This opinion is subject to revision before final

Publication in the Pacific Reporter

2017 UT 89

IN THE

SUPREME COURT OF THE STATE OF UTAH

MICHAEL NEESE,

Appellant,

v.

UTAH BOARD OF PARDONS AND PAROLE,

Appellee.

No. 20150487

Filed December 14, 2017

On Certification from the Utah Court of Appeals

Sixth District, Manti

The Honorable Wallace A. Lee

No. 140600017

Attorneys:

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.

CHIEF JUSTICE DURRANT filed an opinion concurring in part and 

concurring in the result.

ASSOCIATE CHIEF JUSTICE LEE filed a dissenting opinion.

 

† Justice Durham sat on this case and voted prior to her retirement 

on November 15, 2017.
NEESE v. PAROLE BOARD

Opinion of the Court

2

JUSTICE HIMONAS, opinion of the Court:

INTRODUCTION

¶ 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.

BACKGROUND

¶ 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, 

 

1 Because this is an appeal from an order granting summary 

judgment in favor of the Parole Board, we summarize the facts in the 

light most favorable to Mr. Neese. See Borghetti v. Sys. & Comput. Tech., 

Inc., 2008 UT 77, ¶ 12, 199 P.3d 907.
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Opinion of the Court

3

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 

 

2 Mr. Neese was tried on these allegations, but the proceeding ended 

in a mistrial. As far as the record reveals, Mr. Neese has never been 

convicted of this or any other sex offense.
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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 
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Opinion of the Court

5

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.

PRESERVATION

¶ 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 
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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 
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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.

STANDARD OF REVIEW

¶ 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 

 

3 While the Parole Board concedes the issue of what process 

Mr. Neese was entitled to “was preserved below,” it notes in passing 

that Mr. Neese’s petition for an extraordinary writ in the district court 

didn’t specify the precise due process protections to which Mr. Neese 

believed he was entitled. This statement, read in context, is a suggestion 

that Mr. Neese hasn’t met his burden of persuasion. But because this 

issue was inadequately briefed, it’s of no consequence. Moreover, 

Mr. Neese asserted that the Parole Board acted in violation of his due 

process rights, and he sought reversal of its determinations on that 

basis. It’s enough under the circumstances that he argued that the 

process he received was insufficient to justify the Parole Board’s 

actions.
NEESE v. PAROLE BOARD

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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.

ANALYSIS

¶ 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 
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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.

I. MR. NEESE WAS ENTITLED TO GREATER 

PROCESS THAN HE RECEIVED AT HIS 

ORIGINAL PAROLE GRANT HEARINGS

¶ 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 
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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 

 

4 We take care to say “at a minimum” because it may be more 

accurate for us to describe what happened here as a lopsided trial.
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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 
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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), 

https://perma.cc/Y762-K8U5 (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 
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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 wellserved 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 
NEESE v. PAROLE BOARD

Opinion of the Court

14

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 F. App’x 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 
Cite as: 2017 UT 89

Opinion of the Court

15

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 F. App’x 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 F. App’x 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 
NEESE v. PAROLE BOARD

Opinion of the Court

16

(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.
Cite as: 2017 UT 89

Opinion of the Court

17

II. THE ADDITIONAL PROCEDURAL PROTECTIONS 

TO WHICH MR. NEESE IS ENTITLED

¶ 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.
NEESE v. PAROLE BOARD

Opinion of the Court

18

¶ 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, 
Cite as: 2017 UT 89

Opinion of the Court

19

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 Wolff’s procedural 

protections, whereas inmates are not entitled to Wolff’s 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.
NEESE v. PAROLE BOARD

Opinion of the Court

20

III. THE DISSENT

¶ 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)).

 

5 The dissent repeatedly claims safe harbor to launch its assault on 

Labrum and to undertake its independent originalist analysis based 

upon our decision not to seek supplemental briefing. If played out to its 

logical end, the dissent’s argument would allow any justice to write on 

any argument at any time because the court could have, but didn’t, 

request supplemental briefing. We respectfully reject any such notion.
Cite as: 2017 UT 89

Opinion of the Court

21

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, 

 

6 In response, the dissent makes much of Mr. Neese not citing to 

Labrum in his opening brief. See infra ¶ 129. That is a fair criticism, but 

one that sidesteps the fact that (1) Mr. Neese did make the underlying 

state due process argument in his initial brief and (2) the State 

extensively briefed Labrum in response, as did Mr. Neese on reply.
NEESE v. PAROLE BOARD

Opinion of the Court

22

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, socialprogrammatic, 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.
Cite as: 2017 UT 89

Opinion of the Court

23

¶ 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 
NEESE v. PAROLE BOARD

Opinion of the Court

24

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.
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Opinion of the Court

25

¶ 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 
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Opinion of the Court

26

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 
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Opinion of the Court

27

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 

 

7 In his opinion concurring in part and dissenting in part, the Chief 

Justice suggests that in highlighting why we believe the dissent’s 

historical analysis may be incomplete, we have somehow put “a thumb 

on the scale.” Infra ¶ 118. That is not our intent and we disavow any 

language that might suggest otherwise.
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28

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 

 

8 What does appear to be absent from the reports are any cases in 

which a sentencing body based its sentence on a determination that the 

defendant had committed a hitherto unadjudicated, unadmitted 

criminal offense. This suggests to us that such a basis might well have 

been thought to run afoul of basic constitutional norms.
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restricted to that given in open court by witnesses subject to crossexamination.” (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 the accused is 

competent to guide the court in determining the 

punishment to be imposed.

Id. (emphasis added) (citations omitted).

¶ 73 The cases on which Reeder relies may also stand for the 

proposition that procedural protections apply at sentencing. Reeder was 

a follow-up case to a much earlier South Carolina case: State v. Smith, 2 

S.C.L. (2 Bay) 62 (S.C. Ct. Const. App. 1796). The issue in Smith was 

whether the defendant should have been allowed to submit mitigating 

evidence to the sentencing court. Id. at 62–63. The Constitutional Court 

of Appeals of South Carolina held that the sentencing court had erred 

in excluding that mitigating evidence. It held that defendants must be 

allowed to submit mitigating evidence “on affidavits, a reasonable time 

before sentence is pronounced.” Id. It further elaborated substantial 

procedural protections for defendants at sentencing, holding that

in order to guard against a failure of justice, by the nonattendance of witnesses to give testimony of such 

extenuating circumstances as a defendant may be 

desirous of submitting to the court on the sentence day . . . 

a defendant [is] entitled to a subpoena, as a matter of 
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30

right, to compel the attendance of witnesses on such 

occasions, as well as on trials of issues before a jury.

Id. at 63. These protections bear a remarkable resemblance to those we 

provide Mr. Neese today.

¶ 74 The other cases on which Reeder relied likewise appear to 

potentially recognize the importance of procedural protections in 

connection with sentencing. In Kistler v. State, for example, the Supreme 

Court of Indiana held that the court had erred in failing to allow the 

defendant to “make . . . proof” of mitigating evidence, as well as 

evidence of his good character, at trial. 54 Ind. 400, 403 (1876). It based 

this decision on Indiana’s cruel and unusual punishments clause, its 

proportionate punishment provision, and “the principles of natural 

justice and of an enlightened public policy.” Id. Similarly, in People v. 

Vermilyea, Chief Justice Savage stated that a sentencing court must be 

allowed to consider “the circumstances in evidence” in meting out 

punishment—implying that circumstances not properly in evidence 

couldn’t be considered. 7 Cow. 108, 143 (N.Y. Sup. Ct. 1827) (emphasis 

added).9

 

9 Each of these cases is also notable for its insistence—really 

presupposition—that all evidence before a sentencing court must be 

sworn. See State v. Reeder, 60 S.E. 434, 435 (S.C. 1908) (“[I]t is the correct 

practice for [the court] to hear evidence in aggravation or mitigation, as 

the case may be, where there is any discretion as to the punishment.”

(emphasis added)); Kistler v. State, 54 Ind. 400, 403 (1876) (court must 

“hear evidence in aggravation or mitigation . . . where there is any 

discretion as to the punishment”); People v. Vermilyea, 7 Cow. 108, 143

(N.Y. Sup. Ct. 1827) (requiring sentencing courts to consider “the 

circumstances in evidence”); State v. Smith, 2 S.C.L. (2 Bay) 62, 62–63 

(S.C. Const. Ct. App. 1796) (“[A]ll such extenuating circumstances 

should be submitted to the court, on affidavits, a reasonable time before 

sentence is pronounced.” (emphasis added)). It’s hard to overstate the 

crucial importance that the eighteenth and nineteenth centuries placed 

on the power of oaths to assure the reliability of evidence. See, e.g., 1 

SIMON GREENLEAF, A TREATISE ON THE LAW OF EVIDENCE 377 (Boston, 

Little & Brown 1842) (“[O]ne of the main provisions of the law, for the 

purity and truth of oral evidence, is, that it be delivered under the 

sanction of an oath. Men in general are sensible of the motives and 

restraints of religion, and acknowledge their accountability to that 

(cont.)
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¶ 75 So, contrary to the dissent, it appears to us that procedural 

protections may have been understood to apply to sentencing 

proceedings in the period leading up to ratification of the Utah 

Constitution.

¶ 76 And there are other reasons to think that the dissent may have

understated the procedural protections courts devised to ensure 

fairness in sentencing during the eighteenth and nineteenth centuries. 

The eighteenth and nineteenth centuries were a time that didn’t sharply 

 

Being, from whom no secrets are hid.”); Michael W. McConnell, The 

Origins and Historical Understanding of Free Exercise of Religion, 103 

HARV. L. REV. 1409, 1467 (1990) (“The oath requirement was the 

principal means of ensuring honest testimony and of solemnizing 

obligations. At a time when perjury prosecutions were unusual, 

extratemporal sanctions for telling falsehoods or reneging on 

commitments were thought indispensable to civil society.”). By 

requiring that the evidence be sworn, these courts placed great weight

on ensuring the reliability of evidence in sentencing proceedings. At 

least one nineteenth-century court expressed concern with a statutory 

scheme for the commitment of the insane in part on the grounds that it 

authorized an investigation to be commenced based on “the filing of an 

information not even sworn to by anybody”—an authorization that, in 

the court’s view, “opened the door to wrong and injustice[,] to the 

making of very serious and unwarranted charges against others by 

wholly irresponsible and evil-minded persons.” State ex rel. Blaisdell v. 

Billings, 57 N.W. 794, 795 (Minn. 1894). But oaths have largely lost their 

power today. See Albert W. Alschuler, A Peculiar Privilege in Historical 

Perspective: The Right to Remain Silent, 94 MICH. L. REV. 2625, 2632 (1996) 

(“The coercive power of an oath stemmed partly from its mystic and 

religious significance, a significance that modern observers may not 

fully appreciate.”). And because of this, we should hesitate to infer 

from the absence of alternative required procedures for assuring the 

reliability of evidence that the underlying principles of due process in 

the eighteenth and nineteenth centuries wouldn’t have required 

alternative procedures in those places where the oath had lost its sway. 

Cf. infra ¶ 153 (“Thoughtful originalists . . . view the constitution—like 

all law—as consisting of legal principles expressed by the public 

understanding of its terms. But they do not foreclose new applications of 

those principles to circumstances unknown to the past.”).
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32

distinguish between the guilt phase and the sentencing phase. As a 

consequence, many trial-level procedural protections may also have

functioned as sentencing protections. For example, in United States v. 

Wynn, 11 F. 57 (C.C.E.D. Mo. 1882), an appellate court reduced a 

defendant’s sentence in light of its concern that a constitutional error 

had infected the guilt phase of the defendant’s trial. Id. at 57–58. And an 

early New York Court of Appeals case—Shepherd v. People—reversed a 

defendant’s conviction, and dismissed the criminal case against him, on 

the basis that his sentence was illegal. 25 N.Y. 406, 406–07 (1862). And 

the remedy in Shepherd was “typical of the early [sentencing appeals] 

cases.” Livingston Hall, Reduction of Criminal Sentences on Appeal: I, 37 

COLUM. L. REV. 521, 525 n.17 (1937).

¶ 77 The dissent may also underestimate the degree to which jury 

sentencing prevailed in the nineteenth century. It appears that a 

comparatively small fraction of eighteenth- and nineteenth-century 

sentences were truly set by a judge. Thus, scholars have discovered that

“[o]nly a small fraction of eighteenth-century criminal trials [at the Old 

Bailey] were genuinely contested inquiries into guilt or innocence” and 

that the great majority “were sentencing proceedings”—“[t]he main 

object of the defense was to present the jury with a view of the 

circumstances of the crime and the offender that would motivate it to 

return a verdict within the privilege of clergy, in order to reduce the 

sanction . . . .” John H. Langbein, Shaping the Eighteenth-Century 

Criminal Trial: A View from the Ryder Sources, 50 U. CHI. L. REV. 1, 41 

(1983). This practice also appears to have continued into the nineteenth 

century. “[F]rom 1800 to 1900, juries imposed sentences in noncapital 

cases in about half of all the states,” and “[a] handful of other states 

permitted juries in noncapital cases to make sentencing 

recommendations.” Morris B. Hoffman, The Case for Jury Sentencing, 52 

DUKE L.J. 951, 964 (2003) (citations omitted). Moreover, “[e]ven in those 

states that invested trial judges with the exclusive power to sentence, 

their discretion . . . was mostly a mirage. . . . As late as 1870, state 

legislatures commonly set a specific period of incarceration for each 

offense.” Id. at 964–65 (footnote omitted) (citations omitted); see also 

Jenia Iontcheva, Jury Sentencing as Democratic Practice, 89 VA. L. REV.

311, 319 & n.40 (2003) (noting the widespread prevalence of jury 

sentencing and observing that “[e]ven in jurisdictions where no direct 

jury sentencing existed, determinate sentencing regimes allowed jurors 

to influence sentencing circuitously . . . by acquitting defendants of 

some charges, despite clear evidence of guilt”—a practice known as 
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Opinion of the Court

33

“pious perjury”). So, to the extent that the nineteenth century was an 

era of jury sentencing, the absence of appellate cases applying 

procedural protections to the “sentencing phase” of a criminal 

proceeding tells us less than we might think about whether due process 

protections applied at sentencing.10

¶ 78 And there’s good reason to think due process protections may 

have applied at sentencing. For example, many appellate courts during 

the late eighteenth and nineteenth centuries insisted that defendants 

must be allowed to introduce evidence of their good character. See, e.g., 

Reeder, 60 S.E. at 435; State v. Hice, 23 S.E. 357, 357 (N.C. 1895) (“In all 

cases a person accused of a crime of any grade, whether a felony or a 

misdemeanor, has a right to offer in his defense testimony of his good 

character.” (citations omitted)); Remsen v. People, 43 N.Y. 6, 8 (1870) 

(“It was error to charge the jury that in any case evidence of good 

character would be of no avail.”). While the historical record is sparse, 

courts appear to have been well aware that character evidence was 

often introduced for sentencing purposes, to allow the jury to decide 

whether it should exercise mercy either through jury nullification or 

“pious perjury” or through the direct sentencing decisions with which 

it was entrusted. See Michael Coenen, Of Speech and Sanctions: Toward a 

Penalty-Sensitive Approach to the First Amendment, 112 COLUM. L. REV.

