Petition — Raymond W. Anderson and Paul W. Keve v. Thomas H. Winsett

JUN 20 1980

IN THE

MICHAEL RODAK, JR.. CLERR

Supreme Court of the United States

October Term, 1979.

No. 79-2014

RAYMOND W. ANDERSON and PAUL W. KEVE,

Petitioners,

v.

THOMAS H. WINSETT,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT.

REGINA MULLEN SMALL

State Solicitor

JOHN ALEXANDER PARKINS, JR.

Assistant State Solicitor

Joun J. PoLx

Deputy Attorney General

Delaware Department of Justice

State Office Building

820 N. French Street

Wilmington, Delaware 19801

(302) 571-3881

Attorneys for Petitioners

international Printing Co., 711 So. 50th St., Phila., Pa. 19143 — Tel. (215) 727-8711

INDEX TO BRIEF.

Page

OMI SS en bals «owe se vha phd dbp ae (ebb kee bONaS 1

SE Wn Waste sas kice eek cas pom paanaad chagiewa’ 2

RINE MINI reid s CAs cs ceed ot wacbabeseeknwebe 2

PORE cari ari ew vk Chics tae oS age a WeheR Map eee’ 2

REASONS FOR GRANTING THE WRIT .............00000ee00: 6

I. The Decision of the Court of Appeals Conflicts With

Decisions 08: Tile Coat aires cick. Seas 6

II. The Reasoning and Result Reached by the Court of

Appeals Far Transcend the Bounds of this Particular

RIMES ih CS a5 RED HSAs HEE AREA OTA 0 he 8

PE eT ee Tee er ONT Tere peas ren pier ll

APPENDIX:

Court of Appeals Judgment on Rehearing ............ Al

fe ee rr ae oe A3

Sy TN RINNE eh loki es vnccnea ns oa chennes A43

RENEE ENE GUNUIIEED ov Spies CvieecccaWekaccaaemaunas A44

EN DIO. a Sic aici wad ckantabewdck occa A55

TABLE OF CITATIONS.

Cases: Page

Bell v. Wolfish, — U. S. —, 60 L. Ed. 2d 477 (1979) ...... 9

Board of Regents v. Roth, 408 U. S. 564 (1972) .......... 6,7

‘Goss v. Lopez, 419 U. S. 565 (1975) .........ccccececeees 6

Greenholtz v. Inmates of the Nebraska Penal and Correctional

Complex, 442 U. S. 1, 60 L. Ed. 2d 668 (1979) ...... 6,7, 10

Kelly v. Johnson, 425 U. S. 238 (1976) .............0000e 6

Meachum v. Fano, 427 U. S. 215 (1976) ................. 4,6,9

Perry v. Sindermann, 408 U. S. 593 (1973) ............... 6

Preiser v. Rodriguez, 411 U. S. 475 (1973) ............... 9

Vitek v. Jones, — U. S. —, 63 L. Ed. 2d 552 (1980) ....... 6

Wolff vy. McDonnell, 418 U. S. 539 (1974) ................ 6

Wood v. Strickland, 420 U. S. 308 (1975) ................ 9

Statutes:

I MI io yj 5's ss ov aoe oe cesdnc ovens 4,9

N, J. Rev. Stat. tit. 30 § 1B-3 (Cum. Supp. 1979) .......... 9

N. Y. Correction Law § 45 (McKinney Cum. Supp. 1979) .. 9

Pa. Stat. Ann. tit. 61, § 460.3 (Cum. Supp. 1979) ........... 9

cael kik y Be x’ Ba Bis ¥hb.04 o bicooies 2

i oss ce wha Slo lv'g. oo 5s Gi Gdifinc a's 2

I Ss soon kck ace vc vsien oececcacvies 2

IN THE

Supreme Court of the United States

October Term, 1979

No.

RAYMOND W. ANDERSON and PAUL W. KEVE,

Petitioners,

wD.

THOMAS H. WINSETT,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT.

Petitioners respectfully request that a writ of cer-

tiorari issue from this Court to review the judgment of the

United States Court of Appeals for the Third Circuit in

the above-captioned cause.

OPINIONS BELOW.

The opinion of the Court of Appeals for the Third

Circuit is not yet reported. It is set out in the Appendix

hereto at pages A-3 to A-42. The opinion of the United

States District Court for the District of Delaware is re-

ported at 443 F. Supp. 1369. It is set out in the Appendix

at pages A-44 to A-54.

2 Petition for Writ of Certiorari

JURISDICTION.

The opinion and order of the United States Court of

Appeals for the Third Circuit were filed on March 24,

1980. This Court’s jurisdiction is invoked pursuant to 28

U.S.C. § 1254.

QUESTION PRESENTED.

Do state statutes specifying humane treatment of

prisoners with an eye toward their rehabilitation create

a liberty or property interest which requires federal ju-

dicial review of classification decisions?

STATEMENT.

This case involves a due process challenge by Re-

spondent (the “prisoner”) to the denial of his application

to participate in a discretionary work release program.’

Specifically at issue is the Court of Appeals’ determination

that a liberty interest existed in this case even though

prison officials were vested with discretion in admitting

inmates to the program.

The prisoner is a Delaware inmate serving a life sen-

tence for the 1963 murder of a Delaware state policeman.

He claims that he was denied due process because the

denial of his three applications for work release was moti-

vated by prison officials’ fear of possible retaliation by

1. This case first arose in the District of Delaware. Jurisdic-

oo (3) conferred upon the District Court by 28 U. S. C. §§ 1331,

In addition to his due process claim, the prisoner also raised

an equal protection claim which was not based upon any allega-

tion of class-based discrimination. The District Court denied the

claim. Because of its resolution of this case, the majority of the

Gourt of Appeals did not reach this issue.

Petition for Writ of Certiorari 3

the Delaware General Assembly (most likely in the form

of budget, personnel and program cutbacks) and of ad-

verse public reaction.

Delaware’s work release program permits participat-

ing prisoners to hold jobs in the outside community.

Inmates frequently live in a low security residence main-

tained by the Delaware Department of Correction. In-

mates residing in this facility are subjected to compara-

tively few restrictions and are usually free to leave the

residence during daylight hours.’

The prisoner made his first application for work re-

lease in 1974. Although the prisoner met certain criteria

for eligibility, petitioner Anderson, the warden, exercised

his statutory veto power and denied the prisoner's appli-

cation “due to the sensitivity of his offense.”

In 1976 the prisoner filed a second application. At

the time this application was filed petitioner Keve, who

was Acting Commissioner of the Delaware Department of

Correction, was making efforts to arrange for the prisoner’s

transfer to the Minnesota prison system. These efforts

were being made at the request of the prisoner.

The District Court found that both the 1974 and

1976 denials were motivated “at least in substantial part”

by the prison officials’ fear of retaliation by the Delaware

General Assembly. However, it found that the Commis-

sioner deferred a decision on the second application be-

cause he felt that the potential transfer to Minnesota

would ultimately be of more benefit to the prisoner.

The prisoner's third application was denied in 1977.

By the time of the third denial, petitioners no longer

occupied their official positions. The District Court found

that the third denial was not motivated by any concern

2. On occasion the Delaware Department of Correction has

also operated a smaller work release program out of one of its se-

cure facilities.

4 Petition for Writ of Certiorari

for possible retaliation by the General Assembly. This

finding was uncontested on appeal.

The District Court, adhering to this Court’s teach-

ings in Meachum v. Fano, 427 U. S. 215 (1976), denied

the prisoner’s due process claim, It found that the Dela-

ware statute authorizing the work release program did

not bestow on this prisoner a right to participate in that

program. Likewise, it held that the Department's regula-

tions did not give the prisoner a right to participate in

the program. Since the prisoner had no cognizable en-

titlement t0~partigipate in the program, the trial court

concluded that the prisoner had ng liberty or property

interest at stake.

The history of the prisoner's appeal is somewhat

unusual. The appeal was argued before a three judge

panel of the Third Circuit in December, 1978. In the

Spring of 1979, without having issued an opinion, the

Court of Appeals sua sponte directed that the matter be re-

argued before the court en banc. ‘The matter was

reargued in November, 1979, and the divided court issued

its opinion on March 24, 1980.

The Court of Appeals reversed the District Court’s

holding that the prisoner had no protectible liberty or

property interest. The prisoner conceded that the statute

authorizing the work release program did not create such

an interest, and the Court of Appeals recognized that the

pertinent regulations vested prison officials with discretion

in approving or rejecting applications. The Court of

Appeals instead focused on another statute specifying in

broad terms that prisoners be treated “humanely, with

effort directed to their rehabilitation ....” Del. C. Ann.

tit. 11, §6531 (A55). The court concluded that this

statute limited the discretion of the prison officials. With-

out finding any specific regulatory or statutory entitlement,

it found that the statutory directive to treat prisoners

Petition for Writ of Certiorari 5

humanely creates a liberty interest because the prison

officials’ exercise of discretion must be consistent “with

the purpose and policy behind work release.” (Slip Op.

21, A23). According to the Court

We hold that a state-created liberty interest in work

release arises when a prisoner meets all eligibility re-

quirements under the state statutes and the exercise

of the prison authorities’ discretion is consistent with

work release policy.”

(Id., A23-24)

6 ; Petition for Writ of Certiorari

REASONS FOR GRANTING THE WRIT.

IL

The Decisions of the Court of Appeals Conflicts

With Decisions of This Court.

In any due process analysis, the first step must be a

determination whether there has been a deprivation of life,

liberty or property. Board of Regents v. Roth, 408 U. S.

564 (1972) (procedural due process); Kelly v. Johnson,

425 U. S. 238 (1976) (substantive due process). In this

case the Court of Appeals concluded that the prisoner was

deprived of a liberty interest in connection with the denial

of his application for work release despite the fact that

acceptance into that program is discretionary with prison

officials. This determination conflicts with previous deci-

sions of this Court.

The prisoner's valid criminal conviction and sentence

extinguished his right to freedom from confinement.

Vitek v. Jones, — U. S. — , 63 L. Ed. 2d 552 (1980).

Thus he must find any liberty interest in work release in

state statutes or prison regulations. The prior opinions

of this Court demonstrate that he must show a clear en-

titlement to participate in work release in order to estab-

lish such an interest. Compare Goss v. Lopez, 419 U. S.

965, 573 (1975) (“legitimate claims of entitlement to a

public education” sufficient); Wolff v. McDonnell, 418

U. S. 539, 557 (1974) (“statutory right to good-time”

sufficient); Perry v. Sindermann, 408 U. S. 593, 601

(1973) (understanding equivalent to tenure created 2

sufficient “claim of entitlement”); with Greenholtz v. In-

mates of the Nebraska Penal and Correctional Complex,

442 U. S. 1, 60 L. Ed. 2d 668 (1979) ( possibility of parole

insufficient ); Meachum v. Fano, 427 U. S. 215 (1976)

Petition for Writ of Certiorari 7

(expectation of remaining in same prison insufficient);

Board of Regents v. Roth, 408 U. S. 564 (1972) (expecta-

tion of non-tenured teacher to be rehired insufficient ).°

As this Court has at least twice stated:

“[T]o obtain a protectible right

‘a person clearly must have more than an abstract

need for it. He must have more than a uni-

lateral expectation of it. He must instead, have

a legitimate claim of entitlement to it.”

Greenholtz, supra, 60 L. Ed. 2d at 675, quoting Board of

Regents v. Roth, 408 U. S. 564, 577 (1972) (emphasis

added in petition). No opinion of this Court holds that

a mere expectancy, premised upon the anticipated favor-

able exercise of discretion by a decision maker, constitutes

a protectible liberty interest.

Contrary to this principle, the Third Circuit made

no finding that a specific statute or regulation conferred

on the prisoner an entitlement to participate in the work

release program. Indeed, the prisoner conceded that the

statute authorizing the work release program did not con-

fer upon him a right to participate in the program (Slip

Op. at 17, Al9) and the Court of Appeals acknowledged

that the Department of Correction regulations conferred

discretion upon the prison officials in selecting inmates to

participate in the program (Slip Op. at 18, A20-21), The

absence of any finding of a specific entitlement is under-

scored by the Court of Appeals’ apparent rejection of the

requirement of such a finding:

The trial court’s reasoning, which apparently

would limt protectible interests solely to those which

can be described as vested rights, effectively ar-

3. Emphasis in the parenthetical explanations added.

-*

’*?

