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Neese v. Utah Board of Pardons and Parole

Supreme Court of Utah

December 14, 2017

Michael Neese, Appellant,
Utah Board of Pardons and Parole, Appellee.

         On Certification from the Utah Court of Appeals Sixth District, Manti The Honorable Wallace A. Lee No. 140600017

          Marshall Thompson, Salt Lake City, for appellant

          Sean D. Reyes, Att'y Gen., Brent A. Burnett, Asst. Solic. Gen., Amanda N. Montague, Asst. Att'y Gen., Salt Lake City, for appellee

          Justice Himonas authored the opinion of the Court, in which Justice Durham [†] and Justice Pearce joined, and in which Chief Justice Durrant joined in Parts I, II, and III. A.




         ¶ 1 Michael Neese, a Utah prison inmate, has never been convicted of a sex offense, subjected to prison discipline for sexual misconduct, or otherwise adjudicated a sexual offender. Yet the Board of Pardons and Parole (Parole Board) has denied him an original release date for parole largely based on its determination that he's a sex offender and his refusal to participate in sex offender treatment. Applying the principles we articulated in Labrum v. Utah State Board of Pardons, 870 P.2d 902 (Utah 1993), we hold today that the district court erred in granting summary judgment to the Parole Board on the question of whether it violated Mr. Neese's due process rights under article I, section 7 of the Utah Constitution. Before the Parole Board may take the refusal of inmates in Mr. Neese's shoes to participate in sex offender treatment into consideration in deciding whether to grant them parole, it owes them (1) timely, particularized written notice that allegations they committed unconvicted sexual offenses will be decided; (2) the opportunity to call witnesses; and (3) a written decision adequately explaining its basis for determining that they're sex offenders and asking them to participate in sex offender treatment.


         ¶ 2 After his trial on forcible sodomy ended in a mistrial, Mr. Neese pleaded guilty to two counts of obstruction of justice, one count of theft, and one count of burglary. Mr. Neese received a composite prison sentence of two to thirty years. Under Utah's discretionary sentencing scheme, this meant that the Parole Board was authorized to order Mr. Neese's release any time between two and thirty years from his sentence and commitment. A nonbinding "sentencing matrix" prepared for the district court estimated that Mr. Neese would likely serve forty-six months, with an anticipated release date in 2014.[1]

         ¶ 3 Mr. Neese's original parole hearing began on September 13, 2011. The hearing officer asked Mr. Neese about his criminal history, his record in prison, and his plans upon release. Mr. Neese only partially accepted responsibility for the offenses to which he pleaded guilty, and he minimized his prior criminal record. Mr. Neese also reported that he'd successfully participated in anger management and other prison programming, and he stated that, upon release, he intended to work in construction.

         ¶ 4 The hearing officer questioned Mr. Neese extensively about allegations that he'd raped his friends' daughter in 2009, while he was an overnight guest at her parents' house. The hearing officer based his questions on Mr. Neese's presentence report, police reports, a victim statement, and correspondence from the prosecuting attorneys in Mr. Neese's case, all of which stated that the seventeen-year-old daughter of one of Mr. Neese's longtime friends had told police that she had awoken to find Mr. Neese in her bed with his erect penis between the cheeks of her buttocks.[2]

         ¶ 5 In response to the hearing officer's questioning, Mr. Neese "denied attempting to sodomize the victim." He acknowledged that he'd entered her room while she was sleeping and that his shirt was off at the time, but he explained that he did so because he was about to go to sleep, needed a pillow and blanket, and knew that was where his host kept spare bedding. He speculated that the alleged victim -who he testified had previously been the victim of sexual abuse-had falsely accused him because she'd been "startled" by seeing him in her room with his shirt off.

         ¶ 6 After his first hearing, the Parole Board declined to set a release date and scheduled a rehearing. It based its decision on (1) his "[h]istory of similar offenses, " (2) his "[h]istory of unsuccessful . .. supervisions, " (3) the fact that he'd been convicted of offenses involving "[m]ultiple incidents and/or victims, " (4) the "[p]ersonal gain he reaped from the offense, " (5) his "[d]enial or minimization ... of responsibility, " (6) his history of "[r]epeated, numerous ... incarceration[s] or parole revocation[s], " and (7) his lack of "[o]verall rehabilitative progress and promise." The Parole Board scheduled the rehearing for Mr. Neese on February 1, 2014, and it stated that a sex offender treatment memorandum was "due to the Board of Pardons by 01/2014."

         ¶ 7 Mr. Neese's rehearing took place on February 13, 2014. Unlike at his first hearing, Mr. Neese accepted responsibility for the crimes of which he was convicted and didn't seek to minimize his prior criminal history other than refusing to discuss his juvenile record because he considered it "irrelevant." The hearing officer noted that Mr. Neese had been a "good inmate" who had completed numerous life skills classes, and Mr. Neese again emphasized that he intended to do construction work once he was released.

         ¶ 8 As at Mr. Neese's first hearing, the hearing officer again asked Mr. Neese about his alleged 2009 sex offense. Mr. Neese again denied these allegations and testified in detail-and consistent with the testimony he gave at his first parole hearing-about what had happened, why he believed he was falsely accused, and why he thought his accuser was not credible. Mr. Neese stated that he wasn't willing to participate in sex offender treatment.

         ¶ 9 At the end of the second hearing, the hearing officer stated that he didn't "buy [Mr. Neese's] story on the sex offense." He also telegraphed that Mr. Neese's refusal to participate in sex offender treatment would be, as the district court found it was, a factor in his recommendation to the Parole Board, stating, "I'm gonna take the matter under advisement as far as what I'm gonna recommend [to the Parole Board], but... I wish you'd ... been willing to do sex offender treatment, that would have been a lot better."

         ¶ 10 On February 20, 2014, the Parole Board declined for a second time to fix an early release date for Mr. Neese. Among the reasons it gave was Mr. Neese's refusal to accept responsibility-a consideration that could only apply on the assumption that Mr. Neese had committed a sexual offense because Mr. Neese had accepted responsibility for his other crimes. The Parole Board scheduled a third hearing for Mr. Neese, and again ordered the Department of Corrections to prepare a sex offender treatment memorandum.

         ¶ 11 After he was denied a release date for a second time, Mr. Neese filed a pro se petition for a writ of extraordinary relief. His lawsuit alleged that the Parole Board's determination that he was a sex offender and its decision to condition his parole on successful completion of sex offender treatment violated his due process rights. Mr. Neese also asked the district court to appoint counsel. The district court denied Mr. Neese's request for counsel and dismissed Mr. Neese's complaint as frivolous, but the court of appeals reversed after concluding that Mr. Neese had raised a nonfrivolous issue implicating "the fairness of the process by which the [Parole] Board undertakes its sentencing function." Neese v. Utah Bd. of Pardons & Parole, No. 2014647-CA (unpublished order Nov. 20, 2014) (quoting Padilla v. Utah Bd. of Pardons & Parole, 947 P.2d 664, 667 (Utah 1997)).

         ¶ 12 On remand, the Parole Board moved for summary judgment and Mr. Neese filed a response in opposition. The district court granted summary judgment for the Parole Board, concluding that Mr. Neese received due process under the state constitution.

