Petition for Writ of Certiorari — Patuxent Institution Board of Review v. Hancock

92-1933 /*

No.

IN THE

Supreme Court of the GAnited States

OCTOBER TERM, 1992

PATUXENT INSTITUTION BOARD OF REVIEW,

Petitioner.

V.

CLARENCE J. HANCOCK,

Respondent.

On Petition for Writ of Certiorari to the

Court of Appeals of Maryland

PETITION FOR WRIT OF CERTIORARI

J. JOSEPH CURRAN, JR.

Attorney General of Maryland

CARMEN M. SHEPARD

ANDREW H. BAIDA*

Assistant Attorneys General

200 St. Paul Place, 20th Floor

Baltimore, Maryland 21202

(410) 576-7291

Attorneys for Petitioner

*Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTIONS PRESENTED

Without making any finding that Maryland’s parole

statute and regulations established a liberty interest in

parole, the Court of Appeals of Maryland held that a

prisoner's parole had been’ revoked without

constitutionally adequate notice. This case presents the

following questions:

1. Is the decision of the Court of Appeals, holding

that a parole board’s order of parole created a liberty

interest that could not be revoked without complying

with due process requirements, in conflict with Jago v.

Van Curen, 454 U.S. 14 (1981)?

2. If the board’s order did create a liberty interest,

did the Court of Appeals hold correctly that the parole

of an individual who presents a threat to public safety

was revoked unconstitutionally because he had not

—

received written notice that his failure to comply with

the instructions and directives of his therapist could

result in the loss of his conditional liberty?

ll

PARTIES TO THE PROCEEDINGS

The parties to this proceeding below were the

Patuxent Institution Board of Review, petitioner in the

court below; and Clarence J. Hancock, respondent

below.

ill

TABLE OF CONTENTS

Page

(FURDSERING PURSUE EMEP 2c ee te ees i

PARTIES TO THE PROCEEDINGS ........ ill

ey 8 Ge era ee ee ere eee 2

Pp 3s co ae Se Ke ae ee 3

CONSTITUTIONAL PROVISION INVOLVED .. 3

SEAT Eames GU Tite CASE... 0s ec cen 4

REASONS FOR GRANTING REVIEW ....... 9

I. THIS CASE PRESENTS THE

IMPORTANT QUESTION OF

WHETHER A STATE PAROLE

BOARD’S ACTIONS CAN EVER

CREATE A LIBERTY INTEREST

EN PAILS ee 6 ee 14

A. The Decision Below Is In

Conflict With Applicable

Decisions Of This Court ....... 14

B. The Decision Below Is In

Conflict With Decisions

OF Clee Certs cw wk ee te we 24

1V

IT. THIS CASE PRESENTS THE

SIGNIFICANT ISSUE OF FIRST

IMPRESSION OF WHAT NOTICE

IS CONSTITUTIONALLY DUE WHEN

REVOKING A PRISONER’S PAROLE .. 25

CONCLUSION

APPENDIX

TABLE OF AUTHORITIES

Page

Cases

Benboe v. State, 738 P.2d 356

(Alaska App. 1987) ....3.......... 28

Board of Pardons v. Allen,

482 U.S. 369 (1987) ........ 16,18-19,22

Byrant v. State, 848 F.2d 492

Cg. kk cs oe ae eee 23,24

Connecticut Board of Pardons v.

Dumschat, 452 U.S. 458 (1981) ... 16,22,23

Director v. Daniels,

243 Md. 16, 221 A.2d 397, cert.

denied sub nom., Avey v. Boslow,

Be eS | ee 29

Greenholtz v. Inmates of the Nebraska

Penal and Correctional Complex,

ek Se, na 16

Hewitt v. Helms, 459 U.S. 460 (1983) ..... 15-16

Ingrassia v. Purkett, 985 F.2d 987,

ee aes SO a kek ee eee es 25

v1

Inmates of Orient Correctional

Institute v. Ohio State Adult

Parole Authority, 929 F.2d

aoe ee ee Eo & 9 oa aa ee 25

Jago v. Van Curen,

454 U.S. 14 C1961)... we es i,11,16,19,20

Johnson v. Pennsylvania Board of

Probation and Parole, 532 A.2d

er TE gs a ee ee es 25

Kentucky Dept. of Corrections v.

