections to erroneously released prisoners. Ellard v. Alabama Board of Pardons ati Paroles149 and Kelch v. Director; Nevada Department of Prisons,150 determined that once a state confers a right to be released, the prisoner’s due process rights are not limited to the procedural protections of Morrissey. The grant of freedom places substantive limits on a state’s power to reincarcerate a mistakenly released prisoner. Substantive due process, according to Kelch, demands that the state’s decision to reincarcerate have a “rational, non-arbitrary connection to a legitimate purpose.”151 Ellard held that an erroneously released inmate could not be reimprisoned unless the release was contrary to state law and the departure from state law “substantially undermined” the state’s “penological interests.”152

Some courts, like Ellard and Kelch, have determined that erroneously released prisoners have a substantive liberty interest in freedom, but all of the lower court decisions, including Ellard and Kelch, have consistently struck the balance in favor of the state.1 53 The Supreme Court has held that states have strong interests in deterrence, punishment, and public safety.154 Because of the substantial state interests involved in these cases, an erroneously released prisoner is unlikely to have the balance weighed in his favor. Federal courts have historically accorded great deference to state criminal justice regulations and decisionmaking.155 Nevertheless, a balancing test would be flexible enough to prevent the reincarceration of erroneously released prisoners in compelling cases. A court might prohibit reincarceration if the prisoner has been free for a significant period of time or his reimprisonment would jeopardize rehabilitative efforts. The Supreme Court has recognized that the state and the prisoner have significant interests in maintaining a prisoner’s liberty to further rehabilitation and “rector[e] him to [a] normal and useful life within the law.”156 States unquestionably have significant penological interests in punishing criminals, protecting the population from dangerous felons, and deterring future criminal conduct. A state’s interests, however, are diminished when an individual has been released for several years and has engaged in a successful rehabilitative process.

Although Morrissey held that parolees have a constitutionally protected liberty interest in maintaining their parole,157 some courts may be reluctant to extend substantive due process rights to erroneously released prisoners. First, Morrissey’s protections were merely procedural; after Morrissey, a state must provide parolees a hearing before revocation. Conferring substantive rights on a prisoner, however, is different from mandating procedural protections. Procedural due process guarantees that the state will use fair procedures before depriving an individual of life, liberty, or property. Substantive due process prohibits certain deprivations of life, liberty, or property regardless of procedural fairness.158 Conferring substantive rights essentially places certain state conduct “outside the arena of public debate and legislative action.”159 The judicial delegation of substantive rights raises significant federalism and separation of powers concerns because it limits state action in the legislative and executive branches. For these reasons, the Supreme Court has stated that it is “reluctant to expand the concept of substantive due process.”160

Second, Morrissey did not address the factual situation where a parole board union fully granted parole. All erroneous-release cases involve unlawful state action. These improper releases occur when an executive official or agency misinterprets or ignores state statutes or regulations and releases a prisoner.161 An erroneously released prisoner may not have a protected liberty interest in parole or other form of release that is contrary to state law. Several decisions, including Supreme Court precedent, support the view that defendants do not have a right to the unlawful application of state statutes. Lower federal courts have explicitly stated that due process does not protect defendants who are released in violation of state law.162 Also, in the double jeopardy context, the Supreme Court has stated that a defendant does not have a legitimate expectation of finality in an illegal sentence; therefore, judges may amend unlawfully imposed sentences without violating the Double Jeopardy Clause.163 Under similar reasoning, an executive agency could reimprison an erroneously released prisoner because the discharge was illegal.

Nevertheless, recent precedent confirms that erroneously released prisoners have a protected Liberty interest that should be balanced against a state’s interests in reincarceration. The Supreme Court has consistently performed balancing tests in substantive due process cases involving various forms of confinement.164 Confinement violates an individual’s general liberty interest in freedom from physical restraint, which has been held to be an essential element of individual liberty.165 The Court has held in pretrial confinement, parole and probation revocations; and civil confinement situations that individuals are guaranteed substantive protection from unreasonable incarceration or institutionalization.166 Although legitimate state interests will frequently override this liberty interest, the Court is likely to condone the use of balancing tests when a state seeks to impose physical restraints on an individual’s freedom.167 Both the individual’s interest in remaining free and the state’s penological goals are substantial. The great weight of each competing interest requires a careful analysis of both claims to determine which interest should prevail.


The Fourth Circuit is the only court that has analyzed an erroneous-release case under the Lewis-Glucksberg substantive due process framework. In Hawkins I, a Fourth Circuit panel held that substantive due process prohibited North Carolina from reimprisoning a prisoner who was erroneously paroled for two years.168 Hawkins was mistakenly released after serving eleven years of a fifty-year sentence. The habitual felon statute under which he was sentenced required that he serve thirty-seven years of his sentence before becoming eligible for parole.169 After he was unlawfully released, Hawkins re-established himself in the community and was reunited with his family.170 Although the court applied Lewis and Glucksberg, it improperly relied on substantive due process precedent that preceded Lewis and Glucksberg and erroneously concluded that Lens.is and Glucksberg compelled Hawkins’s freedom. This misapplication of LewiS and Glucksberg prompted the en banc reversal of the panel in Hawkins II.171 Reanalysis of the case suggests that Hawkins and other similarly situated defendants are not entitled to substantive due process protection under the Lewis and Glucksberg test.

1. Erroneously Released Prisoners and the “Shocks the Conscience” Test of Lewis

a. Tailoring the “Shocks the Conscience” Test to Erroneous-Release Cases. As noted in the previous discussion, Lewis analyzed the constitutionality of high-speed police chases.172 The Court stated that an executive official did not violate a suspect’s substantive due process rights unless a court first determined that the official’s action shocked the conscience.173 In high-speed police chases, the Court held that a due process violation did not occur if the officer acted negligently or was deliberately indifferent to the suspect’s rights.174 A police officer would only be held constitutionally liable if he intended “to harm suspects physically or to worsen their legal plight…”175

The Court’s focus on the subjective intent of executive actors, however, makes the Lewis “shocks the conscience” test difficult to apply in erroneousrelease cases. The terminology and theoretical constructs of tort law seem inapplicable to this situation. When a parole board or other criminal executive authority decides to reincarcerate a mistakenly discharged prisoner, it has intentionally harmed the individual by depriving him of his liberty. A court, however, is unlikely to find that a warden’s decision to rearrest a serial killer shocks the conscience when he was freed from jail because of art administrative error. Conversely, one may conclude that forcing an improperly discharged prisoner to return to prison after being free for thirty years would shock the conscience, especially if the prisoner was originally incarcerated for a minor crime. But if the release was the result of poor record keeping or a miscalculation of the individual’s parole; the mistake may be classified as mere negligence and the reincarceration would not shock the conscience under Lewis.

Although the Court’s analysis focused on subjective intent, Lewis provided some direction for utilizing a “shocks the conscience” test for situations that are not considered classic tort liability scenarios. In Lewis, the Court stated that “conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscienceshocking level.”176 This standard is more useful in analyzing erroneous-release cases because it addresses the systemic or particularly egregious government harm the Court seeks to remedy under substantive due process.177 The use of this standard is appropriate in the erroneous-release context where inquiries into the extent of executive liability seem misplaced and can be confusing.

Analysis under the “conduct intended to injure in some way unjustifiable by any government interest” standard would be conducted in the following manner: The first part of the test requires that an executive agency or agent intended to injury an individual. When a parole board or other state executive body reincarcerates an unlawfully released prisoner, they arguably have intentionally harmed the prisoner. The prisoner may have received a windfall by being released early, but the psychological impact on the prisoner and damage to his efforts at rehabilitation are significant.178 The second part of the test demands that the. “intentional harm is unjustifiable by any government interest.”179 Therefore, when a prisoner is returned to jail after an unlawful release, the reincarceration will shock the conscience if it cannot be justified by a legitimate government interest. If the government does not have a sufficient interest in reimprisonment, the act of reincarcerating the erroneously released individual will shock the conscience.

b. “Shocks the Conscience” Test and Hawkins v. Freeman. Hawkins . Freeman, as noted earlier, is the first case to apply the Lewis shacks the conscience test in erroneous-release cases. Citing Lewis, Hawkins 1 stated that “antecedent to any possibility of recognizing a substantive due process right to be free of executive action,” a court should determine whether the executive official’s conduct “shocks the conscience.”180 The court then said that the question of whether the Parole Commission’s revocation of Hawkins’s parole shocked the conscience was not at issue in the case because North Carolina “acted intentionally to deprive Hawkins of his liberty.”181 After this statement, the court then proceeded to address whether “the liberty interest asserted by Hawkins to prevent his reincarceration [was] fundamental.”182

This analysis of the “shacks the conscience” test ignores the central holding of Lewis. It is certainly true that intentional deprivations of liberty may be conscience-shocking, but Lewis unequivocally stated that “conduct intended to injure in same way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level.”183 According to Lewis; “only the most egregious official conduct can be said to be arbitrary in the constitutional sense,” and “the touchstone of due process is protection of the individual against arbitrary action of government.”184 Reincarcerating erroneously released prisoners can rarely be considered arbitrary or unjustified by any government interest. The Supreme Court has noted in prior precedent that the government has legitimate interests in preventing future crime,185 punishing criminals,186 and protecting the public from dangerous individuals.187 These interests may be diminished if a prisoner has been released for many years and no longer poses a threat to himself or the community, but these situations arise infrequently. Most prisoners who are erroneously released are either reimprisoned or given credit toward their sentence for their time at liberty188 and reincarcerated.189 Because the reincarceration of erroneously released prisoners is often justified by legitimate government interests, the act of reimprisonment in the vast majority of cases will not shock the conscience.