         ¶ 13 Mr. Neese now appeals. He argues that the Parole Board's determinations violate (1) the Utah Constitution's unnecessary rigor provision, (2) the Utah Constitution's due process provision, (3) the Eighth Amendment's prohibition on cruel and unusual punishment, and (4) the Fourteenth Amendment's Due Process Clause.

         ¶ 14 Utah Code section 78A-3-102(3)(b) gives us jurisdiction.


         ¶ 15 Because this case poses significant preservation problems, we first address which of Mr. Neese's claims are preserved for review.

         ¶ 16 The preservation requirement is a "self-imposed" rule of "prudence" that aims to promote fairness and judicial economy. Fort Pierce Indus. Park Phases II, III and IV Owners Ass'n v. Shakespeare, 2016 UT 28, ¶ 13, 379 P.3d 1218 (citation omitted). "As a general rule, claims not raised before the trial court may not be raised on appeal." State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346 (citation omitted). To be adequately raised, a claim "must at least be raised to a level of consciousness such that the trial [court] can consider it." State v. Cruz, 2005 UT 45, ¶ 33, 122 P.3d 543 (alteration in original) (citation omitted). Thus, an issue is preserved when it's "presented to the trial court in such a way that the trial court has an opportunity to rule on that issue." In re Adoption of Baby E.Z., 2011 UT 38, ¶ 25, 266 P.3d 702 (citation omitted) (internal quotation marks omitted). Similarly, when a lower court decides "to take up [a] question, " this decision "conclusively overc[o]me[s] any objection that the issue was not preserved for appeal" because the issue has consciously been addressed by the court. Shakespeare, 2016 UT 28, ¶ 13 (citation omitted). But the mere fact that a party "mention[ed] ... an issue without introducing supporting evidence or relevant legal authority" doesn't suffice to preserve it for appeal. Cruz, 2005 UT 45, ¶ 33 (second alteration in original) (citation omitted) (internal quotation marks omitted).

         ¶ 17 Two of Mr. Neese's arguments on appeal-his Eighth Amendment and unnecessary rigor challenges - are plainly unpreserved. Mr. Neese never raised an Eighth Amendment challenge to the Parole Board's actions in his petition for an extraordinary writ, and he mentioned the unnecessary rigor provision only once, without connecting it to any facts, law, or argument. Neither the Parole Board nor the district court considered these claims, nor did the court of appeals otherwise put these claims at issue in its order vacating the district court's determination that Mr. Neese's petition was frivolous and remanding to give the Parole Board an opportunity to explain why its proceedings respected Mr. Neese's due process rights. These claims are therefore not properly before us. See State v. Worwood, 2007 UT 47, ¶ 16, 164 P.3d 397 ("[P]erfunctorily mentioning an issue, without more, does not preserve it for appeal." (citation omitted)); see also State v. Winfield, 2006 UT 4, ¶ 19, 128 P.3d 1171 (while pro se litigants "should be accorded every consideration that may reasonably be indulged" they're nonetheless "held to the same standard of knowledge and practice as any qualified member of the bar" (citations omitted)).

         ¶ 18 On the other hand, Mr. Neese's due process claims are preserved and properly before us. Mr. Neese preserved his federal due process claim in his petition for an extraordinary writ. He argued at length that the Parole Board's finding that he'd committed a sex offense of which he'd never been convicted and that its decision to factor his refusal to participate in sex offender treatment into its early release determination violated the Due Process Clause of the Fourteenth Amendment. And he adduced detailed facts and pertinent legal authority in support of this claim.

         ¶ 19 As the Parole Board acknowledged in its briefing to this court, Mr. Neese's state due process claim was likewise preserved before the district court. While Mr. Neese's petition didn't itself plead a separate due process claim under our constitution, the court of appeals injected the issue into the underlying proceeding when it directed the district court to solicit a response from the Parole Board on the "fairness of the process by which the [Parole] Board undertakes its sentencing function" under Padilla v. Utah Board of Pardons & Parole, 947 P.2d 664, 667 (Utah 1997) (citation omitted) -a state due process case. Based on the court of appeals' order, the Parole Board understood the issue before the district court to be "whether an inmate not convicted of a sex offense can be required to participate in sex offender treatment for purposes of determining eligibility for release on parole/' and it cited Padilla in support of its argument that Mr. Neese received adequate due process protections. Similarly, the district court relied on Labrum v. Utah State Board of Pardons, 870 P.2d 902 (Utah 1993)-a case solely addressing the due process protections an inmate enjoys under article I, section 7 of the Utah Constitution-in concluding that Mr. Neese had received adequate due process protections. Thus, because the Parole Board understood the state due process provision to be implicated in Mr. Neese's petition for extraordinary relief, and because the district court itself "[took] up the question, " Mr. Neese's state due process claim is preserved. Shakespeare, 2016 UT 28, ¶ 13.[3]

         ¶ 20 Because Mr. Neese's due process claims are preserved for appeal, we now turn to their merits.


         ¶ 21 The question in this case is whether the district court erred in granting summary judgment in favor of the Parole Board on Mr. Neese's due process claims. "Constitutional issues, including questions regarding due process, are questions of law that we review for correctness." Salt Lake City Corp. v. Jordan River Restoration Network, 2012 UT 84, ¶ 47, 299 P.3d 990 (quoting Chen v. Stewart, 2004 UT 82, ¶ 25, 100 P.3d 1177). When a due process question requires "application of facts in the record to the due process standard, we incorporate a clearly erroneous standard for the necessary subsidiary factual determinations." Id. (quoting Chen, 2004 UT 82, ¶ 25). But on summary judgment, all factual inferences must be drawn in favor of the nonmoving party as a matter of law, and we therefore review an award of summary judgment on a due process issue only for correctness. See Rupp v. Moffo, 2015 UT 71, ¶ 5, 358 P.3d 1060.


         ¶ 22 Our court has on occasion advocated for a primacy approach under which "a state court looks first to state constitutional law, develops independent doctrine and precedent, and decides federal questions only when state law is not dispositive." State v. Worwood, 2007 UT 47, ¶ 15, 164 P.3d 397 (citation omitted). Here we begin with Mr. Neese's state due process claim.

         ¶ 23 Article I, section 7 of the Utah Constitution provides that "[n]o person shall be deprived of life, liberty or property, without due process of law." In Labrum v. Utah State Board of Pardons, we held that this provision extends the protection of "fundamental principles of due process" to inmates at "original parole grant hearings at which predicted terms of incarceration are determined." 870 P.2d 902, 911 (Utah 1993); see also Neel v. Holden, 886 P.2d 1097, 1101 (Utah 1994) (state due process protections apply to all parole hearings prior to and including the "hearing[] at which an inmate's release date is fixed"). This is because Utah has an indeterminate sentencing scheme under which the district court's role is limited to imposing the statutorily prescribed range of years for the offense of conviction. Within this range-in this case, two to thirty years -it's "left to the unfettered discretion" of the Parole Board to fix the term of imprisonment. Labrum, 870 P.2d at 908 (quoting Foote v. Utah Bd. of Pardons, 808 P.2d 734, 735 (Utah 1991)). As a consequence of this discretion, original parole grant hearings -those hearings at which the Parole Board makes "the first determination of the actual term the inmate is to serve in prison" - are in "reality ... analogous to sentencing hearings and require due process to the extent that the analogy holds." Id.

