dissenting:
Because I believe that the Constitution protects the right of a person to be secure in his liberty after twenty months of freedom during which his expectations of continued freedom rightfully crystallized, I respectfully dissent from the majority.
I.
On February 27, 1981, Irving Hawkins was convicted in Guilford County, North Carolina, of the possession, sale, and delivery of cocaine. Because he qualified as a habitual felon, he was sentenced to fifty years in prison. He also received a concurrent ten-year sentence for possession of cocaine.
Hawkins received conflicting messages concerning his parole date throughout his time in prison. Sometime within his first year and a half of incarceration, the Parole Commission informed Hawkins that he would be eligible for parole very shortly after his conviction. On June 14,1982, the Commission informed Hawkins that it had been mistaken; he would be ineligible for parole until October 20, 2010. The Commission told Hawkins at the time that “we have studied all the facts in your case and we are sure that we are following the requirements of the law ...The following year, the Commission changed its mind once again. The Commission informed Hawkins that “[a]fter carefully checking your parole eligibility date, we find that you will not be eligible for parole until April 20, 2018.”
In March of 1992, Hawkins received a letter from the Commission advising him that the Commission was considering him for early parole under the Community Service Parole statute.1 North Carolina passed the Community Service Parole statute, in part, to alleviate a prison overcrowding crisis in the North Carolina penal system.
Hawkins, in fact, was not eligible for early parole under the statute because North Carolina law had changed shortly after Hawkins was convicted. At the time of Hawkins’ conviction, North Carolina law provided that a “habitual felon” who was convicted of a felony had to serve at least 75% of his or her sentence before becoming eligible for parole. See N.C. GemStat. § 14-7.6 (repealed 1981). A few months after Hawkins’ conviction and sentencing, however, the law was repealed and replaced with a law that required habitual felons convicted of felonies to serve at least seven years before becoming parole eligible. Because the new law only operated prospectively, Hawkins was not entitled to the benefit of the more lenient parole system for which he would have been qualified, having served eleven years. In any event, it is likely that when Hawkins received his letter from the Commission in 1992, he had seen felons with criminal histories, sentences, and offenses identical to his own (though committed after July 1981), released on parole after having served seven years of their sentences.
When the Commission contacted Hawkins in March of 1992, it was no longer confused as to what date he was legally eligible for parole. A memo from the case analyst to the unit supervisor stated clearly that Hawkins’ parole eligibility date was April 20, 2018. The Commission nevertheless decided to act as though Hawkins qualified for the Community Service Parole program.2
*752In order to parole Hawkins under the program, the Commission had to find that Hawkins was unlikely to engage in further criminal conduct. Hawkins thus went through a fairly detailed procedural review. In the four months between March 13, 1992 and July 6, 1992, Hawkins was required to submit home and job plans to the Commission for approval. The Parole Case Analyst assigned to Hawkins conducted an investigation with the help of a field worker. Those individuals interviewed Hawkins and law enforcement officials familiar with him. Based on this information, the Case Analyst made a recommendation of parole to the full Commission. The full Commission then approved it. That lengthy and involved procedure, involving the participation and review of numerous individuals in the law enforcement community, could only have added to Hawkins’ belief that he truly was eligible for parole.
Confirming Hawkins’ belief in a way that must have been immeasurably powerful to his psyche, Hawkins was actually released from prison on July 6, 1992. Out in the community, Hawkins began the process of rebuilding his life. He reunited with his family and friends. He moved in with his brother, paying half of the monthly expenses. He obtained a job. He aided with the care of his mother. He tried to reestablish ties with his children. He got engaged. All the while, Hawkins substantially complied with his parole obligations.
