Amicus Brief — Greenholtz v. Inmates of Neb. Penal and Correctional Complex

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FILED

No. 78-201 DEC 23 1979

IN THE ICHAEL RUBAK Jae

Supreme Court of the United States

OCTOBER TERM, 1978

JOHN B. GREENHOLTZ, CHAIRMAN OF THE

NEBRASKA BOARD OF PAROLE, ET AL.,

Petitioners,

INMATES OF THE NEBRASKA PENAL AND

CORRECTIONAL COMPLEX, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

BRIEF OF JEROME N. FRANK LEGAL SERVICES

ORGANIZATION AND THE PLAINTIFF CLASS IN

CHILDS v. UNITED STATES BOARD OF PAROLE,

511 F.2d 1270 (D.C. Cir. 1974),

AS AMICI CURIAE

ROBERT L. WEINBERG PIERCE O’DONNELL

Scott BLAKE HARRIS LAURIE D. ZELON

WILLIAMS & CONNOLLY BEARDSLEY, HUFSTEDLER

Hill Building & KEMBLE

Washington, D.C. 20006 611 West Sixth Street

(202) 331-5000 Los Angeles, California 90017

Attorneys for Plaintiff Class

(213) 626-0671

in Childs v. United States DENNIS E. CurtTIs

Board of Parole, 511 F.2d JUDITH RESNIK

1270 (D.C. Cir. 1974) 127 Wall Street

New Haven, Connecticut 06520

(203) 436-2210

PETER GOLDBERGER

CARROLL, CREAMER, CARROLL

& DUFFY

Three Penn Center Plaza

Philadelphia, Pennsylvania 19102

(215) 568-5200

Attorneys for Jerome N. Frank

Legal Services Organization

WILSON - EPES PRINTING Co., INC. - 789-0096 .-

WASHINGTON, D.C. 20001

TABLE OF CONTENTS

INTEREST OF THE AMICI CURIAE .......................-

ee byt eke, : cn ee

SUMMARY OF ARGUMEND 2.22.n2..2.2.200:0020.--<ssi-60s--..

Fg BERT RETR ERE TC UPS oe ap aT ee ae

I. THE DUE PROCESS CLAUSE APPLIES TO

THE PAROLE RELEASE DECISION ............

A. Parole Is A Fundamental, Necessary Com-

ponent Of The Correctional System, Not A

Unilateral Hope Of Prisoners ........................

B. Parole Is A Form Of Protected Liberty, Not

A “Condition Of Confinement” ......................

C. The Due Process Clause Applies To Expert,

Discretionary Decisions Affecting Liberty....

D. Nebraska State Law, Like Federal Law,

Creates A Liberty Interest In Parole Re-

| a ERR ARE BAR RANI NT BEET! SA

ay ee: UD

2. The Federal Parole Scheme Parallels

Nebraska’s System .......................--...........

8. The Argument of the United States Rests

On Plainly Erroneous Assumptions ..........

a. The “Unfettered Discretion’ Assump-

TOO on ncipecircnntentisenestsomninntgnseninnorennocaten

b. The “Presumption In Fe or of Re-

I a. lit acien

Il. THE INTERESTS AT STAKE REQUIRE

AT LEAST FOUR PROCEDURAL PROTEC-

TIONS BEFORE PAROLE MAY BE DE-

\ EY silts iaiiichseaitaiobebniah daehcditias iniiiieniaewssitepsivinsenmaiioneienen

| |

TABLE OF CONTENTS—Continued

B. Current Practices In The State And Federal

COIN caiencsiicensonsiratiinstatnnitabccsaertanaaaabm aii |

C. The Need For Safeguards 1 a dapedaenlhclanabiioen

1. The Right to an Effective Hearing ..........

a. Advance Notice of the Time of the

Hearing and the Criteria To Be Ap-

GR ccininincniahisietnneacemaaanalliae

b. Personal Appearance at the Hearing..

c. The Assistance of a Representative....

2. The Right to a Decision Based on Ac-

errata Tenferemtaeie © anncncn ws ssshccncecececsccnsesecs

8. The Right to a Statement of Reasons For

the Denial of Parole —................

4. The Right to an Adequate Record of the

PROC acccisneclistiitts rcs odusati in,

CONCLUSION ........

APPENDICES

A. Bhababes. Teva ok keds tiie

B. Survey of Federal and State Parole Laws......

C. Official Citations to Federal and State Parole

| SRN NL eS aE) et LES Ee ene

19a

Itt

TABLE OF AUTHORITIES

Cases: Page

Adickes v. S. H. Kress & Co., 398 U.S. 144 (1977).. 33

Armstrong Vv. Manzo, 380 U.S. 545 (1965) ............ 34

Arnett v. Kennedy, 416 U.S. 184 (1974) ................. 24, 25

Battle v. Norton, 365 F.Supp. 925 (D.Conn. 1978) .. 2

Bishop v. Wood, 426 U.S. 341 (1976) ...................... 24

Board of Regents v. Roth, 408 U.S. 564 (1972)... 28, 54

Cardaropoli v. Norton, 523 F.2d 990 (2d Cir.

RSI ES BERR SRR NY nc eR Oe 2

Chesney Vv. Adams, 377 F.Supp. 887 (D.Conn.

1974), aff'd mem., 508 F.2d 836 (2d Cir. 1975)... 2

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

SR. ee AR ae EO Ce passim

Childs v. United States Board of Parole, 371

pf BR a ks |) Seen 3

Coralluzzo v. New York State Parole Board, 566

F.2d 375 (2d Cir. 1977), cert. dismissed as im-

providently granted, 485 U.S. 912 (1978) .......... 55

Cruz V. Skelton, 502 F.2d 1101 (5th Cir. 1974)... 38

Dizon Vv. Love, 481 U.S. 105 (1977) ........................ passim

Dorszynski v. United States, 418 U.S. 424 (1974)... 55

Drayton v. McCall, No. 78-2080 (2d Cir. Oct. 2,

1978) modifying 445 F.Supp. 305 (D.Conn.

a el 2, 17, 58, 55

Dumschat v. Board of Pardons, State of Conn.,

432 F.Supp. 1810 (D.Conn. 1977) -...................... 2

Four Certain Unnamed Inmates of Mass. Correc-

tional Institution at Walpole, Mass. v. Hall, 550

ee I CE PED wchceie ie 19

Franklin v. Shields, 569 F.2d 784 (4th Cir. 1977)

(en banc), cert. denied, 435 U.S. 1008 (1978) .... 14, 52,

54, 55

Gagnon V. Scarpelli, 411 U.S. 778 (1978) ............ 83, 49, 50

In re Gault, 887 U.S. 1 (1967) ..........0..0.0.00..20. 2. 46

Gertz v. Welch, 418 U.S. 328 (1978) ..................... 20

Goldberg v. Kelly, 897 U.S. 254 (1970) ...000000000000.. 48

Grasso Vv. Norton, 520 F.2d 27 (2d Cir. 1975) ......... 2

Green V. Nelson, | 442 Peewe 1047 (D.Conn.

|. aE Pia ae ere ie 2

TABLE OF AUTHORITIES—Continued

— - Page

Haymes V. Regan, 525 F.2d 540 (1975) .............-.--- 19, 55

Holup v. Gates, 544 F.2d 82 (2d Cir. 1976), cert.

denied, 430 U.S. 941 (1977) - 2

Ingraham v. Wright, 430 U.S. 651 (1977) . 34, 35, 37, 38

Inmates of the Nebraska Penal and Correctional

Complex v. Greenholtz, 576 F.2d 1274 (8th Cir.

WO ke i nas 16, 45, 48, 49

Johnson Vv. Avery, 393 U.S. 483 (1969) ——............ 49

Joint Anti-Fascist Refugee Com. v. McGrath, 341

ich ye | Sc > f RRSNNLCYUOee oo cmenies. sana oo nn eereoe 20, 46, 48

Kent v. United States, 388 U.S. 541 (1966) -.......... 20

Londoner v. Denver, 210 U.S. 878 (1908) .............. 48

Mass. V. Hall, 550 F.2d 1291 (1st Cir. 1977) .......... 19

Mathews v. Eldridge, 484 U.S. 319 (1976) ............ passim

Meachum V. Fano, 427 U.S. 215 (1976) ................. passim

Mempa V. Rhay, 389 U.S. 128 (1967) ..........-..-...---- 11

Memphis Light, Gas & Water Div. v. Craft, 436

ie Me Gy | | pert ASS ROSE Ol Chan Seer en rey: passim

Menechino Vv. Oswald, 430 F. 2d 403 (2d Cir. 1970) .. 9

Meyer v. State of Nebraska, 262 U.S. 390 (1923) .. 23

Monell v. New York City Dept. of Soe. Serv., ——

Uf aR, be: , . ) RMSeURiSet eee eee oe aan 33

Montanye v. Haymes, 427 U.S. 236 (1976) ............ 15, 19

Moody v. Daggett, 429 U.S. 78 (1976) .............. 15, 16, 19

Morrissey V. Brewer, 408 U.S. 471 (1972) ............ passim

Moskowitz v. Wilkinson, 482 F.Supp. 947 (D.Conn.

DT ain kictbcarhcrnenibclahhtethneeclhmmndibiabiasnesebssenesine 2

Mower V. Britton, 504 F.2d 396 (10th Cir. 1974).. 54

Mullane v. Central Hanover Bank and Trust Co.,

i Ce OI eb iccdieicce cl cicascecientestencttoceeiete 44, 45

Nashville C. & St.L. Railway v. Browning, 310

U.S. 362 (1940) -....... EAE? ORS Ee ola OS et AN OR 33

«Polizzi v. Sigler, 564 F.2d 792 (8th Cir. 1977) ...... 14

Rhodes v. U.S. Parole Com’n., 456 F.Supp. 17

Ch Dagin. THIS sin al meetin ies 2

Ron Vv. Wilkinson, 565 F.2d 1254 (2d Cir. 1977) .... 2

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

(1976) .. 9

TABLE OF AUTHORITIES—Continued

Page

SEC v. Chenery Corp., 318 U.S. 80 (1948) ........... 54

Thorpe V. Housing Authority of the City of Dur-

ham, 386 U.S. 670 ($967) ..........-c.-ccccccccsseoeese---. 23

Toomey v. Young, 442 F.Supp. 387, 449 F.Supp.

836 (D.Conn. 1977), appeal pending .............. 2

Townsend v. Burke, 884 U.S. 736 (1948) ................ 11

Tracy Vv. Salamack, 572 F.2d 898 (2d Cir. 1978) .... 19

United States v. Salerno (Silverman), 528 F.2d

1005, clarified on denial of rehearing, 542 F.2d

ke Rt eR ee a 2

United States v. Slutsky, 514 F.2d 1222 (2d Cir. |

gs | REV Re MENTE Sh Rebs Ht ae ae 2,12

United States v. Tucker, 404 U.S. 448 (1972) ......... 11, 56

United States ex rel. Bey v. Connecticut Board of

Parole, 443 F.2d 1079 (2d Cir.), vacated as

moot, 404 U.S. 879 (1971) ............................ 9

United States ex rel. Harrison v. Pace, 380 F. Supp.

0. Se, Re Oe ee 38

United States ex rel. Johnson v. Chairman, New

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

Cir.), vacated as moot, 419 U.S. 1015 (1974).. ..passim

United States ex rel. Richerson v. Wolff, 525 F.2d

We Ce a i 55

Weinstein v. Bradford, 423 U.S. 147 (1975)........... 2

Williams v. United States Board of Parole, 383

F.Supp. 402 (D.Conn. 1974) 0... 2

Wolff v. McDonnell, 418 U.S. 589 (1974) _............. passim

Wolman v. Walter, 488 U.S. 229 (1977) _.............. 34

Zurak Vv. Regan, 550 F.2d 86 (2d Cir. 1977) .......... 55

Statutes and Rules:

Parole Commission and Reorganization Act, 18

U.S.C. § 4201 et seq.:

pO ME LR GRE ASAE 2, 4,17

RII ee "96

18 USC. § 4205 (B) (1) fon 26

TABLE OF AUTHORITIES—Continued

Page

18 U.S.C. 8 4205 (i) (B) > ....n~-.-2-nn2.n---an2ececelnscenenes 26

18 USC. 3 swe) 26, 29, 45

16 UBG. 8 GRR Ca) CED icici ens ce 27

i gen Tee F. Tie | ) SeaeRueaeenceuenammunennmeen 27

18 U.S.C. § 4206 (b) ...................... e 54

pS Rt Fol 7 |” EARNS ieee steae aCe Re anne ae™ 26, 54

py RAR Som Fs ACEC emeenreveemns errno 26, 47

| G8 ake S|, eRe ae MOR eT eae. 45, 51

TRS Sas ©) SRC ARRSanE Dee omen eel ber oe ens 51

96 re ID aaitibietcc dices tacicinnqnictipwehsindaes 49

Ge SS | NSIS SE PO nena Ee aes 51

OR TSE S|. SIRI EY cna SOU Saet 56

RR |, Reem aera Reese 54

is Be hittin ithe lcainctalestgcittinitaaaattadiciniss 56

I Es OEE aincesscientneittadcsndelintsttbbckestaiiaaniie 34

United States Parole Commission Regulations:

28 C.F.R. § 2.01 (1977) .......................-. PPE 4, 43

Uk £ Sot, 5 a eeeee smears. 47

, Pe Db RT Bes Ne ee ee 49, 54

ish 2 RS 8 OE bh | y 5 cee eee 51

, Yok « M1 + Fs. . 7 FN CAN mOeT ome een 45

BUF Meee tee) 29

Bk 83 4) Ng - SERISEMN ANN ce RUC Scenes See 14

Fok A RL! Fe, ¢ ibe RRPReeNnepe: aeameeme enon enn 50

RR FS | RINE R a Reet ee ee 51, 56

yeh wR | Bk | REA Rares weep rene 50

Federal Rules of Criminal Procedure, Rule 32(c).. 56

Rule 35........ 56

Kentucky Administrative Regulations, Kentucky

py, OSE Rs RR eee ee 30

New York State Compilation of Rules and Regula-

tions, Division of Parole, tit. 9, § 8000 (1978) .... 30

CoLo. REv. STAT. § 17-1-201(3) (c) (Cum. Supp.

1976) PENS AEA Se SEE ETS ee 31

VII

TABLE OF AUTHORITIES—Continued

Page

CONN. GEN. STAT. ANN. § 54-125 (West Conn.

Supp. 1978) PREY MEE te IES? Ee OE 31

ME. REV. STAT. tit. 34, § 1552 (1978) ...................... 30

Mass. GEN. LAW. ANN. ch. 127, $1306 (West

IETS SRR ATS ER RS eT Ee EE 31

NEB. REV. STAT. (1976) :

CNRS Se eI an RR chm 48

Fe Se SE pe eae 51

A. ) eaten Fa AR Fo PMO 26

fs |: 2 Ra a a et. ..23, 24, 27

iy ER SERA Sco Ua Ae el 27

ac Ata a i tc ae 27

Saeneeuns Grote) 41, 46

TENN. CODE ANN. § 40-3614 (Cum. Supp. 1978)... 31

WASH. REv. CoDE ANN. § 9.95.110 (1977) .............. 30

Wyo. STAT. (1977) :

Cy ee AR Sl AEE AN ER LTE I, 30

gpa eta aid Aire A Ct atone BaP At 30

Miscellaneous:

American Bar Association, Standards Relating to

the Legal Status of Prisoners (Tent. Draft

1977) in 14 Am. Crim. L. Rev. 877 (1977)........ passim

American Law Institute, Model Penal Code § 305.9

I I a 28

Amsterdam, Perspectives on the Fourth Amend-

ment, 58 Minn. L. Rev. 349 (4974) _...... 31

Annual Report of the Nebraska Board of Parole,

Seventh Annual Statistical Report, July 1, 1975

Oe a RI isi esis co 50

Comment, The Parole System, 120 U. Pa. L. Rev.

Et RRR Rg er ae ee a ea 13

Comment, Two Views of a Prisoner’s Right to Due

Process: Meachum v. Fano, 12 Harv. C. R. C. L.

I a rh 21

Corrections Magazine, June 1978 ...................... 11

VIII

TABLE OF AUTHORITIES—Continued

Page

K.C. Davis, Discretionary Justice: A Preliminary

Inquiry (1969) ........-.-..0-.-cse-ccscssceecsscecsennsesensnseserens 18, 37

W. Genego, P. Goldberger, and V. Jackson, Proj-

ect, Parole Release Decisionmaking and the

Sentencing Process, 84 Yale L.J. 810 (1975).. .. passim

Hearings Before Subcomm. No. 3 of House Comm.

on Judiciary, 92d Cong., 2d Sess., ser. 15, pt.

Ta FTI ince cach cnccnscieecstnnsisnvncnaceetnncconaptapenationesneys 13

H.R. Rep. No. 94-184, “94th Cong., ist Sess.

(1975) ...passim

Kastermeier & Eglit, Parole Release Decision-

making: Rehabilitation, Expertise, and the De-

mise of Mythology, 22 Am. U. L. Kev. 477

I secch eidintat on hignoisctadacieithiparibancignnmisnnncnkonnenpnnccniinice 18

Newman, Forward to Project, 84 Yale L.J. 810

(1975) 12

The Official Report of the New York State Special

Commission on Attica (Bantam Books ed.

