# Herbert E. Rose v. E. B. Haskins, Superintendent

> Court of Appeals for the Sixth Circuit · January 5, 1968 · 388 F.2d 91

URL: https://www.frixlaw.com/law-library/cases/9453237

## Case

- **Full name:** Herbert E. ROSE, Petitioner-Appellant, v. E. B. HASKINS, Superintendent, Respondent-Appellee
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** January 5, 1968
- **Citations:** 388 F.2d 91; 18 Ohio Misc. 81; 45 Ohio Op. 2d 395; 1968 U.S. App. LEXIS 8518
- **Precedential status:** Published
- **Opinion:** Dissent by Celebrezze
- **Judges:** Weick, Celebrezze, Peck
- **Cited by:** 79 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9453237

## How later opinions describe it (automated extraction)

- holding that Ohio’s parole system did not violate the separation-of-powers doctrine

## Opinion text

CELEBREZZE, Circuit Judge
(dissenting) .
This case was brought upon a pro se petition for habeas corpus relief. At no time was the Petitioner afforded the expert advice and assistance of counsel in framing his pleading. So it is incumbent upon this Court to fasten its attention upon what this Petitioner was denied, not what the Petitioner in his ignorance of the law asked for. By the uncontroverted facts, the Petitioner was denied a hearing of any kind upon the revocation of his parole. The question is whether that action by the Parole Commission violates Due Process of law. I think that it does, and, therefore, I must dissent from the decision of the Court.
I agree with the majority that this case presents no question of exhaustion of State remedies. Ohio has no procedure for review of a decision of the Parole *98 Commission. 1 Since a petition in the State courts would be a “futile gesture”, such action by the Petitioner is not required to satisfy the demands of 28 U.S.C. § 2254 (1959). Coley v. Alvis, 381 F.2d 870 (6th Cir. 1967).
I cannot agree, however, with the majority’s apparent conclusion that no federal constitutional rights are involved in this ease.
To put the case in its legal perspective, what is involved here is an administrative action of a state agency that adversely affects a parolee’s interest in his conditional liberty. 2 In Fleenor v. Hammond, 116 F.2d 982 (6th Cir. 1941), this Court held that because of due process considerations a conditional pardon could be revoked for violation of a condition only after a hearing fitted in its range to the needs of the occasion. Contrary to the majority’s interpretation, that case was not based upon any “rights” that are acquired through the grant of a pardon and that are not given by parole statutes. In Fleenor the Court specifically recognized that in making the constitutional determination under the Due Process Clause it was not bound by the law of Kentucky. Instead of relying upon the restoration of civil rights that follow a full pardon, the Court said that pardon could be assimilated to probation. 3 In the context of revocation, a parole can be assimilated to both. Given that assimilation, the Fleenor case is directly in point with the instant case and should control the decision of this Court. At the present time, however, a wide divergence of opinion exists concerning the right to a hearing upon revocation of parole. 4 *99 Therefore a reevaluation of the validity of the Fleenor holding would seem appropriate.
Those courts holding that a hearing is not required base their decisions generally upon one of two grounds: (1) that parole is an act of grace to which the legislature may attach such conditions as it deems advisable 5 and (2) that the parolee has accepted the conditions of his parole, and if one condition of the parole is the possibility of its summary revocation, the parolee cannot complain if that action is taken.
Parole, however, is an integral part of the penalty set for the commission of a crime. That it is an ameliorative part of that penalty should make it no less subject to the constitutional restrictions placed on the legislature’s power to define crimes and set the penalty for the commission of them. The granting of a parole is a determination by the Parole Commission that society will be better served by the conditional release of the parolee. With the aid of data from various sources, the Commission has determined that the parolee is a fit candidate for rehabilitation and restoration as a useful member of society. Because of the nature of that determination, the Parole Commission is given a great discretion in reaching its decision to grant or deny a parole; and within the boundaries of that discretion perhaps the granting of a parole could be considered an act of grace of the authority with power. 6
On the other hand, revocation of a parole is not such a general determination. When released into society, the parolee is given a limited freedom provided that he conform to certain specified conditions. 7 Revocation is a determination that he has not satisfied one or more of those specified conditions. That determination does not allow of so much discretion ; and, if reaching that determination without a hearing results in unfairness to the parolee, why should he not have a remedy in the courts?
