Travis Bomgaars, Kyle Cross, Anthony Gomez, James Hall, Raymond Labelle, Shane Millett, and Kelly Sand v. State of Iowa

IN THE SUPREME COURT OF IOWA

No. 20–0375

Submitted September 16, 2021—Filed November 23, 2021

TRAVIS BOMGAARS, KYLE CROSS,
ANTHONY GOMEZ, JAMES HALL,
RAYMOND LABELLE, SHANE MILLETT,
and KELLY SAND,

Appellants,

vs.

STATE OF IOWA,

Appellee.

Appeal from the Iowa District Court for Jasper County, Brad McCall,

Judge.

Inmates appeal the dismissal of their consolidated applications for

postconviction relief challenging the scheduling of sex offender treatment.

AFFIRMED.

Mansfield, J., delivered the opinion of the court, in which Christensen,

C.J., and Appel, Waterman, McDonald, and Oxley, JJ., joined. Appel, J., filed a

concurrence. McDermott, J., filed an opinion concurring in part and dissenting

in part.
 2

Philip B. Mears (argued) of Mears Law Office, Iowa City, for appellants.

Thomas J. Miller, Attorney General, and Nicholas E. Siefert (argued),

Assistant Attorney General, for appellee.
 3

MANSFIELD, Justice.

Several male inmates serving time for sex-related offenses are challenging

what they believe to be a catch-22 in Iowa’s prison system. To be considered

meaningfully for parole, these inmates need to have completed the sex offender

treatment program (SOTP). But because of limits on resources, this treatment

has tended to be available only as the inmate nears his tentative discharge date.

The inmates contend, among other things, that this circumstance violates their

constitutional right to due process.

In considering this case, we emphasize that our job is not to approve or

disapprove of how the State allocates resources in the prison system. We simply

conclude that no constitutional violation has been established. The record shows

that the Iowa Department of Corrections (DOC) has not postponed treatment in

order to delay parole. The problem is simply one of numbers: there are more male

sex offenders in Iowa’s prison system than SOTP spots available. The DOC has

been actively addressing the need for sex offender treatment by increasing the

number of classes and counselors. The existing waiting list, which prioritizes

admission to treatment based on tentative discharge date, is a reasonable way

to decide when an offender gets admitted to treatment. Accordingly, we affirm

the judgment of the district court denying the petitioners’ applications for

postconviction relief.

I. Facts and Procedural History.

A. The Petitioners. This case involves seven male offenders currently

incarcerated for sex-related crimes at the Newton Correctional Facility (NCF).
 4

Their sentences range from ten years to forty years. None of the sentences carry

mandatory minimums. At the time of the September 2019 hearing in this case,

the offenders had served between eighteen months and nine years on their

respective prison sentences. Their tentative discharge dates varied from April 25,

2022, to September 16, 2030.

These offenders score at “low” or “low-moderate” risk of reoffending. Most

of them have completed significant programming in prison. None, however, have

completed SOTP. For this reason, and in some cases for other reasons having to

do with the seriousness of the underlying offenses and the length of time served,

the DOC has not yet recommended any of the petitioners for parole.

At the time of hearing, all seven offenders were on the waiting list to receive

“track one” SOTP. That waiting list had 419 individuals on it. The petitioners

occupied positions 209 (Kyle Cross), 326 (Anthony Gomez), 341 (Raymond

LaBelle), 368 (James Hall), 377 (Kelly Sand), 382 (Shane Millett), and 392 (Travis

Bomgaars). While this case was on appeal, Cross was moved off the waiting list

and began SOTP.1

B. How SOTP Is Scheduled. The DOC uses the “Good Lives” curriculum

for male offenders who undergo SOTP. The program is administered on four

separate tracks: track one for offenders with a low to low-moderate risk of

reoffending, track two for offenders with an elevated risk of reoffending, track

three for sex offenders with special needs, and track four for Spanish speakers.

1Both sides agreed this information could be provided to the court.
 5

As noted, all the offenders involved in this case were on the waiting list for track

one, which had 419 persons. As of September 2019, the other three waiting lists

had 191, 126, and 27 persons respectively.

Except for a small program for inmates with special medical needs at the

Iowa Medical and Classification Center in Oakdale, all SOTP for men takes place

at NCF. Treatment takes approximately three to four months, with track two

treatment lasting somewhat longer than track one. At the time of hearing in this

case, there were potential slots for 175 individuals to undergo SOTP at NCF at

any given time. However, in the correctional system as a whole, some 1,600 male

inmates needed to complete SOTP. Thus, as an inmate in this group of 1,600 got

closer to his tentative discharge date, he would typically be transferred to NCF

and put on one of the waiting lists.

At the time of the hearing, nine counselors were conducting SOTP at NCF.

Two more counselors were in training and two were expected to be hired to bring

the total to thirteen. It was expected that these additional counselors would

increase the capacity of the DOC to conduct SOTP classes. Yet once these

additional counselors were on board, the existing physical limits of NCF would

be reached. The plan was for the two newest counselors to work evenings to

maximize utilization of the available classroom space at NCF.

Typically, about two-thirds of participants complete SOTP successfully.

Those who are removed from the program go through an administrative hearing

that results in a negative earned time adjustment and a new tentative discharge

date. They then return to the waiting list. In fiscal year 2019, 264 persons
 6

successfully completed SOTP; the DOC anticipated that number would be higher

in fiscal year 2020 because of the aforementioned increased staffing.

An offender’s position on the waiting list is based on his tentative discharge

date, with some adjustments. First, an offender without a special sentence of

parole, such as an offender who was not technically convicted of a sex offense,

receives a three-year advancement on the waiting list. Second, special

arrangements have been made for offenders who had served twenty years or

longer but had not received an opportunity for SOTP.

At the time of hearing, most track one offenders were starting SOTP at NCF

about thirteen months before their tentative discharge date according to the

petitioners’ brief. Once the two additional counselors were on board, the DOC

anticipated that it would be able to schedule SOTP for track one offenders about

eighteen months before tentative discharge date.2

C. Parole Review. The Iowa Board of Parole (the Board) completes about

13,000 parole reviews per year. The DOC makes recommendations regarding

parole. The recommendations are not binding, and the Board has the discretion

to grant or deny parole regardless of the DOC’s recommendation. However, the

Board has followed DOC recommendations as to whether an inmate needs SOTP

before release. Therefore, when the DOC has recommended SOTP prior to

release, the Board will not grant parole until that treatment has occurred. The

2Atthe September 2019 hearing, the DOC witness agreed that SOTP can be more effective
when it occurs shortly before the inmate is released and therefore is “fresh in mind.” However,
he denied that the DOC postpones treatment for that reason: “[N]obody is held, nobody is
delayed.”
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Board does not order the DOC to provide treatment or interfere with DOC’s

scheduling of treatment.

The petitioners have received annual parole reviews. At each review so far,

the DOC has not recommended release, and the Board has not granted release.

In the most recent reviews, the Board has generally provided at least two reasons

for not granting release: “DR7,” a code for “seriousness of the crime and criminal

history”; and “DR14,” a code indicating that the inmate still needs to

“[p]articipate in institutional programs,” i.e., SOTP. For petitioner Cross, the

Board identified DR14, but not DR7, as the reason for his continued

incarceration.

D. This Litigation. Between May and July 2019, each of the petitioners

filed for postconviction relief in Jasper County, where NCF is located. Each

petition alleged that the State was wrongfully denying a liberty interest in parole.

In particular, the petitions alleged that the DOC had created a “silent mandatory

minimum sentence” by not making SOTP available until a male inmate was

nearing his tentative discharge date, knowing full well that the Board would not

consider an inmate for parole until treatment is complete. Some of the petitions

also alleged unlawful sex discrimination between male and female sex offenders.

The State answered each petition without objecting to venue. On June 22,

the district court entered an order consolidating the five cases that were then on

file and appointing counsel for the petitioners. On July 1, the State moved to

reconsider the order appointing counsel. The State argued that appointed

counsel was not available under Iowa Code section 822.2(1)(e), the provision
 8

under which the petitioners were asserting their claims. On July 23, the court

set an evidentiary hearing on all seven petitioners’ claims for September 18 at

NCF.