Thompson, 490 U.S. 454 (1989) .. 16,17,23

Morrissey v. Brewer,

— 4 A es OL, os me are A 26-27

Olim v. Wakinekona,

ee IN ka & os eke we om ee 16

State v. Vermont,

oe & FF, Ses 28

Winters v. Solem, 444 N.W.2d 722,

EE ie ea ae a glare te 25

Wolff v. McDonnell,

ee See ee Gee seeks be StS 17

Vil

: ‘tutional and S Provis;

United States Constitution,

PE EP i cae eee eas 3

p BH odie sy | er a 3

| Maryland Annotated Code, Art. 31B

Ba gt ds uit 4 HN IE NS 8a ee 5

ie a ea PS ee ee nee” 5

2 NA ee ee ere ae 30

ES sss bao 4 ew ae ee 18

MES 5g! b hla ose cs oe ee 22,30

8 Fa ere are or ree 30

Rules

Se RN ee eee 25

i es EE os a a es es ek ee a 24

Other Authority

Cohen, Neil P., Gobert, James J., The

Law of Probation and Parole,

(1983; 1992 Cum. Supp.) ...... eta ta rs |

Vill

No. 92-

October Term, 1992

IN THE

SUPREME COURT OF THE UNITED STATES

PATUXENT INSTITUTION BOARD OF REVIEW,

Petitioner,

7 .

CLARENCE J. HANCOCK,

Respondent.

On Petition for Writ of Certiorari to the

Court of Appeals of Maryland

PETITION FOR WRIT OF CERTIORARI

The Patuxent Institution Board of Review, an agency

of the State of Maryland ("Patuxent" or “State"),

respectfully petitions this Court for a wnt of certiorari

| |

to review the judgment of the Court of Appeals of

Maryland.

OPINIONS BELOW

The March 12, 1993 opinion of the Court of Appeals

is reported at 329 Md. 556, 620 A.2d 917, and is

reprinted at pages 3a-96a of the appendix ("App.") to

this petition. The opinion of the Court of Special

Appeals of Maryland is unreported and reprinted App.

at 97a-112a. The order of the Circuit Court for Howard

County is unreported and reprinted App. at 113a-115a.

The decision of the Patuxent Institution Board of Review

revoking respondent’s parole is unreported and reprinted

App. at 116a-12la. The order of parole issued to

respondent is unreported and reprinted App. at 122a-

128a. The memorandum and order of the Circuit Court

for Baltimore City is unreported and reprinted App. at

'

129a-134a.

This Court’s April 14, 1993 order denying

petitioner’s application for a stay of the Court of

Appeals’ mandate is unreported and reprinted App. at

la. The Court of Appeals’ April 1, 1993 order denying

petitioner’s motion for reconsideration and the stay of its

mandate is unreported and reprinted App. at 2a.

DI N

The judgment of the Court of Appeals of Maryland

was entered on March 12, 1993. This petition was filed

within 90 days of that judgment. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1257(a).

N LVED

CONSTITUTION OF THE UNITED STATES,

AMENDMENT XIV, SECTION |:

* * * No State shall make or enforce any law

which shall abridge the privileges or immunities

of citizens of the United States; nor shall any

State deprive any person of life, liberty, or

property, without due process of law; nor deny to

any person within its jurisdiction the equal

protection of the laws.

STATEMENT OF THE CASE

Clarence Hancock was_ sentenced to life

imprisonment plus thirty five years following his

conviction for murder, attempted murder and assault and

battery. (App. at 4a.) For many years prior to his

crime, Mr. Hancock experienced sadistic sexual

fantasies of rape. After a period of obsessive thoughts

about his victim, he decided to break into her house

while she was out, tie up her three children and rape her

when she returned. Before he could finish with the

children, the victim returned and Mr. Hancock tied and

gagged her with the cord and tape he brought with him.

Just after Mr. Hancock removed her clothes, the victim

screamed. Mr. Hancock grabbed a hammer and beat

her to death. When the eleven year old son came to

help his mother, Mr. Hancock struck the child 27 or 28

times, inflicting massive and permanent brain damage.

