Petition — Greenholtz v. Inmates of Neb. Penal and Correctional Complex

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AUG 4 1978

aie MICHAEL RUDAK, JR., CLE

Supreme Court of the United States

October Term, 1977

No —#8-201

JOHN B. GREENHOLTZ, Individually, and as Chair-

man, Nebraska Board of Parole; EUGENE E. NEAL,

CATHERINE R. DAHLQUIST, MARSHALL M. TATE,

and EDWARD M. ROWLEY,

—

Petitioners,

vs.

INMATES OF THE NEBRASKA PENAL AND COR-

RECTIONAL COMPLEX, RICHARD C. WALKER,

WILLIAM RANDOLPH, RICHARD J. LEARY, ROB-

ERT L. GAMRON, FREDERICK L. GRANT, WAYNE

GOHAM and CHARLES LaPLANTE,

Kespondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

rT =

PAUL L. DOUGLAS

Attorney General of Nebraska

RALPH H. GILLAN

Assistant Attorney General

2115 State Capitol

Lincoln, Nebraska 68509

Tel: (402) 471-2682

Attorneys for Petitioners

COCKLE PRINTING CO., 1822 St. Mary's Ave., Omaha

TABLE OF CONTENTS

Paves

Opinions Below 2. AA SRO PS 2

Rs —

Questions Presented TE ER S| er a, oe 2

eee 8

Statement: of the Case onccccccccccccccccccccccscccccssscssssseseccsesseeeeee 3

Argument:

I. This case involves a question in which there is

a clear conflict among the various circuits .............. 6

II. Procedural due process does not apply to par-

III. If procedural due process applies, the practice

of the Board of Parole fully complies with all

SESE ET ee CO 10

ES ee: |

EEL ee Sa |

SS DN + Len SSR CE ee ...App. 24

eee ARR Tae AO OC RE App. 49

CASES CITED

Brown v. Lundgren, 528 F. 2d 1050 (5th Cir. 1976)... 7

Burton v. Ciecone, 484 F. 2d 1322 (8th Cir. 1973)... 6

Childs v. United States Board of Parole, 511 F.

EES Ee | |

TABLE OF CONTENTS—Continued

Pages

Franklin v. Shields, 569 F. 2d 784 (4th Cir. 1978),

cert. denied, Apri] 24, 1978 ._. ss ti—si«ia24?

Gagnon vy. Scarpelli, 411 U. S. 778, 36 L. Ed. 2d

656, 93 S. Ct. 1756 (1973) And is AR 7,8

Meachum v. Fano, 427 U. S. 215, 49 L. Ed. 2d 471,

36 8. Ct. 2532 (1976) _... AERDE RAL ERED ABS 9,10

Montanye v. Haymes, 427 U. S. 236, 49 L. Ed. 2d

466, 96 S. Ct. 2543 (1976) febinieahelic chad 9,10

Morrissey v. Brewer, 408 U. S. 471, 33 L. Ed. 2d

6, 93.8. Ct. 208 (1972) CB

Scarpa v. United States Board of Parole, 477 F.

2d 278 (5th Cir. 1973) 7

Seott v. Kentucky Parole Board, 429 U. S. 60,

00 L. Ed. 2d 218, 97 S. Ct. 342 (1976) CSG

United States ex rel. Johnson v. Chairman. New

York State Board of Parole, 500 F. 24 925 (2d

Cir. 1974), vacated as moot sub nom. Regan v.

Johnson, 419 U. S. 1015, 42 L. Ed. 2a 289, 95

Dy tte Me 10

United States ex rel. Richerson v. Wolff, 525 F.

2d 797 (7th Cir. 1975), cert. denied, 425 U. S.

914, 47 L. Ed. 2d 764, 96S. Ct. 1511 2d

Wolff v. McDonnell, 418 U. S. 539, 41 L. Ed. 2d

935, 94 S. Ct. 2965 (1974) msi itaaniesisisasacuc Nis Ul,

ati

STATUTES CITED

Pages

Oe Bhs Be San RUD cence onder poe eae 2

Ss We ct EE einen cei ee ee ae 3

Neb. Rev. Stat. § 83-192 (Reissue 1976) ncn 3, 4

Neb. Rev. Stat. § 83-1,111 (Reissue 1976) ow. 8,5

Neb. Rev. Stat. §83-1,112 (Reissue 1976) 3,5, 11

Neb. Rev. Stat. ¢ $3-1,114 (Reissue 1976) mY

Neb. Rev. Stat. § 83-1115 (Reissue 1976) 3

CONSTITUTION CITED

United States Constitution, Fourteenth Amendment... 2

In The

Supreme Court of the United States

October Term, 1977

ty)

No.

JOHN B. GREENHOLTZ, Individually, and as Chair-

man, Nebraska Board of Parole; EUGENE E. NEAL,

CATHERINE R. DAHLQUIST, MARSHALL M. TATE,

and EDWARD M. ROWLEY,

Petitioners,

\ vs.

INMATES OF THE NEBRASKA PENAL AND COR-

RECTIONAL COMPLEX, RICHARD C. WALKER,

WILLIAM RANDOLPH, RICHARD J. LEARY, ROB-

ERT L. GAMRON, FREDERICK L. GRANT, WAYNE

GOHAM and CHARLES LaPLANTE,

Respondents.

fa’

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

ray

Petitioners, John B. Greenholtz, Eugene FE. Neal,

Catherine R. Dahlquist, Marshall M. Tate and Edward

M. Rowley, pray for a writ of certiorari to review the

Judgment and opinion of the United States Court of

Appeals for the Eighth Cireuit entered in this proceed-

ing on May 18, 1978.

» »*- ces =

OPINIONS BELOW

The opinion of the Court of Appeals, not yet. re-

ported, is reproduced herein as Appendix A. The deci-

sion of the district court, which has not been published,

is reproduced herein as Appendix B.

JURISDICTION

The judgment of the Court of Appeals was entered

on May 18, 1978. A timely petition for a rehearing en

bane was denied on June 9, 1978, and this petition for

certiorari was filed within ninety days of that date. This

Court’s jurisdiction is invoked under 28 U.S. C. § 1254(1).

QUESTIONS PRESENTED

1. Whether the due process clause of the Fourteenth

Amendment applies to the granting or denial of disere-

tionary parole by the Nebraska Board of Parole?

2. If the due process clause of the Fourteenth

Amendment applies to the granting or denial of discre-

tionary parole, what procedures are constitutionally man-

dated?

3. Whether the procedures followed by the Nebraska

Board of Parole comply with all constitutionally man-

dated procedures, if any?

oo,

STATUTES INVOLVED

The statutes involved are Nebraska Revised Stat-

utes, §$ 83-192, 83-1,111, 83-1,112, 83-1,114, and 83-1,115.

These sections are reproduced in full in Appendix C.

STATEMENT OF THE CASE

This is a class action suit brought by inmates of the

Nebraska Penal and Correctional Complex against the

members of the Nebraska Board of Parole under the pro-

visions of the Civil Rights Act, 42 U.S.C. $1983. Var-

ious constitutional deprivations were alleged, so the dis-

trict court appointed different inmates to represent the

various classes, and appointed counsel for each class.

Eventually the claims made by the different classes were

treated as separate suits.

We are here concerned with the class claiming that

they were denied procedural due process in the eranting

or denial of diseretionary parole by the Board of Par-

ole. The district court, after an evidentiary hearing, held

that procedural due process applied to the parole release

procedure, and that the Board of Parole had failed in

certain respects to afford the inmates constitutionally

required process. The court ordered certain procedures

to be followed in the future.

On appeal, the Court of Appeals affirmed in part

and reversed in part. It agreed that due process applied,

but disagreed as to the exact procedures required. The

Court of Appeals found that the due process clause of

the Fourteenth Amendment required that: (1) Every

inmate receive a formal hearing upon first becoming el-

igible for parole, with subsequent hearings to be allowed

in the diseretion of the board. (2) Each inmate receive

a written notice of the date and hour of the hearing rea-

sonably in advance, the notice to contain a list of the

factors which may be considered by the board in making

its determination. (3) Subject to security considerations,

every inmate be allowed to appear in person to present

documentary evidence in support of his application. (4)

A record of the proceeding which is capable of being

reduced to writing be maintained. (5) Within a reason-

able time following the hearing, each inmate to whom

parole is denied be given a full and fair explanation, in

writing, of the essential facts relied upon and the rea-

sons for denial of parole.

In Nebraska paroles are of two kinds, mandatory

and discretionary. Mandatory parole is required to be

given when the offender has served his maximum sen-

tence less good-time credits. We are not concerned with

that type of parole in this action. Discretionary parole

may be given when the offender has served his mini-

mum sentence less good-time credits. It is this type

of parole which is the subject of this action.

Nebraska Revised Statutes, ¢ 83-192(9) requires the

board to review the record of every committed offender

at least once each year, whether or not he is eligible

for parole. This hearing is called a “parole review

hearing,” as is the hearing within sixty days before

the expiration of the minimum sentence, mandated by

Neb. Rev. Stat. § 83-1111. Paroles are never granted at

parole review hearings.

If, after a parole review hearing, the board be-

lieves the inmate should be considered for parole, he

is scheduled for a formal parole hearing. He is notified

at least thirty days in advance that his parole hearing

has been set for a certain month. Notification of the

exact time is by posting of such information at the peni-

tentiary. Prior to the hearing the offender must have

a parole plan, and may have legal counsel in prepara-

tion for the hearing. See Neb. Rev. Stat. § 83-1,112.

At the hearing the inmate may have counsel, and iuay

present whatever evidence he wishes. He is not per-

mitted to hear opposing witnesses or see letters oppos-

ing his release.

If an inmate is not scheduled for a parole hearing

after a parole review hearing, he is notified of the de-

cision by a form, which also informs him of the reasons

for denial. If he is denied parole after a parole hear-

ing, he is notified by letter, which contains the reasons

for denial, although, as the Court of Appeals noted, in

a very few cases between January 1975 and November

1976 the reasons for denial were not contained in the

letters. he facts relied upon by the board in reaching

its deeiSion are not set forth in the letter.

ARGUMENT

This case involves a question in which there

is a clear conflict among the various circuits.

The conflict among the circuits over the question of

whether any constitutionally mandated procedures apply

to parole release hearings was concisely summarized by

Mr. Justice Stevens in his dissent in Scott v. Kentucky

Parole Board, 429 U.S. 60, 50 L.Ed. 2d 218, 97 S.Ct.

342 (1976). He listed in footnote 1 cases from the Fifth

and Sixth Cireuits holding that due process does not

apply, and from the Fourth, Second, Seventh, and D.C.

Cireuits holding that due process applies to the extent

that written reasons must be given for denial of parole.

He also listed Burton v. Ciccone, 484 F. 2d 1322 (8th

Cir. 1973), as an implicit holding that due process does

not apply. In view of the Eighth Cireuit’s holding in

this case, however, we must conclude that that circuit

did not so construe it, or that it has overruled the case

sub silentio.

This case appears to be the beginning of a third

line of cases, since it mandated procedures beyond those

specified in the circuits holding due process applies.

Previous cases have, in general, limited the required due

process to a statement of reasons for denial of parole.

We now appear to have a three-way split in the circuits

on this issue.

This Court has frequently indicated its desire to

resolve the conflict, since it has granted certiorari in

a number of cases, only to vacate them as moot or re-

mand them to consider mootness. Since we are here

dealing with a class action, which cannot become moot

upon the parole of a particular inmate, it would seem

that this is an ideal case for the Court to accept to

decide this important question.

IT.

Procedural due process does not apply to

parole release proceedings.

A petition for certiorari is not a proper place for

an extensive argument on the merits. We will there-

fore make only a very sketchy argument herein.

The Court of Appeals relied heavily on Morrissey

v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593

(1972), Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d

935, 94 S.Ct. 2965 (1974), and Gagnon v. Scarpelli, 411

U.S. 778, 36 L.Ed. 2d 656, 93 S.Ct. 1756 (1973). We

submit that this reliance is misplaced, and that these

eases are clearly distinguishable.

