Petition — Regan v. Zurak
Supreme Court brief1977
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IN THE
Supreme Court of the Unite
OCTOBER TERM, 1976 .
No. 7671564
on
vv
Paut J. Regan, Benzsamin Warp, Raymonp Dorsey,
Wou1am Barnwewit, Frank CaLtpwetit, Maurice Dean,
Martin Grupringe, Frank Gross, Apa Jones, Miron
Lewis, Jonn Marrucci, Louis Prerro, JoHn Quinn, and
Ance.L Luis Rivera, Commissioner of New York State
Board of Parole, individually and in their official
capacities,
Petitioners,
agatnst
Gustave Zurak, Witu1am McAuuirre, SaLvatTorE ZaMBuTO,
Wire Mack, Bengamin Santiaco, Martin HaPern, on
behalf of themselves and all others similarly situated,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT
Louis J. LerKxow1Tz
Attorney General of the
State of New York
Office & P.O. Address
Two World Trade Center
New York, New York 10047
Attorney for Petitioners
SaMvueE. A. HirsHowitTz
First Assistant Attorney General
ARLENE R. SmLveRMAN
Assistant Attorney General
of Counsel
TABLE OF CONTENTS
PAGE
| Opinion Below ......... sdhiwedéds deskbaswenndenes 2
Jurisdiction .......... bebe eee e ween eee eeeee eens 2
| NE hci cdidiinitinnadvdddrertanespaneasdeadia 2
| I is ns oda: eeebenveseupenel 3
| I OE Cnn vieiienene vebabandhedaneen 3
| I i o's Wilaeak¥enuun ae eeedesonnies 6
| ArRGUMENT—This petition presents substantial ques-
| tions of law requiring reversal by this Court of
| SD bc ku ewe ce cacneasuawensens 9
A. Conditional Release is not an interest to which
HE es coc cede dentenacoksuins 9
B. The timing of a conditional release decision
can only be determined by reference to state
Dt: adectieniecbaosdibiensss iiecasentueah 11
ES rh ar ed ane ee EE Tn pet Fie SN ee A 13
Appenpix A—Opinion, United States Court of Ap-
CE WEED 6. cd ut cucu ccdawssundsouns la
Appenpix B—Opinion, United States District Court,
Southern District of New York ................ 2la
‘
|
ii TaBLE oF CITATIONS
PAGE
Cases:
Bradford v. Weinstein, 519 F.2d 728 (4th Cir. 1975),
cert. granted, 421 U.S. 998 (1975), vacated and
remanded as moot, 44 USLW 3372 (U.S. Dec. 23,
SRE kvedaccceccccdasccatensevcscsss céusacas 11
Brown v. Lundgren, 528 F.2d 1050 (5th Cir. 1976),
cert. denied, 45 USLW 3329 (U.S. No. 2,1976) .. 11
Marshall v. United States, 414 U.S. 417 (1974) ..... 9
Matter of Briguglio v. New York State Bd. of Parole,
BA WY 36 Bh CIGGD) 2 occ cccscccvcscesccscccees 10
Meachum v. Fano, 427 U.S. 215, 244 (1976) ........ 11,12
Montanye v. Haynes, 427 U.S. 236, 243 (1976) ....... 10, 11
Preiser v. Rodriguez, 411 U.S. 475 (1973) ........... +
United States ex rel. Johnson v. Chairman, New York
State Board of Parole, 500 F.2d 928 (2d Cir.),
vacated and remanded as moot sub nom, Regan
v. Johnson, 419 U.S. 1015 (1974) .............. 9,13
STATUTES
Federal:
ee i cae Seiad sen ececnenein’ 2
Pe CE dos didn ds degnk Kuaeeseecodnnweds
Se ED vice cane dedaudetneenstéededuneeee 5
New York Correction Law,
Dt wiWegegnena destin bds bhuaaddearehaeeneue t
PE boscceccdeceesecesecdosesesosdscdvcesess 3,
Supreme Court af the United States
OCTOBER TERM, 1976
No.
+,
4
Paut J. Recan, Bensamin Warp, Raymonp Dorsey,
Wittiam Barnweii, Frank CaLpwett, Maurice Dean,
Martin Gipripce, Frank Gross, Apa Jones, Mitton
Lewis, Jonn Marrvucct, Louis Pierro, Joun Quinn, and
AnceEL Luis Rivera, Commissioner of New York State
Board of Parole, individually and in their official
capacities,
Petitioners,
against
Gustave Zurak, Wiiu1aM McAuuirre, Satvatorr ZamMBvurto,
Wire Mack, Bersamrn Santiaco, Martin HauPern, on
behalf of themselves and all others similarly situated,
Respondents.
+
4
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT
To the Honorable Chief Justice of the United States and
the Associate Justices of the Supreme Court of the United
States:
Petitioners pray for a writ of certiorari to review a deci-
sion of the United States Court of Appeals for the Second
Circuit entered on February 7, 1977 (Van Graafeiland,
C.J., dissenting).
2
Opinion Below
The opinion of the court below is reported at 550 F. 2d 86
(2d Cir. 1977) . It is appended infra as Appendix A. The
opinion of the United States District Court for the South-
ern District of New York is appended infra as Appendix B.
Jurisdiction
Jurisdiction of this Court is invoked pursuant to 28
U.S.C. 4 1254 (1). The judgment of the Court of Appeals
was entered on February 7, 1977. A motion for rehearing
by respondents was denied on March 25, 1977.
Statute
New York Penal Law Section 70.40(2)
2. Definite sentence. A person who is serving one
or more than one definite sentence of imprisonment
with a term or aggregate term in excess of ninety days
may, if he so requests, be conditionally released from
the institution in which he is confined at any time after
service of sixty days of that term, exclusive of credits
allowed under subdivisions four and six of section
70.30. In computing service of sixty days, the credit al-
lowed for jail time under subdivision three of section
70.30 shall be calculated as time served. Conditional re-
lease from such institution shall be in the discretion of
the parole board, and shall be upon such conditions
as may be imposed by that board in accordance with
the provisions of the correction law.
Conditional release shall interrupt service of the
sentence or sentences and the remaining portion of the
term or aggregate term shall be held in abeyance.
Every person so released shall be under the supervi-
sion of the parole board for a period of one year. Com-
en ee ee
3
pliance with the conditions of release during the period
of supervision shall satisfy the portion of the term or
aggregate term that has been held in abeyance.
Questions Presented
1. Whether due process attaches to conditional release
where inmates at regional and county correctional :acili-
ties have no expectation under state law that they will be
conditionally released prior to the expiration of their jail
term?
2. Whether due process requires that a conditional re-
lease application be processed within 60 to 90 days of an
inmate’s receipt at local detention and in a particular order
where such requirements are contrary to state statute and
interfere with the state administration of the conditional
release program.
3. Whether the Court properly ordered that a denial or
deferral of conditional release be accompanied by a state-
ment of reasons and facts when due process imposes no
such requirement on the Board of Parole even though the
evidence established that statements of reason were being
provided. ag
: Statement of the Case
Plaintiffs were inmates of the New York City Correc-
tional Institution for Men (hereinafter Rikers Island). All
were serving definite sentences of one year or less under
New York law.* Pursuant to New York Penal Law
* A definite sentence under New York Law never exceeds one
year. All misdemeanors carry definite terms of imprisonment of
one or lew. New York Correction Law §70.15. Addi-
i Class D and E felons may receive a definite term of
imprisonment of one year. New York Penal Law § 70.00(4).
(footnote continued on the following page)
4
§ 70.40(2), inmates sentenced to definite terms of 90 days
or more are eligible for a form of parole known as condi-
tional release after service of at least 60 days of such
term.* If released, an individual remains under the super-
vision of the Parole Board for a period of one year. In
computing service of sixty days, the credit allowed for jail
time under New York Penal Law 70.30(3) is considered
time served.
Plaintiffs alleged that they had all applied for condi-
tional release; that under state statute they were eligible
for conditional release after service of sixty days of their
sentence; that they did not receive a decision on their ap-
plications for conditional release by the sixtieth day of
their term and that this was a violation of their constitu-
tional due process rights. They further alleged that due
process entitled them to a statement of reasons when condi-
tional release was denied and a description of the evidence
relied upon by the Parole Board in denying their applica-
tion.** They sought to proceed as a class representing all
(footnote continued from preceding page)
Sentences in excess of one year may only be imposed for feloni
= are ee as indeterminate sentences for which the mini.
um period of imprisonment is three years, the maximum, life.
New York Penal Law § 70.00. An indeterminate sentence of im-
prisonment must be served at a state correctional facility; a defi-
nite sentence of imprisonment, i.e., a term of one year or less is
served at a county or regional correctional instituti
Penal Law § 70.20. —
* This type of release is to be distinguished from release pur-
suant to New York Penal Law § 70.30(4) by which inmates oom
reduce their term of imprisonment by one-third for behavior
discussed in Preiser v. Rodriguez, 411 U.S. 475 (1973).
** Under New York Law, felons serving terms of three years or
more meet personally with three members of the Parole Board.
New York Correction Law § 214. Plaintiffs sought a holding that
they were also entitled to meet with the parole commissioner who
rules on their conditional release application. The Circuit Court
reversed the district court’s holding that plaintiffs were constitu-
tionally entitled to meet with a commissioner.
