Harry Slocum v. Georgia State Bd. Of Pardons & Paroles, 678 F.2d 940 (11th Cir. 1982). · Go Syfert
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Harry Slocum v. Georgia State Bd. Of Pardons & Paroles, 678 F.2d 940 (11th Cir. 1982). Cases Citing This Book View Copy Cite
“unless there is a liberty interest in parole, the procedures followed in making the parole determination are not required to comport with stand- ards of fundamental fairness.”
78 citation events (26 in the last 25 years) across 19 distinct courts.
Strongest positive: Robert M. Sills v. FCI Talladega Warden (ca11, 2023-02-06)
Treatment trajectory · 1982 → 2026 · click a year to view as-of
1982 2004 2026
Top citers, strongest first. 29 distinct citers. How cited ↗
discussed Cited as authority (quoted) Robert M. Sills v. FCI Talladega Warden (2×) also: Cited "see"
11th Cir. · 2023 · quote attribution · 1 verbatim quote · confidence low
unless there is a liberty interest in parole, the procedures followed in making the parole determination are not required to comport with stand- ards of fundamental fairness.
discussed Cited as authority (rule) Boone v. Florida Commission on Offender Review (2×) also: Cited "see, e.g."
M.D. Fla. · 2020 · confidence medium
When there is no liberty interest in parole, “the procedures followed in making the parole determination are not required to comport with the standards of fundamental fairness.” O’Kelley v. Snow, 53 F.3d 319, 321 (11th Cir. 1995) (quoting Slocum v. Ga. State Board of Pardons and Paroles, 678 F.2d 940, 942 (11th Cir. 1982)).
discussed Cited as authority (rule) Tim Kramer v. James E. Donald (2×) also: Cited "see, e.g."
11th Cir. · 2008 · confidence medium
See Sultenfuss, 35 F.3d at 1501-02 ; Slocum, 678 F.2d at 941-42.
discussed Cited as authority (rule) Fox v. Stotts
10th Cir. · 2000 · confidence medium
“Unless there is a liberty interest in parole, the procedures followed in making the parole determination are not required to comport with standards of fundamental fairness.” O’Kelley v. Snow, 53 F.3d 319, 321 (11th Cir. 1995) (quoting Slocum v. Georgia State Board of Pardons and Paroles, 678 F.2d 940, 942 (11th Cir. 1982)); see also Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997) (“It is therefore 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 substant…
discussed Cited as authority (rule) O'Kelley v. Snow
11th Cir. · 1995 · confidence medium
Sultenfuss v. Snow, 35 F.3d 1494 (11th ir.1994) (en banc), cert. denied, - U.S. -, 115 S.Ct. 1254 , 131 L.Ed.2d 134 (1995). 3 Moreover, “[ujnless there is a liberty interest in parole, the procedures followed in making the parole determination are not required to comport with standards of fundamental fairness.” Slocum v. Georgia State Board of Pardons and Paroles, 678 F.2d 940, 942 (11th Cir.1982) (citation omitted).
discussed Cited as authority (rule) Estrada v. Vose
1st Cir. · 1994 · confidence medium
Access to Prison Files ______________________ Cases have uniformly held that a prisoner has no constitutional right of access to his or her prison files. -4- See, e.g., Slocum v. Georgia State Bd. of Pardons and ___ ____ ______ _____________________________________ Paroles, 678 F.2d 940, 942 (11th Cir.), cert. denied, 459 _______ _____________ U.S. 1043 (1982); Paine v. Baker, 595 F.2d 197, 200 (4th _____ _____ Cir.) (prisoner has no constitutional right of access to prison files), cert. denied, 444 U.S. 925 (1979); Cook v. ____________ ____ Whiteside, 505 F.2d 32, 34 (5th Cir. 1974) ("failure…
discussed Cited as authority (rule) Greene v. Georgia Pardons and Parole Bd. (2×)