991, 1043 n.217 (2012) (“[I]t was not uncommon for English juries—

sometimes with the encouragement of their overseeing judges—to 

commit what Blackstone called ‘pious perjury,’ deliberately convicting 

defendants of lesser charges so as to spare them from especially harsh 

punishments.” (citation omitted)); see also Daniel D. Blinka, Character, 

Liberalism, and the Protean Culture of Evidence Law, 37 SEATTLE U. L. REV.

87, 123 (2013) (“[T]he character of the accused or the victim, both in the 

sense of disposition and reputation, was of ‘fundamental importance’ 

to juries and judges as they exercised their discretion.” (citation 

omitted)).

¶ 79 In short, we’re unconvinced of the dissent’s sweeping 

pronouncement that due process protections didn’t apply to

 

10 Kistler v. State, discussed above at paragraph 74, serves as an 

example of both the intermingling of the guilt and sentencing phases 

and jury sentencing in the latter half of the nineteenth century. 54 Ind. 

400.
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34

sentencings or sentencing proceedings. Before we would be willing to 

reach this issue we would, at minimum, need guidance from counsel.

b. Competing explanations for why courts didn’t address 

sentencing due process questions more frequently than they did

¶ 80 Even if the dissent is right that there were comparatively few 

cases applying due process protections to sentencing proceedings in the 

eighteenth and nineteenth centuries than today, it still wouldn’t be 

obvious to us that this “dog that didn’t bark”—or barely barked—

authorizes the inference that courts didn’t think due process 

protections extended to sentencing. Infra ¶ 163. This is because it 

appears the dog was, at least, trebly muzzled.

¶ 81 First, there’s significant authority for the proposition that 

appellate courts perceived their jurisdiction over criminal appeals—

that is, their authority to even entertain challenges to process at trial or 

sentencing—to be quite limited. For most of the nineteenth century, the 

United States Supreme Court held that section 22 of the First Judiciary 

Act of 1789 barred it from exercising appellate jurisdiction over 

criminal cases, United States v. More, 7 U.S. 159, 172–73 (1805), unless a 

trial court certified a legal question to it under section 6 of the Act of 

April 29, 1802, see Briana Lynn Rosenbaum, Righting the Historical 

Record: A Case for Appellate Jurisdiction over Appeals of Sentences for 

Reasonableness Under 28 U.S.C. § 1291, 62 HASTINGS L.J. 865, 880–81 

(2011) (“[W]hile the Act of 1802 made review of [trial] decisions 

possible . . . defendants ‘had no right to ask for’ certificat[ion] to the 

Supreme Court . . . .” (citation omitted)); see also Hoffman, The Case for 

Jury Sentencing, supra, at 964 (“Federal courts had virtually no role in 

the criminal process in the early republic, let alone a sentencing role. 

Federal criminal law did not begin to become a significant part of the 

national criminal firmament until Prohibition.” (citation omitted)). 

Similarly, “[a]ppellate review [of criminal matters] in the states 

remained quite limited well into the mid-1800s. The number of cases 

heard by state appellate courts remained quite small into the 1900s.” 

7 WAYNE R. LAFAVE ET AL., CRIM. PROC. § 27.1(a) n.3 (4th ed. 2016) 

(citation omitted); see also Martinez v. Court of Appeal of Cal., Fourth 

Appellate Dist., 528 U.S. 152, 159 (2000) (“The States . . . did not generally 

recognize an appeal as of right until Washington became the first to 

constitutionalize the right explicitly in 1889. There was similarly no 

right to appeal in criminal cases at common law, and appellate review 

of any sort was limited and rarely used.” (citation omitted) (internal 

quotation marks omitted)).
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Opinion of the Court

35

¶ 82 This rule of non-reviewability may have been applied with 

special force in sentencing matters. As Professor LaFave explains, “[t]he 

traditional position in this country . . . has been that ‘once it is 

determined that a sentence is within the limits set forth in the statute 

under which it is imposed, appellate review is at an end.’” 6 WAYNE R.

LAFAVE ET AL., CRIM. PROC. § 26.3(g) (4th ed. 2016) (citation omitted); see

Notes and Comments, Appellate Review of Sentencing Procedure, 74 YALE

L.J. 379, 380 (1964) (“It has long been a uniform policy of federal 

appellate courts not to consider a sentence within the statutory 

limits.”); see also Gurera v. United States, 40 F.2d 338, 340–41 (8th Cir. 

1930) (“If there is one rule in the federal criminal practice which is 

firmly established, it is that the appellate court has no control over a 

sentence which is within the limits allowed by a statute.”). Thus, part of 

the explanation for any apparent dearth of case law applying 

procedural rights to sentencing proceedings may well be the rules and 

norms of criminal appellate practice—which limited review of these 

proceedings—as opposed to the appellate courts’ considered 

conclusion that due process norms simply didn’t apply.

¶ 83 Second, while the evidence is sparse, it appears that there may 

have been significantly fewer prosecutions, in the nineteenth century 

than today. See, e.g., Paul J. Larkin, Jr., Public Choice Theory and 

Overcriminalization, 36 HARV. J.L. & PUB. POL’Y 715, 728, 779 (2013) 

(noting explosive growth in the criminal justice system during the 

twentieth century). And, when a prosecution did arise, it was often 

poorly handled; the quality of the prosecution bar in nineteenthcentury America was notoriously poor. See Robert M. Ireland, Privately 

Funded Prosecution of Crime in the Nineteenth-Century United States, 

39 AM. J. LEGAL HIST. 43, 43 (1995) (noting the serious “want of talent 

within the office of public prosecutor”). To the extent there were fewer 

prosecutions and more acquittals, this too provides a competing 

explanation for the comparative dearth of reported appellate 

sentencing decisions.

¶ 84 Finally—even bracketing the norms against criminal appeals 

and the comparative dearth of prosecutions in the nineteenth century—

the pattern of criminal appeals in the run-up to ratification appears to 

have been significantly different from today. The dissent thinks it 

obvious that, had a defendant thought he might enjoy due process 

rights in a sentencing proceeding, the defendant would surely have 

“raised” that argument on appeal. Infra ¶ 163. But, as we’ve explained, 

“there usually was only limited appellate review of criminal 
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36

convictions.” Thomas Y. Davies, Symposium, Correcting Search-andSeizure History: Now-Forgotten Common-Law Warrantless Arrest Standards 

and the Original Understanding of “Due Process of Law,” 77 MISS. L.J. 1, 175 

(2007). And even when they did have the opportunity to appeal, 

defendants didn’t always have access to appellate counsel. See Douglas 

v. California, 372 U.S. 353 (1963) (recognizing right to counsel on appeal 

for the first time); see also Benjamin H. Barton, Against Civil Gideon (and 

for Pro Se Court Reform), 62 FLA. L. REV. 1227, 1265 (2010) (“[A]t the time 

of the passage of the Fourteenth Amendment, there was not a wellestablished right to appointed counsel. The mid-19th Century was, in 

fact, a time of court deprofessionalization where in many states there 

were virtually no requirements for admission to the bar and pro se 

practice was quite common.” (citation omitted)). Moreover, even 

though “states began to codify existing criminal procedure standards 

during the mid to late nineteenth century,” “criminal procedure 

remained primarily a judicial rather than legislative matter,” which 

meant that “state courts were rarely called upon to assess the 

constitutionality of statutes that dealt with criminal procedure”—they 

could preserve due process through the common law. Davies, 

Correcting Search-and-Seizure History, supra, at 175 (citation omitted). 

Additionally, the formalistic approach of many nineteenth-century 

courts may have made it far more likely that a criminal appeal would 

result in a reversal of conviction—not a sentencing review. As Professor 

Friedman explains:

Between 1870 and 1900 there are persistent complaints 

that some state supreme courts behaved as if their chief 

function was to reverse decisions of their lower courts for 

technical errors . . . . [E]xcesses in behavior were most 

striking in criminal appeals. Harwell, the defendant in a 

Texas case decided in 1886, had been arrested and 

convicted for receiving stolen cattle. The Texas court 

reversed, because, among other things, the jury found the 

defendant “guity” instead of “guilty.” . . . The same court, 

however, magnanimously upheld a conviction of “guily” 

in 1879, proving that a “t” was less crucial than an “l” in 

the common law of Texas.

LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 398–400 (2d ed. 

1985) (citations omitted). Indeed, according to Professor Friedman, 

between 1875 and 1887, the Texas Court of Appeals “had reversed 1,604 

criminal cases, and affirmed only 882—a margin of almost two to one.” 
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37

Id. at 399 (“In one volume of reports, there were five reversals to every 

single affirmance.”). But this means that the appellate courts had far 

fewer occasions to redress sentencing errors—they were too busy 

reversing convictions!

¶ 85 In short, even to the extent the dissent is right about the lack 

of cases articulating procedural protections applicable to sentencing, 

the inference it draws from this “dog that didn’t bark” ignores potential 

competing explanations that don’t imply that the original 

understanding of due process didn’t extend to sentencing and parole 

proceedings. We think it would be rash to overturn our precedent, and 

announce new due process standards under the Utah Constitution, 

based on a chain of historical inferences that may well be misleading or 

incomplete, and that certainly haven’t been tested by the adversarial 

process.

c. Grace

¶ 86 A key lemma in the dissent’s argument for why due process 

didn’t extend to sentencing and parole proceedings is the idea that a 

sentence below the statutory maximum—or a grant of parole before an

indeterminate term had expired—was thought to be an act of “grace.” 

Infra ¶ 164. If true, this theory might help explain why nineteenthcentury constitutional actors lacked concern about due process 

protections in sentencing and parole proceedings: mercy, one might 

argue, isn’t a liberty interest.

¶ 87 Again, however, while we’re nervous to fly blind, it appears 

to us that the dissent may well be mistaken about the prevalence of the 

“grace” conception of parole. The academic literature supports the 

notion that parole’s progenitors embraced a “medical model of 

criminality.” Julia L. Black, Note, The Constitutionality of Federal 

Sentences Imposed Under the Sentencing Reform Act of 1984 after Mistretta 

v. United States, 75 IOWA L. REV. 767, 771 n.52 (1990) (quoting JANET 

SCHMIDT, DEMYSTIFYING PAROLE 4–5 (1977)). On this model, parole was 

not a matter of grace. Instead, parole determinations “emphasized the 

role of treatment in helping the criminal to understand the external 

forces causing his or her ‘sickness,’” id. at 771 n.51 (quoting SCHMIDT,

DEMYSTIFYING PAROLE, at 4). Parole and the indeterminate sentence, 

Professor Friedman explains, were “based on a simple theory.” 

LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 597 (2d ed. 

1985).
NEESE v. PAROLE BOARD

Opinion of the Court

38

No judge was wise enough to tell when a prisoner would 

be “cured.” Prison officials, on the other hand, had the 

prisoner in view every day. A criminal should be locked 

up as long as he was “unfit to be free.” He was the 

“arbiter of his own fate”; he carried “the key of his prison 

in his own pocket.” The indeterminate sentence, then, 

emphasized the character and background of the 

offender.

Id. But this casts doubt on the dissent’s explanation of why procedural 

protections weren’t thought to apply to sentencing and parole 

proceedings. If those proceedings weren’t merely merciful acts of grace, 

but were, instead, supposed to be responsive to an inmate’s prospects 

for rehabilitation, then it makes little sense for courts to have been

unconcerned with the standards that might apply to the ascertainment 

of those prospects. And today, of course, all parties to a sentencing fully 

expect reasoned, well thought out Parole Board decisions about when 

an inmate should be released from prison—not random acts of mercy.

¶ 88 In short, we are not confident in the dissent’s originalist 

analysis of the scope of the due process provision. We don’t mean to 

say that the dissent is wrong, only that, in the absence of adversarial 

briefing on the question, we don’t know the answer. We believe the 

appropriate course is to stay our hand on the question until such time 

that it’s fairly before us.

2. The Original Content of Due Process: What’s in a Hearing?

¶ 89 The dissent also has a second line of attack: one focused on the 

content of the due process provision. That is, assuming the due process 

provision applies to parole proceedings, the dissent thinks it plain that 

Mr. Neese received all he was entitled to under the original 

understanding of the due process provision. According to the dissent, 

the Utah Constitution embodies a conception of due process on which 

due process is satisfied as long as an inmate receives “notice and an 

opportunity to be heard.” Infra ¶ 169. And the dissent thinks Mr. Neese 

got this: “[h]e was advised of the pendency of the parole hearing and 

given a chance to present his view on the questions presented.” Infra 

¶ 170 (citation omitted).11

 

11 We perceive some tension between this proposition and the view 

our dissenting colleague propounded in In re Adoption of K.A.S. See 2016 

(cont.)
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Opinion of the Court

39

¶ 90 But in surveying the history of due process in the run up to 

ratification, we don’t perceive as clearly as the dissent does that 

constitutional due process protections required only minimal notice 

and opportunity to speak. Instead, it appears to us that the United 

States Supreme Court repeatedly explained during the period leading 

up to Utah’s admission to the Union that due process had bite. It 

required hearings to be conducted according to those procedures that 

were “appropriate to the nature of the case.” Davidson v. New Orleans, 

96 U.S. 97, 105 (1877); see also Hagar v. Reclamation Dist. No. 108, 111 U.S. 

701, 708 (1884) (“It is sufficient to observe here that by ‘due process’ is 

meant one which, following the forms of law, is appropriate to the case, 

and just to the parties to be affected.”). And it held that the courts, not 

the legislature, were supposed to decide what was “appropriate to the 

case” and “just to the parties.” Hagar, 111 U.S. at 707–08. The propriety 

of procedures, said the Court, was to be ascertained “by the gradual 

process of judicial inclusion and exclusion”—that is, by judicial review 

of the fairness of procedures when those procedures were challenged in 

the courts. Id. (emphasis added) (quoting Davidson, 96 U.S. at 104).

¶ 91 Applying this framework, the Court didn’t hesitate to strike 

down laws that shortcut fair process. One example is Chicago, 

 

UT 55, ¶ 82, 390 P.3d 278 (Lee, A.C.J., dissenting) (“L.E.S.’s history [of 

the original meaning of the due process provision] falls short because it 

is at far too high a level of generality.”). There, Justice Lee surveyed the 

historical landscape and concluded that—on the prevalent 

understanding of due process principles at the time the Utah 

Constitution was enacted—due process required “regular allegations, 

opportunity to answer, and a trial according to some settled course of 

judicial proceedings.” Id. ¶ 88 (quoting Murray v. Hoboken Land & 

Improvement Co., 59 U.S. 272, 280 (1855)). It required “a right to notice 

and a meaningful opportunity to be heard.” Id. ¶ 90 (citation omitted). 