5
inmates who are or will be incarcerated in New York City
detention and correctional facilities who are or will be
eligible for conditional release pursuant to New York
Penal Law § 70.40(2). Jurisdiction was predicated on 42
U.S.C. § 1983 and 28 U.S.C. § 1343(3).
The district court held an evidentiary hearing on plain-
tiffs’ application for a preliminary injunction. Lawrence
Kavanaugh, Assistant Director of Field Operations, Divi-
sion of Parole, and Raymond Dorsey, Supervising officer,
Division of Parole at the New York City Correctional
Institution for Men, described the administration of the
state’s conditional release program for inmates serving
definite terms of one year or less at county or regional
correctional institutions. Upon receipt at a county or
regional correctional facility an inmate is informed that,
if he has a term of ninety days or longer, he will become
eligible for conditional release. If an inmate wants to
apply for the program,® he signs an application form.
Thereafter, a parole officer interviews him, investigates
his background and prepares a report for the Parole
Board based on his prior criminal record, present offense,
family history, community attitude, and parole program
if released. The probation report that was prepared at
the time of sentencing is usually submitted to the Board.**
The applicant may submit any letters or documents to the
Board that he believes will enhance his chances for con-
ditional release.
The file goes to one parole commissioner who renders the
decision. As of August, 1975, applicants are given a state-
ment of the reasons in writing if conditional release is
* Not all inmates ly for the program since they will have
to serve one year er supervision if conditional release is
granted and they may have only a short period of time left to
serve at the correctional institution.
** Outside of New York City, an independent investigation of
the information supplied by the applicant is conducted. Because
of staff limitations, this is not done in New York City.
6
denied or a decision is deferred to a later date. An appli-
cant may apply to the chairman of the Board for recon-
sideration.
An investigation into an applicant’s background can-
not always be compieted within 60 days. Sometimes the
investigation is difficult. Additionally, an applicant apply-
ing for the program may have a great deal of jail time so
that the Parole Board cannot possibly gather the necessary
information and act on his application within 60 days. The
Board cannot begin an investigation until the application
is received, and of course, until sentence is imposed, there
is no way of knowing if a person will receive a term in ex-
cess of ninety days so that he is eligible for the program.
In 1974, statewide applications for conditional release num-
bered 2,578.
Dorsey explained the particular problems he faces at
Rikers Island. Six parole officers service the five institu-
tions on Rikers Island. There are approximately 3,000
inmates eligible to apply for conditional release each year.
Although the inmates are usually brought to the Parole
Officers for their interviews, at times the officers must
travel from one institution to another by a bus which only
runs at set intervals. Moreover, the Board has no control
over the movement of inmates on Rikers Island. This is
done by City, not State, Correctional employees. In addi-
tion to servicing the institutions on Rikers Island, the
parole officers assigned there must interview inmates at the
Bronx House of Detention for Men, the Queens House of
Detention for Men, the Brooklyn House of Detention for
Men, various residential treatment centers and Bellevue
and Kings County Hospitals.
Orinions Below
The district court observed that it is settled in the
Second Circuit that a prisoner’s interest in prospective
parole must be accorded due process protection. While
oe ee
7
recognizing that New York Penal Law permits the Parole
Board to consider conditional release applications any
time after service of sixty days, the district court, none-
theless, went on to hold that as a matter of due process
of law, applications must be processed within 60 to 90 days
of an inmate’s arrival at Rikers Island. The court fur-
ther held that the Board must institute appropriate pro-
cedures that will insure that conditional release applications
be processed within this period and in order of eligibility
notwithstanding any difficulties in investigating an appli-
cant’s background, tardy applications and shortened
periods for investigation by reason of extended jail time
credits.
Finally the district court heid as a matter of due process
that inmates whose applications are denied or deferred are
entitled to a written statement of reasons together with a
written statement of the facts relied on by the Board in
reaching its decision notwithstanding testimony that rea-
sons were already being supplied to the applicants.
The Circuit Court affirmed this holding (Van GraaFEl-
LAND, J. dissenting).* The majority held that a prisoner’s
interest in conditional release is sufficient to warrant due
process protection. The Court stated that New York Penal
Law § 70.40(2) provides inmates a “justifiable expectation
rooted in state law” that they will be released if they meet
Board standards. The Court observed that it is the nature
of the interest sought to be protected that determines
whether due process attaches. The Court found the inter-
est at bar, characterized as conditional freedom versus 1n-
earceration, to be of such a nature that due process
attaches to the conditional release decision.
The Court affirmed the district court’s holding that as a
matter of due process an inmate is entitled to a decision on
* In so doing, the Cireuit Court rejected petitioners’ argument
that the poh my te mooted since all respondents had been released
prior to the certification of the class by the District Court.
8
his conditional release application within 60 to 90 days of
his receipt at Rikers Island. The Court also agreed with
the district court’s determination that applications must be
processed in order of eligibility. Recognizing, however, the
problems inherent in such a holding, the Cireuit Court
added that the District Court did not really mean that
strict order of eligibility had to be maintained since the
state authorities are in the best position to deal with prob-
lems as they come up. “This Court simply cannot predict
all the difficulties yet to be encountered and shape its order
accordingly .. .”.
Finally, the Circuit Court stated that it had no difficulty
with the district court requirement of a statement of rea-
sons and facts [notwithstanding testimony that reasons
were already being supplied].
Judge Van Graafeiland, in a vigorous dissent, disagreed
with so much of the majority decision that required ‘‘the
State to institute procedures to ‘insure’ that conditional
release applications be processed in crder of eligibility and
mandated that they be processed within 60-90 days of the
arrival of an inmate on Rikers Island’’. He observed that
the district judge had elevated the petty to constituticnal
status, creating another procedural morass for already be-
leaguered prison officials and created further inequities in
the process. Judge Van Graafeiland pointed out that a
plan is not fair which requires a prompt applicant to sit
by and wait until the application of a less diligent inmate,
albeit of earlier eligibility, is passed upon by the Board.
A procedure is also not fair where an untroublesome ap-
plication may not be passed upon until a more difficult one
is completed.
Insofar as the majority construed the district court
opinion as if it did not contain the word insure that ap-
plications be processed in strict order of eligibility, Judge
Van Graafeiland observed that this ‘‘merely substitutes
one unfortunate consequence of unnecessary federal inter-
ae ee ae
ference for another’’ and reiterated his concern about ex-
cessive involvement by the federal courts in the operation
of state penal institutions.
ARGUMENT
This petition presents substantial questions of law
requiring reversal by this Court of the decision below.
A. Conditional Release is not an interest to which due
process applies.
In an effort to meddle into matters particularly within
the concern of the New York State Department of Correc-
tions, Division of Parole, the Circuit Court has held that
conditional release is an interest to which due process
attaches. However, its analysis of an inmate’s right to
conditional release under New York Law is plainly erro-
neous. There is no right under the constitution to condi-
tional release any more than to parole. The prisoner’s
only right as respects imprisonment is not to be confined
beyond the sentence imposed by the court. Marshall v.
United States, 414 U.S. 417 (1974).
For the same reasons that this Court indicated when it
took jurisdiction of the appeal in United States ex rel.
Johnson v. Chairman, New York State Board of Parole,
500 F.2d 928 (2d Cir.) vacated and remanded as moot sub
nom. Regan v. Johnson, 419 U.S. 1015 (1974), the rationale
of the majority here is unfounded. The majority itself
notes that the circuits are in conflict (App. 9a, fn.). Yet
the cited case is referred to all through the majority
opinion as if it were the law.
Citing New York Correction Law § 827 to buttress its
view, the Circuit Court majority states that New York
Penal Law §70.40(2) provides inmates a ‘‘justifiable ex-
pectation rooted in state law’’ that they will be condi-
tionally released if they meet Parole Board standards.
10
This is incorrect. Section 827 justifies no such expectation.
On the contrary, Section 827 makes clear as a bell that
conditional release is in the sole discretion of the New York
Board of Parole. Section 827(1) provides ‘‘[C]onditional
release of persons eligible for such release under definite
sentences of imprisonment . . . shall be within the discre-
tion of the board of parole . . .’’. This discretion is not
subject to Court review and the Board is not required to
release individuals on the basis of any particular state of
facts. Matter of Briguglio v. New York State Bd. of
Parole, 24 NY 2d 21 (1969).
Although quoting authority that it is the nature of an
interest sought to be protected that determines whether due
process attaches, the Court shows itself completely un-
aware of what this authority means since it goes on to
conclude, ‘‘[w]hether labelled ‘conditional release’ or
‘parole’ the nature of the interest at stake in this case is the
same: conditional freedom versus incarceration.”
But that is not the nature of the interest, it is the weight,
i.e., the importance of that interest to a particular in-
dividual. The nature of an interest for due process pur-
poses can only be determined by reference to state law.
New York gives an incarcerated individual no statutory
right to be a parolee or a conditional releasee. As in
Montanye v. Haymes, 427 U.S. 236, 243 (1976), “The statute
imposes no conditions on the discretionary power . . .”
of the Parole Board. In short, due process does not at-
tach to the conditional release decision.
at" [G]iven a valid conviction the criminal de-
fendant has been constitutionally deprived of his liberty
to the extent that the State may confine him and sub-
ject him to the rules of its prison system so long as
i hl
NODE ON Oude bears Pees 5 core
11
the conditions of confinement do not otherwise violate
the Constitution.’’ Meachum v. Fano, 427 U.S. 215,
244 (1976).
