Michael Ellis, Appellees/cross-Appellants v. District of Columbia, Appellants/cross-Appellees

TATEL, Circuit Judge,

concurring in part and dissenting in part:

I concur in two portions of the court’s opinion. I agree that the district court properly refused to require the District of Columbia Board of Parole to comply with its own procedural regulations. I also agree that we cannot sustain the district court’s order requiring the Board to hold final revocation hearings within ninety days.

With respect to the court’s reversal of the district court’s requirement of timely parole hearings, I concur in the judgment and in part of the court’s reasoning. I agree with my colleagues that McRae v. Hyman, 667 A.2d 1356 (D.C.1995), a decision of the District of Columbia Court of Appeals rendered after the district court issued its injunction, makes clear that the D.C. Court of Appeals interprets the District of Columbia parole regulations as never requiring the Board to grant parole to any inmate. I therefore agree that the parole regulations do not give rise to a constitutionally protected liberty interest. I write separately on this point for two reasons: to explain why I believe that the principle established in Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 12 , 99 S.Ct. 2100, 2106 , 60 L.Ed.2d 668 (1979), and Board of Pardons v. Allen, 482 U.S. 369, 373-76 , 107 S.Ct. 2415, 2418-20 , 96 L.Ed.2d 303 (1987) — that statutory or regulatory language requiring the parole of certain prisoners gives rise to a constitutionally protected liberty interest — does and should survive Sandin v. Conner, — U.S.-, 115 S.Ct. 2293 , 132 L.Ed.2d 418 (1995); and to emphasize that whether the presence of discretion is fatal to claims such as those that appellees raise depends on the type of discretion conferred.

The final issue in this case involves individuals who, after earning their release on parole, are later rearrested for allegedly violating the terms of their parole. Although some parolees are rearrested because, in the view of the Board or a member of the Board, probable cause exists to believe that they have committed other crimes, the District of Columbia parole regulations authorize rearrest when there is probable cause to believe that a parolee has violated even a minor condition of parole, D.C.Mun.Regs. tit. 28, § 217.5 (1987), such as keeping a parole officer informed of residence and work, see § 207.6(j), remaining within fixed- geographic limits, see § 207.6(c), and following “all instructions” of a parole officer, § 207.6(i). Because the court reverses the injunction’s requirement that the District of Columbia offer prompt preliminary hearings to parolees who are rearrested for violating parole conditions, individuals charged -with violating even minor conditions of parole may wait in jail for up to thirty days before having an opportunity to show that they have been wrongfully arrested — that is, that the Board lacked probable cause to believe that they violated a condition of parole. In my view, the District of Columbia regulations that permit this do not satisfy the due process requirements of Morrissey v. Brewer, 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972). I respectfully dissent.

I.

In determining whether the District of Columbia parole regulations create a liberty interest in parole, my colleagues follow Greenholtz and Allen , but they do so hesitantly, suggesting that in light of the Supreme Court’s recent decision in Sandin , “[wjhere the Supreme Court stands on this subject is no longer certain.” Maj. op. at 1417. In my view, Sandin does and should leave Greenholtz and Allen in place. In San-din, the Court restricted its discussion to claims based on changes in conditions of confinement, nowhere suggesting that it was overruling or altering its parole precedents. Indeed, the. Court cited Allen immediately *1426 after stating, “we recognize that States may under certain circumstances create liberty interests which are protected by the Due Process Clause.” Sandin , — U.S. at-, 115 S.Ct. at 2300 . My colleagues agree that, notwithstanding the Sandin Court’s disparagement of the search for liberty interests in mandatory language, see id. at-& n. 5, 115 S.Ct. at 2298 -2300 & n. 5; see also id. at-, 115 S.Ct. at 2303 (Ginsburg, J., dissenting) (suggesting that protected liberty interests derive from the Due Process Clause itself, not “from mandatory language in local prison codes”), the Supreme Court has not instructed lower courts to abandon this approach in the context of parole. See Maj. op. at 1418. Whatever the merits of the distinction between mandatory and discretionary language when only minor conditions of confinement are at stake, I think the distinction makes sense in the context of determining whether a prisoner has a protected liberty interest in parole. Parole decisions do not simply implicate minor conditions of confinement, but instead determine whether a person will be free from physical restraint, undeniably a liberty interest and one of great substance. Under the Due Process Clause, the government may imprison a person only pursuant to law. Where, through the use of mandatory language, a jurisdiction’s law requires the release of certain prisoners prior to the expiration of their sentences, keeping such persons imprisoned for the duration of their sentences deprives them of liberty absent legal authorization and thus without due process of law. The principle embodied in Greenholtz and Allen is therefore sound: Laws requiring parole of prisoners under certain specified circumstances give rise to a constitutionally protected liberty interest.