1972) 10, 36

P. O’Donnell, M. Churgin, and D. Curtis, To-

ward A Just and Effective Sentencing System:

Agenda for Legislative Reform (1977) ....... 8, 12, 21, 33

V. O’Leary and K. Hanrahan, Parole Systems in

the United States (3d ed. 1976) 30

Porter, Criteria for Parole Selection in Proceed-

ings of American Correctional Association

(1958) silos 37

S. 1487, Ch. 20 & 58, 95th Cong., 1st Sess. (1978) .. 3

S. Rep. No. 94-369, 94th Cong., 1st Sess. (1975) ....passim

S. Singer and D. Gottfredson, Development of a

Data Base for Parole Decisionmaking 2-4

(NCCD Research Center, Supp. Report No. 1,

TOD cciethca a actin lini henstiitce 38

South Carolina. Department. of Corrections, The

Emerging Rights of the Confined (1972) ........... 14

D. Stanley, Prisoners Among Us: The Problem of

Parole (1976) 18, 21, 27

TABLE OF AUTHORITIES—Continued

State Bar of California Committee on Criminal

Justice, Report and Recommendations on Sen-

tencing and Prison Reform (1975) ..........-----------

Struggle for Justice: A Report on Crime and Pun-

ishment Prepared for the American Friends

Service Committee (1971) .......--..-.----------s--------ee00

Uniform Parole Reports, Parole in the United

States: 1976 and 1977 (1978) ...:..................-..-+-

A. von Hirsch, Abolish Parole? (1978) ...........-------

A. von Hirsch, Doing Justice: The Choice of Pun-

OE CD act ceipeckcing ectntteneenisantenpnnenennmincnennonsn

T. Wicker, A Time To Die (1975) .....

Page

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-201

JOHN B. GREENHOLTZ, CHAIRMAN OF THE

NEBRASKA BOARD OF PAROLE, ET AL.,

“ Petitioners,

INMATES OF THE NEBRASKA PENAL AND

CORRECTIONAL COMPLEX, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

BRIEF OF JEROME N. FRANK LEGAL SERVICES

ORGANIZATION AND THE PLAINTIFF CLASS IN

CHILDS v. UNITED STATES BOARD OF PAROLE,

511 F.2d 1270 (D.C. Cir. 1974),

AS AMICI CURIAE

INTEREST OF THE AMICI CURIAE

This case presents the questions whether and to what

extent the Due Process Clause applies to proceedings to

determine whether a prisoner should be released on parole.

This case particularly concerns the Nebraska parole sys-

tem. This Court’s decision, however, will necessarily

affect the constitutional rules governing the operation of

all state and federal parole systems.

A. The Jerome N. Frank Legal Services Organization

(LSO) is the clinical legal education program of the Yale

Law School. LSO coordinates student legal assistance

programs for individuals who could not otherwise obtain

legal services. LSO provides services for prisoners at the

Federal Correctional Institution at Danbury, Connecticut,

state prisoners in Connecticut’s penal institutions, and

mental patients at Connecticut Valley Hospital. Since its

founding in 1970, LSO’s Danbury Project has counselled

over 3,000 inmates, making it one of the most extensive

programs of legal assistance for federal prisoners in the

country. Many of the cases involve representation of in-

mates before the United States Parole Commission. LSO’s

attorneys and law students have developed considerable

expertise with the procedures mandated by the Parole

Commission and Reorganization Act (18 U.S.C. § 4201

et seq.) and the Parole Commission’s regulations promul-

gated under the new parole statute (28 C.F.R. §2.01

et seq.).

* LSO’s representation of state and federal prisoners has resulted

in extensive litigation to secure its clients’ rights. Representative

reported decisions include: Drayton v. McCall, No. 78-2030 (2d Cir.

Oct. 2, 1978) modifying 445 F.Supp. 305 (D.Conn. 1978); Ron

v. Wilkinson, 565 F.2d 1254 (2d Cir. 1977); Holup v. Gates, 544

F.2d 82 (2d Cir. 1976), cert. denied, 430 U.S. 941 (1977); United

States v. Salerno (Silverman), 538 F.2d 1005, clarified on denial of

rehearing, 542 F.2d 628 (3d Cir. 1976); Cardaropoli v. Norton, 523

F.2d 990 (2d Cir. 1975) ; Grasso v. Norton, 520 F.2d 27 (2d Cir.

1975); Rhodes v. U.S. Parole Com’n, 456 F.Supp. 17 (D.Conn.

1977); Toomey v. Young, 442 F.Supp. 887, 449 F.Supp. 336

(D.Conn. 1977), appeal pending; Green v. Nelson, 442 F.Supp.

1047 (D.Conn. 1977); Duwmschat v. Board of Pardons, State of

Conn., 432 F.Supp. 1310 (D.Conn. 1977); Moskowitz v. Wilkin-

son, 432 F.Supp. 947 (D.Conn. 1977); Williams v. United States

Board of Parole, 383 F.Supp. 402 (D.Conn. 1974); Chesney v.

Adams, 377 F.Supp. 887 (D.Conn. 1974), aff'd mem., 508 F.2d

836 (2d Cir. 1975); Battle v. Norton, 365 F.Supp. $25 (D.Conn.

1973). In addition, LSO has appeared as amicus curiae in Wein-

stein V. Bradford, 423 U.S. 147 (1975), and United States v.

Slutsky, 514 F.2d 1222, 1226-30 (2d Cir. 1975).

In conjunction with the Daniel and Florence Guggen-

heim Foundation, LSO has sponsored two major academic

projects concerning the parole system. During the 1974-

75 academic year, the Yale Law School offered a Parole

and Sentencing Workshop. Members of this Workshop

authored a book evaluating the federal sentencing and

parole system. See P. O’Donnell, M. Churgin, and D.

Curtis, Toward a Just and Effective Sentencing System:

Agenda for Legislative Reform (1977). Many of the

authors’ proposals have been incorporated in the proposed

revisions of the federal criminal code passed by the United

States Senate. See S. 1437, Ch. 20 & 58, 95th Cong., 1st

Sess. (1978). The other LSO academic project was the

first major empirical and theoretical study of the re-

formed federal parole procedures and “guidelines” and

the impact of these reforms on judges and the federal

sentencing scheme. See W. Genego, P. Goldberger, and

V. Jackson, Project, Parole Release Decisionmaking and

the Sentencing Process, 84 Yale L.J. 810 (1975) (here-

inafter “Project’”’).

B. The Plaintiff Class in Childs v. United States Board

of Parole, 511 F.2d 1270 (D.C. Cir. 1974), comprises

some 90 named federal prisoners representing all those

eligible for parole consideration under Title 18 of the

United States Code. The Childs litigation commenced in

1970 with the filing of a pro se complaint challenging

the parole release procedures of the then United States

Board of Parole as contrary to the Due Process Clause.

The District Court appointed counsel from the under-

signed firm of Williams & Connolly.

In 1973 the District Court held that the Parole Board

must give reasons for parole denial and develop due proc-

ess procedures for parole release decisions. Childs v.

United States Board of Parole, 371 F.Supp. 1246 (D.D.C.

1974). The Court of Appeals affirmed the holdings that

parole release proceedings implicate the Due Process

Clause and that reasons for denial of parole must be

given. The Court of Appeals vacated and remanded for

further consideration, in light of developments subsequent

to the entry of the District Court’s opinion, the portion

of the order requiring that procedures be developed for

prisoners’ access to information which the Parole Board

reviews in making its release decision. Remand proceed-

ings on the access issue are still pending. In particular,

this continuing litigation involves the extent to which the

Parole Commission’s regulations comply with the Parole

Te and Reorganization Act and the Due Process

ause.

The potential impact of the decision in this case is

recognized in the amicus curiae briefs filed by the Solici-

tor General and by the Attorneys General of the States

of Oklahoma and California. The amici curiae submitting

this brief have broad experience with parole policies and

practices throughout the country. The purpose of this

amici curiae brief is to present additional information,

based largely on experience of the amici in representing

federal prisoners, that will provide the Court a more

complete picture of the interests at stake.

Both parties have consented to the filing of this brief.

STATUTES INVOLVED

This case involves the Nebraska parole statutes. These

provisions are set forth in the Brief for the Petitioners

at 2-7. This case also has implications for the federal

parole system. The pertinent provisions of the Parole

Commission and Reorganization Act (18 U.S.C. '§ 4201

et seq.), and the regulations of the United States Parole

Commission (28 C.F.R. § 2.01 et seg. (1977)) are re

printed in Appendix A of this Brief.

SUMMARY OF ARGUMENT

The questions presented in this case—whether and to

what extent the Due Process Clause applies to proceed-

ings to determine whether a prisoner should be released

on parole—affect the lives of almost 300,000 persons in-

carcerated in state and federal institutions. The impact

of this decision will be felt in the cells of the nation’s

prisons in perhaps a more profound manner than any

previous decision of this Court in the area of corrections.

It is in this very realistic sense that prisoners are vitally

concerned whether the Constitution extends to the de-

liberations of parole boards.

Prisoners have an interest in their eventual release on

parole of sufficient magnitude to come within the tradi-

tional constitutional protection of “liberty.” Whether

this interest is characterized as a substantial expectation

of release based on the importance of parole in the cor-

rectional process or as a state-created right, it is im-

perative that the discretionary authority to deny parole

not be arbitrarily exercised. Every state and the federal

government have established some form of parole release

system. Of all prisoners annually returned to the com-

munity, 70 percent are released on parole. “Rather than

being an ad hoc exercise of clemency, parole is [there-

fore] an established variation on imprisonment of con-

victed criminals.” Morrissey v. Brewer, 408 U.S. 471,

477 (1972).

The decisions of this Court finding no inherently pro-

tected liberty interest in the conditions of continued

confinement do not apply to the parole release process.

Parole involves whether—and not where or how—a per-

son shall be imprisoned. Unlike an altered condition of

confinement involving no prospect of immediate release,

the opportunity for liberty offered by parole release is

not “too ephemeral and insubstantial to trigger pro-

cedural due process protections . . . .” Meachum V.

Fano, 427 U.S. 215, 228 (1976).

Parole release and parole revocation are indistinguish-

able for constitutional purposes. The nature of the af-

fected individual’s interest in both decisions is identical:

conditional freedom versus incarceration. The prisoner

and parolee both “face a potential of substantial im-

prisonment.” Morrissey v. Brewer, supra, 408 U.S. at

480. This common interest in liberty, however denomi-

nated, is within the protection of the Due Process Clause.

This conclusion is also dictated by the holding in Wolff

v. McDonnell, 418 U.S. 589 (1974), that a prisoner has

a protected liberty interest in the loss of good time credits

where the State has created an entitlement to such a

length-of-confinement-reducing benefit. The prisoner’s

chances for immediate release are not implicated by the

forfeiture or withdrawal of good time credits. Neverthe-

less, the Court in Wolff concluded that the threat to

liberty was sufficiently great to require constitutional

protection. It would thus be incongruous to hold that the

prospect of immediate release by means of parole is not

likewise a sufficient liberty interest to be protected by the

Due Process Clause.

Petitioners and the United States argue that minimal

due process safeguards are not required in the parole

release process because the determination involves the

exercise of discretion. This contention was expressly

rejected by the Court in Morrissey v. Brewer, supra,

408 U.S. at 483. It is simply absurd to suggest that the

more unexposed, unbridled, and unreviewable discretion

in an administrative process, the more immune it becomes

from even the most rudimentary procedures designed to

promote fairness.

The attempts of the United States to distinguish the

federal and most state parole systems from the Nebraska

scheme are unavailing. The Solicitor General concedes

that the Nebraska parole laws create “an expectation that

the state may not disappoint without following procedures

required by the Due Process Clause.” Brief for the

United States at 36. He further acknowledges that the

Nebraska parole laws permit “a number of more diffuse

and discretionary criteria [to] be invoked to deny early

release on parole.” Jd. at 35. The Solicitor General then

proceeds to make the assertion that “the United States

and most of the states employ ... a discretionary sys-

tem . . . under which the parole decision is committed

to the unfettered discretion of the parole authorities.”

Id. at 21 (emphasis added). This claim is not supported

by any citation to federal or state law. The explanation

for this omission is readily understandable.

First, the federal parole statute is almost identical to

the Nebraska legislation in three critical respects. Second,

as demonstrated by the Survey of Federal and State

Parole Laws prepared by amici and reproduced.in Ap-

pendix B, Congress and the legislatures of 47 states have

prescribed standards, criteria, or factors to guide the

paroling authority in making parole release determi-

nations. Under the Solicitor General’s own analysis, a

legitimate claim of entitlement exists in the federal and

virtually all state parole systems because the government

“has bound itself, either by statute, regulation, rule, or

well-settled course of practice, to take, or refrain from

taking, specified actions on the basis of determinable facts

or specific findings... .” Brief for the United States

at 29.

II.

The prisoner’s interest in freedom requires that at

least four general procedures be mandated for parole re-

lease determinations. Amici believe, on the basis of ex-

perience with state and federal parole processes, that the

following rights are essential to fair decisionmaking:

an effective hearing; a decision based on accurate infor-

mation; a statement of reasons for parole denial; and

an adequate record of the proceeding.

As shown by the survey of parole laws conducted by

amici, many states currently provide some of these pro-

cedures, All these rights have been required in the fed-

eral parole system since the passage of the Parole Com-

mission and Reorganization Act. They have proven to

be effective and manageable. These federal safeguards

deserve careful scrutiny in fashioning constitutional rules

for the operation of parole systems.

The procedures mandated for parole revocation in

Morrissey and for loss of good time credits in Wolff

have not jeopardized the orderly administration of parole

systems or prisons. The proposed procedures for parole

release decisionmaking likewise will not unduly burden

the parole process. These safeguards strike a reasonable

balance between the legitimate interests of prisoners in

fair decisions and the understandable need of parole

boards for feasible methods of operation.

a ee a

aK FAL EB

a eee eee ee

—-s

OE A rere.

ARGUMENT

THE DUE PROCESS CLAUSE APPLIES TO THE

PAROLE RELEASE DECISION

Prisoners have an interest in their eventual release on

parole that comes within the constitutional protection of

“liberty.” Release on parole is no “mere anticipation or

hope of freedom,” Morrissey v. Brewer, 408 U.S. 471, 482

n.8 (1972) quoting United States ex rel. Bey v. Connecti-

cut Board of Parole, 443 F.2d 1079, 1086 (2d Cir.),

vacated as moot, 404 U.S. 879 (1971).* Rather, it is a

fundamental and integral part of the correctional system,

of enormous value to both the inmate and the state.°

The discretionary nature of the decision to release, like

the discretionary decision whether to revoke, affects lib-

erty in a sufficiently important way to invoke appropriate

procedural protections. Indeed, the interest at stake in

the parole release hearing is not constitutionally distin-

guishable from the valuable liberty this Court sought to

protect in Morrissey. As Judge Fahy observed in Childs

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

1278:

2 Bey relied exclusively on Menechino v. Oswald, 430 F.2d 403

(2d Cir. 1970), for this characterization. This dictum has been

expressly rejected by the Second Circuit in United States ex rel.

Johnson Vv. Chairman, New York State Board of Parole, 500 F.2d

925, 927-28 & n.2 (2d Cir.), vacated as moot, 419 U.S. 1015 (1974).

It has also been rejected by most other Circuits. See Brief for

United States at 33-34 n.18.

8’ In dissenting from the remand for consideration of mootness in

Scott v. Kentucky Parole Board, 429 U.S. 60 (1976), Justice

Stevens noted that the:

“manifest importance [of parole] is demonstrated by (a) the

vast number of parole release decisions that are made every

year; (b) the importance of each such decision to the person

affected by it; and (c) the extensive litigation, with varying

results, which has developed in the federal courts.” 429 U.S.

at 61 n.1.

“The Board [of Parole} 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 dis-

cretion it makes judgments concerning the readiness

of an inmate to conduct himself in a manner com-

patible with the well-being of the community and

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

prisoner is deprived of conditional liberty. The re-

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

an applicant either suffers a ‘grievous loss’ or gains

a conditional liberty. His interest aceordingly 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 pur-

poses and responsibilities.”

A. Parole Is A Fundamental, Necessary Component

Of The Correctional System, Not A Unilateral Hope

Of Prisoners

This Court and others have recognized that the parole

release decision is one of the most significant parts of

an entire process which our political and social institu-

tions have evolved for dealing with convicted persons.

Morrissey v. Brewer, 408 U.S. 471, 477-80 (1972). For

a variety of reasons, parole has come to be essential to

the administration of post-conviction justice. The wide-

spread, systematic reliance on parole release means that

for most prisoners, in most states, the parole release

decision is at least as important as the sentencing de-

cision in determining how long they will be incarcerated.

As the Attica Report attests, “[i]n practice, the Parole

Board—not the judge—decides how long an inmate will

serve time.” The Official Report of The New York State

Special Commission on Attica 93 (Bantam ed. 1972).*

¢“Parole is an extension of the sentencing process. . . : The final

determination of how much time an offender must serve is made by

the parole authority.” S. Rep. No. 94-369, 94th Cong., Ist Sess. 15-

16 (1975).

aan BO A a a

RRS RES O° PRETO See me

ou Ree *

tin retnee 6 a -@

The interest prisoners bring to the parole decision, there-

fore, is no “unilteral expectation” or “hope.” In the

parole decision, as in sentencing, the person duly con-

victed of a criminal offense no longer has an unqualified

right to liberty. Nevertheless, the accused, whether ap-

pearing before a sentencing judge or a parole board, re-

tains a constitutional interest in freedom that requires

minimal standards of fair treatment. See, e.g., United

States v. Tucker, 404 U.S. 443 (1972) ; Mempa v. Rhay,

389 U.S. 128 (1967); Townsend v. Burke, 334 U.S. 736

(1948).° As the District of Columbia Circuit has stated,

“where the . . . government has made parole an integral

part of the penological system, . . . it is also essential

that authority to deny parole not be arbitrarily exer-

cised.” Childs v. United States Board of Parole, supra,

511 F.2d at 1280.

Parole is the usual form of release from incarceration.

