dissenting.
I cannot join the majority for several reasons. First, I would dismiss Block’s due process claims because prisoners do not have a sufficient liberty interest in parole merely because the state has created a discretionary parole system, and the Virgin Islands Parole Statute, 5 V.I.C. § 4604 (1967), does not create a legitimate expectation of parole under Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Second, although I fully agree that race is an impermissible basis for parole denial, the district court did not address this question and it is unclear from the record whether race was a mere descriptive reference or a basis for the denial. Assuming that race was not a significant factor, I would uphold the Board’s parole decision because the Board properly may consider society’s need to hold the criminal accountable for his conduct under section 4604, and its decision that an economic crime by someone of Block’s advantageous background was more reprehensible than an economic crime by a poor, uneducated person was rational and therefore does not violate the equal protection clause. Finally, because it is not the role of the courts of appeals to make independent findings of fact, at least in the present context, I would remand for a determination of whether race was a significant factor in the Board’s decision to deny Block’s parole application.
I.
Due process protections apply when government action deprives a person of a liberty or property interest. To obtain such a protectible interest:
a person 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.
Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). The proper initial inquiry then, is whether Block has a liberty interest in parole.
In Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), the Supreme Court held that there is no inherent constitutional right to be released on parole. It also held that the mere existence of a state parole system that establishes the possibility of parole does not create a liberty interest. However, it recognized . that the language of a parole statute itself could create a protected liberty interest.
The Nebraska statute involved in Green-holtz stated that the Board of Parole “shall” order a prisoner’s release on parole unless one of four specified disqualifying factors was found to exist.1 The Court concluded that this statute created a legitimate expectation of parole and that state prisoners were entitled to some measure of due process protection. It emphasized that “this statute has unique structure and language and thus whether any other state statute provides a protectible entitlement must be decided on a case-by-case basis.” Id. at 12, 99 S.Ct. at 2106.
*243Parole release decisions in the Virgin Islands are governed by 5 V.I.C. § 4604 (1967). That statute provides that if it appears to the Board:
that there is a reasonable probability that [a parole] applicant will live and remain at liberty without violating the laws and if in the opinion of the Board such release is not incompatible with the welfare of society, the Board may, in its discretion, authorize the release of such applicant on parole, (emphasis supplied).
Thus the statute leaves parole decisions to the discretion of the Board, and, unlike the statute in Greenholtz, section 4604 does not require that the Board grant parole unless specified conditions are present. Nothing in the broad language of section 4604 creates a “legitimate claim of entitlement” to parole. Cf. Wagner v. Gilligan, 609 F.2d 866 (6th Cir. 1979) (per curiam) (no liberty interest created by Ohio statute under which parole authority may grant parole if, in its discretion, it determines that parole would further the interests of justice and be consistent with the welfare and security of society).
Nor are there other factors present in this ease that create a liberty interest. In our recent decision in Winsett v. McGinnes, 617 F.2d 996 (3d Cir. 1980) (en banc), petition for cert. filed sub nom. Anderson v. Winsett, 49 U.S.L.W. 3001 (July 1, 1980) (No. 79-2014), the work release statute left much discretion to prison officials and did not itself create a liberty interest. We nevertheless found a protectible interest in part because work release regulations promulgated by the Delaware Department of Corrections limited the Department’s discretion under the statute.
There are, however, no such limiting regulations’ in this case. Indeed, we are advised that the Board has adopted no regulations whatsoever. We have only a statute that leaves parole decisions to the discretion of the Board, which must make a difficult judgment as to whether a prisoner’s release will be compatible with the welfare of society.