This interpretation of the shocks the conscience test was confirmed in Hawkins ll.190 The Hawkins II court stated that, because the Commission’s actions were not vindictive and it did not exercise its power oppressively, the decision to reimprison Hawkins was not conscience shocking.191 According to the court, the Commission made an administrative error and corrected it by reincarcerating Hawkins. North Carolina’s “mere negligence, or lack of proper compassion, or sense of fairness” did not violate substantive due process.192 Quoting Lewis, Hawkins II concluded that an erroneously released prisoner like Hawkins would have to demonstrate that the state exercised its authority ” `without any reasonable justification in the service of a legitimate governmental objective.'”193 Because the court found that the state had legitimate interests in the correct application of its laws and the need to reimprison a “high-risk” prisoner, the court held that the Commission’s conduct did not shock the conscience.194

2. Erroneously Released Prisoners and the Glucksberg Inquiry

a. Carefully Describing the Liberty Interest of Erroneously Released Prisoners. Before a court conducts Glucksberg’s rigorous historical analysis, it must make a ” ‘careful description’ of the asserted fundamental liberty interest.”195 Precedent, legal history, and tradition do recognize a general liberty interest to be free from bodily restraint and incarceration. The Supreme Court has stated that “[f]reedom from bodily restraint has always been at the core of the liberty protected `by the Due Process Clause from arbitrary governmental action.”196 Also, in substantive due process challenges, “it is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf-through incarceration, institutionalization, or other similar restraint of personal liberty-which is the `deprivation of liberty’ triggering the protections of the Due Process Clause.”197 This general liberty against incarceration evolved from English legal traditions. Blackstone asserted that “personal liberty consists in the power of locomotion, of changing situation, or moving one’s person to whatsoever place one’s own inclination may direct, without imprisonment or restraint, unless by due course of law.”198 Under a balancing approach, the assertion of a general liberty to be free from bodily restraint would be sufficient.199

The Glucksberg test, however, does not recognize such broadly defined liberty interests. Reno v. Flores200 demonstrates the difference between a general liberty interest and an interest that is carefully described. In Flores, several juveniles challenged an Immigration and Naturalization Service regulation that detained alien juveniles prior to a deportation hearing. The regulation provided that juveniles would be placed in protective confinement unless they could be released to a parent, close relative, or a guardian who could assume legal custody.”‘ Justice O’Connor, in a concurring opinion, stated that the alien children had “a constitutionally protected interest in freedom from institutional confinement.”202 Justice Scalia, writing for the majority of the Court, disagreed. He declared that “[s]ubstantive due process analysis must begin with a careful description of the asserted right, for It]he doctrine of judicial self restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.”203 He then hold that the more specific right at stake was “the alleged right of a child who has no available parent, close relative, or legal guardian, and for whom the government is responsible, to be placed in the custody of a willing-and-able private custodian rather than of a governmentoperated or government-selected child-care institution.”204 Justice Scalia then stated that such a right could not be found in American history or tradition and therefore concluded that it was not fundamental.205

Under cases such as Flores and Glucksberg, arguing that a reincarcerated defendant has a general liberty interest in being free from imprisonment is not a “careful description” of an “asserted fundamental liberty interest.” A careful description of the liberty interest in an erroneous-release case would be framed by the following inquiry: “Does a prisoner who was unlawfully released by state executive officials and did not complete his sentence of incarceration have a fundamental liberty interest in retaining his freedom due to the mistake of the executive officials?”206

b. Historical and Traditional Protections,for Erroneously Released Prisoners. The second part of the Glucksberg test states that courts should analyze the historical foundations of the carefully described liberty interest. The carefully described liberty interest at stake in Hawkins and other erroneous-release cases, however, is not “deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty.”207 LT.S. legal history and traditions allow states to reincarcerate prisoners who are mistakenly released: One of the earliest cases denying freedom to a discharged prisoner was Leonard v Rodda.208 Rodda was convicted of petty larceny and was sentenced to sixty days in prison, but after he was taken into custody for a short period of time, the warden mistakenly discharged him.209Rodda was arrested fourteen days later and the warden reincarcerated him.210 In rejecting Rodda’s writ of habeas corpus, the court stated that the warden’s mistake was insufficient to invalidate Rodda’s reincarceration. The court affirmed precedent from other courts that recognized the broad rule that a convicted party may be reimprisoned at any time whether the “escape was voluntary or involuntary.”211 According to the court, the “action of the warden could [note be held to estop the public from the enforcement of their rights,” and “[t]the public had a right to demand the execution of the law.”212 Although the court acknowledged the defendant’s hardship in being reincarcerated, the court stated that executive clemency was better suited to address Rodda’s situation.213

The general rule that states may reincarcerate erroneously released prisoners is reflected in several legal treatises and hornbooks. In 1847, one commentator noted that “where the officer has voluntarily suffered a prisoner to escape . . . the misconduct of the officer ought not to prevent a second arrest, in order that the. offender may be brought to justice. . . the officer is bound to retake him.”214 This Statement of the law was reaffirmed through the end of the Nineteenth and well into the Twentieth Centuries. In 1913, another legal treatise stated: “One who breaks away from a lawful arrest or imprisonment may be retaken without a fresh warrant; even, it has been held, though the officer was consenting to the escape.”215 Corpus Juris Secundum has consistently recognized that a prisoner who is released by mistake may be reincarcerated as long as the defendant’s combined periods of release and incarceration were not longer than his original sentence.216

Supreme Court precedent appears to reject a liberty interest in remaining free after a mistaken release. In Coleman v. Tennessee,217 the Army’s failure to take custody of a defendant for thirteen years did not prevent it from executing the defendant’s death sentence.218 Coleman had been convicted of murder at a military court-martial and was sentenced to death by hanging. Inexplicably, the defendant was mistakenly released and remained free for over twelve years. Although almost thirteen years had elapsed, the Court field that the military had not waived jurisdiction over the defendant and allowed him to be taken into military custody “to be dealt with as required by law.”219 Also, in Anderson v: Corall,220 the Court asserted a general rule that the. “[m]ere lapse of time without imprisonment or other restraint contemplated by the law does not constitute service of sentence.”221 In addition to permitting reincarceration, this general statement in Anderson seems to preclude erroneously released prisoners from receiving credit against their sentences for time they were erroneously released.222

Most of the lower court case law supporting the continued liberty of erroneously released prisoners has developed only recently. The due process waiver theory223 did not evolve until the latter half of this century and prisoners have rarely had much success in invoking the doctrine.224 Most courts through the 1960s rejected a due process right that would have prevented states from reincarcerating erroneously released prisoners.225 The courts that did grant relief to prisoners limited the remedy to awarding credit for the time they were at liberty.226 The Ninth Circuit recently stated that “under common law a convicted person erroneously at liberty must. . . serve the full sentence imposed” and only recently have courts used a due process “totality of the circumstances” test to allow release.227 Those courts reaching the merits on due process grounds typically rule in favor of the state and permit reimprisonment.228 A substantial majority of the courts require a situation similar to Shields v. Beto,229 where the state of Texas waited twenty-eight years to impose the remainder of the defendant’s sentence.230

The Supreme Court traditionally has accorded great deference to states in the administration of their criminal justice systems. States have almost unlimited authority to define and punish criminal conduct. 231 Although the Court has dictated the bounds of state criminal procedure for the last century, it rarely imposes substantive limitations an state authority.232 In the area of criminal substantive due process, the Supreme Court has honored the principles of federalism and separation of powers. The Court has stated that ” `[p]reventing and dealing with crime is much more the business of the States than it is of the Federal Government, and . . . we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States.’ “233 Rather than prescribing substantive due process protections, it has directed defendants to seek relief primarily through legislative initiatives or executive clemency.234 The Court has steadfastly decided that the penological interests of the states are paramount to individual claims of substantive liberty interests.235

Under Glucksberg’s due process methodology, legal history and tradition demonstrate that substantive due. process does not prevent a state from reincarcerating an erroneously released prisoner. Even if the reincarceration of an erroneously released prisoner shacks the conscience under Lewis, a defendant is unlikely to prove that his right to be free of reincarceration is grounded in American history and tradition. Because the practice of maintaining the freedom of mistakenly discharged prisoners is not “deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty,” prisoners do not have a constitutionally protected fundamental liberty interest, The level of scrutiny applied to nonfundamental Liberty interests is exceptionally deferential-a state’s act of reincarceration need only be “rationally related to legitimate government interests.”236 Because a state typically has several legitimate interests in reincarceration,237 a court will uphold the reimprisonment. The inflexible history/tradition test of Glucksberg, therefore, forecloses an erroneously released prisoner’s opportunity for substantive due process relief.238

c. Hawkins I’s Flawed Analysis of Glucksberg. After concluding that North Carolina’s decision to reincarcerate Hawkins shocked the conscience, the Hawkins 1 panel then addressed the second prong of the Lewis test, the history/ tradition test of Glucksberg, to determine whether Hawkins’s liberty interest was fundamental. Without inquiring into the historical or traditional foundations of Hawkins’s interest, the court stated that he had a fundamental liberty interest in the finality of his sentence. Relying an United States v Lundien239 and United States v Cook,240 two Fourth Circuit decisions from the 1980s, the court stated that a defendant has a legitimate expectation in the finality of a state’s decision to release him. It reasoned that after a period of time, these expectations “crystallize” and the act of reincarceration would be fundamentally unfair.241 Holding that Hawkins’s two-year period of release was sufficient to crystallize his expectations, the court applied strict scrutiny to the North Carolina Parole Board’s decision to reincarcerate. The court concluded:

The substantive component of the Fourteenth Amendment’s Due Process Clause includes the right to the finality of a criminal sentence, once that sentence has crystallized, as described by the Fourth Circuit in Lundien and Cook. Where a parolee is unaware that his parole has been granted erroneously, and reasonably so, and where he successfully reintegrates himself into the community and substantially complies with all of his parole obligations for two years, his fundamental liberty interest in the finality of the parole decision has crystallized. By intentionally depriving Hawkins of this fundamental liberty interest, the North Carolina Parole Commission abused its power to a degree that shocks the conscience, violating Hawkins’s right to substantive due process.242

The court’s holding that Hawkins had a fundamental liberty interest is not sustainable under Glucksberg. Applying Glucksberg, a liberty interest is considered fundamental only if it is “deeply rooted in this Nation’s history and traditions and implicit in the concept of ordered liberty.”243 Hawkins 1 failed to examine the historical and traditional foundations of Hawkins’s right to remain free. Without “examining our Nation’s history, legal traditions, and practices,” a court cannot hold that a defendant is entitled to a substantive due process right.244 Hawkins’s reliance on Lundien and Cook to conclude that Mr. Hawkins had a fundamental liberty interest is misplaced. Although both Lundien and Cook stated that due process prevents a state from modifying a defendant’s sentence after his expectations to its finality have crystallized, these opinions did not conduct the history/tradition inquiry necessary to identify a fundamental substantive due process right.245

Hawkins II verifies this interpretation of Glucksberg. In reversing Hawkins l, Hawkins II held that under the Glucksberg methodology, erroneously released prisoners do not have a fundamental right to be free from unreasonable reincarceration.246 The court specifically rejected Lundien and Cook and a Line of precedent from other circuits that applied a waiver substantive due process theory to erroneous release cases.247 Hawkins II stated that these decisions were untenable after Glucksberg’s rigid history/tradition test and held that any inquiry into whether an erroneously released prisoner’s subjective expectations of remaining free had “crystallized” were inappropriate.24″ Although its history/ tradition inquiry was limited,249 the court concluded that Hawkins’s asserted Liberty interest was not grounded in history and tradition and was not as “fundamental” as other substantive due process rights that the Supreme Court has recognized, like the right to marital privacy or abortion.250 The outcome in Hawkins II demonstrates that erroneously released prisoners are unlikely to obtain substantive due process protection under Glascksberg’s insurmountable history/tradition analysis.



