Summary
In Drayton v. McCall, 584 F.2d 1208 (2d Cir. 1978), we applied this teaching to parole rescissions to hold that due process in that context included written notice, a hearing at which the defendant can confront witnesses and present evidence, and a written statement of the reasons for revoking parole.
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No. 1089, Docket 78-2030.
Argued June 21, 1978.
Decided October 2, 1978.
Frederick E. Martin, Atty., Dept. of Justice, Washington, D.C. (Benjamin R. Civiletti, Asst. Atty. Gen., George W. Calhoun, Patrick J. Glynn, Attys., Dept. of Justice, Washington, D.C., of counsel), for appellants.
Robert Kochenthal, Student Law (Judith P. Resnik, New Haven, Conn., supervising), (Dennis E. Curtis, Judith P. Resnik, Mary F. Keller, Stephen Wisner, New Haven, Conn., of counsel), for appellee.
Appeal from the United States District Court for the District of Connecticut.
Before OAKES, VAN GRAAFEILAND and MESKILL, Circuit Judges.
This appeal presents the questions whether the Due Process clause mandates procedural safeguards before the United States Parole Commission may rescind a prior grant of parole to begin in futuro and, if so, the extent of the safeguards mandated. The United States District Court for the District of Connecticut, T. F. Gilroy Daly, Judge, held that the procedures specified in Morrissey v. Brewer, 408 U.S. 471, 487-90, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 790-91, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), are similarly required in parole rescission hearings. Drayton v. McCall, 445 F.Supp. 305 (D.Conn. 1978) (memorandum of decision). We agree that a federal prisoner whose date of parole has been approved but who has not yet been released from prison (a parole grantee) is entitled to procedural due process in his rescission hearing. However, we do not agree that all of the procedures mandated in parole and probation revocation hearings must be complied with in parole rescissions. We therefore modify the order below to provide for appellee's continued release on parole unless within thirty days the United States Parole Commission (Commission) conducts a hearing conforming with the procedural requirements of this opinion.
I. FACTS
The facts of this case are not in dispute. Drayton was incarcerated at the Federal Correctional Institution in Danbury, Connecticut (Danbury), in connection with a conviction for unlawful distribution of narcotics. When he returned from a furlough on October 18, 1977, prison authorities took a routine urine sample and sent it to a laboratory for analysis. Two days later, at a previously scheduled parole hearing, the panel recommended his release on parole, effective February 14, 1978. The following day, October 21, the test results from the urine sample, which revealed the use of amphetamines, were returned to the authorities at Danbury. Prison officials then charged appellee with illicit use of narcotics and notified him of his right to an institutional disciplinary committee (IDC) hearing. This hearing was conducted by prison authorities (not the parole board) on October 28, 1978, purportedly in accordance with the dictates of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The record indicates that a staff member represented appellee before the IDC. The committee found Drayton guilty as charged and ordered the forfeiture of twenty-five days' statutory good time without indicating the evidence relied upon or the reasons for disbelieving Drayton. Its report simply stated: "Reason for action taken: Seriousness of offense."
Apparently unaware of the IDC proceedings, the Parole Commission's Northeast Regional Office adopted the panel's recommendation and granted parole effective February 14, 1978. Before Drayton was formally notified in writing of the favorable parole decision, however, the Bureau of Prisons advised the Commission of the prison disciplinary action. On the basis of this new information, the Commission then reopened the case on its own motion pursuant to 28 C.F.R. § 2.28 and scheduled a rescission hearing pursuant to id. § 2.34. Notices of action dated November 8, 1977, informed Drayton of the original parole grant and of the decision to reopen the case.
The Commission's notice of action stated:
"Reasons: On October 28, 1977, the institutional discipline committee forfeited twenty-five days statutory good time for possession . . . or use of . . . narcotics . . ."
§ 2.28 Reopening of cases.
Notwithstanding the appeal procedure of § 2.25 and § 2.26, the appropriate Regional Commissioner may, on his own motion, reopen a case at any time upon the receipt of new information of substantial significance and may then take any action authorized under the provisions and procedures of § 2.25. . . .