After twenty months of settling into the routines of a life without incarceration, Hawkins was abruptly arrested. Hawkins was not arrested because he had violated his parole, nor had the Commission learned of a reason to change its assessment that Hawkins was not a threat (in fact, twenty months of evidence supported the Commission’s assessment). Instead, the Commission reincarcerated Hawkins because, as it turned out, he had been ineligible for parole under the community service program by a few months.3
Hawkins had been paroled through no fault or connivance of his own. Though this parole was erroneously granted, Hawkins had no reason to know of that error. Once paroled, the only record evidence is that for twenty months while on parole he handled himself as a model citizen. He committed no crimes and substantially complied with his parole obligations. During that time, Hawkins, who had behaved well during his prison term, on parole adjusted to and settled into his liberty. He had every right to expect, and did indeed expect, that he would retain that liberty so long as he complied with his parole obligations. The State returned Hawkins to jail, not because of any new wrongdoing, but to enforce the letter of a law that the State had repealed almost two decades ago.
II.
The Due Process Clause of the Fourteenth Amendment guarantees that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. CONST, amend. XIV. Although a literal reading of the Clause may suggest that the government only has to afford its citizens a fair process, the Clause has been understood to contain a substantive component as well, “barring certain government actions regardless of the fairness of the procedures used to implement them.” County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 1713, 140 L.Ed.2d 1043 (1998) (quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)).
The Due Process Clause expands the scope of individual liberty beyond the rights guaranteed in the first eight amendments to the Constitution. The Supreme Court has recognized a special group of *753rights that deserve protection under the Due Process Clause, despite not being explicitly mentioned in the Bill of Rights. The Court has “regularly observed that the Due Process Clause specially protects those jfundamental rights and liberties which are, objectively, ‘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.’ ” Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (plurality opinion), Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937), and id. at 326, 58 S.Ct. 149) (emphasis added) (citations omitted).
Courts are often called on to exercise their reasoned judgment to protect fundamental personal liberties from the overreaching of the State. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 849, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). As Justice Harlan aptly noted:
Due Process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court’s decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of the organized society.
Poe v. Ullman, 367 U.S. 497, 542, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting from dismissal on jurisdictional grounds), quoted in Casey, 505 U.S. at 849-50, 112 S.Ct. 2791 (1992). It is also true, however, that the Supreme Court has been “reluctant to expand the concept of substantive due process.” Glucksberg, 521 U.S. at 720, 117 S.Ct. 2258 (quoting Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)). Nevertheless, “[i]t is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. We have vindicated this principle before. Marriage is mentioned nowhere in the Bill of Rights and interracial marriage was illegal in most states in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia.” Casey, 505 U.S. at 847-48, 112 S.Ct. 2791 (citation omitted).
In the ease at bar, we are asked whether the State’s reincarceration of a rehabilitated parolee after twenty months of successful reintegration into society violates'the Due Process Clause of the Fourteenth Amendment. The majority believes that the State can, consistent with the Due Process Clause, reincarcerate a parolee it released erroneously regardless of the amount of time the parolee has lived as a free man. I respectfully disagree. The framework for analyzing Hawkins’ due process claim depends on whether the State’s alleged violation was by executive act or by legislative enactment. The Supreme Court’s “shocks the conscience” test, recently reaffirmed in Lewis, only applies to cases of executive action. See Lewis, 118 S.Ct. at 1716-17. Although I analyzed Hawkins’ claim initially as if it involved executive action, I am now persuaded that Lewis does not apply to the case at bar.
Lewis involved a- substantive due process challenge to a death caused by a reckless police chase of a speeding motorcycle. See id. at 1712-13. It thus was a classic example of executive action — an individual police officer making an on the spot discretionary judgment as to the appropriate way to enforce a law. Here, however, it was evident by the State’s admissions during oral argument that, although the Parole Commission formally was the actor responsible for reincarcerat-ing Hawkins, the Commission’s decision was required by a non-discretionary, sys*754temic policy. Challenges to systemic policies are unlike challenges to police chases. The legislative-executive distinction announced by the Court in Lewis is justified by the underlying principle that “substantive due process is most apt when marshaled to protect individual rights against systematic governmental invasion. [Because] [legislation reflects the institutional judgment of an entire branch of the government, while some forms of executive action can be undertaken by a single actor ... it was reasonable for the Court to impose a different standard” on the former than on the latter. The Supreme Court, 1997 Term—Leading Cases, 112 HARV. L. REV. 192, 198 (1998). The use of the “shocks the conscience” inquiry therefore is not necessarily appropriate in cases such as this one involving the non-discretionary application of a legislative policy.