On that point the second ground resorted to for sustaining the denial of a hearing has some relevance. The so called “contract theory” developed from an erroneous dictum in United States v. Wilson, 8 32 U.S. 150 , 7 Pet. 150 , 8 L.Ed. 640 (1833). The historical and the logical bases of this view were undercut by Mr. Justice Holmes in Biddle v. Perovich, 274 U.S. 480 , 47 S.Ct. 664 , 71 L.Ed. 1161 (1927), supra. There Perovich sought his release upon the grounds that the commutation of his death sentence to life imprisonment by the President was not *100 accepted by him and, therefore, was not valid. After dispensing with the historical considerations and after enunciating telling arguments against the logic of the view, the Court concluded:
“ * * * the public welfare, not his consent, determines what shall be done. * * * The considerations that led to the modification had nothing to do with his will.” 274 U.S. at 486-487 , 47 S.Ct. at 665 .
So a parole is not a “contract” in the traditional sense of that word, and, if the theory only means that the State in tact attached such a condition to the parolee’s freedom, the question remains whether the State can attach such a condition. For if the negative pregnant that is implicit in the contract theory is true (that if the parolee had not agreed to summary revocation he would have had the right to a hearing), 9 then that theory has recognized that a right to a hearing is inherent in the revocation situation. Waiver of such a valuable right is not to be lightly determined, and when the “choice” of the parolee is to remain in prison or accept such a burdensome provision, the “choice” to accept parole can hardly be termed a voluntary waiver of the right to a hearing. Therefore, the two legal theories advanced to justify the denial of a hearing have a dubious basis both in history and in logic.
In Fleenor v. Hammond, 116 F.2d 982 (6th Cir. 1941), supra, this Court granted that pardon was a matter of grace but pointed out that once pardoned the person pardoned was entitled to his liberty: a liberty that could be forfeited only by his breach of the conditions of the pardon. As indicated above, the act-of-grace assumption need not be so summarily granted, but, even if the liberty given the parolee is considered a privilege, the Fleenor decision is more commensurate with the protection given other so-called privileges by recent Supreme Court decisions. Cf. Greene v. McElroy, 360 U.S. 474 , 79 S.Ct. 1400 , 3 L.Ed.2d 1377 (1959).
In other areas where the privilege doctrine has been asserted to deny due process considerations, the Supreme Court has strained to find a lack of authority in order to avoid the constitutional issue: In Greene v. McElroy, 360 U.S. 474 , 79 S.Ct. 1400 , 3 L.Ed.2d 1377 (1959), supra, the Court determined that pertinent Executive Orders did not authorize the revocation of the security clearance of an employee of a private corporation without affording him the right to confront and cross-examine the witnesses against him. In Wong Yang Sung v. McGrath, 339 U.S. 33 , 70 S.Ct. 445 , 94 L.Ed. 616 (1950), the Court held that deportation proceedings must conform with the procedural requirements of the Administrative Procedure Act, 5 U.S.C. § 1001 et seq. (1946). In Peters v. Hobby, 349 U.S. 331 , 75 S.Ct. 790 , 99 L.Ed. 1129 (1955), the Court found that the Loyalty Review Board had acted beyond the jurisdiction given it by the pertinent Executive Order. In other cases violations of internal agency regulations made a decision on the constitutional issue unnecessary. Service v. Dulles, 354 U.S. 363 , 77 S.Ct. 1152 , 1 L.Ed.2d 1403 (1957); (government employees) Accar-di v. Shaughnessy, 347 U.S. 260 , 74 S.Ct. 499 , 98 L.Ed. 681 (1954) (suspension of deportation order). Other times the privilege has been attached to other constitutionally protected freedoms, such as free speech, Wieman v. Updegraff, 344 U.S. 183 , 73 S.Ct. 215 , 97 L.Ed. 216 (1952) (loyalty oaths applied to public teachers), and self-incrimination, Slo-chower v. Board of Education of New York City, 350 U.S. 551 , 76 S.Ct. 637 , 1100 L.Ed. 692 (1956) (teacher questioned before Congressional committee).