28 C.F.R. § 2.34 provides in part:
(a) When an effective date of parole or mandatory parole has been set by the Commission, release on that date shall be conditioned upon continued good conduct by the prisoner. If a prisoner has been granted parole and has subsequently been charged with institutional misconduct sufficient to become a matter of record, the Regional Commissioner shall be advised promptly of such misconduct. The prisoner shall not be released until the institution has been notified that no change has been made in the Commissioner's order to parole.
(1) Upon receipt of information that a prisoner has violated the rules of the institution, the Regional Commissioner may retard the parole grant for up to sixty days without a hearing or may retard the parole grant and schedule the case for a rescission hearing. If the prisoner was confined in a Federal prison at the time of the order retarding parole, the rescission hearing shall be scheduled for the next docket of parole hearings at the institution. . . . When the prisoner is given written notice of the Commission action retarding parole, he shall be given notice of the charges of misconduct to be considered at the rescission hearing. The purpose of the rescission hearing shall be to determine whether rescission of the parole grant is warranted. At the rescission hearing the prisoner may be represented by a person of his choice and many present documentary evidence.
(2) An institution discipline committee hearing conducted by the institution resulting in a finding that the prisoner has violated the rules of his confinement, may be relied upon by Commission as conclusive evidence of institutional misconduct.
(3) If the parole grant is rescinded, the prisoner shall be furnished a written statement of the findings of misconduct and the evidence relied upon.
As found by the district court, Drayton v. McCall, supra, 445 F.Supp. at 306-07, the rescission hearing held on December 16, 1977, conformed to the procedures outlined in the Commission's regulations. See note 3 supra. Drayton's attorney, Ms. Resnik, requested that her client be accorded the due process rights of Morrissey, supra, and Gagnon, supra, in accordance with previous holdings of the District Court for the District of Connecticut. See note 10 infra. The hearing examiners indicated at the outset that their practice pursuant to governing regulations is to ignore these constitutional rulings, and accordingly denied the request.
. . . . .
Under these regulations, the inmate must be given notice of the charges of misconduct to be discussed at the hearing, and, if the parole is rescinded, a written statement of the findings of misconduct and the evidence relied upon by the Commission. He is allowed to present only documentary evidence, and may be represented by a person of his choice. 28 C.F.R. § 2.34(a)(1). The representative's participation, however, is restricted to a short statement at the conclusion of the interview conduct[ed] by the hearing panel and to the provision of further information requested by the panel. 28 C.F.R. § 2.13 (1977). The parole grantee is not allowed to seek the advice of counsel during the hearing. Furthermore, confrontation and cross-examination is not permitted.
Drayton v. McCall,
Mr. Kruger: All right, we understand your position, Miss Resnik, and I will say again, according to the standard operating procedures that we follow, your role here is a representative, and we ask that you hold your comments until a time later in the interview near the end of it, then we will ask for your statement on behalf of Mr. Drayton.
Representative: I would certainly try to accommodate you but do not concede that I believe that is my appropriate role here.
Mr. Kruger: Miss Resnik, we have certain ground rules, we understand the issue you have raised —
Representative: Very good —
Mr. Kruger: But, for the moment, it is the United States Parole Commission, not the Parole Commission of the District of Connecticut. Do you understand what I am saying?
Representative: Certainly.
Mr. Kruger: All right, I will give you as much time as you need near the end of the interview, to put whatever you want on the record.
The Board never gave up its custody of Sexton and therefore could properly rescind his conditional parole without affording him a full Morrisey [ sic] hearing. The notice of denial was not tantamount to a revocation of parole invoking full constitutional safeguards. To require a full Morrisey [ sic] hearing at this stage would be an extravagant remedy infringing on the discretionary powers of the Board of Parole.
Id.
When an effective date has been set by the Board, release on that date shall be conditioned upon continued good conduct by the prisoner and the completion of a satisfactory plan for his supervision. The Board may, on its own motion, reconsider any case prior to release and may reopen and advance, postpone, or deny a parole which has been granted. The Board may add to or modify the conditions of parole at any time.
(c) When an effective date of parole has been set by the Commission, release on that date shall be conditioned upon continued good conduct by the prisoner and the completion of a satisfactory plan for parole supervision. The appropriate Regional Commissioner may, on his own motion, reconsider any case prior to release and may reopen and advance or retard a parole date. A parole grant may be retarded for up to one hundred and twenty days without a hearing for development and approval of release plans.