Courts analyzing erroneous-release cases should use a balancing test: Balancing is a valid251 and appropriate method for resolving substantive due process claims. As the result in Hawkins II confirms, the Lewis-Glucksberg framework essentially deprives an erroneously released prisoner of substantive due process protection from incarceration. Reimprisoning mistakenly discharged felons will rarely shock the conscience. tn addition, history and tradition make clear that society has not recognized a fundamental right that prevents states from reincarcerating erroneously released prisoners. The effect of this demanding framework, however, denies the existence of a “continuum of rights” that recognizes a broad range of individual liberties. The doctrine of Lewis and Glicksberg exalts a narrow class of fundamental rights, while permitting the wholesale abridgement of several important liberty interests. In the case of erroneously released prisoners, this theory of substantive due process has the potential to produce fundamental unfairness. Prisoners who have been released for a number of years and have worked to regain the respect of the: community face parole boards and executive officials without substantive protection. State governments unquestionably require that great deference be given to their revocation decisions and the operation of their penal systems, but the Constitution should demand that a standard of reasonableness guide their administration of justice. The adoption of a balancing test will permit courts to avert the fundamental unfairness that may result from using the Lewis and Glucksberg approach.

An unconstrained methodological approach to substantive due process, however, has the propensity to encourage judicial activism. The threat of an expansive substantive due process role is a legitimate concern. As commentators have duly noted, the decisions of Lochner v New York252 and Scott v Sandford233 are primary examples of unconstrained and unaccountable judicial policymaking.254 Far this reason, substantive due process is a disfavored doctrine and many legal authorities have argued that near total deference to popularly elected branches is necessary to forestall problematic judicial activism in the future.255 In the great majority of legal situations, deference is the appropriate course. It preserves the structural framework of the Constitution by strengthening the principles of federalism and respecting a separation of powers

Total deference, however, abrogates the framers’ original intent, leaving the judiciary derelict in its constitutional duties. Alexander Hamilton declared, “It can be of no weight to shy that the courts, on the pretence of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature.”256 Nevertheless, Hamilton asserted an active role for the judicial branch, contending “that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.”257 When addressing the impact of state regulation on individual liberty interests, the Constitution requires a reflective judiciary, which carefully assesses the needs of the individual against the legitimate goals of the state. State concerns frequently will supersede individual preferences, bat this is not a reason to abandon the inquiry into the relative importance of a liberty interest.

The Lewis and Glucksberg approach results in a sweeping denial of individual liberties. Under Lewis and Glucksberg, if a liberty interest is not held to be fundamental; a court applies a rational relation test that results in total deference to the state’s legislation or executive action.258 As long as the state can proffer a justification for burdening an individual’s liberty; a court will hold that the state has a rational basis for its actions and deny the individual relief.259 The troubling effect of this doctrine is that it may deny individuals a remedy in compelling situations. Because a state can offer some reasonable justification for almost every legislative enactment or executive act, individuals may not be protected from oppressive situations that would shack the contemporary conscience.260

The substantive due process method of Lewis and Glucksberg inadequately prevents the oppression of minority interests. Those individuals who face an unresponsive political process require a judiciary that scrutinizes regulations that have a direct impact on them.261 Judicial inquiries into the history or tradition of a right have a distinct tendency to recognize the rights of entrenched majorities; while failing to respond to emerging minority interests.262 Traditional minorities require recognition of their liberty interests and a careful balancing against the purposes of state regulations to guarantee they are not trampled by arbitrary state action.

The situation of erroneously released prisoners, therefore, necessitates a limited balancing approach to substantive due process that focuses on the reasonableness of reincarceration decisions. In the criminal justice arena, state legislatures typically enact politically expedient legislation to maintain the support of crime-conscious voters.263 The goal of prisoner rehabilitation has recently been eclipsed by demands of deterrence and retribution.264 Because most state legislatures and agencies are currently consumed by the preferences of a crime-conscious electorate, the interests of mistakenly discharged prisoners are not likely to be considered in the policymaking calculus of state governments. Parole boards and similar executive agencies will continue to opt for reincarceration. With state legislatures and executive branches evidencing an overwhelming punitive intent, the only government actor that erroneously released prisoners can turn to is the judiciary.

In erroneous-release cases, the courts are confronted with two competing concerns. The first is the harm that is inflicted upon the rehabilitative efforts of the prisoner. Morrissey v. Brewer summarized the interest in the following manner:

The parolee has been released from prison based on an evaluation that he shows reasonable promise of being able to return to society and function as a responsible, self-reliant person . [He] is free to be with family and friends and to form the other enduring attachments of normal life. . . . He 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 parolee has relied on at least the implicit promise that parole will be revoked only if he fall to live up to the parole conditions . . . [This] liberty is valuable and must be seen as within the protection of the Fourteenth Amendment.265

The Court also declared that society in general has “a stake in whatever may be the chance of restoring [the parolee] to normal and useful life within the law.”266 Both the state and the individual have significant interests in a defendant’s successful reintegration into the community and the mitigation of potential harm to his rehabilitative process.

The second concern is the states’ compelling penological interests. Punishment, deterrence, and public safety are essential to an orderly society, and a state’s choice to emphasize those goals over other objectives is the constitutional prerogative of the political branches of the state.267 Again in Morrissey, the Supreme Court recognized that a paroled individual was originally found “guilty of a crime against the people,” which “justifies imposing extensive restrictions on the individual’s liberty.”268These conditions, according to the Court, support a state’s “overwhelming interest in being able to return the individual to imprisonment.”269

In a later decision, Greenholtz v: Inmates of the Nebraska Penal and Correctional Complex,270 the Court evidenced significant deference to prisoner release determinations.271 It stated, “Decisions of the Executive Branch, however serious their impact, do not automatically invoke due process protection; there simply is no constitutional guarantee that all executive decisionmaking must comply with standards that assure error-free determinations.”272 The Court’s opinions reflect the need for states to retain discretion in the administration of their criminal justice systems to respond to the their own unique societal conditions. In addition, the opinions implicitly embrace the concepts of separation of powers and federalism, which impel respect for state executive and legislative decisionmaking.

The balance between mistakenly released prisoners’ interests and the significant interests of the state counsels a court to favor broadly state decisions to reincarcerate erroneously released prisoners. Courts, however, should tip the balance in favor of erroneously released prisoners and invalidate reimprisonment if it would result in an ” `arbitrary imposition’ or ” `purposeless restraint.'”273 Such a balance complies with the essential purpose of substantive due process, which holds that an individual’s liberty should not be restrained absent a “reasonable justification in the service of a Legitimate governmental objective,”274 and allows relief for prisoners who have demonstrated the ability to function in society. The balance already struck by politically accountable branches on the state level should only be disturbed if it falls “outside the realm of the reasonable.”275

In most situations, erroneously released prisoners should not receive a windfall through administrative errors. Premature release from the penal system undermines the purposes of state criminal justice systems and may doom a prisoner’s rehabilitative efforts. The continued freedom of an erroneously discharged prisoner is justifiable only if the individual has been free for a significant period of time, does not pose a threat to the public, and has become a functioning member of the community. For the protection of its citizens and the maintenance of its penal goals, states should have primary responsibility for making individualized revocation decisions. A balancing test that conducts a Limited inquiry into the Legitimacy of state actions and individual interests is necessary, however, to protect erroneously released prisoners from unreasonable outcomes.276


Applying this test to Hawkins v: Freeman, the North Carolina Parole Commission’s reincarceration of Hawkins was an unreasonable abrogation of his constitutionally protected liberty interests. Hawkins has a notorious criminal history involving rape and armed robbery,277 but his criminal record did not control the Parole Commission’s decision to parole him in 1992. After considering his behavior while in prison for eleven years, the Commission in 1992 concluded that Hawkins had “made some effort to improve his situation while in prison, via a college degree” and that “the best interests of the public and [Mr. Hawkins) will be served by his release under supervision at this time.”278 This decision was made with full knowledge of his past and a parole officer’s report that he was a “career street criminal who will continue to commit street crimes once he is out of prison.”279 After his release from prison, he complied with the conditions of his parole,280 and his parole officer told Hawkins that he was contemplating taking him off parole and recommending his full release.281 North Carolina cannot reasonably contend that he is a public threat. Mr. Hawkins’s obligation to honor the conditions of his parole and his continued participation in a program of supervised release mitigates the threat he may pose in the future.282

Although North Carolina has an interest in punishing Hawkins for his previous crimes, this interest is substantially diminished. The requirement that he serve seventy-five percent of his sentence before becoming eligible for parole was repealed by the North Carolina legislature four months after his conviction.283 It was subsequently replaced with a requirement that an individual like Hawkins could become eligible for parole after serving seven years of a fifty-year sentence.284 At the present date, three other individuals in the North Carolina penal system are still required to serve seventy-five percent of their sentences under the now repealed law.285 Surely these three prisoners may be rehabilitated and deserving of parole, but will remain ineligible for several years. Contrary to Hawkins’s situation, however, the State has not decided that the “the best interests of the public and of (the three] inmate[s] will be served by [their] release under supervision at this time.”286 The State cannot now claim that Hawkins should be further punished when it could have denied parole in 1992 and forced him to serve his entire fifty-year sentence.

