AGO Opinion 97043

Due Process Requirements
Opinion 97043

DATE: August 25, 1997

SUBJECT: Due Process Requirements

REQUESTED BY: Jean A. Lovell, Chair, Nebraska Board of Parole

WRITTEN BY: Don Stenberg, Attorney General

Marie C. Pawol, Assistant Attorney General

You have inquired whether the Nebraska Board of Parole ("Board") is

obligated to conduct an evidentiary hearing to consider a parolee's request to

use peyote in the course of Native American religious services. Presumably, the

parolee's current conditions of parole preclude the use of controlled substances.

Particular reference is made in your inquiry to 1994 amendments to the American

Indian Religious Freedom Act ("AIRFA"), which provide in pertinent part that

[n]otwithstanding any other provision of law, the use, possession,

or transportation of peyote by an Indian for bona fide traditional

ceremonial purposes in connection with the practice of a traditional

Indian religion is lawful, and shall not be prohibited by the United

States or any State.

42 U.S.C. § 1996a(b)(1).

You note that the 1994 amendments to this federal legislation contain the

following exemption, which the Board has construed as extending to inmates under

parole supervision:

This section shall not be construed as requiring prison authorities

to permit, nor shall it be construed to prohibit prison authorities

from permitting, access to peyote by Indians while incarcerated

within Federal or State prison facilities.

42 U.S.C. § 1996a(b)(5).

As a preliminary matter, we agree that Congress did not intend to extend

AIRFA's protections to inmates or parolees, particularly those who, like the

parolee in question, are under parole supervision for a crime relating to

substance abuse. See also, State v. Thomas, 236 Neb. 553, 462 N.W.2d 618

(1990)(restrictions imposed upon a prisoner who is paroled are sufficient to

render that person in custody under sentence).

It is also likely that the 1994 amendments to AIRFA will be subject to

challenge in light of the U.S. Supreme Court's recent decision in City of Boerne

v. Flores, 1997 WL 345322 (U.S. June 25, 1997), declaring the Religious Freedom

Restoration Act ("RFRA"), codified at 42 U.S.C. §§ 2000bb-2000bb-4, to be

unconstitutional. RFRA, like AIRFA, was enacted in direct response to the

Supreme Court's decision in Employment Div., Dept. of Human Resources of Ore. v.

Smith, 494 U.S. 872, 110 S. Ct. 1595 (1990), which upheld against a free exercise

challenge a state law, of general applicability, criminalizing peyote use.

In any event, we are aware of no federal or state law entitling a parolee

to a hearing before a parole board so that conditions of parole, already agreed

to, may be renegotiated. The Board has the statutory authority and obligation to

set conditions of parole, including a requirement that parolees refrain from

engaging in criminal conduct by the possession or use of controlled substances,

whatever the context. Neb. Rev. Stat. § 83-192(1)(b) and § 83-1,116. Before and

after AIRFA, the State of Nebraska has defined peyote as a controlled substance.

Neb. Rev. Stat. § 28-405(c)(12).

In sum, a hearing before the Board to review conditions of parole with a

parolee is not legally required. Moreover, state law does not permit the outcome

sought by the parolee in this case.



Attorney General

Marie C. Pawol

Assistant Attorney General