         ¶ 24 The hearings at issue here are original parole grant hearings directly subject to Labrum's due process protections. These protections vary depending on the demands of the particular situation. See id. at 911 ("Due process is flexible and calls for the procedural protections that the given situation demands." (quoting In re Whitesel, 763 P.2d 199, 203 (Wash. 1988) (en banc))). To determine what procedural protections are due in a given case requires that we attend to the two "critical functions" of procedural due process: (1) to reduce the risk of error and (2) to "preserve the appearance of fairness and the confidence of inmates in the decisionmaking process." Id. at 909-10 (citation omitted). Labrum also instructs us to develop these procedures with an eye toward safeguarding other important criminal procedure values: "promot[ing] uniformity in sentences, reduc[ing] the need for trials by encouraging rational plea bargains, and provid[ing] incentives for good behavior in prison." Id. at 908.


         ¶ 25 With these principles in mind, we turn to what procedural protections the Parole Board must respect before it determines that someone who has never before been adjudicated a sex offender is one and effectively conditions his early release on his participation in sex offender treatment. In Labrum, the petitioner argued that he was entitled (1) to "receive adequate notice to prepare for [his] parole release hearing" and (2) to "receive copies or a summary of the information in the [Parole] Board's file on which the [Parole] Board will rely." Labrum v. Utah State Bd. of Pardons, 870 P.2d 902, 904 (Utah 1993). We agreed. We explained that providing an inmate with notice of both his parole hearing and the information on which the Parole Board intended to rely in making its determination would both reduce the risk of error (by allowing the inmate to point out factual inaccuracies in his file) and promote the inmate's perception of fairness (by ensuring that his concerns were taken into account by the Parole Board). Id. at 909. And we held that these protections helped promote sentence uniformity, the rationality of plea bargains, and good behavior in prison. Id. at 908.

         ¶ 26 Labrum didn't purport to exhaustively list the procedural protections to which the Utah Constitution entitles an inmate in an original parole hearing. Instead, Labrum "emphasize[d] ... that this opinion ... addresses only those procedures specifically requested by this petitioner." Id. at 911. It also explained that, in many cases, the only question will be whether the information before the Parole Board has basic factual inaccuracies that the inmate can correct simply by bringing them to the hearing officer's attention. See id. at 909-10 (quoting Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 33 & n.15 (1979) (Marshall, J., dissenting)). But it left for another day "[t]he extent to which additional due process protections must be afforded inmates in this and other proceedings in the parole system/' which it recognized would "require case-by-case review." Id. at 911.

         ¶ 27 Applying the framework that Labrum articulated, we conclude that the case before us calls for additional procedural protections, over and above notice of a hearing and the opportunity to review the information on which the Parole Board will rely in making its determination about whether, and when, to fix Mr. Neese's initial release date. The Parole Board's conduct in this case is, at a minimum, closely analogous to a sentencing court's considering uncharged or unconvicted conduct in fixing a defendant's sentence.[4] See id. at 908 (due process protections apply when Parole Board acting analogously to a sentencing court). In this case, the Parole Board has concluded that Mr. Neese committed a sexual offense of which he's never been convicted (or otherwise found liable), that Mr. Neese was unsuccessfully tried on, and culpability for which Mr. Neese specifically bargained away in plea negotiations.

         ¶ 28 In this circumstance-essentially turning the presumption of innocence on its head and imprisoning a person for decades for a sex crime they've never been convicted of-the two "critical functions" of procedural due process - minimizing error and promoting the perception of fairness - require greater procedural protections than thin notice and the opportunity to review the Parole Board's information.

         ¶ 29 Nor is simply giving the inmate an opportunity to speak on his own behalf enough to reduce the risk of error when, as here, unconvicted sexual conduct logically distinct from the offenses of conviction is at issue. See Neel v. Holden, 886 P.2d 1097, 1103 (Utah 1994) ("[T]he touchstone of due process in the context of parole hearings is whether the proposed procedural due process requirement substantially furthers the accuracy and reliability of the [Parole] Board's fact-finding process."). This case is different from those instances where the Parole Board is reviewing presumptively reliable court and disciplinary files or otherwise taking into account undisputed background facts about the inmate or his victim. Cf. id. (denying that due process provision gives an inmate the right to have counsel address the Parole Board when the inmate "failed to show how the further participation of counsel at the hearing would have affected the accuracy of the information considered by the [Parole] Board"); Monson v. Carver, 928 P.2d 1017, 1030 (Utah 1996) (denying an inmate the right to call character witnesses). When the Parole Board is assessing whether an inmate has committed unconvicted conduct, it's sitting as a judicial fact-finder for purposes of parole adjudicating the inmate guilty of a criminal offense of which the inmate was never convicted. In both criminal trials and the closely related context of prison disciplinary proceedings, where prison authorities seek to determine whether an inmate has committed a disciplinary infraction, due process affords inmates greater procedural protections than Mr. Neese received. See Wolff v. McDonnell, 418 U.S. 539, 564, 566 (1974) (with exceptions for prison safety, inmates have due process right "to call witnesses and present documentary evidence" in prison disciplinary proceedings because "the right to present evidence is basic to a fair hearing"; they also have a right to a detailed written rationale of the disciplinary determination); see also Rock v. Arkansas, 483 U.S. 44, 52 (1987) (compulsory process in criminal cases).

         ¶ 30 Additional procedural protections are particularly important when the Parole Board is considering whether an inmate has committed an unconvicted sex offense. The determination that an inmate has committed a sex offense triggers an unusually-perhaps uniquely-harsh set of consequences. Construing the record in the light most favorable to Mr. Neese, as we must, it appears that the Parole Board places significant and perhaps determinative weight on whether an inmate deemed to be a sex offender has participated in sex offender treatment in making its early release determinations. But a prerequisite to participating in sex offender treatment is admitting to having committed a sex offense. See State v. Humphrey, 2003 UT App 333, ¶ 5, 79 P.3d 960 (noting that sex offender treatment programs require inmates to "admit[] guilt"). Thus, unlike in other situations where the Parole Board might erroneously conclude that an inmate has committed unconvicted conduct and ask that the inmate participate in additional prison programming, when the Parole Board erroneously determines that an inmate is a sex offender, that inmate can't truthfully participate in the treatment program. Unconvicted sex offenses thus pose a unique problem that requires unique procedural protections.

         ¶ 31 There are additional reasons why the interest in minimizing error is particularly urgent in cases where the Parole Board has determined that an inmate has committed a sex offense of which he's not been convicted, and where-as here-it's alleged that this determination has caused the Department of Corrections to classify the inmate as a sex offender. Inmates who are classified as sex offenders are beaten and raped at significantly higher rates than others in the prison population. See Renchenski v. Williams, 622 F.3d 315, 326 (3d Cir. 2010) ("[S]ex offenders are considered an anathema in the inmate subculture ... [and] inmate norms call for their savage beating." (alterations in original) (citation omitted) (internal quotation marks omitted)); Alice Ristroph, Sexual Punishments, 15 Colum. J. Gender & L. 139, 159-60 (2006) ("[S]ex offenders are a distinct and disfavored category within prison populations, subject to heightened abuse from both corrections officers and fellow inmates. By many reports, sex offenders are themselves disproportionately likely to be the target of sexual assault in prison." (citations omitted)); see also U.S. Dep't of Justice, National Prison Rape Elimination Commission Report 75 (2009), (noting that inmates with "prior convictions for sex offenses against an adult or child" face a heightened "risk of victimization" in prison). Additionally, sex offender treatment is highly invasive and degrading. Among other things, male participants are required to undergo penile plethysmograph tests, in which they're shown pornography while their penis is hooked to a device that measures blood flow and, hence, arousal. See Utah Admin. Code R. 251-109-6(2). According to Mr. Neese's pleadings, they're also removed from the general prison population and placed in more restrictive conditions and in closer proximity to sexual predators. These deleterious effects, when coupled with the problem that it's impossible for a person who has erroneously been classified as a sex offender to truthfully participate in sex offender treatment, make the risk of error in cases where the Parole Board decides that an inmate has committed an unconvicted sex offense particularly acute.