In determining whether the appellees have a constitutionally protected liberty interest in parole, the key question is therefore whether the District of Columbia parole regulations require the Board to grant parole under certain circumstances. The D.C. Court of Appeals has recently made clear that it interprets the regulations as not ever requiring the Board to release a prisoner on parole. See McRae, 667 A.2d at 1360-61 (holding that the parole regulations’ “numerical system is not a rigid formula ... because the Board is not required to either grant or deny parole based upon the score attained”). Because we are bound by D.C. Court of Appeals interpretations of District of Columbia municipal regulations, McRae is fatal to appel-lees’ claim that the regulations are sufficiently mandatory to create a liberty interest in parole.

Were we called upon to interpret the regulations afresh, I would reach a different conclusion, the same conclusion that the district court reached. McRae and other D.C. Court of Appeals cases interpreting the parole regulations have focused on the regulations’ grants of considerable “discretion” to the Board without carefully considering what sort of discretion the regulations confer. The Supreme Court has distinguished between two types of discretion, one of which is perfectly compatible with the existence of a liberty interest. As the Supreme Court explained in Allen :

[T]he [Greenholtz] Court made a distinction between two entirely distinct uses of the term discretion. In one sense of the word, an official has discretion when he or she “is simply not bound by standards set by the authority in question.” In this sense, officials who have been told to parole whomever they wish have discretion- But the term discretion may instead signify that “an official must use judgment in applying the standards set him [or her] by authority”; in other words, an official has discretion when the standards set by a statutory or regulatory scheme “cannot be applied mechanically.” The Court determined in Greenholtz that the presence of official discretion in this sense is not incompatible with the existence of a liberty interest in parole release when release is required after the Board determines (in its broad discretion) that the necessary prerequisites exist.

Allen, 482 U.S. at 375-76 , 107 S.Ct. at 2419 (quoting Ronald Dworkin, Taking Rights SeRIously 31-32 (1977)) (citations omitted) (pronoun alteration in Allen).

In my view, the language of the District of Columbia parole regulations in effect at the time of the district court order suggests that, *1427 in cases not presenting unusual circumstances, the regulations confer on the Board of Parole only the second form of discretion — the power to use judgment in applying specified standards — not the relatively more unbounded first form of discretion. Although amendments to the regulations — replacing the word “shall” with the word “may” in three subsections and repealing the regulations’ parole calculation worksheets — went into effect after the district court entered its order, see Technical Amendments Act of 1994, D.C.Act 10-302, § 52(c)-(f), 41 D.C.Reg. 5193, 5203 (1994), D.C.Law 10-255, 42 D.C.Reg. 2729 (1995) (effective date May 16,1995), I discuss here the earlier version of the regulations, which would arguably govern the parole decisions for some members of the plaintiff class.

Section 204 of title 28 of the District of Columbia Municipal Regulations, entitled “Procedures for Granting Parole,” uses mandatory language throughout. It first provides:

As its criteria for determining whether an incarcerated individual shall be paroled or reparoled, the Board shall use the criteria set forth in this section and Appendices 2-1 and 2-2 to this chapter. These criteria consist of pre and post-incarceration factors which enable the Board to exercise its discretion when, and only when, release is not incompatible with the safety of the community. Any parole release decision falling outside the numerically determined guideline shall be explained by reference to the specific aggravating or mitigating factors as stated in Appendices 2-1 and 2-2.