The validity of Hawkins’s original sentence is questionable. The North Carolina legislature repealed the statute Hawkins was sentenced under and replaced it with a provision that allows defendants similarly situated to Hawkins to be released on parole after serving seven years of a fifty-year habitual felon sentence.287 The legislature, however, did not authorize the North Carolina Parole Commission to apply the new statute retroactively to prisoners sentenced under the repealed statute. Forcing Hawkins to return to prison under the old statute that he was sentenced under raises due process concerns. Compelling prisoners Like Hawkins to serve thirty-seven years, while a similarly situated inmate is released on parole after serving seven, is patently arbitrary. Although courts have held that administrative convenience permitsits states to apply weaker parole eligibility requirements prospectively without violating due process,288 the justification of administrative expediency is diminished when North Carolina would only have to determine the eligibility of four prisoners.289

Imprisonment will only derail Hawkins’s rehabilitation. He successfully completed a college degree prior to his release and exhibited responsible behavior while he was on parole. Hawkins was able to re-establish ties to his family and received a promotion at his job.290 The arbitrary decision of the North Carolina Parole Commission should not trammel the individual and societal interests in rehabilitation that the Supreme Court has recognized.291 Hawkins is not an individual who was released through a simple clerical error after serving a week of a life sentence and was later recaptured by state authorities a few months later. He was consciously released after parole eligibility hearings, spent over sixteen years of his life in prison,292 behaved lawfully on parole for several years; and based on the conclusions of the Parole Commission and his parole officer, does not pose a threat to society.293

The release of Hawkins does not supplant state policy preferences or undermine a reasonable balance of competing interests. Before a state strips an individual of the basic freedom to live in society, it must submit reasonable explanations why it has chosen to subject a person to the harsh confines of prison. When the proffered interests of the state to reincarcerate are particularly weak, a court should invalidate reimprisonment that will abjectly harm the individual and does not provide a corresponding benefit to society. Analysis of this issue does not transform a court into a super-parole board. Of course, a court should not substitute its judgment when it merely disagrees with a parole board or other executive body. As stated previously, the determination of a parole board and the state should be given great deference.294

In the case of Hawkins, however, the State’s conclusion is simply unreasonable in light of Hawkins’s rehabilitative efforts, the parole board’s statement that he is not a threat to society, and the repeal of the statute that imposed the thirty-seven year minimum sentence. Because Hawkins’s reincarceration was an “exercise of power without any reasonable justification in the service of a legitimate government objective,”295 his reimprisonment was an unwarranted deprivation of liberty and, therefore, should be held unconstitutional.


Mr. Hawkins’s predicament is exceptional. Most erroneously released prisoners should be returned to prison to fulfill the remainder of their sentence. The compelling state interests of punishment, deterrence, and public safety require courts to be deferential to state reincarceration determinations. This deferential posture, however, should not ignore the arbitrary actions of state officials. The political process inevitably discounts the interests of erroneously released prisoners, which renders them vulnerable to government oppression and abuse. Courts must protect such individuals from an unreasonable and destructive usurpation of individual liberty. Recent substantive due process jurisprudence does not adequately protect against oppressive government conduct. The Lewis and Glucksberg framework inevitably fails to consider legitimate liberty interests. Its preoccupation with the history and tradition of narrowly defined fundamental right forecloses recognition of the emerging freedoms of underrepresented individuals. Erroneously released prisoners, like other unpopular minorities, do not have substantive due process protection under the Lewis and Glucksberg approach. Although state decisions to reimprison an erroneously released prisoner will sometimes shack the conscience, the quest for finding a carefully described right that prevents imprisonment and is “deeply rooted in this Nation’s history and tradition,” is a futile exercise. Because other constitutional provisions like the Double Jeopardy, Ex Post Facto, and Cruel and Unusual Punishments Clauses da not assist erroneously released prisoners, they are not entitled to constitutional relief.

To prevent fundamentally unfair results, courts should balance the competing interests of the state and erroneously released prisoners. Balancing is an estabfished substantive due process methodology that has been adopted in several cases involving the confinement or physical restraint individuals. Although the balance will predominately favor the state, a court should nevertheless analyze the interests of the prisoner carefully and reject any reincarceration that serves as an ” `arbitrary imposition’ ” or ” `purposeless restraint.'”296

1. See Hawkins v. Freeman, 166 F.3d 267. 259 (4th Cir.), rev’d en bane, 195 F.3d 732 (4th Cir. 1999) hereinafter Hawkins IJ.

2: Id.

3. See Hawkins v. Freeman, 195 F.3d 732, 736 (4th Cir. 1999) (en banc) [hereinafter Hawkins 11]. 4. See id. at 735.

S. See id at 736.

6. Hawkins l, 166 F.3d at 279 (internal quotation marks omitted). 7. See id. at 268-69; Hawkins 1I; 195 F.3d at 736-37.

8. See Anne Saker, A Different Man, Same Oti Place. News & OBSERVER, Feb. 14, 1999, at Al: 9. See id.

10. See id.

11. See Hawkins l, 166 F.3d at 270. Hawkins was given a parole revocation hearing and an opportunity to introduce evidence regarding his rehabilitation. See Hawkins 11, 195 F.3d at 736-37.

12. See id at 737. The 75% minimum was replaced by a less stringent requirement that a habitual offender serve “not less than seven years.” Hawkins 1, 166 p’.3d at 270.

13. See Hawkins v. Freeman, 460 5.E.2d 331 (N.C. 1995) (denying petition). 14. See Hawkins It, 195 F.3d at 738.

15. Hawkins l, 166 F.3d 267 (4th Cir.), rev’d en bane, 195 F.3d 732 (4th Cir. 1999). 16. See id. at 281.

17. 523 CJ.S. 833, 855 (1998) (holding that sheriff’s deputy dad not violate substantive due process rights of individual killed during high-speed chase because the deputy’s conduct did not “shock the conscience”).

18. 521 U.S. 702; 728 (1997) (holding that the right to assisted suicide is not a fundamental liberty interest protected by the Due Process Clause because it is not “deeply rooted” in United States legal history and tradition).

19: See Hawkins 1. 166 F:3d at 281. 20. See id.

21. Hawkins Il; !95 F.3d 732 (4th Cic 1999) (en bane).

22. See id. at 750.

23. Compare Cruzan v, Director, Missouri Dept of Health, 497 13.S. 261, 279 (1990) (” `[W)hether [an individual’s) constitutional rights have been violated must he determined by balancing his liberty interests against the relevant state interests.’ ” (quoting Youngberg v. Romeo, 457 U.S. 307, 321 (1982))), with Glucksberg, 521 IJ.S, at 720-21 (“IT)he Due Process Clause specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition.’ “(quoting Snyder v: Massachusetts, 291 U.S. 97, 105 (1934)1), and County of Sacramento v. Lewis; 523 U.S. 833, 847 n.$ (1998) (`[ln a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer . . shock[s) the contemporary conscience. . . , Only if the necessary condition of egregious behavior were satisfied would there be a. debate about the sufficiency of historical examples of enforcement of the right claimed ..’). See also infra Part It.c.

24. See, e.g.; Glucksberg, 521 U.S. at 76? (Souter, J. concurring) f” calls for a court to assess the relative `weights” or dignities of the contending interests….”); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 876-79 (1993) (plurality opinion) (balancing women’s liberty interest in abortion against state’s interest in protecting potential life to determine whether state’s regulations created an undue burden on right to terminate pregnancy)_

25. See Glucksberg. 521. U.S. at 721 (“Our established method of substantive-due-process analysis has two primary features: First, the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, `deeply rooted in this Nation’s history and tradition. . .’ Second, we have required in substantive-due-process cases a `careful description’ of the asserted fundamental liberty interest.” ) (citations omitted).

26. See Hawkins t, 166 F.3d 267, 272 (4th Cir. 1999); The Supreme Court, 1997 Terns-Leading Cases, 112 HARV. L. REV. 192,,201 (1998) [hereinafter Leading Cases]. Hawkins ll also confirmed that the Court might have adopted a new two-part substantive due process test. See Hawkins 71, 195 F.3d at 747 n.9.

27. Lewis, 523 L’.S. at $47 n.$; Hawkins l, 166 F3d at 272.

28. ,See Lewis, 523 U.S. at 847 n.8; Hawkins l, 166 F.3d at 272; cf: Hawkins II, 195 F.3d at 747 n.9 (recognizing the possibility that Lewis created a two-part test).

29. The Supreme Court has never considered a substantive due process challenge to the reincarceration of an erroneously released prisoner. Precedent suggests, however, that the Court may approve the use of balancing tests in erroneous-release cases. ,See infra Part IhC.

30. See era*rcr Part IV.

31. See, e.g” damper v. Norris, 36 F.3d 782, 784-85 (8th eir. 1994 (reincarceration is not permissible if it would violate fundamental principles of liberty and justice; Johnson v. Williford, 682 A2d 868, 1373 n.3 (9th Cir. 1982) (holding that reimprisonment of parolee violated substantive due process because “reincarceration would involve disruption of [his] family and family life, the lives of his employees, and the affairs of his business creditors, and threaten his own long term readjustmentall for the sake of blind obedience to the letter of [a sentencing statute]”; see also intra Part III.A.

32. Lewis, 523 ii.5. at 847 n.8.

33. Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (internal quotation marks and citations omitted).

34. See infra Part ILc.

35. U.S. COsT. amend. V.

36. F1.S. CoNsTr. art. I, 10, cl. 10; ci. i. 37. U.S. Cows*r. amend. VIII.

38. See, e.g_, irr parte Lange, 85 U:S_ (18 Wall.) 363, 176 (1873) (suffering full punishment for a single offense bars additional punishment for the same offense).

39. United States v. Hanahan, 798 F.2d 187, 189 (7th Cir. 1986); see also United States v. Clark, 984 F.2d 319. 321 (9th Cir. 1993) (per curiam) (imposing consecutive sentences for revocation of probation and holding that supervised release does not violate Double Jeopardy Clause); United States v. Martin, 786 F.2d 974, 977 (10th Cir. 1986) (revoking improper sentence of probation and imposing period of incarceration did not violate Double Jeopardy Clause)i William S. McAninch, Unj

40. Averhart v. TuLsie, 618 F2d 479, 483 (7th Cir. 1980). 41. Ly`nce v. Mathis, 519 LLS. 433, 441 (1997).

42. See, e.g., Stephens v. Thomas, 19 F.3d 498, 500 (10th Cir. 1994): Crowley v. E.andon, 780 F.2d 440, 444 (4th Cir. 1985; Mileham v. Simmons; 588 F.2d 1279, fi 280 (9th Cir. 1979) (holding that the Ex Post Facto Clause does not provide a “vested right in . . . an erroneous interpretation” of a state parole statute).