8 Petition for Writ of Certiorari

rogates to the States the power to devise both the

interests protectible by due process and the process

which is due.

(Slip Op. at 20, A23) (emphasis added).

Without finding any specific entitlement, the Court

of Appeals in an unwarranted quantum leap held the Due

Process clause requires that the admitted discretion of the

prison officials be exercised in a manner consistent with

what that court perceived as the statutory policy under-

lying the work release program. In effect the Court of

Appeals has put the cart before the horse, for it has reached

the substantive due process issue (the exercise of discre-

tion consistent with the “policy” of the program) in order

to create the requisite entitlement. It is respectfully

urged that dissenting Circuit Judge Weis correctly ap-

praised the majority's holding when he wrote:

“[C]arving out a due process right to work release

because of its otherwise illusory character confuses

what process is due with the question whether a pro-

tectible interest exists.”

(Slip. Op. at 38, A41).

Il.

The Reasoning and Result Reached by the Court

of Appeals Far Transcend the Bounds of

This Particular Case.

The holding of the Court of Appeals has the effect

of subjecting any discretionary decision by prison admin-

istrators to judicial review via the Due Process clause.

Although the Third Circuit's ruling was based in part

upon its interpretation of a state statute, its effect extends

Petition for Writ of Certiorari 9

beyond Delaware because of the prevalence of statutes

of similar import.*

The statute from which the Court of Appeals in-

ferred a policy for work release is broad in scope. It is

not limited to work release but rather applies to all

“[p]ersons committed to the care of the Department [of

Correction].” Del. C. Ann. tit. 11, §6531. Since the

statute applies to all phases of prisoner life, there is no

reason to believe that even the most routine discre-

tionary decisions by prison officials are now subject to

judicial review under the Due Process clause. The scope

of such decisions now reviewable is limitless. If the rea-

soning of the Third Circuit is allowed to stand, the Due

Process clause will force prison administrators to prove

daily in court that routine matters such as internal trans-

fers and security restrictions are consistent with the policy

of “ ‘humane’ treatment, ‘rehabilitation,’ and ‘return to the

community as safely and promptly as practicable.” (Slip

Op. at 19, A22).

In short, the Court of Appeals’ analysis places the

federal courts astride the day-to-day decisions of prison

administrators. This Court has repeatedly stated that

federal courts do not sit to supervise prison administra-

tors. Bell v. Wolfish, — U.S. —, 60 L. Ed. 2d 447 (1979);

Meachum v. Fano, 427 U. S. 215, 228-9 (1976); Preiser

v. Rodriguez, 411 U. S. 475, 491-2 (1973); accord Wood

v. Strickland, 420 U. S. 308, 326 (1975) (Ҥ 1983 was not

intended to be a vehicle for federal court correction of

errors in the exercise of . . . discretion [by administrators]

which do not rise to the level of violation of specific con-

stitutional guarantees.”). Yet this is precisely the result

which is obtained from the Court of Appeals’ reasoning.

4. See, e.g., N.J. Rev. Stat. tit. 30 § 1B-3 (Cum. Supp. 1979);

N.Y. Correction Law § 45 (McKinney Cum. Supp. 1979); Pa. Stat.

Ann. tit. 61, § 460.3 (Cum. Supp. 1979).

10 Petition for Writ of Certiorari

If that reasoning is not refuted, the widespread existence

of statutes such as Delaware’s will transform federal courts

into arenas wherein prisoners can air even their most trivial

grievances.

Further, the holding of the Court of Appeals will

operate as a deterrent to programs requiring prison offi-

cials to predict inmate behavior. These predictions are

often made on the basis of subjective evaluations which

can not always be articulated in traditional findings.

Greenholtz, supra, 60 L. Ed. 2d at 676. But prison offi-

cials will henceforth be reluctant to deny prisoner appli-

cations unless they are able to articulate reasons which

are consistent with some statutory policy. In such cases

the prison administrator is faced with a Hobson’s choice:

either approve the application against his instincts or face

a suit for damages. The ultimate result will be the cur-

tailment of programs dependent upon successful predic-

tion of inmate behavior or the elimination of statutes

advocating humane treatment and _ rehabilitation of

prisoners.”

5. An additional burden faces prison administrators. In light

of the now widespread liberty interest, the specter of constant due

process hearings in connection with formerly administrative deci-

sions now confronts them.

Petition for Writ of Certiorari 11

CONCLUSION.

For the foregoing reasons, this Court should issue a

writ of certiorari to review the opinion and judgment of

the United States Court of Appeals for the Third Circuit.

Respectfully submitted,

REGINA MULLEN SMALL,

State Solicitor,

JoHN ALEXANDER PARKINS, JR.,

Assistant State Solicitor,

Joun J. Poxk,

Deputy Attorney General,

Delaware Department of Justice,

State Office Building,

820 N. French Street,

Wilmington, Delaware 19801

(302) 571-3881

Attorneys for Petitioners.

Appendix.

UNITED STATES COURT OF APPEALS

For THE Tuirp Circuit

No. 78-1344

THOMAS H. WINSETT,

Appellant

v.

F. EARL McGINNES, Secretary of the Department of

Health and Social Services; PAUL V. KEVE, Direc-

tor of Adult Corrections; RAYMOND W. ANDER-

SON, Superintendent of Delaware Correctional

Center; DONALD R. DAVIS, Deputy Superintend-

ent of the Delaware Correctional Center; MILTON

HORTON, Acting Chief of Adult Corrections;

JAMES T. VAUGHN, Commissioner of Department

of Corrections; WALTER W. REDMAN, Superin-

tendent of Delaware Correctional Center

(D. C. Civil No. 74-210)

On APPEAL FROM THE UNITED STATES Districr Court

FOR THE DisTRICT OF DELAWARE

Present: Serrz, Chief Judge and AupisErt, ADAMS,

Grppons, ROSENN, HunTER, WEIs, GARTH,

HIGGINBOTHAM and S.oviter, Circuit

Judges

(Al)

-%

A2 Court of Appeals Judgment on Rehearing

JUDGMENT ON REHEARING.

This cause came on to be heard on the record from

the United States District Court for the District of Dela-

ware and was argued by counsel on December 11, 1978

and reargued en banc on November 8, 1979.

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said Dis-

trict Court, filed January 31, 1978, be, and the same is

hereby reversed insofar as it dismisses Winsett’s action for

damages against Superintendent Anderson and Commis-

sioner Keve, affirmed insofar as it dismissed Winsett’s

damages claim against Commissioner Vaughn, Superin-

tendent Redman, and Assistant Bureau Chief Horton, and

in the denial of injunctive relief on the ground of moot-

ness; and the cause is remanded to the said District Court

for further proceedings consistent with the opinion of this

Court. Each side to bear its own costs.

ATTEST:

THOMAS F. QuINN

Clerk

March 24, 1980

Certified as a true copy and issued in lieu of a formal man-

date on April 15, 1980.

Test: THomas F. Quinn

Clerk, United States Court of Appeals

for the Third Circuit

Court of Appeals Opinion A3

UNITED STATES COURT OF APPEALS

For THE THIRD CIRCUIT

No. 78-1344

THOMAS H. WINSETT,

Appellant

.

F. EARL MCGINNES, Secretary of the Department of

Health and Social Services; PAUL W. KEVE, Direc-

tor of the Delaware Division of Adult Corrections;

RAYMOND W. ANDERSON, Superintendent of

Melaware Correctional Center; DONALD R. DA-

VIS, Deputy Superintendent of the Delaware Cor-

rectional Center; MILTON HORTON, Acting Chief

of Adult Corrections; JAMES T. VAUGHN, Com-

missioner of Department of Corrections; WALTER

W. REDMAN, Superintendent of Delaware Correc-

tional Center

APPEAL FROM THE UNITED STATES District CouRT

FOR THE DistTRiCT OF DELAWARE

(D.C. Civ. No. 74-210)

Argued December 11, 1978

Before: Grppons, VAN DuseEN, ROSENN, Circuit Judges

Argued Before Court In Banc November 8, 1979

Before: Sertz, Chief Judge, ALpisERT, ADAMS, GIBBONS,

RosENN, HunTER, Weis, GARTH, HIGGINBOTHAM,

SLoviTER, Circuit Judges

(Opinion filed March 24, 1980)

7%

A4 Court of Appeals Opinion

ARLEN B. MEKLER, ESQUIRE (Argued)

1700 Farmers Bank Building

Tenth and Market Streets

Wilmington, Delaware 19801

Attorney for Appellant

JOHN A. PARKINS, JR. (Argued)

Assistant Attorney General

Department of Justice

State Office Building

820 French Street

Wilmington, Delaware 19801

Attorney for Appellee

OPINION OF THE COURT.

ROsENN, Circuit Judge

This appeal requires us to determine whether cer-

tain Delaware prison officials violated an inmate’s con-

stitutional rights when, because of their fear of adverse

public reaction and legislative reprisals against the prison

system, they denied his applications for work release.

Following the denial of his work release applications,

the inmate, Thomas H. Winsett, brought a civil rights ac-

tion in the United States District Court for the District of

Delaware under 42 U. S. C. § 1983 (1976) and the four-

teenth amendment to the federal constitution. In this

action, Winsett sought compensatory and punitive dam-

ages as well as injunctive and declaratory relief. The

prayer for injunctive relief, inter alia, sought to restrain

the prison officials from considering possible public reac-

tion and possible reprisal by the Delaware General Assem-

bly when evaluating his future applications for admission

to the program. Following a lengthy trial, the district

court rejected Winsett’s claims and entered judgment in

favor of the defendants. This appeal followed.

Court of Appeals Opinion fete

We conclude that the request for injunctive relief is

moot; that Winsett’s prayer for damages is permissible as

to two of the defendants, subject to certain findings to be

made by the district court concerning official immunity

and the measure of plaintiff's injury; and that his request

for declaratory relief, insofar as it is a predicate to dam-

ages, should be granted if the trial court finds that dam-

ages may be awarded. Accordingly, the district court

judgment will be vacated in part, reversed in part, and

remanded for further proceedings not inconsistent with

this opinion.

I,

Winsett was convicted in 1964 and sentenced to life

imprisonment for the felony murder of Robert Paris, a

Delaware State Police Officer. The killing aroused a per-

vasive public outrage throughout the state.’ As certain

prison officials would later put it, “Winsett [was] singled

out for more public and political attention than other in-

mates we know of [,] even those whose crimes were more

serious... .”

Winsett was duly confined in the Delaware Correc-

tional Center to begin his sentence. During the next ten

years leading up to the initiation of this litigation, Win-

sett was a model prisoner. He pursued courses in heating

and air conditioning, did maintenance work for the prison,

wrote weekly articles about prison life in a prison news-

paper, and got along well with other inmates and officers.

On September 16, 1974, believing himself to be sufficiently

rehabilitated to adjust to life outside the prison, Winsett

requested classification to work release status. 425 F.Supp.

at 610. Work release is a program by which prisoners are

permitted to maintain employment in the community

1. See Winsett v. McGinnes, 443 F. Supp. 1369, 1369-70 (D.

Del. “gui Winsett v. McGinnes, 425 F. Supp. 609, 610 (D. Del.

1976).

A6 Court of Appeals Opinion

while still under correctional supervision. Releasees return

to a correctional institution or a residential center after

the completion of each workday. The work release pro-

gram in Delaware is governed by 11 Del. C. § 6533(a).

That section, at the time of Winsett’s initial application,

provided:

(a) The Department may adopt rules and regu-

lations governing the employment or education of

trustworthy inmates outside the institution . . . ex-

cept that whenever the Department requests place-

ment of inmates in a school of a reorganized school

district, the approval of the board of education of

that district shall be a prerequisite to such place-

ment...”

Pursuant to this statutory authority, the Delaware De-

partment of Corrections adopted a set of rules, also appli-

cable at the time of Winsett’s September, 1974 applica-

tion for work release.’ Together, the statute and the

2. This section was somewhat revised by an Act of August 5,

1976, 60 Del. Laws, c. 705, codified in 11 Del. C. §§ 6533(a),

6533A. The changes do not affect the disposition of this case.

3. The rules in effect at that time were entitled “Criteria and

Procedure fur Statewide Work Education Release.” They pro-

vided:

I. Basic Criteria, All Institutions:

1. Written one year of release or parole eligibility date.

2. Demonstrated interest in personal improvement; prog-

ress toward increased maturity and self understanding. This

will be evaluated on basis of inmate’s work habits, program

participation and general adjustment.

