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

Ce ee

Supreme Court, U. S

FILED

NOV 10 i978

APPENDIX MI@HAEL RODAK, JR., CLERK

In The

Supreme Court of the United States

October Term, 1977

nr

Vv

No. 78-201

ry

Vv

JOHN B. GREENHOLTZ, Individually, and as Chairman,

Nebraska Board of Parole; EUGENE E. NEAL, CATH-

ERINE 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.

ry

oe

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

PETITION FOR CERTIORARI FILED AUGUST 4, 1978

CERTIORARI GRANTED OCTOBER 2, 1978

COCKLE PRINTING CO., 2311 Douglas St., Omaba 68102

TABLE OF CONTENTS

‘Page

List of Relevant Docket Entries ........cccccccosoueesesnemeneeennnn 1

Opinion of the United States Court of Appeals,

I a a 2

Notation as to Opinion of the District Court 0.00000...

Amended Complaint wc TRAE EN her ee Taree Oe aT To

Answer to Amended Complaint ......0.00.0. Peak OW Aton Woh

Stipulation of Facts ................ sicpibiasticladpedglccd Nate caressa Sie

Order of the United States District Court,

I a enlamuapinesinbanismnicie

Judgment of the United States Court of Appeals,

dated May 18, 1978 .... on cal ess tee naa

ein cis nianasbebonialenl sealed

SEES Sy eR Se sets en 2 eee

Date No.

1972

Nov. 18 1

1973

Nov. 29 64

L976

Aug. 11 170

Aug. 11 171

Aug. 30 180

1977

Feb. 16 196

May 31 200

June 17 205

June 17 208

Oct. 21 210

RELEVANT DOCKET ENTRIES

Complaint.

Memorandum and Order (AGS) that Action

shall continue as a Class Action with Robert

McDonnell representing that Class, ete.; that

Defendants’ Motion to Strike allegations re-

garding removal of John Greenholtz as a

member of the Board is granted ete.

Copy mailed to Counsel of Record.

Plaintiffs’ Amended Complaint.

Motion to Designate New Representative

Parties For Class of Persons alleging Denial

of Due Process by Richard Walker, William

Randolph and Richard Leary and Robert L.

Gamron.

Defendants’ Answer to Amended Complaint.

Order (AGS) that Motion (filing No. 171)

is Granted—that -case is set for trial at a

date after 4-15-77.

Copies mailed to Counsel of Record.

Courtroom Minutes—trial before Judge

Schatz—Case submitted.

Motion to Designate New Representative

Parties for Class of Persons alleging Denial

of Due Process.

Order (AGS) designating additional Class

o 5

Representatives.

Copies mailed to Counsel of Record.

Memorandum Opinion.

1

2

Oct. 21 211 Order (AGS) that Defendants will implement

and put into effect within 60 days from this

date procedures that will safeguard the due

process rights of the plaintiff class, ete.

Copies mailed to Counsel of Record.

Nov. 7 212 Defendants’ Notice of Appeal to United

States Court of Appeals.

Copy mailed to Brian K. Ridenour, Counsel,

and to Jack Fitch, Court Reporter, 8015 U.

S. Courthouse, 215 North 17th Street, Oma-

ha, Nebraska 68101.

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 77-1889

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,

Appellegs,

VS.

JOHN B. GREENHOLTZ, Individually, and as Chairman,

Nebraska Board of Parole; EUGENE E. NEAL, CATH-

ERINE 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, Circuit Judge.

The defendants-appellants, members of the state of

Nebraska Board of Parole (Board), appeal from the de-

cision of the district court! in this class action suit arising

under 42 U.S.C. § 1983. The district court held that the

plaintiffs-appellees, inmates of the Nebraska Penal Com-

plex (inmates), had been denied procedural due process

by the Board in the Board’s consideration of the inmates

for suitability for parole.

This case raises the question of whether the due proc-

ess clause of the Fourteenth Amendment to the United

States Con-titution extends to parole release determina-

tions, and if so, whether the safeguards currently avail-

able under applicable Nebraska law are constitutionally

adequate. We affirm that the due process clause applies

to parole release proceedings. With respect to the spe-

cifie procedural safeguards which the district court found

were constitutionally required in such proceedings, we

affirm in part, reverse in part, and remand.