The contrary holding of the Cireuit Court is in conflict
with the case law of this Court. Moreover, as the majority
opinion concedes, Circuits other than the Second Circuit are
continuing to misapply the teaching of Meacham and
Montamye to the parole process, resulting in a conflict in
the Circuits on this issue. Compare, for example, Brown
v. Lumdgren, 528 F.2d 1050 (5th Cir. 1976), cert. denied, 45
USLW 3329 (U.S. Nov. 2, 1976), with Bradford v. Weim-
stein, 519 F.2d 728 (4th Cir. 1975), cert. granted, 421 U.S.
998 (1975), vacated and remanded as moot, 44 USLW 3372
(U.S. Dee. 23, 1975).
This case accordingly raises important questions for the
administration of criminal justice which should be reviewed
by this Court as the majority opinion appears to acknowl-
edge.
B. The timing of a conditional release decision can only
be determined by reference to state law.
Having determined that due process attaches to the
conditional release decision, the Circuit Court affirmed the
district court’s holding that due process requires that ap-
plications be processed within 60 to 90 days of an inmate’s
arrival at Rikers Island despite the acknowledgment in
the district court opinion that this is contrary to the New
York statute (App. 28a-29a).
The courts below imported the notion that the application
must be considered within a time limitation and in a par-
ticular order as a matter of constitutional due process.
However the failure to consider such an application at a
given time or in a given order cannot be held to con-
stitute a deprivation of due process in a constitutional
sense. The timing of conditional release can never be
12
determined by due process but must be established by State
law itself. New York has simply legislated that after sixty
days, the Parole Board may release an inmate from county
or regional detention. Under the statute it is clear that the
Board and the staff under its supervision do not have to
act on any application at any particular time or in any
particular order. The New York legislature contemplated
no such conditions. It thus provided that jail time would
be credited toward service of the sixty days necessary for
consideration for conditional release. Under this statutory
scheme, it would be impossible to process an application by
the sixtieth day or in order of eligibility, since until sen-
tencing the Board does not know if an individual is eligible
for the program, let alone desires to participate in it. Also,
in not mandating a decision by a particular date or in a set
order the legislature recognized the difficulties in obtaining
the necessary information to process some applications.
By affirming the district court order that applications be
processed within 60 to 90 days of an inmate’s arrival at
Rikers Island and in order of eligibility, the Circuit Court
substituted itself for the State’s legislature and, as we
have pointed out, intruded on matters particularly within
the concern of the Board, placing the Federal Court astride
the day to day operations of the prisons. ‘‘[F]Jederal
courts do not sit to supervise state prisons, the administra-
tion of which is of acute interest to the States’. Meachwm
v. Fano, swpra, 229.
Finally, the petitioners dispute that due process con-
stitutionally requires that applicants be given a statement
of reasons and the facts underlying such reasons when
conditional release is denied or deferred. The defendants
were and are supplying written reasons for denial or
deferral to applicants. This requirement by the Court is
a consequence of its view of the treatment of parole ap-
aie
Oe ee ee, eee
13
plications as indicated by U.S. ex rel. Johnson v. Chairman,
New York State Board of Parole, supra. The importation
of such a constitutional requirement is without any basis
and should also be overturned.
CONCLUSION
The Court should note probable jurisdiction and
summarily reverse the decision below or, in the alter-
native, should grant plenary consideration to the in-
stant appeal.
Dated: New York, New York
May 6, 1977
Respectfully submitted,
Louis J. LEFKOwITz
Attorney General of the
State of New York
Attorney for Petitioners
Samve. A. HrrsHowITz
First Assistant Attorney General
ARLENE R. SILVERMAN
Assistant Attorney General
of Counsel
la
APPENDIX A
Opinion.
UNITED STATES COURT OF APPEALS
For THE Seconp Circuit
No. 425—September Term, 1976.
(Argued October 29, 1976 Decided February 7, 1977.)
Docket No. 76-2100
’%
a
Gustave Zurak, Wrmu1Am McAu.irre, SaLvaToreE ZAMBUTO,
Wiuuie Mack, Benszamin Santiaco, Martrn Hapern, on
behalf of themselves and all others similarly situated,
Plaintiff s-Appellees,
— \V-—
Pau. J. Recan, Benzamin Warp, Raymonp Dorsey, WIL-
LIAM BarNWELL, Frank CaLpweE.L, Maurice Dean, Mar-
TIN GriuBRipce, Frank Gross, Apa Jones, Mitron Lewis,
Joun Marrvucci, Louis Pierro, Jonn Quinn, and ANGEL
Luis Rrvera, Commissioner of New York State Board of
Parole, individually and in their official capacities,
Defendants-A ppellants.
ay.
od
Before:
LumsBarp and Van GraaFEILAND, Circuit Judges,
and Bonsat, District Judge.*
+,
a
Appeal from an injunction issued in the Southern Dis-
trict in which Judge Carter found that due process
requires that defendants-appellants: (1) process applica-
* Of the Southern District of New York, sitting by designation.
2a
tions for conditional release from the New York City Cor-
rectional Institution for Men, Rikers Island in order of
eligibility and within 60-90 days of an inmate’s arrival at
Rikers Island; (2) provide written statements of reasons
and facts to inmates whose applications for conditional
release are denied or deferred; and (3) accord each appli-
cant an opportunity for a personal appearance before a
commissioner of the Board of Parole.
Affirmed except as it requires appellants to provide a
personal appearance.
+.
A
Gorvon J. Jounson, Esq., The Legal Aid So-
ciety, New York, N.Y. (Natalie J. Kaplan,
William E. Hellerstein and Donald H.
Zuckerman, Attorneys, The Legal Aid So-
ciety, New York, N.Y., on the brief), for
Appellees.
ARLENE R. Sriverman, Assistant Attorney Gen-
eral, State of New York (Louis J. Lefko-
witz, Attorney General of the State of New
York and Samuel A. Hirshowitz, First As-
sistant Attorney General, State of New
York, on the brief), for Appellants.
La
~~
Lumsarp, Circuit Judge:
Defendants-appellants, members of the New York State
Board of Parole (hereinafter “the Board”) and state cor-
rectional services officials, appeal from an injunction is-
sued in the Southern District, dated July 30, 1976, upon
findings by Judge Carter that due process requires that
defendants: (1) institute procedures to ensure that appli-
cations for conditional release from the New York City
Correctional Institution for Men, Rikers Island, are proc-
3a
essed in order of eligibility and within 60-90 days of the
applicant’s arrival at Rikers Island; (2) provide each in-
mate whose application for conditional release is denied
or deferred a written statement of the reasons for the
Board’s action together with the facts relied upon in reach-
ing the decision; and (3) accord to each applicant the op-
portunity for a personal appearance before the Board
commissioner or commissioners responsible for determin-
ing the disposition of the application. Appellants contend
that the inmates’ interest in conditional release is not suffi-
cient to make their claims cognizable under the Due Proc-
ess Clause; further, they argue that in any event due
process does not require the procedures ordered by the
district court. We reverse so much of the district court’s
injunction which mandates an opportunity for personal ap-
pearance before a member of the Board and affirm the re-
mainder.
Under New York Penal Law § 70.40(2)? individuals, such
as were the appellees, serving one or more definite sen-
tences of imprisonment with an aggregate term in excess
1 Section 70.40(2) provides as follows:
2. Definite sentence. A person who is serving one or more
than one definite sentence of imprisonment with a term or
aggregate term in excess of ninety days may, if he so requests,
be conditionally released from the institution in which he is
confined at any time after service of sixty days of that term,
exclusive of credits allowed under subdivisions four and six
of section 70.30. In computing service of sixty days, the
credit allowed for jail time under subdivision three of sec-
tion 70.30 shall be caleulated as time served. Conditional
release from such institution shall be in the discretion of the
parole board, and shall be upon such conditions as may be
imposed by that board, in accordance with the provisions of
the correction law.
Conditional release shall interrupt service of the sentence
or sentences and the remaining portion of the term or aggre-
te term shall be held in abeyance. Every person so re-
eased shall be under the supervision of the parole board for
a period of one year. Compliance with the conditions of
release during the period of supervision shall satisfy the por-
tion of the term or aggregate term that has been held in
abeyance.
4a
of 90 days may request conditional release from custody at
any time after the service of 60 days; release is at the dis-
cretion of the Board and is probationary for one year.
“Definite sentences’’ under New York law never exceed one
year, New York Penal Law §§ 70.00(4), 70.15(1), although
a person sentenced to two or more definite sentences may
be required to serve an aggregate term of up to two years.”
New York Penal Law §70.30(2)(b). Definite sentences
may be imposed for certain misdemeanors and certain low-
grade felonies. See New York Penal Law $$ 70.15, 70.00(4).
In contrast, sentences of more than one year are indetermi-
nate and may be imposed only for crimes classified as
felonies. New York law requires that the term of an inde-
terminate sentence be at least three years and provides
that it may be for as long as life for certain crimes. See
New York Penal Law § 70.00. An individual sentenced to
an indeterminate term is eligible for parole after having
served a minimum period of imprisonment (as fixed by the
sentencing court, or, in certain cases, the Board), which
must be at least one year and may be as long as 25 years.