III.
A.
The substantive due process framework for analyzing Hawkins’ claim is that detailed in Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). Substantive due process acts to protect those “fundamental rights and liberties which are, objectively, ‘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.’ ” Id. at 720-21, 117 S.Ct. 2258 (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (plurality opinion), Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937), and id. at 326, 58 S.Ct. 149) (citations omitted). The Supreme Court has counseled that “[o]ur Nation’s history, legal traditions, and practices thus provide the crucial ‘guideposts for responsible decisionmaking,’ that direct and restrain our exposition of the Due Process Clause.” Id. at 721, 117 S.Ct. 2258 (quoting Collins, 503 U.S. at 125, 112 S.Ct. 1061). The government may not infringe upon a fundamental right unless the infringement is narrowly tailored to serve a compelling state interest.4 See id.
The Supreme Court has advised us to be reluctant in breaking new ground in recognizing fundamental rights. Hawkins has not asked us to break any new ground. A number of cases, including two decisions from the Fourth Circuit, have already recognized that Hawkins’ liberty interest is fundamental. These cases have held that it is fundamentally unfair and violates the guarantee of due process for a court to increase a sentence, even when correcting an unlawful sentence, once the defendant has served so much of his original sentence that “his expectations as to its finality have crystallized.” See, e.g., United States v. Lundien, 769 F.2d 981, 987 (4th Cir.1985); United States v. Cook, 890 F.2d 672, 675 (4th Cir.1989).
In Lundien, the district court sentenced the defendant to two concurrent ten-year prison terms. Five days later, however, the court increased the defendant’s sentence to twenty years in prison. See Lundien, 769 F.2d at 982. The defendant challenged his amended sentence, and the Fourth Circuit ruled on the constitutionality of the district court’s actions. The court held that the Double Jeopardy Clause did not address the defendant’s situation. Instead, the court stated that “[i]t seems more likely that any constitutional source for protection of the defendant’s interest in the finality of his sentence must be found in the fifth amendment’s guarantee of due process.” Id. at 986.
The court recognized that the Due Process Clause places some outer limits on the State’s ability to alter a defendant’s sen*755tence. The court outlined the following principle that applies to the case at bar:
[D]ue process may also be denied when a sentence is enhanced after the defendant has served so much of his sentence that his expectations as to its finality have crystallized and it would be fundamentally unfair to defeat them. As the First Circuit has stated the principle:
[T]he power of a sentencing court to correct even a statutorily invalid sentence must be subject to some temporal limit. When a prisoner first commences to serve his sentence, especially if it involves a long prison term as here, the prospect of release on parole or otherwise may seem but a dimly perceived, largely unreal hope. As the months and years pass, however, the date of that prospect must assume a real and psychologically critical importance. The prisoner may be aided in enduring his confinement and coping with the prison regime by the knowledge that with good behavior release on parole or release outright will be achieved on a date certain. After a substantial period of time, therefore, it might be fundamentally unfair, and thus vio-lative of due process for a court to alter even an illegal sentence in a way which frustrates a prisoner’s expectations by postponing his parole eligibility or release date far beyond that originally set.
Id. at 987 (quoting Breest v. Helgemoe, 579 F.2d 95, 101 (1st Cir.1978)) (emphasis added) (second alteration in original). After conducting the due process analysis, however, the court held for the government on the facts because the defendant had served only five days of his ten-year sentence. His expectations as to the finality of the sentence therefore had not crystallized. See id.
The Fourth Circuit reaffirmed the principle announced in Lundien in United States v. Cook, 890 F.2d 672 (4th Cir.1989). In Cook, the court recognized that a court’s inherent power to correct a mistaken sentence was not absolute. In doing so, it explained:
This inherent power is not without limitation, for at some point every sentence must become final. As we indicated in United States v. Lundien, it would be fundamentally unfair and a violation of due process to allow a district court to enhance a sentence “after the defendant has served so much of his sentence that his expectations as to its finality have crystallized.”