Conversely, the doctrine of privilege has perhaps played a small part in some decisions. Cf. Jay v. Boyd, 351 U.S. 345 , 76 S.Ct. 919 , 100 L.Ed. 1242 (1956). But it is significant that in its most recent case concerning revocation of security clearance, Cafeteria and Restau *101 rant Workers Union Local 473 v. McElroy, 367 U.S. 886 , 81 S.Ct. 1743 , 6 L.Ed.2d 1230 (1961), the Supreme Court stated:
“This question cannot be answered by easy assertion that, because she had no constitutional right to be there in the first place she was not deprived of liberty or property by the Superintendent’s action. ‘One may not have a constitutional right to go to Baghdad, but the Government may not prohibit one from going there unless by means consonant with due process of law.’ ” 367 U.S. at 894 , 81 S.Ct. at 1748 . 10
This statement of the proposition accords closely with the assertion made in the Fleenor decision that even though a prisoner might not have a constitutional right to a pardon, once pardoned he cannot be deprived of his freedom by means inconsistent with due process.
Although the Court decided in Cafeteria that due process did not require a hearing in that case, the language of the opinion seemed to question the efficacy of the doctrine of privilege when its easy assertion is used to permit arbitrary government action. 367 U.S. at 895, n. 8 , 81 S.Ct. 1743 , 6 L.Ed.2d 1230 . The confusion that results from the use of the “privilege-right” dichotomy has been noted in other contexts. Gonzales v. Freeman, 118 U.S.App.D.C. 180 , 334 F.2d 570 (D.C.Cir. 1964). Such confusion is no less apparent when the dichotomy is applied to the status that this Petitioner was enjoying until his summary arrest and incarceration.
In this country most interests of a citizen are protected from direct government action that does not conform to due process of law. Of course, due process has a flexible context; what process is due a person in one situation may not be due him in another, and a cynic might say that if due process has no effect it does not apply. But to say that an interest is a privilege; therefore, constitutional rights do not attach only obscures the reasoning by which a decision is reached that due process considerations must yield to policies of countervailing importance. The method of reaching such a decision was indicated in Cafeteria:
“As these and other cases make clear, consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.” 367 U.S. at 895 , 81 S.Ct. at 1748 .
The “precise nature of the government function” involved in the revocation of a parole is the determination of an adjudicatory fact: Has the parolee or has he not violated the conditions of his parole ? The difficulty arises because all of the functions of administering a parole system are the responsibility of the same agency, which grants parole, supervises parole, and revokes parole. Many of the functions involve a certain amount of expertise in the application of principles of behaviorial and sociological sciences, 11 and some fears have been expressed that judicial interference in one function will disrupt the whole scheme.
For the most part those fears have been supported by nothing more than the untutored intuition of the person expressing them; 12 so they should be closely scrutinized in order to determine their validity. Propositions that would have some cogency under certain circumstances have been magnified into an all- or-nothing attitude that flatly states that requiring a hearing upon revocation of parole would produce dire results on the system: (1) parole boards would become hopelessly mired in needless pro *102 cedure; 13 (2) parole boards would not release deserving prisoners for fear of being unable to return them to prison; 14 (3) informers would be unwilling to testify against a parolee if their testimony would be exposed to confrontation and cross-examination; 15 and (4) the increase in cost would make the program prohibitive. 16 The validity of such fears has come under increasing attack, 17 and experience 18 and expert studies 19 have shown the groundlessness of these views.
