¶41 (concurring) — I agree with the majority that the governor lawfully canceled Jerry Lain’s parole and that the Indeterminate Sentence Review Board (Board) did not abuse its discretion in extending Lain’s prison term. I write separately to emphasize the limited scope of the protected liberty interest the majority finds under the Fourteenth Amendment to the United States Constitution.
¶42 The threshold question in procedural due process analysis is whether there is a liberty interest at stake sufficient to trigger due process protections. Morrissey v. Brewer, 408 U.S. 471,481-82,92 S. Ct. 2593,33 L. Ed. 2d 484 (1972). Liberty interests may arise from two sources: (1) the due process clause of the Fourteenth Amendment, by reason of guaranties implicit in the word “liberty” and (2) state laws that create an expectation or interest in life, liberty, or property. In re Pers. Restraint of Cashaw, 123 Wn.2d 138, 144, 866 P.2d 8 (1994) (citing Hewitt v. Helms, 459 U.S. 460, 466,103 S. Ct. 864,74 L. Ed. 2d 675 (1983), overruled in part on other grounds by Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995)). I concur with the majority that a liberty interest arises from the Fourteenth Amendment and thus I do not go further and discuss whether Washington State law creates a liberty interest.
¶43 The Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property, without *27due process of law.” For lawfully incarcerated prisoners, only the “most basic liberty interests” are protected by the Fourteenth Amendment. Hewitt, 459 U.S. at 467; see also Neil P. Cohen, The Law of Probation and Parole § 15:7, at 15-11 (2d ed. 1999 & Supp. 2008) (Prisoners “retain those constitutional rights not inconsistent with their status or the legitimate needs of a penal system.”). If any substantial deprivation triggered the due process clause, prison officials would be hindered in their ability to take the discretionary actions needed to run the facilities. Olim v. Wakinekona, 461 U.S. 238, 245,103 S. Ct. 1741,1745, 75 L. Ed. 2d 813 (1983) (citing Meachum v. Fano, 427 U.S. 215, 225,96 S. Ct. 2532,49 L. Ed. 2d 451 (1976)). Thus, courts are generally reluctant to find prisoner liberty interests under the Fourteenth Amendment. See Cohen, supra, § 15:2, at 15-5 (in the absence of a “statutorily created liberty interest,” it is “quite difficult” for a prisoner to establish a liberty interest). Nonetheless, prisoners retain “a residuum of liberty,” and Lain’s right to parole after all the necessary prerequisites have been completed other than actual release is a situation where an inmate’s right is constitutionally protected. Olim, 461 U.S. at 245 (citing Wolff v. McDonnell, 418 U.S. 539,555-56,94 S. Ct. 2963,41 L. Ed. 2d 935 (1974)).
¶44 It is helpful to view a prisoner’s due process rights along a spectrum. On one end of the spectrum is a lawfully incarcerated prisoner. A prisoner has no inherent right to parole or to any conditional release “before the expiration of a valid sentence.” Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979). It follows that when a prisoner appears before a parole board, the prisoner does not have a liberty interest requiring the parole board to provide due process protections in deciding whether to grant or deny parole. See id. at 11 (noting that the possibility of parole, without a legitimate expectation of parole created by statute, gives an inmate “no more than a mere hope”).
*28¶45 On the other end of the spectrum is a prisoner who has been actually released from prison on parole. Because a parolee enjoys a sense of freedom, a parolee has a conditional liberty interest. See Morrissey, 408 U.S. at 482 (A parolee’s conditional liberty interest arises because the parolee has the right to work, associate with friends and family, and “to form the other enduring attachments of normal life.”). A probationer also has a conditional liberty interest by virtue of the fact that he remains outside of prison. Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). After a prisoner has been released on parole, the State must provide due process to a parolee before it can revoke parole. See Morrissey, 408 U.S. at 485-89 (parolee entitled to a preliminary and a final revocation hearing). Similarly, if a convicted person remains outside of prison on probation, the State must provide due process to the probationer before it can revoke probation. Gagnon, 411 U.S. at 782 (probationer entitled to same due process protections as a parolee).
¶46 On the liberty interest spectrum, the parole authority’s decision to rescind an order setting a prisoner’s parole release date “lies somewhere between” the decision to grant parole (Greenholtz) and the decision to revoke parole or probation (Morrissey/Gagnon). Cohen, supra, § 15:11, at 15-15 to 15-16 (“[Pjetitioners have already received a favorable decision (thus distinguishing them from parole or probation applicants), but the conditional liberty represented by actual release on probation or parole has yet to occur.”).