43. 780 F:2d 440 (4th Cir. 1985). 44. See id. at 441-42.

45. See id. at 442.

ab. ra. ac at 444.

47. Id: (emphasis added),

48. Rhodes v. Chapman, 452 U.S.:337, 346 (1981) (quoting Gregg v. Georgia, 428 U.S: 153, 173, 183 (1976)j.

49. See Harmelin v. Michigan, 501 U.S. 957, 963, 997-98 (1991). Proportionality demands that a punishment not be excessive in light of the crime that was committed. See Coker v, Georgia, 433 L).5. 584, 592 (1977) (holding that a death sentence is an unconstitutionally disproportionate punishment for the crime of rape).

50. SOt U.S. 957 (1991). 51. See id, at 994-95. 52. Id at 994.

53. .See id.

54: Id. at 998> 1008 (Kennedy> J; concurring).

55. Id at 101, 1008 (Kennedy 3. concurring) (quoting Salem v. Helm, 463 iLS. 277, 288 (1983)y.

56. See Estelle v. Gamble, 429 U.S. 97, 101 (1976) (“[T)he primary concern of the drafters was to proscribe `torture’ and other `barbar(ous)’ methods of punishment.”). Examples of an unconstitutional infliction of pain include denying a prisoner’s request for medical care, see id. at 104, and more traditional forms of torture such as “breaking on the wheel” and “crucifixion,” In re Kemmler, 136 U.S. 436, 446 (1890).

57. 452 U.S. 337 (1981).

58. Id. at 346 (quoting Gregg v. Georgia, 428 U.S. 153, 183 (1976)). 59. See infra rates 185-87 and accompanying text.

60. In addition to estoppel. some erroneously released prisoners have used the common-law ban on installment sentences to obtain credit against their sentences for the time they were at liberty. See, e.g., White v. Pearlman, 42 F.2d 788, 789 ( IOth Cir, 1930): Green v. Christiansen, 732 F 2d 1397, 1399-1400 (9th Cir. 1984) (applying installment theory and crediting prisoner’s sentence for time he was rrristakenly released); see also Gabriel J. Chin, Getting Out of Jail Free: Sentence Credit,for Periods of Mistaken Liberty. 45 CATH. U. L. REV. 403, 419-21 ( 1996) (distinguishing between absolute discharge for waiver and credit for installment sentences). The common-law doctrine prevents the state from delaying the expiration of a prisoner’s sentence by releasing the prisoner and then later forcing him to return to jail: See Dunne v. Keohane, 14 F,3d 335. 336 (7th Cir. 1994). Because the ban on installment sentences is not constitutionally based and is considered a conunon-law rule, state prisoners will be unable to raise this theory in habeas corpus proceedings. The federal habeas corpus statute only permits a writ of habeas corpus “in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C 2254 ( 1994).

61. See, e.g., United States v. Martinez, 837 F.2d 861, 865 (9th Cir. 1988); Johnson v. Williford, 682 E2d 868, 873 (9th Cir. 1982). To estop the government, defendants must demonstrate that: “`1) the [government] knows the facts; 2) [the government must intend that (its] conduct shall be acted upon ar must act sa that the party ascertaining the estoppel has a right to believe it is so intended; 3) the party asserting the estoppel must be ignorant of the facts; and 4) that party must rely on the former’s conduct to his injury.” Martinez, 837 F.2d at 865.

62. See Perveler v. Estelle, 974 R2d 1132, 1135 (9th Cir, 1992) (per curiam); O’Bremski v. Maass, 915 F 2d 418, 423 (9th Cir. 1990).

63. See PerveCer, 974 F.2d at 1135 n.4 (rejecting use of equitable estoppel in habeas corpus petition of state prisoner; prisoner had to demonstrate a constitutional or federal law violation); O’Bren*.ski, 915 F.2d at 423 (same).

64. See Office of Personnel Management v. Richmond. 496 tl.S. 414, 422-23 (1990) (rejecting per se rule against estoppel but acknowledging that the Court has reversed every claim of estoppel against the government).

65. U.S. CoST. amend: XIV, I 1 t”[N]or shall any State deprive any person of life, liberty, or property; without due process of law. . . .”).

66. Daniels v. Williams, 474 U.S. 327, 338-39 ( 1986) (Stevens, J., concurring). 67. Id. at 338 (internal quotation marks omitted).

68. Washington v. Glucksberg, 521 U.S. 702, 720 ( 1997). Erroneous-release claims are substantive due process challenges to state action. They do not question the procedures used to revoke parole or a release from prison; they contest the state’s ability to reimprison those inmates who were improperly released.

69. See, e.g., Cruzan v. Director, Missouri Dept of Health> 497 U.S. 261, 279 (1990) (holding that an individual has a liberty interest in refusing medical treatment).

70. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 848 (1992) (plurality opinion) (quoting Poe v. Ullman, 367 U.S. 497, 543 ( 1961 ) (Harlan, J., dissenting)): Glucksberg, 521.S. at 765 (Souter, J., concurring).

71. Casey, 505 U.S: at 849-50 (plurality opinion) (quoting Poe, 367 U.S. at 542 (Harlan, J., dissenting)).

72. See, e.g:, CruZan, 497 U.S. at 279; .see also Richard H. fallon, Jr., Same Confusi(ons about Due Process, Jerdiciaf Review, arid Constitutional Remedies, 93 Coutvt. L. REV. 309, 315-17 (1993) (recognizing that scrutiny of substantive due process claims is not limited to strict scrutiny or rational basis review).

73. See Fallon, st*ura note 72, at 323-24.

74. See Glucksberg, 521 U.S. at 768 n.10 (Souter. J., concurring). Sometimes, a court has determined that an interest is a right without Balancing it against a state interest. See iil.

75: Casey; 5(15 U.S. at 848 (plurality opinion) (quoting Fae, 367 U.S: at 543 (Harlan, J. dissenting)). 76. See TttIL FEI)ERAI StE FEtaattntasr No. 78 (Alexander Hamilton) (asserting that the proper role for the

judiciary is to serve as an intermediary between the legislature and the people); see also Richard H. Fallon, Jr., A Constructivist Coherence Theory c;f Consitutional Interpretation, 100 HARV. L. REV. 1189, 1268 (1987) (arguing that judges should guard against politically expedient government actions that conflict with constitutional principles). Government actions are usually upheld unless the legislation or executive action places undue burdens on the liberty interest or are considered unreasonable. See, e.g., Glucksberg, 521 U.S. at 768> 788-89 (Souter, J., concurring) (upholding assisted suicide ban and stating that the balance already struck by the state should not be supplanted unless it “falls outside the realm of the reasonable”>; Casey, 505 IJ.S. 833, 901 (plurality opinion) (upholding state abortion regulations that did not place undue burdens on women’s liberty interest in obtaining an abortion); Cruzan, 497 L7.5: at 286-87 (allowing states to require clear and convincing evidence of an incompetent patient’s desire to withdraw life support).

77. Because the Glucksberg history/tradition test is the second prong of the Lewis test, it is analyzed in this nate under the Lewis two-part test and is not discussed separately. Whether or not the Lewis two-part test is valid is certainly questionable. See i,. fra note 109 and accompanying text. Because the reincarceration of erroneously released prisoners in some situations shocks the conscience, it is the Glucksberg prong in lewis that ultimately prevents a state from reincarcerating erroneously released prisoners. See ira notes 184-89, 236-38 and accompanying text.

78. County of Sacramento v. Lewis, 523 tJ.S. 833, 847 n.8 (1998).

79. Id. at 845.

80. Id. at 848 (quoting Daniels v. Williams, 47413.5. 327, 332 ( 1986)). 81. Id. at 851-53.

82. See 42 U.S.C. 1983 (1994) (creating a cause of action against government officials for violations of constitutional rights).

83. See Lewis, 118 S. Ct. at $36-37. 84. See id. at 852-53.

85. Id. at 854.

86. See idt: at 854-55.

87. Leading Cases.supra note 26, at 19$, 88. Fallon, supra note 72, at 350.

89. See Lewis; 523 U.S. at 847 n.$ (“jE]xecutive action challenges raise a particular need to preserve the constitutional proportions of constitutional claims, lest the Constitution be demoted to . . . a font of tort law.”); see also Daniels v. Williams, 474 tJ.S. 327, 332 ( 1986) (due process should not be superimposed upon existing state tort law regimes).

90. Le* is, 118 S. Ct. at 848 (quoting Daniels, 474 C).S. at 332).

91. See Lewis, 523 U.S, at 847 n.8. (holding that a court does not have- to perform analysis under Glucksberg and provide `”historical examples of recognition of [al claimed liberty protection at some appropriate level of specificity” unless the executive action shocks the conscience).

92. Washington v. Glucksberg, 521 U.S. 702, 721 ( 1997) (internal quotation marks and citations omitted>.

93. Id. at 733.

94. Id at 723.

95 Id at 721, 723 (internal quotation marks and citations ommited).

96. See irl. at 710-19 (citing law review articles. English legal texts, historical state statutes, recent legislative referendums, and case law to demonstrate a historical and traditional aversion to assisted suicide).

97. Id, at 721 (quoting Palko v. Connecticut, 302 U.S. 319. 325-26 (1937)).

98. See Richard H. Fallon, Jr., The Supreme Court, 1996 Term-Foreword: Irlplerrteruing the Constitution, I1I HARv. L. REv. 56, 139-40 (1997).

99. See David Crump, How do the Courts Really Discover Uneuumerated Funrlarnental Rights? Cataloguing the Methods of Judicial Alcheny, 19 HARV. & Pus. Pot,’n 795, 861 (1996).

100. See Glucksberg, 521 U.9. at 728. 101. Id.

102. See id, at 721; see also Michael C. Dorf, Incidental Burdens ran Fundamental Rights, 109 HfRy. L. I2EV L 175; 1177-78 ( 1996) (imposing a direct burden on a fundamental right survives judicial scrutiny if it is narrowly tailored to serve a compelling interest).

103. Glucksberg; 521 U.S. at 721. 104. See Fallon, .supra note 98, at 79. 105. Glucksberg, 521 U.S. at 72&.

106. See Fallon, supra note 98, at 79 (rational relation tests are so deferential that they act as a “rubber stamp” to legislative and executive decisions).