D.C.Mun.Regs. tit. 28, § 204.1 (1987) (emphases added). Subsection 204.2 then provides that “[t]he Board shall assign each candidate for parole a salient factor score (SFS)” for use in calculating parole eligibility. § 204.2 (emphasis added). Subsection 204.4 states that “[f]or the purposes of calculating the SFS, the Board shall assign a numerical value to each” of six categories, including, for example, prior convictions and incarcerations. § 204.4 (emphasis added). For each of these six categories, the regulations instruct the Board that it “shall” or “shall not ” count or consider specific circumstances. § 204.5-.16 (emphases added). Appendix 2-1 of the regulations includes a score sheet for calculating the SFS. Subsection 204.17 provides that “[t]he Board shall use the parole candidate’s SFS to determine which [of four] risk categories] applies to the candidate.” § 204.17 (emphasis added). In accordance with Appendix 2-1, points are assigned to each risk category. The Board is then instructed that, in determining whether a candidate should be granted parole, it “shall consider” nine enumerated “pre and post incarceration factors” based on institutional behavior and whether the prisoner’s current or past convictions involved the use of violence, weapons, or drugs. § 204.18 (emphasis added). A scoresheet in Appendix 2-1 assigns points for each of these factors. The regulations then provide that, after the Board has assigned an inmate a score between 0 and 5, “[p]arole shall be granted” for certain scores, with the degree of supervision varying based on the score, and “[p]arole shall be .denied” for other scores. § 204.19-.21 (emphases added). Finally, subsection 204.22 of the regulations provides:

The Board may, in unusual circumstances, waive the SFS and the pre and post incarceration factors set forth in this chapter to grant or deny parole to a parole candidate. In that case, the Board shall specify in writing those factors which it used to depart from the strict application of the provisions of this chapter. ,

A “Decision Worksheet” in Appendix 2-1 lists possible reasons for a parole decision “outside of the Guidelines.” Among the reasons are specific items such as “[r]epeated failure under parole supervision,” as well as general fill-in-the-blank items such as “[o]ther” pre-incarceration factors and “[o]ther [post-incarceration] change in circumstances.”

Analyzed in terms of the two types of discretion discussed in Allen , these regulations seem to provide that the Board may, depending upon the circumstances, exercise both forms of discretion. When a prisoner’s case is unusual, the Board has free rein to decide whether or not to grant parole, provided that it state its reasons. In the ab *1428 sence of unusual circumstances, however, the language of the regulations appears to require the Board to grant parole to prisoners with qualifying scores. In determining whether unusual circumstances are present, the Board exercises the second form of discretion — using its judgment in applying a set of specified standards. Although one of the criteria on which the Board may base a finding of unusual circumstances — “[ojther” — leaves the Board considerable flexibility, the Board’s discretion is- constrained by the requirement that any factor listed as “[ojther” must indeed render the prisoner’s ease “unusual.”

If we were free to interpret the regulations this way, they would give rise to a protected liberty interest in parole under Greenholtz and Allen . Because the D.C. Court of Appeals has authoritatively interpreted the regulations to provide that the Board is never required to abide by the numerical scoring system, however, I agree that the regulations do not create a liberty interest in parole.

II.