The court suggested that we tried to distinguish

Morrissey, Wolff, and Gagnon on the basis of the dis-

tinction between loss of a privilege and denial of a priv-

ilege. It is true that some of the cases have made that

distinction. See, eg. Brown v. Lundgren, 528 F. 2d

1050 (Sth Cir. 1976), and Scarpa v. United States Board

of Parole, 477 F. 2d 278 (5th Cir. 1973), vacated and

remanded to consider mootness, 414 U.S. 809, 38 L. Ed.

2d 44, 94 S.Ct. 79, dismissed as moot, 501 F. 2d 992

(1973). We believe that the argument has validity, but

it was far from our main argument distinguishing the

cases.

——_--

We submit that the primary distinction Les in the

type of determination that is involved. In Morrissey

the question to be determined was whether the parolee

ad violated the conditions of his parole by buying a

car under an assumed name, operating it without per-

mission, giving false statements to police, obtaining

credit under an assumed name, and failing tg report

his place of residence to his parole officer. In Wolff

the question was whether the inmate was guilty of the

misconduct charged, which would trigger disciplinary

action. In Gagnon the question was whether, while on

probation, Searpelli had committed a burglary, and

whether his admission of having done so was made under

duress and was false.

All of these are clear-cut factual issues, susceptible

of proof and factual determination, one way or the other.

In Wolff v. McDonnell, supra, this Court said:

“Since prisoners in Nebraska can only lose good-

time eredits if they are guilty of serious misconduet,

the determination of whether such behavior has oe-

curred becomes critical, and the minimum require-

ments of procedural due process appropriate for

the circumstances must be observed.”

Contrast the factual determinations involved in Mor-

rissey, Wolff, and Gagnon with the matters the Board

of Parole is to consider pursuant to Neb. Rev. Stat.

§ 83-1,114. Under that section, almost all of the criteria

for determination of whether the inmate shall be paroled

are highly subjective, and not subject to “proof” in the

traditional sense. What “proof” would one introduce

that a particular inmate’s release would or would not

depreciate the seriousness of his crime or promote dis-

respect for law, or have an adverse effect on institu-

tional discipline?

True, past disciplinary actions against him may be

a factor in denial of parole. However, pursuant to

Wolff v. McDonnell he will already have had a due

process hearing in that connection, and his misconduct

will have been determined and made a matter of record.

In short, to require each inmate who is eligible for

parole to have a formal, due process evidentiary hear-

ing, and to require the board to state the facts it relies

on will only tend to divert attention from the statutory

criteria to superficial matters such as participation in

programs at the penitentiary, lack of violations of rules,

ete. Furthermore, after such a hearing at which the

prisoner presents his favorable evidence and hears no

contrary evidence, he will be frustrated and infuriated

if he is denied parole.

We believe that the cases of Meachum v. Fano, 427

U. S. 215, 49 L. Ed. 2d 471, 96 S. Ct. 25382 (1976), and

Montanye v. Llaymes, 427 U. S. 286, 49 L. Kd. 2d 466,

96 S. Ct. 2543 (1976), fully support our position. In

Meachum v. Fano this Court held that the due process

clause did not entitle a prisoner to a hearing upon a trans-

fer from one prison to another ‘‘absent a state law or

practice conditioning such transfer on prool of serious

misconduct or the occurrence of other events.’’ ‘The

Court distinguished Wolf v. McDonnell on that basis.

In Montanye v. Haymes this Court held that even

if a transfer was for disciplinary purposes, procedural

due process did not apply absent some right or justi-

fiable expectation that he would not be transferred ex-

cept for misbehavior or other specified events.

Misbehavior is susceptible of direct proof. Most of

the criteria for determination of parole are not. No-

where in Nebraska law is a prisoner assured that he will

be parole’? in the absence of misconduct or other speci-

fied events. We therefore submit that Meachum v.

Fano and Montanye v. Haymes control, and that pro-

cedural dne process does not apply.

Il.

If procedural due process applies, the prac-

tice of the Board of Parole fully complies with

all required procedures.

Those cases which have held procedural due process

applies have usually limited it to giving the inmate a

reason for denial. See United States ex rel. Richerson

v. Wolff, 525 F. 2d 797 (7th Cir. 1975), cert. denied, 425

U.S. 914, 47 L.Ed. 2d 764, 96 S.Ct. 1511, Childs v.

United States Board of Parole, 511 F. 2d 1270 (D.C.

Cir. 1974), and United States ex rel. Johnson v. Chair-

man, New York State Board of Parole, 500 F. 2d 925

(2d Cir. 1974), vacated as moot sub nom. Regan v.

Johnson, 419 U.S. 1015, 42 L. Ed. 2d 289, 95 S. Ct. 488.

In Franklin v. Shields, 569 F. 2d 784 (4th Cir. 1978),

cert. denied, April 24, 1978, the original panel had or-

dered more extensive procedures, but the court sitting

en bane reversed the panel and limited the required pro-

cedures to a statement of reasons for denial.

The evidence is that after either a parole review

hearing or a formal parole hearing the inmate is given

written notice of reasons for denial. (There was evi-

dence that in a period of almost two years, the letters

to eight of the inmates did not contain reasons. One

of the eight inmates was not eligible because of loss of

good time credits, one said at the hearing that he did

not want a parole, and one did not attend the hearing,

but sent a note waiving the hearing. A board member

testified that failure to state reasons was a departure

irom the board’s practice.) Furthermore, every inmate,

—whether or not eligible, is interviewed by the board at

least once a year, and is also interviewed within sixty

days before he becomes eligible. We submit that this

more than complies with any required procedures.

It would be wasteful and burdensome to give every

eligible inmate a formal parole hearing as soon as lie

becomes eligible for parole. Many of them, because of

criminal records, institutional records, type of crime, or

various other factors, have no real chance of early pa-

role. Before a parole hearing, he must have a parole

plan. See Neb. Rev. Stat. §83-1,112. <A valid parole

pla. would contain assurance of employment. Good-

faith compliance with the court’s order would require

the parole counselors to prepare a parole plan, includ-

ing lining up a job for a man who everybody knows

is not going to be paroled.

A statement of the facts relied upon would, in many

eases, be very dilticult. Often the decision must be

made on opinions and feelings of the board members

about the inmate’s character, the seriousness of his

crune, and the chances, in view of the entire picture,

that he will successfully complete a parole. To articu-

late “facts” upon which such decisions are made wou!d

be very diilicult, pariicuiarly since there are five meim-

bers of the board, who might be reaching the same de-

cision for different reasons.

—0

CONCLUSION

This case presents an opportunity for this Court

to resolve a conflict among the circuits. It will not be-

come moot. For the foregoing reasons, certiorari should

be granted.

Respectfully submitted,

JOHN B. GREENHOLTZ, Individually,

and as Chairman, Nebraska Board of

Parole; EUGENE E. NEAL, CATHER-

INE R. DAHLQUIST, MARSHALL M.

TATE, and EDWARD M. ROWLEY,

Petitioners

By PAUL L. DOUGLAS

Attorney General of Nebraska

By RALPH H. GILLAN

Assistant Attorney General

2115 State Capitol

Lincoln, Nebraska 68509

Tel: (402) 471-2682

Attorneys for Petitioners

App. 1

APPENDIX A

UNITED STATES COURT OF APPEALS

For the Eighth Circuit

No. 77-1889

Inmates of the Nebraska Penal and Correctional Com-

plex, Richard C. Walker, William Randolph, Richard J.

Leary, Robert L. Gamron, Frederick L. Grant, Wayne

Goham and Charles LaPlante,

Appellees,

VS.

John B. Greenholtz, Individually, and as Chairman, Ne-

braska Board of Parole; Eugene E. Neal, Catherine R.

Dahlquist, Marshall M. Tate, and Edward M. Rowley,

Appellants.

Appeal from the United States District Court

for the District of Nebraska

Submitted: February 14, 1978

Filed: May 18, 1978

Before HEANEY and STEPHENSON, Circuit Judges,

and BECKER,* District Judge.

STEPHENSON, Cireuit Judge.

The defendants-appellants, members of the state of

Nebraska Board of Parole (Board), appeal from the

decision of the district court' in this class action suit

* The Honorable William H. Becker, Senior United States

District Judge for the Western District of Missouri, sitting by

designation.

1 The Honorable Albert G. Schatz, United States District Judge

for the District of Nebraska.

App. 2

arising under 42 U.S.C. $1983. The district court held

that the plaintiffs-appellees, inmates of the Nebraska

Penal Complex (inmates), had been denied procedural

due process by the Board in the Board’s consideration

of the inmates for suitability for parole.

This ease raises the question of whether the due

process clause of the Fourteenth Amendment to the

United States Constitution extends to parole release de-

terminations, and if so, whether the safeguards currently

available under applicable Nebraska law are constitu-

tionally adequate. We affirm that the due process clause

applies to parole release proceedings. With respect to

the specific procedural safeguards which the district

court found were constitutionally required in such pro-

ceedings, we affirm in part, reverse in part, and re-

mand.

The Nebraska Board of Parole consists of five mem-

bers. The chairman and two members are full-time,

and the other two members serve on a part-time basis.

Neb. Rev. Stat. § 83-191. Under Nebraska law the Board

is charged with the responsibility of determining whether

and when an inmate should be released on discretionary

parole. Neb. Rev. Stat. $9 83-192, 83-1,114, 83-1,115. The

Board is required by statute to review at least once a

year the record of each convicted offender, whether or

not eligible for parole, and to meet with him and counsel

him concerning his progress and prospects for a future

parole. Neb. Rev. Stat. §83-192(9). These parole re-

view hearings last an average of five to ten minutes

App. 3

and the inmates are not allowed to present evidence or

call witnesses in their behalf.

After the annual parole review hearing, each pris-

oner is sent a form which informs him whether or not

he is to receive a formal parole hearing. If he does not

receive a formal parole hearing the reasons for deferral

at that time are stated and recommendations are made

for correcting the deficiencies. Only those inmates who

are eligible for discretionary parole are granted a formal

parole hearing, but in some instances eligible inmates did

not receive a timely formal parole hearing. Between July

1, 1975, and June 30, 1976, 327 formal parole hearings

and 1,645 review hearings were held.

If the inmate is given a formal parole hearing, he

is permitted to offer evidence in support of parole, and

may be represented by retained counsel. He is not per-

mitted to cross-examine or hear opposition witnesses.

If he is denied parole after a formal parole hearing,

he is so advised in person and by letter. Generally the

letter advises him of the reasons for denial, although

eight instances were found between January 1975 and

November 1976 in which reasons were not contained in

the letter.

Inmates are notified either at the time of their

original confinement or at subsequent parole review

hearings or formal parole hearings of the month dur-

ing which their next hearing will be held. This gen-

eral notification oceurs from 30 days to 1 year in ad-

vance. Notification of the precise date and hour occui's

through posting of such information at the penal com-

plex on the date of the hearing.

App. 4

In its order and memorandum opinion of October

21, 1977, the district court concluded that parole release

proceedings must be conducted in accordance with cer-

tain due process requirements and that tle Board’s

procedures failed to comply fully with those required

procedures. The court further found that the inmates

were not entitled to monetary damages, but did allow them

to recover their costs, including reasonable attorney

fees under 42 U.S.C. § 1988.

The initial issue confronting this court is whether

parole determination proceedings implicate a liberty in-

terest of the inmates within the meaning of the due

process clause of the Fourteenth Amendment. We are

convinced that it does.

The Fourteenth Amendment provides that no state

shall “deprive any person of life, liberty, or property,

without due process of law.” Our inquiry of whether

the prohibitions of the Fourteenth Amendment apply

begins with the Supreme Court case of Morrissey v.

Brewer, 408 U.S. 471 (1972), where the Court held that

the due process clause was applicable to proceedings

resulting in revocation of parole. In Morrissey, the

Court articulated the proper framework for analysis of

the question of whether due process applies in a par-

ticular situation.

Whether any procedural protections are due depends

on the extent to which an individual will be “eon-

demned to suffer grievous loss.” Joint Anti-Fascist

Refugee Committee v. McGrath, 341 U.S. 123, 168

(1951) (Frankfurter, J., concurring), quoted in Gold-

berg v. Kelly, 397 U.S. 254, 263 (1970). The ques-

tion is not merely the “weight” of the individual’s

interest, but whether the nature of the interest is

App. 5

one within the contemplation of the “liberty or

property” language of the Fourteenth Amendment.