We are left then with the argument that a judicial type hearing is inappropriate in the parole revocation situation. It is said that the parole board is as anxious to prove the parolee’s innocence as he is; its only interest is to find the truth. Whatever cogency this argument might have if directed against the imposition of the full panoply of criminal procedural safeguards, it has none when directed against the imposition of a bare hearing. Besides, the limits on the parens patriae fiction that have been noted in other areas are just as appropriate here. 20
So neither the nature of the government function nor fear of disruption of that function can justify the denial of a hearing. If justification can be shown at all, it must be that the “private interest affected” is beyond the pale of the court’s protection. But such a view of the Petitioner’s status is not supportable. Some courts have attempted to support their “hands-off” policy by a coneeptua-listic approach to probation, pardon, and parole that does not lend reality to the distinctions drawn. It is said that although a hearing might be required in revocation of a conditional pardon none is required in' revocation of parole because a parole does not remit the penal *103 ty. 21 Likewise, a hearing might be required in revocation of probation, though not in revocation of parole, because the suspension of sentence does not complete the judicial process as does sentencing and imprisonment. 22
By taking this narrow conceptual approach, these courts ignore the essential identity of the position of persons whether they are paroled, put on probation, or conditionally pardoned. Each has been found guilty of a crime; each has been deemed worthy of rehabilitation; and each has been given a status that is considerably more desirable than that of a prisoner. When revocation is threatened, they all have the same interest in maintaining that status. 23
Other courts have utilized the “technical-custody” theory to analogize the parolee’s status to that of a prison “trusty”. 24 But even if this analogy is accepted, the courts are increasingly recognizing that no valid social or governmental policy is served by treating a convict as an outcast from society, a person without any rights. 25 And increasingly when a valuable interest of a prisoner is affected by government action, the courts have carefully scrutinized the action to insure that it serves some valid governmental policy or to insure that it comports with due process. For example, a prisoner may sue the government under the Federal Torts Claims Act for the negligence of his custodian, United States v. Muniz, 374 U.S. 150 , 83 S.Ct. 1850 , 10 L.Ed.2d 805 (1963), and the prisoner cannot be punished for suing his custodian. Also, this Court has considered issuance of the writ as appropriate to protect a prisoner from the “assaults, cruelties and indignities” of his guards and co-inmates. Coffin v. Reichard, 143 F.2d 443 , 155 A.L.R. 143 (6th Cir., 1944). There this Court said, “A prisoner retains all the rights of an ordinary citizen except those expressly, or by necessary implication, taken from him by law.” 143 F.2d at 445 . 26
*104 All of these examples contradict the final argument urged for denial of a hearing. That argument contends that the court has afforded the prisoner his due process requirements in his criminal trial, and upon conviction it has pronounced and executed the sentence required by law. So long as the period of the sentence has not run, the argument continues, treatment of the convict, whether it be parole or other, is the sole concern of the legislature and its authorized agency. Long ago in The Federalist, it was said:
“In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed, and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”
One auxiliary precaution under our Constitution is that government action that exceptionally affects a person on individual grounds must be effected by procedures that satisfy due process. 27 The courts are entrusted with the high office of determining when that requirement has been met. Parole boards are not free from that restriction; convicts are not deprived of that protection. 28
In the instant case, the facts, as they must be taken, show that the Petitioner’s parole was revoked because he was accused of committing a felony, but he was given no opportunity to rebut that accusation. Under these circumstances, the least due process requires is a hearing where the accused can explain his position on the accusation. Moreover, other elements of due process might be required; but, realizing that the government must be enabled to control the governed, the formulating of those procedures can best be entrusted to the agency that must operate under them. 29
Such a view is not based upon the fear that agencies will act capriciously and arbitrarily if their every action is not scrutinized by the courts. It is based upon the fact that the Commission acted without hearing all of the pertinent evidence that it could reasonably obtain. Such action is itself unfair and capricious when, by allowing a hearing, evidence that is peculiarly within the knowledge of the parolee might shed light on the accusations made against him, or cross-examination might prove the maliciousness of the charges lodged.
