Thomas v. Montgomery – Sixth Circuit Re-Affirms No Liberty Interest in Parole under Tennessee’s Post-2021 Scheme Despite Algorithmic STRONG-R Assessments

Introduction

In Carvin L. Thomas & Terrell Lawrence v. Richard Montgomery, et al., the U.S. Court of Appeals for the Sixth Circuit confronted a modern procedural-due-process challenge that blended traditional parole jurisprudence with twenty-first-century algorithmic decision-making. Two Tennessee inmates argued that the State’s reliance on the proprietary risk-assessment tool STRONG-R—which allegedly yielded inaccurate and opaque scores—deprived them (and a putative class of similarly situated inmates) of liberty without due process of law. The district court dismissed the complaint under Fed. R. Civ. P. 12(b)(6), and the Sixth Circuit affirmed.

The appellate court held that, even after the 2021 Reentry Success Act and despite the pervasive role of STRONG-R, Tennessee’s statutory scheme does not create a constitutionally protected liberty interest in parole. Because no such interest exists, the plaintiffs’ procedural-due-process claim necessarily fails, and courts may not reach the merits of alleged deficiencies in the algorithmic tool. The decision cements a clear rule for Tennessee (and potentially other jurisdictions with analogous language): absent mandatory “presumption of release” wording or equivalent regulatory constraint, parole remains a discretionary privilege immune from federal due-process scrutiny—no matter how technologically sophisticated or flawed the decision aid may be.

Summary of the Judgment

Holding: Tennessee inmates lack a constitutionally protected liberty interest in parole under the current statutory and regulatory framework; therefore, plaintiffs failed to state a plausible claim under 42 U.S.C. § 1983 for denial of procedural due process.
Disposition: Affirmed – Rule 12(b)(6) dismissal stands.
Key Point: The presence of mandatory language directing when the Board must deny parole does not equate to mandatory language requiring that parole must be granted once certain criteria are met. Only the latter can create a liberty interest under Greenholtz and Allen.
Technological Aspect: Alleged inaccuracies and secrecy surrounding the STRONG-R risk instrument, while concerning, cannot trigger due-process protections in the absence of a cognizable liberty interest.

Detailed Analysis

1. Precedents Cited and Their Influence

Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1 (1979)

First Supreme Court case recognizing that a state can, through mandatory language (“shall” / “unless”), create a liberty interest in parole. However, it also made clear that prisoners have no inherent federal constitutional right to parole. Thomas relies on Greenholtz to frame the two-step inquiry: (a) Is there mandatory statutory language? (b) Does that language give rise to a reasonable expectation of release?
Board of Pardons v. Allen, 482 U.S. 369 (1987)

Applied Greenholtz to Montana’s statute, finding a liberty interest because the statute said the board “shall release” unless it made specified findings. Thomas contrasts Tennessee’s wording (“may be paroled” and “shall deny”) with Montana’s (“shall release”), concluding no mandatory grant language exists.
Mayes v. Trammell, 751 F.2d 175 (6th Cir. 1984)

The Sixth Circuit’s earlier recognition of a liberty interest in Tennessee parole when Board rules stated a “presumption” of parole. Crucially, those rules were revoked in 1987. Thomas distinguishes present-day regulations from those at issue in Mayes.
Wright v. Trammell, 810 F.2d 589 (6th Cir. 1987)

After Tennessee deleted the presumption language, the Sixth Circuit held no liberty interest existed. Thomas regards Wright as the more apt historical analogue, reinforcing that current statutes give only discretionary authority.
Crump v. Lafler, 657 F.3d 393 (6th Cir. 2011)

Reiterated that the “salient factor” is whether the governing text contains mandatory language creating a presumption of release. Thomas adopts that analytical lens.
Additional Sixth Circuit & Supreme Court citations (e.g., Savel, Mattera, Cooperrider) provide procedural posture authority but do not materially alter the liberty-interest analysis.