Id. at 675 (quoting Lundien, 769 F.2d at 987) (part of citation omitted). The court therefore held that the district court’s power to correct even “an acknowledged and obvious mistake” in sentencing “exists only during that period of time in which either party may file a notice of appeal. After that time, we believe that the sentence has become final, and the district court lacks any authority to modify it.” Id.
The First Circuit followed our decisions in Lundien and Cook and held for a parolee on due process grounds in DeWitt v. Ventetoulo, 6 F.3d 32 (1st Cir.1993). Dewitt had been sentenced to life imprisonment after being convicted of assault with intent to murder. See id. at 33. While in prison, Dewitt aided a prison guard who was attacked by an inmate and later testified for the state in the prosecution of the inmate. In recognition of these efforts, the trial court suspended all but fifteen years of the defendant’s life sentence. See id.
Two years later, the state supreme court held in a separate case that a trial court could not suspend a sentence once a defendant had begun to serve it. See id. Nevertheless, the State made no effort to undo the suspension of the defendant’s sentence. Six years after the State partially suspended his sentence, the State granted the defendant parole and released him from prison. The defendant would not have been eligible for parole for another sixteen *756months had the State not suspended his sentence. See id.
After his parole, Dewitt started a painting business and then a siding business. Dewitt also was able to reestablish relationships with his family members and his girlfriend. See id. Eight months after his release, however, he was involved in an altercation for which he was arrested. Instead of seeking to revoke his parole, the State vacated its earlier order suspending Dewitt’s life sentence. Dewitt was recommitted to serve the remainder of his term of life imprisonment. See id.
Reserving the question whether Dewitt had violated the conditions of his parole, the First Circuit addressed Dewitt’s argument that his reincarceration violated the Due Process Clause. The court held that due process fundamental fairness prohibited the State from reimposing Dewitt’s original life term. Citing Lundien, the court stated that:
A convicted defendant does not automatically acquire a vested interest in a mistakenly low sentence. Only in the extreme case can a court properly say that the later upward revision of a sentence, made to correct an earlier mistake, is so unfair that it must be deemed inconsistent with fundamental notions of fairness embodied in the Due Process Clause.
Id. at 35. The court then held that Dewitt’s reincarceration was an “extreme case” that violated his due process rights. The State with due diligence could have challenged the suspension of Dewitt’s sentence far earlier than it did. Further:
Dewitt not only continued for a number of years in prison reasonably believing that his sentence had been reduced, but he was actually released. He remained free from January 1987 to September 1987 and laid down new roots in society, acquiring a job and reestablishing family ties. Only at this point, did the superior court correct its original mistake and reimprison him. The lengthy delay and change of circumstances are not decisive but they contribute to the judgment whether due process was afforded by the belated reopening.
Id.
A number of other courts, both at the federal and state level, have recognized the due process right set out in Lundien, Cook, and DeWitt. See, e.g., United States v. Watkins, 147 F.3d 1294, 1298 n. 5 (11th Cir.1998) (“We are mindful that a defendant’s due process rights may be violated ‘when a sentence is enhanced after the defendant has served so much of his sentence that his expectations as to its finality have crystallized and it would be fundamentally unfair to defeat them.’ ”) (quoting Lundien, 769 F.2d at 987); United States v. Tolson, 935 F.Supp. 17, 21 (D.D.C.1996) (“[T]he Due Process Clause prohibits enhancing a defendant’s sentence after he has served so much of it that his expectations have crystallized.”); United States v. Davis, 112 F.3d 118, 123 (3d Cir.1997); United States v. Campbell, 985 F.Supp. 158, 160-61 (D.D.C.1997), aff'd, 172 F.3d 921 (D.C.Cir.1998); Thayer v. United States, 937 F.Supp. 662, 667 (E.D.Mich.1996); Santiago v. United States, 954 F.Supp. 1201, 1203 (N.D.Ohio 1996); United States v. Crowder, 947 F.Supp. 1183, 1193 (E.D.Tenn.1996); Merritt v. United States, 930 F.Supp. 1109, 1115 (E.D.N.C.1996); State v. Humes, 581 N.W.2d 317, 321 & n. 22 (Minn.1998); Austin v. State, 663 A.2d 62, 64-65 (Me.1995); Nelson v. Commonwealth, 12 Va.App. 835, 407 S.E.2d 326, 329 (1991). Most of these courts have held for the government on the facts. None of these courts, however, has questioned the legitimacy of the due process principle set out in our prior decisions.