Fuentes v. Shevin, 407 U.S. 67 (1972).

Morrissey v. Biewer, supra, 408 U.S. at 481.

The interest asserted by the inmates in this suit is

the present right to be considered for parole in accord-

ance with certain procedural safeguards.? Since the state

is not required by the Constitution to provide parole

for convicted offenders, the inmates’ interest is aptly

described as a privilege or a matter of grace. However,

this distinction is no longer an aeceptable basis for de-

termining where the due process clause applies to a gov-

ernmental action. Chief Justice Burger, speaking for

a majority of the Court in Jlorrissey v. Brewer, supra,

408 U. S. at 481, stated: ‘‘As Mr. Justice Blackmun has

written recently, ‘this Court now has rejected the concept

that constitutional rights turn upon whether a govern-

mental benefit is characterized as a ‘‘right”’ or as a ‘‘priv-

ilege”’. Graham ve. Richardson, 403 U. S. 365, 374

(1971).”

In the present case the Board attempts to distinguish

Morrissey as well as Wolff v. McDonnell, 418 U.S. 539

(1974) (due process applies to prison disciplinary pro-

ceedings where good time credit may be lost), and Gagnon

v. Scarpelli, 411 U. S. 778 (1973) (due process applies to

2 Since it is the manner of parole decision-making, not its

outcome, that is challenged, the inmates did not present

a complaint of the sort in Preiser v. Rodriguez, 411 U. S.

475 (1973), for which the inmates’ sole federal remedy is a

writ of habeas corpus. See Wolff v. McDonnell, 418 U. S.

539, 553-55 (1974); Bradford v. Weinstein, 519 F. 2d 728,

733-34 (4th Cir. 1974), vacated as moot, 423 U. S. 147

(1975).

App. 6

probation revocation proceeding), on the basis that those

cases involved the loss of a privilege and here we are

concerned with a denial of a privilege. That is a distine-

tion without a real difference. Bradford v. Weinstein, 519

F’. 2d 728, 732 and n. 3 (4th Cir. 1974), vacated as moot,

423 U.S. 147 (1975).

[The] present enjoyment of a protectable interest

is not a prerequisite of due process. See Goldsmith

v. Bd. of Tax Appeals, 270 U. S. 117, 46 S. Ct. 215,

70 L. Ed. 494 (1926) (right of C.P. A. to practice

before the Board of Tax Appeals); Willner v. Com-

mittee on Character and Fitness, 373 U. S. 96, 83 S.

Ct. 1175, 10 L. Ed. 2d 224 (1963), and Schware vy.

Board of Bar Examiners, 353 U. S. 232, 77 S. Ct. 752,

1 L. Ed. 2d 796 (1957) (admission to the bar); Spei-

ser v. Randall, 357 U. S. 513, 78 S. Ct. 1332, 2 L. Ed.

2d 1460 (1958) (right to a tax exemption).

Bradford v. Weinstein, supra, 519 F. 2d at.732 n. 3. But

see Brown v. Lungren, 528 F. 2d 1050, 1052-53 (5th Cir.),

cert. denied, 429 U. S. 825 (1976). While the parole ap-

plicant’s status is not changed by denial of his applica-

tion, ‘‘in the sense that he remains in the same custodial

situation as before, the necessity of due process to sup-

port the denial is not therefore obviated, for the status

remains the same because of a Board determination which

if favorable would have changed the status to one of

greater liberty.’’ Childs v. United States Board of Pa-

role, 511 F. 2d 1270, 1280 (D.C. Cir. 1974). The nature

of the interest at stake in both parole release and parole

revocation is the same—conditional liberty versus inear-

ceration—and thus the Fourteenth Amendment applies

to both.

App. 7

The Board also claims that parole release determina-

tion should be treated differently than the determinations

involved in Morrissey, Gagnon, and Wolff because in these

latter cases the respective boards were required to make

factual determinations and therefore hearings were ap-

propriate. However, Neb. Rev. Stat. § $3-1,114 provides

that a prisoner eligible for parole is to be released on

parole unless he is found to be unfit for one of the reasons

listed in the statute. Thus, the Board’s decision of

whether to grant parole necessitates a factual determina-

tion of whether the statutory criteria are present.

The deprivations which result from revocation of a con-

ditional liberty enjoyed by a parolee described in Morris-

sey v. Brewer, supra, 408 U.S. at 481-82, demonstrate the

serious effects of denial of parole. Although a parolee

is subject to many restrictions not applicable to other

citizens, he is able to do a wide range of things available

to persons who have never been convicted of a crime.

‘‘Subject to the conditions of his parole, he can be gain-

fully employed and is free to be with family and friends

and to form the other enduring attachments of normal

life.” Morrissey v. Brewer, supra, 408 U.S. at 482.

Since the protection of the due process clause extends

to parolees, it may not be denied to inmates. While law-

ful imprisonment necessarily makes unavailable many

rights and privileges of the ordinary citizen, an iron cur-

tain is not drawn between the prisons of this country and

the Constitution. Wolff v. McDonnell, supra, 418 U.S.

at 555-56. Prisoners may not be deprived of life, liberty,

or property without due process of law. Id. at 556.

The inmates are not the only ones with an interest

in seeing that the parole determination proceedings are

App. 8

conducted in accordance with the due process clause. The

Supreme Court recognized in Morrissey v Brewer, supra,

408 U.S. at 484, that society has a stake in the effort to

restore the prisoner to a normal and useful life within

the law. Thus, society has an interest in not having

release on parole denied because of an erroneous deter-

mination. Society has a further interest in treaiinz the

prisoner with basic fairness. Fair treatment in parole

determinations ‘‘will enhance the chance of rehabilitation

by avoiding reactions to arbitrariness.” Id.

Of the six cireuit courts of appeals which have de-

cided the issue, four have held that the Fourteenth

Amendment does apply to parole determination proceed-

ings. Franklin v. Shields, 569 F. 2d 784, 800 (4th Cir.

1978) (en bane) ; United States ex rel. Richerson v. Wolff,

525 F. 2d 797 (7th Cir. 1975), cert. denied, 425 U.S. 914

(1976); Childs v. United States Board of Parole, supra;

United States ex rel. Johnson v. Chairman, N. Y. State

Bd. of Parole, 500 F. 2d 925 (2d Cir.), vacated as moot,

419 U.S. 1015 (1974). Contra, Scott v. Kentucky Parole

Bd., No. 74-1899 (6th Cir. Jan. 15, 1975), vacated and re-

manded to consider mootness, 429 U.S. 60 (1976), on re-

mand sub nom. Bell v. Kentucky Parole Bd., 556 F. 2d 805

(1977); Scarpa v. United States Bd. of Parole, 477 F. 2d

278 (5th Cir.) (en bane), vacated and remanded to con-

sider mootness, 414 U.S. 809, dismissed as moot, 501 F.

2d 992 (5th Cir. 1973).

The Supreme Court has not decided the exact ques-

tion before us of whether a prisoner’s interest in prospec-

tive parole is an interest to be afforded protection under

the due process clause of the Fourteenth Amendment. It

App. 9

must be acknowledged that there are indications both

ways in recent Supreme Court opinions. See discussion,

Williams v. Ward, 556 F. 2d 1143, 1157-58 (2d Cir. 1977),

cert. dismissed, — U.S. —.

The Board primarily relies on the companion cases of

Meachum v. Fano, 427 U.S. 215 (1976), and Montanye v.

Haymes, 427 U.S. 236 (1976), for its contention that

parole determinations do not implicate the Fourteenth

Amendment. In Meachum, the Supreme Court held that

the due process clause did not entitle a prisoner to a hear-

ing when he is transferred from one prison to another,

absent a state law or practice conditioning such transfers

on proof of serious misconduct or the occurrence of other

events.

We are not persuaded that the holdings of those cases

are applicable to the present case. First, MWeachwn in-

volved a transfer only from one prison to another, albeit

with less favorable conditions, while here the Board’s

determination results in either conditional liberty or in-

careeration. Second, the holding of Meachwn expressly

excludes situations where a right was created] by state law.

The inmates’ interest in this case is the right to be con-

sidered for parole, a right created by Nebraska law.

In Wolff v. McDonnell, supra, 418 U. S. at 558, the

Court held that a person’s liberty interests may be pro-

tected by the Fourteenth Amencment even when the lb-

erty itself is a statutory creation of the state. The Court

found that where the state had created a statutory right

for a prisoner to have his sentence shortened for good

conduct, and also specified that it was to be forfeited only

upon serious misbehavior, the prisoner’s interest was

App. 10

within the liberty protected by the Fourteenth Amend-

ment. Therefore, we must examine the Nebraska statutes

governing parole release determinations to ascertain if

they create a liberty interest.

Under Nebraska law, every committed offender is

eligible for parole upon completion of his minimum term

less reductions granted for good conduct. See Neb. Rev.

Stat. §§ 83-1,105, 83-1,110. The Board of Parole has the

duty to determine the time of release on parole of com-

mitted offenders eligible for such release and to fix the

conditions of parole. Neb. Rev. Stat. 4 83-192. The Board

is further authorized to issue subpoenas, compel the at-

tendance of witnesses, and the production of documents,

and to administer oaths and take testimony. Neb. Rev.

Stat. § 83-195.

Every committed offender is entitled to a hearing

within 60 days before he is eligible for parole and

when parole is not granted the Board is required to pro-

vide written notification of the reasons for denial. Neb.

Rev. Stat. §83-1,111. Section 83-1,111 further provides

that if parole is denied the committed offender shall re-

ceive at least once a year a hearing at which his applica-

tion is reconsidered. Neb. Rev. Stat. § 83-1,115 lists the

items which are to be considered by the Board in making

its determination of whether to release a prisoner on

App. 11

\ parole. Finally, the Board is directed by Neb. Rey. Stat.

§ 83-1,1145 to release an eligible prisoner on parole unless

3 Neb. Rev. Stat. § 83-1,114 provides in full:

Board of Parole; deferment of parole; grounds. (1)

Whenever the Board of Parole considers the release. of a

committed offender who is eligible for release on ‘arole,

it shall order his release unless it is of the opinion chat his

release should be deferred because:

(a) There is a substantial risk that he will not conform

to the conditions of parole;

_ (b) His release would depreciate the seriousness of

his crime or promote disrespect for law;

fect on institutional discipline; or

(d) His continued correctional treatment, medical care,

or vocational or other training in the facility will substan-

tially enhance his capacity to lead a law-abiding life when

released at a later date.

(2) In making its determination regarding a committed

offender’s release on parole, the Board of Parole shall take

into account each of the following factors:

(a) The offender's personality, including his maturity,

stability, sense of responsibility and any apparent develop-

ment in his personality which may promote or hinder his

conformity to law;

(b) The adequacy of the offender’s parole plan;

ligations and undertake responsibilities;

(d) The offender’s intelligence and training;

(e) The offender’s family status and whether he has

relatives who display an interest in him or whether he has

other close and constructive associations in the community;

(f) The offender's employment es his occupation-

al skills, and the stability of his past employment;

(g) The type of residence, neighborhood or commu-

nity in which the offender plans to live;

(Continued on next page)

App. 12

it finds that release should be deferred due to one of the

reasons specified in the statute. Section 83-1,114 also

lists the factors to be considered by the Board in making

this determination.

An examination of Nebraska law reveals that the

inmates have a right to be considered for parole, and this

right is protected by procedural safeguards created by

statute. In Wolff, where the state created the statutory

right of shortened sentences for good behavior, the Su-

preme Court held such good behavior credits were to be

withdrawn only when certain constitutional safeguards

were adhered to. It follows that since Nebraska has made

parole an integral part of its penological system and pro-

(Continued from previous page)

(h) The offender’s past use of narcotics, or past ha-

bitual and excessive use of alcohol;

(i) The offender’s mental or physical makeup includ-

ing any disability or handicap which may affect his con-

formity to law;

(j) The offender’s prior criminal record, including the

nature and circumstances, recency and frequency of pre-

vious offenses;

(k) The offender’s attitude toward law and authority;

(l) The offender's conduct in the facility, including

particularly whether he has taken advantage of the oppor-

tunities for self-improvement, whether he has been pun-

ished for misconduct within six months prior to his hearing

or reconsideration for parole release, whether any reduc-

tions of term have been forfeited, and whether such reduc-

tions have been restored at the time of hearing or recon-

sideration;

(m) The offender's behavior and attitude during any

previous experience of probation or parole and the re-

cency of such experience; and

(n) Any other factors the board determines to be rel-

evant.