2. Court’s Legal Reasoning

Identify the protected interest. Plaintiffs asserted a liberty interest in timely and accurate parole consideration. The court held that such an interest can only arise if state law or policy creates a legitimate expectation of release.
Textual analysis of Tennessee statutes post-2021.
- Core provision, Tenn. Code Ann. § 40-28-117(a)(1), labels parole a “privilege and not a right” and states the Board “may” grant parole once certain positive findings are made.
- Section 40-35-503(b) uses “shall not” grant parole if disqualifying factors exist—language of mandatory denial, not mandatory release.
- Limited “presumption of parole” in § 40-35-503(h) applies only to low-level, non-violent felons (Classes D & E) and can be rebutted for “good cause.” Plaintiffs did not fall within that class, and the presumption is not unconditional.
Comparative precedent analysis.
- The absence of a release-mandating “shall” parallels Wright, not Mayes.
- Under Allen and Greenholtz, only statutes that “shall release unless …” create a liberty interest; “may release if …” does not.
Rebuttal of plaintiffs’ arguments.
- Use of “shall” in grounds for denial cannot be inverted into grounds for a release entitlement.
- Board “custom” theory lacked factual development and has no direct precedential support.
Ancillary observations on STRONG-R. The panel expressed unease about algorithmic opacity and the statutory command to consider individual circumstances, suggesting that Tennessee authorities should scrutinize STRONG-R more carefully. Nonetheless, under current doctrine, those concerns do not translate into a federal constitutional violation absent a liberty interest.

3. Potential Impact

Algorithmic Decision-making and Due Process – The decision signals that federal courts will not automatically extend procedural-due-process protections to algorithmic parole tools if the underlying statutory scheme remains discretionary. Litigants challenging AI-driven penal decisions must first clear the liberty-interest hurdle or pursue other constitutional theories (equal protection, cruel-and-unusual punishment, etc.).
Tennessee Parole Litigation – Future challenges will likely concentrate on the narrow class-E/D presumption, claims under state law, or statutory-interpretation strategies rather than federal due-process claims.
Legislative Incentives – If policymakers wish to cabin algorithmic risk tools or expand judicial oversight, they must amend the statutes to create mandatory release language or impose procedural safeguards (e.g., disclosure of risk-assessment data).
Broader Sixth Circuit Guidance – The opinion consolidates Sixth-Circuit doctrine: only explicit, affirmative release presumptions create liberty interests; everything else is discretionary parole not shielded by the Fourteenth Amendment.

Complex Concepts Simplified

Liberty Interest: A right or entitlement the Constitution will protect. For parole, it exists only if state law makes release practically automatic once certain criteria are met.
Mandatory vs. Discretionary Language: “Shall release unless…” = mandatory (creates an entitlement). “May release if…” = discretionary (no entitlement).
Rule 12(b)(6): A procedural device allowing dismissal of a complaint for “failure to state a claim” when, even taking all allegations as true, the plaintiff cannot win under the law.
STRONG-R: A computerized risk-assessment tool that evaluates criminogenic factors to classify inmates as Low, Moderate, or High risk for recidivism.
Procedural Due Process: The constitutional guarantee that the government will follow fair procedures before depriving a person of life, liberty, or property.

Conclusion

In Thomas v. Montgomery, the Sixth Circuit delivered a technologically informed yet doctrinally orthodox decision. The panel reaffirmed that, under current Tennessee law, parole is a discretionary privilege, not a right, and therefore inmates have no liberty interest protected by the Fourteenth Amendment. This holding forecloses federal procedural-due-process challenges to the State’s reliance on STRONG-R or similar algorithms, absent statutory change. The decision underscores a vital lesson for litigants and legislators alike: constitutional protections in the parole context turn less on the sophistication of decision-making tools than on the precise wording of state statutes. Unless Tennessee inserts mandatory release language—or courts find an alternative constitutional foothold—due-process challenges will continue to falter at the threshold question of liberty interest.