Here, however, the dissent argues that a litigant’s due process right to 

“trial according to some settled course of judicial proceedings,” id. ¶ 88

(citation omitted), his right to “a meaningful opportunity to be heard,” 

id. ¶ 90, requires no more than a “chance to present his view on the 

questions presented.” Infra ¶ 170. It doesn’t appear to us that the 

opportunity to speak on one’s own behalf is equivalent to a “trial” or a 

“meaningful opportunity to be heard.” In re Adoption of K.A.S., 2016 UT 

55, ¶¶ 88, 90 (Lee, A.C.J., dissenting) (emphasis added).
NEESE v. PAROLE BOARD

Opinion of the Court

40

Milwaukee and St. Paul Railway Co. v. Minnesota ex rel. Railroad Warehouse 

Commission, 134 U.S. 418 (1890). In 1887, the Minnesota legislature—

responding to pressures from the Granger Movement (farmers who felt 

gouged by the railways)—established a “railroad and warehouse 

commission” empowered to determine whether railroad rates were 

“unreasonable” or “unequal” and to fix them accordingly. Id. at 418, 

434–35; see James W. Ely, Jr., The Railroad Question Revisited: Chicago, 

Milwaukee & St. Paul Railway v. Minnesota and Constitutional Limits on 

State Regulations, 12 GREAT PLAINS Q. 121, 121 (1992) (“Many 

midwestern and southern state legislatures enacted so-called Granger 

laws to control the price charged by railroads and related utilities, such 

as grain elevators and warehouses.”). After the Minnesota Supreme 

Court held that this commission’s decisions weren’t subject to judicial 

review, the Supreme Court granted a writ of error and reversed. Chi., 

Milwaukee & St. Paul Ry. Co., 134 U.S. at 458–59. This scheme, the Court 

held, violated due process because “[i]t deprive[d] the company of its 

right to a judicial investigation, by due process of law, under the forms 

and with the machinery provided by the wisdom of successive ages for 

the investigation judicially of the truth of a matter in controversy.” Id.

at 457.

No hearing is provided for; no summons or notice to the 

company before the commission has found what it is to 

find, and declared what it is to declare; no opportunity 

provided for the company to introduce witnesses before the 

commission,—in fact, nothing which has the semblance of due 

process of law . . . .

Id. (emphases added).

¶ 92 State courts behaved similarly. In State ex rel. Blaisdell v. 

Billings, for example, the Minnesota Supreme Court considered 

whether statutory procedures “relating to the commitment of insane 

persons to the state hospitals . . . violate the fourteenth amendment to 

the federal constitution, and are in conflict with a similar article in our 

state constitution, forbidding that any person shall be deprived of his 

life, liberty, or property without due process of law.” 57 N.W. 794, 794 

(Minn. 1894). Under the statute, whenever a probate judge or court 

commissioner “receive[d] information in writing . . . that there is an 

insane person in his county needing care and treatment,” they were 

required to deputize two physicians as “examiners in lunacy” to certify 

whether the person charged with insanity was mentally unsound. Id. at 

795. Once “satisfied that the person is insane,” the court commission or 
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Opinion of the Court

41

probate judge had the authority to “commit[] him to the custody of the 

superintendent of” a mental institution. Id.

¶ 93 The Minnesota Supreme Court struck this statute down, 

holding that 

[t]o the person charged with being insane to a degree 

requiring the interposition of the authorities and the 

restraint provided for, there must be given notice of the 

proceeding, and also an opportunity to be heard in the 

tribunal which is to pass judgment upon his right to his 

personal liberty in the future. There must be a trial before 

judgment can be pronounced, and there can be no proper 

trial unless there is guarantied the right to produce 

witnesses and to submit evidence. . . . Any statute having 

for its object the deprivation of the liberty of a person 

cannot be upheld unless [these rights are] secured, for the 

object may be attained in defiance of the constitution, and 

without due process of law.

Id.

¶ 94 It appears to us, then, that the dissent’s reconstruction 

emphasizes only one due process theme from Gilded Age courts: the 

need to ensure flexibility in the procedures that new states must adopt,

so as not to stifle the rapid industrial and geographic expansion 

characteristic of that “quick and active age.” Hurtado v. California, 110 

U.S. 516, 529 (1884). But by myopically focusing on Hurtado, a case that 

foregrounded this theme, and failing to focus on those cases where the 

Court was more searching in its review of the process before it, the 

dissent disregards the potential continued vitality of due process 

protections during the Gilded Age.

C. The Underlying Error in the Dissent’s Originalist Approach

¶ 95 In our view, the dissent’s originalist analysis rests on one 

fundamental error. Before we address that error, we note that we find 

much to commend in the dissent’s approach to originalism. We agree 

with the dissent that originalist inquiry must focus on ascertaining the 

“original public meaning” of the constitutional text. Infra ¶ 154.

¶ 96 We also agree that to ascertain the original public meaning of 

the constitutional text, we must ask what principles a fluent speaker of 

the framers’ English would have understood a particular constitutional 

provision to embody. See infra ¶ 154 n.33 (“[T]he predominant 
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Opinion of the Court

42

originalist theory” requires seekers of the original meaning to 

“interpret[] the Constitution according to how the words of the 

document would have been understood by a competent and reasonable 

speaker of the language at the time of the document’s enactment.” 

(quoting John O. McGinnis & Michael B. Rappaport, Original Methods 

Originalism: A New Theory of Interpretation and the Case Against 

Construction, 103 NW. U.L. REV. 751, 761 (2009))). See generally Keith E. 

Whittington, The New Originalism, 2 GEO. J.L. & PUB. POL’Y 599 (2004) 

(discussing evolution of originalism from “original intent” originalism 

to “original public meaning” originalism). This understanding is the 

original meaning—or meanings—of the constitutional text.

¶ 97 We part ways with the dissent’s originalist approach not in its 

end goal—figuring out what a person steeped in Gilded Age linguistic 

norms would’ve understood the constitutional language to express—

but in the means appropriate to reaching this goal. In our view, the 

dissent’s application of originalism commits a key methodological 

error—an error that one scholar has recently called “atomistic 

translation”—translating the meaning of the constitutional text through 

a process of “term-for-term . . . substitution.” Jonathan Gienapp,

Historicism and Holism: Failures of Originalist Translation, 84 FORDHAM L.

REV. 935, 941–42 (2015).

¶ 98 The problem is that to understand what principle a fluent 

speaker of the framers’ English would have understood a particular 

constitutional provision to embody will often—though surely not 

always—require more than just examining the terms used and seeking 

to translate those terms into roughly equivalent contemporary English. 

What is missing from this approach is deep immersion in the shared 

linguistic, political, and legal presuppositions and understandings of 

the ratification era.

¶ 99 Linguistically, originalism will often require the 

constitutional interpreter to “access the semantics and pragmatics 

available to a competent speaker of American English at the time each 

provision was framed and ratified.” Lawrence B. Solum, Triangulating 

Public Meaning: Corpus Linguistics, Immersion, and the Constitutional 

Record 17 (Apr. 26, 2017) (unpublished manuscript), 

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3019494 (The 

pragmatics will include presuppositions shared by the community of 

speakers at the time of ratification.); see also André LeDuc, Making the 

Premises About Constitutional Meaning Express: The New Originalism and 

Its Critics, 31 BYU J. PUB. L. 111, 117 (2016) (noting a recent trend within 
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Opinion of the Court

43

originalism toward “incorporat[ing] pragmatic import as well as 

semantic meaning” into the concept of original public meaning). But 

the semantics and pragmatics of the founding era may well be radically 

different from contemporary linguistic norms and presuppositions. See 

RHYS ISAAC, THE TRANSFORMATION OF VIRGINIA 1740–1790 5 (1999) 

(“Whether one moves away from oneself in cultural space or in 

historical time, one does not go far before one is in a world where the 

taken-for-granted must cease to be so . . . . Ways must be found of 

attaining an understanding of the meanings that the inhabitants of 

other worlds have given to their own everyday customs.”). So 

originalism requires enough engagement with founding-era source 

materials that we may, without tacitly relying on contemporary 

linguistic assumptions, see what the operative constitutional phrases 

connoted.

¶ 100 Understanding many of the principles embodied in the Utah 

Constitution will also require fluency in the political and legal 

presuppositions and understandings of the ratification era. This is 

because many constitutional principles are just that—general, abstract 

principles. But this doesn’t mean that we may pour our own 

contemporary moral views into the constitutional text. Instead, we 

must seek to understand the requirements these principles would have

been understood to embody by the founding generation, and we must 

apply those requirements to contemporary problems. We can’t do this 

without engaging the founding era’s political and legal 

understandings—“trac[ing] intellectual influences . . . [and] situat[ing] 

meaning in the flow of discursive activity”—in order to uncover the 

“presuppositions and silent logical connectives” that collectively 

formed the era’s understanding of the constitutional text, but that time 

has hidden from our view.12 Gienapp, Historicism and Holism, supra, at

955.

 

12 In this respect we part ways with Professor Solum, who argues 

that originalist translation doesn’t require immersion in the “ideology 

. . . and ideas” of the ratification period, just its “semantics or 

pragmatics.” Lawrence B. Solum, Triangulating Public Meaning: 

Corpus Linguistics, Immersion, and the Constitutional Record 19 (Apr. 

26, 2017) (unpublished manuscript), 

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3019494.
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Opinion of the Court

44

¶ 101 The fundamental error in the dissent’s originalist analysis is 

that it doesn’t immerse itself in Gilded Age sources to uncover and 

elucidate the principles embodied in the due process provision. It 

commits this error at both the linguistic and ideological level.

¶ 102 Linguistically, the dissent relies heavily on Lucius Polk 

McGehee’s treatise to support its claim that “the precise means of 

notice and an opportunity to be heard are not enshrined in the 

guarantee of due process.” Infra ¶ 169. According to the dissent, 

Professor McGehee tells us that “‘[t]he basis of due process’ consists of 

‘orderly proceedings and an opportunity to defend.’” Infra ¶ 169

(quoting LUCIUS POLK MCGEHEE, DUE PROCESS OF LAW UNDER THE 

FEDERAL CONSTITUTION 2 (1906)). And the dissent takes this to mean 

that due process only requires a litigant to be given notice of “the 

pendency of [a] hearing and given a chance to present his view on the 

questions presented.” Infra ¶ 170.

¶ 103 At first blush, this is a reasonable construction. To our 

contemporary mind “orderly proceedings” and “an opportunity to 

defend” may very well sound like thin concepts. But a broader 

engagement with the relevant source material suggests to us that, at the 

time of ratification, these phrases may have connoted more robust 

restraints on the legislature than the dissent perceives. For example, 

Professor McGehee was surely aware of the Court’s remarks in Chicago, 

Milwaukee and St. Paul Railway Co., where the Court indicated that due 

process would sometimes require elaborate procedural protections, 

including the right to call witnesses. And other courts drew on 

Professor McGehee’s treatise for the proposition that the due process 

provision constrained the legislature’s authority to prescribe rules of 

evidence and procedure. See, e.g., State ex rel. Hurwitz v. North, 264 S.W. 

678, 681 (Mo. 1924) (“The general rule is that the state Legislature has 

the right to prescribe rules of evidence and rules of procedure. Such 

rules and laws must be reasonable, and give to the party an opportunity 

to make a defense, for, if they preclude a full defense, they would 

violate due process.” (emphases added) (citing MCGEHEE, DUE PROCESS 

OF LAW UNDER THE FEDERAL CONSTITUTION 80 (1906)).

¶ 104 What this suggests to us is that Professor McGehee’s 

phrase—“orderly proceedings and an opportunity to defend”—might 

well have been understood to mean something different at the time of 

the Utah Constitution’s ratification than it conveys today. Indeed, in

Blaisdell, the “opportunity to be heard, and to defend” according to an 

“orderly proceeding adapted to the nature of the case” was thought to 
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Opinion of the Court

45

include the requirement of “a trial” including “the right to produce 

witnesses and to submit evidence.” 57 N.W. at 795.

¶ 105 This isn’t to take a definitive stand on the meaning of 

“orderly proceedings and an opportunity to defend.” It’s only to 

illustrate that figuring out its meaning—or meanings—requires deep, 

sympathetic engagement with a wide array of Gilded Age source 

material. It’s a mistake to interpret those phrases with tacit reference to 

contemporary linguistic understandings.

¶ 106 The dissent also fails to adequately immerse itself in relevant 

political and legal presuppositions and understandings of the Gilded 

Age. Take, for example, the dissent’s analysis of whether the 

protections of due process might have been understood to apply to 

sentencing proceedings. See supra Part III.B.1 (responding to this 

portion of the dissent’s analysis). The dissent excerpts a set of treatises 

according to which offenders have “no constitutional right . . . to 

confront witnesses at sentence hearings” and “no recognized 

constitutional right to present witnesses on their [own] behalf.” Infra 

¶ 171 n.52 (quoting ARTHUR W. CAMPBELL, LAW OF SENTENCING § 13:20 

(3d ed. 2004)); see also infra ¶ 159 n.37 (“There were no announced 

standards, procedural or substantive, to control a sentencing judge or 

jury.” (quoting Stephen A. Saltzburg, Due Process, History, and 

Apprendi v. New Jersey, 38 AM. CRIM. L. REV. 243, 244 (2001)).

¶ 107 The problem with the dissent’s decision to rely on these 

claims—to the extent they’re even accurate, see supra Part III.B.1—is that

the dissent doesn’t consider the degree to which they presuppose or 

depend on background legal and political assumptions and realities. As 

we’ve explained, perhaps there were no “announced standards” 

applicable to the sentencing phase of a case because there was no 

meaningful line between the guilt and sentencing phases. See supra 

¶¶ 77–78. Or perhaps it was because appellate courts had little 

opportunity, and even less occasion, to even consider what 

constitutional protections should apply at sentencing.13 See supra ¶¶ 82–

 

13 For example, courts may not have had a need to invoke 

constitutional principles because their authority over the common law 

gave them adequate means to articulate procedural protections. For 

most of the nineteenth century, criminal law and procedure was 

exclusively judge-made common law. LAWRENCE M. FRIEDMAN, A

HISTORY OF AMERICAN LAW 407 (2d ed. 1985) (noting that the 

(cont.)
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Opinion of the Court

46

83. Or perhaps it was because the nineteenth century took it for 

granted (1) that sentencing evidence would be sworn and (2) that oaths, 

by themselves, were sufficiently powerful to assure the reliability of 

evidence. See supra ¶ 74 n.9.

¶ 108 If the claims on which the dissent relies turned on any of 

these background realities or presuppositions, then the dissent is 

wrong to rely on them. If there were no cases applying due process 

protections to sentencing because there were no sentencing 

proceedings, or because few courts had the authority to entertain 

sentencing appeals, then that tells us little about what due process 

would’ve been understood to require in sentencing proceedings had it 

actually applied. Similarly, if no court applied the due process 

provision to require confrontation rights or other substantive 

evidentiary protections only because of the ratification era’s general 

presupposition that sworn testimony was presumptively reliable—

backed by the force of a deity—then the demise of this general 

understanding of the power of the oath suggests that the principle 

embodied in the due process provision would apply very differently 

today.