Fourth Circuit law provides that after an inmate is released on parole, his reasonable expectation of continued freedom crystallizes over time. Once crystallized, that reasonable expectation of freedom is a legitimate liberty interest protected by the Due Process Clause. The First Circuit in *757DeWitt followed the statement in Lundien that “due process must in principle impose an outer limit on the ability to correct a sentence after the event.” DeWitt, 6 F.3d at 36. We should do the same and I, therefore, would continue to adhere to the principles of due process outlined in Lun-dien and Cook in analyzing whether Hawkins is entitled to relief.
Hawkins was released after his eleven years of good behavior in prison led the State to erroneously believe he should receive community service parole. Hawkins had no reason to know that his release on community service parole was erroneous, especially given the release of similarly situated prisoners who were able to take advantage of the more lenient parole law passed months after Hawkins’ conviction. For twenty months, Hawkins stayed out of trouble and substantially complied with his parole obligations. He obtained a college degree. Hawkins, thereafter, rebuilt his life as a free man, and it appeared that his prison days were behind him. Hawkins reestablished family ties, obtained a job, and reunited with a sweetheart.
Hawkins’ case is thus indistinguishable from DeWitt. Both Hawkins and Dewitt rebuilt their lives during substantial terms of mistaken release before the State attempted to correct its misjudgments and they were reincarcerated. The First Circuit held that, under those facts, Dewitt had an expectation of continued freedom that deserved protection under the Due Process Clause. Similarly, Hawkins’ fundamental right to continued freedom crystallized over the twenty month period that he was on parole. When the state rearrested Hawkins, it infringed Hawkins’ liberty interest.
The question now becomes whether the State’s violation of Hawkins’ substantive due process right was narrowly tailored to serve a compelling state interest. Glucks-berg, 521 U.S. at 721, 117 S.Ct. 2258. The State asserts interests in deterrence, rehabilitation, and the consistent application of its laws that allegedly justify reincarcerat-ing an erroneously released inmate to serve the remainder of his term. The State’s asserted interests, however, do not survive strict scrutiny.5
The State’s interest in general or specific deterrence cannot survive strict scrutiny. It is not likely that any individual will be less deterred from committing a crime because he believes that, if he is caught, convicted and sentenced, the Parole Commission may erroneously parole him too early, and thereafter he will not be rearrested. The rearrest of Hawkins is not narrowly tailored to serve any compelling interest in general or specific deterrence.
The State does not have a compelling interest in reincarcerating Hawkins for rehabilitative reasons. The State, by paroling Hawkins, found that Hawkins was unlikely to engage in further criminal conduct; twenty months of law-abiding behavior confirmed' the State’s assessment. The State’s interest in rehabilitation therefore is weak. ,
Last, the State has an interest in the consistent enforcement of its sentencing provisions. The State’s interest, however, would have been better served by a competent determination of when Hawkins was eligible for parole in the first place. The Parole Commission’s continually shifting yet continually confident yet inaccurate determinations were not at all well-tailored to the consistent enforcement of its sentencing provisions. The State’s errors preclude it from asserting a compelling interest in reincarcerating Hawkins that would justify interference with Hawkins’ fundamental right to continued freedom.
B.
The majority justifies ignoring the principles from Lundien, Cook, and its proge*758ny because those cases did not “undertake] the rigorous historical inquiry mandated by Glucksberg into whether the specific right they posited — that of sentence finality upon a sufficient lapse of time — was one sufficiently rooted in history and legal tradition to be considered ‘fundamental’ ” Maj. op. at 749. Assuming, arguendo, that the majority is correct in ignoring these decisions, I will analyze anew whether Hawkins’ liberty interest qualifies as a right that is “implicit in the concept of ordered liberty.”