App. 13

vided that those eligible for parole are to be released on

parole unless one of the reasons for denial specified in the

statute is found to be present, the authority to deny

parole must not be exercised arbitrarily. Neb. Rev. Stat.

§ 83-1,114 provides the inmates with a justifiable expecta-

tion rooted in state law that they will be conditionally re-

leased if they meet the statutory standards. Conse-

quently, the Fourteenth Amendment due process clause is

implicated. See Wolff v. McDonnell, supra, 418 U.S. at

007. Compare Meachum v. Fano, supra, 427 U.S. at

228; Montanye v. Haymes, supra, 427 U. S. at 242.

We agree with the reasoning of the original panel

opinion in Franklin v. Shields, 569 F. 2d 784, 789-90 (4th

Cir. 1977), rev’d en banc, 569 F. 2d 800 (4th Cir. 1978)

(reversed upon the grounds that ‘‘the only explicit con-

stitutional requisite is that the Board furnish to the pris-

oner a statement of its reasons for denial of parole’’),

where it was stated that:

Since the [state] statutes contemplate that a

prisoner who has satisfied all the requirements for

parole will be conditionally released, the Board’s in-

vestigation and review are crucial. A prisoner has

much at stake in properly conducted parole proceed-

ings, for they may result in his conditional freedom.

If the proceedings are flawed—even unintentionally

and in good faith, through reliance on incomplete or

incorrect information—they may add years to a pris-

oner’s confinement. Consequently, the accuracy and

the sufficiency of the information the Board obtains

in its investigation, which the statutes require, can

have a decisive effect on parole. Also, whether the

Board’s review is full and fair, as contemplated by

the statutes, may be a determinative factor in the

grant or denial of parole. Therefore, we hold that

the statutes governing the manner in which a prisoner

App. 14

shall be considered for parole confer on the prisoner

an interest in liberty. [Footnote omitted.]

In summary, we find that a prisoner in Nebraska has

a statutory right to fair parole consideration. Because

this right involves the prisoner’s liberty interest, the in-

mate’s right to consideration for parole is an aspect of

liberty to which the protection of the due process clause

extends. Therefore, the minimum requirement of proce-

dural due process appropriate for the circumstances must

be “bserved.

Having concluded that the due process clause is ap-

plicable to parole release proceedings, the question re-

mains how much process is due. In this inquiry we are

guided by the Supreme Court’s observations in Morrissey

v. Brewer, supra.

It has been said so often by this Court and others

as not to require citation of authority that due pro-

cess is flexible and calls for such procedural protec-

tions as the particular situation demands. ‘*[C]on-

sideration of what procedures due process may re-

quire under any given set of circumstances must be-

gin with a determination of the precise nature of the

government function involved as well as of the pri-

vate interest that has been affected by governmental

action.”’ Cafeteria & Restaurant Workers Union v.

McElroy, 367 U.S. 886, 895 (1961).

Morrissey v. Brewer, supra, 408 U. S. at 481. This bal-

ancing test was further refined in Mathews v. Eldridge,

424 U.S. 319, 334-35 (1976). The Court stated that:

[I]dentifi-ation of the specific dictates of due pro-

cess genel illy requires consideration of three distinct

factors: First, the private interest that will be af-

fected by the official action; second, the risk of an

App. 15

erroneous deprivation of such interest through the

procedures used, and the probable value, if any, of

additional or substitute procedural safeguards; and

finally, the Government’s interest, including the fune-

tion involved and the fiscal and administrative

burdens that the additional or substitute procedural

requirement would entail.

Id. at 335.

The inmates’ interest is the avoidance of arbitrary

denial of parole when all of the requirements for release

. are satisfied. This is indeed a grievous loss. Although

the severity of the loss is not a factor in determining

whether governmental action implicates the Fourteenth

Amendment, it is a factor when considering the extent to

which procedural safeguards are required. Meachum v.

Fano, supra, 427 U.S. at 224; Goss v. Lopez, 419 U.S.

965, 575-76 (1975); Board of Regents v. Roth, 408 U.S.

064 (1972); United States ex rel. Johnson v. Chairman,

N. Y. State Bd. of Parole, supra, 500 F. 2d at 928.

On the other hand the Board has a substantial in-

terest in releasing a prisoner on parole at the appropriate

time. Society suffers both when the prisoner is released

before he is fully rehabilitated and when he is kept in

prison beyond the time when al! purposes of incarceration

have been served. Thus, the Board has an intercet in

seeing that parole is neither granted nor denied on the

basis of inaccurate information or an erroneous evalua-

tion. The Board has additional interests. It must be con-

cerned that the procedures adopted do not interfere with

the security of the institution or undermine discipline of

the prisoners. It must also be concerned about the in-

creased administrative burdens and costs occasioned by

the procedural safeguards.

App. 16

The task facing this court is to ascertain the minimal

requirements of fundamental fairness by balancing the

interests of the inmates in their statutorily granted ex-

pectation of meaningful consideration for parole and the

interests of the state and society in the orderly admin-

istration of the parole system.

We agree with the district court that a parole decision

is not a part of a criminal prosecution and the full pano-

ply of rights due a defendant in such proceedings does not

apply. See, e.g., Franklin v. Shields, 569 F. 2d 784, 800

(4th Cir. 1978) (en bane); Haymes v. Regan, 525 F. 2d

540 (2d Cir. 1975). See also Wolff v. McDonnell, supra,

418 U.S. at 556; Morrissey v. Brewer, supra, 408 U.S. at

482 n. 8. However, as to the precise procedural safe-

guards required by the due process clause, we agree com-

pletely with neither of the parties nor the district court.

We find that the procedures currently employed by the

Board are in certain respects constitutionally deficient

but the procedures required by Wolff v. McDonnell, supra,

need not be followed in all respects in parole decisions in

state prisons. With the interests of the inmates and state

in mind, we will now consider each of the procedural pro-

tections required by the district vourt.4

In its decision of October 21, 1977, the district court

ordered that ‘‘[e]very inmate eligible for parole under

Nebraska law must be afforded a formal parole hearing.”

At a minimum, once it is determined that an interest is

4 We note that the procedural protections required by this

opinion are applicable only to inmates who are eligible for

parole. We do not discourage Nebraska from conducting

annual record reviews for all prisoners, see Neb. Rev. Stat.

§ 83-192(9), but this case only concerns those prisoners that

are eligible for parole.

App. 17

protected by the due process clause, a hearing for the

person affected is required. See Wolff v. McDonnell,

supra, 418 U. S. at 557-58; Mullane v. Central Hanover

Bank & Trust Co., 339 U.S. 306, 313 (1950). The inmates

contend that the district court required that all inmates

eligible for parole be given a formal parole hearing an-

nually, Although the district court’s opinion is arguably

ambiguous on this point, we understand it to only require

a formal parole hearing upon an inmate’s first becoming

eligible for parole. In any event, we hold that to comply

with the due process clause the Board has to provide a

formal parole hearing only when the inmate first becomes

eligible for parole. Subsequent formal parole hearings

need be held only in the discretion of the Board. We, of

course, do not discourage the Board from offering more

frequent formal parole hearings.

The second minimum requirement imposed by the

district court concerns the notice to be given to the in-

mates. It provides that:

At least seventy-two hours prior to the scheduled

time of the parole hearing each inmate under consid-

eration must receive written notice of the date and

hour for which his hearing is scheduled by the board,

which notice shall also include a concise listing of the

factors which may be considered in evaluating an in-

mate for discretionary parole.

This standard actually contains two separate require-

ments. Initially, we have no hesitation in deciding that

the due process clause entitles the inmates to receive

reasonable written notice of the date and hou: for the

hearing. Mullane v. Central Hanover Bank & Trust Co.,

supra, 339 U.S. at 318. Under normal circumstances we

App. 18

believe that a minimum advance notice of 72 hours, as

mandated by the district court, allows the prisoner a fair

opportunity to prepare for his appearance before the

Board. Thus, the current practice followed by the Board

of posting notice of the hearing at the institution on the

day of the hearing is constitutionally infirm.

We also agree with the district court that the notice

of the hearing must be accompanied by a listing of the

eriteria governing the Board’s parole decisions. It is only

fair to apprise the inmates of the standards to which they

must conform if they are to be released on parole. More-

over, the Board offers no justification for not providing

this information to the inmates. See Franklin v. Shields,

supra, 569 F. 2d at 791-93; Childs v. United States Board

of Parole, 371 F. Supp. 1246, 1247-48 (D. D. C.), aff'd, 511

F. 2d 1270 (D.C. Cir. 1974) (no appeal taken on this

point); Cooley v. Sigler, 381 F. Supp. 441, 444 (D. Minn.

1974). Contra, Haymes v. Regan, 525 F. 2d 540 (2d Cir.

1975). Neb. Rev. Stat. § 83-1,1145 lists the four reasons

for which parole may be denied to an eligible prison-

er. This section also provides 14 factors to be con-

sidered by the Board in making its decision of wheth-

er parole should be granted. We find that the stat-

utory criteria are sufficiently specific to enable the in-

mate to prepare his presentation to the Board. See

Franklin v. Shields, supra, 569 F. 2d at 791-92. We re-

iterate that a list of the factors considered by the Board

must accompany the notice of a hearing given to the pris-

oner, or preferably by posting the statutory criteria and

guidelines in the institutions in a place or places where

the inmates will have access to them.

5 See note 3, supra.

App. 19

The district court also found that to comply with the

due process clause ‘‘feJach inmate for whom a parole

hearing is scheduled must be allowed to appear in person

before the Board to present evidence in support of his

application subject to prison security considerations.’? In

its memorandum opinion the district court held, in reli-

ance on Wolff v. McDonnell, supra, that this standard in-

cluded the right to call witnesses subject to prison security

considerations and the need to keep the hearing within

limits. We affirm only in part. Subject to prison secur-

ity considerations an inmate must be allowed to appear

in person before the Board and to present documentary

evidence in support of his application for parole. Wol/f

v. McDonnell, supra; Mullane v. Central Hanover Bank &

Trust Co., supra. This means that in many eases it will

be desirable for the Board to give the applicant sufficient

notice to secure documentary evidence directed to the

Board’s function of predicting whether parole will be suc-

cessful. .

Under Nebraska law a prisoner has a right to be con-

sidered for parole on the basis of certain statutory spec-

ifications. To make this right effective a prisoner must

be given the opportunity to personally appear before the

Board to explain and amplify the information on which

the Board will base its decision. The administrative in-

convenience and cost of a personal hearing is not suffi-

cient to deprive the prisoner of this right. Moreover, a

personal hearing is also beneficial to the Board and so-

ciety insofar as the reliability of parole decision-making

is enhanced by personal hearings. However, in the ab-

sence of exceptional cireumstances the prisoner does not

have a constitutional right to call witnesses in his behalf

App. 20

in a formal parole hearing. Nevertheless, the Board in

its discretion may permit the prisoner to call witnesses.

In fact the record shows that currently the Board does

allow a prisoner afforded a formal parole hearing to have

witnesses. It follows from our holding that a prisoner

does not have a constitutional right to confront and cross-

examine adverse witnesses. See Wolff v. McDonnell,

supra, 418 U.S. at 566-69.

The order of the district court decreed that ‘‘[a]

record of the proceedings at the parole hearing must be

maintained.” It appears from the district court’s reliance

on Wolff v. McDonnell, supra, 418 U.S. at 565, in its

memorandum opinion that this standard requires that a

written record of the proceedings be maintained. Cur-

rently a record of the hearings is maintained by the Board

in the form of tape recordings. We find that this method

is constitutionally adequate provided that the recordings

are of sufficient quality to enable the record to be reduced

to writing.