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

*The Honorable William H. Becker, Senior United States Dis-

trict 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.

charged with the responsibility of determining whether

and when an inmate should be released on discretionary

parole. Neb. Rev. Stat. §§ 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 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 hear-

ings 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 in-

stances were found between January 1975 and November

1976 in which reasons were not contained in the letter.

5

Inmates are notified either at the time of their origi-

nal confinement or at subsequent parole review hearings

or formal parole hearings of the month during which

their next hearing will be held. This general notification

occurs from 30 days to 1 year in advance. Notifcation

of the precise date and hour occurs through posting of

such information at the penal complex on the date of the

hearing.

In its order and memorandum opinion of October 21,

1977, the district court concluded that parole release pro-

ceedings must be conducted in accordance with certain

due process requirements and that the Board’s procedures

failed to comply fully with those required procedures.

The court further found that the inmates were not en-

titled 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 proc-

ess clause of the Fourteenth Amendment. We are con-

vinced 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 be-

gins 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 frainevvork for analysis of the question of

whether due process applies in a particular situation.

Whether any procedural protections are due depends

on the extent to which an individual will be ‘‘con-

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, 2638 (1970). The ques-

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

terest, but whether the nature of the interest is one

within the contemplation of the “liberty or property”

language of the Fourteenth Amendment. Fuentes v.

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

Morrissey v. Brewer, 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 de-

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

this distinction is no longer an acceptable 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 Morrissey v. Brewer, supra, 408

U. S. at 481, stated: “As Mr. Justice Blackmun has writ-

ten recently, ‘this Court now has rejected the concent that

constitutional rights turn upon whether a governmental

benefit is characterized as a “right” or asga “privilege.” ’

Graham v. Richardson, 403 U. S. 365, 374 (1971).”

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).

~J

In the present case the Board attempts to distinguish

Morrissey as well as Wolff v. McDonnell, 418 U. 8. 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 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

distinction without a real difference. Bradford v. Wein-

stein, 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 8S. Ct. 215, 70

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

the Board of Tax Appeals); Willner v. Committee

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. 518, 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. Lundgren, 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 support

the denial is not therefore obviated, for the status remains

the same because of a Board determination which if favor-

able would have changed the status to one of greater

liberty.” Childs v. United States Board of Parole, 511

F.2d 1270, 1280 (D.C. Cir. 1974). The nature of the in-

8

terest at stake in both parole release and parole revoca-

tion is the same—conditional liberty versus incarceration

—and thus the Fourteenth Amendment applies to both.

The Board also claims that parole release determina-

tions 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. § 83-1,114 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

conditional liberty enjoyed by a parolee described in

Morrissey v. Brewer, supra, 408 U.S. at 481-82, demon-

strate 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

gainfully 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 lawful

imprisonment necessarily makes unavailable many rights

and privileges of the ordinary citizen, an iron curtain 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. Jd. at 556.

The inmates are not the only ones with an interest in

seeing that the parole determination proceedings are con-

ducted 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 determination.

Society has a further interest in treating 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 circuit courts of appeals which have decided

the issue, four have held that the Fourteenth Amendment

does apply to parole determination proceedings. Franklin

v. Shields, 569 F.2d 784, 800 (4th Cir. 1978) (en banc) ;

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 remanded to consider

mootness, 429 U.S. 60 (1976), on remand sub nom. Bell v.

Kentucky Parole Bd., 556 F.2d 805 (1977); Scarpa v.

United States Bd. of Parole, 477 F.2d 278 (Sth Cir.) (en

bane), vacated and remanded to consider mootness, 414

U.S. 809, dismissed as moot, 501 F. 2d 992 (5th Cir. 1973).

10

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

must be acknowledged that there are indications both ways

in recent Supreme Court opinions. See discussion, Wil-

liams 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, Meachum 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-

carceration. Second, the holding of Meachum expressly

excludes situations where a right was created by state

law. The inmates’ interest in this case is the right to be

considered for parvie, 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 Amendment even when the lib-

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

11

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

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. §4 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. ¢ 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 provide

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 receive at

‘least once a year a hearing at which his application 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 parole.