New York Penal Law §70.00(3). Definite sentences are
served in a county or regional correctional institution;
indeterminate sentences must be served in a state prison.
New York Penal Law $70.20. Under New York Correc-
tional Law 4 214 applicants for parole, but not for condi-
tional release, are entitled to a personal appearance before
a three-member panel of the Board and a written state-
ment of reasons and facts relied upon if parole is denied.
Appellees argued before the district court that the lack of
such procedures in the case of conditional release applica-
*The term of a definite sentence is credited with any tim
spent in custody prior to the commencement of the ieteees ra
a result of the charge that culminated in the sentence. The credit
is referred to as “jail time.” New York Penal Law § 70.30(3).
> addition, the — of a - sentence may be significantly
0 e use 0 tim i
owe tow § Tote, se EY good e credits. See New York
5a
tions violates both due process and equal protection and
sought declaratory and injunctive relief pursuant to 42
U.S.C. § 1983.
Plaintiffs were all inmates serving definite sentences of
more than 90 days at Rikers Island.’ In its unreported de-
cision of July 30, 1976, the district court granted plaintiffs’
motion to proceed as a class pursuant to F.R.C.P. 23(b)
(2), which was unopposed; the class consists of all inmates
on Rikers Island who are or will become eligible for con-
ditional release.‘
The operation of the conditional release program was
described at trial. Raymond Dorsey, the official supervis-
ing the Rikers Island conditional release program, testi-
fied that he and his staff attempt to explain the program
to all eligible inmates within the first week of their arrival.
Parole officers then interview those who wish to apply.
There are no written guidelines on how these interviews
are to be conducted. There are no established practices
determining the order in which arriving applicants are to
be interviewed; rather, the district court found that the
interviews are conducted on a randum basis without regard
*The named plaintiffs have all been released from custody.
See discussion in text, infra.
* The district court record shows that on October 26, 1976 the
district court granted plaintiffs-appellees’ post-trial motion to
amend the definition of the class to include inmates serviced by
the Rikers Island parole staff who are transferred from Rikers
Island to participate in certain programs in other parts of New
York City. This amendment, which increases the size of the class
by approximately 100 to 200 inmates, apparently went unopposed;
accordingly, this court’s opinion should be taken to refer to the
class as amen
’ The district court found the operation of the program to be
“chaotic.” For example, witness Maitland Jones testified that he
was sentenced to a one year term on April 18, 1975 and arrived
at Rikers Island on April 23. Jones stated that although he had
applied for conditional release shortly after his arrival, he had not
t received an interview as of the date of his testimony, Decem-
a 22, 1975. Appellees Zurak, Zambuto and Mack testified that
a period of three to four months passed before they learned their
6a
to the amount of jail time served. During the interview
the parole officer asks the inmate certain questions and
takes down any information the inmate wishes to provide;
the inmate is also advised that letters in his behalf or job
offers may be sent to the parole officer to be included in
the inmate’s file.
Based on the interview and the inmate’s file the parole
officer prepares a written report, which is placed in the
inmate’s file. The report includes a personal and social
history of the inmate based upon the interview and infor-
mation contained in available presentence reports. The
parole officer makes no independent investigation and al-
though he simetimes makes a recommendation, the condi-
tional release decision is ordinarily left entirely to the
discretion of a Board commissioner. The district court
found that under existing conditions, it customarily takes
60 to 90 days for parole officers to submit their reports to
the Board.
The commissioner’s decision is based entirely on the
information contained in the inmate’s file, including the
parole officer’s report and the presentence report; the com-
missioner neither interviews the inmate nor consults with
the parole officer who conducted the interview. Inmates are
not allowed to see their files. There are no written criteria
applications had been denied. Appellee Santiago testified that
although he arrived at Rikers Island on June 30, 1975, after re-
peated efforts to contact a parole officer he was unable to obtain
an interview until November 16; as of December 22, 1975 San-
tiago, who was serving a one year term, had yet to hear from the
Board. Appellee Halpern testified that he arrived at Rikers
Island on April 30, 1975 and immediately applied for conditional
release. Halpern stated that he was not interviewed until the end
of August. Ilalpern’s release was deferred until November and
granted December 1, 1975; however, Halpern stated that he re-
fused conditional release because he had only 75 days left in his
term and he preferred to serve this time rather than face a year-
long probation.
*New York Penal Law § 70.40(2) provides that jail time is to
be treated as time served in computing the 60-day period. See
notes 1 and 2, supra.
7a
upon which the commissioners base their decisions, al-
though the testimony at trial indicated that they are pri-
marily influenced by the applicant’s prior record, the nature
of his offense, the applicant’s institutional adjustment and
his future plans.’ In September, 1975 the Board began to
provide written statements of reasons and facts to inmates
whose applications had been denied; prior to that time the
Board’s practice was merely to deny or defer an applica-
tion without any statement. An inmate whose application
has been denied may apply to the chairman of the Board
for reconsideration.*
Before proceeding to the merits, we treat an initial issue
regarding this court’s jurisdiction. At oral argument ap-
pellants pointed out that by some time after the evidentiary
hearing but prior to the district court’s certification of the
class in its order of July 30, 1976, all of the named plaintiffs
had been released; accordingly, appellants now contend
that the controversy is moot. We reject this contention.
Although a litigant must ordinarily be a member of the
class that he seeks to represent at the time the class is
*In Haymes v. Regan, 525 F2d 540 (2d Cir. 1975), we held
that, at least where meaningful statements of reasons and facts
are provided, it is not necessary for the Board to promulgate and
disclose formal rules ing release criteria for parole. It
appears that under New York law, application for parole and con-
ditional release are evaluated under the same standards. See New
York Correction Law §§ 213, 827; New York Penal Law § 70.40
(2). See also United States ex rel. Johnson v. Chairman, N.Y.
State Board of Parole, 500 F.2d 925, 930 n.4 (2d Cir.), vacated
and remanded as moot sub nom. Regan v. Johnson, 419 U.S. 1015
(1974).
* Lawrence Kavanaugh, Assistant Director of Field Operations
of the Department of Corrections, indicated in his testimony that
the Board’s statements of reasons and facts (given since Septem-
ber, 1975) are prepared in accordance with New York Corrections
Law §214. He also stated that an inmate whose application has
been denied may apply to the Chairman of the P. Board for
reconsideration and may ee, in 4 letter ms — oo
nal denial should be reconsidered. However, the record is silen
on whether this opportunity for reconsideration is made generally
known to the inmates.
8a
certified, see Sosna v. Iowa, 419 U.S. 393, 402-03 (1975),
this case is a “suitable exception” to that requirement.
Gerstein v. Pugh, 420 U.S. 103, 110-11 n.11 (1975), Sosna
v. Iowa, supra, 419 U.S. at 402 n.11. Because of the rela-
tively short periods of incarceration involved and the pos-
sibility of conditional release there was a significant possi-
bility that any single named plaintiff would be released
prior to certification, although this possibility was less
substantial than it was in Gerstein. As in Gerstein, how-
ever, the constant existence of a class of persons suffering
the alleged deprivation is certain and the court may safely
assume that counsel has other clients with a continuing
live interest in the issues (appellees are represented by
the Parole Revocation Defense Unit of the Legal Aid
Society). See Gerstein v. Pugh, supra, 420 U.S. at 110-
11 n.11; Frost v. Weinberger, 515 F.2d 57, 62-65 (2d Cir.
1975); McGill v. Parsons, 532 F.2d 484, 488-89 (5th Cir.
1976) ; Inmates of San Diego County Jail in Cell Block 3B
v. Duffy, 528 F.2d 954, 956-57 (9th Cir. 1975). Further,
despite the admonition of F.R.C.P. 23(¢)(1) that the court
shall make the class action determination “[a]s soon as
practicable after the commencement of an action,” for
reasons which are not apparent, almost a year elapsed
between appellees’ uncontested motion for class action
status and the district court’s certification. Appellants
make no contention on appeal that the certification was
improper nor is there any question that the class was
properly identified by the district court. See Indianapolis
School Comm’rs v. Jacobs, 420 U.S. 128 (1975) (per
curiam). It follows that this case is not moot because the
controversy as to the named plaintiffs has been resolved.
Because of the relatively short periods of incarceration
involved and the possiblity of conditional release, the
alleged harm can hardly be redressed while any possible
plaintiff is still an inmate. See Gerstein v. Pugh, supra,
420 U.S. at 110 n.11; Sosna v. Iowa, supra, 419 U.S. at 401-
02. Furthermore, it is clear that there is a sufficient ad-
9a
versary relationship here to assure proper presentation
of the issues. Franks v. Bowman Transportation Co., 424
U.S. 747, 752-57 (1976).
Turning to the merits, we must first inquire whether a
prisoner’s interest in conditional release is sufficient to
warrant due process protection. Although the Supreme
Court has rejected the notion that every state action having
adverse consequences for an inmate automatically raises
a question of due process, see, e.g., Meachum v. Fano, 44
U.S.L.W. 5053 (U.S. June 25, 1976); Moody v. Daggett,
45 U.S.L.W. 4017, 4020 n.9 (U.S. Nov. 15, 1976), it has left
open the issue of whether, and to what extent, parole re-
lease procedures may be held to activate due process rights.