         ¶ 32 Additional procedural protections are also needed to protect the integrity of the parole-grant process and to promote the other criminal procedure values that Labrum seeks to safeguard: uniformity in sentences, rational plea bargaining, and good behavior in prison. Labrum, 870 P.2d at 908. As far as the record before us reveals, Mr. Neese has never been convicted of a sex offense or adjudicated a sex offender in a disciplinary, juvenile, or any other proceeding. While he was tried for a sex offense, the trial ended in a mistrial, and Mr. Neese subsequently entered a plea agreement only to other, nonsexual charges. In short, Mr. Neese accepted an offer to plead to nonsexual crimes after having steadfastly maintained that he was innocent of sexual misconduct, having gone to trial to hold the State to its burden of proving him guilty of a sex offense and having not been convicted. We think an inmate in this position would justly question the integrity of a system in which the Parole Board could, after all this, adjudge him a sex offender and postpone his release date for up to twenty-eight years based solely on unproven allegations and without giving the inmate the opportunity to call witnesses or affording him a meaningful explanation of its decision.

         ¶ 33 The risk of unjustified sentencing disparities in such a system is great. By the same token, defendants will be justifiably wary of accepting plea deals if they know that bargained-for dismissed charges, on which they have steadfastly maintained their innocence and that are not logically implicit in the factual basis of their allocution, can come roaring back at their parole hearing and result in a sentence decades longer than the sentence all parties contemplated based on the sentencing matrix at the time. And, given that the perception of fairness is important to good behavior in prison, this value will also be well-served by according inmates in Mr. Neese's shoes the procedural protections that basic fairness requires. See id.

         ¶ 34 The transcripts of the parole-grant hearings in this case underscore the need for additional procedural protections for inmates like Mr. Neese. In both his initial parole hearing and his rehearing in 2014, Mr. Neese testified consistently and emphatically that he wasn't a sexual offender. The transcripts of these hearings reveal that both his account of the events of the night on which he was accused of committing rape and his explanation of why the alleged victim falsely accused him have surface plausibility. We're hard pressed to see how Mr. Neese could have mounted a more effective defense while availing himself only of the basic due process protections to which Labrum entitles all inmates. Yet, without explaining why, the Parole Board chose to believe unproven allegations in a police report over Mr. Neese's explanation of why they were false. We lack confidence in the accuracy of these proceedings.

         ¶ 35 On appeal, the Parole Board argues that because Mr. Neese isn't entitled to parole, he can't have a "protectable liberty interest" in early release that would trigger the protections of due process over and above what Labrum already requires. The Parole Board directs our attention to federal cases holding that, in discretionary parole systems, parole boards may ask inmates to participate in sex offender treatment and even make participation a precondition to early release without according any process at all.

         ¶ 36 The Parole Board appears to be correct that Mr. Neese doesn't enjoy federal procedural due process protections in a discretionary parole grant hearing. Under federal law, the Due Process Clause applies only to prospective parolees who have a protected "liberty interest" in early release. Sandin v. Conner, 515 U.S. 472, 477 (1995). But only prospective parolees who enjoy a legal entitlement or presumption in favor of early release-for example, because a statute presumptively entitles them to good-time credit-are deemed to have such a liberty interest. See Greenholtz, 442 U.S. at 7 ("The Due Process Clause applies when government action deprives a person of liberty or property ... [but t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence."); see also Bd. of Pardons v. Allen, 482 U.S. 369, 373 (1987) ("[T]he presence of a parole system by itself does not give rise to a constitutionally protected liberty interest in parole release."). Because discretionary parole systems don't create presumptive entitlements to early release, the federal Due Process Clause doesn't apply to require any particular process before the Parole Board (1) denies early release based, in part, on its determination that an inmate is a sex offender or even (2) makes the inmate's participation in sex offender treatment a precondition of early release. See, e.g., Straley v. Utah Bd. of Pardons, 582 F.3d 1208, 1214-15 (10th Cir. 2009) (Because "[t]he Utah parole statutes grant the [Parole] Board complete discretion in making parole decisions [and an inmate] has no state entitlement to parole ... [t]he Utah parole statutes ... do not create a liberty interest entitling [an inmate] to federal due process protections."); Hughes v. Owens, 320 Fed.Appx. 271, 272 (5th Cir. 2009) ("It is axiomatic that because Texas prisoners have no protected liberty interest in parole they cannot mount a challenge against any state parole review procedure on procedural (or substantive) Due Process grounds." (citation omitted) (internal quotation marks omitted)); Grennier v. Frank, 453 F.3d 442, 446 (7th Cir. 2006) (holding that there is no "liberty or property interest in the prospect of parole under Wisconsin's discretionary system" and therefore no due process right to hearing before parole board may consider failure of inmate not convicted of sex offense to participate in sex offender treatment).

         ¶ 37 Mr. Neese has adduced no contrary authority; each of the cases that Mr. Neese cites for the proposition that the federal Due Process Clause entitles inmates to procedural protections before they may be classified as sex offenders first found a protected liberty interest based on an underlying statutory entitlement to release that the sex offender classification jeopardized. See, e.g., Coleman v. Dretke, 395 F.3d 216, 225 (5th Cir. 2004) (holding that parolees have protected liberty interest in not being required to participate in sex offender treatment); Gwinn v. Awmiller, 354 F.3d 1211, 1217 (10th Cir. 2004) (holding that classification as sex offender that, by operation of law, reduced rate at which inmate could earn good time credits interferes with protected liberty interest); Neal v. Shimoda, 131 F.3d 818, 829 (9th Cir. 1997) (holding that inmate's protected liberty interest is implicated when "State's regulations render the inmate completely ineligible for parole [to which the inmate is otherwise statutorily entitled] if the [sex offender] treatment program is not satisfactorily completed").