Almost 300,000 prisoners are incarcerated in federal and

state institutions. Corrections Magazine, June 1978, at

21. One-third of those prisoners are annually released

from custody by means of parole. Uniform Parole Re-

ports, Parole in the United States: 1976 and 1977 46-

47 (1978). Of all prisoners returned to the community

each year, parole is the method of release for about 70

percent. Jd. at 55.°

5 As the Second Circuit found in United States ex rel. Johnson v.

Chairman, New York State Board of Parole, 500 F.2d 925, 928 (2d

Cir.), vacated as moot, 419 U.S. 1015 (1974) (emphasis added) :

“(T]he average prisoner, having a better than 50% chance of

being granted parole before the expiration of his maximum

sentence, has a substantial ‘interest’ in the outcome. For him,

with such a large stake, the Board’s determination represents

one of the most critical decisions that can affect his life and

liberty.”

*In deciding that the parole revocation process was subject to

certain minimal due process procedures, the Court noted the high

incidence of parole revocation.

“[RJevocation of parole is not an unusual phenomenon, affect-

ing only a few parolees. It has been estimated that 35%-45%

[Footnote continued on page 12]

Sentencing judges assume in setting maximum terms

that inmates will be released earlier. Many judges have

been known to tell the defendant that “you have the key

to prison in your pocket.” * The 1975 Survey of Sentenc-

ing Judges conducted by the Yale Law Journal demon-

strates the widespread expectation of sentencing courts

that prisoners will be released on parole. Two thirds of

those experienced federal judges reported that they ex-

pected the defendants they sentenced to be released be-

fore serving the full term imposed. And nearly half

expected release to come immediately upon eligibility.

Project, swpra, 84 Yale L.J., at 882-83, n.361. See also

A. von Hirsch, Doing Justice: The Choice of Punishment

83 (1976).

Parole cannot be characterized as simply an alterna-

tive to a pardon, reserved for those few prisoners who

may be said to be rehabilitated in prison.* “Rather than

being an ad hoc exercise of clemency, parole is an es-

tablished variation on imprisonment of convicted crimi-

nals.” Morrissey v. Brewer, 408 U.S. 471, 477 (1972).

Parole promotes several important governmental objec-

tives. One such significant goal is the effective function-

ing of the correctional system: Experience indicates that

it is imperative that the process by which the parole

¢ [Continued] y

of all parolees are subjected to revocation and return to prison.

Morrissey V. Brewer, supra, 408 U.S. at 479.

7 See Newman, Forward to Project, 84 Yale L.J. 810, 812-13

(1975) ; id., at 882, n. 361, 890 nn. 386-88; see also Childs v. United

States Board of Parole, supra, 511 F.2d, at 1278; cf. United States

v. Slutsky, 514 F.2d 1222, 1229 (2d Cir. 1975).

8 The force of this argument is greatly diminished by the growing

disenchantment with the traditional correctional goal of rehabilitat-

ing prisoners through confinement. In fact, the demise of the so-

called “medical model” is reflected in the fact that the United States

Parvle Commission no longer relies upon institutional performance

in most cases. See P. O’Donnell, M. Churgin and D. Curtis, Toward

a Just and Effective Sentencing System: Agenda for Legislative

Reform, 27, 47-48, 68-69 (1977).

Silinsaipinesntitd: iTS ttre nnn ES ait

release decision is made be safeguarded against arbitrary

action. In its report accompanying the new federal

parole legislation, the Senate Judiciary Committee noted:

“Parole is perhaps the most important item in the

mind of every prisoner because it is his key to the

door. It is essential, then, that parole has both the

fact and appearance of fairness to all. Nothing less

is necessary for the maintenance of the integrity of

our criminal justice institutions. The openness and

sense of fairness that is intended in the provisions

of this legislation will have the beneficial effect of

allowing the participants in parole—the inmates—to

understand their place in the system and to better

appreciate what is expected of them.” S. Rep. No.

94-369, 94th Cong., Ist Sess. 19 (1975) (emphasis

added).

In most states and the federal system, parole and the

good-time laws also work hand in hand to keep prison

populations down to acceptable levels, to mitigate the

harshness of sentences, to minimize unwarranted dis-

parities in sentencing, and, finally, to control prison

behavior by offering incentives to discipline and partici-

pation in rehabilitative anu vocational programs.? A

system which depended merely on the unfulfilled, un-

ilateral expectations of prisoners could not succeed in

these functions. Instead, parole is regarded by inmates,

prison administrators and parole officials as a pervasive

fact of prison life, a carrot to be waved by rehabilitative

staff and a stick to be wielded by guards and other cor-

rectional personnel to ensure good behavior.”

* See D. Stanley, Prisoners Among Us: The Problem of Parole

3-4 (1976); Kastenmeier & Eglit, Parole Release Decision-Making:

Rehabilitation, Expertise, and the Demise of Mythology, 22 Am.

U. L. Rev. 477 (1973) ; Comment, The Parole System, 120 U. Pa. L.

Rev. 282 (1971).

10 See Hearings Before Subcomm. No. 3 of House Comm. on

Judiciary, 92d Cong., 2d Sess., Ser. 15, pt. 7-A, at 483, 493-94

[Footnote continued on page 14]

in most jurisdictions, this system of mutual expecta-

tions has been formally set down in statutes, rules or

regulations; in a few others, it remains informal. In

either system, however, definite and mutual expectations

arise that most inmates will be released on parole at some

time prior to the expiration of their maximum terms.

As the South Carolina Department of Corrections has

acknowledged :

“Where parole is the common, almost universal,

method of release from prison it comes to be viewed

more often as a right—indeed it is the norm—than

where it is granted reluctantly and rarely, and in

jurisdictions with long statutory sentences, infre-

quent use of pardon, and no other alternative to

sentence mitigation, parole becomes crucially impor-

tant to inmates... .” South Carolina Department

of Corrections, The Emerging Rights of the Con-

fined 198 (1972).

Accordingly, the parole release process gives rise to a

“state-created right”’—a “liberty interest” with “its

roots in state law.” Meachum v. Fano, 427 U.S. 215,

226 (1976). See Franklin v. Shields, 569 F.2d 784 (4th

Cir. 1977) (en banc), cert. denied, 435 U.S. 1003 (1978)

(parole) ; Polizzi v. Sigler, 564 F.2d 792 (8th Cir. 1977)

(prison classification) ; Childs v. United States Board of

Parole, supra, 511 F.2d at 1281.

B. Parole Is A Form Of Protected Liberty, Not A

“Condition Of Confinement”

Recent decisions of this Court provide that a prisoner

has no inherently protected liberty interest in the condi-

tions of his continued confinement. In Meachum v. Fano,

supra, 427 U.S. at 224 (1976), this Court held:

1° [Continued]

(1972). In the federal system, an inmate who has forfeited satis-

factory good time for disciplinary infractions cannot be granted

parole. 28 C.F.R. § 2.29 (1977).

ee TE ot te

“{GJiven a valid conviction, the criminal defendant

has been constitutionally deprived of his liberty to the

extent that the State may confine him and subject

him to the rules of its prison system so long as the

conditions of confinement do not otherwise violate

the Constitution.”

See also Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) ;

Montanye v. Haymes, 427 U.S. 236, 242 (1976).

This case, however, involves not the location or condi-

tions of confinement, but the length of confinement.

Stated differently, parole release involves whether—and

not where or how—a person shall be imprisoned. This

distinction is fundamental to our notions of liberty and

due process of law."

The differences between this case and the situations in

Meachum and other “conditions of confinement” cases

are readily apparent. Unlike an altered condition of

confinement involving no prospect of immediate release,

the chance for freedom offered by parole release is not

“too ephemeral and insubstantial to trigger procedural

due process protections... .” Meachum v. Fano, supra,

11 The Court suggested this critical difference in Meachum. ‘“‘Con-

finement in any of the State’s institutions is within the normal

limits or range of custody which the conviction has authorized the

State to impose.” 427 U.S. at 225 (emphasis added).

The Court also emphasized in Meachum that “[o]ur cases hold

that the convicted felon does not forfeit all constitutional protec-

tions by reason of his conviction and confinement in prison. He

retains a variety of important rights that the courts must be alert

to protect. See Wolff v. McDonnell, 418 U.S. at 556.” 427 U.S. at

225.

In Wolff the Court announced the following guiding principle:

“[T]hough his rights may be diminished by the needs and

exigencies of the institutional environment, a prisoner is not

wholly stripped of constitutional protections when he is im-

prisoned for crime. There is no iron curtain drawn between

the Constitution and the prisons of this country.” 418 U.S.

at 555-56.

427 U.S. at 228. Unlike situations where “prison officials

have discretion to transfer [a prisoner] for whatever

reason or for no reason at all,” id., neither Congress nor

the state legislatures has authorized parole boards to

grant or deny parole on the basis of absolutely unfettered

discretion without any prescribed criteria or standards.

Unlike the parolee reincarcerated for conviction of new

crimes and faced with a parole violator warrant, the

denial of parole has a “present” and “inevitable effect

upon the liberty interests . . .” of a prisoner. Moody V.

Daggett, supra, 429 U.S. at 87. And unlike a prison

official at a good time revocation proceeding, the paroling

authority at a release hearing “holds the key to the lock

of the prison.” Childs v. United States Board of Parole,

swpra, 511 F.2d at 1278.

The proper conclusion is dictated by the holding in

Morrissey v. Brewer. supra, that the decision to revoke

parole affects a liberty interest protected by the due

process guarantee. The interest of a prospective parolee

and a parolee facing revocation is, of course, not precisely

the same. Common sense suggests a factual difference

between the present enjoyment of conditional freedom

and a present interest in the likelihood of conditional

freedom. The nature of the interest, however, is identical

—freedom from incarceration.” As the Second Circuit

has recognized, “the stakes are the same: conditional

freedom versus “incarceration.” United States ex rel.

Johnson Vv. Chairman, New York State Board of Parole,

supra, 500 F.2d at 928. See also Inmates of the Nebraska

Penal and Correctional Complex v. Greenholtz, 576 F.2d

1274, 1278 (8th Cir. 1978). The prisoner hoping for

parole and his former cellmate fearing reincarceration

12 Any factual differences between the interest of a parolee and

prospective parolee affect only the degree of procedural protections

afforded. “[D]ue process is flexible and calls for such procedural

protections as the particular situation demands.” Morrissey Vv.

Brewer, supra, 408 U.S. at 481.

share one critical thing in common: both “face a po-

tential of substantial imprisonment.” Morrissey Vv.

Brewer, supra, 408 U.S. at 480. For each his interest in

“liberty ..., although indeterminate, includes many

of the core values of unqualified liberty .... By

whatever name, the liberty is valuable and must be

seen as within the protection of the Fourteenth

Amendment.” Id. at 482.*

A holding that a prisoner has a constitutionally pro-

tected liberty interest in the parole release decisionmaking

process follows a fortiorari from Wolff v. McDonnell, 418

U.S. 539 (1974). In Wolff, the Court held that a prisoner

has a protected liberty interest in the loss of good time

credits where the State has created an entitlement to such

a length of confinement-reducing benefit. Certainly, “the

forfeiture of good time does not immediately deprive a

prisoner of his freedom.” Drayton v. McCall, No. 78-2030

at 4915 (2d Cir., Oct. 2, 1978). Nevertheless, the Court

in Wolff thought the jeopardy to liberty posed by loss of

good time—and the concomitant lengthening of confine-

ment—was grave enough to warrant constitutional pro-

tection. It would thus be anamolous to hold that the

prospect of immediate release by the length-of-confine-

ment-reducing method of parole is not likewise a suf-

ficient liberty interest to be protected by the Due Process

Clause.

3 In passing the Parole Commission and Reorganization Act (18

U.S.C. § 4201 et seq.), Congress sought to enact legislation guaran-

teeing “an infusion of due process into Federal parole procedures.”

H.R. Rep. No. 94-184, 94th Cong., Ist Sess. 2 (1975). Congress

recognized the significance of the outcome for a prisoner.

“The denial of parole is in a limited sense the ing of an

individual’s liberty, or at least the opportunity for him to obtain

liberty. The Constitution requires due process of law... .”

S. Rep. 94-369, 94th Cong., Ist Sess. 19 (1975) (emphasis

added).

C. The Due Process Clause Applies To Expert, Dis-

cretionary Decisions Affecting Liberty

The fact that a particular parole decision is not neces-

sarily dictated by any given set of facts does not, as

the briefs for the petitioners and United States would have

it, extinguish the prisoner’s right and need to have evalu-

ations made fairly and, to the extent facts are relevant,

accurately. In Morrissey, this Court emphatically re-

jected the notion that a parole board’s discretionary

authority is inhibited, much less thwarted, by minimum

standards of procedural fairness.

“Nor are we persuaded by the argument that revo-

cation is so totally a discretionary matter that some

form of hearing would be administratively intoler-

able. A simple factual hearing will not interfere

with the exercise of discretion. Serious studies have

suggested that fair treatment on parole revocation

will not result in fewer grants of parole.” 408 U.S.

at 483 (footnote omitted).

The failure to provide intelligible explanations for the

denial of parole or to afford a reasonable opportunity for

the inmate to contribute information and to respond to

adverse evidence is at odds with fundamental notions of

the way governmental agencies should operate to their

own best advantage and to comply with minimal require-

ments of fairness. See Wolff v. McDonnell, supra, 418

U.S. ac 555-58; K. C. Davis, Discretionary Justice: A

Preliminary Inquiry 126-133 (1969). In countless other

areas of public life, administrative agencies empowered

to make discretionary judgments are required by law to

follow procedures designed to assure that, whatever the

decision may be, it has been arrived at fairly and as

accurately as possible. Such rules are as compatible with

parole release decisionmaking as they are with the de-

cisional process of other federal and state administrative

bodies. This was clearly the judgment of Congress in

enacting the new federal parole charter providing “an

infusion of due process into Federal parole procedures.”

H.R. Rep. No. 94-184, 94th Cong., Ist Sess. 2 (1975) ;

see also S. Rep. No. 94-369, 94th Cong., Ist Sess. 19

(1975). .

The Court’s decisions in Meachum, Montanye and

Moody are fully consistent with the conclusion that mini-

mum due proeess protections are compatible with deci-

sions entailing the exercise of discretion. Those cases

turned on the absence of a protected interest in liberty,

and not on any conclusion that the discretionary admin-

istrative process involved could not function effectively

with a modicum of due process hearing requirements.“

None of these decisions disturbs the Court’s finding in

Morrissey that, even though the nature of the decision

is largely “a discretionary matter,” a “simple factual

hearing will not interfere with the exercise of discre-

tion.” 408 U.S. at 483."

4 The holding in Meackum was not predicated on whether the

decision was “discretionary.” The prison transfer decision in

Meachum was subject to no standard whatsoever. 427 U.S. at 228

(“discretion to transfer [the prisoner] for whatever reason or for

no reason at all.”). The Massachusetts legislature had authorized a

totally arbitrary administrative scheme—“unbridled discretion” as

the Solicitor General suggests. Brief for the United States at 36.

As the First Circuit pointed out in a related decision, “[{f]reedom

from transfer is not a ‘liberty interest’ since an inmate may be

transferred at the whim of the Commissioner.” Four Certain

Unnamed Inmates of Mass. Correctional Institution at Walpole,

Mass. Vv. Hall, 550 F.2d 1291, 1292 (1st Cir. 1977) (emphasis

added) ; Tracy v. Salamack, 572 F.2d 393, 395, n.9 (2d Cir. 1978).

15 The assertion that discretionary determinations are not amena-

ble to due process protections has been flatly rejected by other

courts. For example, in Haymes v. Regan, 525 F.2d 540 (1975), the

Second Circuit held that due process must be accorded to a parole

applicant notwithstanding the fact that “the Parole Board is in-

vested with vast discretionary authority in deciding whether and

when parole release is appropriate.” 525 F.2d at 543. Moreover,

the Second Circuit added, due process protections might improve

the discretionary process. “The task of the reviewing body thus

might well be eased by the formulation and promulgation of more

precise rules and criteria.” 525 F.2d at 543.

On the contrary, a settled line of authority in this

Court establishes that minimum due process safeguards

may be even more important where the decision is highly

discretionary. As Justice Frankfurther pointed out in his

landmark concurrence in Joint Anti-Fascist Refugee Com.

v. McGrath, 341 U.S. 128, 171-72 (1951):

“The validity and moral authority of a conclusion

largely depend on the mode by which it was reached.

Secrecy is not congenial to truth-seeking and self-

righteousness gives too slender an assurance of right-

ness. No better instrument has been devised for

arriving at truth than to give a person in jeopardy

of serious loss notice of the case against him and

opportunity to meet it. Nor has a better way been

found for generating the feeling, so important to a

popular government, that justice has been done.”

The logical extreme of the argument advanced by peti-

tioners and the United States is that the more unexposed,

unbridled, and unreviewable discretion in an administra-

tive process, the more immune it becomes from even the

most rudimentary procedures designed to promote fair-

ness. This contention is an open invitation to this Court

“to sacrifice good sense to a syllogism’—to find in the

[Meachum] doctrine an infinite elasticity.” Gertz v.

Welch, 418 U.S. 323, 399 (1973) (White, J., dissenting)

(footnote omitted). The decisions of this Court long ago

repudiated the pernicious notion that, in matters affecting

the liberty of a person, a legislative grant of authority to

a government decisionmaker—involving “a substantial

degree of discretion as to the factual considerations to

be evaluated, the weight to be given them and the con-

clusion to be reached”—confers on that body “a license

for arbitrary procedure.” Kent v. United States, 383

U.S. 541, 553 (1966).**

16 “[I]t appears anomalous for the courts to be totally unable

to require procedures when the state leaves the decision regard-

ing a benefit to administrative discretion by failing to grant a

[Footnote continued on page 21]

In recent years, numerous studies of state and federal

parole systems have prompted calls for sweeping re-

forms." A constant cause for criticism has been “the

existence .. . of discretionary power in the hands of...

parole boards... .” Struggle for Justice: A Report on

Crime and Punishment in America Prepared for the

American Friends Service Committee 124 (1971). In

passing the new federal parole statute, the House Judici-

16 [Continued]

‘substantive right,’ and to be free to mandate procedures when

the state does establish a substantive right and provides rudi-

mentary statutory procedures for the benefit’s termination.