Approximately a month later, on August 23, the State moved for change of

venue, arguing that Iowa Code section 822.2(1)(e) claims had to be brought in

the county where the defendant had been convicted or sentenced. The petitioners

responded that objections to venue had been waived. In a September 9 ruling,

the district court agreed with the petitioners and denied the motion.

A full-day evidentiary hearing took place on September 18. Each of the

seven petitioners testified. In addition, testimony was received from Andrea

Muelhaupt, the Board’s parole liaison officer, and Sean Crawford, the DOC’s

associate warden of treatment in charge of SOTP.

On January 30, 2020, the district court entered a ruling denying relief.

The court concluded as follows:

While 2019 was the first year the prison was able to graduate
more inmates from SOTP than the number of new committed
inmates required to participate in SOTP, at current and projected
staffing levels, it will certainly not be the last. Assuming there are a
total of 1,600 inmates now classified for SOTP and 260 new SOTP
inmate admissions annually, and also assuming the prison is able
to process 600 inmates through SOTP each year, the prison will be
able to provide SOTP for every inmate now on the waiting list, as well
as every new admission, in less than four years. While it is possible
the [DOC] has failed in the past to reasonably provide SOTP for
inmates classified for the program, it is no longer failing in that
responsibility.

The Court specifically finds, based upon the evidence
presented, the [DOC] is not currently unreasonably withholding
SOTP from male inmates. Furthermore, the Court specifically finds
the [DOC] method of ranking inmates on the SOTP waiting lists,
utilizing the TDD [tentative discharge date], is the most logical and
 9

rational method of ensuring inmates will complete SOTP prior to
being released from prison. As the State notes, “[i]nsofar as
‘reasonable’ means fair, logical, sensible, or of sound judgment, it is
hard to conceive of a more reasonable practice than that currently
employed by the [DOC]. In fact, the practice of sequencing placement
of inmates into SOTP based upon the impartial order of their
discharge dates may be, literally, the most reasonable practice
possible.”

Thus, the court found it significant that the DOC was using a “logical and

rational method” for allocating SOTP placements as they became available while

also reducing the backlog of inmates awaiting SOTP. As the court put it, “The

issue now before the Court . . . is not whether the [DOC] has reasonably made

SOTP available to male inmates in the past; the issue before the Court is what

the State is currently doing to see that the male prison population receives

adequate access to required SOTP.”

The court also rejected the petitioners’ gender discrimination claim. It

found that men and women were not similarly situated as to SOTP because

“there are literally hundreds of male inmates in need of SOTP” and only a

“handful of women inmates in need of SOTP,” thus allowing women to be placed

in SOTP soon after their arrival in prison.

Finally, the district court granted the State’s timely motion for

reconsideration and found that the petitioners were not entitled to appointed

counsel. The court went on to say,

Attorney Mears was aware at the time of his appointments the Court
might reach this conclusion and agreed to accept the appointments
with that understanding. Attorney Mears was an outstanding and
zealous advocate for his clients in this case. His involvement in the
case greatly facilitated the presentation of the facts, as well as this
Court’s consideration of the law.
 10

The petitioners filed a motion to amend and enlarge the court’s ruling. This

motion was denied, and a timely appeal followed. We retained the appeal.

II. Standard of Review.

Postconviction relief proceedings are normally reviewed for errors at law.

Doss v. State, 961 N.W.2d 701, 709 (Iowa 2021). However, “[o]ur review is de

novo ‘[w]hen the basis for relief implicates a violation of a constitutional

dimension.’ ” Id. (second alteration in original) (quoting Moon v. State,

911 N.W.2d 137, 142 (Iowa 2018)).

III. Legal Analysis.

On appeal, the petitioners assert they have a liberty interest in parole,

which the DOC has violated by unreasonably withholding SOTP from them. In

addition, the petitioners argue that the delay in administering SOTP and the

impact of that delay on their sentences have abridged separation of powers and

a related but distinct concept they refer to as “separation of function.” Lastly, the

petitioners argue the district court erred in denying their request for appointed

counsel at state expense.3

As a preliminary matter, the State contends that six of the seven inmates

do not have ripe cases because they have not established that lack of SOTP is

the only reason they have not yet been paroled. See State v. Tripp, 776 N.W.2d

855, 859 (Iowa 2010). These six inmates have received, in addition to a DR14

denial code (“need to complete recommended interventions”), a DR7 denial code

3The petitioners do not pursue their gender discrimination claim on appeal.
 11

(“The seriousness of your crime or your criminal history indicates more time is

needed before the Board will be convinced a release would be in the best interest

of you or society.”).

We have determined we should proceed to the merits. The State does not

dispute the ripeness of one inmate’s claims. Moreover, this case, as presented to

us, is not inmate-specific. Rather, it challenges the overall policy by which DOC

schedules SOTP in the prison system. The State does not dispute that DOC’s

policy delays parole in at least some instances. Yet in reviewing that policy, we

should be mindful that the record does not show it delays parole for every sex

offender, even excluding those offenders who fail to complete SOTP.

A. Do the Petitioners Have a Liberty Interest in Parole? Iowa Code

section 906.4(1) (2019) provides,

A parole or work release shall be ordered only for the best interest
of society and the offender, not as an award of clemency. The board
shall release on parole or work release any person whom it has the
power to so release, when in its opinion there is reasonable
probability that the person can be released without detriment to the
community or to the person. A person’s release is not a detriment to
the community or the person if the person is able and willing to fulfill
the obligations of a law-abiding citizen, in the board’s determination.

Based on the mandatory wording of the statute, i.e., “shall release,” the

petitioners contend they have a constitutionally protected liberty interest in

parole.

In Board of Pardons v. Allen, the United States Supreme Court considered

a Montana law that provided as follows:

(1) Subject to the following restrictions, the board shall release on
parole . . . any person confined in the Montana state prison or the
women’s correction center . . . when in its opinion there is
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reasonable probability that the prisoner can be released without
detriment to the prisoner or to the community[.]

....

(2) A parole shall be ordered only for the best interests of
society and not as an award of clemency or a reduction of sentence
or pardon. A prisoner shall be placed on parole only when the board
believes that he is able and willing to fulfill the obligations of a law-
abiding citizen.

482 U.S. 369, 376–77 (1987) (omissions and alteration in original) (quoting Mont.

Code Ann. § 46-23-201 (1985)). The Court found that the Montana statute

created a liberty interest protected by the Due Process Clause of the Fourteenth

Amendment because it used mandatory language to establish a presumption of

release when certain findings were made. Id. at 377–78, 381.

Iowa’s parole statute is similar to Montana’s. We made this observation a

few years ago in Belk v. State, 905 N.W.2d 185, 190 (Iowa 2017) (“Allen is an

important case because the language of the applicable Montana statute in that

case resembles that of the relevant Iowa statute.”). In Belk we didn’t actually

conclude that Iowa Code section 906.4(1) establishes a liberty interest in parole,

but we seemingly laid the groundwork for that conclusion. See id.

(“From Greenholtz [v. Inmates of the Nebraska Penal and Corrections Complex,

442 U.S. 1 (1979),] and Allen, a court can conclude if the statute mandates that

a parole board must release an inmate if the inmate meets certain statutorily

created criteria, then a protected liberty interest in parole exists.”).

In Belk, an inmate alleged “it was the policy of [DOC] to delay his access

to SOTP until he was close to his tentative discharge date.” Id. at 187. The inmate

“further contended he is currently eligible for parole but has no meaningful
 13

chance for parole unless the [DOC] recommends parole without the SOTP

prerequisite.” Id. The district court denied the inmate’s postconviction relief

application without reaching the merits, and we reversed. Id. at 188, 192. The

specific holding of Belk was that “an inmate may proceed under Iowa Code

section 822.2(1)(e) when alleging an unconstitutional denial of his or her liberty

interest based on the [DOC’s] failure to offer SOTP when SOTP is a necessary

prerequisite to parole.” Id. at 191.