(App. at 89-90a.)

Following his incarceration, Mr. Hancock was

diagnosed as suffering from sexual sadism and a

schizoid personality. He was subsequently admitted to

Patuxent Institution, a State agency that operates

independently of the State prison system for the purpose

of treating and rehabilitating certain criminals with

emotional imbalance. See Md. Ann. Code Art. 31B §§

1, 2 (1957, 1990 Repl. Vol., 1992 Cum. Supp.).

In 1987, the former Director of Patuxent

recommended to the Governor that Mr. Hancock be

granted parole. (App. at 80a.) The Governor rejected

the recommendation. Shortly thereafter, Mr. Hancock’s

behavior began to deteriorate. (App. at 9a.) A 1989

independent psychological evaluation found him to be

dangerous and, in 1990, Patuxent concluded that he no

longer qualified as an eligible person under the Patuxent

statute and transferred him back to the Division of

Correction. (App. at 9a; 81a.)

Mr. Hancock filed a habeas corpus action in July

1990 based on a June 1990 decision of the Court of

Appeals of Maryland holding that the gubernatorial

approval requirement violated the ex post facto clause.

(App. at 9a-10a.) The State court ordered Patuxent to

parole Mr. Hancock unless it commenced the legally

|

mandated procedures to revoke parole. (App. at Ila.)

Accordingly, Patuxent served Mr. Hancock with an

order of parole, effective only for one year, and at the

same time served him with a parole revocation warrant.

(App. at 12a-15a; 116a-129a.) Thus, Patuxent exercised

its right to revoke Mr. Hancock’s parole prior to

physically releasing him. (App. at 14a-15a; 22a; 27a.)

Following an administrative hearing at which his

therapist testified that Mr. Hancock is dangerous and his

parole would pose a threat to public safety because he

had not resolved the problems that led to his crime,

Patuxent revoked his parole due to his lack of progress

in the rehabilitative programs and his ineligibility to

continue at Patuxent. (App. at 1Sa-17a.) The Patuxent

Board concluded that since November of 1989, Mr.

Hancock "failed to continue seriously addressing the

motivation of his crime, which is critical to his

successful rehabilitation." (App. at 16a.) Although he

was cautioned on a number of occasions, Mr. Hancock

failed to satisfactorily participate in therapy. (Id.) The

Board concluded that Mr. Hancock’s conduct "thwarted

the purpose and mission of the Institution" (App. at

17a), and found that he was in violation of the terms and

conditions of parole.

This decision was upheld by the State circuit court

but reversed on appeal by the State’s intermediate

appellate court. (App. at 97a.) The Court of Appeals

of Maryland granted the State’s petition for writ of

certiorari and issued a stay of the judgment pending its

decision. On March 12, 1993, the Court of Appeals

held, with three judges dissenting, that Mr. Hancock

should be released because he had acquired a liberty

es a

interest when Patuxent served him with the order of

parole and that his due process rights were violated

because he was not made aware that his progress in

therapy was an actual condition of parole which would

result in loss of liberty if violated. (App. at 3a.)

Patuxent subsequently filed with the Court of

Appeals a motion for reconsideration and, in the

alternative, for a stay of the issuance of the mandate.

After that motion was denied on April 1, 1993 (App.

2a), Patuxent filed an emergency application with this

Court for a stay of judgment of the Court of Appeals.

Chief Justice Rehnquist, sitting as Circuit Justice, denied

that request for a stay on April 14, 1993. (App. at la.)

REASONS FOR GRANTING REVIEW

This case presents the important question of whether

in the absence of a statute or regulation establishing a

due process right in parole, a liberty interest in parole

release can ever be created solely by the acts of State

officials. This case also raises the equally significant

question of whether a State may revoke parole when it

concludes that release will impose an unreasonable risk

on society without so stating explicitly in the written

order of parole. The Court of Appeals of Maryland

held that a State parole board’s order of parole

conferred upon a prisoner a constitutionally-protected

liberty interest that could not be revoked without

complying with due process. The Court of Appeals also

held that due process was violated because the conduct

underlying the revocation of respondent’s parole was not

criminal and respondent was not notified adequately in

advance that his parole could be revoked. This case

warrants review because Maryland’s highest court has

10

*

decided these federal questions in a way that conflicts

with applicable decisions of this Court, including Jago

vy. Van Curen, 454 U.S. 14 (1981), and the decisions of

other courts, and impairs substantially the flexibility that

prison officials and parole authorities must have in

deciding whether to release convicted felons into the

community.