See, e.g., Moody v. Daggett, supra, 45 U.S.L.W. at 4020;
Scott v. Kentucky Parcle Board, 45 U.S.L.W. 4009 (U.S.
Nov. 2, 1976). As the district court noted, however, it is
settled in this circuit that a prisoner’s interest in prospec-
tive parole or ‘‘conditional entitlement’’ is entitled to due
process protection: “Whether the immediate issue be re-
lease or revocation the stakes are the same: conditional
freedom versus incarceration.’’ United States ex rel. John-
son v. Chairman, New York State Board of Parole, 500
F.2d 925, 928 (2d Cir.), vacated and remanded as moot sub
nom. Regan v. Johnson, 419 U.S. 1015 (1974). See Wolff
v. McDonnell, 418 U.S. 539 (1974); Holup v. Gates,
F.2d ——, slip op. at 5881 (2d Cir. Oct. 20, 1976) ; Haymes
v. Regan, 529 F.2d 540 (2d Cir. 1975).°
New York Penal Law §70.40(2) provides inmates a
‘justifiable expectation rooted in state law,” Montanye v.
Haymes, 44 U.S.L.W. 5051, 5052 (U.S. June 25, 1976), that
they will be conditionally released if they meet Board
standards. See New York Correction Law § 827. Although
the potential deprivation involved in an administrative
decision is an appropriate factor to consider in determin-
* As noted by Justice Stevens in his dissent in Scott v. Ken-
tucky Parole Board, supra, the circuits are in conflict on this issue.
See 45 U.S.L.W. at 4011 n.1, and cases cited therein; Mower v.
Britton, 504 F.2d 396, 397 (10th Cir. 1975) (dictum).
10a
ing the amount of process due, see Mathews v. Eldridge,
424 U.S. 319, 335, 341 (1976), it is the nature of the in-
terest sought to be protected from official action that de-
termines whether due process attaches. See Meachum v.
Fano, supra, 44 U.S.L.W. at 5056. Whether labelled ‘‘con-
ditional release’’ or ‘‘parole” the nature of the interest at
stake in this case is the same: conditional freedom versus
incarceration. See United States ex rel. Johnson v. Chair-
man, New York State Board of Parole, supra, 500 F.2d
at 928; ef. Wolff v. McDonnell, supra, 418 U.S. at 556-57.
Having determined that due process attaches, the ques-
tion remains of how much process is due. In this inquiry
we are guided by the Supreme Court’s observation that
identification of the specific dictates of due process gen-
erally requires consideration of three factors: 1) the pri-
vate interest involved; 2) the risk of an erroneous dep-
rivation of that interest through the procedures used, and
the probable value of additional or substitute procedural
safeguards; and 3) the public interest in maintaining exist-
ing procedures, including the function involved and the
fiscal and administrative burdens entailed in additional or
substitute procedures. See Mathews v. Eldridge, supra, 424
U.S. at 334-35." ,
Turning first to the inmate’s liberty interest we note
that this court and others have distinguished between the
inmate’s interest in continued conditional freedom (in-
volved in the parole revocation decision) and his anticipa-
tion or hope of freedom (involved in the parole release
decision), see Morrissey v. Brewer, 408 U.S. 471, 482 n.8
(1972); Gates v. Holup, supra, slip op. at 5885; Childs v.
United States Board of Parole, 511 F.2d 1270, 1286 (D.C.
%°In Haymes v. Regan, supra, 525 F.2d at 543, this court
adopted an almost identical three-pronged balance between “the
inmate’s interest in the proceedings . . . the ‘need for and useful-
ness of the particular safeguard in given circumstances’... (and)
any direct burden which might be imposed on the Board” by this
requirement, quoting Frost v. Weinberger, supra, 515 F.2d at 66,
quoted in Holup v. Gates, supra, slip op. at 5886.
lla
Cir. 1974) (Tamm, J., concurring); in the latter instance
the broad discretion afforded the Board necessarily lessens
the required content of due process. See Haymes v. Regan,
supra, 525 F.2d at 543. We think a similar distinction
can be drawn between the inmate’s interest in conditional
release and parole. As the state points out, applications
for conditional release are less likely to be granted than
are applications for parole; accordingly, the conditional
release applicant’s expectation of liberty is less justified
and his interest is correspondingly less substantial. See
United States ex rel. Johnson v. Chairman, New York State
Board of Parole, supra, 500 F.2d at 928.% Further, because
the conditional release applicant’s sentence will almost al-
ways be shorter than that of tke parole applicant, he will
ordinarily have less at stake.” Thus, although the inmate
In Childs v. United States Board of Parole, supra, 511 F.2d
at 1282, in a related context the court stated:
“There is a substantial difference on the due process issue
between a finding of serious disciplinary action leading to loss
of good-time credits, involved in Wolff, and denial of an ap-
plication for parole. The broad discretion of the Board in
the latter instance lessens the content of require due proc-
ess ’ ”
22 In Johnson the court relied, in part, upon 1972 Board statis-
ties showing that 75.4% (4,412) of the inmates applying for
parole were successful; these statistics strengthened the court's
conclusion that the inmates had a cognizable liberty interest in
parole. Board statistics for 1974, however, reveal that only 29%
(746) of the applicants seeking conditional release were successful.
18 See notes 1, 2 and 3, and accompanying text, supra. Ap-
pellees point out that the consequences of denial of conditional
release to an inmate serving the maximum definite sentence (2
years, release possible after 60 days) and the consequences of
denidi ot pardre *w wuinmata senving, the minimum indeterminate
sentence (3 years, release possible after 1 year) almost overlap
(22 months versus 24 months additional incarceration). However,
since the court has only been given hypotheticals, and not facts,
it ean only presume what seems obvious: that the great majority
of cases will not fall at the extremes presented in appellees’ hypo-
theticals and thus in the majority of cases the consequences of an
adverse decision of the Board will be far greater for the parole
applicant than for the applicant for conditional release.
12a
seeking conditional release has a significant interest in the
Board’s decision, we think his interest less substantial than
that involved in parole revocation and, perhaps, release.
Accordingly, although we reject the state’s contention that
these considerations negate the existence of an interest
sufficient to warrant due process protection, we adopt the
position that the demands of due process should be less
stringent. Compare Mathews v. Eldridge, supra, 424 U.S.
at 341-43.
The district court found the administration of the condi-
tional release program to be chaotic. Obviously, the pro-
gram is almost meaningless to an inmate if he is unable
to obtain even a preliminary interview after six months
at Rikers Island,“ and such administration amounts to an
arbitrary denial of the statutory entitlement. ‘The funda-
mental requirement of due process is the opportunity to
be heard ‘at a meaningful time and in a meaningful man-
ner.’” Mathews v. Eldridge, supra, 424 U.S. at 333, quot-
ing Armstrong v. Manzo, 380 U.S. 545, 552 (1965); see
Moody v. Daggett, supra, 45 U.S.L.W. at 4020-22 (Stevens,
J., dissenting).** Since the testimony at trial indicates that
applications are currently processed within 60-90 days of
arrival at Rikers Island, the district court’s order requir-
ing that applications for conditional release be processed
in order of eligibility and within 60-90 days of an inmate’s
arrival imposes little, if any additional administrative or
fiscal burden. However, although we agree in principle
with the district court’s order, as a practical matter it
may be impossible for the state authorities to process ap-
plications in strict order of eligibility and still maintain
a fair and rational conditional release program.” Thus,
14 See note 5, supra.
** The district court also correctly noted that the state legis-
lature must have intended reasonably prompt action on condi-
tional release applications.
*®TIn order to clarify some confusion evident at oral argument
we note that by “eligibility” the district court obviously aaa
13a
for example, in processing applications the state author-
ities may wish to take into account the fact that an ap-
plication has been filed in a tardy fashion. Because we
view the court’s order as an effort to deal with the exigen-
cies at hand and not an attempt unnecessarily to tie the
hands of the state authorities, we understand the court’s
mandate to require the processing of applications in strict
order of eligibility only to the extent that this is practical
and fair to the applicants. The state authorities thus re-
main free to fashion their own procedures to deal with ad-
ministrative problems that may arise in the application of
the program as long as applications are processed in a
timely and rational fashion.
We have no difficulty with the district court’s require-
ment of a statement of reasons and facts. The funda-
statutory eligibility. An inmate becomes “eligible” for release if
he is serving one or more definite sentences with an aggregate term
of at least 90 days and has served 60 days, including jail time as
provided by statute. See notes 1 and 2, supra. It should be
obvious that an inmate who may become eligible for conditional
release and has served 20 days should ordinarily have his applica-
tion processed before that of an inmate who has served only 10
days. Similarly, inmates who arrive with jail time should ordi-
narily be processed before inmates who arrive without such time;
in any event, the staff has up to 90 days from the point at which
an inmate arrives at Rikers Island within which to process his
application (assuming the inmate falls within § 70.40(2) and de-
sires to participate). While we appreciate Judge Van Graafei-
land’s concern with excessive involvement of the federal courts
in state prison administration, any attempt to remedy uncon-
stitutional action on the part of state prison officials must nec-
essarily involve some “interference with the routine operation
of a state penal system.” We merely hold that the district court
properly exercised its traditionally broad equitable discretion in
shaping an order to eliminate the arbitrariness inherent in a sys-
tem where applications are processed “at random.” See Hecht Co.
vy. Bowles, 321 U.S. 321, 329 (1944). Although problems may yet
arise in the application of the conditional release program (such
as how to treat tardy applications), the state authorities are in
the best position to deal with such problems as they come up.