II. Basic Procedures:

1. Written application is submitted by inmate, following

— it is considered by and must be approved successively

y:

a. Classification team

b. Work/education release staff

c. Superintendent

Court of Appeals Opinion A7

rules established a vital rehabilitative system, one which

the Delaware Division of Adult Corrections has acknowl-

edged as among “the final steps in . . . provid[ing] treat-

ment and training of inmates with an end result of their

being ‘able to take their place in society as law-abiding

citizens upon their release.”

Approval for work release requires the concurrence

of three levels of decisionmakers. A prisoner must first

apply to an appropriate “classification team.” In Win-

sett's case, this first level review was carried out by the

Minimum Security Building Classification Team. That

3. (Cont'd. )

III. Variations:

1. Delaware Correctional Center

a. Applicant must be assigned to Minimum Building

before he can apply.

b. Application is made to the Minimum Classification

team first, then to the Institutional Classification Team.

2. Sussex Correctional Institution

Classification Committee makes final decision.

3. Women’s Correctional Institution

No variation from basic.

IV. Specific Criteria for Admission to Plummer Center:

1. Six months to parole eligibility or release.

2. Sufficient experience in the work/education release pro-

gram at the institution to have demonstrated a stable, depend-

able work and adjustment record.

3. Family or personal history associated with Wilmington

area,

4. A score of at least 34 points on the scoring tool used by

Plummer Center.

5. Approval by the Director, the Superintendent of the

institution, and the State Work Release Supervisor in the case

of any inmate with a sex crime or crime of violence.

Norte: Exceptions can be made to all of the above procedures.

Exceptions must be approved by the Superintendent and Super-

visor for Work/Education Release. If there is a conflict between

these two, it is to be resolved by a committee of the Superin-

tendent. State Supervisor for Work/Education Release, and

Assistant Director for Community Services.

"Ss

A8 Court of Appeals Opinion

team approved his application for work release. Its

recommendation was then forwarded to the so-called In-

stitution Classification Committee which also approved

Winsett's application. 433 F. Supp. at 1370; 425 F. Supp.

at 610.

As Winsett’s application was working its way up to

Superintendent Raymond W. Anderson for his final ap-

proval, public opposition to granting work release to

Winsett became increasingly evident. One manifesta-

tion of this growing opposition was an August 7, 1974

letter addressed to Delaware Correctional Center Super-

intendent Anderson and written by Delaware State Sen-

ator Cicione. The letter strongly condemned what the

Senator believed to be Anderson’s intention to prepare

Winsett for work release. “As a State Senator,” the au-

thor declared, “I demand that you reconsider and retract

the actions already taken and take immediate steps to re-

turn Winsett to the ranks of regular prison restrictions.”

The letter elicited an equally strong response from

Superintendent Anderson. On August 8, 1974, more

than a month before Winsett applied for work release,

defendant Anderson wrote the Senator, informing him

that “as long as I am Superintendent of the institution, I

shall never be able to entertain any requests from Tom

[Winsett] in regards to Work Release... .” The Senator

“greatly appreciated” this response and “commend|ed

Anderson] for [his] stand on not allowing Mr. Winsett to

participate in the work-release program.” On September

26, 1974, Superintendent Anderson rejected Winsett’s

application for work release.

Thereupon, on October 15, 1974, Winsett initiated

this action. He alleged that the defendants’ decision was

predicated on the “sensitivity” of his offense, and charged

that such a factor is “a legally impermissible” basis for

Court of Appeals Opinion A9

evaluating work release applications.. Winsett proceeded

against F. Earl McGinnes, Secretary of the Delaware De-

partment of Health and Social Services, Paul W. Keve,

Director of the Delaware Division of Adult Corrections

and later Acting Commissioner of the Delaware Depart-

ment of Corrections, Raymond W. Anderson, Superintend-

ent of the Correctional Center, and Donald Davis, Deputy

Superintendent of the Delaware Correctional Center.‘

While this action was pending in the trial court,

Winsett applied a second and third time for work release.

His second application, filed in early March of 1976, was

approved by both the Minimum Security Building Clas-

sification Team and the Institution Classification Com-

mittee. However, Milton Horton, then Assistant Director

of the Adult Division, recommended that Winsett’s “ap-

plication be deferred until [a] decision on [the] transfer”

was made.* Paul Keve, who was Acting Commissioner of

the Department of Corrections at the time, agreed and

the application was deferred, but was formally recorded

as a denial.

Winsett filed his third and final application for work

release in November, 1976. Again he was approved by

the Minimum Security Building Classification Team and

the Institution Classification Committee. A third com-

mittee, newly created by the General Assembly and-en——-—-----

titled the Institutional Release Classification Board, also

4. Defendants’ motion for a directed verdict as to F. Earl

McGinnes and Donald R. Davis was granted at the close of the

plaintiffs case. 443 F. Supp. at 1 n. 1. Winsett has not

appealed that disposition.

5. See 443 F. Supp. at 1370. The “transfer” referred to by

Horton was a project, ultimately unsuccessful, that Keve had been

developing for several months. Essentially, Keve had hoped to

work out a contract with the Corrections Department of the State

of Minnesota under which the interstate transfer of certain inmates

could be accomplished. It was felt that this project would be

especially suitable for Winsett.

Al0 Court of Appeals Opinion

approved Winsett’s application. The application was

vetoed, however, by Milton Horton, now Assistant Bu-

reau Chief of Adult Correction. Horton advanced three

reasons for his veto decision: (1) the seriousness of the

offense; (2) the lack of a certified parole release date.

which he believed was required by the existing guide-

lines; and (3) Winsett’s previous history of model con-

duct during incarceration in other institutions for offenses

committed prior to the Paris murder, and that his good

conduct during his present incarceration should therefore

be given less weight. This veto was approved by then

Commissioner James T. Vaughn.

Following the denials of Winsett’s second and third

applications for work release, additional defendants Mil-

ton Horton, James Vaughn, and Superintendent Walter

W. Redman were joined in the action. On December

30, 1976, the district court, in a preliminary jurisdictional

ruling, held that plaintiff's request for injunctive relief,

insofar as it sought his immediate admission to work re-

lease, would be denied. 425 F. Supp. at 613. The court

based its ruling on the Supreme Court’s decision in

Preiser v. Rodriguez, 411 U. S. 475 (1973), which held

that “when a state prisoner is challenging the very fact

or duration of his physical imprisonment, and the relief

he seeks is a determination that he is entitled to immedi-

ate release or a speedier release from that imprisonment,

his sole federal remedy is a writ of habeas corpus[,]” with

‘

6. There is no record of any motion by Winsett to join these

defendants, and the testimony at trial indicates that the partici-

pated only in their official capacities. We will assume that these

defendants were joined as subsequent prison officials as to whom

injunctive or declaratory relief, barring similar decisions in the

future, might be applicable. Because of our disposition of Win-

sett’s plea for equilnhle relief, however, see —_ at 11-12 and note

11, our consideration of these defendants as formal parties has no

effect on their or anyone else’s liability.

Court of Appeals Opinion All

the attendant requirement of exhaustion of state reme-

dies. 411 U. S. at 500. Winsett has not appealed from

that decision. The court also held that Winsett’s claims

for damages, and for declaratory relief as a predicate to

damages, could be entertained on the merits. 425 F.

Supp. at 612-13. Implicitly, the court further held that,

insofar as Winsett’s plea for injunctive relief was intended

not to secure his immediate release but simply to prevent

the future application of impermissible standards in evalu-

ating his work release requests, that injunctive action

could be heard in a federal forum.

Winsett's case went to trial on July 21, 1977. At the

outset, his lawyer made clear that the primary objection

was to the allegedly impermissible standards used in re-

jecting Winsett’s applications for work release. Superin-

tendent Anderson acknowledged the correspondence

with Senator Cicione, and admitted that the Senator’s

Chairmanship of the Joint Finance Committee was a

matter of particular concern to the administration of the

corrections system. He also acknowledged that he had

been aware of the possibility that Paui Keve might not be

confirmed by the Senate, given its displeasure with the

prison system. Anderson was also examined with re-

spect to his answers to certain interrogatories which

seemed to indicate that his rejection of Winsett’s initial

application was influenced primarily by public pressure

in general and the complaints of “[t]he State Police and

certain Senators” in particular.

Appellee Keve’s testimony was even more revealing.

The Legislature, Keve noted, had given the corrections

department certain privileges pertaining to programs such

as work release and furloughs and had amply demon-

strated to him “its readiness very quickly to withdraw

such privileges . . . whenever there was disappointment

Al2 Court of Appeals Opinion

on their part with the way that the Department exer-

cised these.” Keve saw his role as one of protecting the

“inmate population as a whole” where their privileges

might be jeopardized by actions taken in a particular

case. Although he did not think that his rejection of

Winsett’s second application was influenced by the Leg-

islature’s possible refusal to confirm him as Commis-

sioner, he admitted that he was conscious of this hazard.

However, he satisfied himself that he adhered to deci-

sions which he conscientiously regarded “as right and

best for the Department rather than those decisions

which simply would protect my job.”

Keve acknowledged that if he had taken steps toward

granting Winsett work release, relations between the

prison system and the legislative leadership would have

suffered.’ Indeed, he noted, the rejection of Winsett’s

second application had nothing at all to do with the

existing eligibility criteria. Rather, it was the result of

“intense legislative pressure.” Had it not been for this

pressure, Keve admitted, Winsett would have gone on

work release. Although this pressure apparently was not

formal legislative action, it was very difficult for him to

7. With respect to tensions in the summer of 1976 between the

Department and legislative leadership, Keve testified:

9 No. I am saying that were you to take steps which

would have been positive with respect to Tom Winsett’s work

release, that it would have endangered or at least made more

difficult your relationships with the powers in the General

Assembly?

A. Yes, it would have. We were already having various

kinds of problems with the Legislature being very critical of

the Department's operation, I would say from, oh, very early

spring in 1976 right on through the summer. There were

efforts in the Senate while it was still in session up to the end

of June to make demands upon the Governor for my discharge,

for instance, and frequent calls for changes; and, as I said, at

the same time there were bills being pushed through the

Legislature to circumscribe our privilege of extending outside

status to inmates.

Court of Appeals Opinion Al3

take “any kind of decisive action in that particular job

without incurring some displeasure of somebody and

very, very frequently legislators.” He knew he could ex-

pect some “praise from one kind of legislator and inten-

sive criticism from another kind.” He therefore had to

weigh Winsett’s best interests and the effect of his release

on the overall program and other inmates.* The trial

court rendered its decision on January 31, 1978. It found

that the denials of Winsett’s first and second applications

for classification to work release “were motivated at least

in substantial part by prison officials’ concern about a

possible retaliation by the Delaware General Assembly.”

443 F. Supp. at 1371. In the case of the second denial,

the court was convinced that “Acting Commissioner Keve

believed that he had an alternative approach to work re-

lease which would better serve Winsett’s interests.” Id.

The court further found that the rejection of Winsett’s

third application “was not motivated by [a] concern with

possible retaliation by the General Assembly or by a

concern for public reaction.” Id.

8. Later in the examination of Commissioner Keve, the court

attempted to elicit from the witness precisely how great a factor

in his consideration of Winsett’s second application was the Legis-

lature’s intervention. Keve commented:

There is another factor, and in one sense you can say it is

a different factor and in another it is inseparable. . . . i

one I mentioned, the fact that if Mr. Winsett had been put

into work release, my assessment of his chances of le,

assuming he is still in Delaware, were such that I would have

to assume that he would be in a work release much longer

than what we would consider an optimum safe period of time

for a person to be in work release, and that certainly was a

factor that would reasonably give us much pause. t you

see, it is still related to the same basic background condition

because you ask, why was he probably not going to get parole

very soon, and it goes right back to the same things, the public

and legislative attitudes which the Parole Board also realis-

tically had to give much weight to.

Al4 Court of Appeals Opinion

Although it found the first two rejections to have

been largely the product of prison officials’ concern of

possible legislative retaliation, the trial court nevertheless

held that neither Winsett’s due process nor equal pro-

tection rights had been violated. To invoke a due process

claim, the court noted, a party must first establish that he

had a protectible interest. Surveying the work release

statute and the regulations promulgated thereunder, the

court rejected Winsett’s contention that they created a

vested law right to which due process should attach.