107. Glt(ksW rg, 521 U.S. at 735.

108. See Fallon. supra note 98, at 138-41(1.

109. Although the language of footnote eight of Lewei.r describing the two-tiered framework is fairly clear, see County of Sacramento v. Lewis, 523 U.S. 833, 84? n.8 (1998); .supra note 23 and accompanying text, the Court might not apply such a demanding standard in the future. Justices on the Court differ on the use of history in substantive due process cases. Compare Len:is, 523 G.S. at 860 (Scalia, J.> concurring) (rejecting substantive due process arbitrary action test and stating that ‘fo]ur Nation’s history. legal traditions, and practices. . * provide the crucial guideposts for responsible decisionmaking”‘ (quoting Gduck.sberg, 521 L1.S: at 721) (alteration in original)j, with Glucksberg, 521 L*.S. at 765 (Souter. J.. concurring) (“My understanding of unenumerated rights . . . avoids the absolutist failing of many older cases without embracing the opposite pole of equating reasonableness with past practice described at a very specific level.”). See also Leading Cases> ,supra note 26, at 201, 202 n.77 (arguing that Justice Souter’s intent in Lewis was probably not to create a more demanding test than the history/tradition inquiry expressed in prior opinions by Justice Scalia). The Court may use a balancing approach in some cases. See ixafru Part il.c.

i t0. See infra Part III.A. (discussing the waiver approach to erroneous-release cases). 11 t. See Glnclitck,berg, 521 U.S2 f 11.5. at 720-21.

112. Id. at 722.

113. Justices O’Connor and Kennedy, who joined the Chief Justice’s opinion, have utilized forms of balancing in their opinions and may be unwilling to support Glucksberg’s history/tradition test in future substantive due process cases: See Fallon, spra note 98, at 139-40.

114. See infra note 129 and accompanying text.

115: See Hawkins II. 195 P.3d 732, 739 n.2 (1999). The Hczkvkins lI court held that Glazcksherg rejected the use of balancing tests in substantive due process cases. The court, however, based its conclusion on the opinion of the Chief Justice and failed to recognize the significance of the separate concurring opinions. See id. (citing Glucksberg, 521 L7.S. at 721-221.

116. See Glucksberg, 521 U.S. at 722-23.

117. Id. at 736-37 (O’Connor; J., concurring) (“I join the Court’s opinions because I agree that there is no generalized right to ‘commit suicide.’. . . I agree that the State’s interests in protecting those who are not truly competent or facing imminent death, or those whose decisions to hasten death would not be truly voluntary, are sufficiently weighty to justify a prohibition against physician-assisted suicide,” j; see also irl. at 741, 743 (Stevens, J., concurring) (affirming the balancing approach in Cru:an where a liberty interest in refusing unwanted treatment was balanced against relevant state interests and holding that liberty protected by the Due Process Clause does not include a categorical “right to commit suicide which itself includes a right to assistance in doing so,”j; id at 790-92 (Breyer, J., concurring) (holding that any right to die would have to include an element of severe physical pain and agreeing with Justice O’Connor that he would re-evaluate the interests of a state that forced individuals to suffer extreme physical pain); id. at 789 (Ginsburg, J., concurring) (“I concur in the Court’s judgments in these cases substantially for the reasons stated by Justice O’Connor in her concurring opinion.”).

I18. Id. at 382 (Souter, J., concurring).

119. See id. (holding that the State’s interests were “sufficiently serious to defeat the present claim”).

120. See Planned Parenthood of Southeastern Pa. v. Casey, SOS U.S. 833. 876-880 (1992) (plurality opinion) (weighing a woman’s interest in abortion against the State’s interests in protecting potential life); Cruzan v. Director, Missouri Dept of Health, 497 U.S. 261, 279 (1990).

121. See, e.g., United States v. Salerno, 481 U.S. 739, 750-51 (1987) (holding that “[o]n the other side of the scale . . . is the individual’s strong interest in liberty” which may, “in circumstances where the government’s interest is sufficiently weighty, be subordinated to the greater needs of society”; Schall v. Martin, 467 CLS. 253, 264 (1984 (recognizing “[the `legitimate and compelling state interest’ in protecting the community from crime cannot be doubted” but noting that “[t]he juvenile’s countervailing interest in freedom from institutional restraints . : . is undoubtedly substantial as well”); Youngberg v. Romeo, 45? U.S. 307, 319-20 (1982 (establishing that the respondent “retained liberty interests in safety and freedom from bodily restraint” and balancing these interests against “the State’s asserted reasons for restraining [his] liberty”).

122. 497 U.s: 261 (1999>. 123: See id, at 265.

124. Id. at 278-79. 125. See id. at 279-81. 126. See id. at 286-87.

127. FouCha v. Louisiana, 544 U.S. 71, 80 (1992).

128. See, e.g.. Kansas v. Hendricks, 521 U.S. 346, 357 (1997) (holding that the Due Process Clause permits the commitment of dangerous persons).

129. See, e.g., United States v. Salerno, 481 U.S. 739, 754-51 (1987 (pretrial detention); Schall v. Martin, 467 U.S. 253> 263 (1984) (juvenile pretrial detention); Youngberg v. Romeo, 457 U.S. 307, 319-20 ( 1982) (freedom of movement and from physical restraint in state mental hospital).

130. Several lower federal courts have used balancing tests in a number of contexts since the Glucksberg opinion: See, e.g., Bloch v. Ribar, 156 F.3d 673, 686 (6th Cir. 1998) (informational privacy); United States v. Deters, 143 F.3d 577, 582-83 (10th Cir. 1998) (pretrial confinement); Morgan v. Rabun, 128 F.3d 694, 696-97 (8th Cir. 1997 (administration of drugs to state hospital patient.

131. For a discussion of nonconstitutional tests, see supra Part l.a.

132. See, e.g., Camper v. Norris, 36 F.3d 782, 784-85 (8th Cir. 1994); Johnson v. Williford, 682 F.2d 868. 873 (9th Cir. 1982).

133. See, e.g., Kelch v. Director, Nevada Dept of Prisons, 10 F.3d 684, 687-88 (9th Cir. 1993) (aPPlying balancing test).

134. See Hawkins 1, 166 F3d 267, 271-73 (4th Cir. 1999). 135. 370 E2d 1003 (5th Cir. 1967).

136. See, e.g., Sotto v. Wainwright, 601 F.2d 184, 190-91 (Sth Cir. 1979) (citing Shields, 370 F.2d at 1004) (noting that the substantive provision of the Due Process Clause demands fundamental justice); see also Chin, supra note 60, at 41$.

137. The waiver theory is described in Lanier a Williiaws:

Once the state, through acts or omissions of its officials. has led a per-son, through no fault of

his own, to believe that he is free of a prison sentence, and makes no attempt for a prolonged period of years to reacquire custody over him, that person should be able to rely on the state’s action or inaction and assume that further service of the sentence will not be exacted of him. The state should not later be heard to assert a right to custody over the person whom it has so misled, and to permit the state to do so offends the Due Process Clause of the Constitution.

361 F. Supp. 944, 94? (E.D.N.C. 1973).

138. See, e.g., United States v. Merritt, 478 F. Supp. 804, 807 (D.D.C. 1979): The most common example of a release being attributed to a prisoner is an escape from jail. See, e.g., Broshears v. Kentucky, No. 85-5500, 1986 WL 16339, at *2 (6th Cir: Jan. 24, 1986) (per curiam); Mathes v. Pierpont, 725 R2d 77, 79 (8th Cir. 1984).

139. Piper v, Estelle, 485 R2d 245, 246 (Sth Cir. 1973) (per curiam); see also, e.g:, Mistretta v. Whalen, No. 92-1311, 1993 WI. i(8074, at *1 (7th Cir. Apr. 14, 1993); Mobley v. Dugger, 823 F.2d 1495, 1496-97 (llth Cir. 1987); Johnson v. Williford. 682 F.2d 868, 873 (9th Cir. 1982); Shelton v. Ciccone, 578 F.2d 1241, 1244 (8th Cir. 1978); Merritt. 478 F. Supp. at 807.

140. Piper, 485 R2d at 246. Compare Camper v. Norris, 36 F.3d 782, 784-85 (8th Cir. 1994) (failing to mail appellate mandate of conviction to defendant, which resulted in four-year delay in execution of sentence. did not violate due process), and Green v. Christiansen, 732 F.2d 1397, 1399 (9th Cir. 1984) (reincarcerating defendant after two-and-one-half year release did not violate due process), with Shields, 370 F.2d at 1005-06 (prohibiting state from reimprisoning defendant after failure to file a detainer resulted in 28-year release), and Johnson, 682 F.2d at 873 (prohibiting state from reincarcer,ating defendant after defendant was improperly released far IS months and had re-established ties to his family and community).

141. United States v. Martinez 837 E2d 861, 864-65 (9th Cir. 1988) (affirming state’s decision to reincarcerate prisoner because prisoner knew that he was erroneously released and state officials’ actions did not amount to affirmative misconduct).

142. See County of Sacramento v: Lewis. 523 U.S. 833. 847 n.8 (1998).

143. One court applying the waiver test held that the reincarceration of a prisoner who had been erroneously paroled shocked the conscience: See Merritt, 478 F. Supp. at 8()8 (“In the. judgment of this Court, a requirement that defendant serve his sentence here and now would be precisely -inconsistent with fundamental principles of liberty and justicel; indeed it would shock the conscience off the Court.”‘ ).

144. See Montana v. Egelhoff. 518 U.S. 37, 43 (1996) (plurality opinion) i'”Our primary guide in determining whether the principle is fundamental is, of course, historical practice.”).

145. See Kelch v. Director, Nevada Dept of Prisons, 10 E.3d 684, 687-88 (9th Cir. 1993): Ellard v. Alabama Bd. of Pardons and Paroles, 824 F.2d 937, 941-44 (LFth Cir. 1987); Ire re Moore, 722 So. 2d 465 471 (Miss. 1998).

146. 408 iJ.S. 471 (1972).,

147. See id. at 482-83. The liberty interest conferred in Morri,ssey was recently reaffryed and extended to other state conditional release programs. See Ycrung v. Harper, 520 U.S. 143, 152-53 (1997) (conferring the due process protections of Morri.rsey to preparole revocations).

I48. Morrisse_o, 408 U.S. at 483-85. 149. 824 F.2d 937 (I’Lth Cir. 1987). 150. 10 OF.3d 684 (9th Gir. 1993). 151. ld. at 688.