Koptik v. Chappell, 321 F.2d 388 Childs v. United States Bd. of Parole, 511 F.2d 1270 But see Smith v. Saxbe, 562 F.2d 729
McIntosh v. Woodward, 514 F.2d 95 Sexton Wolff v. McDonnell, supra,
The only evidence presented against appellee was the IDC's finding of guilt, which under the regulations, 28 C.F.R. § 2.34(a)(2), could be considered conclusive on the question of institutional misconduct. Note 3 supra. Drayton presented certain documentary evidence and was questioned by the examiners. He maintained that while on furlough with his family, he consumed only vitamin pills, as was the family's custom. He also explained that he and two other inmates gave urine samples at about the same time, under procedures which left open the possibility of confusion among or tampering with the samples. He emphasized that he had no history of amphetamine use, had already been accepted by and received a grant from a community college, and would not have jeopardized his freedom by taking such pills.
The examiner who conducted the questioning, Mr. Kruger, responded that the Commission "cannot usually grant release when there is statutory forfeiture of good time on the record and still outstanding," but he permitted Ms. Resnik to speak. She again asked to be allowed to function fully as an attorney. She requested that the examiner permit Drayton to call witnesses in his behalf and to call and cross-examine possible adverse witnesses such as the officer who took the urine sample, the two other inmates then present, the laboratory technicians, and others. Mr. Kruger responded: "Obviously, . . . we must respectfully decline your request, we are simply not empowered to comply with it." Because Ms. Resnik could not function as an attorney, she merely described the evidence which, if introduced supported Drayton's repeated claims of innocence. She referred to his family's observations of appellee while he was on furlough, appellee's unit manager's willingness to testify that the alleged behavior was uncharacteristic of Drayton, and a pharmacological expert's offer to testify to the inaccuracy of laboratory tests on amphetamine use. Although rushed by the examiners, she also explained how error from mislabeling or tampering either at the institution or at the laboratory could have occurred, and emphasized that only the testimony of those who had contact with the urine sample could resolve that uncertainty.
The examiners asked Drayton to "stand outside" for a moment; when he returned, they advised him of their conclusions. The panel first recommended rescission of the parole grant, "based on the findings of the IDC . . . that [appellee] did commit the prohibited act involving drugs . . .." The panel also recommended that his incarceration be continued until his mandatory release date. That the panel's conclusions were based on its acceptance of the IDC report, without any independent scrutiny of the report or of the factual contentions proffered by appellee, is vividly apparent from its written Hearing Summary, the pertinent portions of which are quoted in the margin, as well as the explicit authorization to treat IDC findings as "conclusive evidence of institutional misconduct." 28 C.F.R. § 2.34(a)(2) (notes 3 6 supra). The Parole Commission's Regional Office adopted these findings in abbreviated form in its notice of action.
Appellee then sought a writ of habeas corpus under 28 U.S.C. § 2241, challenging the constitutional validity of the rescission hearing on due process grounds. Judge Daly, following previous decisions of the District Court of Connecticut, agreed that the procedures accorded Drayton were constitutionally inadequate. It ordered the Commission to provide the full panoply of Morrissey/Gagnon rights in a new rescission hearing by February 8, 1978, warning that "the Court will . . . take such . . . action as it deems appropriate in line with [its prior decisions]" if the Commission failed to comply. In a memorandum decision filed shortly thereafter, Judge Daly elaborated the legal basis underlying his earlier ruling and ordered: "In the event that a proper hearing is not held by [February 14, 1978], the petitioner shall be released on [that date] under the conditions specified in the Commission's original parole grant for that date." Drayton v. McCall, supra, 445 F.Supp. at 311. Because the Commission chose to ignore the court's instructions, on February 9, the district court denied the Government's motions for relief of judgment and a stay of the earlier order pending appeal. It further directed reinstatement of the Commission's October 31 parole grant. Drayton was accordingly released from federal custody on parole on February 14, 1978.
We, as well as the parties, interpret the first two orders to be conditional grants of habeas corpus relief which were granted unconditionally upon the Government's non-compliance. Appellant does not dispute the district court's authority to reinstate the original parole decision once the Commission failed to institute a new hearing as required by the conditional writ. See Billiteri v. United States Board of Parole, 541 F.2d 938, 944 (2d Cir. 1976); Grasso v. Norton, 520 F.2d 27, 38 (2d Cir. 1975). Rather, the Commission's position is that the conditional writ was improper; therefore it, as well as the parole release, must be set aside on appeal. See Grasso v. Norton, supra, 520 F.2d at 38.