N.D. Ga. · 1992 · confidence medium
Slocum, 678 F.2d at 941.
cited Cited as authority (rule) Vincenzo v. Warden
Conn. App. Ct. · 1991 · confidence medium
Cir. 1987); Slocum v. Georgia State Board of Pardons & Paroles, 678 F.2d 940, 942 (11th Cir.), cert. denied, 459 U.S. 1043 , 103 S. Ct. 462 , 74 L.
discussed Cited as authority (rule) Carl J. Monroe v. Morris Thigpen, Leland Lambert
11th Cir. · 1991 · confidence medium
Nevertheless, citing our decision in Slocum v. Georgia State Bd. of Pardons and Paroles, 678 F.2d 940, 942 (11th Cir.), cert. denied, 459 U.S. 1043 , 103 S.Ct. 462 , 74 L.Ed.2d 612 (1982), the defendants argue that because there is no liberty interest in parole release or in a particular security classification Monroe has no right to due process in the procedures relating to parole release.
discussed Cited as authority (rule) Phillip Wayne Harris v. David Evans, Commissioner, Lanson Newsome, Deputy Commissioner, A.G. Thomas, Warden
11th Cir. · 1991 · confidence medium
We therefore rejected an inmate's challenges to various procedural aspects of his parole determination, stating: "Unless there is a liberty interest in parole, the procedures followed in making the parole determination are not required to comport with standards of fundamental fairness." Slocum, 678 F.2d at 942.
discussed Cited as authority (rule) Stephen Sultenfuss, Michael C. Bishop v. Wayne Snow, Jr., James T. Morris, Mobley Howell, Michael H. Wing, Bettye O. Hutchings, and Michael J. Bowers
11th Cir. · 1990 · confidence medium
In dismissing the complaint, the district court relied upon this court’s decision in Slocum v. Georgia State Bd. of Pardons and Paroles, 678 F.2d 940, 941-42 (11th Cir.), cert. denied, 459 U.S. 1043 , 103 S.Ct. 462 , 74 L.Ed.2d 612 (1982), which held that the extant Georgia statutes governing parole did not create a protectable expectation of release giving rise to a claim of entitlement for parole.
discussed Cited as authority (rule) Leo Fuller v. Georgia State Board of Pardons and Paroles (2×)
11th Cir. · 1988 · confidence medium
However, this issue has been decided adversely to Fuller in Slocum v. Georgia State Board of Pardons & Paroles, 678 F.2d 940, 941 (11th Cir.), cert. denied, 459 U.S. 1043 , 103 S.Ct. 462 , 74 L.Ed.2d 612 (1982) which held that no entitlement or liberty interest in parole was created by Georgia statute.
discussed Cited as authority (rule) Morgan v. District of Columbia (2×) also: Cited "see"
D.D.C. · 1986 · confidence medium
Although the rule is cast in mandatory language, “procedures themselves do not create [a liberty] interest.” Brandon, 631 F.Supp. at 440 (citing Slocum v. Georgia State Board of Pardons and Paroles, 678 F.2d 940, 942 (11th Cir.1982), cert. denied, 459 U.S. 1043 , 103 S.Ct. 462 , 74 L.Ed.2d 612 (1982)).
discussed Cited as authority (rule) Paoli v. Lally
D. Maryland · 1986 · confidence medium
E.g., Slocum v. Georgia State Board of Pardons & Paroles, 678 F.2d 940, 941 (11th Cir.), cert. denied, 459 U.S. 1043 , 103 S.Ct. 462 , 74 L.Ed.2d 612 (1982); Candelaria v. Griffin, 641 F.2d 868, 869-70 (10th Cir.1981) (citing cases); Williams v. Briscoe, 641 F.2d 274, 277 (5th Cir.), cert. denied, 454 U.S. 854 , 102 S.Ct. 299 , 70 L.Ed.2d 147 (1981).
discussed Cited as authority (rule) Brandon v. District of Columbia Board of Parole
D.D.C. · 1986 · confidence medium