Why should the courts on the one hand be paralyzed when a

state permits its officials to engage in utterly discretionary

decision-making, and on the other hand be commissioned with

the full power of procedural review when a state improves this

situation by crystallizing a substantive right and establishing

procedures? Plainly it is absurd to say that total arbitrariness

is immune from constitutional attack, while less-than-total

arbitrariness must be struck down.” Comment, “Two Views of

a Prisoner’s Right to Due Process: Meachum v. Fano,” 12

Harv. C. R. C. L. L. Rev. 405, 418-19 (1977).

17 Parole has fallen into such disrepute that a growing number of

critics has called for abolition of parole. See generally, A. von

Hirsch, Abolish Parole? (1978); P. O’Donnell, M. Churgin and

D. Curtis, Toward a Just and Effective Sentencing System:

Agenda for Legislative Reform 12-13, 21-28, 68-69 (1977) ; D. Stan-

ley, Prisoners Among Us: The Problem of Parole 186 & n. 45

(1976). After deliberating two years, the prestigious Joint Com-

mittee on the Legal Status of Prisoners of the American Bar

Association

“concluded that continued reform at the margin of current

sentencing practices is no longer justified and that more sub-

stantial changes are in order. Accordingly, the standards pro-

pose the abolition of parole as it is currently practiced in most

American jurisdictions. The Committee finds increasing sup-

port for the abolition of parole. Maine became the first state

to implement a flat sentence system. ME. REv. STAT. ANN. tit.

17-A, §§ 1253-54 (1975). Similar proposals are being consid-

ered in several jurisdictions including Minnesota. California

and Indiana have recently enacted such legislation to take effect

July 1, 1977.” American Bar Association, Standards Relating

to the Legal Status of Prisoners § 9.1(a), comment (a) (Tent.

Draft 1977) in 14 Am. Crim. L. Rev. 377, 592 (1977).

ary Committee criticized the uncontrolled exercise of dis-

cretion by parole decisionmakers. “The parole system

has long been recognized as the single most unequitable,

potentially capricious, and uniquely arbitrary corner of

the criminal justice map.” H.R. Rep. No. 94-184, 94th

Cong., 1st Sess. 2 (1975). The recent American Bar

Association inquiry cited as a major abuse the fact that

a prisoner “is placed under the largely unreviewable dis-

cretion of a board who determines the length of his con-

finement on the basis of factors either unknown to him

or unknown to it.” American Bar Association, Standards

Relating to the Legal Status of Prisoners § 9.1(a), com-

ment (a) (Tent. Draft 1977) in 14 Am. Crim. L. Rev.

377, 591 (1977).

After a detailed review of California’s parole release

procedures, the Committee on Criminal Justice of the

State Bar of California recommended that release review

hearings be conducted in a manner affording the prisoner

procedural due process. This recommendation was based

on findings that, despite the importance of the release de-

cision to the inmate,

“(rjelease decisions made by the Adult Authority

under the former procedure were arbitrary, capri-

cious, subjective, ungoverned by rational standards,

and grossly unfair in operation.

* 2 + +

“At the release hearings, individualized justice ap-

pears to be administered in a manner which is

regularly . .. contrary to our democratic ideal that

laws and not men control the substantial rights of

people.” State Bar of California Committee on Crimi-

nal Justice, Report and Recommendations on Sentenc-

ing and Prison Reform 4, 146 (1975).

A decision upholding the argument advanced by peti-

tioners and the United States would seriously undermine

this Court’s trend of decisions requiring minimum pro-

cedural safeguards for “protection of the individual

against arbitrary action of government.” Wolff v. Mc-

Donnell, supra, 418 U.S. at 558 (citation omitted). The

legitimate exercise of discretion by parole boards is not

jeopardized by requiring a few procedures to assure fair-

ness. See Morrissey v. Brewer, supra, 408 U.S. at 483

(“A simple factual hearing will not interfere with the

exercise of discretion.”) What is jeopardized by a con-

trary decision, however, is our long-standing commitment

to the proposition that purely “[a]rbitrary action is not

due process.” Thorpe v. Housing Authority of the City of

Durham, 386 U.S. 670, 678 (1967).

D. Nebraska State Law, Like Federal Law, Creates A

Liberty Interest In Parole Release

Both petitioners and the United States discuss exten-

sively whether Nebraska’s parole law constitutes an

entitlement vesting prisoners with a constitutionally pro-

tectable liberty interest. Brief for Petitioners at 17-20;

Brief for United States at 20-21, 24-37. Amici believe

that, as we have discussed in the preceding sections of

this brief, the parole release decision, by its very nature,

implicates constitutional “liberty” in the fundamental

sense of “freedom from bodily restraint.” Meyer v.

State of Nebraska, 262 U.S. 390, 399 (1923). For that

reason, the Court need not examine whether state law

creates a “legitimate claim of entitlement” in this case.

Compare Board of Regents v. Roth, 408 U.S. 564, 577

(1972) (property), with Morrissey v. Brewer, supra,

408 U.S. at 482 (1972) (liberty). If the Court looks to

state law, however, it will find that the Nebraska parole

statute, like federal law, also creates a “liberty interest”

in parole. Cf. Wolff v. McDonnell, swora, at 577 (1974).

1. The Nebraska Statute

In its argument, Nebraska relies on the purportedly

dispositive constitutional significance of the statutory

phrase “shall order his release unless ... .” NEB. REV.

STAT. § 83-1, 114(1) (1976). Nebraska contends that the

legislature created no entitlement by the use of these

words, which merely “constitute instructions to the Board

of Parole as to the factors to be taken into account in

reaching its decisions.” Brief for Petitioners at 18.

This argument is untenable. First, Nebraska ignores

the fact that similar language in its own good-time statute

was held in Wolff to create a liberty interest protected by

the Fourteenth Amendment. See 418 U.S. at 557.% Sec-

ond, the plain language of the statute, as the Solicitor

General recognizes, gives “every Nebraska prisoner a

legitimate claim of entitlement to release on parole, sub-

ject to defeasance only if the parole authorities find one

of a limited number of things.” Brief for the United

States at 35.%° The experienced Nebraska federal judge

who tried this case also found that the statutory scheme

creates a “liberty” interest. Pet. App. 29-36. This deter-

mination was upheld by the Court of Appeals and is en-

titled to deference. Bishop v. Wood, 426 U.S. 341, 345-47

(1976).

18 Nebraska law limited the prison administrator’s discretion in

ordering forfeiture or withholding good time. “Except in flagrant

or serious cases, punishment for misconduct shall consist of depriva-

tion of privileges.” 418 U.S. at 545, n.5. Only in such “flagrant or

serious cases” was the administrator permitted to forfeit or with-

hold a prisoner’s good time.

19 Nebraska’s provision (“shall order his release unless”) is even

more forthright and explicit than the statutory “for cause” limita-

tion on dismissals of federal government probationary employees

held in Arnett v. Kennedy, 416 U.S. 134 (1974), to create a “prop-

erty” interest in continued federal employment, and thus to impli-

cate the Due Process Clause. See also Memphis Light, Gas & Water

Div. v. Craft, 436 U.S. 1, 9-12 (1978) ; Dixon v. Love, 431 U.S. 105,

107-12 (1977).

According to the Solicitor General’s analysis of Arnett, such a

statutory requirement of a showing of “good cause” to justify

departure from the norm, “[a]lthough this requirement of ‘good

cause’ is surely vague, and calls for discretionary decisions,” estab-

lishes “a property interest that could be terminated only in accord

with procedures established by the Due Process Clause. See 416

U.S. at 165-166 (opinion of Powell, J.), 177-186 (opinion of White,

J.), 207-211 (Marshall, J., dissenting).” Brief for the United States

at 36.

The Solicitor General also disputes Nebraska’s addi-

tional argument that no entitlement is created because

the parole statute, unlike its law allowing forfeiture of

good time credits for only serious misconduct, permits “a

number of more diffuse and discretionary criteria [to]

be invoked to deny early release on parole.” Brief of the

United States at 35. The Solicitor General reasons as

follows:

“But Meachum involved essentially unbridled dis-

cretion ... . Here, however, there is a statutory

presumption in favor of parole; administrative dis-

cretion is not unbridled. The Nebraska parole statute

is quite similar to the federal statute involved in

Arnett v. Kennedy, [416 U.S. 184 (1974)], and in

Arnett six Justices concluded that the statute had

created a property interest.

“, .. Here, as in Wolff and Arnett, a statute has

created an expectation that the state may not dis-

appoint without following procedures required by

the Due Process Clause.” Id. at 36 (footnote

omitted; emphasis added).

2. The Federal Parole Scheme Parallels Ne-

braska’s System

In 1976 Congress passed comprehensive parole reform

legislation designed to curb abuses of the discretionary

authority vested in federal parole officials by making the

federal parole system fairer, more intelligible, and more

predictable. In terms of the standards governing parole

release, the pertinent language” provides that a federal

“prisoner shall be released” if he has

(a) “substantially observed the rules of the insti-

tution or institutions to which he has been confined” ;

and

20 Pertinent provisions of the Parole Commission and Reorganiza-

tion Act, as well as the Parole Commission’s regulations, are set

forth in Appendix A of this Brief.

(b) “if the Commission, upon consideration of the

nature and circumstances of the offense and the his-

tory and characteristics of the prisoner, determines:

“(1) that release would not depreciate the seri-

ousness of his offense or promote disrespect for the

law; and

“(2) that release would not jeopardize the public

welfare.” 18 U.S.C. §4206(a) (emphasis added).*

The federal parole laws are a virtual carbon copy of

Nebraska’s parole legislation in three significant respects.

First, Nebraska law requires that every prisoner shall

have a release hearing “within sixty days before the

expiration of his minimum term less any reductions.”

NEB. REv. STAT. § 83-1, 111(1) (1976). Likewise, federal

law requires that the Parole Commission “shall conduct a

parole determination proceeding . . . not later than thirty

days before the date of . . . eligibility for parole.” 18

U.S.C. § 4208 (a).”

21 The federal parole statute further provides that the Parole Com-

mission must make the release decision “pursuant to guidelines

promulgated by the Commission... .” 18 U.S.C. § 4206(a). The

Parole Commission may deviate from these guidelines only “if it

determines there is good cause for so doing ... [and] .. . the

prisoner is furnished written notice stating with particularity the

reasons for its determination, including a summary of the informa-

tion relied upon.” 18 U.S.C. § 4206(c) (emphasis added). See note

19, supra.

22 The quoted provision pertains to prisoners whose sentences,

pursuant to 18 U.S.C. § 4205(a) and 18 U.S.C. § 4205(b)(1), pre-

scribe that they shall be eligible for parole after serving one-third

of their sentences or at some fixed point less than one-third of their

sentences. Prisoners sentenced pursuant to 18 U.S.C. § 4205(b) (2)

are eligible for parole whenever the Parole Commission may deter-

mine. Congress has required that their parole determination pro-

ceedings “shall be held not later than one hundred and twenty days

following such prisoner’s imprisonment . . . in a Federal institu-

tion....” 18 U.S.C. § 4208(a).

A hearing is understandably not required if the Parole Commis-

sion “determines on the basis of the prisoner’s record that the

prisoner will be released on parole.” 18 U.S.C. § 4208(a).

earerer ens Lea Ca wie “ vere

Second, Nebraska law specifies particular factors that

must govern the release decision. In considering an

eligible prisoner, the Nebraska Board of Parole “shail

order his release unless it is of the opinion that his re-

lease should be deferred” because of one of four reasons.

NEB. REv. STAT. § 83-1, 114(1) (1976). One such con-

dition is that “[h]is release would depreciate the serious-

ness of his crime or promote disrespect for law.” Id.

§ 83-1, 114(1)(b). Similarly, Congress has mandated

specific criteria which the Parole Commission must fol-

low in a parole determination proceeding. A “prisoner

shall be released” if, among other things, his “release

would not depreciate the seriousness of his offense or pro-

mote disrespect for the law... .” 18 U.S.C. § 4206

(a) (1). These provisions of the Nebraska and federal

parole laws are derived from the same source—the Model

Penal Code. See D. Stanley, Prisoners Among Us: The

Problem of Parole 48 (1976).*

23 Nebraska law also permits denial of parole if “[t]here is a sub-

stantial risk that [the prisoner] will not conform to the conditions of

parole....” NEB. REv. STAT. § 83-1,114(1)(a). The corresponding

federal standard permits withholding of parole if the prisoner’s

“release would . . . jeopardize ihe public welfare... .” 18 U.S.C.

§ 4206(a)(2). These provisions express the theory of sentencing

commonly termed “incapacitation.” See D. Stanley, Prisoners

Among Us: The Problem of Parole 11-13, 48 (1976).

24 The Model Penal Code provides:

“Whenever the Board of Parole considers the first release of a

prisoner who is eligible for release on parole, it shall be the

policy of the Board to order his release, unless the Board is of

the opinion that 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 at that time would depreciate the serious-

ness 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 institution will substantially

[Footnote continued on page 28]

Third, the plain language and operation of the Ne-

braska parole statutes demonstrate that the legislature

opted for an administrative system incorporating a pre-

sumption in favor of release, but at the same time per-

mitting the exercise of informed discretion to deny parole

if the Parole Board determines that one of the statutorily-

enumerated reasons for denial applies in a given case.

By the same token, Congress has enacted an almost identi-

cal statutory scheme reflecting “a similar, more positive,

policy.” Id.

3. The Argument of the United States Rests On

Plainly Erroneous Assumptions

Given these remarkably close parallels between the

Nebraska and federal parole laws and the Solicitor Gen-

eral’s unequivocal argument that a Nebraska-type parole

statute creates an “expectation that the state may not

disappoint without following procedures required by the

Due Process Clause,”™ the Solicitor General would be

expected to take the same position with respect to the

federal parole statutes. Remarkably, the United States,

without critically examining, much less quoting, the fed-

eral parole laws, declares that the “United States and

most of the states employ .. . a discretionary system...

under which the parole decision is committed to the un-

fettered discretion of the parole authorities.” Brief for

the United States at 21 (emphasis added) ; see also id. at

4, 15, 21, 31, 32 n.7 (semble), 38 n.19. In terms of the

parole laws of the United States and almost all states,

the Solicitor General is sorely mistaken.

24 [Continued ]

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

at a later time.” American Law Institute, Model Penal Code

§ 305.9(1) at 104-05 (P.O.D. 1962) (emphasis added).

25 Brief for the United States at 36; see also id. at 4, 15, 19, 21.

a. The “Unfettered Discretion” Assumption

First, as we have shown, Congress has clearly created

a parcle system which does not allow the Parole Commis-

sion to deny parole “for whatever reason or for no reason

at all.” Meachum v. Fano, supra, 427 U.S. at 228. Pur-

suant to 18 U.S.C. § 4206(a), the Commission’s exercise

of discretion is governed by specific, legislatively-

prescribed criteria.” Borrowing from the Solicitor Gen-

eral’s own analysis, we can see that, because decisions to

grant or deny parole in the federal system “turn on par-

ticular findings . . .” (such as potential jeopardy to the

public welfare), a prisoner has a “legitimate claim of

entitlemen‘.” Brief for the United States at 30.*

26 One misstatement in the Solicitor General’s brief is character-

istic of the seriously flawed premises underlying the position of the

United States. The Solicitor General categorically states:

“The United States does not have ... a set of rules of general

applicability establishing substantive release criteria binding

on the decision maker.” Brief for the United States at 38, n.19.

This assertion would undoubtedly come as a complete surprise to the

members of Congress who mandated specific parole release criteria

in 18 U.S.C. § 4206(a), and to the Parole Commission which has

bound itself to follow a system of “guidelines for parole release

consideration” in order “[t]o establish a national paroling policy,

promote a more consistent exercise of discretion, and enable fairer

and more equitable decisionmaking without removing individual

case consideration ....” 28 C.F.R. § 2.20(a) (1977).

2? The Brief for the United States takes inconsistent positions on

the effect of discretion in a parole system in determining whether a

prisoner has a government-created entitlement to release sufficient

to be protected by the Due Process Clause. In one context, the

Solicitor General argues that no entitlement can be found “[s]o

long as the system of release is fundamentally an exercise of in-

formed discretion ....” Brief for the United States at 32 (em-

phasis added). Yet the Solicitor General later argues that the

Nebraska parole law creates a legitimate entitlement even though

“a number of . . . diffuse and discretionary criteria may be invoked

to deny early release on parole.” Jd. at 35. At another point, the

Solicitor General argues that a constitutionally protected expecta-

tion is created by parole laws which provide criteria for decision-

making so that “administrative discretion is not unbridled.” Jd. at

[ Footnote continued on page 30]

Second, the Solicitor General’s unsubstantiated general-

ization about the parole laws of “most of the states” is

simply incorrect. For purposes of this case, amici have

reviewed the parole statutes of the fifty states. The results

of this study are set forth in Appendix B of this Brief.*

From available information,” it can be seen that the

legislatures of 47 states have prescribed standards, cri-

teria, or factors to guide the paroling authority in

making parole release determinations.“ Many of these

states have adopted standards identical or very similar

to the release criteria in the Model Penal Code, after

which the Nebraska and federal parole statutes are

modeled. A common formulation provides that a prisoner

may be released on parole “if (1) it appears ... that

there is reasonable probability that such inmate will live

and remain at liberty without violating the law and (2)

such release is not incompatible with the welfare of

27 [Continued]

36. Amici suggest that the Solicitor General’s inconsistent argu-

ments are the inevitable result of an ad hoc approach to this

question.