152. 824 F.2d at 946.

153. See Kelch, 10 E3d at 689; In re Moore, 722 Sa: 2d 465, 471 (Miss. 1998). In Ellard. the court remanded to determine whether deficiencies in the parole process substantially undermined the state’s parole determination. See 824 F.2d at 949.

154. fee infra notes 185-87 and accompanying text. 155. See infra notes 231-35 and accompanying text. 156. Morrissey, 408 U_S, at 484.

157. See id.

158. See Daniels v. Williams, 474 U.S. 327, 338 (1986). 159. Washington v. Glucksherg, 521 U.S. 702, 720 (1997).

160. Collins v. City of Harker Heights, 5(13 U.S. IIS, 15, 125, 128-29 (1992) (`”[A]dministration of government programs is based an a rational decisionmaking process that takes account of competing social, political and economic forces. Decisions concerning . . . those programs . . . involve a host of policy choices that must be made by locally elected representatives, rather than by federal judges interpreting the basic charter of Government for the entire country.”j.

Ifil. This usually occurs in three situations: I) a parole board will parole an individual before his sentence permits his release; 2) a prisoner finishes a sentence, but the federal or state penitentiary releases him without having the prisoner serve an outstanding sentence in another state or federal prison; or 3) the federal ar state agency fails to take custody of the prisoner.

162. See Guam v: Materne, 72 F.3d 103, 107 (9th Cir. 1995) (adding mandatory parole tenn after defendant completed his prison sentence did not violate due process; defendant could not have reasonable expectation of serving an illegal sentence); Ellard v. Alabama Bd: of Pardons and Paroles, &24 F.2d 937, 945 (1 th Cir. 1987) (revoking parole that was mistakenly granted to the wrong prisoner or parole that was conferred contrary to state guidelines does not violate substantive due process).

163. See Jones v. Thomas, 491 Li.S. 376, 395 (1989) (Scalia, J., dissenting) (citing Bozza v. united States, 330 tl.S. 160, 166-67 (1947); United States v. Arrellano-Rias, 799 F.2d 520, 524 (9th Cir. 1986); United States v. Edmonson, 792 F.2d 1492, 1496 n.4 (9fih Cir. 1986)). Other courts have held that a defendant does not have a legitimate expectation of finality in an illegal sentence. See Williams v. Travis, 143 F.3d 98, 99 (2d Cir, 1998); United States v: Welch: 928 F.2d 915, 916 (lOth Cir. 1991).

164. See supra note 121.

165. See supra notes 127-30 and accompanying text; infra notes 196-99 and accompanying text.

166. See Kansas v. Hendricks, 521 LLS. 346, 356 (1997) (civil commitment); Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (same): United States v. Salerno, 481 U.S. 739, 750-51 (1987) (pretrial detention); Bearden v. Georgia, 461 U.S. 660, 666 n.7 (1983) (“We have previously applied considerations of procedural and substantive fairness to probation and parole revocation proceedings.”) (emphasis added).

16?: See supra Part II.G.

168. See Hawkins I, 166 F.3d 26?, 280 (4th Cir. 1999). 169. See id. at 270.

170. See id at 268-69.

171. See Hawkins II 195 F.3d 732, 750 (4th Cir. 1999) (en banc). 172. See supra notes 82-86 and accompanying text.

173. See County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998.

174. See id. at 852-53: 175. fd. ac 854:

176. fd. at 849 (citation omitted).

177. See Fallon, supra note 72, at 365 (arguing that arbitrary action tests and other similar tests are used by the Court to alleviate systemic harm).

178. See Morrissey v. Brewer, 408 LJ.S. 471, 482 (1972) (revoking parole inflicts a “grievous toss” on parolees). Treating an erroneously released prisoner fairly may enhance rehabilitative efforts. Cf Donald N. Bersoff, Judicial Deference to Nonlegal Deoisicrnnuzkers: Imposing Simplistic Solutions on Problems of Cognitive Complexity in Mental Disability Law, 46 SMU L. REV. 329

(asserting that the Supreme Court has implicitly recognized that fair procedures at revocation hearings may have a positive psychological effect on prisoners).

179. Lewis, 523 U.S. at 849.

180. Hawkins I, 166 F.3d 267, 271 (4th Cir. 1999) (quoting her-vis, 523 LT.S. at 849 n:8) (internal quotation marks omitted).

181. Id. at 272. 182. Id.

183. Lewis, 523 t3.S. at 849 (emphasis added) (citation omitted?. 184: Id. at 846 (internal quotation marks and citations omitted).

185. See United States v. Salerno. 481 U.S. 739, 750 (1987). The Court has stated that this interest is compelling and is heightened if the defendant is already being held for a crime. See id.

186. See Bearden v. Georgia, 46 t LJ.S. 660, 669 ( 1983). 187. See Pell v. Procunier, 417 U.S. 817, 822-23 (1974).

188. See generally Chin, supra nate 60 (discussing defendants who receive credit toward their sentence for being improperly released from prison).

189. See Hawkins 1. 166 F.3d 267, 284 (Ath Cir. 1999) (Phillips, J., dissenting).

190. Hawkins II applied the shocks the conscience test and conducted the history/tradition inquiry of Glucksberg, see Hawkins II, 195 F.3d 732, 741 (Ath Cir. 1999) (en banc), but did not decide whether Lewis announced a new two-part test that embodies both methodologies. seP id. at 747. In addition, the court summarily rejected the use of balancing tests in substantive due process cases. See id. at 739 n.2; see also supra note 115.

191. See Hawkins 11, 166 F.3d at 746. 192. Id.

193. Id. (quoting County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). 194. Id.

195.. Washington v: Glucksberg, 521 iJ.S. 702, ?21 1997) citations omitted).

196. Foucha v. Louisiana, 504 tLS. 71, 80 ( 1992):

197. DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989).

198. 1 WILLIAM BLACKSTONE, COMMENTARIES * 152. 199: See supra Parts II:,a. and III.a.

200. 507 U.S. 292 (1993). 201. See fd. at 297-98.

202. Id. at 315 (O’Connor: J., concurring).

203. Id. at 302 alteration in original (internal quotation marks and citation omitted.

204. Id,

205. See id. at 303.

206. By reducing a right to its lowest Level of generality, the likelihood that the right will be deemed fundamental significantly diminishes. A careful description of a liberty interest has the effect of disconnecting it from previously established rights and traditions. See Lawrence HI. Tribe & Michael C. Darf, Level.v of Generality in the l7efirtitiorr yf Rights, 57 U. Crtt. L. REV. 1057, 1066 ( 1990) (arguing

that the description of the liberty interest at issue in Bowers a. Hardwic, was essential to the outcome reached by the majority and dissenting opinions). A careful description of the liberty interest asserted in an erroneous-release case nearly guarantees that it will not be rooted in U.S. history or traditions.

207. Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (internal quotation marks and citations omitted).

208. 5 App. D.C. 256 (1895); see also Schwamble v. Sheriff, 22 Pa 18, 19 (1853) (allowing reimprisonment of prisoner whether the escape was voluntary or involuntary).

209. See Leonard, 5 App. D.C. at 258. 210. See id.

211. Id. at 271 (citing and discussing various state law cases). 212. Id. at 273-74.

213. ,See id. at 275.



BISHOP, NEw COMMENTARIES ON THE CRIMINAL L.Aw UJPGN A NEW SYSTEM OF LEGAL EXPOSITION 63$ ( 1892 (“A sentence to prison means to the four walls of it; so that the keeper by permitting a prisoner to go at large commits escape, unless the statute authorizes. as it sometimes does, a range outside.'”).

216, Compare 16 C.J.S. Criminal law 3233 ( 1918) (government may reincarcerate a prisoner if his sentence would not have expired if he remained in prison), with 24 C.J.S. Criminal Law 1580 (1989 (stating that the majority of states merely provide credit against sentences for time that defendant was erroneously released).

217. 97 U.S.509(1878). 21$. See icl. at 519-20.

219. id. at 520.

220. 263 U.S. 193 ( 1923 ). 221. Id. at 196.

222. See Chin, supra note 60, at 433 n.70. Many lower courts have interpreted Anderson to apply only to situations where the prisoner actually escaped from jail. See id. (citing cases). The Supreme Court, however, has not clarified its holding. See id.

223. See supra Part IILa.

224. fee Johnson v. Williford, 682 R2d 868, 873 (9th Cir. 1982) (releasing defendant under waiver theory); Shelton v. Ciccone, 578 F.2d 1241, 1244 (th Cir. 1978) (same); Shields v. Beto, 370 F.2d 1003, 1005-06 (52h Cir. 1967) (same); United States v. Merritt, 478 R Supp. 804, 807 (D.D.C. 1979) (same); Lanier v. Williams> 361 F. Supp. 944, 947 (E.D.N.C. 1973) (same).

225. Sec, e.g., United States v. Yann, 207 F. Supp. 108, 114 (E.D.N.Y. 1962); O’Malley u. Hiatt, 74 F. Supp. 44, 46, 52 iM.D. Pa. 1947):

226. See, e.g., Smith v. Swope: 91 EF.2d 260, 262 (9th Cir_ 1937) (awarding credit to prisoner from the time his sentence was to be executed), White v. Pearlman, 42 F.2d 788 (lOth Cir. 1930) (awarding credit to prisoner but holding that a state can reincarcerate prisoner if his term would not have expired if he remained in prison).

227. United States v. Martinez, 837 E2d 861, 864 (9th Cir. 1988).

22&. See Hawkins f, 166 F:3d 267, 285 n.6 (4th Cir. 1999) (Phillips, J., dissenting) (citing cases). 229, 370 F.2d at 10(04.

230. See, e.g., Mistretta v. Whalen, No. 92-1311, 1993 WI* 118074, at *1 (?th Cir. 1993) (“Shields . . , was an extreme case.”); rMartinez, 837 F.2d at 864 (citing Shields as an example of gross negligence); Piper v. Estelle, 485 F.2d 245, 246 (Sth Gir. 1973) (holding that prisoner does not have a due process right to remain free unless reincarceration would violate fundamental principles of liberty and justice; state conduct did not reach dimensions of Shields).

