Carver

This case presents the question whether Washington state law creates a liberty interest in an inmate’s early release into community custody that is protected under the Due Process Clause of the Fourteenth Amendment. We hold that it does. We conclude, however, that this right was not clearly established at the time of the facts giving rise to this case. We therefore affirm the district court’s grant of qualified immunity.

I. Factual and Procedural Background

In August 1999, Joseph Dale Carver pled guilty to child molestation in the third degree. He was sentenced to fifty-four months of confinement in the custody of the Washington State Department of Corrections (“DOC” or “Department”). Because he was a sex offender, state law also required that Carver be sentenced to a term of community custody to begin “either upon completion of the term of confinement or at such time as [he] is transferred to community custody in lieu of earned release!.]” See Wash. Rev. Code § 9 .94A.710(1) (2006). 1 He was sentenced to a thirty-six-month period of community custody.

Carver’s good behavior as a prisoner earned him an early release date of June 27, 2002. 2 Carver’s sex offense, however, *662…

concurring in the judgment:

I respectfully part ways with the majority. I do not believe that Washington State law creates a Fourteenth Amendment liberty interest in early release into community custody. The majority erroneously conjures a statutory liberty interest, protected by the Due Process Clause, out of Wash. Rev.Code § 9.94A.728(2) only by confusing “may” and “shall” and by reading “if’ to mean “only if.”

I.

“The preeminent canon of statutory construction requires us to presume that the legislature says in a statute what it means and means in a statute what it says there.” BedRoc Ltd. v. United States, 541 U.S. 176, 183 , 124 S.Ct. 1587 , 158 L.Ed.2d 338 (2004) (internal quotation marks and alterations omitted). Far from using “the more traditional mandatory language formula used in other early release statutes,” Maj. Op. at 666, section 9.94A.728(2)(d) instead uses traditional permissive “may ... if’ language used in statutes that create no liberty interest. Had the Washington State Legislature meant to write a statute limiting the discretion of the DOC, it could easily have said so. Section 9.94A.728(2)(d) states that the DOC “may deny” convicted sex offenders…

I. Factual and Procedural Background

In August 1999, Joseph Dale Carver pled guilty to child molestation in the third degree. He was sentenced to fifty-four months of confinement in the custody of the Washington State Department of Corrections (“DOC” or “Department”). Because he was a sex offender, state law also required that Carver be sentenced to a term of community custody to begin “either upon completion of the term of confinement or at such time as [he] is transferred to community custody in lieu of earned release[.]” See WASH. REV. CODE § 9.94A.710(1) (2006).1 He was sentenced to a thirty-six-month period of community custody. 1 The Washington Court of Appeals has explained that “[c]ommunity custody is the intense monitoring of an offender in the community for a period of at least one year after release or transfer from confinement. Although it has other purposes, community custody continues in the nature of punishment, and is not equivalent to general release.” In re Crowder, 985 P.2d 944, 945 (Wash. Ct. App. 1999). Offenders in commu- nity custody live in a residence pre-approved by the DOC and are subject to mandatory and discretionary conditions imposed by either the…