This Court has held that there is no inherent

constitutional entitlement to be released prior to serving

a sentence of imprisonment and that a due process right

to parole can be created only by a State’s statutes and

regulations. Indeed, in determining whether an inmate

has a liberty interest entitled to due process protection,

this Court has emphasized repeatedly that the language

of the applicable prison statutes and regulations must be

closely examined. Without exception, therefore, this

11

Court has based its analysis on State law in resolving

whether there exists a protected interest in parole, good-

time credits, transfer, or form of confinement.

In contrast with this Court’s decisions, the Court of

Appeals held that a liberty interest in parole can be

created solely by a parole board’s order authorizing

respondent’s release, notwithstanding that the parole

board acted simultaneously to revoke that parole. No

such right can be found to exist without conducting the

required inquiry into the applicable parole statutes and

regulations. Nor can a court properly hold that such a

right exists in States such as Maryland that have

endowed their officials with the unfettered discretion to

revoke an inmate’s eligibility for parole at any time.

This Court should accordingly review this case and

reverse the sweeping and unsound rule of federal

12

constitutional law announced by the Court of Appeals.

Assuming that the parole board’s order created a

constitutionally protected liberty interest in parole,

review is also warranted to address the currently

unresolved but important issue of what notice a State

must first provide a parolee before that person’s parole

may be revoked. The Court of Appeals held that

because the conduct that formed the basis for the parole

revocation in this case was not in violation of any law

and did not constitute an institutional infraction, due

process required that the respondent, who was

incarcerated in and paroled from a correctional

institution uniquely conceived to treat individuals with

serious emotional deficiencies, be specifically notified in

advance that his failure to satisfactorily participate in

therapy and resolve the deficiencies that motivated his

13

criminal conduct would result in the revocation of his

parole. This Court should address whether the States

are prohibited from terminating a parolee’s conditional

liberty unless they first explicitly apprise that person of

each circumstance that could lead to his or her

reincarceration.

I. THIS CASE PRESENTS THE

IMPORTANT QUESTION OF

WHETHER A STATE PAROLE

BOARD’S ACTIONS CAN EVER

CREATE A LIBERTY INTEREST IN

PAROLE RELEASE,

A. The Decision Below Is In Conflict With

malinahie Rectal Of This C

Observing that a constitutionally-protected liberty

interest in parole release may be created by "a statute,

administrative rules or regulations, or accepted

practices," (App. at 53a) (emphasis added), the Court of

Appeals held that when petitioner Patuxent Institution

14

-aecseinaill

Board of Review "served the respondent with an Order

of Parole and a copy of a parole agreement, the

petitioner effected the respondent’s parole and, in the

process, created in him a liberty interest in parole

release." (App. at 57a-58a.) This case squarely raises

the important question, therefore, about whether a

prisoner’s due process right to parole can be caused

solely by the acts of State officials and thus whether, as

the Court of Appeals held, "the Order of Parole created

a liberty interest." (App. at 62a.) While this Court has

never addressed this constitutional question in this

specific context, the rationale of its prior decisions

mandates reversal of the court below.

"Liberty interests protected by the Fourteenth

Amendment may arise from two sources -- the Due

Process Clause itself and the laws of the States." Hewitt

15

i

v. Helms, 459 U.S. 460, 466 (1983). With respect to

parole, “[t]here is no constitutional or inherent right of

a convicted person to be conditionally released before

the expiration of a valid sentence." Greenholtz v.

m f r n ion

Complex, 442 U.S. 1, 7 (1979). Rather, this Court has

looked exclusively to the States’ statutes and regulations

when determining the existence of liberty interests in the

context of parole and other prison settings. See, e.g.,

Kentucky Dept. of Corrections v. Thompson, 490 U.S.

454 (1989) (visitation privileges); Board of Pardons v.