See Baumann, 754 F.2d at 845 (Arizona statute has no mandatory language comparable to the standard in Greenholtz , and thus, plaintiff had no constitutionally protected liberty interest in work release or home furlough.); Slocum v. Georgia State Bd. of Pardons and Paroles, 678 F.2d 940, 941 (11th Cir.) cert. denied, 459 U.S. 1043 , 103 S.Ct. 462 , 74 L.Ed.2d 612 (1982) (Georgia statute had no “scheme that requires release ‘unless adverse findings based on [specific] criteria are made’ ” thus there was no protected liberty interest.); Candelaria v. Griffin, 641 F.2d 868, 870 (10th Cir.1…
discussed Cited as authority (rule) Marcus T. Baumann v. Arizona Department of Corrections
9th Cir. · 1985 · confidence medium
E.g., Slocum v. Georgia State Board of Pardons & Paroles, 678 F.2d 940, 941 (11th Cir.), cert. denied, 459 U.S. 1043 , 103 S.Ct. 462 , 74 L.Ed.2d 612 (1982); Candelaria v. Griffin, 641 F.2d 868, 869-70 (10th Cir.1981) (citing cases); Williams v. Briscoe, 641 F.2d 274, 277 (5th Cir.), cert. denied, 454 U.S. 854 , 102 S.Ct. 299 , 70 L.Ed.2d 147 (1981).
discussed Cited as authority (rule) Velasco-Gutierrez v. Crossland (2×) also: Cited "see"
10th Cir. · 1984 · confidence medium
See, e.g., Shango v. Jurich, 681 F.2d 1091, 1100-02 (7th Cir.1982); Slocum v. Georgia State Board of Pardons & Paroles, 678 F.2d 940, 941-42 (11th Cir.), cert. denied, 459 U.S. 1043 , 103 S.Ct. 462 , 74 L.Ed.2d 612 (1982); Bills v. Henderson, 631 F.2d 1287, 1298-99 (6th Cir.1980); Pugliese, 617 F.2d at 924-25 ; Cofone v. Manson, 594 F.2d 934, 938-39 (2d Cir.1979); Lombardo v. Meachum, 548 F.2d 13, 15-16 (1st Cir.1977). " '[A] liberty interest is of course a substantive interest of an individual; it cannot be the right to demand needless formality.' Process is not an end in itself.
discussed Cited as authority (rule) Velasco-Gutierrez v. Crossland (2×) also: Cited "see"
10th Cir. · 1984 · confidence medium
See, e.g., Shango v. Jurich, 681 F.2d 1091, 1100-02 (7th Cir.1982); Slocum v. Georgia State Board of Pardons & Paroles, 678 F.2d 940, 941-42 (11th Cir.), cert. denied, 459 U.S. 1043 , 103 S.Ct. 462 , 74 L.Ed.2d 612 (1982); Bills v. Henderson, 631 F.2d 1287, 1298-99 (6th Cir.1980); Pugliese, 617 F.2d at 924-25 ; Cofone v. Manson, 594 F.2d 934, 938-39 (2d Cir.1979); Lombardo v. Meachum, 548 F.2d 13, 15-16 (1st Cir.1977). “ ‘[A] liberty interest is of course a substantive interest of an individual; it cannot be the right to demand needless formality.’ Process is not an end in itself.
discussed Cited "see" Bulls v. Estes (2×)
N.D. Ala. · 2020 · signal: see · confidence high
See Slocum v. Georgia State Bd. of Pardons and Paroles, 678 F.2d 940, 942 (11th Cir. 1982) (holding that a Board’s unintentional use of erroneous information does not offend due process standards).
discussed Cited "see" Michael W. Harrell v. Chairman, Florida Parole Commission (2×) also: Cited "see, e.g."
11th Cir. · 2012 · signal: see · confidence high
See Slocum, 678 F.2d at 941 n. 1, 942 (affirming dismissal of plaintiffs due process claim that the parole board considered erroneous information in denying him parole).
discussed Cited "see" Ivan Hernandez v. James P. McFadden
9th Cir. · 1993 · signal: see · confidence high
See Slocum v. Georgia State Bd. of Pardons & Paroles, 678 F.2d 940 , 942 (11th Cir.) ("Unless there is a liberty interest in parole, the procedures followed in making the parole determination are not required to comport with standards of fundamental fairness), cert. denied, 459 U.S. 1043 (1982); Staton v. Wainwright, 665 F.2d 686, 688 (5th Cir.) (because no liberty interest in parole was created by state statute, prisoner's due process rights were not violated when he did not receive an initial parole interview within the time required by law), cert. denied, 456 U.S. 909 (1982). 8 Similarly, H…
discussed Cited "see" Robert Irwin Gwin v. Wayne Snow, Jr., Robert I. Gwin v. Mobley Howell