In many cases a hearing may be unnecessary. I emphasized that the evidence must be “pertinent” and “reasonably obtainable”. When the cause of revocation is that the parolee has been accused, tried, and convicted of a crime committed during the period of his parole, evidence by the parolee to refute that charge would not be pertinent. He had his hearing on the facts at the trial of his case. The inquiry on revocation *105 should be “fitted in its range to the needs of the occasion.” Escoe v. Zerbst, 295 U.S. 490, 493 , 55 S.Ct. 818 , 79 L.Ed. 1566 (1935). Just as the strength of accusations of violations will vary in degree from a conviction of crime to conflicting testimony concerning a factual occurrence, so the hearing should be so fitted as to most fairly and most probably reach the truth of the adjudicatory fact in issue.
I would remand the case to the District Court for an evidentiary hearing to determine if the Parole Commission has given the Petitioner a hearing and, if it has, whether that hearing complied with the requirements of due process.
. An action by the Parole Commission in revoking a parole is not reviewable by habeas corpus in Ohio. In re Varner, 166 Ohio St. 340 , 142 N.E.2d 846 (1957). Nor will mandamus lie to control the discretion of the Parole Commission. Swiss v. Ohio Pardon & Parole Commission, 117 Ohio App. 141 , 191 N.E.2d 186 (1963). Neither is prohibition a proper remedy to prohibit an act that has been fully and finally performed. State ex rel. Gem Coal Co. v. Young, 109 Ohio App. 457 , 164 N.E.2d 190 (1959). Certiorari is not recognized in Ohio, having been displaced by statutory procedure, as have other common law writs, such as coram nobis. State v. Chapman, 159 N.E.2d 374 (Ohio App.1958). In the Ohio courts the only possible review of the action of the Parole Commission would be by appeal under Ohio Revised Code § 2506.01 (Supp.1957), and this procedure is available only if the Parole Commission is considered by the courts as that type of agency whose actions are reviewable under this statute, see §§ 2506.01 (Supp.1957) and 2505.07 (Page 1954), which point is not at all clear; and, in any event, the appeal must be perfected within ten days. Time for appeal has run out for the Petitioner, so, if the constitutional question presented is to be decided by any court, it must be decided in this habeas proceeding.
. Fictions of “custody” and the like that have been created by statute or court decisions cannot change the reality of a parolee’s conditional freedom and cannot affect the constitutional protections surrounding his interest in that conditional freedom. See infra.
. At the time of the Fleenor decision it was considered that there was no constitutional right to a hearing upon revocation of probation. Burns v. United States, 287 U.S. 216 , 53 S.Ct. 154 , 77 L.Ed. 266 (1932).
. Twenty-five states and the District of Columbia have statutes that specifically require a hearing upon revocation of parole. Nine state statutes seem to specifically authorize revocation without a hearing. Sixteen state statutes give no indication of whether a hearing is required, but in seven of these states the courts have interpreted the statute as not requiring a hearing. See Sklar, Law and Practice in Probation and Parole Revocation Hearings, 55 J.Crim.L., Crim. and P.S. 175 (1964); Annot., 29 A.L.R.2d 1074 (1953). In at least three of the states where the statute is silent, however, the courts in cases similar to parole have based a hearing requirement, either expressly or impliedly, on the demands of due process. See Baine v. Beckstead, 10 Utah 2d 4 , 347 P.2d 554 (1959); Hudson v. Youell, 178 Va. 525 , 17 S.E.2d 403 (1941) modified on other grounds, 179 Va. 442 , 19 S.E.2d 705 (1942); People ex rel. Joyce v. Strassheim, 242 Ill. 359 , 90 N.E. 118 (1909). The federal parole statute requires a hearing, 18 U.S.C. § 4207 (1951), as does the statute controlling the revocation of probation. See Escoe v. Zerbst, 295 U.S. 490 , 55 S.Ct. 818 , 79 L.Ed. 1566 (1935).
. In relation to pardons, however, Mr. Justice Holmes said in Biddle v. Perovich, 274 U.S. 480 , 47 S.Ct. 664 , 71 L.Ed. 1161 (1927): “A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.” at 486, 47 S.Ct. at 665 .