12

Finally, the Board is directed by Neb. Rev. Stat. § 83-

1,114: to release an eligible prisoner on parole unless it

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 re-

lease 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;

(c) His release would have a substantially adverse

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 apparent

development in his personality which may promote or

hinder his conformity to law;

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

(c) The offender's ability and readiness to assume

obligations 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 history, his occu-

pational skills, and the stability of his past employment;

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

munity in which the offender plans to live;

Continued on next page)

13

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 in-

mates 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

(Continued from previous page)

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

habitual and excessive use of alcohol;

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

cluding any disability or handicap which may affect

his conformity to law;

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

the nature and circumstances, recency and frequency of

previous offenses;

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

thority;

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

ing particularly whether he has taken advantage of the

opportunities 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 hearing or reconsideration;

(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.

14

parole an integral part of its penological system and pro-

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. Consequently,

the Fourteenth Amendment due process clause is impli-

cated. See Wolff v. McDonnell, supra, 418 U. S. at 557.

Compare Meachum v. Fano, supra, 427 U.S. at 228; Mon-

tanye 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

15

or denial of parole. Therefore, we hold that the stat-

utes governing the manner in which a prisoner 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 pro-

cedural due process appropriate for the circumstances

must be observed.

Having concluded that the due pocess 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 process

is flexible and calls for such procedural protections

as the particular situation demands. ‘‘{C]onsidera-

tion of what procedures due process may require

under any given set of circumstances must begin with

a determination of the precise nature of the govern-

ment function involved as well as of the private inter-

est 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 balane-

ing test was further refined in Mathews v. Eldridge, 424

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

[I ]dentification of the specific dictates of due process

generally requires consideration of three distinct fac-

tors: First, the private interest that will be affected

16

by the official action; second, the risk of an 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 function 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. 565,

575-76 (1975); Board of Regents v. Roth, 408 U.S. 564

(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 interest

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 be-

yond the time when all purposes of incarceration have

been served. Thus, the Board has an interest in seeing

that parole is neither granted nor denied on the basis of

inaccurate information or an erroneous evaluation. The

Board has additional interests. It must be concerned 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 increased administra-

17

tive burdens and costs occasioned by the procedural safe-

guards.

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 adminis-

tration of the parole system.

We agree with the district court that a parole deci-

sion is not a part of a criminal prosecution and the full

panoply 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 banc); 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

safeguards required by the due process clause, we agree

completely 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 court.4

4 We note that the procedural protections required by this

opinion are applicable only to inmates who are eligibile 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.

18

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

protected by the due process clause, a hearing for the per-

son 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 annually. Al-

though 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 uced 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 dis-

trict court concerns the notice to be given to the inmates.

It provides that:

At least seventy-two hours prior to the scheduled

time of the parole hearing each inmate under con-

sideration 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

inmate for discretionary parole.

This standard actually contains two separate requirements.

Initially, we have no hesitation in deciding that the due

process clause entitles the inmate to receive reasonable

19

written notice of the date and hour for the hearing. Mul-

lane v. Central Hanover Bank & Trust Co., supra, 339

U.S. at 313. Under normal circumstances we 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

criteria 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. § 83-1,114° lists the four rea-

sons for which parole may be denied to an eligible

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

sidered by the Board in making its decision of whether

parole should be granted. We find that the statutory

criteria are sufficiently specific to enable the inmate to

prepare his presentation to the Board. See Franklin v.

Shields, supra, 569 I. 2d at 791-92. We reiterate that a

5 See note 3, supra.

20

list of the factors considered by the Board must accom-

pany the notice of a hearing given to the prisoner, or

preferably by posting the statutory criteria and guidelines

in the institutions in a place or places where the inmates

w." have access to them.

The district court also found that to comply with the

due process clause ‘‘{e]ach 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 reliance

on Wolff v. McDonnell, supra, that this standard included

the right to call witnesses subject to prison security con-

siderations and the need to keep the hearing within limits.

We affirm only in part. Subject to prison security con-

siderations an inmate must be allowed to appear in person

before the Board and to present documentary evidence in

support of his application for parole. Wolff v. McDonnell,

supra; Mullane v. Central Hanover Bank é Trust Co.,

supra. This means that in many cases it will be desirable

for the Board to give the applicant sufficient notice to

secure documentary evidence directed to the Board’s func-

tion of predicting whether parole will be successful.

