observing that the powers of the then-Parole Board “to issue warrants or effect an arrest for retaking” are derived from Congress, not the Constitution
How later courts described this case
- observing that the powers of the then-Parole Board “to issue warrants or effect an arrest for retaking” are derived from Congress, not the Constitution
- upholding parole violator warrant noting “Congress evinced no intent to require precisely the same formalities and safeguards as to those contained in the Constitution for criminal arrest”
- noting that good time release “is based on an arithmetical computation; there is no discretion in the [BOP] to deny release”
- parolee has already lost his freedom and “while paroled, he is still a convicted prisoner whose tentatively assumed progress is in the sense of being ‘field tested’ ”
Written by the judges who cited it.
Later courts went against this
Declined to follow by Mower v. Britton, 504 F.2d 396 (1974)
We reject the Board’s argument, based on Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225, 236-237 (en banc), cert. denied, 375 U.S. 957, 84 S.Ct. 446, 11 L.Ed.2d 315 (1963), that the parole decision is not an “adjudication.
The opinion
J. SKELLY WRIGHT, Circuit Judge
(concurring in part and dissenting in part).
The court’s opinion outlines a major advance in the protection of personal liberty in the administration of the parole system. While I concur 1 in that opinion in all respects insofar as it provides additional safeguards for the protection of the parolee, with Judge Fahy I would go further. These further safeguards are possible within the present statutory framework, do not add obligations so onerous as to discourage a liberal parole policy, and, in my judgment, are required for compliance with the current concept of due process as applied to parole revocation proceedings.
1. Since 18 U.S.C. § 4205 provides for the retaking of a parolee “who has violated his parole,” I would have a hearing before that determination is made and the warrant issued. The hearing should be non-adversary and reMitely *262 informal, with the rules of evidence relaxed as indicated in the court’s opinion.
2. After being served a copy of the charges against him as outlined in the court’s opinion, I would have a probation officer 2 appointed to assist in his defense if he denies the charges and is not represented by counsel. See 18 U.S.C. § 3655 authorizing the Attorney General to assign probation officers “duties with respect to persons on parole.”
3. Since neither the Parole Board nor the Attorney General has authority to compel the attendance of witnesses, those witnesses for the parolee who pre fer not to appear at the hearing should be interviewed by a probation officer and summaries of the interviews filed in evidence.
4. I would extend to the parolee the right of confrontation. Compare Greene v. McElroy, supra, Note 1, 360 U.S. at 496-497, 79 S.Ct. at 1413.
The extension to the parolee of these additional safeguards will not paralyze the parole process. Where serious violations of parole have been committed, the parolee will have been arrested by local or federal authorities on charges stemming from those violations. Where the violation of parole is not serious, no reason appears why he should be incarcerated before hearing. If, of course, the parolee willfully fails to appear for his hearing, this in itself would justify issuance of the warrant.
With reference to confrontation, this right is basic to fairness in any type of hearing where personal liberty is involved. What has already been so well said about “faceless informers” needs no repetition by me. See, e. g., dissenting opinion of Mr. Justice Douglas in Draper v. United States, 358 U.S. 307, 314-325 , 79 S.Ct. 329 , 3 L.Ed.2d 327 (1959). See also Donnelly, Judicial Control of Informants, Spies, Stool Pigeons, and Agent Provocateurs, 60 Yale L.J. 1091 (1951).
. I also concur in most of what is so well stated in the excellent opinion of Judges Bazelon and Edgerton. With me, however, the primary attribute of a good parole system is a liberal parole policy. Requiring a full-dress second trial, even limited to questions of fact, would, in my judgment, militate against such a politic Rights to assigned counsel and compulsory process in revocation proceedings are obviously desirable, but the price in terms of the number of persons paroled, or, more accurately, not paroled, may be too high. For the time being I would accept the non-adversary hearing with a probation officer assisting the parolee. As stated in the text, X believe that such protection conforms with the current concept of due process and it is possible within the statutory framework. Compare Greene v. McElroy, 360 U.S. 474, 507-508 , 79 S.Ct. 1400 , 3 L.Ed.2d 1377 (1959).
. A probation officer ordinarily is a graduate in social work whose experience in the rehabilitation of offenders and exposure to court proceedings uniquely fit him understandingly to assist parolees in these informal hearings. It is true that probation officers are also used to supervise persons on parole and, in that capacity, sometimes initiate revocation proceedings. But a probation, officer’s duties, and his training, are never prosecution oriented. The fact that he may be a parole supervisor in one case should not disqualify him, in another case, from helping the parolee in preparing his defense, interviewing his witnesses, and generally assisting him at the non-adversary hearing.