. But see, State ex rel. Joyce v. Strassheim, 242 Ill. 359 , 90 N.E. 118 (1909):
“But we do not regard his parole as a mere act of grace and favor by the board of pardons * * * We cannot believe that the legislature understood that the board, in establishing rules for parole * * * or exercising the discretion confided to them, would be merely dispensing favors to those whom they might choose to release * * * or that the rearrest * * * should be considered merely a withdrawal of a favor bestowed upon him.” 90 N.E. at 121 .
. The report by the President’s Commission on Law Enforcement and Administration of Justice phrased the proposition more emphatically: “The offender * * * who is placed on parole * * * is given a guarantee by law that unless he violates certain defined conditions he will not be placed under more severe restriction.” at 87, Task Force Report: Corrections (1967).
. In that case Justice Marshall said that a pardon is a deed or grant that must be accepted by the prisoner before it is effective. He drew this erroneous conclusion from early English cases that had held that the defense of pardon must be pleaded or it is waived. See Weihofen, Revoking Probation, Parole or Pardon without a Hearing, 32 J.Crim.L. & C. 531 (1942); Brief of Appellant in Biddle v. Perovich, 274 U.S. 480, 482-485 , 47 S.Ct. 664 , 71 L.Ed. 1161 (1927).
. That the “contract theory” courts recognized the existence of the negative pregnant gains some cogency when it is observed that if the parolee had no right the contract fiction would be unnecessary.
. The quote is from Homer v. Richmond, 110 U.S.App.D.C. 226 , 292 F.2d 719, 722 (D.C. Cir. 1961).
. See Tappan, Crime, Justice, and Correction (1960); Dressier, Practice and Theory of Probation and Parole (1959); Clegg, Probation and Parole (1964).
. E. g., In re Varner, 166 Ohio St. 347 , 16 N.E.2d 731 (1960).
. But see Fleming v. Tate, 81 U.S.App. D.C. 205, 156 F.2d 848 (D.C. Cir. 1946), where the Court, in interpreting a statute to require the allowance of presence of counsel at a revocation hearing, said: “The presence of counsel does not mean that he may take over conti-ol of the proceeding.” Likewise, in a hearing the parole board is free to adopt procedures consonant with the issue to be resolved. Orderly procedures will more likely aid than impede the decision making process.
. Michigan requires that almost the full panoply of procedural rights be observed in the revocation of a parole, Mich.Stat. Ann. § 28.2310 (1954), Comp.Laws 1948, § 791.240, P.A.1953, No. 232; yet it has one of the highest rates of parole. Sklar, Law and Practice in Probation and Parole Revocation Hearings, 55 J.Crim.L., Crim. and P.S. 175, N. 157 (1964).
. The same objection can be made to the requirements of confrontation and cross-examination at criminal trials, and balanced against this possibility is the possibility that malicious lies, baseless rumors, or mistaken impressions might be believed. “Faceless informers are often effective if they need not take the stand.” Beard v. Stahr, 370 U.S. 41, 43 , 82 S.Ct. 1105, 1106 , 8 L.Ed.2d 321 (1962) (Douglas, J., dissenting).
. But see Warren, Probation in the Federal System of Criminal Justice, 20 Fed. Prob. 3 (1955), where it is indicated that the cost of maintaining a prisoner is ten times the cost of maintaining a parolee or probationer. Also, in Ohio the cost of maintaining a prisoner is six times the cost of maintaining a parolee or probationer. Annual Report, Ohio Adult Parole Authority 1964/65 at 13 — 14. The small added expense of a hearing would not make the parole system less attractive economically.
. See, Tappan, Crimes, Justice, and Correction 739-744; Kadish, Legal Norms and Discretion in the Police and Sentencing Process, 75 Harv.L.Rev. 904 (1962).
. See footnotes 15-18, supra. Also, such fearful consequences have not occurred in other states where a hearing is required.
. See 4 Attorney General’s Survey on Release Procedures 246-8 (1939); Report by the President’s Commission on Law Enforcment and Administration of Justice, Task Force Report: Corrections (1967) [hereinafter Nat’l Crime Comm’n. Report: Corrections].