The trial court also rejected Winsett’s equal protec-

tion claim. It held that his failure to allege or prove any

class-based discrimination precluded recovery under the

Equal Protection Clause. Accordingly, although it ac-

knowledged the rather striking irregularities in the first

two refusals of his work release applications, the trial court

denied all of Winsett’s requests for relief,

Winsett appealed. On May 17, 1977, while the ap-

peal was pending, Winsett was granted parole with the

condition that he be transferred to a correctional institu-

tion in another state and serve four years in that institu-

tion prior to his release to parole supervision. On

November 16, 1978, Winsett was transferred to Kilby Cor-

rectional Facility near Montgomery, Alabama. As we ex-

plain in more detail below, this transfer measurably

changes the scope of available relief.

II.

We note at the outset that whatever may be the de-

fendants’ substantive liability, Winsett’s demands for in-

junctive relief is now moot. The only injunction sought

by Winsett in this appeal is one to restrain the defendants

from continuing to rely on allegedly impermissible criteria

in evaluating his future applications for work release.

Court of Appeals Opinion Al5

Because Winsett has now received a conditional parole,

is no longer subject to Delaware’s jurisdiction, and shows

no interest in returning,” his injunctive request no longer

implicates “an actual controversy . . . at [this] stage . . .

of review. ...” Steffel v. Thompson, 415 U. S. 452, 459

n. 10 (1974)."° There is no evidence on the record sug-

gesting that Winsett is currently harmed in any respect by

whatever legislative animosity influenced past evaluations

of his work release petitions. Cf. Super Tire Engineering

Co. v. McCorkle, 416 U. S. 115 (1974) (even though in-

junction was dissolved with the end of a strike, employers

still retained sufficient interests and injury to warrant dec-

laration that state welfare benefits plan for strikers was

invalid ); Carroll v. President & Commissioners of Princess

Anne, 393 U. S. 175, 178 (1968) (court decision continues

to affect official response to rally). Nor do we have any

reason to suppose that there may be future occasions on

which Winsett will again confront similar treatment. Cf.

Southern Pacific Terminal Co. v. 1.C.C., 219 U. S. 498,

515 (1911) (short term orders of ICC are capable of

repetition, yet evading review). Furthermore, Winsett did

not file his complaint as a class action, in which the need

for injunctive relief often survives the mootness of the class

representative's interest. See, e.g., Sosna v. Iowa, 419 U. S.

393 (1975).

Winsett’s transfer to Alabama vitiates any need to en-

join the application of allegedly impermissible criteria in

his case, and because none of the exceptions to the tradi-

tional mootness doctrine is present, we will vacate the dis-

trict court’s disposition of plaintiff’ 6 injunctive claim and

{

9. Indeed, Winsett indicated to the examining psychiatrist that

he planned to return to Alabama once he was paroled because his

parents and siblings are located there.

10, See Note, The Mootness Doctrine in the Supreme Court,

88 Harv. L. Rev. 373, 374-77 (1974).

Al6 Court of Appeals Opinion

remand with a direction to dismiss." United States v.

Munsingwear, Inc., 340 U. S. 36, 39 (1950).

Ill.

Although Winsett’s claim for injunctive relief is now

mooted, his claims for damages, and for declaratory relief

as a predicate to damages, are not. Although he has not

demonstrated that the threatened application of impermis-

sible criteria poses any likelihood of ongoing or prospective

harm, it is conceivable that past applications may give

rise to damages. For example, prison officials acknowl-

edged at trial that work release may favorably affect an

inmate's chances for an early parole. In addition, work

release is a source of wages for the working inmate.

Where such claims remain, the foreclosure of injunctive

relief does not moot a party’s entire clause of action.2 We

therefore turn to Winsett’s substantive attack on the al-

legedly impermissible criteria applied in his applications

for work release.

A. Due Process

Winsett argues in this court, as he did in the district

court, that the Delaware Department of Correction, by

establishing a work release program and by promulgat-

ing standards for its administration, created a protectible

11. Because Winsett’s suit tor injunctive relief must be va-

cated, there can be no liability assessed against defendants Horton,

Vaughn and Redman. See note 6 supra.

To the extent that Winsett’s claim for declaratory relief is also

addressed to the future application of impermissible criteria, the

disposition of that claim will also be vacated with similar instruc-

tions. Insofar as the pant A is simply a predicate to a

damage award, it survives this dismissal. Cf. Wolff v. McDonnell,

418 U. S. 539, 554-55 (1974) (declaratory judgment as a predicate

to a damage award survives dismissal of injunctive claim where

latter is held to be available only through a separate habeas corpus

proceeding ).

12. See Note, supra note 10, 88 Harv. L. Rev. at 373.

Court of Appeals Opinion Al7

state law interest in participation in the program by eligi-

ble inmates. He contends that the use of impermissible

criteria by the Department in denying him access to the

work release program denied him his right to “liberty”

guaranteed by the fourteenth amendment.

Winsett's due process claim has beth procedural and

substantive overtones. It is procedural in the sense that

the alleged use of impermissible criteria by the Depart-

ment denied Winsett of the process of work release ap-

plication review required under the Delaware regulations.

His due process claim is substantive in the sense that re-

gardless of any procedural rights, the application of

impermissible criteria deprived him, as contrasted with

other eligible inmates, of access to the work release pro-

gram. Regardless of whether Winsett’s due process claim

is substantive, procedural, or an amalgam of both, he must

have a protectible liberty or property interest in order to

invoke the protection of the fourteenth amendment. We

therefore first consider whether any protectible fourteenth

amendment interest is implicated in the Delaware work

release program.

It is well-settled that when a person is lawfully in-

carcerated for the conviction of a crime, that person’s

constitutional rights become circumscribed. Price v.

Johnston, 334 U. S. 266, 285 (1948). The Supreme

Court has been careful to indicate, however, that although

a prisoner's 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 imprisoned for crime. There is no iron curtain

drawn between the Constitution and the prisoners of this

country.” Wolff v. McDonnell, 418 U. S. 539, 555-56

(1974).

Inasmuch as a prisoner’s liberty is most directly im-

plicated by his imprisonment, the Supreme Court has

Al8 Court of Appeals Opinion

struggled to define the extent of a prisoner's fourteenth

amendment liberty interest. The Court has been gener-

ally reluctant to find a constitutionally protected liberty

interest while a prisoner is still under actual confine-

ment.” In Meachum v. Fano, 427 U. S. 215 (1976), the

Court held that no protectible liberty interest was impli-

cated when prison authorities sought to transfer a pris-

oner from one facility to another. Most recently, in In-

mates of the Nebraska Penal Correctional Complex v.

Greenholtz, 442 U. S. 1, 99 S. Ct. 2100 (1979), the Court

held that no liberty interest was implicated by the mere

existence of a state parole system. Although the Court

had held in Morrisey v. Brewer, 408 U. S. 471 (1972)

that a liberty interest was implicated in parole revocation

procedures, the Court in Greenholtz drew a crucial dis-

tinction between parole revocation which deprives one

of the liberty one has and discretionary parole release

which denies a conditional liberty that one desires, 442

U. S. at 9-10. Thus, there is no constitutionally mandated

right to enter a discretionary parole release program.

Even if the Constitution is not the source of a pris-

oner'ss potential liberty interest in various aspects of his

confinement, the Supreme Court has been willing to ex-

tend fourteenth amendment protection when a state has

itself created a liberty interest in the form of a specific

guarantee. In Wolff, supra, the Nebraska legislature had

provided for a “good-time credit” system under which a

prisoner's sentence could be reduced for good behavior.

Under this system, good-time credits could only be for-

feited through “serious misconduct.” The Court held

that because the state created the right to good-time

13. The Court has been willing to find a cng 4 interest once

a prisoner has regained his freedom even though that freedom is

subject to revocation and circumscribed by conditions of parole.

See Morrisey v. Brewer, 408 U. S. 471 (1972) (liberty interest in

parole revocation ).

=

Court of Appeals Opinion Al9

credits which could only be removed if the prisoner en-

gaged in serious misconduct, “the prisoner’s interest has

real substance and is sufficiently embraced within Four-

teenth Amendment ‘liberty’ to entitle him to those mini-

mum procedures appropriate under the circumstances

and required by the Due Process Clause to insure that

the state-created right is not arbitrarily abrogated.” 418

U. S. at 557. Indeed, the Court’s non-recognition in

Meachum of a constitutional liberty interest in prison

transfers must be viewed in light of the absence of any

state-created right to remain in the prison of original com-

mitment. See 427 U. S. at 226-27.

But the Court in Greenholtz acknowledged that al-

though there was no constitutionally cognizable liberty

interest in access to a discretionary parole system, “the

expectancy of release provided for in [the Nebraska pa-

role] statute” may be entitled to some measure of consti-

tutional protection. 442 U. S. at 12. The Court cau-

tioned, however, that the existence of a statutorily created

liberty interest depends upon the statutory language and

“must be decided on a case by case basis.” Id.

From this review of Supreme Court precedent, it be-

comes evident that Winsett’s claim of a liberty interest in

participation in the Delaware work release program must

be grounded either in the Constitution or in the statutorily-

set schema for work release in Delaware. Winsett does

not press for a constitutionally-based liberty interest in

work release. He also concedes that the language of 11

Del. C. § 6533 does not create a protected interest en-

titling him to participate in the work release program.

The fundament of his claim is the set of regulations

promulgated by the Department to implement the basic

legislative grant of authority to create a work release pro-

gram. It is this set of comprehensive regulations which

Winsett claims creates the liberty interest subject to four-

teenth amendment protection.

A20 Court of Appeals Opinion

Initially, we do not believe that Winsett’s concession

that the statute itself does not create the state-created

right is fatal to his case, for we believe the right may be

established in the regulations implementing the statute.

In Durso v. Rowe, 579 F. 2d 1365 (7th Cir. 1978), cert.

denied, 439 U. S. 1121 (1979), the Seventh Circuit, al-

though declining to find a liberty interest in a work re-

lease statute, nevertheless held that if the prisoner could

establish as a matter of practice that his work release

program would not be revoked absent a rule violation, he

had an interest protected by due process. Id. at 1371.

Therefore, under Durso, the Due Process Clause may be

triggered in a work release program not only by statu-

torily created rights but also by official policies or prac-

tices. This is precisely the basis of Winsett’s argument.

We must therefore turn to the regulations governing work

release in Delaware to ascertain if they have created a

protectible liberty interest.

The district court in the instant case declined to find

a state-created liberty interest because, even though

Winsett met all the criteria for eligibility, it believed that

the work release statute and regulations did not deprive

the program of its “essentially discretionary character.”

443 F. Supp. at 1373. Although it acknowledged Winsett

did meet all the criteria for work release but was denied

work release status by the exercise of the prison officials’

discretion, the court concluded Winsett never had any

state-created entitlement to work release. We disagree.

The work release statute and the regulations envision

the grant of work release when a prisoner meets certain

eligibility criteria and the prison authorities, exercising

their sound discretion, concur that work release is appro-

priate. The presence of discretion on the part of the

prison authorities in the work release program does not

negate the possibility that a state-created entitlement to

_

Court of Appeals Opinion A21

work release may exist, because we do not view the prison

authorities’ discretion as absolute. If the prison authori-

ties could by the arbitrary exercise of discretion deny a

work release application to a prisoner even though he met

all eligibility requirements, then any entitlement to work

release would be illusory rather than real. The trial

court apparently perceived the discretion vested in the

Delaware prison authorities as unbridled, rendering any

claim of entitlement to work release an illusion. We are

not persuaded, however, that the Superintendent's discre-

tion under the state regulations in granting work release is

as boundless as the trial court believed.

The authority of the Department of Corrections to

adopt regulations governing work release stems from the

work release statute, 11 Del. C. § 6533(a). Although the

trial court may be correct that the regulations adopted do

not exhaust the criteria pertinent to a decision whether

or not to grant work release, it is by no means clear that

the Superintendent may, under the rules, invoke any cri-

terion he chooses. First, the state has established an

elaborate institutional system for processing work release

applications, a system that at various times has included

at least two and sometimes three separate committees

whose recommendations were forwarded to the Superin-

tendent. We cannot believe that those committees,

whose function apparently involved making rather de-

tailed evaluations of inmates’ fitness for work release,

were intended to be overridden for any reason chosen by

the Superintendent, however unrelated to the statutory

purpose of section 6533.