Absent any formal regulations that narrow the exercise of the Board’s discretion, section 4604 does not create a legitimate claim of entitlement to parole and Block therefore does not have a liberty interest in parole to which due process protections attach. This conclusion is supported by a number of decisions since Greenholtz that have held that similar state statutes that leave parole decisions to the discretion of the parole authorities do not create protec-tible liberty interests. See, e. g., Boothe v. Hammock, 605 F.2d 661 (2d Cir. 1979); Shirley v. Chestnut, 603 F.2d 805 (10th Cir. 1979) (per curiam). Accordingly, I would hold that the district court properly denied relief on Block’s due process claim.
Although the majority opinion appears to agree that Block does not have a liberty interest in parole release under Greenholtz, it attempts to distinguish Greenholtz by limiting it to procedural due process claims, and then purports to find that “all prisoners have a liberty interest flowing directly from the due process clause in not being denied parole for arbitrary or constitutionally impermissible reasons.” (emphasis added). The infirmities in the majority’s due process analysis are several.
First, the majority finds Greenholtz inapplicable because Block does not request procedural safeguards. In holding that this is not a procedural due process case, the majority presumably analyzes it under substantive due process. This distinction, however, does not advance the analysis. The due process clause prohibits the government from arbitrarily depriving a person of a protected interest, either by requiring that certain procedural protections be provided to protect that interest, or, by providing for review of the government action that significantly impinges on that interest to ensure that it is not arbitrary. Characterizing Block’s claim that his parole denial violated the due process clause as substantive does not vitiate the need to identify a liberty interest sufficient to implicate due process protection. Cf. Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (finding that freedom of personal choice in matters of marriage and *244family life is a liberty protected by the due process clause). Therefore the holding in Greenholtz that prisoners do not have a liberty interest in parole merely because the state has created a parole system applies to this case whether the claimed due process violation is procedural or substantive.
Second, the conclusion reached by the majority that all prisoners have a liberty interest not to be treated arbitrarily by the government in effect avoids the requirement that a court first must identify the interest toward which the government has acted arbitrarily when it reviews a due process claim. Because Greenholtz held that prisoners have no liberty interest in parole unless the parole statute itself creates a legitimate expectation of parole and the Virgin Islands statute creates no such expectation, the majority in effect is concluding that any arbitrary action by the government creates the liberty interest itself. This conclusion strips the words “life, liberty or property” in the fifth amendment of any independent meaning and also completely undercuts the Supreme Court's analysis in Greenholtz.
I agree with the majority’s assertion that a discretionary parole system which creates no legitimate expectation of parole does not give the state the unfettered right to deny parole on arbitrary and impermissible grounds. However, the constitutionality of the grounds on which the parole board relies should be analyzed under other provisions of the Constitution and not the due process clause. For example, prisoners are protected from the arbitrary denial of parole based on “frivolous criteria with no rationale relationship to the purpose of parole,” or otherwise impermissible classifications such as race, by the equal protection clause. Prisoners are protected from parole denial based on their religious or political beliefs by the first amendment. This is the constitutional protection to which the Supreme Court was referring in the cases relied on by the majority. As the majority notes, in Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1973), the Court stated that “even though a person has no ‘right’ to a valuable government benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely.” The Court held in Perry that lack of a tenure right does not defeat a teacher’s claim that the nonrenewal of his contract violated his right to free speech under the first amendment, and that the teacher’s claim of a de facto tenure policy entitled him to an opportunity to prove the legitimacy of his claim to a property interest in job tenure. Therefore, neither Perry nor any of the other cases relied on by the majority support the proposition that due process protection attaches whenever there is arbitrary action by the government without first determining that there is a protected liberty or property interest. Because Block had no liberty interest in parole release, I would dismiss his due process claims and analyze the Parole Board’s decision under the equal protection clause.
II.
The Board admits that it denied Block’s parole application because it concluded that a person with Block’s advantageous background should be treated more harshly than the typical Virgin Islands parole applicant. Block asserts that this differential treatment violated the equal protection clause of the fourteenth amendment.