¶47 The relevant question for when due process rights attach is if the inmate has an entitlement to the benefit or merely an expectation or hope. Greenholtz, 442 U.S. at 7. An expectation of a benefit or even a mutually explicit understanding will not create a constitutionally protected liberty interest for a prisoner, no matter how grievous of a loss that reality is for him or her. Jago v. Van Curen, 454 U.S. 14,17, *29102 S. Ct. 31, 70 L. Ed. 2d 13 (1981).1 There is a substantial difference between being denied a conditional liberty one desires and being deprived of a liberty one has. Greenholtz, 442 U.S. at 9. There must be a concrete benefit the prisoner is entitled to that is not subject to any prerequisites before due process protections will be required.2 Id. at 9, 11; In re Parole of Hill, 298 Mich. App. 404, 827 N.W.2d 407, 417 *30(2012) (no protected liberty interest after parole date was set because circuit court review is a component of the state parole process).
¶48 Turning to the facts of this case, Lain’s parole was not subject to any prerequisites. He had an approved parole rehabilitation plan and a fixed release date from the Board. Under Washington law, while the governor has the power to cancel or revoke parole, the governor’s acceptance of parole is not a precondition to release.* 3 RCW 9.95.160. Accordingly, there were no prerequisites to Lain’s parole. This was not merely a hope; he had an expectation of release, and this expectation is deserving of due process protection. The extent of this protection is still minimal, however, as we have just begun the move from one end of the spectrum to the other. Despite being entitled to due process protection, Lain was not entitled to an additional full hearing before the governor. I concur in the majority’s assessment of the extent of due process protection that is required in this situation. An appellate-like review by the governor is sufficient due process protection in this situation. Lain had a protected liberty interest under the Fourteenth Amendment, and a review by the governor of the record is sufficient to protect this interest.
¶49 I concur with the majority’s holding that Lain had a protected liberty interest under the Fourteenth Amendment after the Board set a parole release date and there were no more prerequisites to his parole. This created an entitlement to parole, subject to due process protections. However, the governor’s appellate-like review of the record was sufficient to afford these protections; a full hearing before the governor was not necessary. Because I conclude *31that Lain was provided with adequate due process protections, I would dismiss Lain’s personal restraint petition.
Hunt, J. Pro Tem., concurs with Fairhurst, J.Jago and subsequent cases citing it present the fine distinction between when a benefit is an entitlement and when it is merely a hope. In Jago, the United States Supreme Court reversed the Sixth Circuit Court of Appeals, holding that “the Court of Appeals erred in finding a constitutionally protected liberty interest by reliance upon . . . ‘mutually explicit understandings.’ ” 454 U.S. at 17 (quoting Perry v. Sindermann, 408 U.S. 593, 601, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972)). The Court concluded that because Van Curen had no protected liberty interest under Ohio law, he was not entitled to a hearing prior to the denial of his parole. Id. at 21.
Subsequent cases have interpreted Jago to categorically deny a due process right to parole. Evans v. Sec’y Pa. Dep’t ofCorr., 645 F.3d 650,664-65 (3d Cir. 2011) (Jago holds there is “no protected liberty interest in anticipated parole”); Patuxent Inst. Bd. of Review v. Hancock, 329 Md. 556, 585-86, 620 A.2d 917 (1993) (Jago holds there is no entitlement to a parole hearing unless it is statutorily protected). However, these cases can be distinguished factually to consistently support the notion that the relevant question is whether the inmate is entitled to the right or just hopes for it. Evans, 645 F.3d at 665 (court held there was no liberty interest in estimated parole date); Hancock, 620 A.2d at 931-32 (court held there was a liberty interest in a final grant of parole).
This court’s decision in Monohan v. Burdman, 84 Wn.2d 922, 530 P.2d 334 (1975), is consistent with this framework. In Monohan, Phillip Monohan was granted a tentative release date and was granted a furlough in order to “undertake development of a parole plan.” id. at 923. While on furlough, Monohan was arrested. Id. Although the charges were eventually dropped, the parole board canceled Monohan’s tentative release date and extended his minimum term for nine months. Id. at 924. This court concluded that the cancellation of a tentative parole date was a procedure to which the prisoner was entitled to minimal procedural safeguards because once a tentative release date is given it establishes a “ ‘potential conditional liberty ” that must be protected. Id. at 927-28.
This language is seemingly much broader than the limited due process protection I advocate, but it is not. First, the court considered the “tentative” date as final parole approval with the date subject to change depending only on when approval of the parole rehabilitation plan occurs. Id. There was an expectation that the only factor that could affect the parole date was acceptance of the plan; it was never contemplated that an infraction would lead to the extension of his minimum term. Id. This is consistent with the idea that once an order is final, release is no longer subject to any prerequisites and there is an expectation of release. Second, this hearing arose from a furlough violation, which the court likened to a parole revocation hearing instead of a hearing regarding whether to grant parole. Id. As discussed above, greater due process protections are afforded to an inmate during parole revocation hearings. Thus, the court held that a *30hearing regarding a furlough violation is more protected than an initial parole decision, which is also consistent with our case law.
The Board is given wide discretion to handle parole decisions in Washington. The governor’s power under RCW 9.95.160 is a rarely used power of intervention into the Board’s discretion.