11th Cir. · 1989 · signal: see · confidence high
See Slocum v. Georgia State Board of Pardons and Paroles, 678 F.2d 940, 942 (11th Cir.1982), cert. denied, 459 U.S. 1043 , 103 S.Ct. 462 , 74 L.Ed.2d 612 (1982) (parole board’s refusal to allow inmate to examine his file does not constitute a constitutional violation).
cited Cited "see" Roosevelt Brandon v. District of Columbia Board of Parole
D.C. Cir. · 1987 · signal: see · confidence high
See Brandon, 631 F.Supp. at 440 (citing Slocum v. Georgia State Bd. of Pardons & Paroles, 678 F.2d 940 , 942 (11th Cir.), cert. denied, 469 U.S. 1043 , 103 S.Ct. 462 , 74 L.Ed.2d 612 (1982)).
discussed Cited "see" Gary S. Mayes v. Nevin C. Trammell, Chairman, Board of Pardons & Paroles, and Members of the Tennessee Parole Board (2×) also: Cited "see, e.g."
6th Cir. · 1984 · signal: see · confidence high
See Slocum v. Georgia State Board of Pardons and Paroles, 678 F.2d 940, 942 (11th Cir.), cert. denied, 459 U.S. 1043 , 103 S.Ct. 462 , 74 L.Ed.2d 612 (1982); Schuemann v. Colorado State Board of Adult Parole, 624 F.2d 172, 175 (10th Cir.1980); Jackson v. Reese, 608 F.2d 159, 160 (5th Cir.1979); Cook v. Whiteside, 505 F.2d 32, 34 (5th Cir.1974).
discussed Cited "see" Gale v. Moore
W.D. Mo. · 1984 · signal: see · confidence high
See Slocum v. Georgia State Board of Pardons & Paroles, 678 F.2d 940 (11th Cir.1982) (Georgia); Williams v. Briscoe, 641 F.2d 274 (5th Cir.1981) (Texas); Schuemann v. Colorado State Board of Adult Parole, 624 F.2d 172, 175 (10th Cir.1980) (Colorado); Averhart v. Tutsie, 618 F.2d 479 (7th Cir.1980) (Indiana); Sharp v. Leonard, 611 F.2d 136 (6th Cir.1979) (Ohio).
cited Cited "see, e.g." Ex Parte Alabama Bd. of Pardons and Paroles
Ala. Crim. App. · 2002 · signal: see also · confidence low
See also Slocum v. Georgia Bd. of Pardons Paroles , 678 F.2d 940 , 942 (11th Cir.), cert. denied, 459 U.S. 1043 (1982).
discussed Cited "see, e.g." Parker v. Corrothers
8th Cir. · 1984 · signal: compare · confidence low
Compare Slocum v. Georgia State Board of Pardons & Paroles, 678 F.2d 940 , 941 n. 3 (11th Cir.) (Greenholtz makes "shall/unless” formulation decisive), cert. denied, 459 U.S. 1043 , 103 S.Ct. 462 , 74 L.Ed.2d 612 (1982) and Boothe v. Hammock, 605 F.2d 661, 663-64 (2d Cir.1979) (same) with Winsett v. McGinnes, 617 F.2d 996, 1007 (3d Cir. 1980) (liberty interest arises when discretionary decisions must be exercised consistently with a specific statutory criterion), cert. denied sub nom.
discussed Cited "see, e.g." Roosevelt Brandon v. District of Columbia Board of Parole
D.C. Cir. · 1984 · signal: compare · confidence low
Compare Booth v. Hammock, 605 F.2d 661 (2d Cir.1979) (Greenholtz makes shall/unless formulation decisive) and Slocum v. Georgia State Board of Pardons & Paroles, 678 F.2d 940 (11th Cir.1982) (same) with Winsett v. McGinnes, 617 F.2d 996, 1007 (3rd Cir.1980), cert. denied sub nom.
cited Cited "see, e.g." Brookins v. State of Missouri Board of Probation & Parole
W.D. Mo. · 1984 · signal: see, e.g. · confidence low
See, e.g., Slocum v. Georgia State Board of Pardons & Paroles, 678 F.2d 940 (11th Cir.1982); Williams v. Briscoe, 641 F.2d 274 (5th Cir.1981).
Retrieving the full opinion text from the archive…
Harry Slocum
v.
Georgia State Board of Pardons and Paroles, James T. Morris, Chairman, J. O. Partain, Jr., Mrs. Mamie B. Reese, Floyd Busbee, and Mobley Howell, Members
81-7259.
Court of Appeals for the Eleventh Circuit.
Jun 14, 1982.
678 F.2d 940
Cited by 16 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 69%
Citer courts: Eleventh Circuit (1)