The opinion concurring in part and dissenting in part argues that Allen is

no longer good law and has been overruled sub silentio by Sandin v. Conner,

515 U.S. 472 (1995). That is a misreading of precedent. Sandin actually

reaffirmed Allen, stating, “[W]e recognize that States may under certain

circumstances create liberty interests which are protected by the Due Process

Clause. See also Board of Pardons v. Allen, 482 U.S. 369, 107 S. Ct. 2415,

96 L. Ed. 2d 303 (1987).” Id. at 483–84.

Sandin was a case about prison discipline, and the Supreme Court

criticized Hewitt v. Helms, 459 U.S. 460 (1983), an earlier prison discipline case,

for recognizing a liberty interest in prison conditions based on prison regulations.

Sandin, 515 U.S. at 481–83. Following Sandin, in Swarthout v. Cooke, 562 U.S.

216, 216 (2011) (per curiam), the Supreme Court once again addressed parole—

not prison discipline. The Swarthout opinion was per curiam and unanimous.

Id. The Supreme Court pointed to the United States Court of Appeals for the

Ninth Circuit’s determination that “California law creates a liberty interest in

parole.” Id. at 219. It characterized that determination as “a reasonable
 14

application of our cases. See Board of Pardons v. Allen, 482 U.S. 369, 373–381,

107 S. Ct. 2415, 96 L. Ed. 2d 303 (1987); Greenholtz v. Inmates of Neb. Penal

and Correctional Complex, 442 U.S. 1, 12, 99 S. Ct. 2100, 60 L. Ed. 2d 668

(1979).” Id. at 219–20. Thus, Allen clearly remains the law as to when a parole

statute creates a liberty interest.4

In light of Iowa Code section 906.4(1), Allen, Sandin, Swarthout, and Belk,

we conclude that the petitioners have a liberty interest in parole protected by the

Due Process Clause of the Fourteenth Amendment and article I, section 9 of the

4The opinion concurring in part and dissenting in part considers the Swarthout language
“more equivocal.” However, it is logical to conclude the Supreme Court used the phrase
“reasonable application” because it is the standard dictated by federal habeas law:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim . . . resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States . . . .
28 U.S.C. § 2254(d)(1) (emphasis added).
Sandin also implicitly recognized that its core holding would not apply if the prison
officials’ action “will inevitably affect the duration of [the prisoner’s] sentence”—precisely the
situation that is alleged in this case. 515 U.S. at 487.
The opinion concurring in part and dissenting in part also relies on Wilkinson v. Austin,
a case decided between Sandin and Swarthout. See 545 U.S. 209 (2005). Wilkinson found that
Ohio prisoners had a liberty interest in not being placed in Ohio’s “Supermax” prison as opposed
to another less restrictive prison setting. Id. at 224. Wilkinson does not even mention Allen, let
alone undermine its reasoning.
Furthermore, the Supreme Court has made clear that other courts are not free to
conclude that applicable Supreme Court precedent has been overruled “by implication”:
We do not acknowledge, and we do not hold, that other courts should
conclude our more recent cases have, by implication, overruled an earlier
precedent. We reaffirm that “[i]f a precedent of this Court has direct application
in a case, yet appears to rest on reasons rejected in some other line of decisions,
the Court of Appeals should follow the case which directly controls, leaving to this
Court the prerogative of overruling its own decisions.”
Agostini v. Felton, 521 U.S. 203, 237 (1997) (alteration in original) (quoting Rodriguez de Quijas
v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)). This court is not at liberty to
anticipatorily overrule Supreme Court precedent any more than lower courts in Iowa are at
liberty to anticipatorily overrule this court’s precedent.
 15

Iowa Constitution. The petitioners are correct that the Iowa parole statute uses

mandatory language. See Iowa Code § 4.1(30)(a) (“The word ‘shall’ imposes a

duty.”); State v. Roby, 897 N.W.2d 127, 158 (Iowa 2017) (Zager, J., dissenting)

(“[T]he board is obligated to release an individual as soon as the individual is

rehabilitated.”).5

B. Has That Liberty Interest Been Violated? The next question is

whether DOC has unconstitutionally violated that liberty interest by denying

SOTP to the petitioners.

The United States Supreme Court has held that even when state law

creates a liberty interest in parole, the Due Process Clause of the Fourteenth

Amendment requires only “minimal” procedures, including an opportunity to be

heard and a statement of reasons why parole was denied. See Swarthout,

562 U.S. at 220; see also Belk, 905 N.W.2d at 189 n. 1 (“The due process

protections afforded for an inmate’s liberty interest in parole [are] minimal.”). The

Supreme Court has also held that prison discipline does not trigger the Due

Process Clause unless it involves an “atypical, significant deprivation” or will

5It is unclear whether the petitioners are relying on the United States Constitution, the

Iowa Constitution, or both, for their due process arguments. Below they argued,
Any constitutional claim for due process . . . is submitted both based on the United
States Constitution and the comparable provisions found in the Iowa
Constitution. To the extent that the United States Constitution does not reach the
claimed behavior of the Department of Corrections, the Court should still look at
the Iowa Constitution and its comparable provisions to see if they provide greater
protections.
No such statement appears in the appellate briefing, which is nonspecific about the
textual source of petitioners’ claim. The briefing does, however, discuss caselaw applying both
federal and state constitutional provisions. See, e.g., Bonilla v. Iowa Bd. of Parole, 930 N.W.2d
751, 767 (Iowa 2019). Accordingly, we will apply the federal framework while reserving the right
to apply it in a fashion different from federal caselaw. See State v. Lilly, 930 N.W.2d 293, 301
(Iowa 2019). The district court followed the same approach below.
 16

“inevitably affect the duration of [the inmate’s] sentence.” Sandin, 515 U.S. at

486–87.

This case does not involve procedural due process. The procedural

standards for the grant or denial of parole are set forth by statute, rule, and

Board practice. See Iowa Code §§ 906.3, .5; Iowa Admin. Code rs. 205—8.1–.16.

For example, the Board normally considers only information that has been

reviewed by the inmate. Iowa Admin. Code r. 205—8.11. The inmate has the

opportunity to respond to the information. Id. r. 205—8.11(2). The inmate is

notified when the inmate is to be interviewed and has “ample opportunity to

express views and present materials.” Id. rs. 205—8.8, .12. The inmate receives

notice of the parole decision. Id. r. 8.16. The petitioners do not challenge those

standards. The petitioners claim, rather, that they have a substantive right to

SOTP earlier than it is currently provided by the DOC.

As we discuss below, we have concluded that we need not decide today

whether the Due Process Clause affords an Iowa inmate any substantive right to

receive SOTP at a particular time. Regardless, we find that DOC’s current

schedule for delivering SOTP is reasonable under the circumstances and meets

federal and state due process requirements.

1. Caselaw from other jurisdictions. As a general proposition, prisoners do

not have a constitutional right to rehabilitative services. See, e.g., Sherratt v.

Utah Dep’t of Corr., 545 F. App’x 744, 748 (10th Cir. 2013) (“[T]he option to

participate in a rehabilitative program like SOTP is a privilege, not a right.”);

Abraham v. Del. Dep’t of Corr., 331 F. App’x 929, 931 (3d Cir. 2009) (“Prisoners
 17

have no constitutional right to drug treatment or other rehabilitation.”); Brown

v. Chandler, 111 F. App’x 972, 976 (10th Cir. 2004) (“Brown does not have a

vested right to participate in the SOTP as a matter of federal [constitutional]

law.”); see also Moody v. Daggett, 429 U.S. 78, 88 n. 9 (1976) (explaining that

with regard to eligibility for rehabilitative programs in the federal prison system,

Congress has given federal prison officials full discretion and “petitioner has no

legitimate statutory or constitutional entitlement sufficient to invoke due

process”).

Although the Supreme Court has not addressed when rehabilitative

programs must be provided to a prisoner with a liberty interest in parole in order

to satisfy substantive due process, it is logical to conclude from cases like

Swarthout that states have significant leeway. Recently, in People ex rel. Johnson

v. Superintendent, New York’s highest court indicated that even “when a State

adopts a sentencing scheme which creates a legitimate expectation of early

release from prison,” any judicial review of prison officials’ conduct for

substantive due process purposes is a limited, rational-basis review. 163 N.E.3d

1041, 1050–51 (N.Y. 2020) (quoting Russo v. N.Y. State Bd. of Parole, 405 N.E.2d

225, 227 (N.Y. 1980)). Specifically, the court stated, “The applicable standard of

review of Johnson’s due process claim is, then, the rational basis test, not strict

scrutiny.”