More critically, 11 Del. C. § 6533(a), under which

the regulations were promulgated, is itself subordinate

to section 6531, which sets forth the programs—includ-

ing work—which the Commissioner must establish and

A22 Court of Appeals Opinion

the purposes those programs must serve. That section

provides, in pertinent part:

Persons committed to the institutional care of

the Department shall be dealt with humanely, with

effort directed to their rehabilitation, to effect their

return to the community as safely and promptly as

practicable. The Commissioner shall establish the

following programs, and may establish others: Edu-

cation, including vocational training; work; case work

counselling and psychotherapy; library and religious

services; commissary; and shall institute procedures

for the study of classification of inmates for these

purposes.

The regulations promulgated under section 6533 (a )

must thus satisfy the broad dictates of section 6531:

“humane” treatment, “rehabilitation,” and “return to the

community as safely and promptly as practicable.” Thus,

these are benchmarks which delineate the perimeters of

the Superintendent's exercise of discretion, unlike

Meachum v. Fano, supra, where the discretion to trans-

fer under state law was absolute. Here, the “regulations

imposed on the Superintendent indicate that discretion

may be exercised only within established parameters.”

Tracy v. Salomack, 572 F. 2d 393 (2d Cir. 1978).

The trial court correctly noted that some other rel-

evant considerations—among which it included the prog-

nosis for the inmate’s behavioral adjustment, the risk of

flight, and the inmate’s personal safety—are not specified

in the regulations. But those were not the considerations

which the trial court found to have motivated the prison

officials in evaluating Winsett’s first two applications.

Had they been, they could certainly have been justified

as consistent with the policies of section 6531. Instead,

Court of Appeals Opinion A23

the underlying reason for the adverse decisions on Win-

sett’s applications was a lurking fear that an approval

would possibly invoke unfavorable public reaction and

legislative reprisal. This fear was sparked by communica-

tion from one or more of the legislators. Although these

reasons may have significance in the broad administra-

tion of a prison system, no place has been provided for

their consideration in the exercise of discretion whether

to grant or deny a prisoner work release under the regu-

latory provisions.

The trial court’s reasoning, which apparently would

limit protectible interests solely to those which can be

described as vested rights, effectively arrogates to the

States the power to devise both the interests protectible

by due process and the process which is due. Thus, in

the trial court’s view, whenever a State conditions an

otherwise protectible interest on the outcome of a highly

discretionary process, however arbitrary and inadequate

in practice, the interest is defeasible and not entitled to

due process safeguards. Such a construction of the rel-

evant law is unacceptable. Meachum v. Fano, supra,

does not entail such a construction. There, after all, the

Court noted that there was no state statutory predicate

whatsoever for the right to remain in one prison until

certain specified events occurred. Thus, however vital to

an inmate’s interests was the desire to remain in one

prison, there was no state-sponsored expectation inter-

est which due process would protect.

In Delaware, there are specific criteria for work re-

lease which we believe if met, give rise to a liberty inter-

est in work release. Although discretion is vested in the

prison authorities to grant or deny work release, that dis-

cretion must be exercised consistently with the purpose

and policy behind work release. We hold that a state-

A24 Court of Appeals Opinion

created liberty interest in work release arises when a pris-

oner meets all eligibility requirements under the state

regulations and the exercise of the prison authorities’ dis-

cretion is consistent with work release policy. We con-

clude that Winsett had a protectible liberty interest in

work release because he met all eligibility criteria under

the Delaware regulations and the considerations influenc-

ing the discretionary denial of work release, namely con-

cern for public reaction and fear of legislative reprisals,

were outside the legitimate bounds of the prison officials’

discretionary power. In other words, had they acted

within the permissible scope of their discretion, Winsett

would have been granted work release. To hold otherwise,

would mean that the state-created interest in work release

for eligible prisoners could be overriden simply by the

prison officials’ abuse of discretion. We therefore conclude

that Winsett had a liberty interest protectible under the

fourteenth amendment’s guarantee of due process.

Having concluded that Winsett has a protectible state-

created interest in work release, we must now consider

whether its denial could have violated the fourteenth

amendment’s guarantee of due process. Winsett’s argu-

ment is primarily substantive in nature. The consideration

of impermissible criteria, fear of public outcry and legisla-

tive reprisal, brought different treatment to Winsett than

any other applicant to the work release program. We,

however, perceive Winsett’s argument as more properly im-

plicating procedural due process rights. If the prison of-

ficials considered the extraneous criteria of public opinion

and legislative reaction, the normal procedure for consider-

ing work release applications was distorted to Winsett’s

detriment. Under the work release program, the applicant

is entitled to have his application approved if all eligibility

criteria are met and the prison authorities approve the ap-

plication. If the authorities do not properly exercise their

Court of Appeals Opinion A25

discretion, the process due under the work release program

is denied.

We believe that Winsett has made out a case of dep-

rivation of his procedural due process rights in the denial

of his first two work release applications. The district

court found, as we have previously noted, that Winsett’s

first and second applications for work release were re-

jected, at least, in substantial part by prison officials be-

cause of a fear of legislative reprisals against the prison

system as a whole. The State of Delaware does not con-

tend that these findings were clearly erroneous. We can

only conclude that in considering the extraneous criteria,

Superintendent Anderson and Commissioner Keve violated

the procedure to be accorded Winsett’s work release ap-

plication, and that Winsett has a cause of action against

them for the alleged deprivation of procedural due

process.”*

14. The dissent would allow public opinion to enter into the

administrative decisionmaking process as a permissible and even

a element in granting or denying work release by prison

officials. Dissenting opinion typescript at pp. 9-12. Under the

dissent’s thesis, prison officials could legitimately consider in the

exercise of their discretion what they perceive may be public

reaction, regardless of its lack of bearing on the prisoner’s quali-

fications for participation in work release under the established

state steadied, Such form of decisionmaking could be dangerous

to and destructive of procedural due process. Public opinion

against a prisoner could be orchestrated on notes and chords as

discordant as race, creed, ethnic background, labor activities,

political views, or other factors having no pertinence to a prisoner’s

rehabilitative progress and fitness to participate in a work release

program.

We do not deny that society has a legitimate interest in insur-

ing the punishment of crime, especially serious felonies. But

society also recognizes that more often than not there is a terminal

point to retribution and that it should, as Delaware has done, con-

cern itself with the rehabilitation and return of the prisoner to a

productive role in the community. When a state undertakes to

provide a work release program for the rehabilitation of its prison-

ers, some degree of imprecision in determining the eligibility of

the candidates may be tolerated. But when discrepant treatment

A26 Court of Appeals Opinion

B. Equal Protection

The trial court rejected plaintiff's equal protection at-

tack on the criteria applied to his work release requests.

It did so on the ground that Winsett did not allege a

class-based discrimination. Because we have found those

criteria impermissible on due process grounds, we express

no views on Winsett’s equal protection contentions.

IV. Official Immunity

Because the district court found that no constitutional

rights were violated, it did not have occasion to reach the

issue of the applicability of the good faith immunity de-

fense to Commissioner Keve and Superintendent Anderson.

The defendants contend that even if this court finds that

Winsett’s constitutional rights were violated, we may not

assess damages against Commissioner Keve. Relying on

the Supreme Court’s decisions in Wood v. Strickland, 420

U. S. 308 (1975), and Procunier v. Navarette, 434 U. S.

555 (1978), defendants argue that Commissioner Keve en-

joys an official immunity from recoveries in damages.

They also observe that should we find Superintendent An-

derson liable, we must remand to the district court for find-

ings as to Anderson’s possible immunity. Because the

district court made no findings as to either Keve or Ander-

son’s immunity, we believe it necessary to remand the case

to the district court.

14. (Cont'd. )

between prisoners is purposeful and participation in work release

is daniel to one prisoner only because of the Superintendent's

amorphous perception of public opinion, then the laudable pur-

poses of a structured program are skewed by a basic lack of fair-

ness. If work release for a prisoner is not determined solely on

the basis of the statutory and regulatory criteria established by

the state but may also depend upon what may be perceived public

reaction to it, these extraneous considerations can cut both ways.

Not only can worthy work release applications be thereby denied

but similar influences may compel admittance to the program of

undesirable and unqualified applicants.

Court of Appeals Opinion A27

In Wood v. Strickland, supra, the Supreme Court

recognized a qualified immunity for school board mem-

bers. The Court held that

a school board member is not immune from liability

for damages unJer § 1983 if he knew or reasonably

should have known that the action he took within

his sphere of official responsibility would violate the

constitutional rights of the student affected, or if he

took the action with the malicious intention to cause

a deprivation of constitutional rights or other injury

to the student.

420 U. S. at 322. More recently, in Procunier v.

Navarette, supra, the Court applied Wood to an inmate’s

§ 1983 damage action against prison officials. It also

made clear that Wood established two separate grounds

for rejecting official immunity in a particular case. First,

the Court stated:

[T]he immunity defense would be unavailing to

petitioners if the constitutional right allegedly in-

fringed by them was clearly established at the time

of their challenged conduct, if they knew or should

have known of that right and if they knew or should

have known that their conduct violated the consti-

tutional norm.

434 U. S. at 562.

On remand, the district court should consider

whether, even though we have found the denial of work

release by defendants Anderson and Keve to be constitu-

tionally infirm, they are entitled to the benefit of good

faith immunity for actions of officials when they are

sued for damages pursuant to section 1983. In that con-

nection, it clearly will be relevant for the court to con-

A28 Court of Appeals Opinion

sider whether the interest which they violated was “clearly

established at the time of their challenged conduct,” and

whether there were any other factors which could have

given them reason to know that their conduct was con-

stitutionally defective.

The second branch of the Wood decision authorizes

liability when the official has acted with “malicious in-

tention” to deprive the plaintiff of a constitutional right

or to cause him “other injury.” Procunier, supra, 434

U. S. at 566. “This part of the rule,” the Court has ob-

served, “speaks of ‘intentional injury, contemplating that

the author intends the consequences of his conduct.”

Id. The court will also need to_consider whether its find-

ing that “Commissioner Keve believed that he had an al-

ternative approach to work release which would better

serve Winsett's interests,” 443 F. Supp. at 1371, should

shield him from liability under the second branch of the

Wood formulation of good faith immunity. The record

amply corroborates Keve’s efforts to obtain for Winsett a

transfer to the Corrections Department in Minnesota, a

transfer which he expressly believed would result in an

‘earlier, and safer, parole. Although Winsett may well

have been injured through a loss of earnings and a denial

of early parole, the record may preclude a finding on

remand that Commissioner Keve acted maliciously toward

Winsett.

We agree with the defendants that the case must be

remanded to the trial court for findings as to possible

malice on the part of Superintendent Anderson. Winsett

does not challenge this suggestion. We believe that

there is ample evidence in the record from which the

district court may make the requisite findings with re-

spect to the applicability of the good faith immunity de-

fense and that there is no requirement to adduce any ad-

Court of Appeals Opinion A29

ditional testimony. Accordingly, we will remand the case

to the district court in order that it make the requisite

findings as to Anderson’s liability in damages under the

malice test articulated in Wood.

V. Proof of Actual Damages

Because it believed that the defendants’ rejection of

Winsett's work release applications violated none of his

constitutional rights, the trial court had no occasion to

assess what damages Winsett may properly collect. On

remand, the trial court, if it finds Anderson and Keve li-

able, shall ascertain the appropriate measure of damages.

VI. Conclusion

We are not unmindful that sixteen years ago, Winsett

was found guilty of the wanton slaying of a Delaware

State Police officer. The public outrage generated by that

murder apparently has not yet subsided. However, the

strength of our legal system is the recognition of the right

of all American residents to have their individual cause—

even though it be merely an interest in a rehabilitation

process—considered on its merits. The right to due

process is fundamental in our legal system and must, of

necessity, preclude consideration of impermissible reasons.

Due process may not be sacrificed because of public out- °

rage and blinding passions of society. Public outrage may

at times perform a useful function in our society, but it

serves no purpose in fairly and objectively judging the

merits of a person for access to a rehabilitation program.

Accordingly, the judgment of the district court will

be reversed insofar as it dismisses Winsett’s action for

damages against Superintendent Anderson and Commis-

sioner Keve, affirmed insofar as it dismissed Winsett’s

damage claim against Commissioner Vaughn, Superin-

A30 Court of Appeals Opinion

tendent Redman, and Assistant Bureau Chief Horton, and

in the denial of injunctive relief on the ground of moot-

ness. The case will be remanded for further proceedings

not inconsistent with this opinion.

Each side to bear its own costs.