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

sidered for parole on the basis of certain statutory specifi-

cations. 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 sufficient

to deprive the prisoner of this right. Moreover, a per-

ee ee ee ee

21

sonal hearing is also beneficial to the Board and society

insofar as the reliability of parole decision-making is en-

hanced by personal hearings. However, in the absence of

exceptional circumstances the prisoner does not have a

constitutional right to call witnesses in his behalf 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 wit-

nesses. 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 mem-

orandum opinion that this standard requires that a written

record of the proceedings be maintained. Currently 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 ‘‘[w]ithin 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-

22

tions has found that the parole board must inform the

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

cation 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 rel. John-

son 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

required, 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 443; Candirini v. Attorney

General, 369 F.Supp. 1132, 1137 n.8 (E. 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 irrelevancies.

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

lieving the inmates’ frustration by instructing them how

23

they might by improving their prison behavior or taking

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

employmeat or housing), better their chances for release.

In some situations a prisoner is not considered fit for

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. Singler, 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 minimum

the due process clause of the Fourteenth Amendment re-

quires the following: (1) Every inmate is to receive a

formal parole hearing upon first becoming eligible for

parole. Subsequent hearings are to be allowed in the

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

written notice of the date and hour of the hearing reason-

ably 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,

24

every inmate is allowed to appear in person before the

Board and present documentary evidence in support of

his application. In the absence of unusual circumstances

an inmate does not have a constitutional right to call wit-

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

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. 76-1660), 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 case. 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 capaci-

ties.

The decision of the district court is affirmed in part,

and reversed in part. The case is remanded to the district

court which in turn should remand to the Board of Parole

for the purpose of drawing up regulations implementing

the guidelines set out in this opinion.

SSE NL, SOMME ee ee TT

A true copy.

Attest:

Clerk, U.S. Court of Appeals,. Eighth Circuit.

NOTATION AS TO OPINION OF THE

DISTRICT COURT

The Memorandum Opinion of the United States Dis-

trict Court for the District of Nebraska, filed October 21,

1977, is not printed herein, but may be found on pages

24 to 48 of the Appendix to the Petition for Certiorari

filed herein.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

CIV. 72-L-335

INMATES OF THE NEBRASKA PENAL COMPLEX,

Plaintiffs,

VS.

JOHN B. GREENHOLTZ, et al.,

Defendants.

AMENDED COMPLAINT

I.

JURISDICTION

This action arises under the United States Constitu-

tion and particularly the provisions of the Fourteenth

Amendment to the Constitution of the United States and

under federal law, particularly the Civil Rights Act, Title

42 of the United States Code, Section 1983.

26

This Court has jurisdiction of this cause under Title

298 of the United States Code, Section 1343.

IT.

Plaintiffs are citizens of the United States of America

and are prisoners at the Nebraska Penal Complex.

III.

Defendants are residents of the State of Nebraska

and are duly appointed, employed and acting under the

eolor of state law as members of the State of Nebraska

Board of Parole.

IV.

Plaintiffs’ actions is brought by designated class rep-

resentatives, Richard C. Walker, William Randolph, Rich-

ard J. Leary, and Robert Gamron, who, as inmates at the

Nebraska Penal Complex, are members of the class and

wose claims are typical of the claims of all the members

4 the elass; such individuals are entitled to, and will,

fairly and adequately protect the interest of all persons

who are or may become members of the class.

The number of class members is sO numerous as to

make it impracticable to bring them all before the Court.

V.

Defendants, acting as the Board of Parole, and pur-

suant to state law, particularly Neb. Rev. Stat. § 83-192,

periodically review the records of class members and

make determinations regarding the release of class mem-

bers from confinement on either parole or work release.

ES

27

VI.

Defendants, in performing their duties as members

of the Board of Parole, fail to:

(a) inform the class members of the criteria which

they must meet to obtain release on parole or

work release;

(b) inform the class members in advance of the date

and time of their hearings before the Board of

Parole;

(c) permit members of the class to present evidence

and call witnesses in their own behalf;

(d) confront the class members with evidence pre-

sented opposing the class member’s release on

parole or work release;

(e) permit the class members to cross-examine wit-

nesses appearing before the Board of Parole in

opposition to the class member’s release on

parole or work release;

(f) maintain a complete and permanent record of all

proceedings held in considering the release of

class members on parole or work release;

(g) permit full representation of class members by

legal counsel in the proceedings had by the

Board of Parole and provide such counsel upon

a showing of indigent status;

(h) provide class members denied parole or work

release with specific written reasons why such

parole or work release was denied;

(i) inform class members denied parole or work re-

lease of the evidence relied upon in reaching its

decision to deny work release or parole.

28

VII.