231. See Medina v. California, 505 Lt.S. 437, 443 (1992) (“In the field of criminal law, we have defined the category of infractions that violate `fundamental fairness’ very narrowly based on the recognition that. `beyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation.’ ” (quoting Dowling v. United States, 493 U.S. 342, 352 (1990))); see also Stephen R. McAllister, Sex Offenders and Mental Illness: A Lesson in Federalism and the Separation of Yovers, 4 PsYCHOL. Pue. Pot’Y 8c L. 268, 295 (1998) (indicating that the Supreme Court has left state legislatures to “deal more or less harshly with those who have committed criminal offenses” ).

232. See generally William J. Stunz, The Civil-Criminal Distinction: Substance, Process and the Civil-Criminal Line. 7 J. CoNE. LE[iAt. IssuES 1 (1996) (defining and punishing crime is the responsibility of the legislature but the Constitution prescribes criminal procedure). The Supreme Court is often reluctant to expand the scope of procedural protections. See Montana v. Egelhoff, 518 U.S. 37, 51 (1996) (plurality opinion) (“IN)ot every widespread experiment with a procedural rule favorable to criminal defendants establishes a fundamental principle of justice.”).

233- Medina, 505 U.S. at 445 (quoting Patterson v. New York, 432 U.S. 197,201-02 (1977)).

234. See Harmelin v. Michigan, 501 U.S. 95?, 996 (1991) (noting that a sentence of life in prison

without parole does not foreclose relief from retroactive legislation or executive clemency); Ex parte United States, 242 U.S. 27. 42 (1916) (“‘f]he authority to define and fix the punishment for crime is legislative. . . [and] the. right to relieve from the punishment fixed by law and ascertained according to the methods by it provided, belongs to the executive department.”).

235. See United States v. Salerno. 481 U.S. 739, 750-51 (1987) (holding that weighty interests of government may subordinate individual liberty interests to further the “greater needs of society”); Bearden v. Georgia, 461 U.S. 660, 669 (1983) (recognizing a state’s “fundamental interest” in punishing state criminal law violations).

236. Washington v. Glucksberg, 521 U.S. 702, 728 (1997). 237. See supra notes 185-87 and accompanying text.

238. The Glucksberg prong of the two-part Lewis test is the most damaging to an erroneously released prisoner’s interests. Because history and tradition demonstrate that prisoners do not have a fundamental right to their continued freedom, a state can reincarcerate a prisoner even if the imprisonment would shock the conscience under the first prong of Lewis.

239. 769 E2d 981 (4th Cir. 1985). 240. 890 F.2d 672 (4th Cir: 1989).

241. See Hawkins l, I, 166 F.3d 267, 281 (4th Cir. 1999).

242. Id.

243. Washington v. Glucksberg, 521 U.S. 702, 721 ( 1997) (internal quotation marks and citations omitted).

244. Id: at 710:

245. See Cook, 890 F.2d at 675; Lundien, 769 F.2d at 986-87. Lundien actually recommended a balancing approach when analyzing a defendant’s expectation of finality. See 769 ft2d at 986 (“We think that . . . undesirable results can, and should, be prevented by balancing the competing factors in each case under the Due Process Clause. : . .”).

246. Hawkins II, 195 F3d 747-50 (4th Cir. 1999) (en banc).

247. See id. at 749-50. For a discussion of the waiver theory and its validity after Lewis and Glucksberg, see supra Part IILn.

248. Hawkins 11, 195 F.3d at 748-50.

249. In looking to history and tradition, Hawkins II stated that the routine practice of most states was to reincarcerate erroneously released prisoners. See id. at 744. It also held that Hawkins’s asserted liberty interest was distinguishable from well-established substantive due process rights. The court stated that it could not formulate objective criteria to determine the nature and scope of Hawkins’s liberty interest and that his interest was based on the simple “reliance ar expectation inducing conduct of state officials.” Id. at 748, 750,

250. See id. at 747, 750. 251. See supra Part ILc.

252. 198 LI.S. 45 (1905).

253. 60 U.S= (19 How.) 393 (1856.

254. See, e.g., ROBERT H. Baxx, TIE TFaEtPrtrrc oF AMERICA: THE POLITICAi SEucTton oF THE LAw 31-32 (1990) (arguing that modern substantive due process is linked to lochner and I7*red Scott and can produce the same negative results).

255. See Fallon, supra note 98, at 139-40 (noting that recent Supreme Court decisions reflect deference to political branches and an aversion to using substantive due process to strike down legislation).

256. THE FEDERALIST No. 78 (Alexander Hamilton). 257. Id.

258. See supra notes 106-07, 236-38 and accompanying text. 259. See supra notes 106-07. 236-38 and accompanying text.

260. One example of oppressive conduct that would shock the contemporary conscience, but nevertheless be held a valid form of punishment under Gtucksberg’s history/tradition analysis, is public flogging. See Lawrence Lessig, Fidelity in Transition, 71 TEx. L. Rev. 1165, 118? (1993) (suggesting that strict reliance on originalism to define rights would result in the constitutionality of public flogging),

261. See generally, e.g., JOHN HART ELY, DEMOCRACY AND DISTRUST ( 1980) (arguing that courts may protect unenumerated rights to prevent state prejudice of minority interests).

262. See Crump, supra note 99, at 861 (explaining that focus on historically and traditionally respected rights extends constitutional safeguards to groups who are already adequately protected by the political process.

263. See Stunz> .supra note 232; at I.

264. This shift is evidenced in the Sentencing Reform Act of 1984 (SRA), Pub. L. No. 98-473; 98 Stat. 1987 (codified in scattered sections of 18 and 28 U.S.C.). See William J. Powell & Michael ‘f. Cimino, Prosecutorial Discretion Under the Federal Sentencing Guidelines: Is the Fox Guarding the Hen House?, 97 W. Vw. L. REV. 373, 380 (1995) (stating that the goal of rehabilitation was cast aside with the enactment of the SRA).

265. Morrissey v. Brewer, 408 L’.S. 471, 482 (1972) (footnotes omitted).

266. Id. lei. at 484. Although Morrissey dealt with a prisoner who was lawfully paroled, many of the competing interests expressed by the Court are relevant to a situation involving an erroneous release. An unlawful executive decision to release a prisoner contravenes applicable regulations and statutes, but the concerns expressed in Morrisset* are still present.

267. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 997 (1991) (Kennedy, T:, concurring) (deference should be accorded to the purposes and objectives of a legislature’s criminal justice choices).

268. Morrissey, 408 U.S. at 483, 269. Id

270. 442 U.S. 1 ( 1979).

271. See dd, at 7 (rejecting due process challenge to statute that sufficiently provided notice and opportunity to be heard when parole was denied).

272. Id.

273. Washington v. Glucksberg, 521 U.S. 702, 765 (1997) (Souter, J.; concurring (quoting Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting)). Justice Douglas in Morrissey concluded that “[ajrbitrary actions in the revocation of paroles can only impede and impair the rehabilitative aspects of modern penology.'” Morrissey, 408 U.S. at 449 (Douglas, J., dissenting in part).

274. County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998 (citation omitted).

275, Glicksberg, .521 U.S. at 764. Any other result would be peculiar in Light of the criminal justice system’s overwhelming emphasis on the goals of punishment, deterrence, and public safety. These interests are outweighed in the rare situation in which their legitimacy is lacking, and the state and individual’s interest in rehabilitation is exceptionally high.

276. This limited balancing approach is explained Further irt Justice Souter’s concurrence in Glucksberg. Unlike the history/tradition analysis of Gluck-berg, a balancing test enables a court to consider recent historical trends and emerging traditions to recognize minority interests. Justice Souter summarized the analysis in Glucksberg:

IS]uch review is not the identification of extratextual absolutes but scrutiny of a legislative resolution. . of clashing principles . . . each to be weighed within the history of our values as a people. It is the comparison of the relative strengths of opposing claims that informs the judicial task, not a deduction from some first premise . [I]udicial review still has no warrant to substitute One reasonable resolution of the contending positions for another, but authority to supplant the balance already struck between the contenders only when it falls outside the realm of the reasonable.

521 U.S. at 764.

277. The SO-year sentence was not for rape or armed robbery. Hawkins was convicted for selling one-half gram of cocaine. Because he had been convicted of rape and armed robbery when he was a young man, he was considered a habitual felon and received a 50-year sentence for the cocaine charge. See Hatvkuis l. 166 F.3d 267, 269 (.4th Cir. 1999).

278. Id. at 279 (internal quotation marks omitted). 279. fd. at 286 (Phillips, J., dissenting).

280. See id: at 270: Hnwkins ll, 195 P.3d 732, 736 (4th Cir. 1999) (en banc 281. See Saker, supra note 8, at Al .

282. See Hawkins 1, 166 F.3d at 280. Some of the conditions of his parole included a curfew, bi-weekly meetings with his parole officer, and community service. See Saker, supra note 8, at Al.

283. See Hawkins fl, 195 F.3d at 736.

284. See id. The new statute did not apply retroactively to prisoners who were convicted under the old habitual felon statute, which required prisoners to serve 75`7a of their sentence before becoming eligible for parole. See id.

285. See Saker, supra note 8, at Al .

286. Hawkins 1, 166 F.:3d at 279: 287. See Hawkins 11, 195 F.3d at 736.

288. See Thompson v. Missouri Bd. of Parole, 929 F:2d 396, 400-01 (8th CiT. 1991). 289. See supra note 285 and accompanying text.

290. See Saker, supra note 8, at Al.

291. See Morrissey v. BreWer, 408 1**.S. 471, 482-84 (1972) (holding that society in general has `”a stake in whatever may be the chance of restoring (the parolee] to normal and useful life within the law”1.

292. When he was paroled in 1992, Hawkins had already served 11 years of his sentence. Hawkins was reincarcerated in 1994 and has remained in prison since that time. ,See Ham)cins II, 195 F.3d 732, 737-38 (4th Cir 1999) (en banc).

293. See Hawkins 1- 166 F.3d 267, 268-70 (4th Cit. 1999).

294. ,See suPra notes 267-72 and accompanying text.

295. County of Sacramento v. Lewis, 523 U.S. 833, $46 (19?98) (citation omitted).

296, Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 848 (1992) (plurality opinion) (quoting Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, 1., dissenting)); Washington v. Glucksberg, 521 U.S. 702, 765 (1997) (Souter,1., concurring) (same).


* JD., Georgetown University Law Center, 2000; B.A., Gettysburg College, 1995. I would like to thank Professor Silas Wasserstrom and the editors of The Georgetown Law Journal for their helpful suggestions. I would also like to thank Sharon R. Lydon and my family for their support.

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