Weis, Circuit Judge, dissenting.

I would affirm the judgment of the district court.

The case is now reduced to a damage suit against two

individuals, Anderson and Keve, resting on two separate

incidents, Anderson’s rejection of Winsett’s application

for work release in 1974, and Keve’s veto in 1976. Al-

though the liability theory underlying each is the same,

it is desirable to treat the claims against the defendants

separately. I believe the record requires a conclusion

that Keve is entitled to official immunity and that the

plaintiff has not established a claim against Anderson.

A court should not decide a constitutional question

if the record supports some other ground that would

obviate the need to make such a determination. Ash-

wander v. Tennessee Valley Authority, 297 U. S. 288, 347

(1936) (Brandeis, J., concurring). In my view, it is

consistent with this policy to decide a case, when possible,

on the basis of immunity, and I therefore apply that ra-

tionale to Keve’s case. As to Anderson and the 1974 in-

cident, however, the findings of the district court are not

sufficient to support a decision on immunity at this point.

Thus, it is necessary to address the constitutional issue

in his case. Although this prevents complete avoidance

of the constitutional question, deciding Keve’s immunity,

confines the liberty interest inquiry to Anderson’s case.

Court of Appeals Opinion A3l

I

I would not remand the case to the district court for

specific findings on the immunity of defendant Keve. I

agree that the guidelines discussed by the court, particu-

larly the two-step analysis set out in Procunier v. Navar-

ette, 434 U. S. 555 (1978), are the considerations that

apply. In my view, however, the record is adequate

to make the determination in this court. For example, in

Reese v. Nelson, 598 F. 2d 822 (3d Cir. 1979), we ana-

lyzed the record in a case submitted to a jury and found

that the evidence required a finding of immunity as a

matter of law. Here, by contrast, the task of evaluating

the immunity issue is less complex because we have the

benefit of the district judge’s findings and opinion.

The first step is to decide whether a clearly estab-

lished constitutional right should have been apparent to

Keve in 1976. That assumes, of course, that such a con-

stitutional right exists, a premise I accept only arguendo.

The majority opinion does not cite any cases handed

down before 1976 even arguably close to the circum-

stances present here, nor has my research uncovered any

such authority. No Supreme Court case to that date

had discussed the subject of conditional release eligibility,

nor were there any opinions of this court holding that

such an interest was protectible. Accordingly, there is

nothing to demonstrate that the interest that Keve argu-

ably violated was “clearly established at the time of [the]

challenged conduct.” Procunier v>’Navarette, supra at

562. Because he could not reasonably have been expected

to be aware of a constitutional right that had not yet

been judicially declared, Keve did not act in disregard of

established law.

The second inquiry of the immunity analysis is sub-

jective—whether the defendant acted with malicious

A32 Court of Appeals Opinion

intent to cause a deprivation of constitutional rights or

other injury to the plaintiff. Stated inversely, “The offi-

cial himself must be acting sincerely and with a belief

that he is doing right... .” Wood v. Strickland, 420 U. S.

308, 321 (1975).

The trial court credited Keve’s testimony that be-

cause of the likely public and legislative reaction to the

plaintiff's work release status. Winsett faced far more

hazards than other inmates. Under these circumstances,

it was more feasible to secure parole or work release after

a transfer to another state, and Keve was negotiating

such a transfer at the time he disapproved Winsett’s ap-

plication. The court said, “In the case of the second

denial, I am convinced Acting Commissioner Keve be-

lieved that he had an alternative approach to work release

which would better serve Winsett’s interests.” Winsett v.

McGinnes, 443 F. Supp. 1369, 1371 (D. Del. 1978). This

finding belies any inference of malice on the part of de-

fendant Keve and satisfies the subjective test of sincerity

and a “belief that he is doing right.” Having met both

phases of the immunity test. Keve is entitled to the judg-

ment entered in his favor by the district court.

II

A

Since Anderson’s conduct occurred two years before

Keve's, it is even more apparent that the former meets

the requirements under the first phase of the immunity

inquiry. But I cannot complete the second step in the

analysis because the district court did not make any find-

ings on Anderson’s subjective intent, and the record does

not support appellate resolution of this question.

Anderson did testify that he declined to approve the

work release application because he feared for Winsett’s

Court of Appeals Opinion A33

safety. This apprehension was the result of at least one

telephone call to the prison threatening harm to Winsett

if he were put on work release. Anderson attributed the

threats to public reaction fueled by press reports, letters

to the editor, and the opposition of the state police. The

defendant bore Winsett no animosity and said that some

years earlier he had offered use of his home to Winsett as

a place to visit his son on Christmas Day. Indeed, in

1976, Anderson appeared in Winsett’s behalf before the

Parole Board to urge an out-of-state parole. The defend-

ant testified that his job was protected by the merit sys-

tem and denied that he succumbed to pressure from the

state senator in Winsett’s case.

Although Anderson’s testimony would support a find-

ing that he acted in subjective good faith, I do not have

the benefit of the trial judge’s credibility determinations

and, consequently, cannot pass upon the defendant’s im-

munity at this point.’ I therefore turn to the issue of the

alleged constitutional violation.

B

I start with the assumption that a discretionary

work release program and discretionary parole system

basically require the same analysis to determine if there

is a protectible interest that invokes due process stand-

ards. The majority’s reference to Greenholtz v. Inmates

of the Nebraska Penal Correctional Complex, 442 U. S. 1

(1979), leads me to believe that there is no disagreement

between us on that score. We part company on whether

the circumstances warrant finding that Winsett had a

1, Winsett was not the only person who was denied work re-

lease after public outcry. Norman Parson, who had been con-

victed of the attempted rape and brutal murder of a young girl,

also alleged that because of intense public resentment he had been

denied furloughs and work release. See Parson v. Keve, 413 F.

Supp. 111 (D. Del. 1976).

'*

A34 Court of Appeals Opinion

state-created liberty interest in an expectancy of work

release status. In my view, the majority's conclusion is

contrary to the Court’s holding in Greenholtz.

In that case the Supreme Court addressed the ques-

tion, whether due process applies to discretionary parole-

released determinations. Initially the opinion noted that

decisions of the executive branch, especially with respect

to the “sensitive choices” to grant parole, “however seri-

ous their impact, do not automatically invoke due process

protection.” 442 U. S. at 7. The “public-interest pur-

poses of rehabilitation and deterrence” may prompt the

state to be either general or specific in enumerating the

factors that the parole authorities should consider. “It

is thus not surprising that there is no prescribed or defined

combination of facts which, if shown, would mandate re-

lease on parole. ... In each case, the decision differs

from the traditional mold of judicial decision making” in

that the parole determination is a “predictive judgment as

to what is best for the individual inmate and for the com-

munity.” Id. at 8. In that connection, the Court found

that in passing on parole the decisionmaker must consider

whether, in light of the nature of the crime, the inmate’s

release would minimize the gravity of the offense, weaken

deterrent impact on others, and “undermine respect for

the administration of justice.” Id.

Two theories were proffered in support of the claim

to due process protection of a prisoner’s expectancy of

release on parole: first, that the word “liberty” in the due

process clause included a prisoner’s interest in the possi-

bility of parole whenever a state establishes a parole sys-

tem; second, that the particular statutory language in-

volved in the case gave rise to a state-created liberty

interest in release on parole. The Court rejected the

former but accepted the latter. It found a liberty interest

created by a state statute directing that the Parole Board

Court of Appeals Opinion A35

~-.

“shall order” a prisoner's release “unless” it found certain

enumerated conditions to justify a denial.

The Court emphasized the essentially discretionary

nature of parole but held that the “unique structure and

language” of the statute under review created an expect-

ancy of release that satisfied the claim to constitutional

protection. As the majority recognizes, however, the

Court stressed that “whether any other state statute pro-

vides a protectible entitlement must be decided on a case-

by-case basis.” Id. at 12. Thus, discretion in the granting

of parole is the general rule and generates no protectible

interest. Only when discretion is restricted by statutory

language that mandates the parole authorities to grant

release does a liberty interest come into being. It is the

statute’s command, not discretion, that creates the interest.

This, however, is not the test adopted by the major-

ity. Instead the formula used is “that a state-created lib-

erty interest in work release arises when a prisoner meets

all eligibility requirements under the state regulations and

the exercise of the prison authorities’ discretion is consist-

ent with work release policy.” Majority Opinion at A23-24

(emphasis added). As I read it, Greenholtz does not

recognize a protectible interest if the “discretion” is merely

“consistent with” a state statute. The dissent in that case

calls attention to the majority's use of the word “shall.”

442 U. S. at 29 n. 9, and as the Court of Appeals for the

Second Circuit remarked in Boothe v. Hammock, 605 F.

2d 661 (1979), “the ‘shall/unless’ formula was decisive

for the court.” Id. at 664. The Second Circuit féund

that in New York, while guidelines were “used to struc-

ture the exercise of discretion,” the state system did not

establish a scheme whereby parole -“shall be ordered un-

less specified conditions are found to exist.” Id. Accord-

ingly, no protectible interest arose. Other courts of

appeals and district courts addressing the identical issue

A36 Court of Appeals Opinion

have adopted this interpretation of Greenholtz. See, e.g.,

Wagner v. Gilligan, 609 F. 2d 866 (6th Cir. 1979); Shir-

ley v. Chestnut, 603 F. 2d 805 (10th Cir. 1979); Robin-

son v. Mabry, 476 F. Supp. 1022 (E. D. Ark. 1979);

Austin v. Armstrong, 473 F. Supp. 1114 (D. Nev. 1979):

Campbell v. Montana Board of Pardons, 470 F. Supp.

1301 (D. Mont. 1979).

In 1974 there was no mandatory language in the Dela-

ware statute authorizing the promulgation of regulations.

It merely stated that the department “may” establish such

rules.” That is not enough. I would concede that rules

using mandatory language would suffice, but I find no

such wording here. The regulations merely list some gen-

eral (not all-inclusive) standards. They speak in terms

of “basic criteria” and “basic procedures.” Nowhere is

there language requiring that if these criteria are met the

authorities “shall” grant work release status. Indeed,

“basic procedures” state that approval must be given at

three different levels. By no fair construction can this

language be interpreted to mean that those approvals

“shall” be given. See Shirley v. Chestnut, supra at 806-07.

I am convinced that the majority's “consistent with”

test does not comply with the stringent requirements of

Greenholtz, which I read as insisting upon “mandated

by” or “directed by.” Having failed to meet that standard,

therefore, Winsett failed to establish a protectible inter-

est. The only other way that a liberty interest could be

created would be through the alternative theory of a pris-

oner's expectancy of conditional release expressly rejected

2. The statute was amended in 1976 to substitute the word

“shall” for the word “may.” 60 Del. Laws c. 705, §1 (1976),

amending Dex. Cope ANN. tit. 11, § 6533. Even if this amendment

antedated Winsett’s initial application for work release, however,

my view of this case would remain unchanged. Under either

version of the statute, the regulations actually adopted would have

to be taken into account because the enabling statute does not

delineate eligibility requirements.

Court of Appeals Opinion A37

in Greenholtz and by the majority here. That approach

would build on Morrissey v. Brewer, 408 U. S. 471 (1972),

and derive a liberty interest in the possibility of release

from the Constitution itself.

The Morrissey Court held that a parolee’s interest in

not having his parole revoked is an interest protected by

due process. Central to this holding was the parolee’s re-

liance on at least an implicit promise that his freedom

would be taken away only if he failed to live up to the

parole conditions—the “essence of parole.” Id. at 477,

482. For this reason the Court concluded that the ter-

mination of parole liberty inflicts a “grievous loss” on the

parolee, The interest in continued release, therefore, rose

to the level of “liberty” protected by the due process clause

independent of the statutory or regulatory language estab-

lishing the parole system.

In Greenholtz the claimants argued that the interest

at stake in both a parole-revocation decision and a parole

determination is the same, and the two situations should

be accorded the same constitutional protection, 442 U. S.

at 9. In rejecting this argument the Court again empha-

sized the predominately discretionary nature of parole

and stressed the crucial difference between the grant and

revocation of parole—“being deprived of a liberty one

has .. . and being denied a conditional liberty that one

desires.” Id. In addition, the Court noted that revoca-

tion of parole involved the comparatively simple task of

resolving the factual question of whether a violation had

occurred, The parole release decision by contrast may. be

made “ ‘for a variety of reasons and often involves no ‘tore

than informed predictions’” as to what best would serve

correctional purposes or the interest of the prisoners, Id.

at 10, quoting Meachum v. Fano, 427 U. S. 215, 225

(1977).