The minutes of the Board meeting at which Block’s application was considered state:
In complete contrast to the usual parole candidate presented to the Board, this man had a college education and after post-graduate training had for some years [practiced dentistry] in New York. There were no indications of financial want: .: . When asked why he should make use of someone else’s credit card despite all his advantages, his answer was-and it appeared to be a completely honest answer-“greed.” There seemed to be no danger that he would get into trouble again, as far as the Board members could see.
*245Voted to deny (vote not unanimous). The negative vote was based on the theory that a person who has had so many more advantages in life than those who are usually brought before the Virgin Islands courts and convicted should be dealt with by the Board more harshly than those who are the typical Virgin Islands parole applicants.
At the district court’s hearing on Block’s habeas corpus petition, Frederick G. Watts, the Chairman of the Virgin Islands Board of Parole, explained the Board’s decision. Initially, counsel for Block asked Watts to describe the typical Virgin Islands parole applicant against whom Block had been contrasted. He responded that:
they are typically black or Puerto Rican; they are typically grossly under-educat- ' ed. They are also typically unskilled in terms of work skills to any large extent, at least relatively unsophisticated people.
Watts admitted that Block is not black or Puerto Rican, not undereducated, and not unskilled or unsophisticated. He then justified the denial of Block’s parole application on the ground that:
it is not consistent with the welfare of society that when somebody who has all of these advantages and then decide[s] nevertheless to take it into his hands to commit a serious crime which is a felony in this jurisdiction then just be quickly released at the very minimum time.
Although Block’s ethnic background was alluded to in the district court by Watts as a factor distinguishing him from the typical Virgin Islands parole applicant, the district court did not address whether race as such was relied on by the Board in rendering its decision. Moreover, it is unclear from this record whether Block’s race or ethnic background as such rather than his general social and economic background was relied on by the Board to deny his parole. Because classifications based on race receive greater protection under the equal protection clause than economic classifications, I will first address the equal protection claim as though race was not a factor.
A.
Assuming that Block’s race or ethnic background was not a significant factor in the Board’s decision, the task in deciding his equal protection claim is to determine whether the Board had a rational basis for denying his parole application because of his advantageous social and economic background. See Dandridge v. Williams, 397 U.S. 471, 485-86, 90 S.Ct. 1153, 1161-1162, 25 L.Ed.2d 491 (1970). I agree with the majority’s analysis of general deterrence. I also agree with the majority’s conclusion that the Board’s decision “was rooted in the desire to punish” or retribution. I part company with the majority, however, when it concludes that retribution is an improper criterion for the Parole Board to consider because it is “within the sole province of the judiciary.” Without commenting on the desirability of the use of retribution as a criterion at the parole release stage, I think that it is within the authority of the Virgin Islands Parole Board to consider this rationale.
Section 4604 directs the Board to consider both whether an eligible prisoner is likely to violate the law if released and whether his release “is not incompatible with the welfare of society.” Thus the Board must consider not only the prisoner’s rehabilitation but also the effect of his release on the community as a whole. This latter factor makes concepts of general deterrence and retribution appropriate components of the parole decision. See Rankin v. Christian, 10 V.I. 455, 376 F.Supp. 1258 (D.V.I.1974) (parole denial under section 4604 because of need for general deterrence of drug offenses does not violate equal protection).
Although the federal parole statute does not control the disposition of this case, as the majority notes, it “is the model for the Virgin Islands statute.” The legislative history of this Act specifically enumerates retribution as a proper criterion for a Parole Board to consider when deciding on a parole application. For example, the Senate Report provides:
Parole is an extension of the sentencing process .... The final determination of *246precisely how much time an offender must serve is made by the parole authority. The parole agency must weigh several complex factors in making its decision, not all of which are necessarily complementary. In the first instance, parole has the practical effect of balancing differences in sentencing policies and practices between judges and courts.... [T]he parole authority must have in mind some notion of the appropriate range of time for an offense which will satisfy the legitimate needs of society to hold the offender accountable for his own acts.