28 For the convenience of the Court, we have also included in

Appendix C a table of official citations of the state parole laws.

2° The sources of information for this review were the most re-

cently available state statutes and an empirical study of state parole

board laws and practices. See V. O’Leary & K. Hanrahan, Parole

Systems in the United States (3d ed. 1976). Amici did not have

access to most of the various regulations, policy statements and

other interpretative materials which many state parole boards use

to structure the exercise of their discretionary authority. See, e.g.,

Kentucky Administrative Regulations, Kentucky Parole Board, ch. 1

(1977); New York State Compilation of Rules and Regulations,

Division of Parole, tit. 9, § 8000 et seg. (1978).

3° Only three state legislatures appear to have provided no explicit

statutory guidance to their parole release decisionmakers. See

ME. Rev. Start. tit. 34, § 1552 (1978); WasH. Rev. Cope ANN.

§ 9.95.110 (1977); Wyo. Stat. § 7-13-402 (1977). Each of these

state parole laws, however, authorizes the parole board “to promul-

gate reasonable rules and regulations . . . which shall establish the

general conditions under which parole shall be granted and re-

voked.” Wyo. STaT. § 7-13-402(d) (1977).

ec ye 2 ee eee

society.” CONN. GEN. STAT. Ann. § 54-125 (West Conn.

Supp. 1978); see also Mass. GEN. LAW. Ann. ch. 127,

$130 (West 1972); TENN. CoDE ANN. § 40-3614 (Cum.

Supp. 1978); Coto. REv. STAT. § 17-1-201(3) (c) (Cum.

Supp. 1976).

Constitutional adjudication affecting the lives of thou-

sands of prisoners should not be grounded on speculation

and conjecture or based upon the rhetorical flourishes of

appellate counsel. See Amsterdam, Perspectives on the

Fourth Amendment, 58 MINN. L. REv. 349, 420 (1974)

(considerations urged by New Jersey’s counsel in parole

case proved irrelevant in practice to State parole board).

Virtually all states have placed statutory restraints on

paroling authorities to assure that “administrative dis-

cretion is not unbridled.” Brief for the United States at

36. Again borrowing from the Solicitor General’s own

analysis:

“la] legitimate claim of entitlement exists . . . when

the state has bound itself, either by statute, regu-

lation, rule, or well-settled course of practice, to take,

or refrain from taking, specified actions on the basis

of determinable facts or specific findings. . . . Where

the state has bound itself to extend or confer a

benefit, or withhold a sanction, on the determination ,

of a particular set of facts, the Due Process Clause

requires the implementation of procedures designed

to ensure that those findings will be made fairly and

accurately.” Brief for the United States at 29-30.

b. The “Presumption In Favor ‘of Release”

Fallacy

The United States also argues that constitutionally-

protected entitlement to release may be found if a state,

like Nebraska, “sets up a presumption in favor of re-

lease” in its parole statute. Brief for the United States

at 32; see also id, at 34, 36. The Solicitor General claims

that such a presumption is “missing from the federal

parole statute and from most other state statutes... .”

Id. at 35. This position is unsound for three reasons.

First, as we have shown, almost all state statutes con-

form to the controlled discretion model which the United

States concedes confers a legitimate entitlement to release.

Second, as we have also shown, the federal and Ne-

braska parole statutes are virtually identical in all critical

respects, including release criteria and the use of the

phrase “‘shall release.” The Solicitor General has conceded

that a Nebraska-type statute creates a presumption in

favor of release requiring due process protections.

Third, Wolff v. McDonnell dictates that, whatever the

language of a state’s parole statute, due process applies

to the parole release determination. The Court’s rationale

in part for finding a protected liberty interest in Wolff

was the existence of a state-created right to a means of

reducing the length of confinement through the earning

of good time credits under stipulated criteria.

“Nebraska may have the authority to create, or not,

a right to a shortened prison sentence through the

accumulation of credits for good behavior... . But

the State having created the right to good time and

itself recognizing that its deprivation is a sanction

authorized for major misconduct, the prisoner’s in-

terest has real substance and is sufficiently embraced

within Fourteenth Amendment ‘liberty’ to entitle

him to those minimum procedures appropriate un-

der the circumstances and required by the Due Proc-

ess Clause to insure that the state-created right is

not arbitrarily abrogated.” 418 U.S. at 557 (em-

phasis added).

Good time laws and parole are constitutionally indis-

tinguishable. Good time credits lower the period for man-

datory release, while the grant of parole effectively sus-

pends the remainder of the originally prescribed period

of incarceration. In the case of good time credits and

parole, the practical effect is the same: shortening the

amount of time spent in prison.“ Wolff therefore requires

that the prisoner’s interest in reducing his prison time—

whether by means of parole or good time credits—be

constitutionally protected.

The arguments of the United States confirm the

danger of predicating entitlement to precious constitu-

tional rights on elusive semantical nuances. The degree of

due process protection afforded prisoners should not turn

on the rules of grammar and syntax. All states and the

federal government have established a system for releas-

ing prisoners on parole. The government-created right is

to be paroled some time either “if” certain qualifying

conditions are satisfied or “unless” certain disqualifying

circumstances exist. It is the practice of granting parole

to seven out of every ten prisoners, and not the precise

words of any statute, which creates an entitlement worthy

of constitutional protection. As Justice Frankfurter,

speaking for the Court, observed:

“Settled state practice . . . can establish what is

state law. . . . Deeply embedded traditional ways of

carrying out state policy ... are often tougher and

truer law than the dead words of the written text.”

Nashville C. & St.L.Railway v. Browning, 310 U.S.

362, 369 (1940). Cf. Monell v. New York City Dept.

of Soc. Serv., —— U.S. —— & n.56 (June 6, 1978) ;

Adickes v. S. H. Kress & Co., 398 U.S. 144, 167-68

(1970) (“custom or usage” as constituting state law

under 42 U.S.C. § 1983).

31 In practice, parole has a more substantial effect in reducing the

term of a prisoner’s incarceration. For example, under federal law,

an inmate’s length of confinement can be reduced by as much as one-

third by earning good time credits. On the other hand, parole

operates to reduce the average term of imprisonment by as much as

one-half. P. O’Donnell, M. Churgin and D. Curtis, Toward A Just

and Effective Sentencing System: Agenda for Legislative Reform

70 (1977).

“In our view, ... it would exalt form over substance if

this distinction [based on the precise words chosen by a

legislature] were found to justify a result different from

that in [Wolff].” Wolman v. Walter, 483 U.S. 229, 250

(1977). *

THE INTERESTS AT STAKE REQUIRE AT LEAST

FOUR PROCEDURAL PROTECTIONS BEFORE

PAROLE MAY BE DENIED

Once it is concluded that the Due Process Clause ap-

plies to parole release decisions, the question of “what

process is due” arises. Morrissey v. Brewer, supra, 408

U.S. at 481. As a constitutional minimum, sufficient

process must be accorded so that a prospective parolee

has an “opportunity to be heard ‘at a meaningful time

and in a meaningful manner.’” Mathews v. Eldridge,

424 U.S. 319, 338 (1976), quoting Armstrong v. Manzo,

380 U.S. 545, 552 (1965). Amici believe that at least

four general procedural rights are constitutionally re-

quired to promote fair parole release decisionmaking: an

effective hearing; a decision based on accurate infor-

mation; a statement of reasons for parole denial; and an

adequate record of the proceeding.

A. The Interests At Stake

What procedures are required vary with the nature of

the private interest affected by the official act, the public

interest in the process, the risk of error in decisions based

upon minimal procedures, and the value and costs of

additional safeguards. Dixon v. Love, supra, 431 U.S. at

112-18; Mathews v. Eldridge, supra, 424 U.S. at 384-35.

For the prisoner being considered for parole, the private

interest at stake is freedom itself—a fundamental human

right protected by the Constitution. In a society which

provides procedural protection to the right to freedom

from a violation of physical integrity (Ingraham v.

Wright, 4830 U.S. 651, 673-74 (1977)), and the right to

continued utility service (Memphis Light, Gas & Water

Div. v. Craft, 486 U.S. 1 (1978)), surely freedom is to

be accorded substantial protection.

The state has a parallel interest in the efficient ad-

ministration of the parole system, and in preserving the

integrity and appearance of integrity of the parole proc-

ess. This interest is dictated by the unique and well-

established role of parole release in the criminal justice

system and rehabilitative process. Because an inappro-

priate grant or denial of parole may undercut the re-

tributive, deterrent and incapacitative functions of sen-

tencing, parole release decisions must not be arbitrary

and must be based on all available accurate data. See,

e.g., United States ex rel, Johnson v. Chairman, New

York State Board of Parole, supra, 500 F.2d at 932-33.

The American Bar Association has recognized the

mutual interests of the state and the prisoner in fair

procedures. The Joint Committee on the Legal Status of

Prisoners recommended tl.at

“release decisions be arrived at through fair pro

cedures that insure substantial participation by the

prisoner. Although the development of guidelines

and the use of goals other than rehabilitation may

minimize the potential for factual disputes in the

decision-making process, the power of the releasing

authority to formulate decisions outside the guide-

lines and the nature of the guidelines themselves dic-

tate that procedures be fair and open. As in other

circumstances where the Committee has recommended

procedural regularity, it believes not only that the

apperance of justice will be improved but that the

factual basis for decisions will be enhanced.” Ameri-

can Bar Association, Standards Relating to the Legal

Status of Prisoners (Tent. Draft 1977), in 14 Amer.

Crim. L. Rev. 377, 598 (1977).

This concern with fairness and accuracy is shared by

society in general since it, too, has a substantial interest

in the integrity and success of the rehabilitative process.

To fulfill its promise to society, parole must not frustrate

or embitter prisoners by subjecting them to what are, or

appear to be, arbitrary or irrational decisions based on

caprice or inaccurate information.*? The importance of

parole’s impact on the rehabilitative process, recognized

by this Court in the revocation context in Morrissey,** is

heightened in the parole release decision setting. The

greater number and greater public awareness of parole

release decisions, as compared with revocations, make

their fairness all the more crucial. Additionally, pre-

mature release of a prisoner may impose additional costs

on society in the form of additional crime, while an

erroneous denial results in the high cost of continuing

imprisonment and prevents the prisoner from becoming

a productive citizen.

82 The Attica Commission found that “[flar from instilling con-

fidence in the Parole Board’s sense of justice, the existing proce-

dure merely confirms to inmates, including those receiving favorable

decisions, that the system is indeed capricious and demeaning.”

Official Report of The New York State Special Commission on At-

tica 98 (Bantam Books ed. 1972); see also id. at 97. Two of the

“Fifteen Practical Proposals” put forward by the Attica inmates

related directly to parole. See T. Wicker, A Time To Die 317

(1975).

88 =“The parolee is not the only one who has a stake in his condi-

tional liberty. Society has a stake in whatever may be the

chance of restoring him to normal and useful life within the

law. Society thus has an interest in not having parole revoked

because of erroneous information or because of an erroneous

evaluation of the need to revoke parole, given the breach of

parole conditions. See People ex rel. Menechino v. Warden, 27

N.Y.2d 376, 379, and n.2, 267 N.E.2d 238, 239, and n.2 (1971)

(parole board had less than full picture of facts). And society

has a further interest in treating the parolee with basic fair-

ness: fair treatment in parole revocations will enhance the

chance of rehabilitation by avoiding reactions to arbitrariness.”

408 U.S. at 484.

These considerations flowing from the state’s and

society’s interests in ensuring the integrity of the parole

process are consistent with the prisoner’s interest: in

“liberty” through conditional freedom from incarceration.

He, too, has an interest in the release decision being made

on the basis of accurate data. He, too, has an interest in

having all such available data before the decisionmaker.

And, perhaps most importantly, he, too, has an interest

in being free from arbitrary decisions or decisions cloaked

in secrecy and influenced by irrational, inconsistent or

impermissible criteria. United States ex rel. Johnson V.

Chairman, New York State Board of Parole, supra, 500

F.2d at 929. In the absence of any indication of how

decisions are made or on what factors they are based,

prisoners are left to counterproductive speculation and

are deprived of an important incentive and guide to

future conduct. See Morrissey v. Brewer, supra, 408 U.S.

at 484; United States ex rel. Johnson v. Chairman, New

York State Board of Parole, supra, 500 F.2d at 932-33.

“‘One can imagine nothing more cruel, inhuman and

frustrating than serving a prison term without knowl-

edge of what will be measured and the rules determining

whether one is ready for release.” K. C. Davis, Dis-

cretionary Justice: A Preliminary Inquiry 182 (1969),

quoting Porter, Criteria for Parole Selection, in Proceed-

ings of American Correctional Association at 227 (1958).

In addition to these interests, “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” must be considered. Mathews,

supra, 424 U.S. at 835. The costs of any such additional

procedures must also be examined. Ingraham, supra, 430

U.S. at 680-81; Mathews, supra, 424 U.S. at 348.

Secondary sources and the experience of amici suggest

that serious factual error is not uncommon in the files

relied upon by parole authorities. See, e.g., Project, supra,

84 Yale L.J. at 833-35.** Parole decisions are not made

“in response to conduct directly observed” by the decision-

makers. Prisons are closed, not open institutions. See

Ingraham, supra, 430 U.S. at 677-78. Decisions are not

“largely automatic.” Compare Dixon v. Love, 431 U.S.

105, 1138 (1977). And parole board members, unlike the

teachers in Ingraham, are generally immune from per-

sonal court action based on their official conduct. Cruz v.

Skelton, 502 F.2d 1101 (5th Cir. 1974) ; United States ex

rel. Harrison v. Pace, 380 F.Supp. 107, 111 n.4 (E.D.

84 As researchers for the United States Board of Parole have

complained :

“Unfortunately, the files are not uniformly complete and fre-

quently include obviously conflicting information [such as voca-

tional or educational programming and drug use].

“In one file, an inmate was listed as an illiterate who spoke

only Spanish at admission. A later report listed the inmate as

having completed 40 hours of college credit... .

“Instances of misfiling are frequent. Often a report will indi-

cate that the same subject is a white male, while the picture in

that same file shows what appears clearly to be a black (or vice

versa). Presentence reports are often found inaccurately

filed....

“Numerous examples of discrepancies in the files could be

cited [such as birth dates and date of first arrest] ....

“The inmate’s arrest record is an important source [of infor-

mation]. In many cases no specific information is given about

the number of prior arrests, convictions, dates, fines, or time

actually served. The Federal Bureau of Investigation arrest

records which appear in many of the files are very difficult to

use, since the same arrest and conviction may be entered six

or seven times at each stage of arrest, transfer, conviction, and

incarceration; and dispositions often are not shown.

“. . . [This] lack of uniformity, clarity, and concern for the

accuracy of information [in prison files] sets obvious limits

upon the quality of information which may be reliably ex-

tracted from the files... .” S. Singer & D. Gottfredson, Devel-

opment of a Data Base for Parole Decision-Making 2-5 (NCCD

Research Center, Supp. Report No. 1, 1973).

Pa. 1974). All of these factors suggest a level of risk of

error indicating the necessity for procedural safeguards.*

B. Current Practices In The State And Federal Systems

In making the actual determination of which pro-

cedural protections are constitutionally required under

the circumstances, this Court has mandated scrutiny of

current practices and consideration of the utility and

value of additional safeguards. This scrutiny allows the

Court to perform the balance contemplated by Mathews.

424 US. at 335.

Such a review of the current practices under state and

federal parole laws reveals that most jurisdictions provide

more procedural protections than those found inadequate

in Nebraska. The Survey of Federal and State Parole

Laws, prepared by amici and reproduced in Appendix B,

reveals that almost all states currently provide, by statute

or judicial decision, a spectrum of procedural protections

designed to preserve the rights of prisoners seeking

parole. These systems function effectively under these

procedures despite dire forecasts of crippling administra-

tive burdens.**

35 As the Solicitor General points out, this Court has ruled that:

“{P]rocedural due process rules are shaped by the risk of error

inherent in the truth finding process as applied to the generality

of cases...” Mathews v. Eldridge, supra, 424 U.S. at 344,

quoted in Brief for the United States at 44.

°6The United States suggests that the incorporation of minimal

procedural protections into parole proceedings could inhibit “future

experimentation and alteration of the parole release process ... .”

Brief for the United States at 5.

In terms of the federal parole system, this argument is contrary

to the express judgment of Congress in passing the Parole Commis-

sion and Reorganization Act. As we have demonstrated, both com-

mittees in the House and Senate were well aware that the discretion

of the Parole Commission was being circumscribed to a certain ex-

tent and that the legislation provided for “an infusion of due

process into Federal parole procedures.” H.R. Rep. No. 94-184, 94th

[Footnote continued on page 40]

That current state practice and policy increasingly

recognizes procedural safeguards was applauded by the

American Bar Association:

“Procedural safeguards have been imposed on

parole release decisions through legislation. In some

states, parole boards are required by statute to hold

hearings on parole release. And some recent cases

on the federal level have indicated that the Adminis-

trative Procedure Act is applicable to the United

States Board of Parole... . King v. United States,

492 F.2d 1887 (7th Cir. 1974); Pickus v. United

States Board of Parole, 507 F.2d 1107 (D.C. Cir.

1974).

“The American Law Institute Model Penal Code

recommended that prisoners be given an informal

hearing on the issue of parole release and that in

preparation for parole the prisoner be able to advise

with persons of his own choosing including his own

legal counsel. § 305.7. The National Advisory Com-

mission went further recommending disclosure of

infurmation, reasons for decision, and representation

by counsel if required. NAC, $12.3 (1973). See

also, Parsons-Lewis, Due Process in Parole-Release

Decisions, 60 CALIF. L. REv. 1519 (1972) ; Comment,

36 [Continued ]

Cong., lst Sess. 2 (1975); see also S. Rep. No. 94-369, 94th Cong.,

1st Sess. 19 (1975). If Congress was not troubled that these parole

reforms would retard the further development of a fair and effec-

tive parole process, we submit that the Court should likewise not

be concerned.