¶ 109 In sum, only through deep immersion in ratification-era 

language and debates can an originalist hope to uncover the principles 

that many constitutional provisions originally embodied. A failure of 

deep immersion will lead to atomistic originalist analysis, and, in turn, 

constitutional error. We’ve illustrated how this error may have infected 

the dissent. And we urge litigants who undertake originalist argument 

to engage in this kind of deep reading in future cases before us.

 

accomplishments of the codification movement were “fairly meager . . . 

up to the end of the 19th century”); see also Aniceto Masferrer, The 

Passionate Discussion Among Common Lawyers About Postbellum American 

Codification: An Approach to Its Legal Argumentation, 40 ARIZ. ST. L.J. 173,

177 (2008) (noting that the codification debate took place “[i]n the 1880s 

and 1890s”). And, common law decisions can be reviewed, and 

overturned, without invoking constitutional principles. It was therefore 

only after the success of codification that courts would’ve felt a need to 

invoke constitutional principles. But this doesn’t mean that those 

principles wouldn’t have been understood to embody many of the 

common law decisions courts made.
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Opinion of the Court

47

D. The Relationship Between the Dissent’s

Methodological Mistake and Its Policy Analysis

¶ 110 This brings us to the relationship between the dissent’s 

originalist analysis and its policy analysis. The relationship between 

originalism and policy analysis is different from the relationship 

between policy and other modes of interpretation. When we’re not 

engaged in originalist research, contemporary policy concerns are 

never far from our mind. They affect our understanding of the plain 

meaning of the text, see Warner v. Goltra, 293 U.S. 155, 158 (1934) 

(statutes must be read “in the light of the mischief to be corrected and 

the end to be attained”); In re Letters Rogatory Issued by Dir. of Inspection 

of Gov’t of India, 385 F.2d 1017, 1020 (2d Cir. 1967) (statutes “must be 

interpreted in terms of the mischief [they were] intended to rectify”), 

and they help determine when we reach for secondary canons of 

construction and what to do when we reach for them, Bagley v. Bagley, 

2016 UT 48, ¶ 27, 387 P.3d 1000 (“[T]he absurd consequences canon . . . 

resolve[s] an ambiguity by choosing the reading that avoids absurd 

results.” (second alteration in original) (citation omitted) (internal 

quotation marks omitted)). But originalist analysis requires us to 

discard our own policy views in order to get a full, sympathetic 

understanding of the policy considerations that animated a generation 

with radically different practices, understandings, and concerns.

¶ 111 This is difficult to do. Indeed, there’s a long, proud 

American tradition—dating at least to John Adams—of reading our 

contemporary policy preferences into ancient texts. See BERNARD 

BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 24–25 

(2d ed. 1992) (noting that in 1774, John Adams “had cited Plato as an 

advocate of equality and self-government but . . . was so shocked when 

he finally studied the philosopher that he concluded that the Republic 

must have been meant as a satire”). Scholars have even recognized that 

this makes up part of the deep rhetorical power of originalism.

[T]he deeper power of originalist argument sounds in the 

romance of national identity. Whether originalist 

arguments have [rhetorical] purchase depends less on the 

accuracy of their historical accounts—or the plausibility of 

their theories of intertemporal authority—than on 

whether their audiences recognize themselves, or perhaps 

their idealized selves, in the portrait of American origins 

that is on offer.
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Opinion of the Court

48

Richard Primus, The Functions of Ethical Originalism, 88 TEX. L. REV. SEE 

ALSO 79, 80 (2010).

¶ 112 We worry that the dissent has fallen into this trap. The 

dissent excoriates Labrum. The approach Labrum employs 

“undermine[s] the orderly evolution of our law [by] . . . 

constitutionaliz[ing] fields meant for policymakers.” Infra ¶ 177. It is 

“fuzzy and unworkable.” Infra ¶ 185. “[U]nmanageable.” Infra ¶ 185. It 

“dashe[s]” the expectations of the good, law-abiding citizens of this 

state (who presumably sleep easier when inmates who haven’t been 

convicted of sex crimes are hooked up to penile plethysmograph 

machines based on a parole officer’s hunch). Infra ¶ 188. It’s a one-way 

ratchet, laying the groundwork “for ever-expanding procedural 

mechanisms.” Infra ¶ 184. “[W]hat about the victim . . . ?” Infra ¶ 186. 

“And what about the general public . . . ?” Infra ¶ 186.

¶ 113 We, of course, disagree with the dissent’s analysis. Our 

decision isn’t a one-way ratchet; it plainly balances administrability 

with concerns for accuracy in meting out punishment. See supra ¶ 43.14

The public’s interest in sex offenders’ receiving treatment is leavened 

by its commitment to ensuring that we reliably distinguish between 

those who have committed sex crimes and those who haven’t—a 

commitment to the rule of law that is at the very heart of our society. 

See State v. McClellan, 2009 UT 50, ¶ 29, 216 P.3d 956 (“[O]ur 

constitutional system is primarily designed to protect the innocent, not 

punish the guilty.”). This protects victims too—it protects all of us from 

the arbitrary hand of law enforcement.15

 

14 The dissent is concerned that the logic of our decision “provides 

no stopping point” for new due process protections and will lead to an 

ever-expanding ambit of procedural requirements. Infra ¶ 184. But this 

decision repeatedly emphasizes that its purpose is to ensure that Parole 

Board determinations about whether an inmate has committed an 

unconvicted crime are adequately supported by notice, evidence, and a 

rationale--concepts that are basic to the system’s historic commitment 

to due process. The dissent’s concerns thus appear to be with the entire 

enterprise of courts’ ensuring procedural protections, not with anything 

distinctive about this case.

15 We disagree with the dissent’s suggestion that we’ve 

demonstrated inadequate concern for the victim in this case. Infra 

(cont.)
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Opinion of the Court

49

¶ 114 More importantly, however, we‘re troubled by the dissent’s 

willingness to locate its perspective on the law in the past without the 

benefit of adversarial briefing. The dissent’s view—that due process 

protections may not apply to sentencing and parole, and, even if they 

do, they don’t require any procedural protections designed to ensure 

accurate, non-arbitrary decisions—is discomfiting. For Mr. Neese, it 

would mean that the Parole Board could rely on untested allegations to 

force him to choose between (1) being labeled a sex offender, subjected 

to the increased risk of violence to which sex offenders are exposed, 

and required to complete a profoundly invasive and degrading 

program of treatment (one he can’t truthfully participate in if, as he 

maintains, he isn’t a sex offender) or (2) being kept in prison for much 

of the rest of his life. Even the dissent expresses discomfort with this 

consequence of its conception of due process—a conception that 

privileges bright lines over fairness. See infra ¶ 120.

¶ 115 But, as we’ve explained, the past doesn’t unambiguously 

support the dissent’s analysis. The dissent’s analysis hasn’t been briefed 

to us. And we’re accordingly unable to deprive Mr. Neese of the due 

process protections to which he is entitled under a faithful application 

of Labrum.

CONCLUSION

¶ 116 Based on the undisputed facts, we conclude that before the 

Parole Board considers the unconvicted sexual offense that its hearing 

officers have questioned Mr. Neese about, article I, section 7 of the Utah 

Constitution requires it to provide Mr. Neese with the additional 

procedural protections that this opinion has described. We therefore 

reverse the district court’s order granting summary judgment to the 

Parole Board in this case and remand for proceedings consistent with 

this opinion.

 

¶¶ 186–191. While it’s correct that Mr. Neese was “convicted of crimes 

sustaining a sentence of up to thirty-two years in prison,” the victim 

had no legitimate expectation that such a sentence would be sustained 

based upon unconvicted crimes. Infra ¶ 187. In addition, our opinion 

today doesn’t even bar the Parole Board from taking into account 

unconvicted crimes, it only requires it to afford Mr. Neese a minimal 

amount of due process before doing so.
NEESE v. PAROLE BOARD

DURRANT, C.J., concurring in part and concurring in the result

50

CHIEF JUSTICE DURRANT, concurring in part and concurring in the result:

¶ 117 I concur in sections I, II, and part A of section III of the 

majority opinion, but write separately to express my disagreement with 

parts B, C, and D of section III. I share the majority’s view that in 

Labrum v. Utah State Board of Pardons16 we adopted 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.’”17 I also agree that, while the due process 

protections the majority identifies here were not specifically addressed 

by the Labrum court, they are consistent with the core premise of the 

Labrum opinion and are a logical and reasonable extension of that 

premise. Additionally, I share the majority’s view that the dissent’s 

central argument—that “the historical record does not suggest that the 

nineteenth century understanding of the constitutional right of ‘due 

process’ would have extended to sentencing proceedings”18—is 

inconsistent with Labrum’s central holding and that to adopt that 

argument would be to effectively overrule Labrum. Finally, I agree with 

the majority that because Mr. Neese has not sought to overrule Labrum, 

and because neither party has provided us with adequate briefing on 

the Utah Constitution’s due process clause, it is unnecessary to conduct 

a historical analysis in this case.19

¶ 118 But I part paths with the majority’s decision to substantively 

address the dissent’s historical analysis. I believe the majority errs in 

engaging in a debate on the merits as to arguments presented by the 

dissent, and further errs in putting a thumb on the scale with respect to 

some of those issues. While the majority refrains from stating “any 

definite conclusions about this history without the benefit of 

adversarial briefing,”20 it nevertheless appears to indicate a preferred 

 

16 870 P.2d 902 (Utah 1993).

17 Supra ¶ 60 (quoting Labrum, 870 P.2d at 908).

18 Infra ¶ 163 n.45.

19 I also would not seek further briefing on the question of the 

historical meaning of the due process clause because it is unnecessary 

to the resolution of this case.

20 Supra ¶ 70.
Cite as: 2017 UT 89

DURRANT, C.J., concurring in part and concurring in the result

51

resolution of some key issues.21 I understand the majority’s reluctance 

to let the dissent’s arguments go uncontested, but, for the reasons 

offered by the majority in support of its view that the dissent has 

unnecessarily and without adequate briefing set forth a historical 

analysis, I would not engage in a substantive rebuttal of that analysis.

¶ 119 Determining the correct historical understanding of our 

state constitution’s due process clause is an issue of obvious 

importance. And it is an issue, as the competing opinions in this case 

illustrate, fraught with complexity. In my view, this is not the case to 

engage in substantive debate on this issue, either in the first instance or 

in rebuttal.

 

21 See, e.g., supra ¶ 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.”); supra ¶ 72 

(“Williams, in turn, relied on State v. Reeder. 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.”(citation omitted)); supra ¶ 74 (“The other 

cases on which Reeder relied likewise appear to potentially recognize 

the importance of procedural protections in connection with 

sentencing.”); supra ¶ 75 (“So, contrary to the dissent, it appears to us 

that procedural protections may have been understood to apply to 

sentencing proceedings in the period leading up to ratification of the 

Utah Constitution.”); supra ¶ 78 (“And there’s good reason to think due 

process protections may have applied at sentencing.”).
NEESE v. PAROL BOARD

LEE, A.C.J., dissenting

52

ASSOCIATE CHIEF JUSTICE LEE, dissenting:

¶ 120 I share some of the majority’s concerns about the fairness of 

the procedures afforded to Neese by the Parole Board. The Board’s 

refusal to allow Neese to call and question his accuser made it difficult 

for him to persuasively refute the sex-offense charge against him. And 

without a persuasive means of rebuttal, Neese is likely to face 

substantially more prison time than most other inmates serving time 

for his crime of conviction (obstruction of justice). He would also serve 

that time without a trial-like adjudication of the sex-offense charge in 

question. 

¶ 121 For these and other reasons I might endorse the procedures 

set forth in the majority opinion if I were in a position to make policy in 

this field—to promulgate administrative rules governing the Parole 

Board. I hedge—saying only that I might—because I am certain that my 

understanding of the Board’s decisionmaking process is incomplete. 

And I frame this conclusion in the subjunctive—speaking of what I 

might do if I were in a position to promulgate rules for the Board—to 

underscore the limited scope of our authority in a case like this one. In 

deciding this case we are deciding only on the demands of the Utah 

constitution. We are not deciding what set of procedural rules strike us 

as ideal under these circumstances.

¶ 122 The line between those two concepts is too often blurred in 

modern judicial thinking. And the blurriness is perhaps at its height 

when we speak of the requirements of “due process.” Here, perhaps 

more than in other constitutional fields, it is tempting to think of the 

constitutional requirement of due process as a general charter for 

assuring a vague ideal of fairness—an ideal that will ebb and flow or 

evolve over time. But that is not what is enshrined in the due process 

clause. “[T]he Due Process Clause is not a free-wheeling constitutional 

license for courts to assure fairness on a case-by-case basis.” In re 

Discipline of Steffensen, 2016 UT 18, ¶ 7, 373 P.3d 186. “[I]t is a 

constitutional standard” with a specific, if somewhat flexible, meaning. 

Id. 

¶ 123 The idea of a fixed construct is inherent in the very nature of 

constitutional law. The whole point of having a written constitution is 

to “establish the fundamental ground rules for lawmaking”—the “fixed 

bulwarks” we deem essential to protect us against “tyrannies of the 

majority.” State v. Houston, 2015 UT 40, ¶ 149, 353 P.3d 55 (Lee, A.C.J., 

concurring in part and concurring in judgment) (citation omitted). 
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LEE, A.C.J., dissenting

53

Without those “fixed bulwarks” we lose our grip on the rule of law, 

and we substitute in its place the preferences of mere judges. See 

Washington v. Trump, 858 F.3d 1168, 1184 (9th Cir. 2017) (Bybee, J., 

dissenting) (offering the important reminder that “[w]e are judges, not 

Platonic Guardians”).

¶ 124 The point is not that our law cannot evolve. It is to 

remember that the constitution preserves extra-judicial means of our 

law’s adaptation: (a) “amendment of the constitution through the 

super-majoritarian procedures set forth in its provisions,” and 

(b) “implementation of policies embraced by the people through their 

representatives in the political branches of government” (such as by 

“adoption of statutes, regulations, and other laws within the limitations 

prescribed in the constitution”). Houston, 2015 UT 40, ¶ 151 (Lee, A.C.J., 

concurring in part and concurring in judgment). 

¶ 125 For these reasons I find it important to take a step back from 

the approach embraced by the majority. I would not begin by accepting 

the broadest conception of our opinion in Labrum v. Utah State Board of 

Pardons, 870 P.2d 902, 909–10 (Utah 1993). That decision admittedly 

deserves some measure of respect as a matter of stare decisis. But the 

majority in my view is extending the premises of the Labrum decision to 

their logical extreme—a step that stare decisis does not require. See supra

¶ 39 (noting that the Parole Board has asked us to limit Labrum “to its 

facts,” but concluding that “our task is to faithfully apply our 

precedent” absent a request that we overrule it). Labrum did not decide 

the question presented here.22 See infra ¶¶ 139–43. So we can uphold 

 

22 Neese himself has not asserted that this case is controlled by 

Labrum. The Labrum opinion isn’t even cited in Neese’s opening brief. 