The final requirement ordered by the district court is

that ‘‘{[wlithin a reasonable time following the parole

hearing, each inmate to whom parole is denied must, be

given a full and fair explanation, in writing, of the evi-

dence relied upon and the reasons for denial of parole.”

We affirm. Every circuit which has held that the due

process clause is applicable to parole release determina-

tions has found that the parole board must inform the

prisoner in writing of the reasons for denial of his ap-

plication for parole. See Franklin v. Shields, supra;

United States ex rel. Richerson v. Wolff, supra; Childs v.

United States Board of Parole, supra; United States ex

App. 21

rel. Johnson v. Chairman, N. Y. State Bd. of Parole,

supra. See also Wolff v. McDonnell, supra, 418 U.S. at

564-65.

We agree with the reasoning of the Second Circuit

that for a statement of reasons to satisfy minimal due

process requirements ‘‘detailed findings of fact are not re-

quired, provided the Board’s decision is based upon con-

sideration of all relevant factors and it furnishes to the

inmate both the grounds for the decision * * * and the

essential facts upon which the Board’s inferences are

based * * *.’’? United States ex rel. Johnson v. Chairman,

N. Y. State Bd. of Parole, supra, 500 F. 2d at 934. See

United States ex rel. Richerson v. Wolff, supra; Cooley v.

Sigler, supra, 381 F. Supp. at 448; Candirini v. Attorney

General, 369 F. Supp. 1132, 1137 n. 8 (EK. D. N. Y. 1974).

Cf. Franklin v. Shields, supra, 569 F. 2d at 797-98 n. 59,

801. The present practice of the Board is deficient in that

an inmate is not informed as to the essential facts relied

on by the Board in reaching its decision.

Providing a prisoner with the reasons for denial and

the essential facts relied on will serve at least four pur-

poses. Firstly, it will facilitate judicial review in those

situations where it is allowed. Secondly, it will promote

thought by the Board members and will compel them to

cover the relevant points and eschew _ irrelevances.

Thirdly, it will promote the goal of rehabilitation by re-

lieving the inmates’ frustration by instructing them how

they might be improving their prison behavior or taking

steps with respect to some other factor (e.g., prospective

employment or housing), better their chances for release.

In some situations a prisoner is not considered fit for

App. 22 |

parole because of a factor such as ‘a long history of re-

cidivism which the prisoner will not be able to remedy

even if the Board states its reasons in writing. Neverthe-

less, a statement of reasons is important in those situa-

tions because it will show that the Board has not acted

arbitrarily. Finally, by requiring the Board to state its

reasons for denial a body of rules, principles and prece-

dent which will promote consistency by the Board will be

established. United States ex rel. Johnson v. Chairman,

N. Y. State Bd. of Parole, supra, 500 F. 2d at 929, 931-33;

Cooley v. Sigler, supra, 381 F. Supp. at 443. See also

Childs v. United States Board of Parole, supra, 511 F. 2d

at 1281-84; Mower v. Britton, 504 F. 2d 396, 398-99 (10th

Cir. 1974); King v. United States, 492 F. 2d 1337, 1340-42

and n. 11 (7th Cir. 1974).

In summary, considering the Nebraska statutes gov-

erning parole and after weighing the interests of both

the state and the prisoners, we conclude that as a mini-

mum the due process clause of the Fourteenth Amend-

ment requires the following: (1) Every inmate is to re-

eeive a formal parole hearing upon first becoming eligible

for parole. Subsequent hearings are to be allowed in the

discretion of the Board. (2) Each inmate is to receive

a written notice of the date and hour of the hearing rea-

sonably in advance. This notice shall contain a list of the

factors which may be considered by the Board in making

its determination. (3) Subject to security considerations,

every inmate is allowed to appear in person before the

Board and present documentary evidence in sapport of

his application. In the absence of unusual circumstances

an inmate does not have a constitutional right to call

witnesses in his behalf. (4) A record of the proceedings

App. 23

which is capable of being reduced to writing must be main-

tained. (5) Within a reasonable time following the hear-

ing, each inmate to whom parole was denied must be given

a full and fair explanation, in writing, of the essential

facts relied upon and the reasons for denial of parole.

The district court by ‘its order of January 4, 1978,

allowed an award of attorney fees of $3,000, plus expenses

of $212.77, to be included as part of the taxation of costs

against the Board under the provisions of 42 U.S.C.

§ 1988. We follow the ruling of this court in Finney v.

Hutto, 548 F. 2d 740, 742 (Sth Cir.), cert. granted, 98 S.

Ct. 295 (1977) (No. 70-1660), that the Eleventh Amend-

ment does not prohibit an award of attorney fees under

section 1988 against a state agency although it is not a

named party to the lawsuit. The district court did not

abuse its discretion in awarding fees to the inmates in

this ease. See Wharton v. Knefel, 562 F. 2d 550 (Sth Cir.

1977). Accordingly, we affirm the award of attorney fees

against the members of the Board in their official ea-

pacities.

The decision of the district court is affirmed in part,

and reversed in part. The case is remanded to the dis-

trict court which in turn should remand to the Board of

Parole for the purpose of drawing up regulations imple-

menting the guidelines set out in this opinion.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS,

EIGHTH CIRCUIT.

App. 24

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

INMATES OF THE NEBRASKA PENAL AND

CORRECTIONAL COMPLEX,

Plaintiffs,

vs.

JOHN B. GREENHOLTZ,

Individually and as Chairman,

NEBRASKA BOARD OF PAROLE, et al.,

Defendants.

Civ. 72-L-335

MEMORANDUM OPINION

Filed October 21, 1977

This suit raises an important question of first im-

pression in this district: whether the due process clause

of the Fourteenth Amendment of the United States Con-

stitution extends to parole release determinations, and if

so, whether the safeguards currently available under ap-

plicable Nebraska law are constitutionally adequate.

Plaintiffs, inmates at the Nebraska Penal and Cor-

rectional Complex, Lineoln, Nebraska, bring this class

action under 42 U.S. C. §1983' alleging that their consti-

1 42 U.S.C. § 1983 reads:

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or

(Continued on next page)

App. 25

tutional right to due process is being violated in consider:

ation of their eligibility for parole and work release. The

named parties defendant are the members of the State of

Nebraska Board of Parole (hereafter referred to colleet-

ively as the Board).? Plaintiffs argue that the procedures

of the defendants violate due process in the following

particulars :

1) Failing to inform the inmates of the criteria

which they must meet to obtain a parole or work release;

2) Failing to inform the inmates in advance of the

date and time of their hearings before the Board of

Parole;

3) Failing to permit inmates to present evidence

and call wituesses in their own behalf;

(Continued from previous page)

Territory, subjects, or causes to be subjected, any citi-

zen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in an ac-

tion at law, suit in equity, or other proper proceeding

for redress.

2 This action was originally filed as a class action alleging un-

lawful denial of parole or work release because members

of the plaintiff class had exercised their right of access to

the courts, denial of parole or work release because of ra-

cially discriminatory reasons and violations of due process

in the process of determinations on parole and work release.

The court dismissed the due process claims and the matier

proceeded to judgment on the other claims of the plaintiff

class. On July 14, 1976, this court on its own motion va-

cated the order dismissing the due process claims, appoint-

ed counsel to represent the plaintiff class and began process-

ing of the claim as a separate lawsuit. The matter has now

been tried to the court and this memorandum constitutes

the findings of fact and conclusions of law mandated by

Fed. R. Civ. P. 52(a).

App. 26

4) Failing to confront the inmates with evidence

presented opposing their release on parole or work re-

lease;

5) Failing to give the inmates the right to cross-

examine witnesses appearing before the Board of Parole

in opposition to the inmates’ release on parole or work

release; -

6) Failing to maintain a complete and permanent

record of all proceedings held in considering release of

inmates on parole or work release;

7) Failing to permit full representation of inmates

by legal counsel in the proceedings had by the Board of

Parole and to provide such counsel upon a showing of

indigent status;

8) Failing to provide inmates denied parole or work

release with specific written reasons why such parole or

work release was denied; and

9) Failing to inform inmates denied parole or work

release of the evidence relied upon in reaching the de-

cision.

Plaintiffs request injunctive relief requiring the

Board to correct the above-alleged deficiencies and also

request damages.

At the outset the court points out that under Nebras-

ka law,’ the Board has no authority to grant work release

3 Neb. Rev. Stat. ¢ 83-184 (Reissue 1976) provides in pertinent

part:

(Continued on next page)

App. 27

status to any inmate. Although the Board may make a

recommendation in this regard, the ultimate decision rests

solely with the Director of Correctional Services. “The

director may refuse to release a prisoner for work under

the statute notwithstanding a favorable recommendation

by the Board of Parole.” Housand v. Sigler, 186 Neb.

414, 416, 183 N. W. 2d 493, 494 (1971). As noted above,

the only named defendants herein are the members of the

Board. Plaintiffs have failed or elected not to join as a

party to this action the state officer (Director of Cor-

rectional Services) charged with the responsibility and

authority to grant or deny work release. To enter or

enforce a judgment against a person not before the court

would clearly violate due process of law. See, e. 9., Han-

son v. Denckla, 357 U. 8. 235 (1958); Pennoyer v. Neff,

95 U. S. 714 (1878). Accordingly, this portion of plain-

tiffs’ claim will be dismissed for failure to join the Di-

rector as a defendant without whose presence the injune-

tive relief and damages sought cannot be obtained.

(Continued from previous page)

(1) When the conduct, behavior, mental attitude and

conditions indicate that a person committed to the de-

partment and the general society of the state will

be benefited, and there is reason to believe that the

best interests of the people of the state and the person

committed to the department will be served thereby,

in that order, and upon the recommendation of the

Board of Parole in the case of each committed offender,

the Director of Correctional Services may authorize

such person, under prescribed conditions to:

* * *

(b) Work at paid employment or participate in a

training program in the community on a voluntary

—

App. 28

The primary issue raised herein is whether any con-

stitutionally mandated procedural safeguards apply to

procedures resulting in determination regarding an in-

mate’s release on parole. We hold that certain procedural

safeguards are constitutionally required as spelled out

hereinafter.

Initially we note that a conflict over this issue pres-

ently exists among the various Courts of Appeal. See

Childs v. United States Board of Parole, 511 F. 2d 1270

(D. C. Cir. 1974) (due process applies to the extent that

reasons must be given for denial of parole); United

States ex rel. Johnson v. Chairman, New York State

Board of Parole, 500 F. 2d 925 (2d Cir.) (due process

applies to the extent that reasons must he given for

denial of parole), vacated as moot, sub nom Regan v.

Johnson, 419 U. S. 1015 (1974); Bradford v. Weinstein,

519 F. 2d 728 (4th Cir. 1974) (due process applies al-

though the extent thereof undecided), vacated as moot,

423 U. S. 147 (1975); United States ex rel. Richerson v.

Wolff, 525 F. 2d 797 (7th Cir. 1975) (due process applies

to the extent that a written statement of reasons must be

given for denial of parole), cert. denied, 425 U. S. 914

(1976); Scarpa v. United States Board of Parole, 477

F. 2d 278 (5th Cir.) (en banc) (due process does not

apply), vacated and remanded to consider mootness, 414

U.S. 809 (1973), dismissed as moot, 501 F. 2d 992; Brown

v. Lundgren, 528 F. 2d 1050 (Sth Cir. 1976) (due process

does not apply); Scott v. Kentucky Board of Parole, No.

74-1899 (6th Cir. Jan. 15, 1975) (unpublished order hold-

ing that the requirements of due process are not applic-

able to parole release hearings), vacated and remanded

App. 29

to consider mootness, 429 U. S. 60 (1976) (on remand

— F. 2d —, June 7, 1977).

The Fourteenth Amendment prohibits any state from

depriving a person of life, liberty or property without

due process of law.

Application of this prohibition requires the familiar

two stage analysis: we must first ask whether the

asserted individual interests are encompassed within

the Fourteenth Amendment’s protection of “life, lib-

erty or property;” if protected interests are impli-

eated, we must then decide what procedures consti-

tute “due process of law.” (Citations omitted.)