Moreover, imposing a requirement that a process be fair is a far

ery from a judicial takeover of the parole process. Parole boards

will remain free to exercise their traditionally broad discretion, to

devise standards and criteria for release best suited to the needs of

their respective states, and to experiment with new procedures to

enhance the reliability and integrity of their decisions. “The few

basic requirements set out above ... should not impose a great

burden on any State’s parole system.” Morrissey v. Brewer, supra,

408 U.S. at 490.

Procedural Protections at Parole Release Hearings:

The Need for Reform, 1974 Duke L.J. 1119.

“. . . The Committee recommends a hearing with

the prisoner present in all parole release decisions.”

American Bar Association, Standards Relating to the

Legal Status of Prisoners (Tent. Draft 1977), in 14

AMER. CRIM. L. REV. 377, 598 (1977).

C. The Need For Safeguards

Current practice in Nebraska mandates the considera-

tion of a number of factors in the parole release decision.

The Parole Board must consider the inmate’s background,

personal history, family and social connections, employ-

ment history, criminal behavior, adjustment in prison,

and current status and behavior. See NEB. REv. STAT.

§ 83-1, 114(2) (a)-(n) (1976). To make its decision in

accordance with statutorily-mandated criteria, the Board

thus requires a substantial factual record. To be mean-

ingful, this record must be both accurate and current.

As a result, to ensure fairness and to prevent arbitrary,

capricious, or simply misinformed judgments, effective

procedural safeguards must be afforded.”

Amici respectfully submit that the requisite minimum

due process procedures for parole decisionmaking are:

1. The right to an effective hearing, including the

right to advance notice of time and criteria, the right to

a personal appearance, and the right to be accompanied

by a representative;

87 Nebraska’s procedures at the initial and critical parole review

are deficient in several respects. First, neither advance notice of the

time of the hearing nor of the criteria to be applied is provided to

the prisoner. Second, prisoners are not given access to the informa-

tion used by the Board in reaching its decision; nor are they given

the right to reply to the information presented in all cases. Third,

prisoners are not advised of the reasons for which parole was de-

nied. Finally, prisoners are not given a record of the proceedings,

or even summaries of the evidence relied on by the Board.

2. The right to have the decision based on accurate

information, including prior access to files and the right

of reply;

8. The right to a written statement of the reasons

on which the decision was based; and

4. The right to a record of the proceedings, capable of

being reduced to a transcript.

38 The American Bar Association’s study group has recommended

similar release procedures.

“92 Procedures for Determining the Length of a Sentence to

Imprisonment

(a) Prisoners should have a hearing within 90 days of their

confinement for the purpose of establishing the date of their

release.

(b) At least 15 days prior to the hearing, the prisoner should

be notified of :

(i) The time and place of the hearing and his rights

and the procedures applicable thereto;

(ii) The names of persons known to the releasing au-

thority who will present testimony at his hearing and the

likely nature of their testimony ;

(iii) The time and method by which the prisoner or his

advisor may obtain access to the prisoner’s file and other

information to be utilized at his hearing.

be permitted to read the contents of the prisoner’s file and all

other written information to be utilized by the authority in

reaching its decision.

(d) The hearings should be informal in nature. The prisoner

should be entitled to be represented by an advisor of his choice,

including legal counsel and he or his advisor should be entitled

to comment on information available to the releasing author-

ity, to present additional information either orally or in writ-

ing, and to question or cross-examine witnesses giving oral

testimony. Upon a showing that a third person’s oral testimony

would be subject to disclosure if in written form, and is (1)

relevant to the decision or to a contested issue of fact, and

(2) (a) could not effectively be presented in written form, or

(b) should be subjected to cross examination, the authority

[Footnote continued on page 43]

As the discussion below demonstrates, all these rights

are already required in the federal system. See 18 U.S.C.

§§ 4201-4218; 28 C.F.R. § 2.01 et seg. In the past, the

Court has scrutinized federal practice to provide guidance

on questions of minimum standards for fair, effective,

and manageable decisionmaking in the correctional proc-

ess. See Gagnon Vv. Scarpelli, supra, 411 U.S. at 786-89;

Morrissey V. Brewer, supra, 408 U.S. at 488-89; Wolff v.

McDonnell, supra, 418 U.S. at 567-68. The experience of

amici reflects that the federal model reasonably accom-

modates the interests of prisoners in fair and accurate

88 [Continued]

should secure such testimony by subpoena or otherwise at

public expense.

(e) When the prisoner has had an opportunity at a sentenc-

ing hearing to contest facts relevant to determining the length

of sentence, the release authority may accept the facts as de-

termined at that hearing without considering additional testi-

mony or evidence.

9.3 Setting the Date of Release

(a) Within 15 days of the hearing, the releasing authority

should set the prisoner’s release date. The release date should

be that established by the guidelines unless:

(i) the case presents a factor relevant to a principle of

sentencing which is not taken into account in the guide-

lines ;

(ii) application of the guidelines would result in sub-

stantial injustice to the person or the public;

(iii) application of the guidelines would be inconsistent

with the sentence imposed by the court.

(b) Unless the release date is that established by the guide-

lines the authority should write and deliver to the prisoner a

fully reasoned opinion explaining in specific detail why the

guidelines were not followed in his case. With the name and

other personally identifiable parts deleted, these opinions should

be distributed to prisoners generally and open to public inspec-

tion. The opinions should serve as precedents for future deci-

sions and as material for periodic review and revision of the

guidelines.”

American Bar Association, Standards Relating to the Legal Status

of Prisoners §§ 9.2, 9.3 (Tent. Draft 1977) in 14 Am. Crim. L. Rev.

377, 597-98, 601 (1977).

parole decisions and the administrative needs of paroling

authorities for efficient and expeditious procedures for

large-scale decisionmaking. Project, supra, 84 Yale L.J.

at 861-66.

1. The Right to an Effective Hearing

a. Advance Notice of the Time of the Hearing

and the Criteria To Be Applied

This Court has recognized that advance written notice

of potentially adverse government action occupies a cardi-

nal position in fair process.

“An elementary and fundamental requirement of due

process in any proceeding which is to be accorded

finality is notice reasonably calculated, under all of

the circumstances, to apprise interested parties of

the pendency of the action and afford them an op-

portunity to present their objections.” Memphis

Light, Gas & Water Div. v. Craft, supra, 436 U.S.

at 13, quoting Mullane v. Central Hanover Trust

Co., 339 U.S. 306, 314 (1950) (citations omitted).

Parole release decisions should be based on criteria

which are announced in advance, and which relate to the

various purposes which parole serves within the state’s

sentencing and correctional process. Nothing could be

more characteristic of the arbitrariness forbidden by the

Due Process Clause than the failure of an official deci-

sion to relate to legitimate public purposes. Since a

parole authority is expected to perform several potentially

conflicting functions, it has a responsibility to articulate

how it has reconciled them in a given case. When criteria

are clear, the prisoner and his representative are able to

make a more effective and useful presentation. The de-

cisions become fairer, because they are more rational,

more consistent and more intelligent.

The federal parole statute responds to this require-

ment by providing for notification of the time and place

of the hearing at least 30 days in advance, 18 U.S.C.

§ 4208(b), and a description of the standards to be con-

sidered, 18 U.S.C. § 4206(a) ; 28 C.F.R. § 2.20. Only by

giving prisoners sufficient time to gather the necessary

information and to demonstrate that they can satisfy the

established criteria can the board perform effectively.

The right to an in-person hearing becomes a hollow ritual

if the prisoner does not have sufficient opportunity to pre-

pare. Contacting individuals in advance of the determi-

nation, and either obtaining supporting letters from them

or arranging for their appearance at a parole board hear-

ing requires substantial thought, time, and effort. Where,

as in Nebraska, the Board of Parole is required to con-

sider this information, it must provide reasonable op-

portunity for the inmate to generate these data. Adequate

advance written notice of the date, time, and place of a

parole board hearing is thus an integral component of

fair and rational consideration.*

Similarly, notice of the criteria applied by paroling

authorities is essential to enable the inmate both to un-

derstand the process and to prepare for the parole hear-

ing. Under Nebraska law, much of an inmate’s life comes

under scrutiny when the Parole Board considers release.

39 In this case, the Eighth Circuit concluded that

“Tujnder normal circumstances we believe that a minimum ad-

vance notice of 72 hours . . . allows the prisoner a fair oppor-

tunity to prepare for his appearance before the Board.” Green-

holtz, 576 F.2d at 1283.

We respectfully disagree. As described above, the information

which the Nebraska Board must review involves facets of prisoners’

past records, current behavior in prison, and future prospects.

Prisoners must be given notice sufficiently in advance of the actual

hearing to contact family, prospective employers, former attorneys—

all outside the prison. Seventy-two hours advance notice simply does

not provide the opportunity for adequate preparation of the needed

data and is thus constitutionally inadequate. See Memphis Light,

Gas & Water Div. v. Craft, supra, 436 U.S. at 14; Mullane v. Cen-

tral Hanover Bank and Trust Co., supra, 339 U.S. at 314.

See NEB. REV. STAT. § 83-1, 114(2) (a)-(n) (1976). For

the Board to reach a decision premised upon accurate in-

formation, the inmate must be given the opportunity to

submit information in support of the parole application

and to prepare rebuttal to damaging or incorrect material

in the file. Only if an inmate knows, in advance, of the

criteria to be considered can his presentation to the Board

be relevant to the parole granting decision.

Advance notice of criteria also increases efficiency by

allowing inmates to make a presentation focusing on

pertinent issues. The parole board can proceed to do its

work effectively and efficiently. Demystifying the parole

process better enables the prisoner to provide useful ma-

terial in an orderly manner.“

“The purpose of notice under the Due Process Clause

is to apprise the affected individual of, and permit ade-

quate preparation for, an impending ‘hearing.’”” Memphis

Light, supra, 436 U.S. at 14, citing Wolff v. McDonnell,

supra, 418 U.S. at 564; Morrissey v. Brewer, supra; In

re Gault, 387 U.S. 1 (1967) ; Joint Anti-Fascist Commit-

tee V. McGrath, 341 U.S. 123 (1951). Just as the notice

in Memphis Light, which did not advise customers of the

availability of procedures for protesting termination of

services, was found to be constitutionally infirm, so notice

of parole hearings, which do not inform inmates of the

issues to be considered, does not pass -onstitutional mus-

ter. Inmates in Nebraska have been “deprived of the

notice which [is] their due.” Memphis Light, supra, 436

“It is particularly ironic that Nebraska’s Board does not give

notice of its criteria because the Nebraska Legislature has substan-

tially organized the parole decision process and has directed its

Board to consider several specific factors about inmates. The Board

is required to base its decisions on the fourteen statutory criteria.

NEB. REv. STaT. § 83-1, 114(2)(a)-(n) (1976). There is simply no

reason why inmates should not be informed of these factors in

advance of the hearing.

U.S. at 15 (footnote omitted). The federal provisions,

however, comport with due process in this regard.

b. Personal Appearance at the Hearing

While “the ordinary principle, established by [this

Court’s] decisions, [is] that something less than an evi-

dentiary hearing is sufficient,” Dixon v. Love, supra, 431

U.S. at 118, quoting Mathews, supra, 424 U.S. at 348,

an opportunity to appear in person, even without wit-

nesses, is critical in the parole process. Evaluation of the

prospective parolee’s attitude and demeanor can be crucial,

and simple reliance on prison reports would leave too

great a part of the decision in hands other than the

parole board’s. Experience teaches that the fairest de-

cisions are reached in a setting where the prisoner can

respond to the examiner’s concerns and can show his

readiness for release.

The federal system protects this interest by allowing

the prisoner to appear and testify in his own behalf. See

18 U.S.C. § 4208(a); 28 C.F.R. § 2.12. Where, as in

Nebraska and most other states, the board must con-

sider factors relating to the prisoner’s personality and

attitude, such an in-person hearing is essential to due

process.

The board cannot know a prisoner’s “personality” by

reading a file. The board cannot assess a parole plan and

determine the propriety of a prisoner’s chosen residence

or employment without talking with the inmate, learning

of the reasons for the choice, and finding answers to its

questions. The board cannot assess the reasonableness of

an inmate’s participation in, or lack of involvement with,

prison programs without asking him. Obtaining accurate

and complete answers to all of these and other questions

is essential for the board to obey its statutory mandate.

However, the board cannot effectively check the accuracy

of material in its files without verification by the inmate.

Accurate data is thus essential to a fair—and a consti-

tutionally sufficient—appraisal.

The principle that an in-person hearing is needed for

fair adjudication is deeply rooted in the American judicial

process. “{A] hearing in its very essence demands that

he who is entitled to it shall have the right to support

his allegations by argument however brief, and, if need

be, by proof, however informal.” Londoner v. Denver,

210 U.S. 373, 386 (1908), quoted with approval in

Memphis Light, 4386 U.S. at 16, n.17. This Court has

repeatedly held that an in-person hearing is constitu-

tionally required. The “right to be heard before being

condemned to suffer grievous loss of any kind, even

though it may not involve the stigma and hardships of a

criminal conviction, is a principle basic to our society.”

Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 168

(1951) (Frankfurter, J., concurring), quoted with ap-

proval in Mathews v. Eldridge, 424 U.S. 319, 333

(1976) .“

*1 Nebraska statutes provide for two types of hearings. The first

are “parole review” hearings in which the board, after a review of

the file, meets with each inmate for a few minutes. At these “parole

review” hearings, inmates are not allowed to present evidence or call

witnesses on their behalf. NEB. REv. STAT. § 83-192(9) ; Greenholtz,

supra, at 1277. Review hearings are required yearly, whether or not

the inmate is to be fully considered for parole. Greenholtz, supra,

at 1277. The other type of hearing in Nebraska is the “formal”

hearing, in which the inmate may appear, may offer evidence in

support of parole, and may be represented by retained counsel.

The Eighth Circuit ruled that these formal hearings were consti-

tutionally required when the inmate is first considered for parole.

Greenholtz, supra, at 1283. This rule is necessary to comply with

minimal standards of due process, for whenever an inmate is con-

sidered for parole release, factual questions must be resolved.

Where facts may be in dispute, inadequate, or inaccurate, record

review has been found insufficient to determine the outcome. Wolff

v. McDonnell, supra (prison discipline) ; Morrissey v. Brewer, supra

(parole revocation) ; Goldberg v. Kelly, 397 U.S. 254 (1970) (prior

hearing required when social insurance payments in issue). Com-

pare Dizon Vv. Love, supra, 431 U.S. at 114 (1977) (factual basis

[Footnote continued on page 49]

49.

c. The Assistance of a Representative

This Court has recognized that prisoners, as a group,

have a greater difficulty in communicating effectively

than many others in society. Wolff v. McDonnell, supra,

418 U.S. at 570; Johnson v. Avery, 393 U.S. 488, 487

(1969). For this reason, and because the time available

to make an informed parole decision is so short, an in-

mate’s chosen representative can be an effective aid to

all concerned. See Project, supra, 84 Yale L.J. at 832

n.103, 839-41, 862-63 (average time devoted to federal

parole decision is less than one-half hour). Moreover,

representatives experienced in the parole process and

familiar with the statutory criteria for release can pre-

pare inmates to bring the needed information to the

attention of the board and to limit excursions into ir-

relevancies. Furthermore, they can make a more cogent

and coherent presentation than an apprehensive inmate.

The federal parole system again provides a model. An

inmate may be assisted by a representative, who may be

a relative, friend, prison staff member, lawyer or law stu-

dent, prior to and during the hearing. Although the role

of the representative is to some degree limited, representa-

tion is nevertheless available. 18 U.S.C. § 4208(d); 28

C.F.R. §2.12(b).

This Court has previously recognized the crucial role

representation plays in fair process. In Gagnon Vv.

41 [Continued]

in driver suspension determination undisputed; in-person hearing

not required since the only question at such a proceeding would be

whether an administrator would “show leniency and depart from

his own regulations”).

The administrative burden imposed by rules requiring parole

hearings for all eligible inmates in Nebraska is minimal. The Board

already holds “review” hearings in all cases and “formal” hearings

in many cases. From July 1, 1975 until June 30, 1976, a total of

1,972 hearings were held, the majority of which were “review” hear-

ings. Greenholtz, supra, at 1277. In-person considerations would

require only the opportunity for a meaningful face-to-face meeting

with the board at a time at which an inmate can present fully the

issues for the decisionmakers.

Scarpelli, 411 U.S. 778, 788-91 (1973), the Court held

that counsel would have to be provided by the state in

probation revocation proceedings where there is a factual

dispute as to whether the alleged violation was committed,

or where there are complex justifying or mitigating rea-

sons. Furthermore, the decision of whether counsel is

required must be made in relation to whether the pro-

bationer “appears to be capable of speaking effectively

for himself.” Jd. at 791; see also Wolff v. McDonnell,

supra, 418 U.S. at 570.

Although the Solicitor General has suggested that

special administrative problems would be caused by per-

mitting representation and personal appearance by the

inmate at a parole hearing, no known data support this

assertion.“? To the contrary, experience shows that per-

mitting representation at hearings conducted within

prisons does not pose any difficulties. The federal system

permits representatives to attend the 10,000 parole hear-

ings it conducts annually. When revocation hearings are

held in federal institutions, counsel is permitted. See 28

C.F.R. § 2.50. In addition, the United States Bureau of

Prisons has for years required federal institutions to per-

mit representatives to assist inmates at prison disciplinary

proceedings. See 28 C.F.R. '§ 541.15 (b).