         ¶ 38 We acknowledge that in Sandin v. Conner, the United States Supreme Court retreated somewhat from the view that statutory and regulatory entitlements are necessary or sufficient to create protected liberty interests, and that Sandin instead urged courts to focus on the functional questions whether a parole or correctional decision has imposed an "atypical and significant hardship" on the inmate or "will inevitably affect the duration of [the] sentence." 515 U.S. at 484, 487. But federal circuit courts that have considered whether, after Sandin, inmates in discretionary sentencing schemes have any protected liberty interest in early release have uniformly concluded that they don't. See, e.g., Jenner v. Nikolas, 828 F.3d 713, 717 (8th Cir. 2016) (Sandin doesn't change the rule that absent a statutory right to parole there's no "protected liberty interest" for purposes of Due Process Clause); Duemmel v. Fischer, 368 Fed.Appx. 180, 182 (2d Cir. 2010) (holding that an inmate in discretionary parole system not entitled to due process before participation in sex offender treatment made a prerequisite for parole eligibility because, absent indication that inmate enjoys a "presumption of parole release, " no indication that the requirement "will inevitably affect the duration of his sentence" (quoting Sandin, 515 U.S. at 487)); Michael v. Ghee, 498 F.3d 372, 378 (6th Cir. 2007) (noting that "Sandin was decided only in the context of prison conditions, not parole eligibility" and concluding that an inmate "under a discretionary parole system" has no protected liberty interest (quoting Swihart v. Wilkinson, 209 Fed.Appx. 456, 458-59 (6th Cir. 2006))); McQuillion v. Duncan, 306 F.3d 895, 903 (9th Cir. 2002) ("Sandin does not deal with a prisoner's liberty interest in parole and does not overrule Greenholtz and Allen." (citing Ellis v. District of Columbia, 84 F.3d 1413, 1417-18 (D.C. Cir. 1996))); Ellis, 84 F.3d at 1418 ("Until the Court instructs us otherwise, we must follow Greenholtz and Allen because, unlike Sandin, they are directly on point. Both cases deal with a prisoner's liberty interest in parole; Sandin does not. And so we return to the language of the regulations."); Orellana v. Kyle, 65 F.3d 29, 32 (5th Cir. 1995) (Sandin doesn't change the fact that because inmates "ha[ve] no liberty interest in obtaining parole in Texas ['s discretionary parole system], [they] cannot complain of the constitutionality of procedural devices attendant to parole decisions.").

         ¶ 39 So the Parole Board is likely right that Mr. Neese doesn't presently enjoy a federally protected liberty interest in parole. But the federal cases don't support the Parole Board's contention that Labrum sets the ceiling for state due process protections, and they're curious cases to press into that service. Instead, if the logic of these cases applied under Utah's Constitution, we'd have to overrule Labrum and hold that our constitution requires the same "liberty interest" analysis that the federal courts employ. But the Parole Board doesn't ask us to overrule Labrum, and, even more importantly, we believe that Labrum got it right: being kept in prison, potentially for decades longer than one otherwise would, is a paradigmatic example of a deprivation of liberty. Moreover, to the extent that the Parole Board asks us to conclude that Labrum is confined to its facts, we decline the invitation. The Parole Board has given us no cause to repudiate the reasoning of Labrum, and our task is to faithfully apply our precedent. We adhere to Labrum absent any argument or indication that it should be overruled. See State v. Steed, 2015 UT 76, ¶ 11 n.9, 357 P.3d 547 ("We should tread cautiously in overruling precedent and this is especially true where the parties have failed to brief or even argue that a particular precedent should be overruled." (citation omitted)).

         ¶ 40 Based on Labrum's framework and the undisputed facts (1) that Mr. Neese has never been adjudicated a sex offender in any proceeding and (2) that the Parole Board nonetheless determined that he'd committed a sex offense and thus took his refusal to participate in sex offender treatment into consideration as a factor bearing on whether he should be released, we conclude that Mr. Neese was entitled to greater due process protections than he received.


         ¶ 41 Among the crucial elements of due process under article I, section 7 of the Utah Constitution are "notice to the person of the inauguration and purpose of the inquiry and the time at which such person should appear if he wishes to be heard/' the "right to appear in person or by counsel/' and a "fair opportunity to submit evidence." Christiansen v. Harris, 163 P.2d 314, 317 (Utah 1945). In this case, we're, in large measure, concerned with an inmate's opportunity to submit evidence when seeking to challenge a charge that he or she has committed an entirely new sexual offense.

         ¶ 42 In Wolff v. McDonnell, 418 U.S. 539 (1974), the United States Supreme Court considered what procedures the federal Due Process Clause required prison officials to provide inmates in the closely related context of prison disciplinary proceedings. It held that inmates in disciplinary proceedings were entitled to (1) "advance written notice of the claimed violation, " (2) the ability to "call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals, " and (3) a "written statement of the factfinder[] as to the evidence relied upon and the reasons for the disciplinary action taken." Id. at 563, 566. When a federal liberty interest is implicated, federal courts have similarly adopted these protections in proceedings where a parole board intends to classify inmates as sex offenders and require them to complete sex offender treatment as a precondition for parole eligibility. See, e.g., Neal v. Shimoda, 131 F.3d 818, 830 (9th Cir. 1997).

         ¶ 43 We hold today that the Utah Constitution requires analogous procedures in original parole grant hearings where the Parole Board intends to classify as a sex offender an inmate who has never been convicted of a sex offense or otherwise adjudicated a sex offender. That is, the Parole Board (1) must, in advance of the hearing, provide particularized written notice that it intends to consider and effectively decide unconvicted sexual conduct in making its parole determination; (2) unless the safe administration of the prison system requires otherwise, it must allow the inmate to call witnesses and present documentary evidence in his defense; and (3) it must provide a written statement of the evidence it relied upon and the reasons it concluded that the inmate committed the unconvicted sexual conduct.

         ¶ 44 These procedures will redress the due process problems that we've identified with the Parole Board's considering unconvicted sexual conduct in this case. Particularized, advance written notice and the ability to call witnesses will reduce the risk of error and promote the perception of fairness by allowing inmates to meaningfully present evidence in a situation where they've never before had the opportunity to do so. The requirement that an inmate receive particularized written notice flows directly from Labrum's holding that inmates must be given "the materials and information on which the [Parole] Board [intends to] rel[y] at an original parole grant hearing." Labrum v. Utah State Bd. of Pardons, 870 P.2d 902, 909 (Utah 1993). This right of access extends broadly to give the inmate the opportunity to review and prepare to address any information on which the Parole Board intends to rely. For example, notwithstanding the confidential nature of psychological reports, an inmate is presumptively "entitled to access psychological reports to be considered by the [Parole] Board in hearings at which the inmate's release date may be fixed or extended." Neel v. Holden, 886 P.2d 1097, 1103 (Utah 1994). Thus, when the Parole Board plans to consider unadjudicated allegations of sexual misconduct, an inmate must be given particularized written notice of the nature of those allegations sufficiently in advance of the hearing to allow him to prepare a defense.

         ¶ 45 An inmate who stands accused of committing an unconvicted sexual offense must also be allowed to call witnesses. To be sure, the ability to call witnesses isn't essential to the fairness and accuracy of all original parole proceedings. But when the Parole Board considers unconvicted sexual conduct, these procedural protections are "basic to a fair hearing." Wolff, 418 U.S. at 566. This is because the Parole Board, in considering unconvicted sexual conduct, is effectively trying the inmate for an offense that has never before been adjudicated in any other forum (criminal trial, sentencing proceeding, or prison disciplinary hearing). It would be anomalous to allow the Parole Board to effectively convict an inmate of a sexual offense- effectively adding decades to his sentence and placing him in the impossible bind of having to participate in a treatment program he can't honestly engage in-without first giving the inmate the opportunity to put on testimony.