The conduct of defendants has deprived, and con-

tinues to deprive, plaintiffs of due process of law in viola-

tion of the Fourteenth Amendment to the United States

Constitution.

WHEREFORE, plaintiffs pray that an order be

entered requiring the defendants to:

(a)

(b)

(c)

(f)

(g)

(h)

inform the class members of the criteria which

they must meet to obtain release on parole or

work release:

inform the class members in advance of the date

and time of their hearings before the Board of

Parole;

permit members of the class to present evidence

and call witnesses in their own behalf;

confront the class members with evidence pre-

sented opposing the class member’s release on

parole or work release ;

permit the class members to cross-examine wit-

nesses appearing before the Board of Parole in

opposition to the class member’s release on

parole or work release;

maintain a complete and permanent record of

all proceedings held in considering the release

of class members on parole or work release;

permit full representation of class members by

legal counsel in the proceedings had by the

Board of Parole and provide such counsel upon

a showing of indigent status;

provide class members denied parole or work

release with specific written reasons why such

parole or work release was denied;

29

(i) inform class members denied parole or work re-

lease of the evidence relied upon in reaching its

decision to deny work release or parole;

(j) establish a procedure by which individual class

members who have sustained damages as a con-

sequence of the unlawful actions alleged herein

may be identified and their damages proved,

and to grant to such persons monetary damages

for the unlawful deprivation of their constitu-

tional rights by the defendants.

Inmates of the Nebraska Penal

Complex, Plaintiffs,

By: Nelson, Harding, Marchetti,

Leonard & Tate and Brian

Ridenour

P. O. Box 82028

Lincoln, Nebraska 68501

(402) 475-6761

Attorneys for Class of

Persons Alleging Denial

Due Process

By: /s/ Brian Ridenour

One of Said Attorneys

(CERTIFICATE OF SERVICE OMITTED

IN PRINTING)

ANSWER TO AMENDED COMPLAINT

Come now the defendants herein and for answer to

the amended complaint filed by the class of inmates who

claim to have been denied due process of law in the parole

procedures, show:

1. Defendants admit the allegations of paragraphs

2, 3, and 5 of said amended complaint.

30

9. Defendants deny each and every other allegation

of said amended complaint, and specifically deny that in

the conduct of their hearings defendants violate any of

plaintiffs’ constitutional rights, or deny them due process

of law.

WHEREFORE defendants pray that the amended

complaint filed herein be denied and dismissed.

John B. Greenholtz, et al.,

Defendants

By: Paul L. Douglas

Attorney General

By: /s/ Ralph H. Gillan

Ralph H. Gillan

Assistant Attorney General

2115 State Capitol

Lincoln, Nebraska 68509

Tel: (402) 471-2682

Attorneys for Defendants

(CERTIFICATE OF SERVICE OMITTED

IN PRINTING)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

CIV. 72-L-335

INMATES OF THE NEBRASKA PENAL AND

CORRECTIONAL COMPLEX,

Plaintiffs,

VS.

JOHN B. GREENHOLTZ, Individually, and as Chairman,

Nebraska Board of Paroles, et al.,

Defendants. »

STIPULATION OF FACTS

31

The parties hereto, by and through their respec'ive

attorneys, hereby stipulate and agree to the following

facts: .

1. Discretionary parole, as used by the Nebraska

Board of Parole, is a release on parole by virtue of an

exercise of discretion on the part of the Board of Parole,

such release occurring prior to expiration of the maxi-

mum term of imprisonment imposed by the sentencing

court.

2. An inmate becomes eligible for release on discre-

tionary parole upon completion of his minimum term of

confinement less any deductions therefrom for good be-

havior. In the case of an inmate serving concurrent sen-

tences, his eligibility date for release on parole as to each

such sentence is determined separately and the later of

such dates applies. In case of an inmate serving consecu-

tive sentences, he becomes eligible for parole upon com-

pletion of the total of the minimum terms less any reduc-

tions as specified above.

3. In the event a definite term of years is imposed

by the sentencing court, the inmate becomes eligible for

discretionary parole upon completion of the minimum

sentence provided by law less any reductions as specified

herein above.

4. An inmate may be released on discretionary

parole, with the approval of the sentencing judge, prior

to completion of the court-imposed minimum sentence.

5. A parole review hearing is a periodic hearing

granted by the Parole Board to all inmates regardless of

their elegibility for release on discretionary parole.

