applying the exception to “inmates serving definite sentences of more than 90 days at Rikers Island . . . who are or will become eligible for conditional release . . . [b]ecause of the relatively short periods of incarceration involved and the possibility of conditional release”
How later courts described this case
- applying the exception to “inmates serving definite sentences of more than 90 days at Rikers Island . . . who are or will become eligible for conditional release . . . [b]ecause of the relatively short periods of incarceration involved and the possibility of conditional release”
- applying the exception to a class of prisoners defined as those serving sentences that were at most two years
- applying exception to mootness doctrine when there was “a significant possibility that any single named plaintiff would be released prior to certification” (emphasis added)
- affirming district court’s order directing implementation of procedures at Riker’s Island for timely disposing of conditional release applications
Written by the judges who cited it.
The opinion
VAN GRAAFEILAND, Circuit Judge,
concurring in part and dissenting in part:
I concur in that portion of the majority opinion which holds that appellees are not entitled to appear personally before the Parole Board.
Since August 1975, the. State has been furnishing rejected applicants for conditional release with written statements of the reasons for their rejection. For this reason, and because this Court has already spoken on this issue in the related field of parole, see, e. g., 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), I also concur with the majority that such statements should be furnished.
As to the balance of the order appealed from, I would reverse. It requires the State to institute appropriate procedures to “insure” that conditional release applications be processed in order of eligibility and mandates that they be processed within 60-90 days of the arrival of an inmate on Rikers Island. In thus holding that the State may not process one prisoner’s application until after it has processed the appli *97 cation of another who will become eligible for release one day earlier, the District Judge has elevated the petty to constitutional status. Ignoring the admonition of the Supreme Court that “federal courts do not sit to supervise state prisons, the administration of which is of acute interest to the States”, Meachum v. Fano, 427 U.S. 215, 229 , 96 S.Ct. 2582 , 2540, 49 L.Ed.2d 451 (1976), he has created another procedural morass for already beleaguered prison officials and created inequities in the process.
If constitutionality is to be equated with fairness, an unjustifiable equation under the law, see Meachum v. Fano, supra, 427 U.S. at 223-225 , 96 S.Ct. at 2537 , fairness to all should be the criterion. A plan is not fair which requires a prisoner, who makes prompt application for release, to sit patiently by until after the application of a less diligent inmate, albeit one with earlier eligibility, is passed upon by the Commission. A procedure is not just which mandates that an application, which is complete and untroublesome, gather dust on the shelf until information is compiled to complete the file of a more controversial applicant. Such Federal interference with the routine operation of a state penal system is not compelled by the Fourteenth Amendment which, we should occasionally remind ourselves, provides simply that no State shall “deprive any person of life, liberty, or property, without due process of law. . . . ”
My colleagues, recognizing the inequities in the District Judge’s order, construe it as if it did not contain the word “insure”. They say that the procedures which the State is ordered to adopt must require the processing of applications in strict order of eligibility “only to the extent that this is practical and fair to the applicants.” I submit that this constitutes not an affirmance but a reframing of the District Judge’s order and, with all due respect to my colleagues, merely substitutes one unfortunate consequence of unnecessary federal interference for another. It is one thing to direct the State to promulgate rules which require processing in order of eligibility only to the extent that it is “practical and fair”; it is quite another thing to promulgate them. If it is possible for the State to draft rules which will withstand the challenge of indefiniteness, what a Pandora’s box they will open for the litigious prisoner who asserts their impractical or unfair application. This infelicitous result, we mandate in the name of Due Process.
My brothers say that, because applications are presently being processed within 60-90 days, the order which requires that this be done imposes little, if any, additional administrative or fiscal burden on the State. Of course, this is not the proper test to be applied in determining whether a Federal Court order should issue. The question, simply put, is whether the Constitution forbids the lapse of 91 days in the processing of applications. In his dissenting opinion in Moody v. Daggett, 429 U.S. at 89-96, 97 S.Ct. at 279-283, which my brothers cite with apparent approval, Justice Stevens, speaking with regard to parole revocation hearings, said at 97 S.Ct. 283 n. 12:
I should also make clear that I would not prescribe any inflexible rule that the hearing must always take place within a fixed period.
There is no such inflexible rule in the Constitution.
Assuming that a prisoner has a constitutional right to have his application for conditional release processed with reasonable dispatch, this right cannot accrue until his application is made. The order, which requires that processing be completed within 60-90 days after the inmate’s arrival on Rikers Island, completely ignores this fact. The order may well operate to benefit the tardy and troublesome inmate at the expense of his more diligent and deserving brother by requiring overworked parole officers to lay the latter’s easily processed application aside while they meet the court-imposed deadline for the tardy troublemaker.
Our eagerness to correct asserted wrongs should not blind us to the fact that when we create a right, we also lay the groundwork for a remedy. One would expect that *98 a right of such constitutional magnitude as to justify delineation by this Court would merit drastic remedial relief. Contempt of court, habeas corpus and actions for damages are remedies which come readily to mind. Woe betide the hapless penal officer who violates an inmate’s constitutional rights by processing his application out of order or by failing to process it within the prescribed ninety days. I have in the past expressed my concern about excessive involvement by the federal courts in the operation of state penal institutions. See McRedmond v. Wilson, 533 F.2d 757, 766 (2d Cir. 1976) (Van Graafeiland, J., dissenting). Those portions of the order which I would reverse illustrate well the basis for my concern.