II. DISCUSSION
A. Protectable Interest
The Government's assertion that a parole grantee is entitled to no due process procedural protections prior to rescission of his parole grant is untenable. Nevertheless, it maintains that no liberty interest encompassed by the Fourteenth Amendment is involved in this situation because "the government has [not] bound itself by statute, regulation, or well-settled course of practice to take or refrain from taking specified actions on the basis of a prescribed factual determination." Brief for Appellants at 9. In particular, it argues that because the Parole Commission can deny parole and order rescission for a number of reasons, a prisoner has no justifiable expectation in his freedom. Therefore, the argument runs, the rescission of the parole grant did not deprive Drayton of any liberty or property interest constitutionally cognizable under the Due Process Clause. The Commission relies most heavily on Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), and Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976). These cases held that even if prison authorities transfer an inmate from one state prison to another because of his alleged misconduct, when state law imposes no limitations on the institution's absolute power to transfer the inmate,
no Due Process Clause liberty interest of a duly convicted prison inmate is infringed . . ., whether with or without a hearing, absent some right or justifiable expectation rooted in state law that he will not be transferred except for misbehavior or upon the occurrence of other specified events.
Montanye v. Haymes, supra, 427 U.S. at 242, 96 S.Ct. at 2547 (restating Meachum v. Fano, supra, holding).
The Government's position is, however, deficient in two fundamental respects. First, analogizing the federal Commission's limited authority to rescind parole to the unbridled discretion of state prison officials in Montanye and Meachum is unsound. These opinions are clearly premised on the lack of any standards or guidelines imposed by state statute or regulation. See 427 U.S. at 226-27 n. 7, 228, 96 S.Ct. 2532; 427 U.S. at 242, 243, 96 S.Ct. 2543. According to the Commission's own regulations, rescission of a parole grant is, however, permitted basically only under two narrowly circumscribed conditions; even then, the regulations require compliance with a detailed procedural scheme before the Parole Commission may order rescission. First, the Commission may reconsider its grant of parole when the grantee has been found guilty of institutional misconduct. See notes 3 6 supra. Second, reconsideration is authorized when new information adverse to the prisoner and unrelated to prison misconduct is discovered, 28 C.F.R. § 2.34(b), such as a prison's willful concealment or misrepresentation of information. Id. § 2.30 (also applicable to parole revocation). But under § 2.34(b), both the Regional Commissioner and the National Commission must make certain findings before a rescission hearing may be held. See also id. § 2.17(a).
Because the Commission, by these regulations, has limited to carefully defined situations its own authority to rescind a parole grant, there is no resemblance to cases such as Montanye, supra, Meachum, supra and others where the Government was in essence not bound by any criteria in engaging in various types of conduct. The regulatory structure, therefore, justifies the parole grantee's expectation of future liberty under the Supreme Court's recent rather formalistic emphasis on governmentally established entitlements. A grantee's entitlement of course, cannot be withdrawn without due process of law.
The second flaw in the Government's argument is its apparent disregard of our previously decided cases. The Commission concedes, as it must, that a parole grantee has at least as strong an interest in his seemingly imminent freedom as does a prisoner awaiting an initial parole grant determination. It also apparently realizes that the Commission probably has less discretion in the former than in the latter situation. Thus, in order to arrive at the Government's conclusion that due process is not implicated in parole rescissions, we would have to overrule the settled law of this circuit that due process attaches to parole release decisions and to removal from temporary release programs. To be sure, the Supreme Court may overturn that settled law, but we, of course, are bound by it.