Allen, 482 U.S. 369 (1987) (parole); im_v

Wakinekona, 461 U.S. 238 (1983) (transfer); Hewitt v.

Helms, 459 U.S. 460 (form of confinement); Jago v.

Van Curen, 454 U.S. 14 (1981) (parole); Connecticut

Board of Pardons v. Dumschat, 452 U.S. 458 (1981)

16

a

(sentence commutation); Greenholtz, 442 U.S. 1

(parole); Wolff v. McDonnell, 418 U.S. 539 (1974)

(good-time credits).

Further, as this Court has explained, in determining

"that certain state-created liberty interests have been

found to be entitled to due process protection, while

others have not, . . . our method of inquiry in these

cases always has been to examine closely the language

of the relevant statutes and regulations." Kentucky

Dept. of Corrections, 490 U.S. at 461 (emphasis added)

(footnote omitted). Conversely, this Court has never

held that a prisoner has a liberty interest without finding

that a State law created such an interest "by establishing

‘substantive predicates’ to govern official decision-

making, and, further, by mandating the outcome to be

reached upon a finding that the relevant criteria have

17

—— i

been met." Id. at 462 (citation omitted).

The language of the relevant Maryland law imposes

no substantive restraints that create a liberty interest in

parole. Md. Ann. Code Art. 31B, § 11(b)(1) provides

that the State "[a]t any time" "may" conclude a person

is no longer eligible to participate in Patuxent and thus

be paroled from that institution, and that the State may

instead transfer that person to "an appropriate

correctional facility designated by the Commissioner."

Moreover, that same statute provides that the State

"may" act upon an inmate’s request for parole, but only

if it chooses to do so. Id. This statutory scheme

Suggests strongly that respondent has no due process

right because "statutes or regulations that provide that a

parole board ‘may’ release an inmate on parole do not

give rise to a protected liberty interest." Board of

18

Pardons v. Allen, 482 U.S. at 378 n.10 (citing cases).

Because the Court of Appeals did not even address

Maryland’s regulatory scheme governing parole,

however, nor make any finding that the State’s parole

statute and regulations created a due process interest, the

court "abandoned the essential inquiry in determining

whether" Maryland’s "statute creates a liberty interest."

Board of Pardons v, Allen, 482 U.S. at 385 (O’Connor,

J., dissenting). In holding in the absence of such a

fundamental examination that the State parole board’s

actions created a liberty interest in parole, the Maryland

court has fashioned an unprecedented rule of

constitutional law that "severely restrict[s] the necessary

flexibility of prison administrators and _ parole

authorities... ." Jago v, Van Curen, 454 U.S. at 19.

Under that rule, "any one of their myriad decisions with

19

respect to individual inmates may, as under the general

law of contracts, give rise to protected ‘liberty’ interests

which could not thereafter be impaired without a

constitutionally mandated hearing under the Due Process

Clause." Id.

This Court’s per curiam opinion in Jago v. Van

Curen rejected a virtually identical lower court holding

in finding that no due process violation was caused by

a parole board’s unilateral rescission of its decision to

grant parole when Ohio law created no protected liberty

interest in parole release. See 454 U.S. at 20-21. The

court below distinguished Jago on the ground that "[t]he

respondent in Jago had not been paroled, but merely

recommended for parole," while "[t]he critical decision

in the case before us was not favorably to recommend

parole; rather, it was to grant it. Such a decision may

20

not, without complying with due process, be rescinded

based on new information discovered before physical

release has actually occurred." (App. at 61a.) As in

Jago, however, because there is no finding that the

State’s parole law and regulations created a liberty

interest, the actions of State officials taken in response

to an inmate’s request for parolee furnish the only basis

“from which the liberty interest flowed." (App. at 58a.)

That seems to be precisely what this Court held cannot

support a constitutional right to parole.

Even if, as the Court of Appeals found, the State’s

conduct led respondent to believe that he had all of the

rights of a parolee (see App. at 61a-62a), that would not

appear to create a constitutionally-protected liberty

interest. Those State actions do not establish a

constitutional right because "a mere expectation of a

21

benefit -- even if that expectation is supported by

consistent government practice -- is not sufficient to

create an interest protected by procedural due process."