A number of courts have recognized that prison officials can limit

admission to SOTP based on their limited resources. See, e.g., Wakefield v.

Fischer, 968 N.Y.S.2d 255, 256 (N.Y. App. Div. 2013); Sullivan v. S.C. Dep’t of
 18

Corr., 586 S.E.2d 124, 127 (S.C. 2003); State v. Howard, 539 A.2d 1203,

1212–13 (N.J. 1988); Eldridge v. Oliver, No. 16–CV–00690–MSK,

2017 WL 2812824, at *7 (D. Colo. June 29, 2017); Watkins v. Hardison,

No. 36859, 2010 WL 9589130, at *6 (Idaho Ct. App. July 14, 2010); Ramos v.

N.H. Dep’t of Corr., No. 15–cv–261–JD, 2015 WL 6554564, at *2 (D.N.H. Oct. 29,

2015).

In Wakefield v. Fischer, a New York intermediate appellate court held that

the decision to delay an inmate’s participation in SOTP was not arbitrary where,

given the limited resources available, the state had developed guidelines for

administering SOTP based on an inmate’s release date. 968 N.Y.S.2d at 256. The

petitioner argued that his request to transfer to another facility that offered SOTP

had to be granted to afford him any meaningful opportunity for parole. Id. at

255–56. The court, however, held that guidelines for administering SOTP based

on an inmate’s release date were not arbitrary or capricious. Id. at 256. The court

explained,

[New York’s department of corrections] has developed guidelines for
administering sex offender treatment programs throughout the
state. The guidelines recognize the need to allocate limited resources
and provide that inmates shall be placed in sex offender treatment
programs “as they get closer to their release date.” The guidelines
provide that moderate to high risk participants, such as petitioner,
are admitted to such programs 36 months prior to their conditional
release date.

Determining when an inmate can most benefit from
participation in SOCTP given the limited therapeutic resources
available in the prison setting is the type of matter that falls squarely
within [the New York department of corrections’] discretionary
authority.

Id.
 19

In a similar vein, the United States District Court for the District of

Colorado determined a prison’s decision to deny parole to an inmate who had

not had the opportunity to complete SOTP required by his parole guidelines was

not arbitrary or capricious. See Eldridge, 2017 WL 2812824, at *6. The inmate

had no chance to participate in SOTP because it was wholly unavailable at the

prison. Id. The inmate claimed that the Commission’s denial of his parole was

arbitrary and capricious because it was based on his failure to complete SOTP

to which he did not have access. Id. at *7. The court ruled that this argument

lacked merit: “[T]he BOP is not obligated to prioritize his facility designation to

ensure such availability, and the Commission may reasonably consider the lack

of sex offender treatment in its decision to deny parole.” Id. Further, the court

emphasized the importance of SOTP completion and its relatedness to an

inmate’s safe release to the community:

The fact that a sex offender treatment program was unavailable at [the
facility] does not preclude the Parole Commission from taking into
consideration the fact that Petitioner had not completed such a program.
The Parole Commission has neither the authority nor the obligation to
assure that programs designed to improve the prospect of successful
rehabilitation, and consequently safeguard the community, are provided
by corrections authorities. It is the Parole Commission’s responsibility to
assess the risk posed by a parole applicant, and completion of an
appropriate treatment program is rationally related to the assessment of
that risk, regardless of the availability of appropriate programming where
the inmate is housed.

Id. (quoting Turnage v. Bledsoe, No. 3:08–CV–1662, 2010 WL 3632699, at *7

(M.D. Penn. Sept. 9, 2010)).

Some of these decisions have specifically considered—and rejected—due

process arguments. In Watkins v. Hardison, the Idaho Court of Appeals rejected
 20

a prisoner’s argument that he had “a right to sex offender rehabilitation at his

request such that delay in admitting him to such rehabilitation implicates a due

process right.” Watkins, 2010 WL 9589130, at *3. The prisoner had been told

that his “lack of any sex offender programming” was one reason for denial of his

parole. Id. at *1. When the prisoner attempted to enroll in SOTP, he was placed

on a waiting list. Id. The court held that an inmate placed on a waiting list

because he is considered “low priority” due to his release date did not suffer an

invasion of his liberty interest. Id. at *4. Rather, the waiting list indicated that

the inmate would eventually receive SOTP when the resources allowed. Id. It

should be noted, though, that Watkins “d[id] not have a liberty interest in being

granted parole” under Idaho law. Id. at *3.

In another case, the South Carolina Supreme Court considered whether

delay of SOTP violated a prisoner’s liberty interest in parole. Sullivan, 586 S.E.2d

at 127. In Sullivan v. South Carolina Department of Corrections, the prisoner filed

an inmate grievance form after he was denied admission to the second phase of

his SOTP based on the unavailability of bed space. Id. at 125. Given that the

prison facility had fewer beds than inmates who needed SOTP, the prisoner was

unable to access the program until it was his turn to receive a bed. Id. The court

upheld the denial of admission, stating that although there is a liberty interest

in rehabilitation, it is limited to freedom from restraint that “imposes atypical

and significant hardship on the inmate in relation to the ordinary incidents of

prison life.” Id. at 126 (emphasis omitted) (quoting Sandin, 515 U.S. at 484). The
 21

court, in other words, treated the denial of SOTP as a “condition of confinement

claim” governed by Sandin. Id. at 127.

And in yet another case, the United States District Court for the District

of New Hampshire found that an inmate’s “loss of an opportunity for conditional

release before his sentence maximum date, because of a delay in admitting him

to the sex offender treatment program, does not implicate the Due Process

Clause.” Ramos, 2015 WL 6554564, at *2. It should be noted, however, that “New

Hampshire has not created a liberty interest in the opportunity for parole.” Id.;

see also Smith v. Heyns, No. 2:12–CV–11373, 2013 WL 1163172, at *10–11 (E.D.

Mich. Jan. 10, 2013) (finding no due process violation in the plaintiff’s

termination from SOTP given that Michigan’s parole statutes “do not give rise to

a protected liberty interest” and “plaintiff has no constitutional right to

participate in any prison rehabilitation programs”); Martin v. Clements, No. 10–

cv–03139–RBJ–CBS, 2011 WL 6968160, at *3–5 (D. Colo. Nov. 28, 2011)

(rejecting an equal protection claim by an inmate who was not prioritized on the

SOTP waiting list due to the type of sentence he was serving).

Finally, in the case perhaps most analogous to ours, the New Jersey

Supreme Court rejected the due process claim of an inmate who had been

ordered to complete SOTP in order to be eligible for parole but could not

immediately transfer to the necessary facility due to severe overcrowding.

See Howard, 539 A.2d at 1206, 1213. This inmate had been placed on a waiting

list until resources allowed him to transfer and begin treatment. Id. at 1206. The

court did not accept the inmate’s argument that “the failure to treat him more
 22

promptly, with its assumed delay on his evaluation for parole, violated his rights

of substantive due process under the fourteenth amendment to the United States

Constitution and article I, paragraph 1 of the New Jersey Constitution.” Id. at

1213. The court observed,

In a more perfect world, defendant’s rehabilitative treatment would have
started earlier. Defendant has never contended, however, that he was
singled out for punitive treatment. He was, in a sense, a victim of the
limited resources available to treat persistent sex offenders. The
Commissioner, for his part, did as well as he could with the limited
resources at Avenel.

Id. at 1212–13.

Outside the SOTP context, courts have found that states may reasonably

allocate resources for rehabilitative programs. See, e.g., State v. Evans, 506 A.2d

695, 697–98 (N.H. 1985) (finding that a prisoner had no right under federal and

New Hampshire law to funding for education that would demonstrate the

progress required for early release). Rehabilitative programming itself, even

programming necessary to fulfill conditions that would permit early release, has

no absolute federal constitutional significance. Id. In State v. Evans, an inmate

housed in New Hampshire argued that he had a constitutionally protected right

to receive the funding necessary for education needed for early release. Id. at

696–97. The court ruled otherwise:

[T]he right to rehabilitation under the Federal Constitution merely
guarantees freedom from confinement in conditions that cause
degeneration. Although rehabilitation is a primary goal of
incarceration, the failure of a prison to provide an affirmative
rehabilitation program, of itself, has no constitutional significance.