32

6. A parole hearing is a hearing held by the Parole

Board to determine whether an inmate eligible for dis-

cretionary parole should in fact be granted parole. Such

hearings are set by the Parole Board following a parole

review hearing.

7. Work release is a release of an inmate by the

Director of Correctional Services, upon recommendation

of the Farole Board, to permit the inmate to engage in

work or paid employment in the community. Such release

may. occur either by-extension of the limits of the in-

mate’s confinement or release from the facilities for pre-

scribed periods of time. Hearings are not held by the

Parole Board prior to determination of what recomenda-

tion should be made regarding an inmate’s release on

work release.

8. Inmates at the Nebraska Penal Complex are ad-

vised of the approximate date of parole review hearings

and parole hearings but they are not advised by the

Parole Board as to the exact time and date. Such notifi-

cation of the approximate time is given at the time of

initial imprisonment in the Nebraska Penal Complex or

at subsequent parole review hearings. Such notification

specifies the month when the next parole review hearing

will be held for such inmate. Notification of the exact

time and date occurs by the posting of such information

at the Nebraska Penal Complex on the date of such

hearing.

9. After a parole review hearing an inmate eligible

for parole will either be set for a parole hearing or de-

ferred for a future parole review hearing. In the event

33

of deferral for a future parole review hearing, Form

PB-1, a copy of which is attached hereto, is delivered to

the inmate. If, after a parole review hearing, the inmate

is set for a parole hearing, Form PB-2, a copy of which

is attached hereto, is delivered to such inmate.

10. Notification by means of PB-1 of the next parole

review hearing occurs from 30 days to one year in ad-

vance of such review hearing. Such notification specifies

only the month of such parole review hearing. Notifica-

tion by means of PB-2 of a parole hearing occurs at least

30 days in advance of such parole hearing and specifies

only the month of such hearing.

11. Inmates at parole review hearings are not per-

mitted to present evidence or call witnesses in their own

behalf. Inmates are permitted at parole hearings to pre-

sent evidence and call witnesses.

12. At parole heari~gs the Parole Board may re-

ceive evidence of either a testimonal or documentary

nature opposing the inmates release on discretionary

parole. The inmate is excluded from the hearing room at

the time such evidence is received. The inmate is in-

formed that there is opposition to his parole but is not

informed of the specific evidence received or allowed to

examine any documentary evidence received. Inmates are

not permitted to cross-examine witnesses appearing in op-

position to the granting of parole.

13. Records of all parole review hearings and parole

hearings are maintained in the form of tape recordings of

such hearings. Inmates are permitted to be represented

by legal counsel provided by such inmates at parole hear-

ings. The Parole Board does not provide indigent in-

34

mates with legal counsel for parole review hearings or

parole hearings.

14. Inmates denied parole following a parole hear-

ing are provided with a letter notifying the inmate of

such denial.

15. Written notification to an inmate following a

parole review hearing that he is being deferred for re-

consideration at a subsequent parole review hearing oc-

curs through use of Form PB-1.

16. Inmates deferred for reconsideration at a subse-

quent parole review hearing or denied parole following a

parole hearing are not advised of the specific evidence re-

lied upon by the Board in reaching its determination.

INMATES OF THE NEBRASKA PENAL

AND CORRECTIONAL COMPLEX,

Plaintiffs,

BY: NELSON, HARDING, YEUTTER

LEONARD & TATE and

BRIAN RIDENOUR

P. O. Box 82028

Lineoln, Nebraska 68501

By /s/ BRIAN RIDENOUR

One of Said Attorneys

JOHN B. GREENHOLTZ, et al.,

Defendants

BY: PAUL L. DOUGLAS,

Attorney General of Nebraska

By /s/ RALPH H. GILLAN

Assistant Attorney General

2115 State Capitol

Lincoln, Nebraska 68509

Telephone: (402) 471-2682

Attorneys for Defendant

35

STATE OF NEBRASKA BOARD OF PAROLE

Case and Record Review

NAME: NUMBER. ........... DATE: ...........

OFFENSE: SENTENCE:

In accordance with LB 524 relating to the Board of

Parole and in compliance with Section 83-1,111 of the Re-

vised Statutes 1972 Supplement, the Board of Parole re-

viewed your record in your presence. After careful

evaluation and in executive session, the Board, by ma-

jority vote, deferred your case until ..........

for the following reasons.

a. Your continued correctional treatment, voca-

tional, educational, or job assignment in the

facility will substantially enhance your capacity

to lead a law-abiding life when released at a

later date.