We have previously explained why Meachum and Montanye do not undermine our original holding in United States ex rel. Johnson v. Chairman of New York State Board of Parole, 500 F.2d 925 (2d Cir.), vacated and remanded as moot sub nom. Regan v. Johnson, 419 U.S. 1015, 95 S.Ct. 488, 42 L.Ed.2d 289 (1974), that an inmate's interest in prospective parole release decisions is the basis for certain due process protections. See, e. g., cases cited in notes 18-19 supra. The Government suggests that Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976), requires reconsideration of the issue. There, a parolee imprisoned for a federal crime committed while on parole from a federal conviction unsuccessfully sought an immediate parole revocation hearing after a parole violator warrant and detainer were issued. His apparent purpose was to serve any sentence imposed for the parole violation concurrently with his new imprisonment. The Supreme Court held that a hearing was not constitutionally compelled until the prisoner was taken into custody for having violated parole because the mere issuance of the parole violator warrant had not deprived him of any protected liberty interest. Id. at 89, 97 S.Ct. 274. In the course of rejecting the prisoner's argument that he had been deprived of a liberty interest, the Court reiterated and applied the familiar principle of Meachum and Montanye — that if the Government's authority to withdraw a benefit is not conditioned on the occurrence of prescribed events, the benefit is not a constitutionally cognizable property or liberty interest. It noted:
Petitioner also argues that the pending warrant and detainer adversely affect his prison classification and qualification for institutional programs. We have rejected the notion that every state action carrying adverse consequences for prison inmates automatically activates a due process right. In Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), for example, no due process protections were required upon the discretionary transfer of state prisoners to a substantially less agreeable prison, even where that transfer visited a "grievous loss" upon the inmate. The same is true of prisoner classification and eligibility for rehabilitative programs in the federal system. Congress has given federal prison officials full discretion to control these conditions of confinement, 18 U.S.C. § 4081, and petitioner has no legitimate statutory or constitutional entitlement sufficient to invoke due process.
429 U.S. at 88 n.9, 97 S.Ct. at 279. The Government contends that the Parole Commission's discretion is no narrower than that of prison officials; thus under Moody, due process should not apply to its parole decisions. It is unnecessary, however, to draw such a comparison because the Court does not specifically address parole decisions. Its limited reference to the "rights" of prisoners who must remain institutionalized was no accident. Elsewhere, the Court addressed the effect of the parole violator warrant on the prisoner's chance for parole from the second conviction, "[a]ssuming for the moment that granting of parole is a protected liberty interest which this warrant impinges." Id. at 88, 97 S.Ct. at 279. And the reason for all of this discussion was the Court's initial holding that the second conviction, not the issuance of the warrant, was the cause of his loss of liberty. By contrast, the loss of Drayton's potential liberty, already conditionally granted, was triggered by the Commission's own initiation of rescission proceedings. See United States ex rel. Sims v. Sielaff, 563 F.2d 821, 826, 827 (7th Cir. 1977) (partially distinguishing Moody on similar grounds). We do not read Moody, therefore, as in any way affecting our prior decisions which subject the parole release process to procedural scrutiny under the Due Process Clause. See, e.g., Shelton v. Taylor, 550 F.2d 98, 102 (2d Cir.), cert. denied, 432 U.S. 909, 97 S.Ct. 2958, 53 L.Ed.2d 1083 (1977).
B. Degree of Protection
The more difficult inquiry is to determine what procedures satisfy due process. The court below followed previous decisions of the District of Connecticut, see note 10 supra, which had ordered the Commission to provide the Morrissey v. Brewer, supra, and Gagnon v. Scarpelli, supra, safeguards. The Government, of course, argues that at most the procedures specified in Wolff v. McDonnell, supra, suffice.
It is a truism by now that "due process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, supra, 408 U.S. at 481, 92 S.Ct. at 2600. Thus, an independent analysis is needed in order to strike a proper balance between the interests of both the prisoner and the Government. See Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Morrissey v. Brewer, supra, 408 U.S. at 481, 92 S.Ct. 2593; Zurak v. Regan, 550 F.2d 86, 93-96 (2d Cir.), cert. denied, 433 U.S. 914, 97 S.Ct. 2988, 53 L.Ed.2d 1101 (1977).
The teaching of Wolff, supra, is that more formality in parole revocation proceedings is required than in prison disciplinary proceedings. This is partly because although a parolee is physically free, a prisoner is incarcerated; the forfeiture of good time does not immediately deprive a prisoner of his freedom. Accordingly, his liberty interest is not given as much weight as in contexts where liberty is immediately abridged:
Simply put, revocation proceedings determine whether the parolee will be free or in prison, a matter of obvious great moment to him. For the prison inmate, the deprivation of good time is not the same immediate disaster that the revocation of parole is for the parolee. The deprivation, very likely, does not then and there work any change in the conditions of his liberty. It can postpone the date of eligibility for parole and extend the maximum term to be served, but it is not certain to do so, for good time may be restored. Even if not restored, it cannot be said with certainty that the actual date of parole will be affected; and if parole occurs, the extension of the maximum term resulting from loss of good time may affect only the termination of parole, and it may not even do that.