....
 23

. . . Absent a violation of an inmate’s rights, the judiciary may not
interfere with the exercise of this discretion by ordering the prison to
provide a particular educational program.

Id. at 697–98 (citations omitted).

The Vermont Supreme Court came to a similar conclusion in Nash v.

Coxon, 583 A.2d 96 (Vt. 1990). In that case, an inmate requested that the state’s

corrections department provide funding for him to complete his paralegal

education. Id. at 96. The court ruled that “[t]here is a considerable difference

between a facility with virtually no educational or rehabilitative program . . . and

one that has a reasonable selection of such programs but declines to expend

funds to add new options requested by specific inmates.” Id. at 98.

The United States Supreme Court has cautioned that absent a violation of

inmates’ rights, there should not be judicial interference with funding and

discretion regarding programming offered. Bell v. Wolfish, 441 U.S. 520, 562

(1979) (“The wide range of ‘judgment calls’ that meet constitutional and statutory

requirements are confided to officials outside of the Judicial Branch of

Government.”).

2. This court’s Bonilla decision. Recently, we discussed whether

rehabilitative services needed for parole must be provided to prisoners who

committed their crimes as juveniles. See Bonilla v. Iowa Bd. of Parole, 930 N.W.2d

751, 786 (Iowa 2019). In Bonilla v. Iowa Board Parole, the petitioner had

committed first-degree kidnapping at the age of sixteen and was sentenced to life

without parole. Id. at 758. His sentence was later modified after Graham v.

Florida, 560 U.S. 48 (2010), to life with parole. Bonilla, 930 N.W.2d at 758. Yet
 24

the petitioner was thereafter denied parole, in part because of his failure to

complete SOTP. Id. at 759–62. Part of the petitioner’s claim for relief was that

denial of access to SOTP deprived him of any meaningful or realistic opportunity

for release. Id. at 785–86. We declined to grant the petitioner relief against the

Board, but we added,

If the state, through the Board, wishes to condition release
upon successful completion of certain programing such as SOTP,
the department of corrections cannot unreasonably withhold such
programming from a juvenile offender. Otherwise, the state could
effectively deprive a juvenile offender of a meaningful opportunity to
show maturity and rehabilitation by establishing release criteria
that the state prevents the juvenile offender from meeting. The
department of corrections does not have a pocket veto over the
release of a juvenile offender through the withholding of services
required by the Board for the release of a juvenile offender.

It may be, however, that the Board has limited direct authority
over the department of corrections. If the department of corrections
fails to act reasonably in light of the communication from the Board
regarding programming, the juvenile offender may file a claim
against the department under Iowa Code chapter 822, alleging that
by denying reasonable access to the programming necessary to
obtain an opportunity for release, the state is failing to live up to the
requirements of Graham–Miller.

Id. at 786; see also Belk, 905 N.W.2d at 191. In short, Bonilla indicated that the

State cannot deprive an incarcerated juvenile offender of the opportunity for

parole by “unreasonably” withholding SOTP. Id.

3. Resolving the issue in this case. We need not decide today what, if any,

obligations are imposed on prison officials by substantive due process when

incarcerated adult sex offenders need to complete SOTP as a condition of parole.

Certainly, the Due Process Clause requires no more than the reasonableness
 25

standard we referred to in Bonilla and that the district court applied in this case.

Nor do any of the out-of-state cases suggest a higher standard.

On our de novo review, we agree with the district court that the record

shows DOC’s current practices with regard to SOTP are reasonable. DOC has

increased staffing to offer more SOTP classes so that thirteen classes are being

offered at any given time and the physical limits of NCF have been reached. This

has resulted in meaningful, ongoing progress in reducing waiting list times.6

While there are various ways to sequence a waiting list, it appears that DOC’s

decision to base the waiting list on tentative release date is fair and reasonable.

This is the same approach upheld by the New York appellate court in Wakefield

and the Idaho appellate court in Watkins. It protects Iowa inmates from losing

out on earned time credits they would otherwise receive from successfully

completing SOTP. See Iowa Code § 903A.2(1)(a)(2).7

For the most part, the petitioners do not challenge how DOC manages its

SOTP waiting lists. Instead, they offer several proposals, all thoughtful but none

in our view legally warranted in the present case. First, they suggest that certain

low-risk individuals could perform their SOTP in the community after release.

However, it is for the Board to decide when an inmate “shall be released.” See

6The petitioners contend that the district court’s math is incorrect and that it will take

much more than four years to eliminate the wait list. In particular, they contend the court has
failed to take into account special sentence revocations. But regardless of the exact numbers, it
remains undisputed that DOC is making progress in reducing the backlog.
7Itis also important to note that our precedents afford due process protections to an
inmate before he is classified as needing SOTP. See Dykstra v. Iowa Dist. Ct., 783 N.W.2d 473,
481 (Iowa 2010). This recognizes, in part, the impact that SOTP may have on the time the inmate
spends in prison.
 26

Iowa Code § 906.3 (“The board shall determine which of those persons who have

been committed to the custody of the director of the Iowa department of

corrections, by reason of their conviction of a public offense, shall be released on

parole or work release.”). If the Board believes an inmate can be properly and

safely released to the community without having performed SOTP, it already has

authority to do so. See id. § 906.4(1). Thus, the petitioners’ first proposal asks

us, in effect, to override the Board’s judgment as to whether certain inmates can

be safely released.

Even if that were appropriate, the present action is not directed at the

Board. Inmates seeking review of a Board decision retain the right to file a

petition for judicial review under Iowa Code section 17A.19(10). See Johnson v.

Dep’t of Corr., 635 N.W.2d 487, 489 (Iowa Ct. App. 2001). This postconviction

relief action is not the occasion for us to review parole decisions by the Board.

Second, the petitioners suggest that we could tell the Board to instruct

DOC to move up certain inmates on the SOTP waiting list. At present, the Board

does not get involved in DOC’s scheduling of SOTP. But again, a postconviction

relief action is not the proper mechanism for reviewing how the Board exercises

its parole authority. And regardless, the petitioners’ proposal would not attack

the fundamental problem, namely, the limited number of SOTP classes available.

Even if this proposal were implemented, there would still be a waiting list and it

would be just as long.

Third, the petitioners suggest that DOC could be ordered to expand

existing SOTP so it is offered at other prisons. This, however, would put us in
 27

the position of forcing the DOC to spend more money and hire more people. Just

as the petitioners’ first proposal would require us to substitute our own parole

decisions for those of the Board, their third proposal would have us supplant the

legislature’s and the DOC’s budgeting and management decisions. We do not

believe any of the authorities discussed above would require such an

extraordinary remedy.

Instead, the authorities discussed above demonstrate a general principle

that state legislatures do not have a constitutional duty to provide funding to

maximize opportunities for parole. Although Iowa inmates serving indeterminate

sentences have a liberty interest in parole, any liberty interest is subject to

reasonable limits on programming based on classroom space, availability of

instructors, and other factors. The DOC has implemented a system that that is

neither arbitrary nor capricious but rather determines eligibility for SOTP based

on a measurable and consistent factor: the inmate’s anticipated release date.

The DOC has reasonably and strategically allocated funding to add instructors

and schedule classes to allow as many inmates as possible to participate.

We affirm the district court’s conclusion that the petitioners failed to

establish an unconstitutional deprivation of due process.

C. Is There a Separation of Powers Violation? The petitioners maintain

that the existing waiting list system for SOTP eligibility creates a “silent

mandatory sentence,” thereby violating the constitutional principle of separation

of powers. See Iowa Const. art. III, § 1. In the petitioners’ view, the judicial branch

has been denied its constitutional power over sentencing because the executive
 28

branch has dallied in providing SOTP, thereby transforming indeterminate

sentences into sentences with de facto mandatory minimums.