The Court made it clear that the possibility of parole

provides no more than a hope that it will be obtained.

A38 Court of Appeals Opinion

“To that extent the general interest asserted here is no

more substantial than the inmate’s hope that he would not

be transferred to another prison, a hope which is not pro-

tected by due process.” Id. at 11. To support this last

point, the Court cited Meachum v. Fano, supra, where it

was held that a prisoner could be transferred at the dis-

cretion of prison officials, “for whatever reason or for no

reason at all.” 427 U. S. at 228.

The practical effect of the holding in the case at

bench—given the lack of regulatory or statutory language

limiting the discretion of the prison authorities—is to find

an implied promise in any work release program that an

application will be denied only for cause. This is precisely

the line of analysis that was rejected by the Greenholtz

Court when it distinguished Morrissey, and I do not agree

that Greenholtz should be circumvented in this fashion.*

C

Even if contrary to my view, the “consistent with”

standard can be squeezed into the Greenholtz mold, how-

ever, I do not accept the majority's narrow reading of

“work release policy.” The majority finds this policy not

in the regulations or in the enabling statute, but in § 6531

of title 11 of the Delaware Code, which governs in gen-

eral the treatment of “persons committed to the institu-

tional care of the Department [of Correction].” The

statute provides that such persons are to be treated hu-

manely and guided toward rehabilitation. I gather that

in assessing work release applications, the majority would

3. In meeting the plaintiff's equal protection claim, the district

court obseived that-there was no proof of class-based discrimina-

tion but only an assertion of an individual misapplication of state

law. The court, relying on Beck v. Washington, 369 U. S. 541

(1962), found the claim to be without merit. Winsett v. McGinnes,

supra at 1373-74. Under the circumstances I do not find this con-

clusion to be erroneous and, in view of the majority’s approach,

see no need for elaboration.

Court of Appeals Opinion A39

approve such factors as risk of flight, the inmate’s personal

safety, and the prognosis for the inmate’s behavioral ad-

justment. See Majority Opinion at A20-24. Although it

understandably does not attempt to delineate definitively

the outer perimeters of matters it believes to be within the

officials’ discretion, “concern for public reaction,” at least,

is outside the pale.

I cannot accept this restriction because nothing in

the enabling statute suggests that the Department of

Correction was not to have very wide discretion in imple-

menting a work release program, and the regulations

themselves do not impose any stringent guidelines. In

recognizing such matters as “what is best for the com-

munity,” weakening deterrent effect on others, and un-

dermining respect for the administration of justice as ap-

propriate considerations for parole release, Greenholtz

cannot be reconciled with the majority's view that it is

improper for prison officials to allow “concern for public

reaction” to enter into the determination of whether to

grant work release privileges.‘

Moreover, reliance upon § 6531, without any consid-

eration of the standards for parole enunciated in § 4347,

is an illogical limitation on the prison officials’ discretion.

Analogizing to the standards governing the parole deci-

sion would be appropriate since the regulations on work

release refer to eligibility for parole and, obviously, the

requirements for the two are interrelated. As shown in

footnote 8 of the majority opinion, eligibility for parole

was one of the critical factors affecting the decision to

4, In late 1976, the Delaware legislature created the Institu-

tional Release Classification Board to pass on all releases and con-

sisting of seven members, three of whom were to be private

citizens appointed by the Council on Administration of Justice.

Det. Cope Ann. tit. 11, §6529A (Michie 1979). According to

testimony, the three private citizens were to reflect public senti-

ment.

A40 Court of Appeals Opinion

grant work release. According to the prison officials who

testified at trial, the denial of parole after work release

had been granted was a devastating experience for

a prisoner, and, consequently, if early parole could not

reasonably be anticipated, work release was contraindi-

cated.

In Delaware, parole may be granted when there is a

reasonable probability that the person can be released

“without detriment to the community or himself.... A

parole shall be ordered only in the best interest of so-

ciety....° Drx. Cope Ann. tit 11, § 4347 (Michie 1979).

In the case of an offender convicted of first degree murder

—as is true of Winsett—the immediate family of the

victim may testify before the Parole Board. Id. § 4350(b).

Others presenting “information or arguments to the

Board” are to do so in writing. Id. § 4350(a). Thus, in

Delaware, the decision to grant parole necessarily involves

greater discretion than simply deciding whether “humane

treatment and rehabilitation” are at stake. The Board.

may consider potential detriment to the community and

the other factors listed in Greenholtz, including public .

opinion.°

If, as the majority holds, the improper exercise of

discretion impinges upon a protectible interest, the

bounds of legitimate discretion must be expanded to in-

clude consideration of the public interest in deterrence

and respect for the administration of justice. Public opin-

ion is not an impermissible factor.

The trial judge stated that the denial of Winsett’s

application was motivated, in substantial part, by “prison

officials’ concern about a possible retaliation by the Dela-

ware General Assembly.” Winsett v. McGinnes, supra at

5. In his letter to the state senator, reggae ong Anderson

referred to the concern of Mrs. Paris, the widow of the state police

officer whom Winsett shot and killed.

Court of Appeals Opinion A4l

1371. Whether the court referred to personal or institu-

tional repercussions is not apparent from the opinion. In

his testimony, Keve said that over the years the legisla-

ture had given the Department of Correction the privi-

lege of implementing work release and furlough pro-

grams. But the legislature also had demonstrated that it

would quickly revoke that power if the program proved

disappointing. As Keve explained, he “had to be con-

cerned with the inmate population as a whole and not

exclusively with the advantage that should be given to

any one case.” He faced the possibility that anything

done for Winsett that would smack of extra privilege

“might cause legislative reaction that would cut back the

privileges for all other inmates, and this was a distinct,

you know, kind of jeopardy. . . .”

The point at which “legislative oversight” exceeds

its proper limits and unduly infringes upon exeuctive or

agency action as well as individual interest is not always

clearly marked. The majority feels that the boundary

was crossed in this case and faults the two corrections

officials for not stoutly resisting what is viewed as an in-

vasion. Because they and not the invaders are defendants,

it is the corrections officials who will be exposed to a

damage assessment should their immunity defense fail in

the trial court.

I cannot help but wonder if the court has reached

this stage because it, too, has wandered outside its sphere

by groping to find a protectible interest where none exists,

Arbitrariness is anathema to the judicial mind. But carv-

ing out a due process right to work release because of its

otherwise illusory character confuses what process is due

with the question whether a protectible interest exists.

Wolff v. McDonnell, 418 U. S. 539, 556-58 (1974). I

fear the court has disregarded Greenholtz’s caution that

A42 Court of Appeals Opinion

“there simply is no constitutional guarantee that all ex-

ecutive decisionmaking must comply with standards that

assure error free determination.” 442 U. S. at 7. Ina

similar vein, Meachum warned against “subject[ing] to

judicial review a wide spectrum of discretionary actions

that traditionally have been the business of prison admin-

istrators rather than of the federal courts.” 427 U. S. at

225.

I would affirm the judgment of the district court.

District Court Order A43

IN THE

UNITED STATES DISTRICT COURT

For THE DisTrRicT OF DELAWARE

Civil Action No. 74-210

THOMAS H. WINSETT,

Plaintiff,

v. .

F. EARL McGINNES, Secretary of the Department of

Health and Social Service; PAUL W. KEVE, Direc-

tor of the Delaware Division of Adult Corrections;

RAYMOND W. ANDERSON, Superintendent of

Delaware Correctional Center; DONALD R. DAVIS,

Deputy Superintendent of the Delaware Correctional

Center,

Defendants.

ORDER.

Tus 31st day of January, 1978, for the reasons

stated in the Court’s Opinion of this date,

Now, therefore, Ir Is Orperep that judgment is

entered in favor of the defendants and against plaintiff.

WALTER K. STAPLETON

United States District Judge

A44 District Court Opinion

UNITED STATES DISTRICT COURT,

D. DELAWARE.

Jan. 31, 1978.

Civ. A. No. 74-210.

THOMAS H. WINSETT,

Plaintiff,

v.

F. Earl McGINNES, Secretary of the Department of

Health and Social Services; Paul W. Keve, Director

of the Delaware Division of Adult Corrections; Ray-

mond W. Anderson, Superintendent of Delaware

Correctional Center; Donald R. Davis, Deputy

Superintendent of the Delaware Correctional Center,

Defendants.

Arlen B. Mekler, Wilmington, Del., for plaintiff.

John A. Parkins, Jr., Asst. Atty. Gen., Dept. of Justice,

Wilmington, Del., for defendants.

OPINION.

STAPLETON, District Judge:

This 42 U. S. C. § 1983 action is brought by Thomas

Winsett, an inmate at the Delaware Correctional Center

(“D. C. C.”). Plaintiff complains that the defendant

prison officials ' have denied him classificatign to the work

1. Defendants’ motion for a directed verdict as to Donald R.

Davis and F. Earl McGinnes was granted at the close of plaintiff's

presentation of his case. Transcript C-49-67.

District Court Opinion A45

release program at D. C. C. in violation of his rights to

due process of law and equal protection under the Four-

teenth Amendment. Plaintiff seeks compensatory and

punitive damages, as well as a declaratory judgment and

an injunction prohibiting further infringement.? This

Opinion sets forth the Court’s findings of fact and conclu-

sions of law following a trial on the merits.

Winsett was sentenced in 1964 to a term of natural

life after having been found guilty of the murder of State

Police Officer Robert Paris. The killing caused a substan-

tial public reaction in the State of Delaware, and is still

the subject of deep resentment on the part of some

citizens.

Winsett has applied for work release classification

three times and on each occasion has been turned down.

He claims that he met all established criteria for work re-

lease status and that each denial was motivated wholly,

or at least in substantial part, by prison officials’ fear of

possible retaliation by the Delaware General Assembly

(most likely in the form of budget, personnel or program

cutbacks) and of adverse public reaction. Plaintiff main-

tains that such fears are impermissible reasons for denial

of work release status.

Winsett’s first turndown for work release classification

was received by him on September 26, 1974. Winsett had

applied for work release status, had been approved at the

first level by the Minimum Security Building Classifica-

tion Team, and had been approved at the second level

by the Institution Classification Committee. At the third

and final level of screening, however,—that of the Super-

2. This Court previously dismissed plaintiff's claim of entitle-

ment to an injunction directing that he be classified io work release

on the authority of Preiser v. Rodriguez, 411 U. S. 475, 93 S. Ct.

1827, 36 L. Ed. 2d 439 (1973). Wéinsett v. McGinnes, 425 F. Supp.

609 (D. Del. 1976).

A46 District Court Opinion

intendent (at this time defendant Raymond W. Ander-

son)—Winsett was informed that his application could

not be approved “due to the sensitivity of [his] offense”.

(PX 1). The criteria and procedure for work release

that were in effect at this time (DX 9) required final ap-

proval by the Superintendent. (Paragraph II l.c of DX 9).

During August, 1974, Winsett’s case had been brought

to the public's attention via copies of a letter to Superin-

tendent Anderson delivered to the Delaware State News,

News-Journal Papers and WAMS radio station, among

others, in which a State senator announced his shock and

dismay that Winsett might be considered for work re-

lease. Anderson responded by letter, sending copies to

the same news media and others. In his letter Anderson

denied any intention of placing Winsett on work release

and stated his position as being “as long as I am Superin-

tendent of the Institution, I shall never be able to enter-

tain any requests from Tom [Winsett] in regards to work

release....” (PX 7 letter of August 8, 1974).

Winsett initiated the instant suit in October, 1974.

The second turndown for work release classification

came on May 14, 1976, and the circumstances surround-

ing it are somewhat more complicated. At that time de-

fendant Paul Keve was Acting Commissioner of the Dela-

ware Department of Corrections and defendant Milton

Horton was Assistant Director of the Adult Division. The

criteria for work release status had changed by March of

1976, prompting Winsett to make a second application

for work release classification. (Transcript A-31). The

departmental policy then was that any classification for

outside status (including work release classification) had

to be approved by Acting Commissioner Keve, if the in-

mate in question had committed a crime of violence.

(Transcript E-9). Horton, pursuant to Keve’s request,

District Court Opinion A47

would make specific recommendations for approval or

denial of outside status.

Winsett's application was approved at the first level

by the Minimum Security Building Classification Team.