And the discussion of Labrum in the reply brief amounts only to (a) an 

assertion that Labrum “did not address what process was due in a 

parole hearing in which the prisoner’s status as a sex offender was 

adjudicated”; and (b) an assertion that the federal Due Process Clause 

should be interpreted more expansively and that those “broader 

protections . . . are supreme.” Appellant Reply Br. at 11–12.

For these reasons it seems to me that the majority is engaging in the 

very enterprise it seeks to pin on me—of advocating a basis for 

resolving this case that is not precisely presented by the parties. The 

majority’s extension of Labrum is a matter of the court’s own 

independent analysis. I say that to highlight what I see as some 

(cont.)
NEESE v. PAROLE BOARD

LEE, A.C.J., dissenting

54

Labrum without ruling in Neese’s favor. And in my view we should 

carefully consider the basis of the court’s analysis in Labrum before 

extending it in the manner that the court does today.

¶ 126 The majority criticizes my approach on two principal 

grounds—(a) the concern that I am engaged in independent analysis of 

historical material without the benefit of adversary briefing, see supra

¶ 67; and (b) the assertion that I am urging a decision overruling 

Labrum while the court is just upholding that decision on stare decisis

grounds, supra ¶¶ 51, 57. I respond to these and other points in detail 

below. For now I would note (1) that I favor supplemental briefing on 

the historical basis for our decision in this case; (2) that my colleagues 

are not just preserving Labrum but are extending it—establishing a new 

standard of due process in parole hearings that is nowhere dictated on 

the face of Labrum; and (3) that the majority’s extension of Labrum is not 

one expressly requested by Neese (and accordingly not subjected to 

adversary briefing). See infra ¶¶ 137–43.

¶ 127 My colleagues apparently prefer not to seek further briefing 

from the parties on the historical questions that I am addressing. That is 

their prerogative. But I would think that their decision to decline 

further briefing, see supra ¶¶ 50 n.5, 51, might blunt their criticism of 

my historical analysis of the due process clause.

¶ 128 The majority is establishing a significant new rule of 

constitutional law in resolving this case. It holds for the first time that 

the Utah Constitution guarantees a right to cross-examination in a 

parole hearing. That right is nowhere enshrined in our precedent—or at 

all dictated by the analytical framework of Labrum. 

¶ 129 Neese himself has not invoked the Labrum opinion as a basis 

for the parole procedures he claims to be lacking. He bases his due 

process argument principally on federal authorities—citing Labrum

only in his reply brief, and only there in an attempt to try to distinguish 

it (in response to the Parole Board’s argument that Neese was afforded 

all of the process that he was due under Labrum).

 

overexuberance in the court’s criticism of my independent analysis of 

the due process clause, and not to question the court’s right to engage 

in this independent analysis. The due process question is adequately 

presented and briefed, after all, and the court is not just entitled but 

expected to use its own lights in resolving it. 
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LEE, A.C.J., dissenting

55

¶ 130 The bottom line is that the briefing on the state 

constitutional question presented is quite minimal. That leaves us with 

two choices—either to seek supplemental briefing or to move forward 

with what we have. I would seek further briefing. But I also find the 

matter adequately presented, and I see no barrier to our resolving it 

(either by application of precedent or by resort to historical materials).

¶ 131 I would resolve this issue by analyzing the text and original 

meaning of the due process clause of the Utah Constitution. Thus, I 

would apply the historical framework of due process that I have 

outlined previously. See In re Adoption of K.A.S., 2016 UT 55, ¶¶ 45–100, 

390 P.3d 278 (Lee, A.C.J., dissenting). And I would affirm the district 

court’s decision dismissing Neese’s claims because I find no basis in the 

text or original meaning of the Utah due process clause to call into 

question the procedural framework adopted by the Parole Board (much 

less, to sustain the specific procedures deemed required by the 

majority). 

¶ 132 In the paragraphs below I begin with some background on 

the due process framework that I would apply. Then I analyze Neese’s 

claim against this backdrop. And I close with some observations about 

concerns with the majority’s approach even accepting the 

(non-originalist) premises of its analysis.

I

¶ 133 The due process clause does not confer on the judiciary a 

roving “duty to establish ideal systems for the administration of justice, 

with every modern improvement and with provision against every 

possible hardship that may befall.” In re Discipline of Steffensen, 2016 UT 

18, ¶ 7 n.2, 373 P.3d 186 (quoting Ownbey v. Morgan, 256 U.S. 94, 110–11 

(1921)). It implicates a historically driven test “measured by reference to 

‘traditional notions of fair play and substantial justice.’” Id. ¶ 7 (quoting 

ClearOne v. Revolabs, 2016 UT 16, ¶ 8, 369 P.3d 1269). 

¶ 134 We have warned against the perils of a notion of due 

process as “a free-wheeling constitutional license for courts to assure 

fairness on a case-by-case basis.” Id. Yet our cases have not always 

heeded these principles. As judges, too often we skate past the words 

“due process” and blithely assume the prerogative of 

constitutionalizing our personal sense of fair procedure. In so doing we 

forget about the “usual course” for assuring procedural fairness—the 

legal means of promulgating rules or laws regulating procedure. See id.

(noting that the “usual course” for assuring fairness “is by 
NEESE v. PAROLE BOARD

LEE, A.C.J., dissenting

56

promulgating rules of procedure”). That means is available here; the 

Parole Board has the authority and means of promulgating and 

amending the administrative rules that govern its proceedings.23 And 

the Parole Board’s rules should stand unless they can be shown to run 

afoul of the historically rooted standard of “due process.” 

¶ 135 The constitutional standard, moreover, can be understood 

only by reference to its text and historical meaning. The text of the 

clause is simple: “No person shall be deprived of life, liberty or 

property, without due process of law.” UTAH CONST. art. I, § 7. This text 

implicates two sets of questions: (a) what sorts of proceedings trigger a 

right to “due process of law”; and (b) what procedures are secured by 

the guarantee of “due process of law.”

¶ 136 We should answer both questions with reference to the 

historical understanding of the terms of the due process clause. First, 

the applicability of the due process clause should depend on whether 

the proceeding in question is one historically understood to threaten a 

deprivation of “life, liberty or property.” And second, the procedures 

secured by this provision should look to those historically understood 

as rooted in the guarantee of “due process.”

¶ 137 I consider these questions because, unlike the majority, I 

find no answer to the question presented in our precedent. The 

majority claims to find an answer in Labrum v. Utah State Board of 

 

23 UTAH CONST. art. VII, § 12(2)(a) (“The Board of Pardons and 

Parole . . . may grant parole, . . . commute punishments, and grant 

pardons after convictions, . . . subject to regulations as provided by 

statute.”); UTAH CODE § 77-27-5(5) (“In determining when, where, and 

under what conditions offenders serving sentences may be paroled [or] 

pardoned, . . . the board shall . . . develop and use a list of criteria for 

making determinations under this [s]ubsection . . . .”); id. § 77-27-9(4)(a) 

(“The board may adopt rules consistent with law for its government, 

meetings and hearings, the conduct of proceedings before it, the parole 

and pardon of offenders, the commutation and termination of 

sentences, and the general conditions under which parole may be 

granted and revoked.”); UTAH ADMIN. CODE r. 671-101 (“Board of 

Pardons rules shall be processed according to state rulemaking 

procedures. . . . Rules are to be interpreted with the interests of public 

safety in mind so long as the rights of a party are not substantially 

affected.”).
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LEE, A.C.J., dissenting

57

Pardons, 870 P.2d 902 (Utah 1993). It cites that opinion for the 

proposition that the due process clause “require[s] more than simply 

giving the inmate an opportunity to speak and ‘point out errors’ in his 

file” when the Parole Board “bases its decisions on untested allegations 

that an inmate has committed a sex offense.” Supra ¶ 55 (citation 

omitted). In that circumstance the majority says that Labrum requires 

“advanced written notice of the alleged sex offense,” an opportunity to 

call and examine “witnesses,” and “an explanation of the Parole 

Board’s decision.” Id. 

¶ 138 Yet none of these requirements are anywhere set forth in the 

Labrum opinion. Indeed there is nothing in Labrum that at all dictates 

the procedure that the court today endorses as a requirement of due 

process. And the court’s extension of Labrum is not advocated by Neese, 

and thus has not been subjected to adversary briefing. 

¶ 139 The majority claims to be following the “framework” of the 

Labrum opinion. Supra ¶¶ 27, 60–61. But Labrum doesn’t establish an 

operative constitutional framework for application in future cases. It 

simply concludes—based on the “reality” that parole hearings “are 

analogous to sentencing hearings,” 870 P.2d at 908—(a) that an inmate 

has some due process rights at the initial parole hearing, id. at 911; and 

(b) that those rights include the right to “know what information the 

Board will be considering at the hearing . . . soon enough in advance to 

have a reasonable opportunity to prepare responses and rebuttal of 

inaccuracies,” id. at 909. 

¶ 140 There is no clear rationale or “framework” for these 

decisions in the Labrum opinion. The closest the Labrum court comes to 

identifying a basis for its decision is the assertion that the procedure 

embraced by the court advances “two critical functions related to 

fundamental fairness”—“minimizing error and preserving the integrity 

of the [parole] process.”24 Id.; see also id. at 910 (asserting that 

 

24 The doctrine of stare decisis urges courts to apply “the first 

decision by a court on a particular question of law . . . [to] later decisions 

by the same court.” State v. Thurman, 846 P.2d 1256, 1269 (Utah 1993) 

(emphasis added). And my approach is consistent with that principle. 

Labrum says that some process is due “to the extent that the analogy 

[between parole hearings and sentencing hearings] holds.” Labrum v. 

Utah State Bd. of Pardons, 870 P.2d 902, 908 (Utah 1993). But Labrum also 

notes that determining “[t]he extent to which additional due process 

(cont.)
NEESE v. PAROLE BOARD

LEE, A.C.J., dissenting

58

“[a]ccuracy and fairness are essential in proceedings which impinge as 

directly on personal liberty as original parole grant hearings”). The 

majority repeats that assertion here. See supra ¶ 24. It says that the right 

to call and cross-examine witnesses is similarly essential to advance 

these “critical functions.” Supra ¶¶ 44–45.

¶ 141 But that conclusion is by no means dictated by Labrum. The 

“critical functions” formulation in Labrum is not a workable legal 

standard; it is a circular confirmation for whatever procedure a 

majority of this court may deem appropriate. Any additional 

procedure, after all, can be said to “minimiz[e] error” and “preserv[e] 

the integrity of the [parole] process.” 870 P.2d at 909.

¶ 142 Labrum thus leaves unanswered the crucial question of the 

“framework” for deciding any future requirements of the Due Process 

Clause in parole hearings. To the extent there is a “framework” in 

Labrum it is the notion that due process requires whatever additional 

“procedure” a majority of this court deems to be helpful. And that is 

not a framework or rationale that is deserving of stare decisis deference. 

See State v. Guard, 2015 UT 96, ¶ 56, 371 P.3d 1 (overruling the “clear 

break” rule in part because it is unworkable and requires courts to 

exercise a large amount of discretion, “introduc[ing] a level of 

unpredictability that is not appropriate when dealing with the 

application of critically important rules”). 

¶ 143 Labrum did not resolve the question of the demands of the 

due process clause in response to “untested allegations” of a sex offense 

raised in a parole setting. Supra ¶ 55. We are answering that question as 

a matter of first impression here. And I see no way to answer that 

question without a careful analysis of the original meaning of the due 

process clause of the Utah Constitution.

II

¶ 144 Historically, only certain proceedings were understood to 

threaten a deprivation of “life, liberty or property” in a manner 

 

protections must be afforded inmates in [a parole hearing] will require 

case-by-case review.” Id. at 911. Applying the decision in Labrum

simply requires this court to afford due process rights to the extent that 

a parole hearing is analogous to a sentencing hearing and to assess 

additional due process on a case-by-case review. My analysis does 

exactly that. See infra Part II. 
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LEE, A.C.J., dissenting

59

triggering a right to “due process.” See infra Part II.A. The threshold

question in my view is whether the parole hearings at issue here should 

count as that sort of proceeding. And for reasons set forth below I think 

the historical record cuts against such a conclusion. See infra Part II.B.

¶ 145 The Labrum court concluded otherwise. See Labrum v. Utah 

State Bd. of Pardons, 870 P.2d 902, 911 (Utah 1993). And Labrum, as 

noted, may be entitled to stare decisis deference on this threshold point. 

But stare decisis does not demand blind extension of our past decisions 

to their logical extreme. At most it requires a logical extension of our 

precedents. And to decide on the logical extension of Labrum we should 

inquire into the logic—or the theoretical basis—of that decision. 25

¶ 146 The majority claims only to be applying the holding of the 

Labrum decision. But again the court is doing more than that. It is 

establishing a broad conception of Labrum—the notion that due process 

requires any additional parole procedure that a majority of the court 

views as advancing the interest of fundamental fairness. See supra ¶ 33. 

 

25 I seek not to overrule Labrum. Or even to “confine [it] to its precise 

facts.” Supra ¶¶ 56–57. I am just observing that the Labrum opinion does 

not dictate an answer to the question presented here. To decide how 

much procedure is constitutionally required in response to “untested 

allegations” of a sex crime in a parole hearing we must do more than 

just apply Labrum. 

The majority is surely doing more than that in its opinion. It is not 

just citing Labrum as dictating the answer to the question presented. It is 

establishing a wholly new constitutional requirement based on the 

majority’s sense of where best to draw the line—concluding that the 

right to cross-examination is essential to “due process” in response to 

an allegation of a sex crime raised in a parole hearing, except where 

“the safe [and effective] administration of the prison system requires 

otherwise.” Supra ¶¶ 43, 53. That may be a good line to draw. But the 

line doesn’t come from Labrum. It comes from the majority’s sense of 

fairness in the unique circumstances presented in this case.

I’m all for “transparency.” Supra ¶ 58. That’s the whole point of my 

opinion. Because I find no answer to the question presented here in 

Labrum I am seeking to identify a basis for decision in the text and 

original meaning of the Utah Constitution—the source of first 

principles for any question not clearly controlled by settled precedent. 

This seems to me the path of true transparency. Supra ¶ 58. 
NEESE v. PAROLE BOARD

LEE, A.C.J., dissenting

60

Labrum nowhere expressly articulates that as the controlling 

constitutional framework. So in that sense the majority itself is also 

revisiting the underlying basis for our decision in Labrum. It is just 

doing so implicitly.

¶ 147 The majority’s due process construct yields no logical 

stopping point—and no real guiding legal principle. Indeed the 

majority itself nowhere expressly articulates an “anything a majority of 

us deem necessary is required” standard of due process. If that is in fact 

the operative principle then we should say so. If there is some other 

basis for the decision then we should say that. We owe it to the 

parties—and to lower courts and to the bar, who will be governed by 

our opinion—to identify a transparent legal basis for the direction of 

our law in this important area.26

¶ 148 To do that we need to return to first principles. And those 

principles, in my view, must start with an inquiry into the historical 

basis for extending the protections of the Due Process Clause to the 

parole process. We can reexamine the premises of the Labrum decision 

while still respecting the premises of the doctrine of stare decisis.27 I 

would do so here on grounds set forth below. 