We are somewhat puzzled by this argument. Sentencing laws, the Board’s

authority over parole, and the DOC’s operation of prisons, including SOTP, are

all matters within the purview of the legislature. See Doe v. State, 688 N.W.2d

265, 270–71 (Iowa 2004); State v. Phillips, 610 N.W.2d 840, 842–43 (Iowa 2000)

(en banc). While the courts get to determine individual sentences, the

longstanding rule is that they must do so without considering the Board’s parole

practices. See State v. Bentley¸ 757 N.W.2d 257, 266 (Iowa 2008) (“[A] sentencing

court impermissibly invades the prerogative of the parole board by considering

the effect a sentence will have on a defendant’s parole date.”); State v. Remmers,

259 N.W.2d 779, 784 (Iowa 1977) (en banc).

If the legislative branch believes the executive branch is thwarting

legislative intent with regard to the duration of sentences and the availability of

parole for sex offenders, the legislature has tools to address the problem. In

short, the situation described by the petitioners involves the executive branch

overstepping legislative authority, not judicial authority. And there is no

indication the legislative branch is incapable of reasserting itself over the

executive branch if need be.

D. Is There a “Separation of Function” Violation? Next, the petitioners

argue that there has been a “separation of function” violation between the DOC

and the Board. We are not persuaded. Each of these two agencies has certain

statutory responsibilities. The DOC is responsible for the “control, treatment,
 29

and rehabilitation of offenders.” Iowa Code § 904.102. The Board has its own set

of functions, including “establish[ing] and implement[ing] a plan by which the

board systematically reviews the status of each person who has been committed

to the custody of the director of the Iowa department of corrections and considers

the person’s prospects for parole or work release.” Id. § 906.5(1)(a). The

petitioners cite no example of a statute that either agency has violated. The DOC

has implemented a process for determining eligibility for SOTP by utilizing

waiting lists based on tentative release date. This is within the DOC’s authority

because it relates to the control, treatment, and rehabilitation of inmates. In

turn, the Board, exercising its authority, has deferred to the DOC’s

recommendation that an inmate not be released before completing SOTP.

E. Are Petitioners Entitled to Appointed Counsel at State Expense?

Finally, we need to decide whether the petitioners have a right to appointed

counsel at state expense. Indigent prisoners are entitled to appointed counsel

“[u]nless the applicant is confined in a state institution and is seeking relief

under section 822.2, subsection 1, paragraphs ‘e’ and ‘f.’ ” Iowa Code § 822.5.

Here, the petitioners urge that their claims fall under Iowa Code section

822.2(1)(a), a provision that applies when “[t]he conviction or sentence” was

unlawful or unconstitutional. Yet the petitioners are not challenging their

underlying convictions or sentences; they are arguing that parole has been

wrongfully delayed.

We specifically held in Belk that claims like those of the petitioners fall

under section 822.2(1)(e) and not 822.2(1)(a). As we put it,
 30

[A]n inmate may proceed under Iowa Code section 822.2(1)(e) when
alleging an unconstitutional denial of his or her liberty interest
based on the [DOC’s] failure to offer SOTP when SOTP is a necessary
prerequisite to parole. That section applies when “the person is
otherwise unlawfully held in custody or other restraint.”

Belk, 905 N.W.2d at 191 (quoting Iowa Code § 822.2(1)(e) (2013)). We added that

“section 822.2(1)(a) is inapposite because Belk is not complaining about his

‘conviction or sentence.’ ” Id. at 192. We indicated that Belk’s petition was subject

to dismissal because it had been brought mistakenly under section 822.2(1)(a)

but that Belk should be given an opportunity to amend and proceed under

section 822.2(1)(e). See id.

The petitioners argue that we should reconsider this central holding of

Belk. We decline to do so because we think it was correctly decided. Alternatively,

the petitioners argue that they can proceed under Iowa Code section 822.2(1)(c)

(2019) because they are asserting that “[t]he sentence exceeds the maximum

authorized by law.” We disagree with this contention. As the State points out,

section 822.2(1)(c) is related to section 822.2(1)(a) in that it again requires the

petitioners to be challenging their sentence. As we pointed out in Belk, that is

not what these claims do. Accordingly, we hold the petitioners are not entitled to

counsel at State expense. Like the district court, we acknowledge the significant

contributions made by their pro bono counsel.

IV. Conclusion.

For the foregoing reasons, we affirm the judgment of the district court.

AFFIRMED.
 31

Christensen, C.J., and Appel, Waterman, McDonald, and Oxley, JJ., join

this opinion. Appel, J., files a concurrence. McDermott, J., files an opinion

concurring in part and dissenting in part.
 32

#20–0375, Bomgaars v. State

APPEL, Justice (concurring).

I agree with the majority opinion that under the mandatory language of

Iowa Code section 906.4, the plaintiffs here have a liberty interest in parole under

Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1,

12 (1979), and Board of Pardons v. Allen, 482 U.S. 369, 376 (1987). I agree that

under Iowa law an inmate may bring a claim “alleging an unconstitutional denial

of his or her liberty interest based on the [Iowa Department of Correction’s (DOC)]

failure to offer [sex offender treatment program (SOTP)] when SOTP is a

necessary prerequisite to parole.” Belk v. State, 905 N.W.2d 185, 192 (Iowa

2017). Finally, I agree that under the facts presented, the Iowa Department of

Corrections (DOC) is not abridging the liberty interest through its rational

provision of SOTP programming.

I write to emphasize four important caveats to the court’s narrow opinion.

First, this is not a case where the DOC has refused to provide a program

that is essential to the release of a class of inmates on parole. A total failure to

provide programing necessary for a class of inmates to obtain release could be

problematic. Cf. Leamer v. Fauver, 288 F.3d 532, 545 (3d Cir. 2002) (failure to

supply program that is required for release on parole).

Second, there is nothing in the record to suggest that the DOC is arbitrarily

excluding certain individuals or groups from treatment necessary for parole.

Such a “pocket veto,” to use the term utilized in Bonilla, would raise serious legal

questions. Bonilla v. Iowa Bd. of Parole, 930 N.W.2d 751, 786 (Iowa 2019).
 33

Third, there is no indication in the record that the Iowa Board of Parole

(the Board) is not generally aware of the manner in which the DOC provides

SOTP programming to inmates when considering parole to individual prisoners.

Nor is there evidence that the Board objects to the manner in which the services

are being provided to inmates as interfering with the exercise of its parole

responsibilities.

Fourth, the case does not involve a juvenile offender. There is no claim

that the DOC is unreasonably withholding access to programming necessary to

obtain an opportunity for release and thereby failing to live up to the promise of

Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 567 U.S. 460

(2012). See also Bonilla, 930 N.W.2d at 786. See generally Martin Gardner,

Youthful Offenders and the Eighth Amendment Right to Rehabilitation: Limitations

on the Punishment of Juveniles, 83 Tenn. L. Rev. 455 (2016); Sarah French

Russell, Review for Release: Juvenile. Offenders, State Parole Practices, and the

Eighth Amendment, 89 Ind. L.J. 373 (2014); Jennifer L. Weekley, Civil Rights—

From Negative Restriction to Affirmative Obligation: A Call for Massachusetts to

Recognize a Right to Rehabilitation Beginning with Juvenile Offenders, 38 W. New

Eng. L. Rev. 221 (2016).

If any of the above circumstances were to be present, we would have a

different case. But based on the record before us, I concur that the claim of the

plaintiffs in this case fails as the DOC is currently proceeding rationally

regarding its provision of SOTP programming.
 34

#20–0375, Bomgaars v. State

McDERMOTT, Justice (concurring in part and dissenting in part).

The petitioners in this appeal assert that they have a statutory right to

parole and that the State deprived them of procedural due process associated

with that right by delaying their sex offender treatment. On the threshold

question of whether inmates have a statutory right to parole, the majority today

holds in the petitioners’ favor. Since, in my view, the statute provides no right to

parole in the first place, I respectfully dissent on this issue and would hold that

the State’s method for scheduling sex offender treatment doesn’t even implicate,

let alone violate, any due process protections.

It’s undisputed that the constitution provides no right to parole. State v.

Cronkhite, 613 N.W.2d 664, 667 (Iowa 2000) (en banc) (“There is no

constitutional or inherent right to be conditionally released from prison prior to

the expiration of a valid sentence.”); State v. Wright, 309 N.W.2d 891, 894 (Iowa

1981) (“Neither does he have a constitutional right to parole.”). The petitioners

thus ground their claim for a parole right not in the Iowa or federal constitutions

but in state law. In Board of Regents of State Colleges v. Roth, the United States

Supreme Court held for the first time that due process protections apply not only

to property interests but also to “liberty” interests. 408 U.S. 564, 571–72 (1972).