Unlike my colleagues, I believe that the Board’s failure to provide prompt preliminary hearings upon executing parole revocation warrants places it in violation of Morris-sey. Morrissey holds that the Due Process Clause entitles a person whose parole is revoked to two hearings: first, after a parolee’s arrest and detention for an alleged parole violation, a prompt “ ‘preliminary hearing to determine whether there is probable cause or reasonable ground to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions,” 408 U.S. at 485 , 92 S.Ct. at 2602 ; and second, a final revocation hearing “leadfingj to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation,” id. at 488 , 92 S.Ct. at 2608 . The Morrissey Court explained that, although the preliminary hearing is to be informal, see id. at 487 , 92 S.Ct. at 2603 , due process requires that the probable cause determination “be made by someone not directly involved in the case,” id. at 485 , 92 S.Ct. at 2602 ; that the parolee be given notice of the preliminary hearing, its purpose, and the alleged parole violations, id. at 486-87 , 92 S.Ct. at 2602-03 ; that the parolee be permitted to speak and present evidence and witnesses at the hearing, id. at 487 , 92 S.Ct. at 2603 ; that the parolee be permitted to confront and cross-examine adverse witnesses, unless “an informant would be subjected to risk of harm if his identity were disclosed,” id.; and that the hearing officer state the reasons for his or her decision and identify the supporting evidence, id.

Although the District of Columbia Board of Parole has a policy requiring the Board to hold final revocation hearings within thirty days after the Board is notified that a parole warrant has been executed, the Board does not provide a preliminary hearing of the sort required in Morrissey . Instead, the District offers a “preliminary interview” at which the parolee receives notice of the parole conditions allegedly violated and is informed of what his or her rights will be at the subsequent parole revocation hearing. See D.C.Mun.Regs. tit. 28, § 219.1 (1987). Because the parolee has no opportunity to contest the finding of probable cause supporting the parole warrant, the interview does not satisfy the requirements of Morrissey . For this reason, the district court found the Board in violation of the Due Process Clause. Although the district court’s order required the District to hold “a prompt preliminary interview,” Ellis v. District of Columbia, No. 91-3041, at 2 (D.D.C. Mar. 30, 1995) (order), the opinion accompanying the order indicates that the district court actually intended to direct the Board to provide “the preliminary hearings required by Morrissey,” Ellis v. District of Columbia, No. 91-3041, slip op. at 40 (D.D.C. Mar. 30, 1995) (mem.). Because the parties seem to agree that what the district court’s order requires is a Morrissey- style preliminary hearing, were this court to share the appellees’ views of the due process issues in this case, we could easily resolve the discrepancy between the district court’s order and its opinion either by remanding for clarification or by modifying the order ourselves.

Even assuming that the district court’s order requires the Board to hold prompt preliminary hearings of the sort described in *1429 Morrissey , however, my colleagues conclude that the Board’s procedures, including both a preliminary interview and a final revocation hearing within thirty days, satisfy the demands of the Due Process Clause. The court treats Morrissey as simply announcing a procedure required in like cases. I disagree. The Morrissey Court issued a broad ruling, one that it obviously knew might require states to modify their existing parole revocation procedures. Although acknowledging that many states had already devised parole revocation procedures of their own, see Morrissey, 408 U.S. at 488 n. 15, 92 S.Ct. at 2604 n. 15, and that the requirements of due process are flexible, the Morrissey Court nevertheless identified certain basic requirements that the states must follow. The Court’s statement that the Morrissey requirements “should not impose a great burden on any State’s parole system,” id. at 490 , 92 S.Ct. at 2604 , likewise suggests that the Court expected the states to implement those requirements. The Court’s limitation of its holding to “future revocations of parole,” id., further demonstrates the Court’s recognition that it was imposing requirements not previously followed by all states. Acknowledging that it could not “write a code of procedure” because “that is the responsibility of each State,” the Court saw its decision in Morris-sey as “deciding the minimum requirements of due process.” Id. at 488-89 , 92 S.Ct. at 2604 .

The Court’s intention in Morrissey to impose a two-hearing requirement on all states is clear from Gagnon v. Scarpelli, 411 U.S. 778 , 93 S.Ct. 1756 , 36 L.Ed.2d 656 (1973), in which one year after Morrissey the Court extended the same due process protections to probation revocations. See id. at 782, 93 S.Ct. at 1759-60 . In Gagnon , the Court described Morrissey as follows:

Specifically, we held that a parolee is entitled to two hearings, one a preliminary hearing at the time of his arrest and detention to determine whether there is probable cause to believe that he has committed a violation of his parole, and the other a somewhat more comprehensive hearing prior to the making of the final revocation decision.