 

26 I cannot see how my resort to first principles would undermine 

the “coherence” of our jurisprudence in this field. Supra ¶ 64. I find the 

implicit premises of the Labrum line of cases to be quite incoherent. And 

the whole point of my historical inquiry is to try to bring discipline and 

transparency to this important field.

It seems to me that it is the majority that is engaged in the enterprise 

of deciding our cases by a “‘show of hands’” rather than a “‘rule of 

law.’” Supra ¶ 65 (quoting Hein v. Freedom From Religion Found., Inc., 551 

U.S. 587, 618 (2007) (Scalia, J., concurring in the judgment)). The 

standard the court attributes to the Labrum line of cases is all about a 

show of hands—attributing to the due process clause whatever 

standards of fairness a majority of this court can agree to in any given 

circumstance. That is not a coherent legal standard. And it is not a 

workable rule of law.

27 Cf. Gen. Motors Corp. v. Tracy, 519 U.S. 278, 312 (1997) (Scalia, J., 

concurring) (stating that “the so-called ‘negative’ Commerce Clause is 

an unjustified judicial invention, not to be expanded beyond its existing 

(cont.)
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LEE, A.C.J., dissenting

61

¶ 149 At a minimum we need to consider the extent of the 

“process” that is due in a case like this one. Labrum, again, doesn’t 

dictate an answer to that question.28 And our determination of the 

demands of due process must accordingly be informed by an inquiry 

into the original understanding of the constitutional guarantee.29 That 

 

domain” but also reaffirming willingness to “enforce on stare decisis 

grounds” the applications of that doctrine in prior cases).

28 Nor do the cases handed down in Labrum’s wake. Our subsequent 

decisions admittedly accepted the premises of Labrum—that the due 

process guarantee extends to at least some parole proceedings, that due 

process is aimed at assuring fairness in those proceedings, and that 

“this procedural right [i]s not unlimited.” Supra ¶ 62. Thus, in Neel v. 

Holden, 886 P.2d 1097 (Utah 1994), and Monson v. Carver, 928 P.2d 1017 

(Utah 1996), we established a few new due process rights in the parole 

process and declined to establish others. But our opinions still failed to 

provide a concrete legal basis for the lines that we were drawing—

except the bare notion that the procedures we required struck the court 

as necessary to protect a vague principle of fairness and the procedures 

we refused to endorse seemed unnecessary. See Neel, 886 P.2d at 1103 

(refusing to require the disclosure of confidential information “when 

that disclosure might lead to harm of a third person”); Monson, 928 P.2d 

at 1030 (refusing to allow inmate to call character witness because the 

court concluded that the proffered testimony would not “substantially 

further[] the accuracy and reliability of the [Parole] Board’s fact-finding 

process”). Thus, our precedents don’t answer the question presented in 

this case. And in my view that requires us to return to first principles to 

find a guiding standard for our decisions in this important field.

29 The majority, to its credit, recognizes the importance of an inquiry 

into the “original meaning of the Utah Constitution when [we are] 

properly confronted with constitutional issues.” Supra ¶ 67. But it then 

criticizes my historical inquiry on the basis of a supposed lack of 

“prompting from the parties.” Supra ¶ 67. And it questions my 

originalist analysis on the basis of a lack of adversary briefing. Supra

¶ 67.

To the extent the majority is suggesting that the originalist questions 

that I am exploring are not properly presented I disagree. The question 

of the reach and extent of the due process guarantee in a parole 

proceeding like this one is the key question presented for our decision. 

(cont.)
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LEE, A.C.J., dissenting

62

understanding is simple and straightforward. The due process clause 

“refers to certain fundamental rights which [our] system of 

jurisprudence . . . has always recognized.” In re Adoption of K.A.S., 2016 

UT 55, ¶ 87, 390 P.3d 278 (Lee, A.C.J., dissenting) (alterations in 

original) (quoting Hurtado v. California, 110 U.S. 516, 536 (1884)). Basic 

“notice” of the pendency of a legal proceeding is one of the 

“fundamental rights” long understood to be protected as a matter of 

due process. See In re Adoption of B.Y., 2015 UT 67, ¶ 16, 356 P.3d 1215. 

The other is an essential “opportunity” to be heard. Id. Yet the precise 

terms and conditions of these guarantees, if any, must be based on 

historical inquiry. The constitutionally guaranteed manner and means of 

notice and the right to be heard are not to evolve in accordance with the 

policy preferences of judges over time. Instead the core constitutional 

right is the preservation of some minimal notice and opportunity to be 

heard. And history is an important guide: “Procedures . . . consistent 

with the common law and historical tradition [are] presumptively 

permissible, while new procedures [are] permissible so long as they 

[do] not deny one of the core protections of due process, such as a right 

to notice and a meaningful opportunity to be heard.” In re Adoption of 

K.A.S., 2016 UT 55, ¶ 90 (Lee, A.C.J., dissenting). 

¶ 150 This is another basis for questioning the majority’s extension 

of Labrum. The historical precedent cuts against the recognition of the 

now-constitutionalized right to call witnesses in a sentencing-like 

proceeding. I can accept, on stare decisis grounds, Labrum’s premise that 

initial parole hearings are analogous to sentencing proceedings for due 

process purposes.30 See supra ¶¶ 26–28; Labrum, 870 P.2d at 908. But that 

 

And because I find no answer to that question in our precedent it is 

essential to resort to first principles. In that sense the parties have 

effectively prompted an analysis of the historical material that I am 

examining.

To the extent the court is lamenting the lack of detailed briefing on 

the historical questions at issue I agree—but I find the majority’s 

criticism puzzling. Because I find the originalist questions I address 

here properly presented but not adequately briefed I would have 

preferred requesting supplemental briefing. 

30 “Our cases,” after all, “have not said that an original parole 

hearing is identical for all purposes to a sentencing hearing before the 

trial court.” Monson, 928 P.2d at 1029.
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LEE, A.C.J., dissenting

63

does not end the inquiry. We must also determine whether additional 

due process protections—beyond those identified in Labrum—must be 

afforded here. Labrum, 870 P.2d at 911. And we will search the historical 

record in vain for support for the idea that a defendant at sentencing 

had a due process right to be “heard” by calling witnesses or crossexamining them. See infra Part II.B. The newly-established due process 

right to a written sentencing decision is even more novel. To my 

knowledge no court has ever found such a right—not historically (as of 

the founding of the Utah Constitution) and not even in modern 

jurisprudence. And these are further reasons to doubt the constitutional 

propriety of the majority’s decision.

A

¶ 151 The threshold question is whether a parole hearing is the 

sort of proceeding that triggers a constitutional right to due process.

Textually, that question turns on whether such a hearing threatens the 

deprivation of “life, liberty or property.” And the originalist gloss on 

that question is whether the public understanding of this provision 

would encompass a hearing like the one at issue here.

¶ 152 One version of the originalist inquiry might start with the 

premise that modern parole hearings were unknown to the generation 

of the framing of the Utah Constitution. Because today’s parole 

hearings were not invented until nearly two decades after the framing 

of our Due Process Clause,31 the argument could be made that the right 

to due process does not attach.

¶ 153 The argument could be made. But it wouldn’t be a good 

argument. It would be an argument based on a debunked form of 

originalism. Thoughtful originalists distinguish between an application

of the constitution and the public understanding of the legal principle 

expressed by its terms.32 They view the constitution—like all law—as 

 

31 Our state constitution was written and adopted in 1895 and took 

effect in 1896. Utah’s indeterminate sentencing regime was instituted 

by statute in 1913. See 1913 Utah Laws 192–93.

32 Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in 

Original Meaning, 91 NOTRE DAME L. REV. 1, 21 (2015) (“[T]he 

communicative content of the constitutional text is fixed at the time of 

framing and ratification, but the facts to which the text can be applied 

change over time.” (emphasis omitted)).
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consisting of legal principles expressed by the public understanding of its 

terms. But they do not foreclose new applications of those principles to 

circumstances unknown to the past. Quite the contrary, they view the 

prospect of such applications as essential to and inherent in the notion 

of constitutional law. Thoughtful originalists acknowledge that a 

constitution incapable of extending its principles to new applications 

cannot fulfill the promise of establishing fixed bulwarks to protect 

fundamental rights. And they thus adopt an originalist inquiry that 

looks to the public understanding of the constitution’s terms, not the 

applications envisioned by the framers.

¶ 154 This is mainstream originalism, or “original public 

meaning” originalism. This form of originalism should be 

distinguished from “original intent” originalism.33 The original intent 

inquiry is sometimes framed (often by critics) as turning on pure 

silliness—on “what would James Madison have thought” (or what 

would our Utah framers have thought) about a particular modern 

problem. And the answer to that question is usually obvious—nothing, 

because the framers never could have thought about our modern 

problems. But that is irrelevant to an original public meaning 

originalist, because she is looking for the public understanding of the 

operative legal principle at play. It doesn’t really matter what the 

framers might have thought about particular modern problems, 

because that oversimplified inquiry has to do with applications, not the 

public understanding, of the legal principles enshrined in a 

constitutional text.

¶ 155 A Fourth Amendment problem may help to illustrate. The

framers obviously would not have had any specific opinion about 

whether using a thermal-imaging device to examine a private home for 

unusual sources of heat (a sign of marijuana cultivation) is a “search” 

 

33 John O. McGinnis & Michael B. Rappaport, Original Methods 

Originalism: A New Theory of Interpretation and the Case Against 

Construction, 103 NW. U.L. REV. 751, 761 (2009) (“[O]riginal public 

meaning, in contrast to original intent, interpret[s] the Constitution 

according to how the words of the document would have been 

understood by a competent and reasonable speaker of the language at 

the time of the document’s enactment . . . [and] is now the predominant 

originalist theory . . . .”).
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triggering the protections of the Fourth Amendment. But that is the 

wrong question to ask. 

¶ 156 The right question to ask is whether the original public 

meaning of the legal principle encompassed within the protection 

against “unreasonable search and seizure,” U.S. CONST. amend. IV, 

would have prohibited using a thermal-imaging device in that way, 

sans warrant. And it is entirely possible to conclude that the original 

understanding of that principle encompasses visual inspection by 

thermal-imaging—if, for example, we think of the notion of a “search” 

as any operation that violates, in any manner, a homeowner’s 

reasonable expectation of privacy. See Kyllo v. United States, 533 U.S. 27, 

34–35 (2001) (Scalia, J., for the majority) (concluding that the original 

meaning of a Fourth Amendment “search” encompasses the use of a

device by the government that “is not in general public use,” to obtain 

information “regarding the interior of [a] home” that would previously 

have been unknowable without “physical ‘intrusion into a 

constitutionally protected area’” (citation omitted)). 

¶ 157 The Fourth Amendment example helps to focus the question 

presented in this case. The proper question before us is not whether the 

framers of the Utah Constitution would have thought that parole 

hearings trigger a right to due process. Instead we should ask what 

legal principle the Utah public would have understood in the guarantee 

of “due process” as a prerequisite to any deprivation of “life, liberty or 

property.” And to answer that question we may need to look for 

historical analogies to the modern premises before us.

¶ 158 The majority, citing Labrum, says that the best analogy is to 

criminal sentencing proceedings.34 Supra ¶ 27. That seems fair in a 

functional sense, as it is the parole board that makes the ultimate 

decision of how long a given person will remain incarcerated. See supra

¶ 27 (“The Parole Board’s conduct in this case is, at a minimum, closely 

analogous to a sentencing court’s considering uncharged or 

 

34 The majority also analogizes Neese’s parole hearing to “a judicial 

fact-finder . . . adjudicating the inmate guilty of a criminal offense,” or a 

“criminal trial[] and the closely related context of [a] prison disciplinary 

proceeding[].” Supra ¶ 29. Yet the court nowhere explains how these 

alternative analogies cut. 
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unconvicted conduct in fixing a defendant’s sentence.”). I will accept 

the analogy for present purposes.35

¶ 159 Even accepting the analogy, however, the historical record 

cuts against the majority’s decision. There is little historical basis for a 

conclusion that the due process clause was understood to extend in any 

meaningful way to sentencing proceedings. The historical view—from 

the time of the framing of the U.S. Constitution and continuing through 

the nineteenth century—was that a person’s “liberty” was implicated 

only by the determination of guilt.36 The historical record suggests that 

no one thought that sentencing involved a second deprivation.37

 

35 But this premise is by no means a given. See, e.g., Vitek v. Jones, 445 

U.S. 480, 493 (1980) (“Undoubtedly, a valid criminal conviction and prison 

sentence extinguish a defendant’s right to freedom from confinement. 

Such a conviction and sentence sufficiently extinguish a defendant’s 

liberty ‘to empower the State to confine him in any of its prisons.’”) 

(emphases added) (citations omitted); Meachum v. Fano, 427 U.S. 215, 

224 (1976) (“[G]iven a valid conviction, the criminal defendant has been 

constitutionally deprived of his liberty to the extent that the State may 

confine him and subject him to the rules of its prison system so long as 

the conditions of confinement do not otherwise violate the 

Constitution”). It would not be unreasonable to say that a convicted 

defendant’s due process rights are exhausted after “a conviction and 

sentence.” Under this view, the due process clause would require

absolutely nothing during original parole hearings, because the 

defendant’s liberty interest has been extinguished “until the maximum 

[incarceration] period has been reached unless sooner terminated or 

commuted by authority of the Board of Pardons and Parole.” UTAH 

CODE § 77-18-4(3).

36 Cf. Williams v. New York, 337 U.S. 241, 245–46 (1949) (highlighting 

how, 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”).

37 See Stephen A. Saltzburg, Due Process, History, and Apprendi v. 

New Jersey, 38 AM. CRIM. L. REV. 243, 244 (2001) (“[T]here were no 

announced standards, procedural or substantive, to control a 

sentencing judge or jury . . . .”).
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¶ 160 In the eighteenth century and early nineteenth century there 

was no such thing as a sentencing proceeding as we understand it 

today. Upon a conviction after trial the court imposed a statutorily 

required penalty.38 And that was the end of the matter. Things changed 

over the ensuing decades leading up to the framing of the Utah 

Constitution. There was a marked shift toward discretionary 

sentencing—first by judges and eventually through decisions made by 

parole boards.39 Even then, however, no one conceived of trial-level 

“due process” rights as attaching to sentencing.

¶ 161 Throughout the late nineteenth and early twentieth 

centuries, judges and parole boards enjoyed wide discretion to 

determine the appropriate sentence.40 Yet sentencing and parole 

proceedings were never treated like trials. The rules of evidence

generally did not apply. Cf. Williams v. New York, 337 U.S. 241, 251 

(1949) (“The due-process clause should not be treated as a device for 

freezing the evidential procedure of sentencing in the mold of trial 

 

38 Alan M. Derschowitz, Criminal Sentencing in the United States: An 

Historical and Conceptual Overview, 423 ANNALS AM. ACAD. POL. & SOC.