678 F.2d 940

Harry SLOCUM, Plaintiff-Appellant,
v.
GEORGIA STATE BOARD OF PARDONS AND PAROLES, James T. Morris,
Chairman, J. O. Partain, Jr., Mrs. Mamie B. Reese,
Floyd Busbee, and Mobley Howell,
Members, Defendants-Appellees.

No. 81-7259.

United States Court of Appeals,
Eleventh Circuit.

June 14, 1982.

Al Horn, Barry Hazen, Atlanta, Ga. (court-appointed), for plaintiff-appellant.

Susan V. Boleyn, Asst. Atty. Gen., Atlanta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before MORGAN, JOHNSON and HENDERSON, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

[*~940]1

This appeal under 28 U.S.C. § 2253 from the dismissal of petitioner's writ of habeas corpus requires that we decide whether Georgia's parole laws create a protectable expectation of conditional release so as to entitle the petitioner to due process in his consideration for parole. For the reasons stated below, we resolve this issue adversely to petitioner and affirm the decision of the district court.

2

Petitioner-appellant Harry Slocum is presently serving two concurrent life sentences imposed following his 1973 convictions for murder and armed robbery. In August, 1979, the Georgia State Board of Pardons and Paroles accorded petitioner parole consideration for the first time. Slocum's "parole file" was reviewed, and he was interviewed by a parole board member. Slocum asserts that at this interview he was asked why prior to his arrest he had been a panderer and never otherwise employed. Although it is unclear from the record how petitioner immediately responded, he has since steadfastly maintained that before his incarceration he was a legitimate wage earner. Petitioner alleges that the board member's question was precipitated by inaccurate information contained in his parole file; that his requests for access to his file to determine the precise nature of this misinformation were denied; and that the parole board's consideration of inaccurate reports caused the denial of his parole in both 1979 and in August, 1980.

3

Petitioner filed a writ of habeas corpus in the United States District Court for the Northern District of Georgia challenging the 1979 and 1980 adverse parole decisions. A United States magistrate found Slocum's challenges to be without merit. The district court adopted the magistrate's findings and recommendation, and Slocum's petition was dismissed. Of petitioner's various contentions, we are on this appeal only presented with his claims that he was denied due process by the parole board's consideration of erroneous information in denying him parole and by the board's refusal to allow him access to his files.[1]

4

Before the Due Process Clause of the Fourteenth Amendment comes into play, governmental deprivation of a person's liberty or property must be shown. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). A convicted person does not have a constitutional or inherent right to be conditionally released before expiration of a valid sentence. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979). A state may, however, create a legitimate claim of entitlement to parole through statutory language[2] creating a protectable expectation of release. Id. at 11, 99 S.Ct. at 2105.