This court simply cannot predict all the difficulties yet to be en-
countered and shape its order accordingly; to do so would unneces-
sarily strait jacket the state authorities.
l4a
mental nature of such statements in parole release deci-
sions is discussed by Judge Mansfield in United States ex
rel. Johnson v. Chairman, New York State Board of Pa-
role, supra, and was noted again in Haymes v. Regan,
supra, 525 F.2d at 543-44, and Holup v. Gates, supra, slip
op. at 5886-87. It is sufficient here to note that the same
considerations apply to conditional release decisions and to
emphasize that, particularly where an administrative body
is vested with such large discretion, a requirement of a
statement of reasons and facts is necessary to protect
against arbitrary and capricious decisions or actions
grounded upon impermissible or erroneous considerations.
See United States ex rel. Johnson v. Chairman, New York
State Parole Board, supra, 500 F.2d at 929. Such state-
ments must provide the inmate with the grounds for a de-
cision to deny or defer his application for conditional
release, and the essential facts upon which the Board
relied. See Haymes vy. Regan, supra, 525 F.2d at 544. As
the Board alleges that it has been voluntarily complying
with this requirement since September, 1975, the court’s
order should constitute no additional burden."
Given the foregoing procedural safeguards, and keeping
in mind the interest at stake and the additional administra-
tive and fiscal burdens involved, we conclude that a
personal hearing before a member of the Board is not
constitutionally mandated. Unlike a parole revocation pro-
17 Of course, voluntary compliance does not make a controversy
moot where, as here, there is a possibility of recurrence of the
wrongful conduct. Allee v. Medrano, 416 U.S. 802, 810-11 (1974);
United States v. W.T. Grant Co., 345 U.S. 629, 632-33 (1953). We
also reject appellants’ suggestion that this portion of the court’s
holding was unnecessary because New York Correction Law § 214
(6) provides for written statements of reasons and facts. Section
214 by its terms applies only to parole decisions. Moreover, we
fail to see how appellants can rely on that part of section 214(6)
which requires written statements and then ignore the language
in the same section indicating that such statements are to be pre-
ceeded by a hearing before a three-member panel of the Board—a
procedure reserved for parole decisions.
15a
ceeding, the procedures used in the conditional release
program are not adversary in nature; rather, both the
Board and the inmate have an interest in obtaining the in-
mate’s release. See Gagnon v. Scarpelli, 411 U.S. 778, 784-
85 (1973) ; Hyser v. Reed, 318 F.2d 225, 237, 242 (D.C. Cir.
1963) (en bane), cert. denied, sub nom. Thompson v.
United States Board of Parole, 375 U.S. 957 (1963). Un-
like parole revocation, the conditional release decision will
rarely, if ever, involve complex factual disputes in which
the inmate may have to prove himself innocent of criminal
behavior or show factors in mitigation. See M orrissey V.
Brewer, supra, 408 U.S. at 488; Gagnon v. Scarpelli, supra,
411 U.S. at 786-88; Carson v. Taylor, —— F.2d ary slip
op. at 5075, 5085 (2d Cir. July 22, 1976). Nor will condi-
ional release decisions involve questions of serious viola-
tions of discipline in maximum security institutions as in
Wolff v. McDonnell, supra, 418 U.S. at 558-63. Under the
district court’s order, applications for conditional release
must be processed within 90 days of an inmate’s arrival at
Rikers Island. The Board’s decision is primarily influ-
enced by the applicant’s prior record, the nature of his
offense, his institutional adjustment, and his future plans.
Thus, given the short span of time between arrival at Rik-
ers Island and the release decision and the fact that the
parole officers make no independent investigations, the in-
formation upon which the Board acts must necessarily be
obtained in large part from available presentence reports
and the inmate interviews. Under New York Criminal Pro-
cedure Law § 390.50 defendants are given access to their
presentence reports prior to sentencing and thus have an
opportunity to learn of and correct any inaccuracies. Ap-
pellees do not claim that there is any motive for, or evi-
dence of, fabrication in the parole officers’ relation of the
inmate interviews. Compare Carson v. Taylor, supra, slip
op. at 5085. Thus, the risk of the Board basing its decision
on erroneous information is relatively minimal and the
record simply does not support allegations that misin-
16a
formed decisions have been prevalent in the past. Compare
Holup v. Gates, supra, slip op. at 5887. The requirement of
a statement of reasons and facts should serve to protect
the inmate from arbitrary decisions, or those based on
impermissible grounds, see Haymes v. Regan, supra, 525
F.2d at 544; United States ex rel. Johnson v. Chairman,
New York State Board of Parole, supra, 500 F.2d at 929;
further, if a decision has no basis in an inmate’s file,
judicial review should be available. Holup v. Gates, supra,
slip op. at 5888.
Although a personal interview might provide the inmate
with a better opportunity to present his case to the Board,
we think that, under all the circumstances, the inmate has
sufficient opportunity to present the relevant facts through
the parole officer and by his own submission of any in-
formation helpful to his cause.
We cannot ignore the significant additional financial and
administrative burdens necessarily involved in providing
in-person hearings to all conditional release applicants. In
1974 there were some 2578 applications for conditional
release by inmates at 62 local penitentiaries and jails
throughout the state; 1200 of these applications were made
by inmates at Rikers Island. The Board, which currently
consists of 11 members, conducts about 15,000 hearings
per year in panels of three. Even if the impact of a deci-
sion of this court requiring conditional release hearings
could be limited to the class of inmates at Rikers Island,
“(w]e only need say that experience with the constitution-
alizing of government procedure suggests that the ulti-
mate additional cost in terms of money and administrative
burden would not be insubstantial.” Matthews v. Eldridge,
supra, 424 U.S. at 347. Weighing all of these factors, we
conclude that due process does not require that a personal
appearance before a member of the Board be given to each
conditional release applicant.
Finally, we find no merit in appellees’ claim that the
difference in procedures between inmates seeking condi-
17a
tional release and inmates seeking parole violates the Equal
Protection Clause. See New York Correction Law § 214.
Equal protection does not require that all procedural pro-
tections be applied in the same fashion without regard to
the length of internment or the nature of the crime in-
volved. See, e.g., Marshall v. United States, 414 U.S. 417,
422 (1974); McGinnis v. Royster, 410 U.S. 263, 269-70
(1973) ; Baldwin v. New York, 399 U.S. 66 (1970). Compare
Bazstrom v. Herold, 383 U.S. 107, 110-11 (1966).
Accordingly, we affirm the order of the court except as
it requires appellants to provide a personal appearance
before a member of the Board to applicants for conditional
release.
-
_
Van Graareitann, 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 re-
jected applicants for conditional release with written state-
ments 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 (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 pro-
cedures 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 proc-
essed the application of another who will become eligible
18a
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”, Weachum v. Fano, 44 U.S.L.W.
9053, 5057 (U.S. June 25, 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, at 5056, fairness to all should be the criterion. A
olan is not fair which requires a prisoner, who makes
orompt application for release, to sit patiently by until
ifter 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 applica-
tion, 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 interfer-
ence 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 prop-
erty, 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 ex-
tent that this is practical and fair to the applicants.”’ I
submit that this constitutes not an affirmance but a re-
framing of the District Judge’s order and, with all due
respect to my colleagues, merely substitutes one unfortu-
nate 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
19a
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 re-
quires 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 dissent-
ing opinion in Moody v. Daggett, 45 U.S.L.W. at 4020-22,
which my brothers cite with apparent approval, Justice
Stevens, speaking with regard to parole revocation hear-
ings, said at 4022 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.
Asuming that a prisoner has a constitutional right to
have his application for conditional release processed with
reasonable dispatch, this right cannot accrue until his ap-
plication is made. The order, which requires that process-
ing 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 a
20a
right of such constitutional magnitude as to justify de-
lineation 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.
2la
APPENDIX B
Opinion.
UNITED STATES DISTRICT COURT
SovutrHeRN District or New York
75 Civ. 4018
-.
- 4
Gustave Zurak, Wrmu1amM McAu.uirre, SaLvaToRE ZAMBUTO,
Wituir Mack, Bengamin Santiago, Martin HALpern, on
behalf of themselves and all others similarly situated,
Plaintiffs,
against
Pau J. Recan, Benzgamin Warp, Raymonp Dorsey, WiL-
LIAM BaRNWELL, Frank CaLpwe.L, Maurice Dean, Mar-
Trin Gitpripe, Frank Gross, Apa Jones, Mitton Lewis,
Joun Marrucci, Louis Pierro, Jonn Quin, and ANGEL
Luis Rrvera, Commissioner of New York State Board of
Parole, individually and in their official capacities,
Defendants.
APPEARANCES:
THe Lecat Aw Society
Parote Revocation Derense Unit
15 Park Row
New York, New York 10038
by Natalie J. Kaplan, Esq.
Gordon J. Johnson, Esq.
William E. Hellerstein, Esq.
Donald H. Zuckerman, Esq.