A state can create a liberty interest, the Court determined, by providing an

entitlement to certain benefits by statute. Id. at 577–78.

But the statute cited in this case to support the petitioners’ liberty interest

in parole, Iowa Code section 906.4, doesn’t in fact create the entitlement to parole
 35

that the petitioners urge (and that the majority finds). To have a protected liberty

interest, one “clearly must have more than an abstract need or desire for it. He

must have more than a unilateral expectation of it. He must, instead, have a

legitimate claim of entitlement to it.” Roth, 408 U.S. 577.

And it’s in identifying some “entitlement” to create the claimed liberty

interest that the petitioners’ claim fails. For an inmate to be entitled to parole,

the parole decision can’t rest on the unfettered discretion of the state. Yet the

statute in this case does exactly that. Here’s the full text:

The board shall release on parole or work release any person whom
it has the power to so release, when in its opinion there is reasonable
probability that the person can be released without detriment to the
community or to the person. A person’s release is not a detriment to
the community or the person if the person is able and willing to fulfill
the obligations of a law-abiding citizen, in the board’s determination.

Iowa Code § 906.4(1) (2019).

The markers of the discretion granted to the state in this statute are

obvious and unadorned. The statute requires the board to parole an inmate

“when in its opinion” (i.e., when in the board’s opinion) the board finds a

“reasonable probability” that the inmate can be released without detriment to

the community or the inmate. The board’s “opinion” about whether such a

“reasonable probability” exists requires the board to consider and weigh

probabilities for potential future events associated with the inmate’s possible

release and the impact it might have on both the community and the inmate. Id.

This type of predictive exercise is inherently subjective. The second sentence of

the statute continues in the same vein. In defining the phrase “detriment to the

community or to the person,” the legislature confers yet another layer of
 36

discretion on the board, declaring that the phrase refers to a person “able and

willing to fulfill the obligations of a law-abiding citizen, in the board’s

determination.” Id. (emphasis added). It’s pure subjectivity stacked upon pure

subjectivity—defining the criteria for the decision and then deciding whether the

inmate meets that criteria are both wholly subjective endeavors.

The latitude granted the board in making parole decisions under section

906.4 is so expansive as to make decisions virtually unreviewable. If the board

finds in its opinion that a reasonable probability to release the person without

determent to the community in the board’s determination does not exist, how

does a reviewing body ever determine that an inmate has, in fact, satisfied the

parole requirements? The statute offers no rubric, no objective reviewing

standard that a body could apply to overturn a board decision denying parole.

There’s simply no way to show that the board erred in setting the criteria to

establish “detriment to the community or the person” (which is, under the

statute, “in the board’s determination”) and similarly has no way to show that

the board erred in measuring whether the “reasonable probability” existed to

satisfy that criteria (which is, after all, based only on “its opinion”). Id. Such a

task would require psychic powers enabling a reviewer to peer into the minds of

board members to decipher each individual’s subjective weighing of risk

probabilities and personal opinion about an inmate’s ability and willingness to

fulfill what the board members consider to be “the obligations of a law-abiding

citizen.”
 37

A statute that requires supernatural powers to review whether a decision

satisfies its criteria is not a statute that creates an “entitlement” to any particular

decision. “[A] State creates a protected liberty interest by placing substantive

limitations on official discretion.” Olim v. Wakinekona, 461 U.S. 238, 249 (1983).

Agency action predicated on agency discretion isn’t subject to judicial review if

“no judicially manageable standards are available for judging how and when an

agency should exercise its discretion.” Heckler v. Chaney, 470 U.S. 821, 830

(1985). Without a fixed line connecting the statute’s decision criteria to a

required outcome, the inmate can lay claim to no “entitlement” to an outcome

and thus to no liberty interest bearing an associated right to procedural due

process. See Meachum v. Fano, 427 U.S. 215, 223–24, 228 (1976) (holding an

inmate’s claimed right to remain at a particular prison “too ephemeral and

insubstantial to trigger procedural due process protections” because of prison

officials’ broad discretion in transfer decisions).

The majority relies on the United States Supreme Court’s 1987 decision in

Board of Pardons v. Allen, 482 U.S. 369 (1987), for its holding that section

906.4(1) creates a protected liberty interest in parole. In Allen, the Court

analyzed a Montana parole statute containing language that mostly mirrors Iowa

Code section 906.4(1). Id. at 376. The Court held that inmates possessed a liberty

interest in parole under Montana’s statute because the word “shall” mandated
 38

an inmate’s release if the decisionmaker found the criteria had been met. Id. at

377–78.8

The Court in Allen, in analyzing Montana’s parole statute, employed an

analytical framework from a 1979 case called Greenholtz v. Inmates of Nebraska

Penal & Correctional Complex, 442 U.S. 1 (1979). Allen, 482 U.S. at 373–81. In

Greenholtz, the Court held that Nebraska’s parole statute, which contained

different language than Montana’s parole statute, created a liberty interest that

gave rise to due process protections because of the mandatory language that the

board “shall” order release if certain criteria are met. 442 U.S. at 11–12. The

Court in Allen, as it did in Greenholtz, held that inmates possessed a liberty

interest in parole solely because the statute’s inclusion of the word “shall”

mandated a release notwithstanding the discretion afforded the decisionmaker.

482 U.S. at 377.

Three justices dissented in Allen. 482 U.S. at 381 (O’Connor, J., joined by

Rehnquist, C.J., and Scalia, J.). They criticized the majority for “[r]elying on

semantics and ignoring altogether the sweeping discretion granted to the Board”

in the statute to find an entitlement to parole. Id. The dissenters contended that

“the distinction between an ‘entitlement’ and a mere ‘expectancy’ must

necessarily depend on the degree to which the decisionmakers’ discretion is

constrained by law.” Id. at 382. This is because an inmate possesses “nothing

8Our court cited Allen favorably in State v. Belk, which dealt with whether inmates could
pursue in a postconviction relief action the types of claims that the petitioners now bring. 905
N.W.2d 185, 190 (Iowa 2017). But we did not decide in Belk whether inmates have a liberty
interest in parole created by Iowa Code section 906.4(1). Id.
 39

more than a mere hope of receiving a benefit unless the decision to confer that

benefit is in a real sense channeled by law.” Id. Since the crucial inquiry turns

on “whether a statutory entitlement is created,” the court cannot “merely . . .

point to the existence of some ‘standard’ ” to establish a liberty interest when the

statute provides no meaningful limit on the decisionmakers’ discretion. Id.

Eight years later, in Sandin v. Conner, the Supreme Court criticized its

reasoning in Greenholtz, Allen, and several other cases that focused on

mandatory language in prison regulation statutes to find protected liberty

interests in favor of inmates. 515 U.S. 472, 480, 483 (1995). By failing to focus

its analysis on the nature of the deprivation in the earlier cases, the Court stated

that its framework had “encouraged prisoners to comb regulations in search of

mandatory language on which to base entitlements to various state-conferred

privileges.” Id. at 481. The Court in Sandin denounced the mandatory language

approach found in Greenholtz and Allen, in which inmates mined prison statutes

for new liberty interests in regulations that were instead “designed to guide

correctional officials in the administration of a prison.” Id. at 481–82. The

mandatory-language framework, according to the Court, thus created

disincentives for states to codify prison management procedures and led to the

over-involvement of the courts in the day-to-day management of prisons, “often

squandering judicial resources with little offsetting benefit to anyone.” Id. at 482.

The Court sought to turn away from the mandatory language approach that had

caused courts to ignore the nature of the interest that the state had purportedly
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created in the statute in favor of a mechanical exercise in parsing individual

prison regulations for words like “shall.” Id. at 481, 483.

In Sandin, the Court recognized that states may, under certain

circumstances, create liberty interests that are protected by the Due Process

Clause. 515 U.S. at 472. But it noted that these interests would “be generally

limited to freedom from restraint which, while not exceeding the sentence in such

an unexpected manner as to give rise to protection by the Due Process Clause of

its own force, nonetheless imposes atypical and significant hardship on the

inmate in relation to the ordinary incidents of prison life.” Id. at 483–84 (citations

omitted). The Court found the disciplinary action at issue was but one among “a

myriad of considerations” for the board to decide in granting parole and thus

“simply too attenuated to invoke the procedural guarantees of the Due Process

Clause.” Id. at 487.

