The Supreme Court's due process jurisprudence has variously relied on two inconsistent theories of due process. Until the 1970s, the Supreme Court located liberty interests in the power of the state. In 1972, the Supreme Court issued Morrissey v. Brewer, a landmark decision that instead located liberty interests in the natural condition of man. Morrissey expanded due process protections for prisoners and outlined a coherent standard by which due process claims could be adjudicated. However, over the next two decades, the Supreme Court retreated from this standard of due process, circumscribing the protections Morrissey afforded.
This Note demonstrates that recent decisions of the Supreme Court have returned to the natural rights theory of due process the Court set forth in Morrissey. Lingering language in Supreme Court decisions suggests that states have the power to generate liberty interests. The author proposes three remedies for confining the effect of such language. The Note also recommends a way to resolve a simmering circuit split over the due process rights of parolees.
Sharif A. Jacob,
The Rebirth of Morrissey: Towards a Coherent Theory of Due Process for Prisoners and Parolees,
57 Hastings L.J. 1213
Available at: https://repository.uchastings.edu/hastings_law_journal/vol57/iss6/4