. See In re Gault, 387 U.S. 1, 26 , 87 S.Ct. 1428 , 18 L.Ed.2d 527 (1967). Also, see 4 Attorney General’s Survey on Release Procedure 246-7 (1939) : “Parole agents are human, and it is possible that friction between the agent and parolee may have influenced the agent’s judgment. In fairness to the violator this is a possibility which should be investigated by some higher authority.” ■ See footnote 14, supra.
. E. g., Owen v. Smith, 89 Neb. 596 , 131 N.W. 914 (1911).
. E. g., Ex Parte Anderson, 191 Ore. 409 , 229 P.2d 633 , 230 P.2d 770 (1951).
. Since pardons are rare today, the Nat’l. Crime Comm’n. Report: Corrections concerned itself mainly with probation and parole procedure, and the two correctional processes were considered essentially synonymous since they have the same purpose and effect. On the status of the parolee, the Report noted: “But in any event there is an enormous difference today in the degree of freedom accorded prisoners as against persons on probation or parole.”
. If analogies are deemed necessary, however, the position of the parolee is more analogous to that of an alien who has become a member of the community. No one doubts that due process requires a hearing before such an' alien can be expelled from this country. Kaoru Yama-taya v. Fisher, 189 U.S. 86 , 23 S.Ct. 611 , 47 L.Ed. 721 (1903); Kwong Hai Chew v. Colding, 344 U.S. 590 , 73 S.Ct. 472 , 97 L.Ed. 576 (1953). Whereas, the same procedures do not apply to one who has not become a member of the community. United States ex rel. Knauff v. Shaugnes-sy, 338 U.S. 537 , 70 S.Ct. 309 , 94 L.Ed. 317 (1950).
. Nat’l Crime Comm’n. Report: Corrections : “There is necessary doubt as to the propriety of treating this large group of persons as in varying degrees, outcasts from society. And there is necessary recognition that such treatment is not in the ultimate interests of society. Denying offenders any chance to challenge arbitrary assertions of power by correctional officials, and barring them from legitimate opportunities such as employment, are inconsistent with the correctional goal of rehabilitation, which emphasizes the need to instill respect for and willingness to cooperate with society and to help the offender assume the role of a normal citizen.” at 82.
See also, Barkin, The Emergence of Correctional Law and The Awareness of the Rights of the Convicted, 45 Neb.L.Rev. 669 (1966); Constitutional Rights of Prisoners: The Developing Law, 110 U.Pa.L.Rev. 985 (1962); Note, Beyond the Ken of the Courts: A Critique of Judicial Refusal to Review the Complaints of Convicts, 72 Yale L.J. 506 (1963).
. From the Coffin decision, it seems apparent that habeas corpus is the proper remedy in this case. Even if the custody fiction is accepted that court noted: “A prisoner is entitled to the writ of ha-beas corpus when, though lawfully in custody, he is deprived of some right to *104 which he is lawfully entitled even in his confinement, the deprivation of which serves to make his imprisonment more burdensome than the law allows or curtails his liberty to a greater extent than the law permits.” 143 F.2d at 445 .
. It seems clear that when administrative action affects a property interest of a person on an individual basis, due process requires that the person be afforded a hearing. Londoner v. City & County of Denver, 210 U.S. 373 , 28 S.Ct. 708 , 52 L.Ed. 1103 (1908). Cf. Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 446 , 36 S.Ct. 141 , 60 L.Ed. 372 (1915).
. On the power to revoke a parole without a hearing the Nat’l. Crime Comm’n. Report: Corrections stated: “Yet it is inconsistent with our whole system of government to grant such uncontrolled power to any officials, particularly over the lives of persons.”
. This responsibility to establish standards, however, cannot be avoided by the use of obscure formulations, such as “the parolee violated the conditions of his parole.” Fact finding requirements cannot be met by the finding of conclusions. The dangers inherent in such vague standards have been sufficiently indicated. See Cafeteria and Restaurant Workers Union Local 473 v. McElroy, 367 U.S. 886, 900 , 81 S.Ct. 1743 , 6 L.Ed.2d 1230 (1961) (Brennan, J., dissenting).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9453237. Public record. Not legal advice.