S.Rep.No.94-369, 94th Cong., 2d Sess., 15-16, 1976 U.S.Cong. & Admin.News, pp. 335, 337. The House Conference Report also provides:
Determinations of just punishment are part of the parole process and these determinations cannot be easily made because they require an even-handed sense of justice. There is no body of competent empirical knowledge upon which parole decision-makers can rely, yet it is important for the parole process to achieve an aura of fairness by basing determinations of just punishment on comparable periods of incarceration for similar offenses committed under similar circumstances. The parole decision-makers must weigh the concepts of general and special deterrence, retribution and punishment, all of which are matters of judgment....
H.Con.Rep.No.94-838, 94th Cong., 2d Sess. 25-26, 1976 U.S.Cong. & Admin.News, p. 358. See also Shepard v. Taylor, 556 F.2d 648 (2d Cir. 1977) (under federal parole statute, determinations of just punishment are part of the parole process, and Parole Commission must weigh concepts of general deterrence and retribution).
Punishment is imposed on a criminal offender for purposes of retribution to condemn his conduct and to vindicate or reaffirm community norms and values. See generally S. Kadish & M. Paulsen, Criminal Law & Its Processes 6-21 (1975). Under this rationale, certain conduct that violates a criminal statute may constitute a greater affront to the societal values protected by the statute than the typical violation and therefore may merit more severe punishment. While such considerations generally are relevant to the decision of the sentencing judge, in view of the broad language of section 4604,1 think that it is also permissible for the Board to consider these retribution principles at the parole stage.
The Board found that Block committed an economic offense, fraudulent use of a credit card, solely because of greed. In the case of the typical and less fortunate Virgin Islands parole applicant described above, commission of this economic offense reasonably might evoke some sympathetic understanding. However, Block’s background displays none of the social and economic disadvantages that might mitigate such an offense or make his conduct less reprehensible.
Under these circumstances, I think that it was permissible for the Board to consider Block’s conduct in committing this particular offense to be more serious than similar conduct by a typical Virgin Islands parole applicant and that consequently, the community had a greater need to hold Block accountable for this crime. See Albano v. Anderson, 472 F.Supp. 931 (M.D.Pa.1979). Therefore, this concern constituted a rational basis for the Board’s reliance on Block’s advantageous social and economic background in denying his parole application, and denial of parole on this basis does not violate the equal protection clause.
B.
If, contrary to my assumption in the above section, the Board did base its decision on the fact that Block was white, this basis deserves greater scrutiny under the equal protection clause. Whether the standard of scrutiny is couched in terms of strict scrutiny or some lesser standard, see University of California Regents v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), I do not think that the Board’s interest in retribution would permit it to deny parole because of race.
I therefore agree with the majority that race is an impermissible criterion for the *247Board to consider, but unlike the majority, I do think that it is the proper function of this court to make independent findings of fact on appeal, at least in the present context. Because the district court did not address, and the record is unclear, to what extent, if any, Block’s race or ethnic background may have been a factor in the Board’s decision, I would remand this case to the district court for a forthwith hearing and determination as to whether race was a significant factor. Such an order would answer the majority’s concern that because Block’s term soon will expire, his constitutional rights will go unredressed. In any event, contrary to the suggestion in the majority opinion, I do not believe that the need for expedition justifies deviation from established fact-finding procedures.
. The statute provided in relevant part that:
Whenever the Board of Parole considers the release of a committed offender who is eligible for release on parole, it shall order his release unless it is of the opinion that his release should be deferred because:
(a)There is a substantial risk that he will not conform to the conditions of parole;
(b) His release would depreciate the seriousness of his crime or promote disrespect for law;
(c) His release would have a substantially adverse effect on institutional discipline; or
(d) His continued correctional treatment, medical care, or vocational or other training in the facility will substantially enhance his capacity to lead a law-abiding life when released at a later date.
Neb.Rev.Stat. § 83-1, 114 (1976).