Appeal from an injunction issued in the Southern District in which Judge Carter found that due process requires that defendants-appellants: (1) process applications for conditional release from the New York City Correctional Institution for Men, Rikers Island in order of eligibility and within 60-90 days of an inmate's arrival at Rikers Island; (2) provide written statements of reasons and facts to inmates whose applications for conditional release are denied or deferred; and (3) accord each applicant an opportunity for a personal appearance before a commissioner of the Board of Parole. Affirmed except as it requires appellants to provide a personal appearance.
Lumbard and Van Graafeiland, Circuit Judges, and Bonsal, District Judge.*fn* Van Graafeiland, Circuit Judge, concurring in part and dissenting in part.
Defendants-appellants, members of the New York State Board of Parole (hereinafter "the Board") and state correctional services officials, appeal from an injunction issued in the Southern District, dated July 30, 1976, upon findings by Judge Carter that due process requires that defendants: (1) institute procedures to ensure that applications for conditional release from the New York City Correctional Institution for Men, Rikers Island, are processed in order of eligibility and within 60-90 days of the applicant's arrival at Rikers Island; (2) provide each inmate whose application for conditional release is denied or deferred a written statement of the reasons for the Board's action together with the facts relied upon in reaching the decision; and (3) accord to each applicant the opportunity for a personal appearance before the Board commissioner or commissioners responsible for determining the disposition of the application. Appellants contend that the inmates' interest in conditional release is not sufficient to make their claims cognizable under the Due Process Clause; further, they argue that in any event due process does not require the procedures ordered by the district court. We reverse so much of the district court's injunction which mandates an opportunity for personal appearance before a member of the Board and affirm the remainder.
Under New York Penal Law § 70.40(2)*fn1 individuals, such as were the appellees, serving one or more definite sentences of imprisonment with an aggregate term in excess of 90 days may request conditional release from custody at any time after the service of 60 days; release is at the discretion of the Board and is probationary for one year. "Definite sentences" under New York law never exceed one year, New York Penal Law §§ 70.00(4), 70.15(1), although a person sentenced to two or more definite sentences may be required to serve an aggregate term of up to two years.*fn2 New York Penal Law § 70.30(2)(b). Definite sentences may be imposed for certain misdemeanors and certain low-grade felonies. See New York Penal Law §§ 70.15, 70.00(4). In contrast, sentences of more than one year are indeterminate and may be imposed only for crimes classified as felonies. New York law requires that the term of an indeterminate sentence be at least three years and provides that it may be for as long as life for certain crimes. See New York Penal Law § 70.00. An individual sentenced to an indeterminate term is eligible for parole after having served a minimum period of imprisonment (as fixed by the sentencing court, or, in certain cases, the Board), which must be at least one year and may be as long as 25 years. New York Penal Law § 70.00(3). Definite sentences are served in a county or regional correctional institution; indeterminate sentences must be served in a state prison. New York Penal Law § 70.20. Under New York Correctional Law § 214 applicants for parole, but not for conditional release, are entitled to a personal appearance before a three-member panel of the Board and a written statement of reasons and facts relied upon if parole is denied. Appellees argued before the district court that the lack of such procedures in the case of conditional release applications violates both due process and equal protection and sought declaratory and injunctive relief pursuant to 42 U.S.C. § 1983.
Plaintiffs were all inmates serving definite sentences of more than 90 days at Rikers Island.*fn3 In its unreported decision of July 30, 1976, the district court granted plaintiffs' motion to proceed as a class pursuant to F.R.C.P. 23(b)(2), which was unopposed; the class consists of all inmates on Rikers Island who are or will become eligible for conditional release.*fn4
The operation of the conditional release program was described at trial. Raymond Dorsey, the official supervising the Rikers Island conditional release program, testified that he and his staff attempt to explain the program to all eligible inmates within the first week of their arrival. Parole officers then interview those who wish to apply. There are no written guidelines on how these interviews are to be conducted. There are no established practices determining the order in which arriving applicants are to be interviewed;*fn5 rather, the district court found that the interviews are conducted on a random basis without regard to the amount of jail time served.*fn6 During the interview the parole officer asks the inmate certain questions and takes down any information the inmate wishes to provide; the inmate is also advised that letters in his behalf or job offers may be sent to the parole officer to be included in the inmate's file.