Attorneys for Plaintiffs
How. Louis J. Lerxow1tz
Attorney General of the State of New York
Two World Trade Center
New York, New York 10047
by Arlene R. Silverman, Esq.
Assistant Attorney General
Attorney for Defendants
Carter, District Judge
22a
OPINION
I
New York Penal Law Section 70.40(2), applicable only
to individuals serving definite sentences, provides:
New York Penal Law Section 70.40(2)
‘*2. Definite sentence. A person who is serving one
or more than one definite sentence of imprisonment
with a term or aggregate term in excess of ninety days
may, if he so requests, be conditionally released from
the institution in which he is confined at any time after
service of sixty days of that term, exclusive of credits
allowed under subdivisions four and six of section
70.30. In computing service of sixty days, the credit
allowed for jail time under subdivision three of section
70.30 shall be calculated as time served. Conditional
release from such institution shall be in the discretion
of the parole board, and shall be upon such conditions
as may be imposed by that board in accordance with
the provisions of the correction law.
‘*Conditional reiease shall interrupt service of the
sentence or sentences and the remaining portion of the
term or aggregate term shall be held in abeyance.
Every person so released shall be under the supervi-
sion of the parole board for a period of one year.
Compliance with the conditions of release during the
period of supervision shall satisfy the portion of
the term or aggregate term that has been held in
abeyance.”’
Under New York Law definite sentences are those that
do not exceed one year. The maximum penalty for a crime
classified as a misdemeanor is a term of imprisonment of
one year or less, New York Penal Law § 70.15, and persons
guilty of Class D & E felonies may be sentenced to terms
of imprisonment of one year or less, Jd. 4 70.00 (4). These
Zou
are definite sentences. Those of more than one year’s
imprisonment are indeterminate under New York Law,
with a minimum of three years’ imprisonment and a maxi-
mum of life imprisonment, and may be imposed only for
crimes classified as felonies. Jd. § 70.00. A definite sen-
tence is served in a county or regional correctional insti-
tution, while an indeterminate sentence must be served at
a state prison. Jd., § 70.20.
The instant action attacks the constitutionality of the
New York Penal Law as applied and seeks a preliminary
injunction granting plaintiffs and the class they represent
the right to appear in person before the Parole Board
(‘*Board’’) in connection with the Board’s consideration
of their conditional release applications; mandating ex-
pedited consideration of such applications in conformity
with the statutory eligibility date; requiring the Board to
provide written reasons for their determinations denying
conditional release, and requiring that the Board indicate
in writing the information relied upon in reaching their
conclusions.
Plaintiffs are all inmates serving definite sentences of
more than 90 days in the New York City Correctional In-
stitution For Men on Rikers Island and who are now or will
be eligible for conditional release pursuant to New York
Penal Law §70.40 (2), and New York Correction Law
§ 827. They seek class action determination which is un-
opposed.
At the hearing on the matter, Gustave Zurak, Benjamin
Santiago, Salvatore Zambuto, Maitland Jones, Willie Mack
and Martin Halpern—plaintiffs or witnesses for the plain-
tiffs—testified. Their testimony with respect to conditional
release procedures at Rikers Island was generally to the
same effect and may be summarized as follows. Shortly
after arrival on Rikers Island, the witnesses were advised
of the conditional release program, filed an application for
release under the program, and were interviewed by a
parole officer. The witnesses had not been given the op-
24a
portunity to see what was in their files, and after the inter-
view heard nothing further for a long time.
Zurak was notified in March, 1975, some four months
after he filed his application that it had been denied. No
reasons were given. Halpern applied in May, 1975, and in
September was notified that his application had been de-
ferred until November. On December 1, 1975, Halpern was
offered conditional release but turned it down since his
incarceration would end in any event before February,
1976. Santiago applied for conditional release early in
June, 1975, was not interviewed until] November, 1975, and
as of the time of the hearing had heard nothing further.
Zambuto applied for conditional release in April, 1975, and
was notified in July, 1975 that his release had been denied.
Jones had been at Rikers Island since May, 1975, but was
not assigned to the New York City Correctional Institution
For Men until June. He immediately applied for release,
but some six months later had not yet been called for an
interview with the parole officer.
The plaintiffs’ version of events was verified in sub-
stantial part by the state’s witnesses. Raymond E. Dorsey,
Supervising Officer on Rikers Island has responsibility for
administering the conditional release program. He and his
staff endeavor to have the conditional release program ex-
plained to all potential eligibles, i.e., to inmates serving 91
days or more, within the first week of their arrival at the
institution. The eligible inmates are asked if they wish to
make application for conditional release, and a record of
those who wish to apply and those who do not is kept.
Thereafter, a varole officer interviews the willing ap-
plicants. He takes down all information the inmates wish
to provide, and based oz what he is told during the inter-
view, and on information in the inmate’s file, a report is
prepared and presented to the parole board ‘‘as soon as
possible.” The report of the pavole officer includes a per-
sonal or social history of the inmate based on information
gleaned from the inmate or contained in the probation
sh Untasdiadiathitdnatha aiitaiaieaiimae
25a
report. Thus, the report includes information relative to
the inmate’s residence on release, job prospects, the in-
mate’s sentence, offense, the amount of jail time served,
and the date his sentence is to terminate, a summary of his
prior record, and the officer’s evaluation. The parole officer
does no independent investigation and ‘‘makes no strong
recommendation for or against.’’ It is left pretty well up
to the Commissioner to make a decision (Tr. 169). These
reports, along with the inmates’ files, are brought to the
main parole board office in New York City each Friday. It
should be noted that since September, 1975, each denied or
deferred application is accompanied by a written statement
of reasons for the denial or deferral.
In 1974, 1,200 applicants sought conditional release.
There are no memoranda or other written guidelines out-
lining how interviews are to be conducted. Nor are there
any practices or regulations establishing the order in which
arriving applicants are to be interviewed. It is done on a
random basis without regard to amount of jail time served
prior to sentence, and without regard to the date an in-
mate’s sentence is to terminate. The interviewing officer
does not show the contents of the inmate’s file to the ap-
plicant. The Parole Commissioners acting on the applica-
tions do not make their decision pursuant to any written
guidelines or criteria. It is all ‘‘an individual decision.’’
Officer Dorsey testified that the Commissioners take into
account the applicants’ prior record, the nature of the
instant offense, institutional adjustment and future plans
and are primarily influenced by these factors in making
their determinations. The Commissioners do not see the
inmate and do not consult with the parole officer who inter-
viewed the applicant and who filed a report on his applica-
tion. Dorsey testified that it was impossible for his staff
to process conditional release applications so that they
could be submitted to the Parole Board within the 60-day
period of eligibility prescribed by the statute, since the
backlog of applications was too great. His estimate was
that the parole officers submitted their reports to the Parole
26a
Board between 60-90 days—or 30 days after the statute
provides that conditional release may be granted.
II
Class Action Determination
Plaintiffs seek to pursue this action on their own behalf
and on behalf of all others similarly situated. The puta-
tive class consists of all inmates incarcerated at the New
York City Correctional Institution for Men on Rikers
Island who are eligible or will be eligible for conditional
release. The testimony indicates that the number of eligible
inmates on Rikers Island who apply each year for condi-
tional release is approximately 1,200. That number (and
the class of eligible applicants designated by plaintiffs
necessarily exceeds that 1,200 figure) clearly meets the test
of numerosity under Rule 23(a)(1), F.R.Civ.P. See, e.g.,
Robertson v. National Basketball Ass’n, 389 F. Supp. 867
(S.D.N.Y. 1975); Davis v. Avco Corp., 371 F. Supp. 782
(N.D. Ohio 1974). Moreover, there is a factual nexus
linking all members of the putative class, and the impact
of the implementation of §70.20(2) on them as the stat-
ute’s intended beneficiaries is the same. Thus, the test of
common questions of law and fact is met. F.R.Civ.P., Rule
23(a)(2). See, e.g., United States ex rel. Walker v. Man-
cust, 338 F. Supp. 311, 315-16 (W.D. N.Y. 1971), aff’d on
other grounds, 467 F. 2d 51 (2d Cir. 1972). The claims
being asserted—the haphazard and chaotic administration
of the conditional release program on Rikers Island, the
absence of written guidelines as criteria for those with
authority to grant or deny conditional release, denial of
the right to a personal appearance before the Commis-
sioner—meet the test of typicality, F.R.Civ.P., Rule 23(a)
(3). See, e.g., Kohn v. Royall, Koegel & Wells, 59 F.R.D.
515, 521 (S.D.N.Y. 1973), appeal dismissed, 496 F. 2d 1094
(2d Cir. 1974). Finally, the class is fairly and adequately
represented by plaintiffs and their counsel.
dad tae
1 =r pee
Patan Rs © ma mreoenen
27a
Accordingly, this action is maintainable as a Rule 23(b)
(2) class action on behalf of all inmates at the New York
City Correctional Institution for Men on Rikers Island who
are now or will be eligible for conditional release pursuant
to New York Penal Law § 70.20(2).