Board of Pardons v, Allen, 482 U.S. at 382 (O’Connor,

J., dissenting). "A constitutional entitlement cannot ‘be

created -- as if by estoppel -- merely because a wholly

and expressly discretionary state privilege has been

granted generously in the past.’" Connecticut Board of

Pardons v. Dumschat, 452 U.S. at 465 (emphasis and

citation omitted).

Moreover, because Maryland law limits the initial

grant of parole to a period "not exceeding one year,"

Md. Ann. Code Art. 31B, § 11(b)(2), and because that

year expired in August, 1991, when this case was on

appeal, Mr. Hancock could no longer claim even an

expectation of release. The State’s actions in this case

22

"standing alone generate no constitutional protections; a

contrary conclusion would trivialize the Constitution."

Connecticut Board of Pardons v, Dumschat, 452 U.S. at

465.

Because "the Maryland parole statute does not create

a legitimate expectation of parole release," Bryant v.

State, 848 F.2d 492, 493 (4th Cir. 1988), and because

the Court of Appeals did not even conduct such an

inquiry as this Court "always" has when examining

whether a State has "granted inmates a protected interest

in parole,” Kentucky D f rrections __v.

Thompson, 490 U.S. at 461, the court erroneously held

that the State’s actions in this case generated a liberty

interest. Therefore, the holding below that the parole

board’s order of parole established a liberty interest is in

conflict with applicable decisions of this Court. This

23

Court should grant review and reverse that decision.

See Sup. Ct. R. 10.1(c).

B. The Decision Below Is In Conflict With

Decisi Of Other C

A further reason for granting review is that the Court

of Appeals has decided a federal question in a way that

conflicts with the decisions of several United States

courts of appeals and of another state court of last

resort. The court’s holding that respondent had a liberty

interest in parole is in conflict with the decision in

Bryant v. State, 848 F.2d 492 (4th Cir. 1988), where

the Fourth Circuit held that Maryland’s parole statute

created "no nght protected by the due process clause."

Id. at 493. The decision below also is in conflict with

the decisions of other courts that have held that in the

absence of a liberty interest created by a State’s laws or

24

regulations, the actions of State officials by themselves

are insufficient to create a liberty interest in parole. See

Ingrassia v. Purkett, 985 F.2d 987, 988 (8th Cir. 1993);

I F Orient C — v. Ohio §

Adult Parole Authority, 929 F.2d 233, 235-238 (6th

Cir. 1991); Winters v. Solem, 444 N.W.2d 722 (S.D.

1989). See also Johnson v, Pennsylvania Board of

Probation and Parole, 532 A.2d 50, 52 (Pa.Cmwith.

1987). This Court should resolve these conflicts. See

Sup. Ct. R. 10.1(b).

Il. THIS CASE PRESENTS’ THE

SIGNIFICANT ISSUE OF FIRST

IMPRESSION OF WHAT NOTICE IS

CONSTITUTIONALLY DUE WHEN

REVOKING A PRISONER’S PAROLE.

This case also presents a fundamental issue “which

has not been, but should be, settled by this Court."

Sup. Ct. R. 10.1(b). That issue is, assuming the Due

25

a |

Process Clause is applicable in this case, what type of

notice State officials are required to provide before they

may revoke an individual’s parole. The Court of

Appeals held that despite respondent’s incarceration in

and parole from a prison facility designed specially to

treat individuals with serious emotional disorders, the

State revoked unconstitutionally his parole on the ground

that he failed to participate satisfactorily in therapy

because it did not notify him in advance that "therapy

was an actual condition of parole which, if violated,

would result in loss of liberty." (App. at 70a.) That

narrow interpretation of the Fourteenth Amendment

cannot be the constitutional law of the United States.

While this Court has noted that typical parole

conditions, such as that the parolee avoid "undesirable"

associations, may be "quite vague," see Mormssey v.