Hawkins’ asserted liberty interest is the right to resist reincarceration and protect settled expectations of freedom.6 In Glucksberg, the Supreme Court analyzed the specific liberty at issue in deciding whether the asserted liberty qualified as a fundamental right. The Court cited the states’ longstanding bans on assisted suicide as a major reason why it would not recognize a fundamental right to assisted suicide. See Glucksberg, 521 U.S. at 723, 117 S.Ct. 2258. Conversely, the case at bar does not provide such historical data, probably because the erroneous release of prisoners is largely a function of the growth of the administrative state in the late twentieth century.7 Because the history of the specific factual situation at issue in this case is not a useful guide, we must analyze how Hawkins’ asserted liberty interest is viewed in our legal tradition.
Hawkins’ liberty interest is an interest common in the law — the right to preserve settled expectations and the need for finality. For instance, the Supreme Court has held that the primary purpose of the Double Jeopardy Clause of the Constitution was “to preserve the finality of judgments.” Crist v. Bretz, 437 U.S. 28, 33, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). The Court has also stated that the “public interest in the finality of criminal judgments is so strong that an acquitted defendant may not be retried even though ‘the acquittal was based upon an egregiously erroneous foundation.’ ” United States v. DiFrancesco, 449 U.S. 117, 129, 101 S.Ct. *759426, 66 L.Ed.2d 328 (1980) (quoting Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962)) (per curiam). Courts therefore have held that Double Jeopardy bars resentencing when the defendant has developed a legitimate expectation of finality in his original sentence. See, e.g., United States v. Silvers, 90 F.3d 95, 101 (4th Cir.1996).
The Ex Post Facto Clause of the Constitution also operates to preserve settled expectations. Article I, § 10 of the Constitution provides that “[n]o State shall ... pass any ... ex post facto Law.” Americans have the constitutional right to be secure in their expectation that their conduct, if legal when committed, will not lead to their incarceration. In the prison context, the Supreme Court has held that the retroactive removal of a prisoner’s “good time credits” violates the Ex Post Facto Clause, in part, because it defeats the defendant’s expectation as to the probable length of his sentence when he pleads guilty to an offense. See Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891, 898, 137 L.Ed.2d 63 (1997); see also Hill v. Jackson, 64 F.3d 163, 167 (4th Cir.1995) (“The purposes of the Ex Post Facto Clause are to assure that legislative acts ‘give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed’ and to ‘restrict[ ] governmental power by restraining arbitrary and potentially vindictive legislation.’ ”) (quoting Weaver v. Graham, 450 U.S. 24, 28-29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981)) (emphasis in original).
Another example of the importance of finality and the need for settled expectations is the presumption against the retroactive application of new laws. The Supreme Court has held that there is a presumption that constitutional rules will not be applied retroactively to a prisoner’s habeas corpus claims.8 See Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). In Teague, the Court stated that “[a]pplication of constitutional rules not in existence at the time a conviction becomes final seriously undermines the principle of finality which is essential to the operation of our criminal justice system.” Id. at 309, 109 S.Ct. 1060. The court also quoted the following statement by Justice Harlan: “No one, not criminal defendants, not the judicial system, not society as a whole is benefited by a judgment providing a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation.” Id. (quoting Mackey v. United States, 401 U.S. 667, 691, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971)) (Harlan, J., concurring in part and dissenting in part).
Other areas of the law also focus on the need for finality and the protection of settled expectations. Statutes of limitations, the equitable doctrine of laches, waiver, and estoppel exist to cut off the State, criminal defendants, and civil litigants from defeating the expectation interests of an opposing party. The need for finality even prohibits the correction of admitted errors of constitutional dimension after time and circumstances have intervened. See, e.g., Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (procedural default rule under federal habeas corpus review).
Thus, the right to preserve settled expectations and the need for finality are fundamental to our system of justice. After a certain point, even acknowledged errors must be overlooked to protect settled expectations in the interest of fairness and ordered liberty. Given these legal traditions, I would find that Hawkins had a fundamental liberty interest in his settled expectation of freedom that was infringed *760by the State’s decision to reincarcerate him.9
IV.
I would grant Hawkins relief even should the “shocks the conscience” test apply to the case at bar. The shocks the conscience test only applies to discretionary executive actions. I thus analyze Hawkins’ claim under this test as if the State made a discretionary decision to reincarcerate Hawkins after his successful reintegration into society.