——b. Because of your negative attitude and actions to-

ward rules, regulations and authority, your early

release would have a substantially adverse effect

on institutional discipline.

— —. Your prior criminal record, including the nature

and circumstances of the offenses, indicate that

an early release would depreciate the seriousness

of your crime and would promote disrespect for

the law.

———d. Because of your past use of narcotics and alcohol,

there is a substantial risk that you would not

conform to the conditions of parole.

———e. Because of your past violations of parole and/or

probation, there is a substantial risk that you

would not conform to the conditions of parole.

——f. OTHER: " onbidlosice

RECOMMENDATIONS FOR CORRECTING

DEFICIENCIES:

36

——1. Maintain a ood institutional record of work,

conduct, attitude and stability.

. Participate in programs designed for self-im-

provement such as skill training, education, Vo-

cational Rehabilitation, ete.

——3. Obtain and maintain good institutional progress

reports.

———4, Exhibit some responsibility and maturity.

——5. Obtain no charge of misconduct or disciplinary

reports for at least six months prior to Board

review or hearing.

to

——6. Formulate attainable goals for future community

citizenship.

BOARD OF PAROLE—Nebraska

Chairman

DISTRIBUTION:

White—Offender

Yellow—Parole Board

Pink—Records Office

BOARD OF PAROLE

STATE OF NEBRASKA

PAROLE BOARD CASE AND RECORD REVIEW

To:. ees RE

a SENTENCE

TIME SERVED

In accordance with LB 524, relating to the Board of

Parole and in compliance with amendments in Section 83-

1,111, Revised Statutes Supplement, 1972, the Board of

Parole reviewed your record in your presence. After

careful evaluation and in executive session, the Board by

majority vote set your case for final hearing on ......... :

37

The Board will require that you continue to maintain

a good institutional record free of any misconduct or poor

progress reports in order to enhance and justify favor-

able Board action.

If released on parole, the Board will require as a

condition of your parole that you refrain from engaging

in criminal conduct and conform to any of the following

conditions of parole as set forth in the parole agreement:

(A) Meet your specified family responsibilities.

(B) Devote yourself to an approved employment.

(C) Remain in the geographic limits fixed in your cer-

tifieate of parole, unless granted written permis-

sion to leave.

(D) Report as directed to your district parole officer.

(E) Reside at the place fixed in your certificate of

parole and notify your district parole officer of

any changes in your address or employment.

(F) Refrain from associating with persons known to

you to be engaged in criminal activities.

(G) Satisfy any other conditions specially related to

the cause of your offense.

BOARD OF PAROLE—NEBRASKA

Chairman

Distribution:

White—Offender

Yellow—Parole Board

Pink—Records Office

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

CIV. 72-L-335

38

INMATES OF THE NEBRASKA PENAL AND

CORRECTIONAL COMPLEX,

Plaintiffs,

vs.

JOHN B. GREENHOLTZ, Individually and as Chairman,

NEBRASKA BOARD OF PAROLE, et al.,

Defendants.

ORDER

(Filed October 21, 1977)

Pursuant to the memorandum opinion filed herewith,

IT IS HEREBY ORDERED, ADJUDGED AND DE-

CREED that the defendants will implement and put into

effect within sixty (60) days from this date procedures

which will safeguard the due process rights of the plain-

tiff class, including at a minimum the following:

(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 sched-

uled time of the parole hearing each inmate under con-

sideration 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 inmate

for discretionary parole.

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

uled must be allowed to appear in person before the

Board to present evidence in support of his application

subject to prison security considerations.

39

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

ing must be maintained.

(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.

IT IS FURTHER ORDERED that plaintiffs’ claim

that their constitutional right to due process in consid-

eration of eligibility for work release is dismissed.

IT IS FURTHER ORDERED that the plaintiffs shall

not recover any money damages in this action, but that

plaintiffs may recover their costs as provided by law,

including a reasonable attorney fee, the amount of which

shall be agreed upon by the parties, or if the parties are

unable to agree upon an amount, in an amount to be de-

termined by the court upon the application of the parties.

BY THE COURT:

/s/ Albert G. Schatz

Judge, United States District Court

UNITED STATES COURT OF APPEALS

For the Eighth Circuit

No. 77-1889 September Term, 1977

Inmates of the Nebraska Penal and Correctional Complex,

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.