418 U.S. at 560-61, 94 S.Ct. at 2977.
Additionally, the need to ensure that intra-prison tension, frustration, resentment, and retaliation are minimized justifies providing fewer procedural safeguards in the prison disciplinary setting. Id. at 556, 561-63, 94 S.Ct. 2963. In recognition of this substantial interest in preventing a disruptive prison environment, we recently held that Wolff procedures sufficiently accommodate an inmate's interest in accurate factual assessment prior to his removal from New York's temporary release program. Tracy v. Salamack, 572 F.2d 393, 397 n. 15 (2d Cir. 1978) (per curiam). Here we deal with an incarcerated prisoner who has already been granted parole subject to a future release date. Because the threat of prison disruption from adversary proceedings is no greater and no less than in prison disciplinary proceedings, the process detailed by Wolff is obviously a major point of reference for us, and the imposition of full Morrissey requirements is not proper. Thus we must reverse.
But because ultimate freedom itself is directly implicated in our case and is implicated only indirectly and indeed remotely if at all in the prison disciplinary context, Wolff is not the end of our analysis; a parole grantee although not yet free like a parolee has the taste of freedom in his mouth, the smell of freedom in the air, the touch of freedom within his grasp. Thus, parole rescissions fall somewhere between parole revocations and prison disciplinary proceedings, reflecting considerations of Morrissey in addition to those of Wolff. We have no reason constitutionally to pigeonhole rescission hearings under either case alone; as we read Mathews, indeed, we are compelled to do otherwise.
Striking an accommodation by taking cognizance of the previous liberty interest of a parole grantee while seeking to ensure against future prison disorder, we take the following path. First, to ensure that any hearing be meaningful, see Mathews v. Eldridge, supra, 424 U.S. at 333, 96 S.Ct. 893, as we have already implied, note 6 supra, the hearing must be de novo. The Parole Commission is not bound by, it need give no weight to, the prison disciplinary proceedings. A meaningful hearing requires a neutral and detached hearing body, one that is openminded, which allows the parole grantee to prove that the prison discipline was improperly or excessively imposed and that his conduct does not justify the rescission of the parole already granted. As the proposed rule to eliminate 28 C.F.R. § 2.6(b) indicates, note 6 supra, disciplinary actions may vary from institution to institution and sometimes may not reflect behavior serious enough to warrant parole denial. Moreover, prison authorities may have wrongfully imposed discipline; at least the parole grantee must be allowed to prove this error before an openminded parole board.
To continue, due process requires advance written notice of the claimed misconduct and a written statement by the factfinder of the evidence relied on and the reasons for rescinding parole. Both Wolff and Morrissey mandate these standards. See notes 2-3 supra. The grantee must also be permitted "to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety." Wolff, supra, 418 U.S. at 566, 94 S.Ct. at 2980. Although we cannot so prescribe, "it would be useful for the [Parole Examining Board] to state its reason for refusing to call a witness, whether it be for irrelevance, lack of necessity, or the hazards presented in individual cases." Id. In addition, because of the importance of preparing an adequate defense, disclosure to the grantee of the evidence against him is also called for, unless the hearing examiner explicitly finds that certain disclosures would unduly threaten institutional safety. As recognized in Wolff, confrontation and cross-examination of those persons associated with the prison who furnish evidence against the grantee may present hazards to institutional interests. However, where such persons are willing to reveal their identity by testifying at the hearing, cross-examination, in all likelihood, will not prompt retaliation or other disruptive actions. Thus, in this limited circumstance, the grantee may confront such adverse witnesses.