Ingraham v. Wright, — U. S. —, 45 U.S. L. W. 4364,

4369 (No. 75-6527, April 19, 1977).

Following that analysis here, the initial inquiry is wheth-

er the denial of discretionary parole deprives or impli-

eates an interest of plaintiffs within the meaning of the

due process clause.

‘*[TJo determine whether due process requirements

apply in the first place, we must look not to the ‘weight’

but to the nature of the interest at stake.” Board of

Regents v. Roth, 408 U. S. 564, 570-71 (1972). See also

4 See also King v. United States, 492 F. 2d 1337 (7th Cir.

1974), which held that the United States Board of Parole is

obligated under the Administrative Procedure Act, 5 U.S.C.

§ 555(e) to give a statement of grounds for denial of parole.

The court, however, further noted:

(A) substantial argument can be made that some modi-

cum of due process attend the denial of the expecta-

tion of conditional freedom on parole inasmuch as its

determination after having been granted inflicts a

“grievous loss” of a ‘‘valuable liberty.”

Id. at 1343.

App. 30

Ingraham v. Wright, supra, — U.S. at —, 45 U.S. L. W.

at 4370; Meachum v. Fano, 427 U. S. 215, 223-24 (1976).

The Supreme Court has addressed the nature of an

inmate’s interest encompassed within the due process

clause in a trilogy of recent decisions: Morrissey v. Brew-

er, 408 U. S. 471 (1972); Gagnon v. Scarpelli, 411 U. S.

778 (1973); and Wolff v. McDonnell, 418 U. 8. 539 (1974).

In Morrissey, the due process clause was held applic-

able to proceedings resulting in revocation of parole. The

Court discussed the substantial function of parole in the

correctional process.

During the past 60 years, the practice of releas-

ing prisoners on parole before the end of their sen-

tences has become an iutegral part of the penological

system. Note, Parole Revocation in the Federal Sys-

tem, 56 Geo. L. J. 705 (1968). Rather than being an

ad hoc exercise of clemency, parole is an established

variation on imprisonment of convicted criminals. Its

purpose is to help individuals reintegrate into society

as constructive individuals as soon as they are able,

without being confined for the full term of the sen-

tence imposed. It also serves to alleviate the costs

to society of keeping an individual in prison. The

essence of parole is release from prison, before the

completion of sentence, on the condition that the

prisoner abide by certain rules during the balance of

the sentence.

408 U. S. at 477. (Footnote omitted.)

More importantly, however, the Court examined the

parolee’s interest in conditional liberty.

We turn to an examination of the nature of the in-

terest of the parolee n his continued liberty. The

liberty of a parolee enables him to do a wide range

cf things open to persons who have never heen con-

App. 31

victed of any crime. The parolee has been released

from prison based on an evaluation that he shows

reasonable promise of being able to return to society

and function as a responsible, self-reliant person.

Subject to the conditions of his parole, he can be

gainfully employed and is free to be with family and

friends and to form the other enduring attachments

of normal life. Though the State properly subjects

him to many restrictions not applicable to other citi-

zens, his condition is very different from that of

confinement in a prison. He may have been on parole

for a number of years and may be living a relatively

normal life at the time he is faced with revocation.

The parolee has relied on at least an implicit promise

that parole will be revoked only if he fails to live up

to the parole conditions. In many eases, the parolee

faces lengthy inearceration if his parole is revoked.

408 U.S. at 481-82 (Footnotes omitted.)

The Court concluded:

We see, therefore, that the liberty of a parolee, al-

though indeterminate, includes many of the core val-

ues of unqualified liberty and its termination inflicts

a “grievous loss” on the parolee and often on others.

It is hardly useful any longer to try to deal with this

problem in terms of whether the parolee’s liberty is

a “right” or a “privilege”. By whatever name, the

liberty is valuable and must be seen as within the

protection of the Fourteenth Amendment. Its term-

ination calls for some orderly process, however in-

formal.

408 U.S. at 482.

App. 82

Thus, the Supreme Court explicitly rejected the charac-

terization of the government benefit as a “right” or a

“privilege”.

The Supreme Court next decided Gagnon v. Scarpelli,

supra, 411 U. S. 778. Finding no “difference relevant to

the guarantee of due process between the revocation of

parole and the revocation of probation * * *”, 411 U.S.

at 782, the Court held the standards of due process pre-

scribed in Morrissey also applied to parole revocation

proceedings.

Thereafter, in Wolff v. McDonnell, supra, 418 U.S.

539, the Supreme Court extended application of the due

process clause to prison disciplinary proceedings which

might result in the forfeiture of good-time credits. The

Court emphasized that prisoners are not stripped of their

constitutional rights by virtue of their imprisonment.

There is no iron curtain drawn between the Constitu-

tion and the prisons of this country. * * * They

(prisoners) may not be deprived of life, liberty, or

property without due process of law. Haines v. Ker-

ner, 404 U. S. 519 (1972); Wilwording v. Swenson,

404 U. S. 249 (1971); Screws v. United States, 325

U.S. 91 (1945).

418 U.S. at 555-56.

5 The right-privilege distinction has also been rejected as a

basis for constitutional analysis in several other areas. Sugar-

man v. Dougall, 413 U. S. 634 (1973); Perry v. Sindermann,

408 U. S. 593 (1972); Board of Regents v. Roth, 408 U. S.

564 (1972); Graham v. Richardson, 403 U. S. 365 (1971);

Bell v. Burson, 402 U. S. 535 (1971); Goldberg v. Kelly, 397

U. S. 254 (1970). See aiso Van Alstyne, Demise of the Right-

Privilege Distinction in Constitutional Law, 81 Harv. L. R.

1439 (1968).

App. 33

The Court continued:

It is true that the Constitution itself does not guar-

antee good-time credit for satisfactory behavior while

in prison. But here the State itself has not only

provided a statutory right to good time but also

specifies that it is to be forfeited only for serious

misbehavior. Nebraska may have the authority to

create, or not, a right to a shortened prison sentence

through the accumulation of credits for good behav-

ior, and it is true that the Due Process Clause does

not require a hearing “in every conceivable case of

government impairment of private interest.” Cafe-

teria Workers v. McElroy, 367 U. S. 886, 894 (1961).

But the State having created the right to good time

and itself recognizing that its deprivation is a sane-

tion authorized for major misconduet, the pr.soner’s

interest has real substance and is sufficiently em-

braced within the Fourteenth Amendment “liberty”

to entitle him to those minimum procedures appropri-

ate under the circumstances and required by the Due

Process Clause to insure that the state-created right

is not arbitrarily abrogated. This is the thrust of

recent cases in the prison disciplinary context.

* * *

We think a person’s liberty is equally protected,

even when the liberty itself is a statutory creation of

the State. The touchstone of due process is protec-

tion of the individual against arbitrary action of

government, Dent v. West Virginia, 129 U. S. 114, 123

(1889). Since prisoners in Nebraska can only lose

good-time credits if they are guilty of serious mis-

conduct, the determination of whether such behavior

has occurred becomes critical, and the minimum re-

quirements of procedural due process appropriate for

the circumstances must be observed.

Following this same rationale, the Court of Appeals

for the District of Columbia held in Childs v. United

App. 34

States Board of Paroles, supra, 511 F. 2d 1270, that due

process is applicable to federal parole release procedures.

The deprivations due to revocation of the condi-

tional liberty enjoyed by a parolee demonstrate the

serious effects of denial of parole. The applicant is

deprived of the valuable features of conditional lib-

erty described by the Court. This seems to us to

place the procedures by which this deprivation is

accomplished by the government under a standard of

due process. The Board holds the key to the lock of

the prison. It possesses the power to grant or to

deny conditional liberty. In the exercise of its broad

discretion it makes judgments concerning the readi-

ness of an inmate to conduct himself in a manner

compatible with the well-being of the community and

himself. If the Board’s decision is negative, the

prison is deprived of conditional liberty. The result

of the Board’s exercise of its discretion is that an

applicant either suffers a “grievous loss” or gains a

conditional liberty. His interest accordingly is sub-

stantial. We think it follows that the parole decision

must be guided by minimal standards of due process

of law which at the same time reflect the need of

the parole system to function consistently with its

purposes and responsibilities.

* * *

Just as the (Supreme) Court found in Wolff that

the State, having created the valuable right to good

time, must act according to constitutional safeguards

when it withdraws the right, so here, where the fed-

eral government has made parole an integral part of

the penological system, I believe it is also essential

that authority to deny parole not be arbitrarily exer-

eised. While the applicant’s status is not changed by

such a denial in the sense that he remains in the

same custodial situation as before, the necessity of

due process to support the denial is not therefore

obviated, for the status remains the same because of

App. 35

a Board determination which if favorable would have

changed the status to one of greater liberty.

O11 EF. 2d at 1278, 1280.

There is no doubt a technical distinction between the

situations in Morrissey, Gagnon and Wolff when com-

pared to the situation in the instant case. In Morrissey,

Gagnon and Wolff, a “liberty” (i.¢., parole, probation

and good-time credits) already afforded the individual

was subject to termination or forfeiture. Here, however,

the “liberty” has not yet been granted and is only pro-

spective. The distinction, however, is not persuasive and,

in any event, seems to this Court to be a subtle distine-

tion without a real difference. This Court is in agree-

ment with Bradford v. Weinstein, 519 F. 2d 728 (4th Cir.

1974), in holding that the present enjoyment of a pro-

tectable interest is not a prerequisite of due process.

(The) present enjoyment of a protectable interest is

not a prerequisite of due process. See Goldsmith v.

Board of Tax Appeals, 270 U. S. 117, 46 8S. Ct. 215,

70 L. Ed. 494 (1926) (right of C. P. A. to practice

before the Board of Tax Appeals); Willner v. Com-

mittee on Character and Fitness, 373 U. S. 96, 83

S. Ct. 1175, 10 L. Ed. 2d 224 (1963), and Schware

v. Board of Bar Examiners, 353 U. S. 232, 77 S. Ct.

752, 1 L. Ed. 2d 796 (1957) (admission to the bar);

Speiser v. Randall, 357 U. S. 513, 78 S. Ct. 1332, 2

L. Ed. 2d 1460 (1958) (right to a tax exemption).

519 F. 2d at 732 n. 3.

Of course, the “nature of the interest at stake” in both

parole release and parole revocation proceedings is the

same: conditional liberty versus incarceration. See Childs

v. United States Board of Parole, supra, 511 F. 2d at

1278. See also Bradford v. Weinstein, 519 F. 2d at 732;

App. 36

United States ex rel. Johnson v. Chairman of New York

State Board of Parole, supra, 500 F. 2d at 928.

It is the opinion of this Court that the inmate has

more at stake in a parole release proceeding than in the

institutional disciplinary hearing which was the situation

in Wolff.

(T)he prospective parolee stands to gain immediately

conditional release, while being “acquitted” in a good-

time forfeiture hearing means only that the inmate’s

tentative future release date will not be postponed.

Parole Release Decision Making and the Sentencing

Process, 84 Yale L. J. 810, 852 (1975).

The Court concludes that an inmate’s right to parole

is a valid aspect of “liberty” under contemporary stand-

ards of justice and that the denial of that “liberty” con-

stitutes a grievous loss.° It follows that the critical

parole decision must be guided by certain minimum re-

quirements of procedural due process.

As in Morrissey, supra, 40€& CU. S. at 481, “the ques-

J) J |

tion remains what process is due.”

“*(T))ue process,’ unlike some legal rules, is not a

technical conception with a fixed content unrelated to

6 Compare Meachum v. Fano, 427 U. S. 215 (1976), wherein

the court held that a state inmate was not entitled to a hear-

ing when he was transferred to a prison with less favorable

conditions, absent a state law or practice conditioning such

transfer on proof of a serious misconduct or the occurrence

of some other event. The court, citing Wolff v. McDonnell,

supra, reaffirmed that a liberty interest may have its roots

in state law and that due process requires minimum proced-

ures to insure that the state created right is not arbitrarily

abrogated, 427 U. S. at 226. In the instant case the right

to consideration for parole is recognized in Neb. Rev. Stat.

§§ 83-1,107 through 83-1,112 (Reissue 1976).