40

JUDGMENT

(Filed May 18, 1978)

APPEAL FROM the United States District Court

for the ————— District of Nebraska.

THIS CAUSE came on to be heard on the original

designated record of the United States District Court for

the ————— District of Nebraska and briefs of the respec-

tive parties and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now here

ordered and adjudged by this Court, that the judgment of

the said District Court, in this cause, be, and the same is

hereby, affirmed in part and reversed in part.

And it is further ordered by this Court that this cause

be and is hereby remanded to the said District Court for

the proceedings consistent with the opinion of this Court.

May 18, 1978

EXHIBIT 10

(UNITED STATES DISTRICT COURT)

DEFERRALS

October 1976-March 1977

SUMMARY

Definitions: Reasons

a. Your continued correctional treatment, vocational, edu-

cational, or job assignment in the facility will sub-

stantially enhance your capacity to lead a law-abiding

life when released at a later date.

41

b. Because of your negative attitude and actions toward

rules, regulations and authority, your early release

would have a substantially adverse effect on institu-

tional discipline.

e. Your prior criminal record, including the nature and

circumstances of the offenses, indicates that an early

release would depreciate the seriousness of your crime

and would promote disrespect for the law.

d. Because of your past use of narcotics and alcohol,

there is a substantial risk that you would not conform

to the conditions of parole.

e. Because of your past violations of parole and/or pro-

bation, there is a substantial risk that you would not

conform to the conditions of parole.

f. Other.

Definitions: Recommendations for Correcting Deficiencies

1. Maintain a good institutional record of work, conduct,

attitude and stability.

bo

Participate in programs designed for self-improve-

ment such as skill training, education, Vocational Re-

habilitation, ete.

3. Obtain and maintain good institutional progress re-

ports.

4. Exhibit some responsibility and maturity.

5. Obtain no charge of misconduct or disciplinary re-

ports for at least six months prior to Board review or

hearing.

6. Formulate attainable goals for future community

citizenship.

|

42

Reasons

a

a, b

a, b,¢

a, b, e, d, e

a,b, d

a, b, d, e, f

a, b, d, f

a, b,e

a, b, f

a,c

a,c, d

a,c, d,e

a,c, e

a,c, f

a, d

Total:

Recommendations

1-6

NONE

Total:

OCTOBER 1976

Reasons

Nuiber

—

OS eR eR OT) DD DD PAO DOR HE eH we Pp

Number

370

375

a rman

Reasons

43

Number

1

4

1

2

1

1

1

1

Total: 29

NOVEMBER 1976

51

1

2

1

2

l

Total: 58

DECEMBER 1976

41

6

1

1

1

1

3

2

3

1

1

1

2

2

Total: 66

44 45

JANUARY 1977 EXHIBIT 11

Reasons —— (UNITED STATES DISTRICT COURT)

a

= . : SUMMARY OF REASONS

a, D,

a, b, d, f 1 GIVEN FOR DENIALS

a,c 5 January, 1975-November, 1976

a,c, d 1 Reason Number

a, C, e 1 es

a, d 3 Disciplinary Report 46

a, d, e 1 NONE 8

a, d, f 1 Removal from Work Release 5

f 9 Pending Charges 3

eae Conviction of Additional Offense 2

Total: 75 ‘Attitude and Conduct 2

Violation of Post Care Rules (Rescissions

FEBRUARY 197 of Unexecuted Paroles) 2

a 53 Not Eligible 1

a, b - | Request of Inmate 1

a, ¢ - Non-acceptance by Another State

a, C, © 1 for Parole Supervision 1

a, d 1 Actions on Work Release 1

a, © 2 : Escape from Work Release 1

a, f 1 | Leaving State while on Parole 1

f 2 Failure to Obtain Employment 1

Baa Failure to Complete Skill Training 1

Total : 64 Short Period of Time on Educational Release 1

MARCH 1977 ! Lacking of Approved Parole Program 1

a 69 Continued Correctional Treatment or

a, b 3 Vocational Training Needed 1

a, b, ¢ 1 Substantial Risk of Noncompliance with

a, b, d 1 Conditions of Parole 1

a,c 3 Depreciate Seriousness of Crime 1

a,e, d 2 lament

a,c, d,e 1 Total: 81

a, c, f 1

a, d 2

— 4

Total: 83

TOTAL: October 1976-March 1977: 375