Based on the interview and the inmate's file the parole officer prepares a written report, which is placed in the inmate's file. The report includes a personal and social history of the inmate based upon the interview and information contained in available presentence reports. The parole officer makes no independent investigation and although he sometimes makes a recommendation, the conditional release decision is ordinarily left entirely to the discretion of a Board commissioner. The district court found that under existing conditions, it customarily takes 60 to 90 days for parole officers to submit their reports to the Board.
The commissioner's decision is based entirely on the information contained in the inmate's file, including the parole officer's report and the presentence report; the commissioner neither interviews the inmate nor consults with the parole officer who conducted the interview. Inmates are not allowed to see their files. There are no written criteria upon which the commissioners base their decisions, although the testimony at trial indicated that they are primarily influenced by the applicant's prior record, the nature of his offense, the applicant's institutional adjustment and his future plans.*fn7 In September, 1975 the Board began to provide written statements of reasons and facts to inmates whose applications had been denied; prior to that time the Board's practice was merely to deny or defer an application without any statement. An inmate whose application has been denied may apply to the chairman of the Board for reconsideration.*fn8
Before proceeding to the merits, we treat an initial issue regarding this court's jurisdiction. At oral argument appellants pointed out that by some time after the evidentiary hearing but prior to the district court's certification of the class in its order of July 30, 1976, all of the named plaintiffs had been released; accordingly, appellants now contend that the controversy is moot. We reject this contention. Although a litigant must ordinarily be a member of the class that he seeks to represent at the time the class is certified, see Sosna v. Iowa, 419 U.S. 393, 402-03, 42 L. Ed. 2d 532, 95 S. Ct. 553 (1975), this case is a "suitable exception" to that requirement. Gerstein v. Pugh, 420 U.S. 103, 110-11, 43 L. Ed. 2d 54, 95 S. Ct. 854 n.11 (1975), Sosna v. Iowa, supra, 419 U.S. at 402 n.11. Because of the relatively short periods of incarceration involved and the possibility of conditional release there was a significant possibility that any single named plaintiff would be released prior to certification, although this possibility was less substantial than it was in Gerstein. As in Gerstein, however, the constant existence of a class of persons suffering the alleged deprivation is certain and the court may safely assume that counsel has other clients with a continuing live interest in the issues (appellees are represented by the Parole Revocation Defense Unit of the Legal Aid Society). See Gerstein v. Pugh, supra, 420 U.S. at 110-11 n.11; Frost v. Weinberger, 515 F.2d 57, 62-65 (2d Cir. 1975); McGill v. Parsons, 532 F.2d 484, 488-89 (5th Cir. 1976); Inmates of San Diego County Jail in Cell Block 3B v. Duffy, 528 F.2d 954, 956-57 (9th Cir. 1975). Further, despite the admonition of F.R.C.P. 23(c)(1) that the court shall make the class action determination "as soon as practicable after the commencement of an action," for reasons which are not apparent, almost a year elapsed between appellees' uncontested motion for class action status and the district court's certification. Appellants make no contention on appeal that the certification was improper nor is there any question that the class was properly identified by the district court. See Indianapolis School Comm'rs v. Jacobs, 420 U.S. 128, 95 S. Ct. 848, 43 L. Ed. 2d 74 (1975) (per curiam). It follows that this case is not moot because the controversy as to the named plaintiffs has been resolved. Because of the relatively short periods of incarceration involved and the possibility of conditional release, the alleged harm can hardly be redressed while any possible plaintiff is still an inmate. See Gerstein v. Pugh, supra, 420 U.S. at 110 n.11; Sosna v. Iowa, supra, 419 U.S. at 401-02. Furthermore, it is clear that there is a sufficient adversary relationship here to assure proper presentation of the issues. Franks v. Bowman Transportation Co., 424 U.S. 747, 752-57, 47 L. Ed. 2d 444, 96 S. Ct. 1251 (1976).