The majority cites Swarthout v. Cooke, 562 U.S. 216, 217 (2011) (per

curiam), to suggest that the Supreme Court continues to endorse the analysis in

Greenholtz and Allen. I find the Court’s language in Swarthout more equivocal.

In its per curiam opinion, the Court first noted that the United States Court of

Appeals for the Ninth Circuit had held that California’s statute created a liberty

interest in parole and then stated, “While we have no need to review that holding

here, it is a reasonable application of our cases.” Id. at 219–20. So after making

clear that it is not getting into the question of whether the statute actually

created a liberty interest in parole, the Court follows with language noteworthy

for what it does not say. The Court does not state that the finding of a liberty
 41

interest was “compelled” by precedent or “required” under Greenholtz and Allen,

or some similar mandated outcome. It instead calls the holding merely

“reasonable,” followed by a see signal to Greenholtz and Allen.

The majority in this case, relying on Allen, time-travels to the pre-Sandin

era, focusing exclusively on the word “shall” in the statute and finding a liberty

interest on that basis. Yet the majority discusses none of the language that

follows the word “shall” and that infuses the board with the vast discretion to

decide whether an inmate should in fact be paroled. Placing “shall” in front of

criteria that permit unbridled freedom in exercising judgment does nothing to

establish an entitlement to any outcome within the decisionmaker’s realm under

a full reading of section 906.4(1).

This isn’t an exercise in overruling Greenholtz and Allen by implication, as

the majority suggests we have. Greenholtz has been abrogated—expressly—by

the Supreme Court itself. In Wilkinson v. Austin, the Court concluded that

Sandin abrogated Greenholtz—the jurisprudential foundation upon which Allen’s

holding relies—as to its mandatory language approach for finding a liberty

interest in a prison regulation. 545 U.S. 209, 229 (2005). The Court declared this

directly: “Although Sandin abrogated Greenholtz’s and Hewitt’s methodology for

establishing the liberty interest, these cases remain instructive for their

discussion of the appropriate level of procedural safeguards.” Id.9

9Black’s Law Dictionary defines “abrogate” as “[t]o abolish (a law or custom) by formal or
authoritative action; to annul or repeal.” Abrogate, Black’s Law Dictionary (11th ed. 2019). Stated
differently, to “abrogate something is to abolish or dispense with it.” Bryan A. Garner, Garner’s
Dictionary of Legal Usage 619–20 (3d ed. 2011).
 42

The majority responds in part that “Wilkinson does not even mention Allen,

let alone undermine its reasoning.” True, Wilkinson does not mention Allen. But

that doesn’t mean the abrogation of Greenholtz’s reasoning leaves Allen’s

reasoning intact. The Court in Allen completely followed Greenholtz’s

methodology for establishing a liberty interest based on the word “shall.” We

need to look no further than the final paragraph of the Allen opinion to see just

how fully the Court relied on Greenholtz’s reasoning for its holding:

Here, as in Greenholtz, the release decision is “necessarily
subjective . . . and predictive,”; here, as in Greenholtz, the
discretion of the Board is “very broad,”; and here, as in Greenholtz,
the Board shall release the inmate when the findings prerequisite to
release are made. Thus, we find in the Montana statute, as in the
Nebraska statute, a liberty interest protected by the Due Process
Clause.

Allen, 482 U.S. at 381 (citations omitted) (bold emphasis added). One might

struggle to find a judicial opinion that so thoroughly wraps itself in the reasoning

of another opinion. Because the Court in Allen wholly adopted Greenholtz’s

reasoning for its holding, an abrogation of Greenholtz’s reasoning necessarily

abrogates Allen’s reasoning too.

Indeed, our own cases have recognized that Sandin abrogated Greenholtz.

In Dykstra v. Iowa District Court, we applied not Greenholtz or Allen but Sandin

and a pre-Greenholtz case, Wolff v. McDonnell, 418 U.S. 539 (1974), to analyze

whether a prison statute created a particular claimed liberty interest. 783

N.W.2d 473, 482 (Iowa 2010). In citing Greenholtz on a separate issue (analyzing

instances where lesser procedural safeguards are owed to inmates), we noted

that Greenholtz had been “abrogated on other grounds by Sandin.” Id. We noted
 43

the same thing in Reilly v. Iowa District Court, 783 N.W.2d 490, 495 (Iowa 2010).

In both Dykstra and Reilly, we applied Sandin, not Greenholtz or Allen or another

mandatory-language-approach case, to determine when liberty interests of

prisoners are implicated. Dykstra, 783 N.W.2d at 480; Reilly, 783 N.W.2d at 495.

The “other grounds” upon which we noted Greenholtz had been abrogated in

Sandin are the very grounds that the majority now relies on to support the

holding in this case.

More than a decade before these cases, in Sanford v. Manternach, we

applied the Sandin analysis—and not what we referred to as “intervening United

States Supreme Court cases on this issue” that would include Greenholtz and

Allen—in deciding whether an inmate possessed a liberty interest in good-time

credits for which the State sought forfeiture as part of a disciplinary action. 601

N.W.2d 360, 365 (Iowa 1999). We focused in Sanford “on ‘the nature of the

deprivation’ rather than on the ‘language of a particular regulation.’ ” Id. at 365–

66 (quoting Sandin, 515 U.S. at 481). We even distinguished an Eighth Circuit

Court of Appeals case from 1996 that applied the same mandatory-language

approach that the majority applies in this case:

We respectfully disagree with the mandatory/discretionary analysis
employed by the court of appeals to reach this conclusion because
this analytical framework is simply not appropriate under Sandin.

We now consider whether Sanford has a liberty interest, using
the principles set forth in Sandin and Wolff.

Id. at 366.
Other federal and state courts have similarly declared that Sandin

abrogated the mandatory language approach in Greenholtz and Allen for
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determining whether a prison statute creates a protected liberty interest. See,

e.g., United States v. Johnson, 703 F.3d 464, 471 (8th Cir. 2013) (finding Sandin’s

focus on “the nature of the deprivation” as opposed to mandatory language in

the statute is the more appropriate analytical framework); Hamm v. Latessa, 72

F.3d 947, 954–55 (1st Cir. 1995) (reversing the district court’s finding that a

parole statute created a liberty interest based merely on the inclusion of “shall”

and stating that “the tectonic plates have shifted” after Sandin); McDermott v.

Mont. Dep’t of Corr., 29 P.3d 992, 996–97 (Mont. 2001) (recognizing that the

“mandatory language/substantive predicate” test of Allen and Greenholtz had

been abandoned in favor of the tests described in Sandin, Wolff, and Meachum).

The record shows that the board had over twenty “denial codes” tied to the

reasons it might provide for denying parole. These denial codes include holding

for psychological or medical evaluation, additional required or recommended

treatment programs, an inmate’s risk assessment, an inmate’s behavior, prior

involvement with drugs, extension of work release to demonstrate willingness to

become a law-abiding citizen, or simply that the board “does not feel that a parole

at this time would be in the best interests of society.” (Emphasis added.) Each of

these reasons—including the last—fits within the board’s expansive discretion

in the statute for deciding whether an inmate should be released. The statute

might as well say, “Parole board, you shall release an inmate if, in your opinion,

you think you should.” This is simply not the stuff of “entitlement” giving rise to

a protected liberty interest.
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Our own court long ago held that Sandin abrogated the mandatory

language approach (i.e., is there a “shall” in the statute?) that the majority

applies today. See Dykstra, 783 N.W.2d at 480; Reilly, 783 N.W.2d at 495. We

should continue to reject Allen’s mandatory language approach and apply

Sandin (and thus our own cases) in analyzing the threshold question of whether

the statute creates a liberty interest in parole. While I concur in the majority’s

holding in sections III.B and III.C that the petitioners have proved no violation of

a liberty interest and no separation of powers violation in this case, I respectfully

dissent from the holding in section III.A. The petitioners in the first place had no

protected liberty interest in parole and thus could not have been denied any

process to which they were constitutionally entitled.