Hyser v. Reed

WASHINGTON, Circuit Judge

(concurring).

I have joined in Judge Burger’s opinion because I believe it represents an important step forward, yet does not impose requirements so onerous as to endanger the fulfillment of the salutary objectives for which Congress has created the Board of Parole. Parole is an important part of the rehabilitative process for most prisoners, and its availability should not be restricted by the imposition of unreasonable conditions on its administration. On the other hand, revocation of parole can have extremely serious consequences for the individual .affected, and, therefore, the processes whereby revocation is effected should and must live up to certain minimal notions of fairness to the individual. The problem of the courts is to balance these desiderata, within the statutory and constitutional framework, whenever it appears that they may be in conflict.

What follows is intended to give such additional support as I can to the conclusions reached in Judge Burger’s opinion. As I read his opinion, it recognizes the right of the parolee in a revocation proceeding to an opportunity to be heard at a geographical location that affords him a reasonable opportunity to set forth any evidence he has bearing upon the question whether he has violated a condition of parole, and whether parole should be revoked. At the same time, the opinion holds that there is neither statutory authorization nor constitutional necessity for other procedures to which appellants claim they are entitled, to wit: appointed counsel, compulsory process to obtain the presence of witnesses, and confrontation and cross-examination in all cases of persons giving information to the Board. I will here give the reasoning that leads me to concur in these results.

The right to a hearing at a reasonable geographic location derives, in Judge Burger’s view, from the nature of the proceeding whereby the parolee is returned to custody. I do not disagree with the view that some form of hearing may be required on the return of a warrant. I think, in fact, that the statute and the judicial gloss heretofore placed on it demand the result now reached. Section 4207 of Title 18 requires the Board to afford the parolee “an opportunity to appear,” and we have heretofore held that this opportunity to appear, in order to be an effective one and to represent a real protection of the parolee, embodies a right to bring retained counsel, Glenn v. Reed, 110 U.S.App.D.C. 85 , 289 F.2d 462 (1961), and voluntary witnesses, Reed v. Butterworth, 111 U.S.App.D.C. 365 , 297 F.2d 776 (1961),t,.-If the hearing is held in a Federal penitentiary many hundreds or even thousands of miles from the parolee’s residence or from the place where the alleged violation occurred, the rights recognized by the Glenn and Butterworth decisions become little more than a dead letter except for the parolee with some financial means. In my view, therefore, the opportunity to appear required by Section 4207 must be given — as Judge Burger“s opinion says — in a geographical location *248 selected so as not to interfere with the exercise of the rights we have heretofore recognized. At such a hearing, the parolee should be permitted — if he desires — to show that he did not violate the conditions of his parole, and to offer evidence designed to persuade the Board to allow him to remain on parole. This approach may offer some administrative advantages. By combining the opportunity to appear with the hearing on the return of the warrant, as I think Congress intended, we de-emphasize to a large extent the hearing at the prison (although this may still be given at the discretion of the Board). The hearing at the prison heretofore granted was often of little benefit to the parolee — at least as compared to a fuller hearing at the time and near the place where he is apprehended.

It does not follow from the above that parolees are also entitled to the other relief appellants request. The rights recognized in Glenn, Butterworth, and this case are different in important respects from the other relief sought. In each instance to date, the essence of the right recognized involves the opportunity for the parolee fully and intelligently to present his side of the story, whether as to the facts surrounding an alleged violation or as to considerations that might influence the Board’s dispositional determination. I believe that Congress, in providing for an opportunity to appear, sought to give the parolee a suitable forum in which to plead his cause' — a meaningful proceeding, to be sure, but still an informal one. In my view, we cannot read into the statute the further requirements that appellants ask us to impose. These would transform revocation proceedings into full-dress adjudicatory hearings, with the Board put to its proof in every case. Congress clearly did not envision these proceedings as prosecutions in the traditional sense, and I do not understand it to be the proper role of the courts to work such radical changes unless constitutional considerations of a compelling nature appear. For the reasons given by Judge Burger, I do not find such considerations present here.