App. 37

time, place and circumstances.” Cafeteria Workers

v. McElroy, 367 U. S. 886, 895 (1961). “(D)ue pro-

cess is flexible and calls for such procedural protec-

tions as the particular situation demands.” Morrissey

v. Brewer, 408 U. S. 471, 481 (1972). Accordingly,

resolution of the issue * * * requires analysis of the

governmental and private interests that are affected.

Arnett v. Kennedy, 416 U. S. at 167-168 (Powell, J.,

concurring in part); Goldberg v. Kelly, 397 U.S. at

263-266 ; Cafeteria Workers v. McElroy, supra, at 895.

More precisely, our prior decisions indicate that iden-

tification of the specific dictates of due process gen-

erally requires consideration of three distinct factors:

first, the private interest that will be affected by the

otficia! action; second, the risk of an erroneous de-

privation of such interest through the procedures

used, and the probable value, if any, of additional or

substitute procedural safeguards; and finally, the

government’s interest, including the function involved

and the fiseal and administrative burdens that the

additional or substitute procedural requirement would

entail. See, e.g., Goldberg v. Kelly, supra, at 263-

271.

Matthews v. Eldridge, 424 U. S. 319, 334-35 (1976).

Accordingly, the interests of the individual and the state

must be carefully balanced to arrive at the requisite pro-

cedural protections. The inmate’s interest in the Board's

decision to grant or deny his parole is, of course, enor-

mous. Simply put, the decision determines “whether (lhe)

will be free or in prison, a matter of obvious great mo-

ment to him.” Wolff v. McDonnell, supra, 418 U. S. at

060.7 On the other hand it is equally clear that the Board

has a very substantial interest in deciding whether and

7 In Wolff, however, the court noted that the deprivation of

good-time credits did not involve an immediate change in

the conditions of the inmate’s liberty. 418 U. S. at 561.

App. 38

when release on parole is appropriate. Yet, the Board

has no interest in denying parole without certain mini-

mum procedural safeguards to insure an informed evalu-

ation and an accurate decision on the subject. An equally

important governmental interest should be the fair and

equal treatment of individuals so as to “enhance the

chance of rehabilitation by avoiding reactions to arbi-

trariness.” Morrissey v. Brewer, supra, 408 U. S..at 484.

This court rejects plaintiffs’ argument that the full

panoply of rights mandated in an adversary criminal

proceeding should be afforded an inmate in a parole re-

lease proceeding. “(T)he full trappings of adversary

* * * would in all likelihood so bur-

trial-type hearings

den and delay the entire parole release process as to dis-

advantage the very interests of the inmates as well as the

publie interests.” Beckworth v. New Jersey State Board

of Parole, 62 N. J. 348, 301 A. 2d 728 (1973).8

8 The plaintiffs alternatively argue that the requisite procedur-

al protection should be the same as recognized in parole

revocation proceedings under Morrissey. These would in-

clude:

(a) written notice of the claimed violations of parole;

(b) disclosure to the parolee of evidence against him;

witnesses and documentary evidence; (d) the right to

confront and cross-examine adverse witnesses (unless

the hearing officer specifically finds good cause for not

allowing confrontation; (e) a ‘neutral and detached’

hearing body such as a traditional parole board, mem-

bers of which need not be judicia! officers or lawyers;

and (f) a written statement by the factfinders as to the

evidence relied on and reasons for revoking parole.

408 U. S. at 489.

(Continued on next page)

App. 39

In attempting to strike a balance between the com-

peting interests involved, the court finds Wolff v. Mce-

Donnell, supra, 418 U.'S. 539, most analagous to the in-

stant case. Using the standards set out therein as a

model, the Court adopts the following minimum require-

ments of procedural due process as applicable to the

instant case;

1) Every inmate eligible for parole under Nebraska

law must be afforded a formal parole hearing.

2) At least seventy-two hours prior to the scheduled

time of the parole hearing, each inmate under considera-

tion must receive written notice of the date and hour for

which his hearing is scheduled by the Board. Accom-

panying the notice of hearing shall be a concise listing of

the factors which the Board might in appropriate cases

consider in evaluating any eligible inmate for discretion-

ary parole. The notice required here will insure the

eligible inmate a fair opportunity to prepare for his ap-

pearance and presentation before the Board, if he desires

to do so.

3) Each inmate for whom a parole hearing is sched-

uled must be allowed to appear in person before the

(Continued from previous page)

Within the present prison context, however, these require-

ments carry the potential for disrupting the efficient admin-

istration of the parole process and for interfering with insti-

tutional safety and correctional goals. See Baxter v. Pal-

migiano, 425 U. S. 308 (1976). In Wolff, the court specifical-

ly noted the special tension and dangers inherent in con-

frontational procedures within a prison. 418 U. S. at 561-

63. The process rights must afford a “mutual accommoda-

tion between institutional needs and objectives and the pro-

visions of the Constitution that are of general application.”

418 U. S. at 556.

App. 40

Board to present evidence in support of his application,

subject to prison security considerations. The seope of

this right, and its rationale is well stated in Wolff, eom-

mencing at page 566.

Ordinarily, the right to present evidence is basic to

a fair hearing; but the unrestricted right to eall wit-

nesses from the prison population carries obvious po-

tential for disruption and for interference with the

swift punishment that in individual cases may be

essential to carrying out the correctional program of

the institution. We should not be too ready to exer-

cise oversight and put aside the judgment of prison

administrators. It may be that an individual threat-

ened with serious sanctions would normally be en-

titled to present witnesses and relevant documentary

evidence; but here we must balance the inmate’s in-

terest in avoiding loss of rood time against the needs

of the prison, and some amount of flexibility and

accommodation is required. Prison officials must

have the necessary discretion to keep the hearing

within reasonable limits and to refuse to eall wit-

nesses that may create a risk of reprisal or under-

mine authority, as well as to limit access to other

inmates to collect statements or to compile other

documentary evidence. Although we do not prescribe

it, it would be useful for the Committee to state its

reason for refusing to call a witness, whether it be

for irrelevance, lack of necessity, or the hazards pre-

sented in individual eases. Any less flexible rule

appears untenable as a constitutional matter, at leas!

on the record made in this ease. The operation of a

correctional institution is at best an extraordinary

difficult undertaking. Many prison officials, on the

spot and with the responsibility for the safety of in-

mates and staff, are reluctant to extend the unquali-

fied right to call witnesses; and in our view, they

must have the necessary discretion without being

subject to unduly crippling constitutional innedi-

App. 41

ments. There is this much play in the joints of the

Due Process Clause, and we stop short of imposing

a more demanding rule with respect to witnesses and

documents.

Confrontation and _ cross-examination present

greater hazards to institutional interests. If confron-

tation and cross-examination of those furnishing evi-

dence against the imnate were to be allowed as a mat-

ter of course, as in criminal trials, there would be con-

siderable potential for havoe inside the prison walls.

Proceedings would inevitably be longer and tend to

unmanageability. These procedures are essential in

criminal trials where the accused, if found guilty, may

be subjected to the most serious deprivations, Pointer

v. Texas, 380 U. S. 400 (1965), or where a person may

lose his job in society, Greene v. McElroy, 360 U. S.

474, 496-497 (1959). But they are not rights uni-

versally applicable to all hearings. See Arnett v.

Kennedy, 416 U. S. 134 (1974). Rules of procedure

may be shaped by consideration of the risks of error,

In re Winship, 397 U.S. 358, 368 (1970) (Harlan, J.

concurring) ; Arnett v. Kennedy, supra, p. 171 (White,

J., coneurring in part and dissenting in part), and

should also be shaped by the consequences which will

follow their adoption. Although some States do seem

to allow cross-examination in disciplinary hearings,

we are not apprised of the conditions under which

the procedure may be curtailed; and it does not ap-

pear that confrontation and cross-examination are

generally required in this context. We think that the

Constitution should not be read to impose the pro-

cedure at the present time and that adequate bases for

decision in prison disciplinary cases can be arrived at

without cross-examination.

The insertion of counsel into the disciplinary

process would inevitably give the proceedings a more

adversary cast and tend to reduce their utility as a

means to further correctional goals. There would

App. 42

also be delay and very practical problems in provid-

ing counsel in sufficient numbers at the time and

place where hearings are to be held. At this stage

of the development of these procedures we are not

prepared to hold that inmates have a right to either

retained or appointed counsel in disciplinary proceed-

ings.

Where an illiterate inmate is involved, however,

or where the complexity of the issue makes it unlikely

that the inmate will be able to collect and present the

evidence necessary for an adequate comprehension of

the case, he should be free to seek the aid of a fellow

inmate, or if that is forbidden, to have adequate sub-

stitute aid in the form of help from the staff or from

a sufficiently competent inmate designated by the

staff. 418 U.S. at 566-68, 570.

(4) <A record-of the proceedings at the parole hear-

ing must be maintained. As the court noted in Wolf at

page 565:

Written records of proceedings will thus protect the

inmate against collateral consequences based on a

misunderstanding of the nature of the original pro-

ceeding. Further, * * * the provision for a written

record helps to insure that administrators, faced with

possible scrutiny by state officials and the public, and

perhaps even the courts, where fundamental constitu-

tional rights may have been abridged, will act fairly.

Without written records, the inmate will be at a

severe disadvantage in propounding his own cause

to or defending himself from others. It may be that

there will be occasions when personal or institutional

safety is so implicated that the statement may prop-

erly exclude certain items of evidence, but in that

event the statement should indicate the fact of the

omission. Otherwise, we perceive no conceivable re-

Labilitative objective or prospect of prison disrup-

App. 43

tion that can flow from the requirement of these

statements.

418 U.S. at 565. (Footnote omitted.)

(5) Within a reasonable time following the parole

hearing, each inmate to whom parole is denied must be

given a full and fair explanation, in writing, of the evi-

dence relied upon and the reasons for denial of parole.

This requirement was specifically approved in Wolff, 418

U.S. at 564. By stating its reasons for denying parole,

the Board will promote several important functions:

First, stating reasons for the denial of parole might

help to rehabilitate the prisoner through education

and guidance through self-improvement. Second, the

reasons might help relieve the frustration resulting

from a lack of knowledge of how one is being meas-

ured for release. Third, a policy of openness and

honesty would be promoted, thereby exposing arbi-

trariness within the decision-making process, and al-

lowing for the development of a body of acceptable

decision-making formula.

Comment 6 St. Mary’s Law Journal, 478, 487 (1974).

See also United States ex rel. Johnson v. Chairman of

New York Board of Parole, supra, 500 F. 2d at 931-933;

Childs v. United States Board of Parole, supra, 511 F. 2d

at 1282-83.

A requirement that the Board state its reasons

in each case for denial of parole would also serve

purposes other than facilitating judicial review, which

are peculiarly appropriate for parole release deter-

minations. A reasons requirement ‘‘promotes thought

by the decider,’’ and compels him ‘‘to cover the rele-

vant points’’ and ‘‘eschew irrelevancies.’’ See Frank-

el, Criminal Sentences 40-41 (1973).

App. 44

Besides safeguarding against purely arbitrary

denials of parole, a reasons requirement can serve

the important function of promoting rehabilitation

by relieving inmates’ frustrations and letting them

know how they might, by improving their prison be-

havior or taking steps with respect to some other

factor in doubt (e. g., prospective employment or

housing), better their chances for release. 500 F. 2d

at 931-32.

In King, decided under the ‘‘reasons’’ require-

ment of the Administrative Procedure Act, the court

referred with approval to the recommendations of the

Administrative Conference of the United States (25

Ad. L. Rev. 459, 484-85 (Fall, 1973)). The court quot-

ed a report used by the Conference in preparing its

recommendations:

‘‘Giving reasons for denying parole is desirable

for both rehabilitational and legal reasons. A prison-

er may feel less resentful of a negative decision if he

knows the reasons for it, and in planning his activities

in the institution he ought to understand clearly what

will help him to obtain an early parole. When the

nature of his crime is such that early parole is not

likely in any event, he should be protected from un-

realistic hopes that can only lead to disappointment

and bitterness. All this is the job of a prison coun-

selor in any case, but the Parole Board can make that

job much easier by formally stating its reasons.’’ 492

F. 2d at 1340 n. 11. The court expressed awareness

of the pitfalls enumerated by the Conference to be

avoided in the giving of reasons, 7d, at 1341 n. 12,

but did not consider that they overcame the need for

a statement of reasons, nor had the Conference itself

done so.