Turning to the merits, we must first inquire whether a prisoner's interest in conditional release is sufficient to warrant due process protection. Although the Supreme Court has rejected the notion that every state action having adverse consequences for an inmate automatically raises a question of due process, see, e.g., Meachum v. Fano, 427 U.S. 215, 49 L. Ed. 2d 451, 96 S. Ct. 2532, 44 U.S.L.W. 5053 (1976); Moody v. Daggett, 429 U.S. 78, 50 L. Ed. 2d 236, 97 S. Ct. 274, 45 U.S.L.W. 4017, 4020 n.9 (1976), it has left open the issue of whether, and to what extent, parole release procedures may be held to activate due process rights. See, e.g., Moody v. Daggett, supra, 429 U.S. 78, 45 U.S.L.W. at 4020; Scott v. Kentucky Parole Board, 429 U.S. 60, 50 L. Ed. 2d 218, 97 S. Ct. 342, 45 U.S.L.W. 4009 (1976). As the district court noted, however, it is settled in this circuit that a prisoner's interest in prospective parole or "conditional entitlement" is entitled to due process protection: "Whether the immediate issue be release or revocation, the stakes are the same: conditional freedom versus incarceration." United States ex rel. Johnson v. Chairman, New York State Board of Parole, 500 F.2d 925, 928 (2d Cir.), vacated and remanded as moot sub nom. Regan v. Johnson, 419 U.S. 1015, 42 L. Ed. 2d 289, 95 S. Ct. 488 (1974). See Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974); Holup v. Gates, 544 F.2d 82 (2d Cir. 1976); Haymes v. Regan, 525 F.2d 540 (2d Cir. 1975).*fn9
New York Penal Law § 70.40(2) provides inmates a "justifiable expectation rooted in state law," Montanye v. Haymes, 427 U. S. 236, 242, 49 L. Ed. 2d 466, 96 S. Ct. 2543, 44 U.S.L.W. 5051, 5052 (1976), that they will be conditionally released if they meet Board standards. See New York Correction Law § 827. Although the potential deprivation involved in an administrative decision is an appropriate factor to consider in determining the amount of process due, see Mathews v. Eldridge, 424 U.S. 319, 335, 341, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976), it is the nature of the interest sought to be protected from official action that determines whether due process attaches. See Meachum v. Fano, supra, 427 U. S. 215, 44 U.S.L.W. at 5056. Whether labelled "conditional release" or "parole" the nature of the interest at stake in this case is the same: conditional freedom versus incarceration. See United States ex rel. Johnson v. Chairman, New York State Board of Parole, supra, 500 F.2d at 928; cf. Wolff v. McDonnell, supra, 418 U.S. at 556-57.
Having determined that due process attaches, the question remains of how much process is due. In this inquiry we are guided by the Supreme Court's observation that identification of the specific dictates of due process generally requires consideration of three factors: 1) the private interest involved; 2) the risk of an erroneous deprivation of that interest through the procedures used, and the probable value of additional or substitute procedural safeguards; and 3) the public interest in maintaining existing procedures, including the function involved and the fiscal and administrative burdens entailed in additional or substitute procedures. See Mathews v. Eldridge, supra, 424 U.S. at 334-35.*fn10
Turning first to the inmate's liberty interest we note that this court and others have distinguished between the inmate's interest in continued conditional freedom (involved in the parole revocation decision) and his anticipation or hope of freedom (involved in the parole release decision), see Morrissey v. Brewer, 408 U.S. 471, 482, 33 L. Ed. 2d 484, 92 S. Ct. 2593 n.8 (1972); Gates v. Holup, supra, 544 F.2d 82, slip op. at 5885; Childs v. United States Board of Parole, 167 U.S. App. D.C. 268, 511 F.2d 1270, 1286 (1974) (Tamm, J., concurring); in the latter instance the broad discretion afforded the Board necessarily lessens the required content of due process. See Haymes v. Regan, supra, 525 F.2d at 543.*fn11 We think a similar distinction can be drawn between the inmate's interest in conditional release and parole. As the state points out, applications for conditional release are less likely to be granted than are applications for parole; accordingly, the conditional release applicant's expectation of liberty is less justified and his interest is correspondingly less substantial. See United States ex rel. Johnson v. Chairman, New York State Board of Parole, supra, 500 F.2d at 928.*fn12 Further, because the conditional release applicant's sentence will almost always be shorter than that of the parole applicant, he will ordinarily have less at stake.*fn13 Thus, although the inmate seeking conditional release has a significant interest in the Board's decision, we think his interest ...