Id. at 781-82, 93 S.Ct. at 1759 . In response to Wisconsin’s argument that the Morrissey requirements would cause practical problems for states with interstate compacts regarding supervision of probationers and parolees, the Gagnon Court was unmoved, stating: “Some amount of disruption inevitably attends any new constitutional ruling. We are confident, however, that modification of the interstate compact can remove without undue strain the more serious technical hurdles to compliance with Morrissey.” Id. at 782 n. 5, 93 S.Ct. at 1760 n. 5.

In support of their efforts to limit Morris-sey to its facts, my colleagues point out that the Morrissey Court offered two justifications for the two-hearing requirement: that “[tjhere is typically a substantial time lag between the arrest” and the final parole revocation determination, and that “it may be that the parolee is arrested at a place distant from the state institution, to which he may be returned before the final [parole revocation] decision is made.” Morrissey, 408 U.S. at 485 , 92 S.Ct. at 2602 . The uses of the word “typically” and the phrase “it may be,” however, show the Court’s awareness that substantial time lags between arrest and final revocation hearing do not always occur and that the place of arrest and the place of the final hearing may not always be distant. The Court nevertheless issued a broad, general rule requiring all states to offer preliminary hearings in addition to final revocation hearings. Nothing in Morrissey suggests that the preliminary hearing requirement would not apply to a small state where a great distance between the place of arrest and the place of the final hearing would be unlikely or that the requirement would not apply in any case in which distance was not a problem. Limiting a case to its facts may well be appropriate when applying our own precedents, but as a lower federal court we are required to follow the directives of the Supreme Court even when those directives extend beyond the facts of the case announcing them.

I recognize that in Morrissey the Court did not intend to establish an absolutely inflexible scheme. Indeed, in Gagnon the Court stated that it did not “intend to fore *1430 close the States ... from developing ... creative solutions to the practical difficulties of the Morrissey requirements.” 411 U.S. at 783 n. 5, 93 S.Ct. at 1760 n. 5. Absent instruction from the Supreme Court that states may water down the Morrissey requirements, however, a court trying to determine whether a jurisdiction’s procedures are an acceptable “creative solution” to the difficulties imposed by Morrissey should test those, procedures by asking whether they guarantee parolees substantially all the protections that the Morrissey procedures provide. Moody v. Daggett, 429 U.S. 78 , 97 S.Ct. 274 , 50 L.Ed.2d 236 (1976), is a good example. There, the Court held that a preliminary hearing is not necessary when a parolee is convicted of a subsequent offense, for the subsequent conviction obviously establishes probable cause that the parolee violated parole conditions. Id. at 86 n. 7, 97 S.Ct. at 278 n. 7. A parolee convicted of a subsequent offense loses nothing when a state offers' no preliminary hearing at which to contest probable cause for parole revocation; the parolee has already had an opportunity to contest the government’s charges under a standard of proof more favorable to the parolee than would be available in a Morrissey preliminary hearing.

My colleagues regard as a constitutionally acceptable “creative solution” the District’s requirement of a pre-detention finding of probable cause by a neutral administrator and provision of a preliminary interview followed by a final revocation hearing within thirty days. Even if the Constitution permits states to “[c]onsolidat[e] the preliminary and final revocation hearings into a single proceeding,” see Maj. op. at 1424, I do not think that a thirty-day delay is constitutionally acceptable. Under Morrissey’s dual hearing structure, a wrongfully detained parolee must be given a prompt opportunity to contest the probable cause finding and perhaps regain his or her liberty. But under the District’s procedures, a parolee wrongfully detained — perhaps on account of a misunderstanding on the part of a parole officer as to- the parolee’s whereabouts or satisfaction of parole conditions — can sit in jail for thirty days with no opportunity to demonstrate that the Board lacks probable cause to believe that he or she violated the conditions of parole. To me, this does not satisfy Morris-sey’s, requirement of a preliminary hearing held “as promptly as convenient after arrest.” Morrissey, 408 U.S. at 485 , 92 S.Ct. at 2602 .