Childs v. United States Board of Parole, 511 F. 2d

1270, 1282 (1974).

It is this court’s judgment that the above procedures

represent a reasonable and proper accommodation between

ee_rlee

App. 45

the interests of prospective parolees and the interests of

the state and which will not unduly burden the Board’s

task.

We turn to the question of whether the safeguards

currently afforded under Nebraska law are adequate. The

Nebraska statutory scheme provides for a two-step hearing

process in discretionary parole proceedings.? The first

step is a ‘‘ecase and record review hearing.” These hear-

ings are conducted at least annually by the Board for

all inmates, regardless of their eligibility for parole. See

Neb. Rev. Stat. § 83-192(9) (Reissue 1976).'°

In practice, the review hearing consists of a five-to-

ten minute appearance of each inmate before the Board.

9 Discretionary parole, as defined by the Board, is a release

on parole by virtue of an exercise of discretion on the part

of the Board, such release occurring prior to expiration of

the maximum term of imprisonment imposed by the sen-

tencing court. An inmate becomes eligible for release on

discretionary parole upon completion of his minimum term

of confinement .ess any deduction for good behavior. In

the case of an inmate serving consecutive sentences, he be-

comes eligible for parole upon completion of the total of

the minimum term, less any reduction for good behavior.

See Neb. Rev. Stat. § 83-1,110 (Reissue 1976).

10 Neb. Rev. Stat. § 83-192(9) (Reissue 1976) reads:

The Board of Parole shall:

* * *

(9) Review the record of every committed offender,

whether or not eligible for parole, not less than once

each year. Such review shall include the circumstances

of the offender’s offense, the presentence investigation

report, his previous social history and criminal record,

his conduct, employment, and attitude during commit-

ment, and the reports of such physical and mental ex-

aminations as have been made. The board shall meet

with such offender and counsel him concerning his

progress and his prospects for future parole.

App. 46

The inmates do not have the right to present documentary

evidence or to call witnesses in their own behalf. Follow-

ing the review hearing, an inmate is either deferred for

later consideration, or if eligible for a discretionary pa-

role"' and if approved by the Board, he is scheduled for

a parole hearing.

In the case of a deferral, the inmate receives a Form

PB-1 informing the inmate of the reasons for denial and

making recommendations for correcting deficiencies. The

form further specifies the month, but not the date or time,

of the next review hearing.

If, on the other hand, after the review hearing, the

Board schedules the inmate for a formal parole hearing,

the second stage of the hearing process, the inmate re-

ceives a Form PB-2, notifying him that he is eligible for

parole and identifying the month when a hearing will be

held. Notification of the exact date and time of the hear-

ing is posted at the Penal Complex on the date of the hear-

ing. Subsequently, inmates denied parole are notified by

letter as required by Section 88-1,111(2). The letter

usually, but not always, contains the reasons for denial.

In no ease is the inmate advised of the evidence relied

on by the Board in reaching its decision."

It would serve no purpose to delineate further the

practices of the Board with regard to the scheduling and

conducting of the hearings for inmates eligible for pa-

11 See Note 9, supra.

12 Neb. Rev. Stat. ¢ 83-1,111(1) (Reissue 1976) requires that a

complete record of the proceedings at a parole hearing be

maintained, but does not specify that the Board identify

the evidence upon which it relies in reaching a decision.

App. 47

role.‘ Suffice it to say that in respect to the procedures

which this court holds are required as a minimum, the

present practice of the Board falls short in some instane-

es, and is broader than what this Court requires in other

instances.

Having determined that not all constitutionally man-

dated safeguards are currently provided by defendants,

the remaining issue is what forms of relief are appro-

priate. Plaintiffs are entitled to injunctive relief and

to that end a judgment will be entered this day requiring

the defendants to implement and put into effect the pro-

cedures required by this determination within sixty days

from this date. This is not to suggest that the Board in

its discretion may not continue practices beyond those

mandated herein but only to require that at a minimum

those provisions be implemented.

Plaintiffs’ request for monetary damages is denied.

Plaintiffs have not adequately proved that they have sus-

tained actual damages as a result of the activities of the

defendants. The evidence indicates that the defendants

have acted in good faith to discharge their responsibilities

as fairly and equitably as possible. In view of the novel-

ty of the issues presented in this jurisdiction and the split

in other circuits on the question involved here, the evi-

dence does not warrant a finding which justifies a mone-

13 In view of the determination regarding the minimum safe-

guards necessary for parole hearings, we do not pass on

the validity of certain practices mandated by Nebraska stat-

utes or policies such as furnishing information or records

to an inmate and his right to confer with others in prepara-

tion of his presentation before the Board (Neb. Rev. Stat.

§ 83-1,112).

App. 48

tary award in this case. See Pierson v. Ray, 386 U.S.

547 (1967); Scheuer v. Rhodes, 416 U. S. 232 (1974);

Wood v. Strickland, 420 U. 8. 308 (1975).

Under the provisions of 42 U.S.C. § 1988 the court

finds that plaintiffs should be allowed a reasonable at-

torney fee as a part of the costs to be borne by the de-

fendants. The court will leave to the parties the task

of determining an appropriate fee for the appointed coun.

sel for plaintiffs with the admonition that should the

parties be unable to agree on an amount, they may apply

to this court for determination of the fee. The taxing of

costs, including attorney fees, whether agreed upon or

not, shal! not operate to preclude any party from imme-

diately exercising its appeal rights should it desire to

do so.

Consistent with this memorandum, a separate order

will be entered this day.

BY THE COURT:

/s/ Albert G. Schatz

Judge, United States Disirict Court

App. 49

APPENDIX C

83-192. The Board of Parole shall:

(1) Determine the time of release on parole of com-

mitted offenders eligible for such release;

(2) Fix the conditions of parole, revoke parole,

issue or authorize the issuance of warrants for the arrest

of parole violators, and impose other sanctions short of

revocation for violation of conditions of parole;

(3) Determine the time of discharge from parole;

(4) Visit and inspect any facility, state or local,

for the detention of persons charged with or convicted

of an offense, and for the safe-keeping of such other

persons as may be remanded thereto in accordance with

1aw ;

(5) Serve in an advisory capacity to the Director

of Correctional Services in administering parole services

within any facility and in the community;

(6) Interpret the parole program to the public with

a view toward developing a broad base of public sup-

port;

(7) Conduct research for the purpose of evaluating

and improving the effectiveness of the parole system;

(8) Recommend parole legislation to the Governor;

(9) Review the record of every committed offender,

whether or not eligible for parole, not less than once

each year. Such review shall include the circumstances

of the offender’s offense, the presentence investigation

report, his previous social history and criminal record,

App. ow

his conduct, employment, and attitude during commit-

ment, and the reports of such physical and mental ex-

aminations as have been made. The board shall meet

with such offender and counsel him concerning lis prog-

ress and his prospects for future parole;

(10) Make rules and regulations for its own admin-

istration and operation;

(11) Appoint and remove all employees of the board

and delegate appropriate powers and duties to them;

(12) Transmit annually to the Governor a report

of its work for the preceding calendar year, which report

shall be transmitted by the Governor to the Legislature ;

and

(13) Exercise all powers and perform all duties

necessary and proper in carrying out its responsibilities

under the provisions of this act.

83-1,111. (1) Every committed offender shall have

a hearing before a majority of the members of the Board

of Parole within sixty days before the expiration of his

minimum term less any reductions. Every committed

offender shall be interviewed within sixty days prior to

his final parole hearing by a member of the Board of

Parole. The hearing shall be conducted in an informal

manner, but a complete record of the proceedings shal!

be made and preserved.

(2) The board shall render its decision regarding

the committed offender’s release on parole within a rea-

sonable time after the hearing. The decision shall be

by majority vote of the board. The decision shall be

based on the entire record before the bourd, which shall

App. 51

include the opinion of the member who presided at the

hearing. If the board shall deny parole, written notifi-

cation listing the reasons for such denial and the recom-

mendations for correcting deficiencies which cause the

denial shall be given to the committed offender within

thirty days following the hearing.

(3) If the board fixes the release date, such date

shall be not more than six months from the date of the

committed offender’s parole hearing, or from the date

of last reconsideration of his case, unless there are spe-

cial reasons for fixing a later release date.

(4) If the board defers the case for later reeon-

sideration, the committed offender shall be afforded a

parole hearing at least once a year until a release date

is fixed. The board may order a reconsideration or a

rehearing of the case at any time.

(0) The release of a committed offender on parole

shall not be upon the application of the offender, but

by the initiative of the Board of Parole. No application

for release on parole made by a committed offender or

on his behalf shall be entertained by the board. Noth-

ing herein shall prohibit the Director of Correctional!

Services from recommending to the board that it con-

sider an individual offender for release on parole.

33-1,112. (1) Each committed offender eligible for

parole shall, in advance of his parole hearing, have a

parole plan in accordance with the rules of the Board

of Parole. Whenever the board determines that it will

facilitate the parole hearing, it may furnish the offender

with any information and records to be considered by

it at the hearing.

App. 52

(2) An offender shall be permitted to advise with

any person whose assistance he desires, including his

own legal counsel, in preparing for a hearing before the

Board of Parole.

83-1,114. (1) Whenever the Board of Parole con-

siders the release of a committed offender who is eligible

for release on parole, it shall order his release unless

it is of the opinion that his release should be deferred

because :

(a) There is a substantial risk that he will not con-

form to the conditions of parole;

(b) His release would depreciate the seriousness

of his crime or promote disrespect for law;

effect on institutional discipline; or

(d) His continued correctional treatment, medical

care, or vocational or other training in the facility will

substantially enhance his capacity to lead a law-abiding

life when released at a later date.

(2) In making its determination regarding a com-

mitted offender’s release on parole, the Board of Parole

shall take into account each of the following factors:

(a) The offender’s personality, including his ma-

turity, stability, sense of responsibility and any appar-

ent development in his personality which may promote

or hinder his conformity to law;

(b) The adequacy of the offender’s parole plan;

obligations and undertake responsibilities ;

’

App. 53

(d) The offender’s intelligence and training;

(e) The offender’s family status and whether he

has relatives who display an interest in him or whether

he has other close and constructive associations in the

community ;

(f) The offender’s employment history, his oceupa-

tional skills, and the stability of his past employment.

. rl = . . .

(g) The type of residence, neighborhood or com-

munity in which the offender plans to live;

(h) The offender’s past use of narcoties, or past

habitual and excessive use of alcoho};

(1) The offender’s mental or physical makeup, in-

cluding any disability or handicap which may affect his

conformity to law;

a ee i ' — ,

(J) The offender’s prior criminal record, ineluding

the nature and circumstances, recency and frequency of

previous offenses;

(k) The offender’s attitude toward law and author-

ity ;

(1) The offender’s conduct in the facility, including

particularly whether he has taken advantage of the op-

portunities for self-improvement, whether he has been

punished for misconduct within six months prior to his

hearing or reconsideration for parole release, whether

any reductions of term have been forfeited, and whether

such reductions have been restored at the time of hear-

ing or reconsideration;

App. o4

(m) The offender’s behavior and attitude during

any previous experience of probation or parole and the

recency of such experience; and

(n) Any other factors the board determines to be

relevant.

83-1,115. Before making a determination regarding

a committed offender’s release on parole, the Board of

Parole shall consider the following:

(1) A report prepared by the institutional case-

workers relating to his personality, social history and

adjustment to authority, and including any recommenda-

tions which the staff of the facility may make;

(2) All official reports of his prior criminal ree-

ord, including reports and records of earlier probation

and parole experiences;

(3) The presentence investigation report;

(4) Recommendations regarding his parole made at

the time of sentencing by the sentencing judge;

(5) The reports of any physical, mental and psy-

chiatric examinations of the offender;

(6) Any relevant information which may be sub-

mitted by the offender, his attorney, the victim of his

crime, or by other persons; and

(7) Such other relevant information concerning the

offender as may be reasonably available.

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.