Where a parole system is complex, as is in Nebraska,

and the outcome is either freedom or continued incarcera-

tion, there must be a strong showing of administrative

inconvenience to overcome the inmate’s need for repre-

sentation. No such showing has been made in the record

before this Court.

* Nebraska reports no such incidents of violence or disruption,

despite the fact that the inmate is allowed to appear before the

board with counsel when formal hearings are granted. See, e.g., An-

nual Report of the Nebraska Board of Parole, Seventh Annual

Statistical Report, July 1, 1975 to June 30, 1976.

2. The Right to a Decision Based on Accurate

Information

The parole board, if it is to make reasoned decisions,

must be sure that those decisions are based on accurate

and complete information. This Court has recognized that

prior access to information relied on by decisionmakers is

an important protection against this error. Mathews Vv.

Eldridge, supra, 424 U.S. at 345-46; Morrissey v. Brewer,

supra, 408 U.S. at 484.

To ensure that decisions are fair and based on accurate

and complete records, the federal parole system allows

the prisoner prior access to almost all of the documents

on which the Parole Commission will rely. 18 U.S.C.

§ 4208 (b) ; 28 C.F.R. § 2.55. The exceptions to disclosure

track Rule 32(c) of the Federal Rules of Criminal Pro-

cedure concerning release of information to a defendant

in a presentence investigation report. The Parole Com-

mission withholds information where there is a potential

of harm to the inmate or to others, or a need for confi-

dentiality. A summary of the information in these docu-

ments must, however, be made available to the inmate.

18 U.S.C. § 4208(c).

Having reviewed these documents, the inmates are per-

mitted to reply to them and to provide corrective or ex-

panded information. Inmates may thus appear and testify

on their own behalf. 18 U.S.C. § 4208(e); 28 C.F.R.

§ 2.13(a). Inmates may also submit letters, documents

and other evidence for the record.

Parole hearings cannot be even minimally adequate un-

less inmates are allowed to present testimony relevant to

the board’s decision about parole.** Inmates must be

#3 Apparently, Nebraska’s statutes recognize, in part, that need

and do permit inmates at the “formal” parole hearings to call

witnesses. NEB. REV. STAT. § 83-195; see also Greenholtz, supra.

Such routine practice demonstrates that calling witnesses is feasible

and neither disrupts prison routine nor threatens institutional

security.

allowed to present evidence ‘“‘from a prospective employer

about the type of work available, from a spouse about the

home environment the prisoner can expect, and in the

case of young offenders, parents’ testimony about the

guidance they can offer.” Franklin v. Shields, supra, 569

F.2d at 796. Allowing the prisoner to participate fully

in the hearing maximizes the quantity and the quality of

the information considered by the board, increases the

reliability of the decisionmaking process, and makes the

process fairer in appearance as well as in fact.

We believe that the Court below erred by not requiring,

absent exceptional circumstances, that inmates be per-

mitted in formal hearings to call witnesses in their own

behalf. In some situations, a meaningful presentation on

a prisoner’s behalf can be made only by a witness avail-

able for questioning by the parole board. Both factual

and subjective judgments must be made by the parole

authorities. Society must fashion its procedures to con-

vey the necessary information to these decisionmakers.

A frequent response is that documents are an adequate

substitute for live testimony. However, the Fourth Cir-

cuit recognized the unfairness of this approach last year

when mandating that the Virginia Parole Board receive

testimonial evidence because “some witnesses express

themselves most effectively verbally.” Franklin v. Shields,

supra, 569 F.2d at 796. Given this fact, it is difficult to

justify excluding oral testimony in light of society’s

critical need to be fully informed about the prospects for

an applicant’s rehabilitation if parole is granted. Shields,

supra, at 796.

This Court’s decision in Wolff, granting the right to

call witnesses in prison disciplinary proceedings absent

findings of institutional harm, compels the conclusion that

prisoners should also be allowed to call witnesses in parole

hearings absent express findings that permitting them to

do so will be unduly hazardous to institutional safety.

Witnesses are even more important in parole hearings

than in disciplinary proceedings. The interests of the

prospective parolees are greater, as their liberty depends

on the information furnished to the parole board. The

interest of the state is similarly more important, as

parole release affects all members of the community and

must be based on thorough and accurate information.

Moreover, in parole hearings, the testimony of witnesses

will generally be less likely to cause institutional difficul-

ties than in disciplinary proceedings. In most instances,

witnesses in parole hearings will not be other inmates,

and they will not testify about conditions or events within

the institution. There is therefore much less probability

of witnesses’ creating risk of reprisal or undermining

authority. Cf. Wolff, supra, 418 U.S. at 566. The justifi-

cations for providing witnesses are great, the correspond-

ing burdens imposed minimal.

3. The Right to a Statement of Reasons For the

Denial of Parole

A statement of reasons serves many functions: to de-

termine whether the decisions are based on appropriate

criteria; to protect against arbitrary decisions; to pro-

mote care and thoughtfulness by decisionmakers; to foster

rehabilitation by affording guidance for future conduct;

to encourage development of a body of administrative

precedent; and to educate sentencing judges about the

44 Since February of 1978, the United States Parole Commission

has been required to provide most of the rights accorded under

Morrissey to inmates subjected to parole rescission. See Drayton Vv.

McCall, No. 78-2030 at 4905. (2d Cir. Oct. 2, 1978). Pursuant to that

injunction, numerous rescission hearings have been held at which

inmates are represented by counsel, present evidence on their own

behalf and offer the testimony of witnesses. Insofar as attorneys for

the amici are aware, not one report of institutional disruption or

of threats to security has resulted. Instead, procedural fairness in

the rescission decision has been assured without harm to other social

values.

impact of parole decisions on their own judgments. See

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

State Board of Parole, supra, 500 F.2d at 929-34. Those

Courts of Appeals reaching this issue have uniformly

agreed that the provision of reasons for an adverse de-

cision is the most important due process protection. See

Franklin v. Shields, supra.

In the federal system, both a personal conference to

explain the reasons for denial and a written statement

of reasons are required. 18 U.S.C. §§ 4208(g), 4206(b),

by this requirement is minimal. Many states, as well as

the federal government, have given such statements for

years in parole revocation and discipline cases. See, ¢.g.,

Morrissey v. Brewer, supra; Wolff v. McDonnell, supra;

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

State Board of Parole, supra. The survey of federal and

state parole laws conducted by amici indicates that at

least’ 45 states furnish an inmate some form of a written

statement explaining the reasons for denial of parole.

See Appendix B. And as Justice Marshall has stated:

“it is not burdensome to give reasons when reasons

exist. Whenever an application... is denied...

there should be some reason for the decision. It can

scarcely be argued that government would be crippled

by a requirement that the reason be communicated

to the person most directly affected by the govern-

ment’s action... .” Board of Regents v. Roth, supra,

408 U.S. at 591 (1971) (dissenting); see also

Mathews v. Eldridge, supra, 424 U.S. at 345-56;

SEC v. Chenery Corp., 318 U.S. 80 (1943) ; Mower

v. Britton, 504 F.2d 396 (10th Cir. 1974).

Furthermore, every court which has held that the Due

Process Clause protects parole or similar decisionmaking

has mandated that, when parole is denied, the decision-

maker must state the reasons for the denial as well as

the essential facts or evidence relied upon. See, ¢.g.,

Franklin v. Shields, supra; United States ex rel. Richer-

son V. Wolff, 525 F.2d 797 (7th Cir. 1975) ; United States

ex rel. Johnson Vv. Chairman, New York State Board of

Parole, supra; Coralluzzo v. New York State Parole

Board, 566 F.2d 375 (2d Cir. 1977), cert. dismissed as

improvidently granted, 485 U.S. 912 (1978); Childs v.

United Stotes Board of Parole, supra; see also Zurak v.

Regan, 550 F.2d 86 (2d Cir. 1977); Haymes v. Regan,

supra; and Drayton v. McCall, supra.

The attempt of the United States to equate the sen-

tencing process with the parole process does not advance

the analysis in this case. First, the fact that judges are

not required to provide reasons when sentencing, see

Dorszynski v. United States, 418 U.S. 424 (1974), has

no bearing here. As the District of Columbia Circuit de-

scribed :

“(wle think the part the judge has been accorded

in sentencing is so different from the status of the

Parole Board in the penological system as to call for

a different approach to the due process issue, and

that the ruling in Dorszynski is not to be taken as a

constitutional precedent for rejecting the need, under

the Due Process Clause, of a written statement of

reasons for Board denial of parole. .. . For the Board

to exercise its discretion fairly and knowledgeably

within the purposes of the system, rational means—

rational considerations—must attend its function-

ing.” Childs v. United States Board of Parole, supra,

511 F.2d at 1283-84.

Second, the sentencing decision is not as informal as

the United States suggests. See Brief for the United

States at 40. The Federal Rules of Criminal Procedure

mandate procedures to ensure a sentencing decision predi-

cated upon accurate information. For example, the de-

fendant has ample advance notice of the time of sentenc-

ing, access to the presentence report relied upon by the

judge, the opportunity to correct mistakes in that report,

a right to an in-person hearing at which he may speak

and a right to an attorney to help prepare for the sen-

tencing hearing and to speak on behalf of the defendant

at the time of sentencing. In sum, the accused has the

right to participate fully in the sentencing proceeding.

See Rule 32 of the Federal Rules of Criminal Procedure.

Furthermore, the entire sentencing hearing is recorded,

so that a transcript is available for later reference. More-

over, if serious error exists in the information given to

the judge, the sentence itself is invalid, and the defend-

ant must be resentenced on the basis of accurate infor-

mation. See Rule 35 of the Federal Rules of Criminal

Procedure; 28 U.S.C. § 2255; see also United States v.

Tucker, supra.

4. The Right to an Adequate Record Of the Proceeding

The Court below found that a tape recording of the

proceeding was constitutionally adequate “provided that

the recordings are of sufficient quality to enable the rec-

ord to be reduced to writing.” 576 F.2d at 1284. In the

federal system, Congress has mandated that “[a] full

and complete record of every proceeding shall be retained

by the Commission. Upon request, the Commission shall

make available to any eligible prisoner such record as

the Commissioner may retain of the proceeding.” 18

U.S.C. §4208(f). In practice, the Commission tape-

records every hearing and furnishes copies of the tapes

to inmates requesting them. See 28 C.F.R. § 2.55.

Providing a high-quality tape recording of a parole

hearing satisfies minimum constitutional standards. When,

as in the federal, Nebraska, and virtually all other state

parole systems, the parole scheme depends upon analysis of

prescribed facts and application of discrete criteria, an

accurate record of the parole hearing is indispensable for

both inmates and paroling authorities. The inmates need

accurate contemporaneous recordings to determine whether

any misunderstandings or misapplications of parole cri-

teria occurred. Paroling’ authorities need records to re-

solve factual disputes promptly and efficiently, to decide

appeals when authorized, and to ensure that its staff con-

ducts hearings fairly, competently, and uniformly. In

short, the parole board must have the means to review its

own performance.

CONCLUSION

For the reasons stated above, amici respectfully request

that this Court recognize the liberty interest inherent in

the parole release decision and grant inmates the pro-

cedural protections required by the Due Process Clause

as outlined in this brief.

Respectfully submitted,

ROBERT L. WEINBERG PIERCE O’DONNELL

Scott BLAKE HARRIS LAURIE D. ZELON

WILLIAMS & CONNOLLY BEARDSLEY, HUFSTEDLER

Hill Building & KEMBLE

Washington, D.C. 20006 611 West Sixth Street

(202) 331-5000 Los Angeles, California 90017

Attorneys for Plaintiff Class (213) 626-0671

in Childs v. United States DENNIS E. CurTIS

Board of Parole, 511 F.2d JUDITH RESNIK

1270 (D.C. Cir. 1974) 127 Wall Street

New Haven, Connecticut 06520

(203) 436-2210

PETER GOLDBERGER

CARROLL, CREAMER, CARROLL

& DUFFY

Three Penn Center Plaza

Philadelphia, Pennsylvania 19102

(215) 568-5200

Attorneys for Jerome N. Frank

Legal Services Organization

Appendices

APPENDIX A

STATUTES INVOLVED

Parole Commission And Reorganization Act (Title 18,

United States Code)

§ 4203. Powers and duties of the Commission

(a) The Commission shall meet at least quarterly, and

by .ajority vote shall—

(1) promulgate rules and regulations establishing

guidelines for the powers enumerated in subsection

(b) of this section and such other rules and regu-

lations as are necessary to carry out a national

parole policy and the purposes of this chapter ....

* * * *

(b) The Commission, by majority vote, and pursuant

to the procedures set out in this chapter, shall have the

power to—

(1) Grant or deny an application or recommen-

dation to parole any eligible prisoner;

(2) impose reasonable conditions on an order

granting parole... .

(ec) The Commission, by majority vote, and pursuant

to rules and regulations—

(1) may delegate to any Commissioner or com-

missioners powers enumerated in subsection (b) of

this section;

(2) may delegate to hearing examiners any pow-

ers necessary to conduct hearings and proceedings,

take sworn testimony, obtain and make a record of

pertinent information, make findings of probable

cause and issue subpoenas for witnesses or evidence

in parole revocation proceedings, and recommend

disposition of any matters enumerated in subsection

(b) of this section, except that any such findings or

recommendations shall be based upon the concur-

rence of not less than two hearing examiners... .

§ 4205. Time of eligibility for release on parole

(a) Whenever confined and serving a definite term or

terms of more than one year, a prisoner shall be eligible

for release on parole after serving one-third of such term

or terms or after serving ten years of a life sentence or

of a sentence of-over thirty years, except to the extent

otherwise provided by law.

(b) Upon entering a judgment of conviction, the court

having jurisdiction to impose sentence, when in its opinion

the ends of justice and best interest of the public require

that the defendant be sentenced to imprisonment for a

term exceeding one year, may (1) designate in the sen-

tence of imprisonment imposed a minimum term at the

expiration of which the prisoner shall become eligible for

parole, which term may be less than but shall not be more

than one-third of the maximum sentence imposed by the

court, or (2) the court may fix the maximum sentence of

imprisonment to be served in which event the court may

specify that the prisoner may be released on parole at

such time as the Commission may determine.

& Sd * *

(f) Any prisoner sentenced to imprisonment for a term

or terms of not less than six months but not more than one

year shall be released at the expiration of such sentence |

less good time deductions provided by law, unless the

court which imposed sentence, shall, at the time of sen-

tencing, provide for the prisoner’s release as if on parole

after service of one-third of such term or terms notwith-

standing the provisions of section 4164. This subsection

shall not prevent delivery of any person released on parole

to the authorities of any State otherwise entitled to his

custody.

* * * *

§ 4206. Parole determination criteria

(a) If an eligible prisoner has substantially observed

the rules of the institution or institutions to which he has

been confined, and if the Commission, upon consideration

of the nature and circumstances of the offense and the

history and characteristics of the prisoner, determines:

(1) that release would not depreciate the serious-

ness of his offense or promote disrepect for the law;

and

(2) that release would not jeopardize the public

welfare;

subject to the provisions of subsections (b) and (c) of

this section, and pursuant to guidelines promulgated by

the Commission pursuant to section 4208(a) (1), such

prisoner shall be released.

(b) The Commission shall furnish the eligible prisoner

with a written notice of its determination not later than

twenty-one days, excluding holidays, after the date of the

parole determination proceeding. If parole is denied such

a shall state with particularity the reasons for such

enial.

parole notwithstanding the guidelines referred to in sub-

section (a) of this section if it determines there is good

cause for so doing: Provided, That the prisoner is fur-

nished written notice stating with particularity the rea-

sons for its determination, including a summary of the

information relied upon.

(d) Any prisoner, serving a sentence of five years or

longer, who is not earlier released under this section or

any other applicable provision of law, shall be released on

parole after having served two-thirds of each consecutive

term or terms, or after serving thirty years of each con-

secutive term or terms of more than forty-five years in-

cluding any life term, whichever is earlier: Provided,

however, That the Commission shall not release such

prisoner if it determines that he has seriously or fre-

quently violated institution rules and regulations or that

there isa reasonable probability that he will commit any

Federal, State, or local crime.

§ 4207. Information considered

In making a determination under this chapter (relating

to release on parole) the Commission shall consider, if

available and relevant:

(1) reports and recommendations which the staff

of the facility in which such prisoner is confined may

make;

(2) official reports of the prisoner’s prior criminal

record, including a report or record of earlier pro-

bation and parole experiences;

(3) presentence investigation reports;

(4) recommendations regarding the prisoner’s

parole made at the time of sentencing by the sen-

tencing judge; and

(5) reports of physical, mental, or psychiatric ex-

amination of the offender.

There shall also be taken into consideration such addi-

tional relevant information concerning the prisoner (in-

cluding information submitted by the prisoner) as may

be reasonably available.

§ 4208. Parole determination proceeding; time

(a) In making a determination under this chapter (re-

lating to parole) the Commission shall conduct a parole

determination proceeding unless it determines on the

basis of the prisoner’s record that the prisoner will be

released on parole. Whenever feasible, the initial parole

determination proceeding for a prisoner eligible for parole

pursuant to subsections (a) and (b) (1) of section 4205

shall be held not later than thirty days before the date of

such eligibility for parole. Whenever feasible, the initial

parole determination proceeding for a prisoner eligible

for parole pursuant to subsection (b) (2) of section 4205

or released vn parole and whose parole has been revoked

shall be held not later than one hundred and twenty days

following such prisoner’s imprisonment or reimprison-

ment in a Federal institution, as the case may be. An

eligible prisoner may knowingly and intelligently waive

any proceeding.

