Opinion

Joseph Menechino v. Russell G. Oswald, as Chairman of the New York State Board of Parole, New Yorkstate Board of Parole

  • 430 F.2d 403
  • 1970 U.S. App. LEXIS 7833
Court
Court of Appeals for the Second Circuit
Filed
Aug 5, 1970
Status
Published
Author
Anderson
On the bench
Anderson, Feinberg, Mansfield
Cited by
93 cases
Authority
More cited than 24.9%

an action by a state prisoner claiming to have a constitutionally protected right to procedural due process at a parole release hearing

How later courts described this case

  • an action by a state prisoner claiming to have a constitutionally protected right to procedural due process at a parole release hearing
  • formal trial-type due process is not a requirement in connection with a parole release determination
  • due process does not apply to parole hearings; questioned in United States ex rel. Johnson, supra
  • due process does not apply to parole hearing; questioned in Johnson, supra

Written by the judges who cited it.

Distinguished

  • Distinguished by In Re Grand Jury Proceedings, Harrisburg, Pennsylvania. In the Matter of Joques Egan, 450 F.2d 199 (1971)

    However, Weinberg is inapposite since the Fourth Amendment issue considered in Weinberg was whether a grand jury subpoena must be supported by probable cause.
    Court of Appeals for the Third CircuitDec 14, 1971Read it

The opinion

ANDERSON, Circuit Judge

(concurring) :

I concur in all respects in Judge Mansfield’s excellent opinion insofar as it deals with the facts of the case before us. If, however, the discussion of what a petitioner might claim or contend if the case were one of parole revocation, rather than one of granting parole, is interpreted to imply that in such a case this court would be inclined to hold that constitutional due process would require a trial-type hearing, with the right to counsel, confrontation with witnesses, the right to subpoena witnesses, etc., I am not prepared to agree. Recognition of such a right would completely alter the nature of the parole system and the functions of parole officers and the Parole Board. Until Congress by appropriate legislation changes the character and purpose of parole and the parole system, the hearing on revocation should not be turned into an adversary proceeding. This is not to say that the Board is entitled to act arbitrarily or base its decisions on careless or token investigation or on hunch or whimsey. The hearing should be fair and based upon a thorough investigation, including a searching inquiry into the parolee’s own version of the pertinent facts. See United States ex rel. McCreary v. Kenton, 190 F.Supp. 689, 691 (D.Conn.1960) ; also see United States ex rel. Buono v. Kenton, 287 F.2d 534, 536 (2 Cir. 1961); Washington v. Hagan, 287 F.2d 332, 333-334 (3 Cir. 1960).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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