SCI. 117, 124–25, 128 (1976) (“Specific crimes were punished, according 

to the colonial criminal codes, with relatively specific penalties.”); see, 

e.g., COMPILED LAWS OF THE TERR. OF UTAH § 1840 (1876) (“The several 

sections of this code which declare certain crimes to be punishable as 

therein mentioned devolve a duty upon the court authorized to pass 

sentence, to determine and impose the punishment prescribed.”).

39 Derschowitz, Criminal Sentencing, supra, at 128 (describing the 

movement over time from statutorily-prescribed sentences for specific 

offenses to an indeterminate sentencing regime); Alan C. Michaels, Trial 

Rights at Sentencing, 81 N.C. L. REV. 1771, 1812 n.169 (2003); ARTHUR W.

CAMPBELL, LAW OF SENTENCING §§ 1:2–1:3 (3d ed. 2004).

40 See generally Carissa Byrne Hessick & F. Andrew Hessick, 

Procedural Rights at Sentencing, 90 NOTRE DAME L. REV. 187 (2014); see 

also CAMPBELL, LAW OF SENTENCING, supra, at § 9:3 

(“[S]entences . . . determined by trial judges . . . ride upon one of the 

most powerful and pervasive doctrines in the law of sentencing: any 

sentence within constitutional and statutory limits will be upheld on 

appeal as long as it was selected by the proper exercise of judicial 

discretion.”).
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procedure.”).41 Sentencing judges had “wide discretion” to consider 

“[o]ut-of-court affidavits.” Id. at 246. And there is no evidence that 

 

41 The majority cites cases purportedly undermining this conclusion. 

It says that the cases cited in Williams establish that certain “procedural 

protections may have been understood to apply to sentencing 

proceedings in the period leading up to ratification of the Utah 

Constitution.” Supra ¶ 75. The majority’s interpretation of the cases it 

cites may well be correct. But these cases tell us nothing of relevance to 

the question presented here. The question before us is whether the 

procedural guarantees of the due process clause were understood to apply 

in sentencing proceedings. Nothing in the majority’s cited cases speaks 

to that question. These cases suggest, at most, that certain rules of 

evidence and procedure were deemed to apply at sentencing. Compare 

supra ¶ 72 (stating that the cases Williams relied on “may stand for the 

proposition that sentencing judges must adhere to norms of due process 

when settling on a sentence”), with State v. Reeder, 60 S.E. 434, 435 (S.C. 

1908) (upholding the trial court’s consideration of “affidavits tending 

greatly to aggravate the crime” without any reference to due process), 

and State v. Smith, 2 S.C.L. (Bay) 62, 63 (S.C. Ct. Const. App. 1796) 

(allowing the defendant to submit mitigating evidence to the 

sentencing court without any reference to due process), and Kistler v. 

State, 54 Ind. 400, 404 (Ind. 1876) (relying on the Cruel and Unusual 

Punishments Clause to ensure “that all penalties are proportioned to 

the nature of the offence” without any reference to due process), and

People v. Vermilyea, 7 Cow. 108, 143 (N.Y. Sup. Ct. 1827) (nothing that 

sentencing courts should consider “the circumstances in evidence” 

without any reference to due process). In fact, the Reeder court even 

notes that admitting aggravating affidavits does not raise constitutional 

concerns because “the verdict of the jury is not affected.” 60 S.E. at 435.

And the defendant’s “constitutional right to be confronted by witnesses 

against him and to have the privilege of cross-examining them” 

terminates once the jury decides the guilt phase of the trial, so long as 

the trial judge does not “attempt to alter the verdict of the jury.” Id. 

The majority’s cases on character evidence, see supra ¶ 78, fall short 

for similar reasons. We can stipulate to the possibility that “character 

evidence was often introduced for sentencing purposes” during the 

nineteenth century. Supra ¶ 78. But that tells us nothing about whether 

the right to introduce such evidence—or to present any other 

evidence—was viewed as an element of the constitutional right to “due 

(cont.)
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defendants had any constitutional right to call42 or cross-examine 

witnesses.43 Id. at 250 (“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.”).

¶ 162 At no point in this important timeframe (the nineteenth 

century—the period leading up to the framing of the Utah 

Constitution) did anyone raise a due process challenge to these 

 

process.” The majority has cited nothing in support of that proposition. 

And the cases it does cite speak only to the applicability of rules of 

evidence or procedure—not the requirements of due process. Our rules 

of evidence and procedure are certainly amenable to adaptation and 

amendment over time. And I’m quite open to the possibility of 

amending such rules to account for the current needs of our sentencing 

system. But the availability of that mechanism of adaptation does not 

tell us that the constitutional guarantee of due process must also 

evolve.

42 See CAMPBELL, LAW OF SENTENCING, supra, at § 13:20 (“Just as there 

is no constitutional right for all offenders to confront witnesses at 

sentence hearings, there is as yet no recognized constitutional right to 

present witnesses on their behalf.”); see also Reeder, 60 S.E. at 435.

43 Reeder, 60 S.E. at 435 (“Certainly there is no ground for saying that 

[submitting affidavits in aggravation during a sentencing proceeding] 

would deny to the defendant the constitutional right to be confronted 

by witnesses and to have the privilege of cross-examining them, for the 

reason that the verdict of the jury is not affected.”). It is not even 

necessarily true that a defendant’s traditional right to attend his own 

sentencing hearing, see FRANCIS WHARTON, A TREATISE ON THE CRIMINAL 

LAW OF THE UNITED STATES 54, 298 (1874), springs from due process. 

CAMPBELL, LAW OF SENTENCING, supra, at § 9:14 (“American caselaw 

reveals no uniform source of authority for an offender’s right to be 

present at sentencing. Depending on the jurisdiction, it is said to arise 

from common law, the federal constitution, state constitution, statutes, 

or court rules.”). Due process might not even require a sentencing 

hearing at all. Cf. CAMPBELL, LAW OF SENTENCING, supra, at 10:4 (“Most 

jurisdictions consign to judicial discretion the decision to hold 

sentencing hearings.”).
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discretionary sentencing proceedings. Certainly there are no judicial 

decisions establishing a constitutional right to due process in these 

proceedings.44

¶ 163 That is an important “dog that didn’t bark.” If the 

generation of the framing of the Utah Constitution viewed the 

constitutional guarantee of due process of law to attach to sentencing 

proceedings, surely someone would have raised the argument.45 Surely 

a court would have endorsed that view.46

 

44 Stephen Saltzburg, for example, quotes Justice O’Connor’s 

dissenting opinion in Apprendi v. New Jersey, 530 U.S. 466, 523–54 (2000), 

and states that she “is undoubtedly correct that the Court never . . . 

worried about due process when it came to non-capital sentencing. 

However, she did not explain why the Court should not have, or why 

liberty had been given such short shrift for so many years.” Saltzburg, 

Due Process, supra, at 249. A plausible explanation, given the historical 

record, is simply that litigants never raised the issue. It is not that 

“liberty had been given such short shrift,” but rather that no defense 

attorney ever imagined that “due process” might demand extra 

procedures at sentencing.

45 The majority implies that appellate avenues for asserting a due 

process challenge to a sentencing proceeding may have been foreclosed 

by governing rules of appellate jurisdiction. See supra ¶¶ 81–82. But the 

majority’s cited authority does not support this conclusion. See Appellate 

Review of Sentencing Procedure, 74 YALE L.J. 379, 381–82 & n.22 (1964) 

(noting that “[s]everal cases . . . stand as exceptions to the rule of nonreview” and that “[c]lose examination of this group of 

decisions . . . reveals that they contain an implicit distinction between 

review of the merits of a sentence and review of the procedure leading 

to a sentence,” where procedure “cover[s] not only . . . traditional 

elements, but also the format and criteria which the judge uses in 

imposing sentences, including presentencing reports, requests for 

probation and referrals for mental examination”). Other authority, 

moreover, cuts the other way—indicating that a party with a federal 

constitutional basis for challenging a sentence was entitled to raise that 

challenge on appeal. See e.g., United States v. Tucker, 404 U.S. 443, 447

(1972) (holding that federal due process is violated when a sentence is 

imposed on the basis of “misinformation of constitutional magnitude”);

Townsend v. Burke, 334 U.S. 736, 741 (1948) (holding that federal due 

(cont.)
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process is violated when a court relies on “extensively and materially 

false” evidence to impose a sentence on an uncounseled defendant).

I will stipulate that state courts in the nineteenth century “were 

rarely called upon to assess the constitutionality of statutes that dealt 

with criminal procedure.” Supra ¶ 84 (citation omitted). And it seems 

likely that this grew out of the fact that the historical basis for assuring 

fair process was “through the common law.” Id. But that seems to me to 

cut against the majority’s conclusions and in favor of mine. My whole 

point is that the historical record does not suggest that the nineteenth 

century understanding of the constitutional right of “due process” 

would have extended to sentencing proceedings. And for that reason I 

would leave the development of fair procedure for other (nonconstitutional) mechanisms like rulemaking. 

46 It may well be that the lack of any historical right to 

cross-examination in sentencing was rooted in a longstanding (but 

today outmoded) faith in “the power of oaths to assure the reliability of 

evidence.” Supra ¶ 74 n.9. And the evolution in our thinking about the 

power of an oath could well be a reason to amend our rules of evidence 

to allow for more procedure in sentencing. But that doesn’t tell us that 

the historical understanding of due process must likewise evolve in a 

manner that responds to our modern sensibilities. The Utah 

Constitution prescribes mechanisms for amendment. See UTAH CONST.

art. XXIII, § 1. If the people think that a principle enshrined in the 

document has outlived its usefulness they are free to initiate the process 

for amending that principle. But if the guarantee of “due process” was 

not historically understood to apply to sentencing then it is not the role 

of a court to revise the principle of due process to conform to modern 

sensibilities.

Sentencing is not some “new application” of the principle of due 

process. See supra ¶ 74 n.9. Sentencing proceedings have been around 

since well before the founding of our Utah Constitution. So if the 

founding-era notion of “due process” was not viewed as extending to 

sentencing then the due process guarantee doesn’t apply to sentencing. 

The scope of the due process guarantee is an aspect of the governing 

“legal principle.” We may now view the thinking behind that principle 

to be outmoded. But that is at most a basis for amending the 

constitution. It is not a license for a judicial reformulation. And it 

(cont.)
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¶ 164 Yet the historical record is silent on this matter. And that is 

significant.47 It suggests that the public understanding of the right to 

“due process of law” largely did not extend to sentencing 

proceedings.48 The apparent premise of this view is that a sentencing 

does not involve an independent “depriv[ation] of life, liberty or 

property”—such deprivation occurs at the guilt phase of a trial, and 

there is no second deprivation of liberty implicated by sentencing. Any 

decision to impose less than the maximum sentence, in this view, is an 

 

certainly isn’t a “new application” that the framers hadn’t thought 

about.

47 It may be that sentencing was more a matter for jury 

determination during the nineteenth century. See supra ¶ 77. And that 

may be part of the explanation for a lack of “appellate cases applying 

procedural protections to the ‘sentencing phase’ of a criminal 

proceeding” in the relevant time period. Supra ¶ 77. But that doesn’t tell 

us anything of relevance to the question of whether the guarantee of 

due process was understood to apply in sentencing proceedings. I have 

cited extensive historical material supporting my answer to that 

question. The majority, at most, has identified explanations for a lack of 

historical material cutting the other way. That is insufficient. The 

burden of establishing the unconstitutionality of existing parole 

procedures falls on Neese. So if the most that can be said is that the 

historical record is at best hazy then the burden has not been carried.

48 Cf. Apprendi, 530 U.S. at 545 (O’Connor, J., dissenting) (“During 

the age of broad judicial sentencing discretion, judges frequently made 

sentencing decisions on the basis of facts that they determined for 

themselves, on less than proof beyond a reasonable doubt, without 

eliciting very much concern from civil libertarians.” (emphasis added) 

(quoting Gerald E. Lynch, Towards A Model Penal Code, Second (Federal?): 

The Challenge of the Special Part, 2 BUFF. CRIM. L. REV. 297, 320 (1998))); 

Williams, 337 U.S. at 246 (“[B]oth before and since the American 

colonies became a nation, courts in this country and in England 

practiced a policy under which a sentencing judge could exercise wide 

discretion in the sources and types of evidence used to assist him in 

determining the kind and extent of punishment to be imposed within 

limits fixed by law. Out-of-court affidavits have been used 

frequently . . . .” (citations omitted)).
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act of grace49—a grant of greater liberty than the defendant was entitled 

to. And on that basis the original understanding of the right to due 

process does not extend to sentencing proceedings.50

¶ 165 This does not, of course, mean that no process should ever 

be afforded in such proceedings. It just means that the question is 

primarily left to policymakers—to those charged with exercising the 

discretion to decide on appropriate rules for sentencing proceedings.51

 

49 The majority resists this premise, citing historical material 

suggesting that parole is based on a “treatment” model and not a 

principle of mercy or grace. See supra ¶ 87. But “treatment” and “grace” 

are hardly incompatible. The material cited by the majority suggests 

not that parole was not a discretionary matter of legislative grace but 

instead that such discretion was to be exercised with an eye toward 

prospects for treatment. 

The constitutional question presented is whether a discretionary 

parole decision—whether as an act of grace or as an inquiry into fitness 

for release under a “treatment” framework—is a proceeding that was 

historically understood to be protected by the constitutional right to 

due process. Nothing in the majority’s historical materials contradict 

my conclusion on this core question.

50 See, e.g., Alan C. Michaels, Trial Rights at Sentencing, supra, at 1812 

n.169 (noting that the reason that defendants were not entitled to see 

the information to be used at sentencing could “perhaps . . . [be] 

derived from a view that a sentence below the maximum was . . . 

considered a potential act of leniency that created no procedural 

entitlements”) (citing Sanford H. Kadish, Legal Norm and Discretion in 

the Police and Sentencing Processes, 75 HARV. L. REV. 904, 919–20 (1962)).

51 A legislative or administrative decision to offer more process, 

moreover, would not alter the underlying constitutional due process 

baseline. Cf. McMillan v. Pennsylvania, 477 U.S. 79, 92 (1986) (“We have 

some difficulty fathoming why the due process calculus would change 

simply because the legislature has seen fit to provide sentencing courts 

with additional guidance.”); see also Williams, 337 U.S. at 250–51 (“The 

due-process clause should not be treated as a device for freezing the 

evidential procedure of sentencing in the mold of trial procedure. So to 

treat the due-process clause would hinder if not preclude all courts—

state and federal—from making progressive efforts to improve the 

(cont.)
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¶ 166 Our Labrum opinion resolved this matter the other way. See

Labrum, 870 P.2d at 909 (“[D]ue process . . . requires that the inmate 

know what information the Board will be considering at the hearing 

and that the inmate know soon enough in advance to have a reasonable 

opportunity to prepare responses and rebuttal of inaccuracies.”). That 

decision may be entitled to deference as a matter of stare decisis. But, 

again, that does not mean that we are required to extend that decision 

further. And the above history provides grounds for leaving Labrum

where it is and not inventing additional procedures not established by 

that opinion.