         ¶ 46 Similarly, a written statement of the evidence relied upon and the reasons that the Parole Board concluded that the inmate committed the unconvicted sexual conduct will promote fairness and accuracy, both by ensuring that the Parole Board has carefully considered the evidence and by creating a record of the Parole Board's adjudication that allows for meaningful due process review. Cf. Preece v. House, 886 P.2d 508, 512 (Utah 1994) (courts may review only "the process by which the [Parole] Board undertakes its sentencing function" (citation omitted) (internal quotation marks omitted)). This is particularly important when the Parole Board is, in effect, holding a miniature criminal trial-a proceeding that, more so than the ordinary functions of the Parole Board (reviewing disciplinary, court, criminal, family, and victim history and impact records and making a determination regarding early release) is squarely within the judiciary's ken. A preprinted form with aggravating and mitigating factors checked off on it presupposes that an inmate has committed a sexual offense; it doesn't explain that conclusion. And it's therefore inadequate.

         ¶ 47 The procedures we require today will also further other important interests. First, they'll eliminate the irrational disparity otherwise created by the fact that inmates in disciplinary proceedings - where the potential sanctions are often much less severe than extra years, decades, or life in prison-are entitled to Wolffs procedural protections, whereas inmates are not entitled to Wolffs procedural protections when the Parole Board is sitting in an analogous capacity by adjudicating an inmate's guilt or innocence of an offense for which he's not otherwise been found guilty. See Wolff, 418 U.S. at 563; Homer v. Morris, 684 P.2d 64, 67 (Utah 1984) (inmates have "due process rights in a prison disciplinary proceeding for alleged 'flagrant or serious misconduct'" (quoting Wolff, 418 U.S. at 555-56)). Second, they'll promote rationality in sentencing by ensuring that the Parole Board has the benefit of adversarial testing in deciding whether an inmate has committed unconvicted sexual conduct. See Labrum, 870 P.2d at 908. Finally, we don't believe that these additional procedural protections are unnecessarily onerous (given that Wolff has applied these protections in disciplinary proceedings for years without needless disruption of the correctional system) and, to the extent that they reduce the Parole Board's reliance on unconvicted sexual conduct, especially conduct that has been bargained out of a plea deal, they'll safeguard the rationality of plea bargaining. See id.

         ¶ 48 We accordingly hold Mr. Neese was entitled to the procedural protections this opinion outlines before the Parole Board could designate him a sex offender based on previously unadjudicated allegations of sexual misconduct.


         ¶ 49 The dissent believes Mr. Neese has already received more process than he's entitled to under the due process provision. According to the dissent, the framers of the Utah Constitution would have never understood the mandates of due process to extend beyond the guilt phase of a criminal proceeding. A consequence of this is that due process protections simply do not apply to sentencing-a view that, if taken seriously and to its logical conclusion, would mean that "heads you live/tails you die" sentencing doesn't offend due process in this state. And, even if the protections of due process do extend to parole proceedings, the dissent thinks Mr. Neese has received all due process requires and then some. After all, he'd been told of the parole hearing and given an opportunity to speak. He even received the packet of information on which the Parole Board relied in denying him parole.

         ¶ 50 We reject the dissent's analysis for two reasons. First, it can't be squared with the kind of fidelity to Labrum and its progeny that our commitment to the principles of stare decisis requires Second, it rests exclusively on the dissent's potentially incomplete review of some sources bearing on the original meaning of article I, section 7 of the Utah Constitution See Griffin v United States, 502 U.S. 46, 60 (1991) (Blackmun, J, concurring in the judgment) (declining to "follow the Court on its ... tour of the common law").[5]

         ¶ 51 These considerations apply with particular force here because no party asked us to overrule Labrum or to confine it to its facts on the basis that it's inconsistent with the original meaning of article I, section 7 of the Utah Constitution. See Munson v. Chamberlain, 2007 UT 91, ¶ 21, 173 P.3d 848 (overruling the last paragraph of an opinion because it resolved a question without the "benefit [of] any adversarial briefing of the issue"); see also St. Jeor v. Kerr Corp., 2015 UT 49, ¶ 14, 353 P.3d 137 ("'[W]e would be ill-advised' to reach a decision regarding unsettled law 'without the benefit of adversarial briefing.'" (citation omitted)). Appellate courts have no business unsettling the law by overturning significant precedent where the parties have not asked the court to do so, nor been provided with an opportunity to brief the issue, nor (needless to say) carried their burden of persuasion to show us that the precedent should be overturned.

         ¶ 52 With this backdrop in mind, our response to the dissent proceeds in four parts. First, we explain why the dissent's approach to Labrum is inconsistent with our stare decisis principles.[6] Second, we illustrate the problem with reaching out to resolve an issue that hasn't been briefed to us by giving reasons to question the dissent's originalist analysis - its analysis of the original understanding of both the scope of due process and its content. Third, we diagnose a fundamental methodological mistake that we believe the dissent's originalist analysis commits. Finally, we close with some reflections on the relationship between originalism and policy analysis.

         A. Labrum and Stare Decisis

         ¶ 53 We've already explained why Labrum requires that Mr. Neese receive additional procedural protections - the right to particularized notice, to call witnesses, and to a fuller written explanation of the Parole Board's decision-before the Parole Board may, in effect, extend Mr. Neese's term of incarceration based on untested allegations that he committed a sex offense unrelated to the reasons for his incarceration. Supra ¶¶ 25-34. Under Labrum, "original release hearings ... are analogous to sentencing hearings and require due process to the extent that the analogy holds." Labrum v. Utah State Bd. of Pardons, 870 P.2d 902, 908 (Utah 1993); see also supra ¶¶ 27, 46. Labrum requires that we balance the goals of (1) minimizing errors in the Parole Board's sentencing process and (2) promoting the perception of fairness with (3) ensuring the effective administration of Utah's prison and parole systems. Labrum, 870 P.2d at 909-10; see also supra ¶ 28.

         ¶ 54 In the ordinary case, the Parole Board makes its decision based on considerations such as a review of an inmate's criminal, psychological, social, and carceral history. The Parole Board examines the crimes of which the inmate has already been adjudicated, the inmate's network of social support, his disciplinary, social-programmatic, and work record in prison, and (if pertinent) uncontested therapeutic opinions of the inmate's psychologist or therapist. When this is the extent of the Parole Board's review, it need not allow an inmate to call witnesses because witnesses won't meaningfully reduce the risk of error or promote the perception of fairness. Instead, it's sufficient to give an inmate the opportunity to review the records on which the Parole Board intends to rely, to afford the inmate an opportunity to speak, and to provide a brief written summary of the factors the Parole Board considered in setting the inmate's release date. Labrum, 870 P.2d at 904; see also Padilla v. Utah Bd. of Pardons & Parole, 947 P.2d 664, 670 (Utah 1997) (reviewing the constitutional adequacy of "rationale sheets used by the [Parole] Board to explain its parole decision"). This is because to correct errors or inaccuracies in the Parole Board's records, the inmate need only (1) have the opportunity to review those records and (2) be allowed to point them out to the Parole Board. Labrum, 870 P.2d at 909-10 (focusing on the problem of "substantial inaccuracies in inmate files ... 'I have seen black men listed as white and Harvard graduates listed with borderline IQ's'" (quoting Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 33 & n.15 (1979) (Marshall, J., dissenting)). The written rationale sheet, in turn, gives the inmate the opportunity to make sure the Parole Board has heeded his corrections - and it gives courts the opportunity to review arbitrary and capricious decisions to rely on inaccuracies that the inmate may have already pointed out.

