# Amicus Brief — Greenholtz v. Inmates of Neb. Penal and Correctional Complex > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1478%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1979 - **Citation:** 442 U.S. 1 ## Text Seema; Cowt #2 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., V 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.-- 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 we Vv 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 VI 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 oe 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 Ix 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 22 21 11 21 12 36 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. 2 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). oe 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 4 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. 4 : 4 5 SUMMARY OF ARGUMENT I. 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 7 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: 8 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. 9. ARGUMENT I, 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. 10 “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 -@ 11 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] 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 13 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] 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 15 “{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. 16 427 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. 17 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). 18 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 19 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] 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. 24 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. 25 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. 26 (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 a 27 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] 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. = 29 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] 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 31 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 33 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). 34 “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. 35 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). 36 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. 37 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, 38 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). 39 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] 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. 41 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. 42 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. (c) Prior to the hearing, the prisoner and his advisor should 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] 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). 44 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 45 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. 46 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. 47 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. 48 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. 50 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. 51 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. 52 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. 53 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. ee 54 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), (c) ; 28 C.F.R. § 2.18. The administrative burden imposed 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 55 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 inf [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1478%3A10. Public record. Not legal advice.