(b’ At least thirty days prior to any parole determi-

nation proceeding, the prisoner shall be provided with

(1) written notice of the time and place of the proceed-

ing, and (2) reasonable access to a report or other docu-

ment to be used by the Commission in making its de-

termination. A prisoner may waive such notice, except

that if notice is not waived the proceeding shall be held

during the next regularly scheduled proceedings by the

Commission at the institution in which the prisoner is

confined.

ply to—

(1) diagnostic opinions which, if made known to

the eligible prisoner, could lead to a serious dis-

ruption of his institutional program;

(2) any document which reveals sources of in-

formation obtained upon a promise of confidentiality ;

(3) any other information which, if disclosed,

might result in harm, physical or otherwise, to any

person.

If any document is deemed by either the Commission, the

Bureau of Prisons, or any other agency to fall within the

exclusionary provisions of subparagraphs (1), (2), or

(3) of this subsection, then it shall become the duty of

the Commission, the Bureau, or such other agency, as the

case may be, to summarize the basic contents of the ma-

terial withheld, bearing in mind the need for confidential-

ity or the impact on the inmate, or both, and furnish

such summary to the inmate.

(d) (1) During the period prior to the parole determi-

nation proceeding as provided in subsection (b) of this

section, a prisoner may consult, as provided by the direc-

tor, with a representative as referred to in subparagraph

(2) of this subsection, and by mail or otherwise with any

person concerning such proceeding.

(2) The prisoner shall, if he chooses, be represented at

the parole determination proceeding by a representative

who qualifies under rules and regulations promulgated

by the Commission. Such rules shall not exclude attorneys

as a class.

(e) The prisoner shall be allowed to appear and testify

on his own behalf at the parole determination proceeding.

(f) A full and complete record of every proceeding

shall be retained by the Commission. Upon request, the

Commission shall make available to any eligible prisoner

such record as the Commission may retain of the pro-

ceeding.

(g) If parole is denied, a personal conference to ex-

plain the reasons for such denial shall be held, if feasible,

between the prisoner and the Commissioners or exami-

ners conducting the proceeding at the conclusion of the

proceeding. When feasible, the conference shall include

advice to the prisoner as to what steps may be taken to

enhance his chance of being released at a subsequent

proceeding.

(h) In any case in which release on parole is not

granted, subsequent parole determination proceedings

shall be held not less frequently than:

(1) eighteen months in the case of a prisoner with

a term or terms of more than one year but less than

seven years; and

(2) twenty-four months in the case of a prisoner

with a term or terms of seven years or longer.

§ 4215. Reconsideration and appeal

(a) Whenever parole release is denied under section

4206, parole conditions are imposed or modified under

section 4209, parole discharge is denied under section

4211(c), or parole is modified or revoked under section

4214, the inc‘vidual to whom any such decision applies

may have the decision reconsidered by submitting a writ-

ten application to the regional commissioner not later than

thirty days following the date on which the decision is

rendered. The regional commissioner, upon receipt of

such application, must act pursuant to rules and regu-

lations within thirty days to reaffirm, modify, or reverse

his original decision and shall inform the applicant in

writing of the decision and the reasons therefor.

(b) Any aecision made pursuant to subsection (a) of

this section which is adverse to the applicant for recon-

sideration may be appealed by such individual to the

National Appeals Board by submitting a written notice

of appeal not later than thirty days following the date

on which such decision is rendered. The National Ap-

peals Board, upon recipt of the appellant’s papers, must

act pursuant to rules and regulations within sixty days

to reaffirm, modify, or reverse the decision and shall in-

form the appellant in writing of the decision and the

reasons therefor.

cision of a regional commissioner upon the written request

of the Attorney General filed not later than thirty days

following the decision and, by majority vote, shall re-

affirm, modify, or reverse the decision within sixty days

of the recipt of the Attorney General’s request. The

Board shall inform the Attorney General and the in-

dividual to whom the decision applies in writing of its

decision and the reasons therefor.

Regulations of United States Parole Commission |

(Title 28, Code of Federal Regulations)

§ 2.11 Application for parole.

(a) A federal prisoner (including a committed youth

offender or prisoner sentenced under the Narcotic Addict

Rehabilitation Act) desiring to apply for parole shall ex-

ecute an application form as prescribed by the Commis-

sion. Such forms shall be available at each federal insti-

tution and shall be provided to prisoners eligible for

parole. Prisoners committed under the Federal Juvenile

Delinquency Act shall be considered for parole without

application and may not waive parole consideration. A

prisoner who receives an initial hearing need not apply

for subsequent hearings.

(b) A prisoner may knowingly and intelligently waive

any parole consideration on a form provided for that pur-

pose. If a prisoner waives parole consideration, he may

later apply for parole and may be heard during the next

visit of the Commission to the institution at which he is

confined, provided that he has applied at least 45 days

prior to the first day of the month in which such visit of

the Commission occurs.

tion for parole or a waiver form shall be referred to the

Commission’s representatives by the chief executive of-

ficer of the institution. The prisoner shall then receive an

explanation of his right to apply for parole at a later

date.

(d) In addition to the above procedures relating to

parole application, all prisoners prior to initial hearing

shall be provided with an inmate background statement

by the Bureau of Prisoners for completion by the prisoner.

§ 2.12 Hearing procedure.

(a) Whenever feasible, the initial parole determination

hearing for an eligible prisoner shall be held at least 30

days prior to the expiration of his minimum sentence, or

in the case of a prisoner with no minimum sentence with-

in one-hundred and twenty days after his reception at a

federal institution. The prisoner shall, at least 30 days

prior to the hearing, be provided with written notice of

the time and place of the hearing and of his right to

review the documents to be considered by the Commission

as provided by § 2.55. A prisoner may waive such notice,

except that if such notice is not waived, the case shall be

continued to the time of the next regularly scheduled pro-

ceeding of the Commission at the institution in which the

prisoner is confined.

(b) A prisoner may be represented at a hearing by a

person of his choice. The function of the prisoner’s repre-

sentative shall be to offer a statement at the conclusion

of the interview of the prisoner by the examiner panel,

and to provide such additional information as the ex-

aminer panel shall request. Interested parties who op-

pose parole may select a representative to appear and

offer a statement. The presiding hearing examiner shall

limit or exclude any irrelevant or repetitious statement.

sentative thereof, shall be granted to a prisoner unless

his name is docketed for a hearing in accordance with

10a

Commission procedures. Hearings shall not be open to

the public.

§ 2.13 Initial hearing.

(a) An initial hearing shall be conducted by a panel

of two hearing examiners. The examiners shall discuss

with the prisoner his offense severity rating and salient

factor score as described in § 2.20, his institutional con-

duct and, in addition, any other matter the panel may

deem relevant. At the conclusion of the hearing, the

panel shall orally inform the prisoner of its recommenda-

tion and, if such recommendation is for denial, of the

reasons therefor.

(b) Written notice of the official decision, including

the decision to refer under § 2.17 or § 2.24, shall be

mailed or transmitted to the prisoner within 21 days of

the date of the hearing, except in emergencies.

in writing the reasons therefor. In accordance with 18

U.S.C. 4206, reasons for parole denial may include the

following, with further specification as appropriate.

(1) The prisoner has not substantially observed the

rules of the institution or institutions in which confined;

(2) Release, in the opinion of the Commission, would

depreciate the seriousness of the offense or promote dis-

respect for the law; or

(3) Release, in the opinion of the Commission, would

jeopardize the public welfare.

In lieu of, or in combination with, the above reasons the

prisoner shall be furnished with a guidelines evaluation

statement containing his offense severity rating and

salient factor score (including the points credited on each

item of such score) as described in § 2.20, as well as the

specific factors and information relied upon for any deci-

lla

sion to continue such prisoner for a period outside the

range indicated by the guidelines.

(d) A full and complete record of every hearing shall

be retained by the Commission. Upon a request, pursuant

to § 2.55, the Commission shall make available to any

eligible prisoner such record as the Commission has re-

tained of the hearing.

§ 2.14 Subsequent hearings.

(a) Subsequent hearings shall be conducted under the

same procedure as initial hearings, except that the pri-

mary purpose of a subsequent hearing shall be to focus

on any developments or changes in the prisoner’s status

that may have occurred subsequent to the initial hearing.

(b) During the month preceding a regularly scheduled

institutional review hearing the case may be reviewed by

an examiner panel on the record (including a current in-

stitutional progress report). If the recommendation is

to grant parole, and the Regional Commissioner concurs,

no hearing shall be conducted. However, cases in which

the previous continuance has been limited by statute or

Commission policy shall be placed directly on the docket

for hearing.

' $2.18 Granting of parole.

The granting of parole to an eligible prisoner rests in

the discretion of the United States Parole Commission.

As prerequisites to a grant of parole, the Commission

must determine that the prisoner has substantially ob-

served the rules of the institution or institutions in which

he has been confined; and upon consideration of the nature

and circumstances of the offense and the history and

characteristics of the prisoner, must determine that re-

lease would not depreciate the seriousness of his offense

or promote disrespect for the law, and that release would

not jeopardize the public welfare (i.e., that there is a

=.”

————— ee eee

12a

reasonable probability that, if released, the prisoner would

live and remain at liberty without violating the law or

the conditions of his parole).

§ 2.19 Information considered.

(a) In making a determination under this chapter (re-

lating to release on parole) the Commission shall con-

sider, if available and relevant:

(1) Reports and recommendations which staff of the

facility in which such prisoner is confined may make;

(2) Official reports of the prisoner’s prior criminal

record, including a report or record of earlier probation

and parole experiences ;

(3) Presentence investigation reports;

(4) Recommendations regarding the prisoner’s parole

made at the time of sentencing by the sentencing judge

and prosecuting attorney; and

(5) Reports of physical, mental, or psychiatric exami-

nation of the offender.

(b) There shall also be taken into consideration such

additional relevant information concerning the prisoner

(including information submitted by the prisoner) as

may be reasonably available (18 U.S.C. 4207). The Com-

mission encourages the submission of relevant information

concerning an eligible prisoner by interested persons.

§ 2.20 Paroling policy guidelines; statement of general

policy.

(a) To establish a national paroling policy, promote a |

more consistent exercise of discretion, and enable fairer

and more equitable decisionmaking without removing in-

dividual case consideration, the United States Parole

Commission has adopted guidelines for parole release

consideration.

13a

(b) These guidelines indicate the customary range of

time to be served before release for various combinations

of offense (severity) and offender (parole prognosis)

characteristics. The time ranges specified by the guide-

lines are established specifically for cases with good in-

stitutional adjustment and program progress.

the circumstances warrant, decisions outside of the guide-

lines (either above or below) may be rendered.

(d) The guidelines contain examples of offense be-

haviors for each severity level. However, especially miti-

gating or aggravating circumstances in a particular case

may justify a decision or a severity rating different from

that listed.

(e) An evaluation sheet containing a “salient factor

score” serves as an aid in determining ‘he parole prog-

nosis (potential risk of parole violation). However, where

circumstances warrant, clinical evaluation of risk may

override this predictive aid.

(f) Guidelines for reparole consideration are set forth

at § 2.21.

(g) The Commission shall review the guidelines, includ-

ing the salient factor score, periodically and may revise or

modify them at any time as deemed appropriate. .. .

§ 2.22 Communication with the Commission.

Attorneys, relatives, or interested parties wishing a

personal interview to discuss a specific case with a repre-

sentative of the Commission must submit a written re-

quest to the appropriate regional office setting forth the

nature of the information to be discussed. Such personal

interview may be conducted by Staff Personnel in the

regional offices. Personal interviews, however, shall not

be held by an examiner or member of the Commission

except under the Commission’s appeals procedures.

l4a

§ 2.25 Regional appeal.

(a) A prisoner or parolee may submit to the responsi-

ble Regional Commissioner a written appeal of a decision

to grant, rescind, deny, or revoke, parole, except that any

appeal of a Commission decision pursuant to § 2.17 shall

be pursuant to § 2.27. This appeal must be filed on a

form provided for that purpose within thirty days from

the date of entry of such decision.

(b) The Regional Commissioner may affirm the deci-

sion, order a new institutional hearing on the next docket,

order a regional appellate hearing, reverse the decision,

or modify a continuance or the effective date of parole.

Reversal of a decision or the modification of a decision by

more than one hundred eighty days whether based upon

the record or following a regional appellate hearing shall

require the concurrence of two out of three Regional

Commissioners. Decisions requiring a second or addi-

tional vote shall be referred to other Regional Commis-

sioners on a rotating basis as established by the Chair-

man.

regional office before the Regional Commissioner. If a

regional appellate hearing is ordered, attorneys, relatives

and other interested parties who wish to appear must

submit a written request to the Regional Commissioner

stating their relationship to the prisoner and the general

nature of the information they wish to present. The Re-

gional Commissioner shall determine if the requested ap-

pearances will be permitted. The prisoner shall not ap-

pear personally.

(d) Within 30 days of receipt of the appeal, except in

emergencies, the Regional Commissioner shall inform the

applicant in writing of the decision and the reasons

therefor.

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(e) If no appeal is filed within thirty days of the date

of the entry of the original decision, such shall stand as

the final decision of the Commission.

(f) Appeals under this section may be based upon the

following grounds:

(1) The reasons given for a denial or continuance do

not support the decision; or |

(2) There was significant information in existence but

not known at the time of the hearing.

§ 2.26 Appeal to National Appeals Board.

(a) Within 30 days of entry of a Regional Commis-

sioner’s decision under § 2.25, a prisoner or parolee may

appeal to the National Appeals Board on a form provided

for that purpose. However, any matter not raised on a

regional level appeal may not be raised on appeal to the

National Appeals Board. The National Appeals Board

may, upon the concurrence of two members, affirm,

modify, or reverse the decision, or order a rehearing at

the institutional or regional level.

(b) The National Appeals Board shall act within 60

days of receipt of the appellant’s papers, to affirm,

modify, or reverse the decision.

(ce) Decisions of the National Appeals Board shall be

final.

§ 2.28 Reopening of cases.

Notwithstanding the appeal procedure of § 2.25 and

§ 2.26, the appropriate Regional Commissioner may, on

his own motion, reopen a case at any time upon the re-

ceipt of new information of substantial significance and

may then take any action authorized under the provisions

and procedures of § 2.25. Original jurisdiction cases may

be reopened upon the motion of the appropriate Regional

Commissioner under the procedures of § 2.17.

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§ 2.29 Release on parole.

(a) A grant of parole shall not be deemed to be effec-

tive until a certificate of parole has been delivered to the

prisoner.

(b) Parole release dates generally will not be set more

than six months from the date of the parole hearing.

Residence in a Community Treatment Center as part of a

parole release plan generally shall not exceed one hundred

and twenty days. An effective date of parole shall not be

set for a Saturday, Sunday, or a legal holiday.

the Commission, release on that date shall be conditioned

upon continued good conduct by the prisoner and the

completion of a satisfactory plan for parole supervision.

The appropriate Regional Commissioner may, on his own

motion, reconsider any case prior to release and may

reopen and advance or retard a parole date. A parole

grant may be retarded for up to one hundred and twenty

days without a hearing for development and approval of

release plans.

§ 2.55 Disclosure of records.

(a) Prior to an initial parole hearing conducted pur-

suant to, §2.18 or any review hearing thereafter, a

prisoner may review reports and other documents in the

institution file which will be considered by the Commis-

sion at his parole hearing. These documents are gen-

erally limited to official reports bearing on the prisoner’s

offense behavior, personal history, and institutional prog-

ress. Review of such reports shall be permitted by the -

Bureau of Prisons pursuant to its regulations within

seven days of a request by the prisoner, except that in

the case of reports which must be sent to the originating

agency for clearance pursuant to paragraph (c) of this

section, a reasonable amount of time shall be permitted to

obtain such clearance. Copies of reports and documents

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may be furnished under applicable Bureau of Prisons

regulations.

(b) A report shall not be disclosed to the extent it

contains:

(1) Diagnostic opinions which, if known to the pris-

oner, could lead to a serious disruption of his institutional

program ; ,

_ (2) Material which would reveal sources of informa-

tion obtained upon a promise of confidentiality; or

(3) Any other information which, if disclosed, might

result in harm, physical or otherwise, to any person. The

term “otherwise” shall be deemed to include the legiti-

mate privacy interests of such person under the Privacy

Act of 1974.

any report or document referred to in paragraph (a) of

this section to determine whether or not to apply any of

the exceptions to disclosure set forth in paragraph (b) of

this section. If any report or portion thereof is deemed

by the originating agency to fall within an exception to

disclosure, such agency shall prepare and furnish for

inclusion in the institution file a summary of the basic

contents of the material to be withheld, bearing in mind

the need for confidentiality or impact on the prisoner, or

both. In the case of a report prepared by an agency other

than the Bureau of Prisons, the Bureau shall refer such

report to the originating agency for a determination rela-

tive to disclosure, if the report has not been previously

cleared or prepared for disclosure.

(d) Upon request by the prisoner, the Commission shall

make available a copy of any record which it has retained

of a parole or parole revocation hearing pursuant to 18

U.S.C. 4208 (f).

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(e) Except for deliberative memoranda referred to in

paragraph (f) of this section, reports or documents re-

ceived at regional offices which may be considered by the

Commission at any proceeding shall be forwarded for in-

clusion in the prisoner’s institutional file so that he may

review them pursuant to paragraph (a) of this section.

Such reports will first be referred by the Commission to

originating agencies pursuant to paragraph (c) of this

section for a determination relative to disclosure if the

report has not previously been cleared or prepared for

disclosure.

(f) Duplicate copies of records in a prisoner’s institu-

tional file as well as deliberative memoranda among Com-

mission Members or staff which do not contain new

factual information relative to the parole release determi-

nation are retained in Parole Commission regional office

files following initial hearing. Records maintained in

these files shall be made available to prisoners, parolees,

mandatory releasees, their authorized representative and

members of the public upon written request in accordance

with applicable law and Department of Justice regula-

tions at 28 CFR Part 16, Subparts C & D. The Commis-

sion reserves t

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