         ¶ 55 But Labrum requires more when the Parole Board goes beyond its usual role and, instead, bases its decisions on untested allegations that an inmate has committed a sex offense. In such a situation, the Parole Board is sitting not just as a sentencing tribunal, but as a trier of fact. Cf Labrum, 870 P.2d at 908; see supra ¶ 29. Fairness and the minimization of error thus require more than simply giving the inmate an opportunity to speak and "point out errors" in his file. Labrum, 870 P.2d at 909 (citation omitted). Particularized, advanced written notice of the alleged sex offense is crucial to allowing an inmate a fair opportunity to prepare and be heard; witnesses are crucial to determining whether a person has committed such an offense; and an explanation of the Parole Board's decision is crucial for our reviewing its criminal fact-finding. See supra ¶¶ 44-47.

         ¶ 56 The dissent disagrees. It acknowledges that Labrum "deserves some measure of respect as a matter of stare decisis." Infra ¶ 125. But the dissent thinks it can square its preferred result with upholding Labrum. The dissent accuses us of beginning with "the broadest conception of our opinion in Labrum" and then extending its "premises ... to their logical extreme." Infra ¶ 125. Before we apply Labrum's theory to Mr. Neese's case, the dissent contends "we should carefully consider the basis of the court's analysis in Labrum." Infra ¶ 125. Because the dissent finds this basis wanting, it tells us to confine Labrum to its precise facts, see infra ¶ 166 (arguing against "extend[ing] [Labrum] further" based on the dissent's view that Labrum was wrongly decided).

         ¶ 57 The dissent's stated approach-confine Labrum to its facts on the grounds that Labrum was wrongly decided -doesn't respect stare decisis. It's treating it like a velvet Elvis -hiding the opinion in the attic and exhibiting it only to subject it to derision. Respect for past opinions demands more. Stare decisis is "a cornerstone of Anglo-American jurisprudence that is crucial to the predictability of the law and the fairness of adjudication." State v. Thurman, 846 P.2d 1256, 1269 (Utah 1993) (citation omitted). A fundamental requirement of stare decisis is that we not "overrule our precedents lightly." State v. Guard, 2015 UT 96, ¶ 33, 371 P.3d 1 (citation omitted) (internal quotation marks omitted). We thus don't overrule our precedents unless they've proven to be unpersuasive and unworkable, create more harm than good, and haven't created reliance interests. See Eldridge v. Johndrow, 2015 UT 21, ¶ 22, 345 P.3d 553; Utah Dep't of Transp. v. Admiral Beverage Corp., 2011 UT 62, ¶¶ 16-17, 275 P.3d 208 ("[W]e may overturn our precedent [when] more good than harm will come by departing from precedent" and the precedent "is simply unworkable in practice." (citation omitted) (internal quotation marks omitted)); see also Helf v. Chevron U.S.A. Inc., 2015 UT 81, ¶ 92, 361 P.3d 63 (Lee, A.C.J., dissenting) ("Unless and until our decisions become unworkable ... they are worthy of respect.").

         ¶ 58 And transparency in the decision-making process and respect for our precedent require more than a bare, technical refusal to overrule. "[L]aying just claim to be honoring stare decisis requires more than beating [precedent] to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive." Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 636 (2007) (Scalia, J., concurring in the judgment); see also Geoffrey R. Stone, The Roberts Court, Stare Decisis, and the Future of Constitutional Law, 82 Tul. L. Rev. 1533, 1534 (2008). In short, respect for stare decisis requires us to "extend a precedent to the conclusion mandated by its rationale." Richard L. Hasen, Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, 61 Emory L.J. 779, 780 (2012) (citation omitted).

         ¶ 59 The dissent doesn't even attempt to explain how Labrum's principles are consistent with denying Mr. Neese the due process protections he seeks. Instead, the dissent simply tells us to confine Labrum to its facts on the grounds that Labrum got it wrong. Infra ¶¶ 125, 166. This is not a faithful application of our precedent; rather, it is "fail[ing] to extend a precedent to the conclusion mandated by its rationale." Hasen, Anticipatory Overrulings, supra, at 780 (citation omitted). It's also not how we should do business. We're an adversarial court that ought not upend our precedents absent argument from the parties that they be overruled. See State v. Steed, 2015 UT 76, ¶ 11 n.9, 357 P.3d 547 (The concurrence argues "that we should overrule McBride. We decline to do so, however, because neither party has asked us to overrule the case nor argued that it applies in the manner that [the concurrence] suggests." (citation omitted)); see also supra ¶ 39. Absent a persuasive invitation to overrule our precedents, we give them a full and fair application to the facts before us.

         ¶ 60 Here, Labrum's full measure commands that we extend additional procedural protections to an inmate, like Mr. Neese, whom the Parole Board seeks to adjudicate a sex offender based solely on previously unadjudicated allegations that he's committed a sexual offense. Labrum rested on the proposition that "original release hearings" - such as the hearing at issue here -"are analogous to sentencing hearings and require due process to the extent that the analogy holds." Labrum, 870 P.2d at 908. The corollary of this proposition is that this court must announce "procedural safeguards ... to ensure the accuracy and fairness of [Parole] Board decisions in original parole grant hearings." Id. at 912; see id. at 910 ("Accuracy and fairness are essential in proceedings which impinge as directly on personal liberty as original parole grant hearings."). As we've explained, a faithful application of this framework requires providing inmates the opportunity to call witnesses and requires the Parole Board to explain its decision when it decides to consider unadjudicated allegations of sexual misconduct in setting an inmate's sentence. Supra ¶¶ 25-34.

         ¶ 61 The dissent would have us provide only the specific procedural protections that Labrum required-not additional protections based on application of the Labrum framework, which the dissent fairly characterizes as Labrum's "premises." Infra ¶ 125. These premises are the rationale of the decision, the engine that drives the Labrum machine. "For all intents and purposes, adoption of [Utah's] indeterminate sentencing system transformed the [Parole] Board from an agency having the ability to shorten a prisoner's judge-determined sentence into an agency with power analogous to that of a court to actually impose a sentence. Therefore, " we've held, "the [Parole] Board's decision of whether to grant parole does implicate the offender's liberty interest because at the time an offender first comes before the [Parole] Board, no term of incarceration has been fixed." Neel v. Holden, 886 P.2d 1097, 1101 (Utah 1994). "[B]y acknowledging ... that the parole function is a complex, multi-dimensional proceeding which includes sentencing, we have opened the door to a more extensive review of the constitutional adequacy of procedures that the [Parole] Board, and probably the legislature, would prefer to exclude from such review." Padilla, 947 P.2d at 669 (quoting Labrum, 870 P.2d at 911).