B

¶ 167 The above-cited history is also relevant to the second due 

process question presented—to the nature or extent of the procedures 

guaranteed by “due process.” Here we can assume that a parole 

hearing is the sort of proceeding involving a deprivation of liberty that 

triggers a right to due process. But we still have to decide on the 

content of the constitutional guarantee—on how much process is 

constitutionally due.

¶ 168 I see no ground for constitutionalizing whatever procedure a 

majority of this court might find reasonable. That kind of policymaking 

is not in the nature of constitutional interpretation. If we are to 

constitutionalize a field of law we must root our decision in the text and 

original meaning of the constitution. And such an inquiry would look 

to the procedures viewed as inherent in due process at the time of the 

framing of the Utah Constitution.

¶ 169 Those procedures, as noted above, encompassed the basic 

rights of notice and an opportunity to be heard in accordance with 

“some settled course of judicial proceedings,” In re Adoption of K.A.S., 

2016 UT 55, ¶ 88, 390 P.3d 278 (Lee, A.C.J., dissenting) (citation 

omitted)—rights long viewed as “fundamental” to our “system of 

jurisprudence,” id. ¶ 87 (Lee, A.C.J., dissenting) (quoting Hurtado v. 

California, 110 U.S. 516, 529 (1884)). See also LUCIUS POLK MCGEHEE, DUE 

 

administration of criminal justice.”). That is because article I, section 7’s 

“due process” guarantee is based on the original public understanding 

of that language in 1896, not the public understanding in 2017. Later 

developments—whether legal, political, or social—do not change that 

baseline.
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PROCESS OF LAW UNDER THE FEDERAL CONSTITUTION 2 (1906) (“The basis 

of due process” consists of “orderly proceedings and an opportunity to 

defend.”). Yet the precise means of notice and an opportunity to be 

heard are not enshrined in the guarantee of due process. See In re 

Adoption of K.A.S., 2016 UT 55, ¶ 87. Our system leaves decisions on 

those matters to adaptation and evolution over time by policymakers.

¶ 170 Neese was afforded a basic right of notice and an 

opportunity to be heard. He was advised of the pendency of the parole 

hearing and given a chance to present his view on the questions 

presented. See UTAH ADMIN. CODE r. 671-202-1. In other words he was 

afforded the procedures established by this court in our Labrum

decision. See Labrum, 870 P.2d at 909 (“[D]ue process . . . requires that 

the inmate know what information the Board will be considering at the 

hearing and that the inmate know soon enough in advance to have a 

reasonable opportunity to prepare responses and rebuttal of 

inaccuracies.”). And I see no reason to conclude that the original 

understanding of “due process” would have entitled him to any more 

than that.

¶ 171 Certainly the historical record does not support the notion of 

a right to call witnesses.52 Or to receive a written decision explaining 

the basis of the sentencing decision.53

¶ 172 Historically, the defendant’s rights at sentencing were 

minimal. At the time of the framing of the Utah Constitution no one 

would have thought that the right to due process implicated a right to 

call witnesses or review a written sentencing decision. See CAMPBELL,

LAW OF SENTENCING, supra, at § 10:5 (stating that the “strong nationwide 

 

52 Cf. CAMPBELL, LAW OF SENTENCING, supra, at § 13:20 (“Just as there 

is no constitutional right for all offenders to confront witnesses at 

sentence hearings, there is . . . no recognized constitutional right to 

present witnesses on their behalf.”); Williams, 337 U.S. at 250 (“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.”).

53 See Hessick & Hessick, Procedural Rights, supra, at 190–91 

(“[S]entencing courts were not required to provide the reasons for the 

sentences that they imposed.”).
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76

trend to require reasons for sentences” began only in the “late-1970s”). 

Indeed the process afforded by the Parole Board far exceeds anything 

that would have been available historically. The Board gives 

prospective parolees a right to review everything in the Board’s file, 

UTAH ADMIN. CODE r. 671-303-1(1),54 an opportunity to respond in 

writing to any matters in the file, id. r. 671-303-1(2), the prerogative of 

appearing and testifying to the Board, id. r. 671-301-1(A) & (B), and 

even a right to file requests for reconsideration or “special attention 

reviews,” id. r. 671-316-1 (redetermination review procedure); id. 

r. 671-311-1 (special attention review procedure). And the Board 

guarantees that its “[d]ecisions . . . will be reduced to a written order,” 

which generally are “accompanied by a brief rationale for the order.” 

Id. r. 671-305-1.

¶ 173 This process goes well beyond that afforded to convicted 

persons at sentencing proceedings in the nineteenth century. And that 

is a further basis for rejecting the majority’s decision.

III

¶ 174 The majority hedges in its articulation of the due process 

rights available in a parole hearing. It says that the constitutional right 

“to call witnesses and present documentary evidence” attaches “unless 

the safe and effective administration of the prison system requires 

otherwise.” Supra ¶ 43. That may be a helpful caveat. At the very least it 

is a wise recognition of our lack of expertise and understanding of the 

parole process.

¶ 175 But the court’s caveat also highlights a basic problem with 

the majority’s analysis. We have little knowledge of the day-to-day 

operations of the Parole Board. And the briefing in this case offers little 

insight into the possible effects of a decision to announce a new 

constitutional right to call witnesses. Perhaps that means that any right 

to call witnesses must be framed as tentative and conditional. But this 

also underscores a problem with the decision to constitutionalize this 

field of law. 

 

54 Compare that Board-created right with the historical approach: 

“Despite repeated litigation on a variety of grounds, disclosure of a 

court’s presentence report was not constitutionally required until a few 

tribunals started doing so in the late 1970s.” CAMPBELL, LAW OF 

SENTENCING, supra, at § 9:12.
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LEE, A.C.J., dissenting

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¶ 176 We have a means of preserving the need for a “safe and 

effective administration of the prison system.” It is to respect the 

traditional role of the Parole Board in adopting rules of procedure in 

this field—and to leave the limits of the Due Process Clause to the 

procedures historically understood to be guaranteed by the 

constitution. 

¶ 177 We undermine the orderly evolution of our law when we 

constitutionalize fields meant for policymakers. Our constitutional 

decisions are set in stone, so to speak, and are not easily set aside. We 

should take that into account before we enshrine a right to call 

witnesses or to receive a written sentencing decision.

¶ 178 It may be a step in the right direction to acknowledge the 

countervailing interest in “the safe and effective administration of the 

prison system.” But that does not adequately capture the costs and 

concerns on the other side of the balance. We cannot properly talk 

about the best process—let alone the constitutionally mandated 

process—for a parole system if we are focused only on the “effective 

administration of the prison system.” We must also account for the needs 

of an effective parole system. And the most we can say on that point here 

is that those charged with managing that system have determined that 

the right to call or cross-examine witnesses is a procedure that 

interferes with the “safe and effective administration” of parole in 

Utah. Surely there are good reasons for that decision. 

¶ 179 We can characterize the Parole Board’s process as effectively 

“a miniature criminal trial.” Supra ¶ 46. But that does not make it so. In 

our system of justice the Parole Board performs a very different 

function from the trial court. The Board is not deciding on guilt or 

innocence. Nor is it even resolving the questions presented to a trial 

court at sentencing—like the important question, for example, of 

whether to impose a sentence or instead suspend it upon conditions of 

probation. See UTAH CODE § 77-18-1(2)(a).

¶ 180 Instead, the Parole Board is making a more holistic, 

discretionary decision—whether and when to allow an inmate 

committed to serve up to a statutory maximum term to be released on 

parole at an earlier date.55 These decisions are sensitive ones. And our 

 

55 See Mission and Jurisdiction, UTAH BOARD OF PARDONS & PAROLE,

https://goo.gl/At6Fes (last visited July 1, 2017) (“The mission . . . is to 

(cont.)
NEESE v. PAROLE BOARD

LEE, A.C.J., dissenting

78

law has long recognized that we can account for all of these sensitive 

considerations only if we preserve the subjective, discretionary 

judgment of the Parole Board. 

¶ 181 We interfere with that discretion when we constitutionalize 

the Parole Board’s processes. And in so doing we threaten the 

longstanding premises of parole in our criminal justice system. The 

more we formalize this process the more we threaten the equilibrium of 

our existing system of criminal justice. We should hesitate before 

proclaiming a full understanding of the costs and benefits of 

superimposing additional procedures on a system that remains mostly 

hidden from judicial scrutiny. See UTAH CODE § 77-27-5(3) (“Decisions 

of the board in cases involving paroles, pardons, commutations or 

terminations of sentence . . . are final and are not subject to judicial 

review.”).

¶ 182 The “critical functions” of due process cited in Labrum are 

not a legal test. See supra ¶ 28 (citing the minimization of “error” and 

the promotion of the “perception of fairness” as considerations 

requiring the procedures required by the majority); Labrum, 870 P.2d at 

910 (describing “[a]ccuracy and fairness” as “essential” concerns of due 

process). They are just benefits of additional procedure. And if we cite 

only the benefits—the upsides—of additional procedure we will have a 

one-way ratchet that will always result in more constitutionally 

required procedure. 

¶ 183 That is the majority’s methodology. It treats the 

minimization of error and the promotion of the perception of fairness 

as the touchstones for assessing the requirements of the due process 

clause. See supra ¶ 28. And, not surprisingly, the court concludes that 

more procedure—a right to call witnesses and to a written ruling—is 

required. 

 

provide fair and balanced release, supervision, and clemency decisions 

that address community safety, victim needs, offender accountability, 

risk reduction, and reintegration.”); UTAH CODE § 77-18-5 (allowing the 

judge and prosecutor to send a statement to the board “with any 

information which might aid the board”); id. § 77-27-13(1) (requiring 

corrections officers to “furnish the board with pertinent information 

regarding an offender’s physical, mental, and social history and his 

institutional record of behavior, discipline, work, efforts of 

self-improvement, and attitude toward society”).
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LEE, A.C.J., dissenting

79

¶ 184 This is another fatal flaw in the majority’s approach. The 

court ultimately does not identify an operative legal principle or legal 

test. It simply identifies grounds for ever-expanding procedural 

mechanisms. The court purports to identify only two new due process 

rights at parole hearings—the right to call witnesses and the right to a 

written ruling. But its mode of reasoning provides no stopping point. If 

we take the majority opinion at face value we can anticipate that more 

and more procedural rights are to come. Under the majority’s approach 

any additional mechanisms that can be thought to decrease the risk of 

error and increase the perception of fairness may eventually be 

“required” by the due process clause. So long as a majority of the court 

concludes that additional procedures advance these goals, they may be 

viewed as required by the Utah Constitution.56

¶ 185 The court’s articulated factors are as fuzzy and unworkable 

as they are unmoored from history. The inquiry into the perception of 

fairness seems particularly unmanageable. Fairness is a two-way street. 

And the inmate is only one side of the criminal justice equation. The 

other side encompasses interests protected by the state—the public 

generally and also victims. And fairness to those groups’ interests 

should also be weighed in the balance.

¶ 186 I understand that an inmate in Neese’s position might 

“question the integrity of a system in which the Parole Board could . . . 

adjudge him a sex offender and postpone his release date for up to 

twenty-eight years based solely on unproven allegations and without 

. . . the opportunity to call witnesses.” Supra ¶ 32 (emphasis omitted). 

But what about the victim of Neese’s crimes? And what about the 

general public, with an interest in seeing that inmates are not released 

on parole in circumstances in which there is a perceived risk to the 

public? What about the perception of fairness on this side of the 

balance? 

 

56 Cf. ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL 

COURTS AND THE LAW 39 (1997) (rejecting a theory of constitutional 

interpretation premised on the question of “the desirable result for the 

case at hand,” where “the Constitution . . . mean[s] what it ought to 

mean[;] Should there be . . . a constitutional right to die? If so, there is. 

Should there be a constitutional right to reclaim a biological child put 

out for adoption by the other parent? Again, if so, there is. If it is good, 

it is so.” (citations omitted)).
NEESE v. PAROLE BOARD

LEE, A.C.J., dissenting

80

¶ 187 Neese’s victim saw him convicted of crimes sustaining a 

sentence of up to thirty-two years in prison. And the victim understood 

that Neese could be required to serve that full term unless the Parole 

Board exercised its discretion to authorize his early release on parole. 

Under longstanding procedures, the Parole Board could be expected to 

exercise its discretion to consider conduct not resulting in a conviction,

see Alvillar v. Bd. of Pardons & Parole, 2014 UT App 61, ¶ 6, 322 P.3d 1204, 

1208 (“[T]he Board may consider and weigh any factors that it deems 

relevant to its determination of whether or not an inmate will be 

afforded parole . . . .”), and to require Neese to participate in 

rehabilitation programs in prison to assure that any release would not 

cause undue risk to the public. See, e.g., UTAH ADMIN. CODE 

r. 671-402-1(A) (“The Board may add special conditions to a standard 

parole agreement. Special conditions are generally intended to help 

hold an offender accountable or to help rehabilitate an offender.”). And 

Neese’s victim would have understood that Parole Board procedures 

would not have allowed Neese to call witnesses in any parole hearings. 

Id. r. 671-308-3(b) (“Only the offender, a person appointed by the Board 

to assist an offender pursuant to this rule, or a victim as provided for by 

Utah law may present testimony or comment during a hearing.”).

¶ 188 All of these expectations will be dashed by the majority’s 

decision today. And Neese’s victim will “justly question the integrity of 

a system,” supra ¶ 32, that allows Neese to change the rules of the 

parole game midstream. 

¶ 189 The majority’s warning about the effects of the Parole 

Board’s procedures on plea bargains strikes me as backwards. I do not 

see how we can say that a defendant has a “justifiabl[e]” expectation 

that charges dismissed on a plea bargain will not “come roaring back at 

their parole hearing.” Supra ¶ 33. Our longstanding parole system 

makes that a very real possibility. It tells convicted defendants that they 

may well have to serve the full extent of their imposed sentence, see 

UTAH CODE § 77-18-4(2) & (3), that the decision to release them early is 

a matter within the discretion of the Parole Board, see id. § 77-18-4(3), 

that that discretion can take into account a range of considerations 

affecting the inmate’s risk to the public, see Alvillar, 2014 UT App 61, 

¶ 6, and that the inmate has no right to call witnesses at a parole 

hearing, see UTAH ADMIN. CODE r. 671-308-3(b). With all this in mind, a 

defendant like Neese is in no position to claim surprise at the Parole 

Board’s approach—or concern about the effect on incentives in 

plea-bargaining. 
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LEE, A.C.J., dissenting

81

¶ 190 If anything it is Neese’s victim whose interests and 

expectations are being undermined. By establishing a new set of 

procedural rights never before established in the parole system the 

majority undermines Neese’s victim’s justifiable expectations. It is the 

victim whose expectations are being undermined here. And victims like 

her “will be justifiably wary” of plea deals involving the dismissal of 

sex-offense charges, if the victims know they may be called in to testify 

in future parole hearings. 

¶ 191 We can disagree about whether a right to call witnesses at a 

parole hearing is a good idea. But so long as we are talking about 

fairness and justifiable expectations we should paint the full picture. 

And that picture must include victims and the public.