Although the Ninth Circuit has ruled that a preliminary hearing is not required if a state provides a final parole revocation hearing within twenty-one days, see Pierre v. Washington State Bd. of Prison Terms & Paroles, 699 F.2d 471, 473 (9th Cir.1983), and some state courts have reached similar conclusions for periods of thirty days or less in cases involving parole or probation revocation, see, e.g., State v. Myers, 86 Wash.2d 419 , 545 P.2d 538, 544 (1976) (en banc) (upholding provision of a single probation revocation hearing within thirty days of issuance of arrest warrant), the Seventh Circuit has suggested in dictum that even a ten-day delay in holding a preliminary hearing may violate the Morrissey standard, see Luther v. Molina, 627 F.2d 71 , 75 n. 3 (7th Cir.1980). As the Seventh Circuit explained, “Chief Justice Burger [in Morrissey ] seemed to be contemplating an almost immediate hearing; one which would occur even before the parolee was transported to federal prison.” Id. at 74 n. 3. The Seventh Circuit noted that when Congress revised the federal parole system a few years after the Morrissey decision, it provided among its changes that a parolee alleged to have violated a parole condition is entitled to a “preliminary hearing ... without unnecessary delay, to determine if there is probable cause to believe that he has violated a condition of his parole.” Id. at 74-75 (quoting 18 U.S.C. § 4214 (a)(1)(A)) (ellipsis in original; interrial quotation marks omitted). The Senate Report accompanying the bill introducing the “without unnecessary delay” language stated: “The timing of the preliminary hearing is particularly crucial; even if probable cause is not found, if a parolee is held in jail awaiting his hearing for more than one or two days, his job will probably be lost and his reintegration efforts badly disrupted.” Id. at 74 n. 3 (quoting S.Rep. No. 369, 94th Cong., 1st Sess. 25-26 (1975), reprinted in 1976 U.S.C.C.A.N. 335, 347) (internal quotation marks omitted). Of course, *1431 the views of members of Congress are not dispositive of the constitutional issues this case presents. But in evaluating whether the thirty-day period during which District of Columbia parolees may be incarcerated without an opportunity to be heard satisfies the Morrissey requirements, I find it telling that the authors of the Senate Report accompanying legislation implementing Mor-rissey thought that any delay lasting over two days would be problematic.

As my colleagues suggest, the holdings of Morrissey and Gerstein v. Pugh, 420 U.S. 108 , 123, 95 S.Ct. 854, 867-68, 43 L.Ed.2d 54 (1975), appear to be in considerable tension. Although Morrissey says that the Constitution requires an early opportunity to contest probable cause when a parolee is rearrested for violating parole conditions, Gerstein holds that the Constitution does not guarantee such an opportunity when a person is first detained for allegedly committing a criminal act. Although the reasoning of Gerstein may cast some doubt on Morrissey's rationale and although the Gerstein Court’s efforts to distinguish Morrissey were not entirely convincing, see Maj. op. at 1422-23, in my view, the most important message for lower courts to carry away from the Gerstein Court’s attempts to distinguish the two cases is that the Court left Morrissey in place. The Ger-stein Court stated: “In Morrissey v. Brewer and Gagnon v. Scarpelli, we held that a parolee or probationer arrested prior to revocation is entitled to an informal preliminary hearing at the place of arrest, with some provision for live testimony.” Gerstein, 420 U.S. at 121 n. 22, 95 S.Ct. at 867 n. 22 (citations omitted). In explaining one year later in Moody that no preliminary hearing is required when a parolee has been convicted of a subsequent offense, the Supreme Court spoke of “the preliminary hearing which Morrissey requires upon arrest for a parole violation.” Moody, 429 U.S. at 86 n. 7, 97 S.Ct. at 278 n. 7 (emphasis added).