         ¶ 62 Labrum's rationale has thus set the terms of analysis that this court has used to analyze the due process protections to which inmates at an original parole grant hearing are entitled. Based on the analogy between original release hearings and sentencing proceedings, we've held that an inmate "is entitled to access psychological reports to be considered by the [Parole] Board in hearings at which the inmate's release date may be fixed or extended." Neel, 886 P.2d at 1103. In reaching this decision, we drew on the rationale underlying defendants' rights to information in connection with sentencing proceedings. See id. ("This rationale [drawn from sentencing decisions] guides our decision in the present case."). We also "grounded" our holding "on concerns about [ensuring] the factual accuracy of the information contained in the [Parole] Board's files." Id. at 1102 (citation omitted). And we held -as we do here-that this procedural right was not unlimited: "due process does not require the disclosure of confidential information when that disclosure might lead to harm of a third person." Id. at 1103 (citation omitted).

         ¶ 63 Labrum also sets the terms of our analysis when we reject inmates' arguments for additional procedural protections. In Monson v. Carver, 928 P.2d 1017 (Utah 1996), for example, while we agreed that inmates were entitled to test the accuracy of a restitution order, we held that an inmate was not allowed to call character witnesses because the inmate had not shown that the proffered testimony had "anything to do with substantially furthering the accuracy and reliability of the [Parole] Board's fact-finding process." Id. at 1030. We likewise refused the inmate's request for a lawyer on the grounds that he'd "failed to show how the 'participation of counsel at the hearing would have affected the accuracy of the information considered by the [Parole] Board.'" Id. (quoting Neel, 886 P.2d at 1103). In each case, we explained that our holding rested on the basic premise that "if an inmate fails to demonstrate how a particular procedural requirement will substantially further the [Parole] Board's fact-finding process, we have no basis for concluding that a failure to provide that procedure operated to deny the inmate due process." Id. (citation omitted).

         ¶ 64 If we were to follow the dissent's lead, we'd undercut the foundations of this entire line of cases. Their discrete procedural protections would remain, but there would be no coherence to those protections, and the Parole Board, the lower courts, and future litigants would be left without guidance on how to reason about our precedent in this field. Depending on the specific composition of this court, those precedents would either have new life breathed into them or they would come in for repeated, sustained criticism, until, one day, they found themselves overruled.

         ¶ 65 This can't be what respect for stare decisis - indeed, respect for the rule of law-allows. "If this Court is to decide cases by rule of law rather than show of hands, we must surrender to logic and choose sides ...." Hein, 551 U.S. at 618 (Scalia, J., concurring in the judgment). As nobody has asked us to overrule Labrum and its progeny, much less met the heavy burden of showing that they ought to be overruled, we must apply them fairly, according not just to their specific dispositions, but to the underlying logic they embody. This is what our opinion today does.

         B. The Original Meaning of Due Process

         ¶ 66 Our commitment to stare decisis and resolving disputes according to the adversarial process thus counsels against discarding Labrum and reaching for the original meaning of the due process provision. And, ironically, the dissent's own originalist analysis underscores the wisdom of our historiographical restraint. Without the benefit of adversarial briefing, the dissent makes two historical claims: (1) that, on its original understanding, the due process provision likely wouldn't have been understood to apply to sentencing or parole proceedings, infra ¶¶ 165-66; and (2) that, even if it did, Mr. Neese received all the process he was entitled to under the original understanding of the due process provision, infra ¶¶ 170-73.

         ¶ 67 We agree with the dissent that this court should look to the original meaning of the Utah Constitution when properly confronted with constitutional issues. But we don't think we should revisit our precedent without prompting from the parties and based exclusively on our own review of ratification-era common law and other historical sources. "The lack of adversarial briefing on the issues explored ... is troubling." Meza v. State, 2015 UT 70, ¶ 40, 359 P.3d 592 (Lee, A.C.J., concurring in part and concurring in the judgment). To show the problem with exploring these issues without the benefit of adversarial briefing, we take this opportunity to illustrate how the dissent's historiography may be incomplete.[7]

         1. The Original Scope of Due Process: Sentencing and Parole

         ¶ 68 The dissent begins by questioning whether, on the original understanding of the due process provision, due process protections would have been understood to apply to post-trial proceedings, such as sentencing proceedings and parole hearings.

         ¶ 69 The heart of the dissent's historical case is the supposed absence of Reconstruction and Gilded Age case law applying due process protections to discretionary sentencing proceedings. The dissent sees in this absence "an important 'dog that didn't bark'" -"[i]f the generation of the framing of the Utah Constitution viewed the constitutional guarantee of due process of law to attach to sentencing proceedings, surely, " the dissent suggests, "someone would have raised the argument." Infra ¶ 163. And the dissent thinks it knows why due process didn't apply to these proceedings (or, later, to early parole proceedings). Any sentence less than the statutory maximum -and any decision by a parole board to release an inmate early-was "an act of grace-a grant of greater liberty than the defendant was entitled to." Infra ¶ 164 (footnote omitted).

         ¶ 70 We're hesitant to come to any definite conclusions about this history without the benefit of adversarial briefing. And our own independent review of the historical record illustrates why. When we examine the historical record, we don't see as clearly as the dissent a settled view that due process protections didn't apply to sentencing or parole proceedings. On this point, the dissent's historical review falls short in three respects: (a) it overlooks a body of law that appears to apply procedural protections to sentencing, (b) it overlooks plausible competing explanations for why courts didn't address sentencing due process questions more frequently than they did, and (c) its attempt to explain why due process might not have been thought to extend to sentencing proceedings - because Gilded Age penologists were in the grips of a "grace" conception of sub-maximum sentencing and parole- may be historically inaccurate.

         a. Examples from the body of eighteenth- and nineteenth-century cases that applied procedural protections to sentencing

         ¶ 71 Contrary to the dissent, it appears to us that the reports may contain notable examples of cases that applied procedural protections to sentencing proceedings.[8] For the contrary view, the dissent relies heavily on Williams v. New York, 337 U.S. 241 (1949). Relying on Williams, the dissent tells us that "historically, 'strict evidentiary procedural limitations' governed proceedings where the 'question for consideration [was] the guilt of the defendant, ' but during sentencing, a judge was not 'hedged' by procedural rules and 'could exercise a wide discretion.'" Infra ¶ 159 n.36 (alteration in original) (quoting Williams, 337 U.S. at 245-46); see also infra ¶ 161 ("The due-process clause should not be treated as a device for freezing the evidential procedure of sentencing in the mold of trial procedure." (quoting Williams, 337 U.S. at 251)); infra ¶ 171 n.52 ("We must recognize that most of the information now relied upon by judges to guide them in the intelligent imposition of sentences would be unavailable if information were restricted to that given in open court by witnesses subject to cross-examination." (quoting Williams, 337 U.S. at 250)).

         ¶ 72 Williams, in turn, relied on State v. Reeder, 60 S.E. 434 (S.C. 1908). It appears to us, however, that Reeder and the cases on which it relied may stand for the proposition that sentencing judges must adhere to norms of due process when settling on a sentence. The issue in Reeder was whether the sentencing court should have accepted into evidence affidavits "tending greatly to aggravate the crime." 60 S.E. at 435. The Reeder court held that these affidavits were admissible at sentencing. But it based this holding not on the absence of procedural protections at sentencing, but rather on its view that due process requires sentencing courts to receive a wide range of reliable information:

The American cases lay down the principle that, where it devolves upon the court to determine the punishment either upon the finding or upon the plea of guilty, it is the correct practice for it to hear evidence in aggravation or mitigation, as the case may be, where there is any discretion as to the punishment. It has likewise been held that evidence of the moral character of ...

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