The application was forwarded to the Institution Classi-

fication Committee. A rule had been adopted requiring

a letter of employment to be filed with the application

before it could be considered. Winsett had not met this

requirement initially, but did obtain a letter of offer of

employment (PX 11) and refiled his application. Once

again the Minimum Security Building Classification Team

approved his application, as did the Institution Classifica-

tion Committee. Horton recommended, however, that

Winsett's “application be deferred until [a] decision on

[the] transfer.” (DX 8). Keve agreed and the application

was deferred, but formally recorded as a denial.

The transfer referred to by Horton in his recom-

mendation to Keve was a project that had been develop-

ing for some months. Essentially, Keve had hoped to

work out a contract with the Correction Department of

the State of Minnesota wherein the interstate transfer of

certain inmates could be accomplished. It was felt that

this project would have been especially suitable for Win-

sett. As Keve testified:

... [P]robably the best thing to do in the case of Mr.

Winsett was to effect a transfer of him to some other

state where the extreme sensitivity to this case would

be substantially diluted. I felt that whatever time

he might be considered truly appropriate for parole,

work release, whatever it might be, that it would be

much more feasible for it-to be accomplished if he

were in another state at some distance from Delaware

where there was extreme public and legislative

A48 District Court Opinion

sensitivity to anything at all that happened in his

case.

Testimony of Keve, Transcript E-12.

... I had what I thought was good reason to believe

that in addition to the natural hazard that any inmate

faces in going into a work release situation, Mr. Win-

sett faced far more hazards because of the intense

sensitivity to the case—intense public reaction and

legislative reaction to anything done for or to Mr.

Winsett that would smack of any kind of extra

privileges.

Testimony of Keve, Transcript E-15.

Based on the record before me, I conclude that the

first and second denials of Winsett’s application for classi-

fication to work release were motivated at least in sub-

stantial part by prison officials’ concern about a possible

retaliation by the Delaware General Assembly. In the

case of the second denial, I am convinced Acting Com-

missioner Keve believed that he had an alternative ap-

proach to work release which would better serve Winsett’s

interests.

The third and final denial for work release classifica-

tion was received by Winsett on January 7, 1977. In late

1976, the General Assembly created another team that

would approve work release classification applicants—the

Institutional Release Classification Board. Winsett resub-

mitted his application for work release status. Again he

was approved by the Minimum Security Building Classi-

fication Team, and the Institution Classification Commit-

tee, as well as the newly created Institutional Release

Classification Board. His application was vetoed, however,

by Milton Horton, Assistant Bureau Chief of Adult Cor-

rection. Horton advanced three reasons for his veto deci-

District Court Opinion A49

sion: (1) the seriousness of the offense, (2) the lack of a

certified parole release date, which he believed was re-

quired by the existing guidelines,’ and (3) the fact that

Winsett had had a previous history of model conduct dur-

ing incarceration in other institutions for other offenses

occurring prior to the Paris murder and that, therefore,

his good conduct during his present incarceration should

be given less weight. This veto was approved by Com-

missioner Vaughn.

It is unnecessary to pass upon Horton’s construction of

the guidelines then in effect. I credit his testimony regard-

ing the reasons for his actions and conclude that the third

denial of Winsett’s application for work release was not

motivated by his concern with possible retaliation by the

General Assembly or by a concern for public reaction.

Plaintiff makes two arguments: (1) that defendants’

denial of his application for work release status deprived

him of a liberty interest without due process of law, and

(2) that such denials violated his equal protection rights.

I deal first with the due process argument.

3. Horton interpreted the guidelines (see PX 8, attachment at

p. 1, paragraph II A) to require Winsett (who was sentenced to

natural life and had no good time release date) to be certified for

parole before he could be considered eligible for work release.

He and several other witnesses testified that experience with work

release programs has shown that inmates who have no near pros-

pect of release are not good candidates for a situation invo ving

continuous day-to-day contacts with free citizens. Whatever ma

be the merits of this view or Horton’s construction of the wor

release guidelines of the Department of Corrections, they do not

integrate well with the views of some members of the Board of

Parole who have stated that they would like to see how Winsett

would fare on work release before making an affirmative decision

on parole. (PX 3, 4,5). While this difference in approach be-

tween members of these two State agencies have understandably

been frustrating to Winsett, I do not believe it gives rise to a

federal question. Winsett has now been on furlough for some

time and his experience on furlough will doubtless be made avail-

able to the Parole Board when it again reviews his case.

e%

A50 District Court Opinion

In order to invoke a due process claim, a party must

first establish that he has been deprived of a liberty inter-

est. Morrissey v. Brewer, 408 U. S. 471, 92 S. Ct. 2593,

33 L. Ed. 2d 484 (1972); Goldberg ve Kelly, 397 U. S.

254, 90 S. Ct. 101 Ed. 2d 287 (1970). Plaintiff

argues that “by Fearn yes release program and by

promulgs*'g standards for it dpainistration, the Depart-

ment |vt Corrections] has become bound by its decision

and has created a vested state law right in the participa-

tion by eligible inmates in the work release program”. PI.

Reply Br. p. 2.

I find this argument unpersuasive. Prior to August

5, 1976 the relevant Delaware statute regarding work re-

lease was 11 Del. C. § 6533(a) which provided:

(a) The Department may adopt rules and regu-

lations governing the employment or education of

trustworthy inmates outside the institutions and fa-

cilities under the jurisdiction of the Department, ex-

cept that whenever the Department requests place-

ment of inmates in a school of a reorganized school

district, the approval of the board of education of that

district shall be a prerequisite to such placement, and

tuition shall be paid under the terms of Chapter 6 of

Title 14.

The 1976 amendment, among other changes, substituted

“shall” for “may”.

This statute permitted, and later required, the De-

partment to create and maintain a work release program.

I do not believe that the Courts of Delaware would con-

strue it, however, as bestowing on any individual inmate a

legally enforceable claim to work release status. More-

over, I reach the same conclusion with respect to rules

adopted by the Department of Corrections pursuant to this

District Court Opinion A51

statutory authority. The rules in effect at the time of the

initial turndown were entitled “Criteria and Procedure for

Statewide Work Education Release”. While they state

general criteria of eligibility,‘ it is apparent that they were

4, I.

I.

2.

II.

Ill,

to

Basic Criteria, All Institutions:

Within one year of release or parole eligibility date.

Demonstrated interest in personal improvement; prog-

ress toward increased maturity and self understand-

ing. This will be evaluated on basis of inmate’s work

habits, program participation and general adjustment.

Basic Procedures:

. Written application is submitted by inmate, followin

which it is considered by and must be approve

successively by:

a. Classification team

b. Work/education release staff

c, Superintendent

Variations:

. Delaware Correctional Center

a. Applicant must be assigned to Minimum Building

efore he can apply.

b. Application is made to the Minimum Classification

Team first, then to the Institutional Classification

Team.

. Sussex Correctional Institution

Classification Committee makes final decision.

. Women’s Correctional Institution

No variation from basic.

. Specific Criteria for Admission to Plummer Center:

. Six months to parole eligibility or release.

. Sufficient experience in the work/ education release pro-

=_ at the institution to have demonstrated a stable,

ependable work and adjustment record.

. Family or personal history associated with Wilmington

area.

. A score of at least 34 points on the scoring tool used

by Plummer Center.

. Approval by the Director, the Superintendent of the

institution, and the State Work Release Supervisor in

the case of any inmate with a sex crime or crime of

violence.

Se ee ee

A52 District Court Opinion

not intended to substitute an exclusive list of objective

requirements for the discretion of the prison administra-

tion. They refer only to institutional adjustment, for ex-

ample, and make no mention of other obviously relevant

consideration such as the prognosis for behavioral adjust-

ment, risk of flight, and the personal safety of the inmate

after admission to work release. I mention these relevant

factors not because I am persuaded that they should or

did influence any decision in plaintiff's individual case,

but rather for the purpose of demonstrating that the rules

established only minimum guidelines for eligibility and

did not deprive the work release program of its essentially

discretionary character. Similar observation could be

made about the other guidelines which have been in effect

between September of 1974 and the present time.

The conclusion that the statute and rules gave Win-

sett no legally cognizable claim of entitlement to work

release under Delaware law is dispositive of his claim that

he has been denied due process of law. If a prisoner has

no legally cognizable claim of entitlement, there is no

liberty interest, the denial of which would bring the Due

Process Clause into play. Meachum v. Fano, 427 U. S.

215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976). As the

Supreme Court observed in Moody v. Daggett, 429 U. S.

78, 97 S. Ct. 274, 50 L. Ed. 2d 236 (1976), in the context of

federal incarceration:

In Meachum v. Fano ... , for example, no due process

protections were required upon the discretionary

4, (Cont'd. )

Note: Exceptions can be made to all of the above procedures.

Exceptions must be approved by the Superintendent and

Supervisor for Work/Education Release. If there is a

conflict between these two, it is to be resolved by a com-

mittee of the Superintendent, State Supervisor for Work/

Education Release, and Assistant Director for Community

Services.

District Court Opinion A53

transfer of state prisoners .... The same is true of

prisoner classification and eligibility for rehabilitative

programs in the federal system. Congress has given

federal prison officials full discretion to control these

conditions of confinement, 18 U. S. C. § 4081, and

petitioner has no legitimate statutory or constitutional

entitlement sufficient to invoke due process.

429 U. S. at 88, fn. 9, 97 S. Ct. at 279.

Both Meachum and Daggett involved procedural

rather than substantive due process claims. But the

Supreme Court's recent analysis in the substantive due

process area suggests to this Court that a protected liberty

interest must also be identified before substantive due

process comes into play and that one’s interest in being free

of arbitrary state action is not, per se, a protected liberty

interest. Kelly v. Johnson, 425 U. S. 238, 96 S. Ct. 1440,

47 L. Ed. 2d 708 (1976). In Meachum, the court stressed

the fact that a lawfully incarcerated prisoner has already

been deprived of his liberty through due process of law

and concluded that his interest in participation in less re-

strictive custody is not a protected liberty interest absent

some state created claim of entitlement. The court’s ap-

proach suggests to me that its view would be the same in

the context of substantive as well as procedural due

process. As the court observed in Montanye v. Haymes,

427 U. S. 236, 96 S. Ct. 2543, 49 L. Ed. 2d 466 (1976):

... As long as the conditions or degree of confinement

to which the prisoner is subjected are within the

sentence imposed upon him and are not otherwise

violative of the Constitution, the Due Process Clause

does not in itself subject an inmate’s treatment by

prison authorities to judicial oversight. . . .

427 U. S. at 242, 96 S. Ct. at 2547,

A54 District Court Opinion

Nor can I conclude that plaintiff is entitled to relief

based on his equal protection claim. He has neither al-

leged nor proved any class based discrimination. He

complains of individual decisions about his own conditions

of confinement because they have been influenced by what

he considers to be considerations unrelated to the purpose

of the work release program.’ Even if he were right, how-

ever, misapplications of State law do not constitute in-

vidious discrimination which violates the Equal Protection

Clause. As the Supreme Court observed in Beck v. Wash-

ington, 369 U. S. 541, 82 S. Ct. 955, 8 L. Ed. 2d 98 (1962)

“were it otherwise, every alleged misapplication of State

law would constitute a federal question”. Accordingly,

I conclude that plaintiff's equal protection claim is also

without merit. See Durso v. Rowe, 430 F. Supp. 49 (N. D.

Ill. 1977) which rejects an equal protection claim on sub-

stantially identical facts.

Judgment will be entered for the defendants.

5. While plaintiffs argument is frequently cast in terms of

“impermissible reasons” having played a part in the denial of work

release, he does not, and poe? g not on this record, maintain that

they have come as a result of his exercise of a First Amendment or

other constitutionally secured right or, as noted above, because of

a suspect classification.

Statute Involved A55

STATUTE INVOLVED.

Persons committed to the instifutional care of the De-

partment shall be dealt with humanely, with effort di-

rected to their rehabilitation, to effect their return to the

community as safely and promptly as practicable. The

Commissioner shall establish the following programs, and

may establish others: Education, including vocational

training; work; case work counselling and psychotherapy;

library and religious services; commissary; and shall in-

stitute procedures for the study of classification of inmates

for these purposes. Subject to the limitations of existing

structures, rooms for the housing of inmates shall have

adequate privacy, light and sanitary facilities, and per-

sonal needs, including facilities for visits by relatives and

friends, shall be provided at a normal level.

§ 6531. Treatment programs; ian