Executive action violates substantive due process “only when it ‘can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.’ ” Lewis, 118 S.Ct. at 1717 (quoting Collins, 503 U.S. at 128, 112 S.Ct. 1061). The government’s conduct must be “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Id. 118 S.Ct. at 1717 n. 8.
The Supreme Court developed the “shocks the conscience” test in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). In Rochin, the police pumped the stomach of a suspect in an effort to obtain incriminating drug evidence. The Court held that the police’s conduct violated due process because “we are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combatting crime too energetically. This is conduct that shocks the conscience.” Id. at 172, 72 S.Ct. 205.
A recent decision interpreting Lewis also provides an example of the kind of oppressive conduct that “shocks the conscience.” The government’s conduct satisfied the “shocks the conscience” test in Armstrong v. Squadrito, 152 F.3d 564 (7th Cir.1998). In Armstrong, the plaintiff was a “deadbeat dad” who was behind on his child support, and, therefore, had to report to the county jail. See id. at 567. Local officials told the plaintiff that following a “brief detention” at the lockup, he would receive a court date and then be released that same day. Due to an administrative error, the plaintiff remained incarcerated for fifty-seven days. See id. at 568. The court stated that the officials’ “will call policy was deficient and their practice of refusing complaints was appalling.” Id. at 582. The court therefore held that “[w]hat happened to Walter Armstrong shocks the conscience.” Id.
In the case at bar, the State’s conduct was sufficiently egregious so as to shock the contemporary conscience. It is important to note that it is the State’s intentional decision to reincarcerate Hawkins, not his erroneous release, that shocks the conscience. However, we must consider the State’s decision to reincarcerate Hawkins in light of the totality of the circumstances surrounding the State’s interaction with Hawkins. The State told Hawkins initially that he could receive parole shortly after his incarceration. The State then changed its mind and told him that 2010 was Hawkins’ parole date because “we are sure that we are following the requirements of the law.” Finally, the State told Hawkins that it had erred once again; Hawkins’ parole date was not until 2018.
Hawkins spent eleven years in prison for his actions. The State, by paroling Hawkins, found that he was unlikely to engage in further criminal conduct. Twenty months of Hawkins’ parole confirmed the State’s assessment — Hawkins never committed a crime and substantially complied with the terms of his parole. In addition, Hawkins rebuilt his life; he moved in with his brother, cared for his mother, and planned to get married to an old sweetheart.
In March of 1994, the Commission admitted that it had erred in finding that *761Hawkins was eligible for community service parole. The State had the option of allowing Hawkins to remain on parole or of returning him to prison, and the State chose to return him to prison.
In sum, the State: (1) played with Hawkins’ mind through ever-changing parole dates; (2) found that he deserved early parole; (3) released him erroneously; (4) let him rebuild his life over twenty months of freedom; (5) admitted he substantially complied with his parole obligations; and then (6) hauled him back to prison. The State can assert no interest that even plausibly justifies reincarcerating Hawkins except its desire to enforce a law that was repealed almost twenty years ago. Under these circumstances, the State’s decision to reincarcerate a rehabilitated man after twenty months of freedom shocks the conscience.
V.
I understand the majority’s reluctance to rely on substantive due process to provide relief for Hawkins. Substantive due process appears to be a disfavored tool in contemporary jurisprudence. I am concerned, however, about the effects of today’s decision on future parolees that are erroneously released. The majority does not argue that a twenty month release is not long enough to justify relief under the Due Process Clause. Instead, the court appears to hold that the reincarceration of erroneously released prisoners with outstanding sentences never implicates a fundamental liberty interest, nor will it ever shock the conscience of this court.