Iti
It is settled in this circuit that a ‘‘prisoner’s interest in
prospective parole or ‘conditional entitlement’ ’’ must be
accorded due process protection. “Whether the im-
mediate issue be release or revocation, the stakes are the
same: conditional freedom versus incarceration.” United
States ex rel. Johnson vy. Chairman of New York Siate
Board of Parole, 500 F. 2d 925, 928 (2d Cir.), vacated and
remanded sub nom. Regan v. Johnson, 419 U.S. 1015
(1974). The statutory grant is clear and is stated in
unambiguous language entitling those inmates serving
definite sentences of more than 90 days to apply for con-
ditional release which may be granted at the discretion of
the Parole Board and subject to such conditions as the
Parole Board imposes. New York Penal Law, § 70.40(2).
The state makes two arguments. First, it alleges that
the ‘‘substantial interest’’ in the grant of parole found to
exist in Johnson is not present with regard to the condi-
tional release applicant. Parole Board statistics for 1972
on which the finding of a substantial interest was found to
exist in Johnson showed that 75.4% of the inmates coming
before the Board were granted parole. The 1974 statisties,
however, revealed that of 2,578 conditional release ap-
plicants, only 746, or less than 29%, were granted release.
Accordingly, the state argues that these statistics hardly
give rise to any substantial expectation of release.
The state further argues that plaintiffs’ due process
rights must be viewed as minimal at best, since their in-
carceration must necessarily terminate within one year.
Thus, defendants contend, while those serving indeter-
28a
minate sentences of three years or more, who are eligible
for parole, are granted a hearing before the Parole Board,
plaintiffs’ minimal due process entitlement is adequately
met under present procedures.
At the hearing, Joseph J. Salo, Executive Secretary to
the New York State Parole Board stated that parole hear-
ings are explicitly required by state law and no hearing is
held on conditional release applications because there is no
statutory requirement that these applicants be granted a
hearing. In colloquy with the court, Mr. Salo admitted
that he could see no difference for such disparate treat-
ment other than the strict requirement of the statute as to
why a hearing should be held for those eligible for parole
and not held for those eligible for conditional release. He
added that ‘‘the only difference is that in ’74 I don’t know
whether there were 25 or 26 hundred applicants for condi-
tional release [s]pread out over 62 counties” (Tr. 136),
and that the members of the Parole Board could not travel
over the whole state.
The evidence at the hearing demonstrates that present
administration of the conditional release program on
Rikers Island is chaotic. The applications are not proc-
essed in any order designed to insure submission to the
Parole Board in at least a rough approximation to the
dates of eligibility (that is, those with earlier eligibility
dates being submitted to the Board before those with sub-
sequent eligibility dates). The testimony also made clear
that the parole staff deemed it impossible to get the applica-
tions processed and before the Board within 60 days of the
inmate’s incarceration. The statute requires only that the
application be considered ‘‘at any time after service of
sixty days.’’ New York Penal Law §70.40(2). I do not
read the statute as necessitating that the conditional release
application be given Parole Board consideration on the 60th
or 6lst day, but only that procedures be instituted which
will result in such consideration within a reasonable time
after the 60th day when the inmate becomes eligible for
29a
conditional release. Since the term to be served is a
maximum of one year, the legislature must have intended
and contemplated reasonably prompt action on these ap-
plications by the parole staff and by the Parole Board.
Raymond Dorsey who is in charge of the conditional release
program at Rikers Island testified that he needed 60-90
days to process applications. Due process is not an in-
flexible concept. See Morrissey v. Brewer, 408 U.S. 471
(1972). Provided procedures are adopted which will insure
that applications are processed in order of eligibility, the
60-90 day period for processing the applications seems
adequate, but any delay beyond 90 days appears to be un-
reasonable.
The conditional release procedures currently being em-
ployed, however, do seem clearly to violate basic due proc-
ess requirements. Until only recently, the Parole Board’s
practice was to deny applications without giving reasons
for such denials. Since September, 1976, new procedures
have heen instituted and the inmate is given, in a written
statement from the Commissioner who reviewed his ap-
plication, the reasons for denial of his release application.
At the hearing, it was merely indicated that written
reasons now accompany the denial of each application.
Insofar as the current procedure requires the Commis-
sioner to include in each application which is denied a
specific and meaningful statement of reasons and the facts
underlying the denial, due process requirements have been
met. Haymes v. Regan, 525 F. 2d 540, 544 (2d Cir. 1975).*
That brings us to the only remaining issue—whether
applicants for conditional release must be accorded a
hearing before the official who decides on such applica-
tions. Here the state has, pursuant to §70.20(2) of the
New York Penal Law, extended an expectation of liberty,
if sought, to those inmates serving definite sentences. Due
process unquestionably requires that fair procedures be
utilized to determine whether that expectation is to be
realized. Franklin v. Shields, 399 F. Supp. 309, 316
(W.D. Va. 1975). The testimony adduced at the hearing
30a
demonstrated unequivocally that the conditional release
applicant is not receiving fair treatment under present
procedures. He is interviewed by a parole officer, but be-
cause of staff constraints, the parole officer conducts no
independent investigation, instead relying on what the in-
mate tells him and what information is in the file from
the probation authorities. He makes a report which is
submitted to the Parole Board; yet, the parole officer is
never consulted by the Commissioner and, indeed, since
he does not know the inmate-applicant, the Commissioner
could not seem to be helped by the parole officer’s presence.
The inmates are not given access to their conditional
release files, which in itself seems to be a denial of due
process. See, e.g., United States ex rel. Carson v. Taylor,
—— F. 2d , Civil No. 1029 (2d Cir., July 22, 1976),
holding, inter alia, that due process requires that a parolee
be afforded access to documents that will be introduced
against him at a revocation hearing, unless the Parole
Board meets the burden of establishing good cause for
their nondisclosure. The lack of such access seems to
have led to injustice involving one of the named plaintiffs
who had another inmate’s records included in his file. The
Parole Commissioner is too burdened to be expected on
his own to notice such errors (and apparently in this
ease he did not). The parole officer assumes no respon-
sibility for presenting the inmate’s case. As Mr. Dorsey
stated, the parole officer’s report is neutral and everything
is left pretty much up to the Commissioner. Fundamental
fairness cannot be achieved under present procedures for
processing conditional release applications unless the
inmate-applicant is given the opportunity to appear in
person before the Board and to diseuss his case with the
Commissioner.
The state has resisted the right to a personal appear-
ance on applications for conditional release, arguing that
the cost of such hearings would be prohibitive, and the
demand on the Commissioner’s time unduly burdensome
3la
given the present size of the Board, the number of condi-
tional release applications processed annually, and the
already severe constraints on Board members’ time by
virtue of their other duties. It is clear, however, that
neither financial nor administrative difficulties suffice to
excuse the state from according basic due process rights
to inmates. See, e.g., Detainees of Brooklyn House of De-
tention v. Malcolm, 520 F. 2d 392, 399 (2d Cir. 1975) ; Rhem
v. Malcolm, 507 F. 2d 333, 341 n.20 (2d Cir. 1974).
The trend towards requiring that basic due process
safeguards be accorded in parole revocation and grant
proceedings is to protect inmates from bureaucratic arbi-
trariness and caprice, and from actions grounded upon
impermissible considerations. See, Haymes v. Regan,
supra, 525 F. 2d at 544; United States ex rel. Johnson v.
Chairman of New York State Board of Parole, supra, 500
F. 2d at 929; see also, Cardaropoli v. Norton, 523 F. 2d
990, 998-9 (2d Cir. 1975); Parole Release Decisionmaking
and the Sentencing Process, 84 Yale L.J. 810 (1975). More-
over, unless we are resigned to accept recidivism as a
universal fact of incarceration, the public interest is fur-
thered by adopting orderly and fair procedures for dealing
with a prisoner’s expectation of liberty.
The state’s contention is that a 29% ratio of success for
conditional release applicants as demonstrated by 1974
statistics, as against 75% for parole applicants, as found
in the Johnson case, supra, does not give rise to an ex-
pectation warranting due process protection. It is the New
York Penal Law § 70.40(2) that posits in the inmate serv-
ing a definite sentence, an expectation of freedom after
sixty days of incarceration, and that expectation cannot be
quantified as warranting or not warranting due process
protection based upon fulfillment percentiles pursuant to
Parole Board action. Thus, the conclusion in Johnson
that procedures for the grant of release from incarceration
as well as revocation of release must be clothed with some
degree of due process is applicable to conditional release
applicants as well as parole applicants.
32a
Accordingly, with respect to plaintiffs’ claims for in-
junctive relief, it is hereby ordered that:
(1) Defendants institute appropriate procedures to
insure that conditional release applications be proc-
essed in order of eligibility. Applications are to be
processed within 60-90 days of the arrival of an inmate
on Rikers Island;
(2) The Board is to provide to each inmate whose ap-
plication for conditional release is denied or deferred,
a written statement of the reasons for such denial or
deferral, together with a written statement of the facts
relied on in reaching the decision.
(3) Applicants for conditional release are to be ac-
corded the right to a personal appearance before the
Commissioner or Commissioners responsible for decid-
ing on the disposition of his application.
So OrpErED.
Dated: New York, New York
July 30, 1976
Rosert L. Carter
Robert L. Carter
U.S.D.J.
FOOTNOTE
It should be noted that § 214 of the New York Correction
Law was recently amended by the addition of subdivision six to
require the Parole Board to inform each prisoner denied parole
of “the facts and reason or reasons for such denial.”
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.