26

Brewer, 408 U.S. 471, 479 (1972), it has never defined

the notice that the States are required to provide parolees

under the Due Process Clause before terminating their

conditional liberty. The absence of guidance in this area

has contributed to an assortment of inconsistent lower

court decisions. See Cohen, Neil P., Gobert, James J.,

The Law of Probation and Parole, § 5.05, at 197 (1983;

1992 Cum. Supp.) ("Many judicial opinions establishing

standards of precision for probation and parole

conditions assume that due process governs the clarity

with which the conditions must be expressed, but do not

agree on, and often do not even discuss, the appropriate

test to be used in assessing the validity of a given

condition.") (footnotes omitted).

This inconsistency is particularly evident in cases

addressing the constitutional validity of decisions

27

3

:

eee

revoking parole or probation due to the failure to

participate in therapy, with some courts, such as the

court below, holding that a parolee’s liberty cannot be

revoked unless that individual is explicitly notified of the

requirement to fully attend and participate in therapy,

see also Benboe v. State, 738 P.2d 356 (Alaska App.

1987), and other courts reaching a contrary conclusion.

See, e.g., State v. Vermont, 578 A.2d 104, 106 (Vt.

1990) (rejecting probationer’s contention that "because

his probation agreement neither explicitly nor implicitly

required that he admit having had sexual intercourse

with his stepdaughter, he had no fair notice that his

probation could be revoked based on his refusal to make

such an admission.").

The facts surrounding respondent’s incarceration and

parole in this case demonstrate that he was on fair notice

28

——xo5uue

that his failure to fully participate in therapy could lead

to the revocation of his parole. The central purpose of

the penal institution where he was imprisoned and

paroled from is to provide efficient and adequate

programs and services for the treatment of individuals

suffering from serious deficient intellectual and

emotional imbalances.' Respondent’s attendance in

therapy and other weekly supervision sessions is

inextricably intertwined with that mission because

therapy plays -an instrumental role in the institution’s

exercise of its statutory responsibility both to provide

treatment to individuals with dangerous behavioral

disorders and, concomitantly, to evaluate whether an

' See Md. Ann. Code Art. 31B, § 2; Director _v.

Daniels, 243 Md. 16, 31, 221 A.2d 397, 410-11, cert.

denied sub nom., Avey v. Boslow, 385 U.S. 940 (1966);

App. at 4a-5a.

29

individual presents an unreasonable risk to the

community and thus is statutorily eligible to receive

and/or remain on parole. See Md. Ann. Code Art.

31B, §§ 11(b)(2); 11(c).

Respondent was necessarily on notice, therefore, of

his obligation to fully participate in therapy. To have

any expectation of early parole, Mr. Hancock was on

notice that he must remain an "eligible person," which

under the Patuxent statute is defined as "one likely to

respond favorably to the programs and services provided

at Patuxent." Md. Ann. Code Art. 31B, § 1(g). As the

dissent below stated, “implicit in the grant of parole

from Patuxent Institution would be the conditions that

the inmate remain legally eligible for parole status, and

that parole of the inmate ‘will not impose an

unreasonable risk on society. . . .”. Maryland Code

30

(1957, 1990 Repl. Vol.) Art. 31B, § 11(6)(2). These

are conditions ‘so basic and fundamental that any

reasonable person would be aware of = such

condition[s].’" (App. at 88a) (citation omitted).

The Court of Appeals nevertheless stated that

"[b]ecause the conduct on the basis of which the

revocation was premised was not criminal . . . and did

not constitute an institutional infraction, . . . we hold

that respondent’s parole was improperly revoked, he not

having been notified, in advance, of the condition

allegedly violated." (App. at 68a-69a.) This Court

should review this case to decide if the Court of Appeals

was correct when it held that the Constitution is so ngid

that in order to revoke the parole of an individual who

currently presents a risk to society, prison officials must

have anticipated and imposed specific parole conditions

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for all conduct that manifests this dangerousness.

NCLUSION

For the reasons stated, this Court should issue a writ

of certiorari to review the judgment of the Court of

Appeals of Maryland. Following review, that judgment

should by reversed.

Respectfully submitted,

J. JOSEPH CURRAN, JR.

Attorney General of Maryland

CARMEN M. SHEPARD

ANDREW H. BAIDA*

Assistant Attorneys General

200 St. Paul Place, 20th Floor

Baltimore, Maryland 21202

(410) 576-7291

Attorneys for Petitioner

*Counsel of Record

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