Consider the following hypothetical, although not implausible scenario: A parolee is not eligible for parole until 2018, but is erroneously released on parole in 1992. The State does not become aware of the error until 2012. In the meantime, the parolee rebuilds his life during a successful twenty-year reintegration into society. He obtains a job, gets married, and has children. The State, upon learning of the erroneous release, drags the parolee back to prison. Under the majority’s analysis, the parolee has no fundamental right to his continued freedom, nor does his reincar-ceration shock the conscience of the court. The parolee thus must return to prison for six years, leaving behind a life and family that he had built over twenty years.10
I cannot accept that such a reincarceration does not violate the Due Process Clause of the Constitution. Fundamental fairness requires judges to draw lines, and if we do not draw them, the State has unfettered discretion to violate the liberties of the individual. I draw the line here today — Irving Hawkins should be a free man so long as he complies with his parole requirements. I can only hope that this court will be willing to draw the line in the future, should my hypothetical scenario regretfully come to pass.
Accordingly, I dissent.
. It is interesting to note that Hawkins never applied for early parole.
. The desire to eliminate the State’s prison overcrowding crisis appears to have led to the bungling surrounding Hawkins' parole. Given the evidence that Hawkins was not eligible for parole until 2018, the State’s bungling was worse than mere negligence.
. It is unclear how North Carolina’s prison overcrowding situation had changed, if at all, between 1992 and 1994.
. The Gluclcsberg test does not consider whether the State's conduct “shocks the conscience.”
. For a more comprehensive analysis of why the Stale’s interests do not survive strict scrutiny, see the panel opinion at 166 F.3d 267, 279-80 (4th Cir.1999). I include only a brief description here because the majority does not contend that the State’s asserted interests would survive strict scrutiny.
. The majority defines the fundamental right at stake as "that of a prisoner to remain free on erroneously granted parole so long as he did not contribute to or know of the error and has for an appreciable time remained on good behavior to the point that his expectations for continued freedom from reincarceration have crystallized.” Maj. op. at 749. With respect, I believe that the majority’s formulation of the fundamental right confuses what is needed to take advantage of the fundamental right with the right itself. The fundamental right is the right to preserve settled expectations of freedom. To take advantage of this fundamental right, a parolee must remain on good behavior while out of prison. If the parolee misbehaves, the state would have a compelling interest in reincarceration that would trump the parolee's fundamental right. An analogy to the abortion cases might help clarify this distinction. The Supreme Court has held that a woman has a fundamental right to have an abortion. See Roe v. Wade, 410 U.S. 113, 154, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Casey, 505 U.S. at 846, 112 S.Ct. 2791. If the State has a compelling interest in the viability of the fetus, however, the woman cannot take advantage of her fundamental right to an abortion. See Roe, 410 U.S. at 163, 93 S.Ct. 705; Casey, 505 U.S. at 846, 112 S.Ct. 2791. However, courts have never described the fundamental right to abortion as "the right of a woman who has become pregnant to terminate her pregnancy so long as the state does not have a compelling interest in maintaining the viability of the fetus.” I therefore disagree with the majority’s formulation of the specific right at issue, although I realize that the description of fundamental rights is an area of continual turmoil in American jurisprudence.
. The majority cites a Law Review article outlining the history of prisoners released erroneously. See Gabriel J. Chin, Getting Out of Jail Free: Sentence Credit for Periods of Mistaken Liberty, 45 OATH U.L. REV. 403 (1996). Given that almost all of the decisions cited in the article occurred after 1930, and most occurred after 1970, these cases do not provide the kind of historical survey conducted by the Supreme Court in substantive due process cases. Further, given that many of these courts developed legal doctrines to restrict the State's decision to reincarcerate, the article lends no support to the State’s position. See, e.g., Johnson v. Williford, 682 F.2d 868, 873 (9th Cir.1982); United States v. Merritt, 478 F.Supp. 804, 805-06 (D.D.C.1979); Shields v. Beto, 370 F.2d 1003, 1005-06 (5th Cir.1967).
. I realize that the presumption against the retroactive application of new laws is a judge-made rule and not a constitutional mandate. The Supreme Court’s willingness to ignore constitutional claims on habeas in the interest of finality, however, shows how embedded the concept of finality is in American jurisprudence.
. For the reasons stated in the previous section and the panel opinion, the State's interests do not trump Hawkins’ fundamental right because they do not survive strict scrutiny.
. I do not share the majority's confidence that clemency will be given in these cases. Given today’s "get tough on crime rhetoric,” it is speculative at best to suggest that deserving parolees will receive clemency.