A further reason to follow Morrissey in spite of Gerstein lies in the different constitutional bases for the two decisions. While the Court based its holding in Morrissey on the Due Process Clause of the Fourteenth Amendment without mention of the Fourth Amendment, see Morrissey, 408 U.S. at 472 , 92 S.Ct. at 2596 , it rested its holding in Gerstein on the Fourth Amendment, which it held alone “define[s] the ‘process that is due’ for seizures of persons or property in criminal eases, including the detention-of suspects pending trial,” Gerstein, 420 U.S. at 125 n. 27, 95 S.Ct. at 868 n. 27. In justifying its exclusive reliance on the Fourth Amendment, the Gerstein Court explained that “[t]he Fourth Amendment was tailored explicitly for the criminal justice system,” and “the Fourth Amendment probable cause determination is in fact only the first stage of an elaborate system, unique in jurisprudence, designed to safeguard the rights of those accused of criminal conduct.” Id. In contrast, the Court in Morrissey stated that “the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations.” Morrissey, 408 U.S. at 480 , 92 S.Ct. at 2600 . Perhaps, then, the Due Process Clause affords more procedural protections in the preliminary stage of the parole revocation process than does the Fourth Amendment in the pretrial phase of a criminal prosecution because the protections in a criminal trial exceed those in a final parole revocation hearing.

Whatever the merits of distinguishing between parole revocation proceedings and pretrial detention on the ground that the former is governed by the Due Process Clause while the latter is governed by the Fourth Amendment, the distinction may still be alive and well. In another context, in United States v. James Daniel Good Real Property, 510 U.S. 43 , 114 S.Ct. 492 , 126 L.Ed.2d 490 (1993), the Supreme Court recently stated that although the civil forfeiture of property is- governed by both the Fourth Amendment and the Due Process Clause, “the arrest or detention of criminal suspects ... [are] subjects [the Court] ha[s] considered to be governed by the provisions of the Fourth Amendment without reference to other constitutional guarantees.” Id. at-, 114 S.Ct. at 499 . The Court noted that “unlike the seizure [of real property in a civil forfeiture proceeding] ... the arrest or detention of a suspect occurs as part of the regular criminal pro *1432 cess, where other safeguards ordinarily ensure compliance with due process.” Id. James Daniel Good thus supports the notion that because of the extensive protections ultimately afforded in a criminal trial, the procedural protections required in the preliminary stages of a criminal prosecution may be fewer than the protections required in the preliminary stages of other sorts of proceedings.

If the Due Process Clause is what governs the process due in parole revocation procedures, then the Court’s recent holding in James Daniel Good that, absent exigent circumstances, the Due Process Clause requires the government to provide notice and an opportunity to be heard before seizing real property (presumably for even a day) in a civil forfeiture case, see 510 U.S. at-, 114 S.Ct. at 505 , suggests that parolees detained for alleged parole violations are entitled to prompt probable cause hearings within a matter of days. Even if we doubted the possibility of satisfactorily reconciling Morrissey, Gerstein, and property seizure cases such as James Daniel Good, the proper course for us with respect to this issue would be the same course we follow today with respect to the supposed tension between Greenholtz and Allen on the one hand and Sandin on the other: We should apply the decision that is “directly on point.” Maj. op. at 1418. As the Supreme Court explained in a passage that the majority today quotes in Part I.B. of its opinion: “If a precedent of [the Supreme] Court has direct application in a ease, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.” Rodriguez de Quijos v. Shearson/American Express, Inc., 490 U.S. 477, 484 , 109 S.Ct. 1917, 1921-22 , 104 L.Ed.2d 526 (1989). I would thus follow Morrissey despite any doubt that Gerstein may east on Morrissey’s rationale. Morrissey concerns parole revocation; Gerstein does not.

Although I thus agree with the district court that the Board’s failure to provide preliminary hearings violates Morrissey , I would modify the district court’s order to make it inapplicable to cases in which the basis for parole revocation is the parolee’s conviction of another offense. This modification would be necessary to conform the order to Moody’s holding that Morrissey’s preliminary hearing is not required in such circumstances. See Moody, 429 U.S. at 86 n. 7, 97 S.Ct. at 278 n. 7.