5

Under Georgia law the decision whether to release an inmate on parole is a matter committed to the discretion of the State Board of Pardons and Paroles. Ga.Code Ann. §§ 77-514, 77-515 (1973). While many of the provisions structuring the board's exercise of its discretion include mandatory language-e.g. Ga.Code Ann. §§ 77-512, 77-516, 77-525-there is a critical distinction between "a scheme that requires release 'unless adverse findings based on (specific) criteria are made' (and) a scheme that simply obligates the board to consider such criteria in exercising its discretion." Boothe v. Hammock, 605 F.2d 661, 664 (2d Cir. 1979); see Staton v. Wainwright, 665 F.2d 686 (5th Cir. 1982) (former Fifth Circuit opinion). The Nebraska statute found in Greenholtz to create a protectable interest in parole clearly falls into the former category;[3] the Georgia parole scheme certainly falls into the latter. No entitlement to or liberty interest in parole is created by the Georgia statutes.

[*~940]6

Petitioner argues that even if there is no statutorily created liberty interest in parole, particular provisions of the Georgia Code create a protectable entitlement to parole consideration. Specifically, petitioner cites the requirement in section 77-525 that parole consideration "shall be automatic" upon the expiration of a set period of confinement and language in section 77-512 that the board include in the parole file "as complete information as may be practically available...." If these provisions create a protectable expectency in parole consideration, petitioner argues that the consideration must comport with due process standards. Petitioner's unique theory is without merit. Unless there is a liberty interest in parole, the procedures followed in making the parole determination are not required to comport with standards of fundamental fairness. See Brown v. Lundgren, 528 F.2d 1050 (5th Cir.), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 283 (1976). In Staton v. Wainwright, 665 F.2d 686 (5th Cir. 1982) (former Fifth Circuit decision), the court concluded that no liberty interest in parole was created by the Florida statutes. The court, therefore, rejected appellant's claim that his due process rights were violated when he did not receive an initial parole interview within the time required under the parole laws. The analysis in Staton was adopted by the Eleventh Circuit in Hunter v. Florida Parole and Probation Commission, 674 F.2d 847 (11th Cir., 1982), where the court held that no due process violation could be shown through an allegation that the Florida Parole and Probation Commission improperly calculated a prisoner's "presumptive parole release date." Accordingly, in the instant case petitioner Slocum's allegation that the Georgia parole board has not accorded him adequate parole consideration does not entitle him to release.

7

In view of the foregoing discussion, we must also conclude that petitioner has not established a due process right to inspect his parole file. "(T)he refusal of a parole board to allow an inmate to examine his file 'does not assume the proportions of a deprivation of his rights under the Constitution or the laws of the United States.' " Jackson v. Reese, 608 F.2d 159 (5th Cir. 1979) (citing Cook v. Whiteside, 505 F.2d 32, 34 (5th Cir. 1974)).

8

Under the allegations in his petition, Slocum could prove no set of facts which would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1959). Accordingly, the judgment of the district court is

[*~941]9

AFFIRMED.

1

Petitioner raised three contentions in his original writ of habeas corpus: (1) the board improperly considered the circumstances of the offenses of which he was convicted and his past pattern of criminal behavior in making the parole decision; (2) the board inflicted cruel and unusual punishment by falsely promising Slocum that he would be granted parole at his next consideration; and (3) the board denied petitioner access to his parole files, thereby depriving him of due process of law. Later, in an amended petition, Slocum added a claim that the board considered erroneous information in denying him parole. We are not asked to consider the first two of these contentions. Slocum's initial challenge was not repeated in his counsel's brief or mentioned at oral argument. In any case the claim is meritless in light of the holdings in Jackson v. Reese, 608 F.2d 159 (5th Cir. 1979) and Payne v. United States, 539 F.2d 443 (5th Cir. 1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1131, 51 L.Ed.2d 554 (1977). As for petitioner's second contention, it was conceded at oral argument that no language in any written communication from the parole board to Slocum could reasonably be construed as a promise of parole. Petitioner's remaining arguments are addressed in this opinion

2

In Jago v. Van Curen, --- U.S. ----, 102 S.Ct. 31, 70 L.Ed.2d 13 (1981), the Court resolved a question left unanswered in Greenholtz and held that a protectable expectation of parole could not be created by "mutually explicit understandings"-i.e. an unwritten common law of sentence commutation created by traditional but not statutorily mandated parole commission practices. See also Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981)

3

The holding in Greenholtz turned on language in the Nebraska parole statutes specifying that release "shall" be ordered "unless" one of four disqualifying conditions is found to exist