We do not believe that Wolff's refusal to require counsel at disciplinary hearings is justifiable in a rescission hearing. To be sure, "insertion of counsel into the disciplinary process would inevitably give the proceedings a more adversary cast," Wolff, supra, 418 U.S. at 570, 94 S.Ct. at 2981. But correctional goals are not the primary motivating force behind parole rescissions, as they are in the disciplinary context. See id. Moreover, Wolff's expressed concern of delay in providing counsel "at the time and place where hearings are to be held," id., seems of little consequence here, given the notification and time constraints imposed by 28 C.F.R. § 2.34. Finally, the more substantial interest of the prisoner in total physical freedom as compared to mere periodic liberty from confinement ( see Tracy v. Salamack, supra, 572 F.2d at 396-97) suggests that his interest in proving that he is innocent of the charges is greater. Accordingly, due process mandates the use of counsel, as specified in Gagnon v. Scarpelli, supra, as an appropriate safeguard in parole rescission contexts. Finally, in order to ensure proper compliance with due process dictates, a written record of the rescission proceedings is necessary.
The procedures and regulations followed in the instant case were fatally deficient. Notwithstanding Drayton's request to have Ms. Resnik function as counsel and his claim that he had not used amphetamines, the examiners refused to allow such representation or permit appellee to call any witnesses in his defense, even though it appears that some of them would not in any way have adversely affected institutional safety. Although the examiners provided a written statement of the evidence relied on and the reason for rescinding parole, the substance of the statement reveals that the examiners made no attempt to determine the facts; the "Hearing Summary," in fact, refused "to look behind," see note 8 supra, the IDC findings. We therefore reverse the judgment and remand the case for a further conditional grant of parole in the absence of a parole rescission hearing conducted under the rules above prescribed within thirty days after the district court's order thereon.
Judgment in accordance with opinion; no costs.
. . . . .
. . . . .
Under these regulations, the inmate must be given notice of the charges of misconduct to be discussed at the hearing, and, if the parole is rescinded, a written statement of the findings of misconduct and the evidence relied upon by the Commission. He is allowed to present only documentary evidence, and may be represented by a person of his choice. 28 C.F.R. § 2.34(a)(1). The representative's participation, however, is restricted to a short statement at the conclusion of the interview conduct[ed] by the hearing panel and to the provision of further information requested by the panel. 28 C.F.R. § 2.13 (1977). The parole grantee is not allowed to seek the advice of counsel during the hearing. Furthermore, confrontation and cross-examination is not permitted.
Drayton v. McCall,
Mr. Kruger: All right, we understand your position, Miss Resnik, and I will say again, according to the standard operating procedures that we follow, your role here is a representative, and we ask that you hold your comments until a time later in the interview near the end of it, then we will ask for your statement on behalf of Mr. Drayton.
Representative: I would certainly try to accommodate you but do not concede that I believe that is my appropriate role here.
Mr. Kruger: Miss Resnik, we have certain ground rules, we understand the issue you have raised —
Representative: Very good —
Mr. Kruger: But, for the moment, it is the United States Parole Commission, not the Parole Commission of the District of Connecticut. Do you understand what I am saying?
Representative: Certainly.
Mr. Kruger: All right, I will give you as much time as you need near the end of the interview, to put whatever you want on the record.
The Board never gave up its custody of Sexton and therefore could properly rescind his conditional parole without affording him a full Morrisey [ sic] hearing. The notice of denial was not tantamount to a revocation of parole invoking full constitutional safeguards. To require a full Morrisey [ sic] hearing at this stage would be an extravagant remedy infringing on the discretionary powers of the Board of Parole.
Id.
When an effective date has been set by the Board, release on that date shall be conditioned upon continued good conduct by the prisoner and the completion of a satisfactory plan for his supervision. The Board may, on its own motion, reconsider any case prior to release and may reopen and advance, postpone, or deny a parole which has been granted. The Board may add to or modify the conditions of parole at any time.
(c) When an effective date of parole has been set by the Commission, release on that date shall be conditioned upon continued good conduct by the prisoner and the completion of a satisfactory plan for parole supervision. The appropriate Regional Commissioner may, on his own motion, reconsider any case prior to release and may reopen and advance or retard a parole date. A parole grant may be retarded for up to one hundred and twenty days without a hearing for development and approval of release plans.
Koptik v. Chappell, 321 F.2d 388 Childs v. United States Bd. of Parole, 511 F.2d 1270 But see Smith v. Saxbe, 562 F.2d 729
McIntosh v. Woodward, 514 F.2d 95 Sexton Wolff v. McDonnell, supra,