Appeal from a judgment entered in the Western District of New York, John T. Curtin, Chief Judge,
Feinberg and Timbers, Circuit Judges, and Oscar H. Davis,*fn* Court of Claims Judge.
This appeal by the New York State Parole Board and its members from an order entered in the Western District of New York, John T. Curtin, Chief Judge, 420 F. Supp. 592, in a civil rights action by a state prisoner, presents for review under the due process clause of the Fourteenth Amendment another procedural aspect of the New York State parole system.
The procedure in question is the minimum period of imprisonment (MPI) hearing conducted pursuant to N.Y. Correction Law § 212(2) (McKinney Supp. 1976).*fn1 We hold that the New York MPI procedure is subject to the due process clause of the Fourteenth Amendment; that the New York State Parole Board must provide a statement of reasons when it determines a MPI which exceeds the statutory minimum; and that under the particular circumstances of this case the prisoner must be granted access to the evidence in his file. We affirm.
For those prisoners subject to it, the MPI hearing is the threshold stage of the parole release process. Depending on the individual case, it results either in immediate release or in the scheduling of consideration for parole at some fixed date in the future. Specifically, when there has been imposed on a prisoner an indeterminate sentence but no minimum term, N.Y. Correction Law § 212(2) requires the New York State Parole Board to meet with him and review his file between nine and twelve months from the date he commenced his sentence. The Board then must "make a determination as to the minimum period of imprisonment to be served prior to parole consideration." Under the statute, in the case of a prisoner sentenced to an indeterminate term with no minimum, the Board may provide for a minimum period of incarceration as short as one year. Should it decide to set a longer minimum period, it subsequently may reduce the period initially fixed.
A MPI hearing was held in the instant case pursuant to the statutory directive. On February 28, 1975, upon a plea of guilty in the Supreme Court, Bronx County, to one count of criminal sale of a dangerous drug in the second degree in violation of N.Y. Penal Law § 220.35 (McKinney 1967), Ernest Coralluzzo was committed to the New York State Department of Corrections to serve an indeterminate sentence not to exceed fifteen years. N.Y. Penal Law § 70.00(1) (McKinney 1975). On January 15, 1976, he met with three members of the Parole Board at a MPI hearing. He requested release upon the expiration of the one year statutory minimum. After the hearing he received a form notice from the Board informing him that his MPI had been set at five years and that he would appear before the Parole Board in February 1980 for release consideration. No reasons for the decision were stated on the form notice. On March 3, 1976, twelve days after Coralluzzo commenced the instant action, the Board sent him a second notice which stated the following reasons for its decision:
"The case history makes it reasonable to conclude that this man's involvement in narcotics traffic is deep-rooted and high level. Permanent separation from drugs seems improbable for five years."
Coralluzzo contends that his involvement in the narcotics traffic was far from "deep-rooted and high level", and that the Board extrapolated this from erroneous statements in his prison file which asserted that he was involved with organized crime. We cannot say that this contention is altogether speculative. Coralluzzo obtained from the state court at the time he was sentenced an order striking from his probation report an unsupported reference to his connections with certain families of organized crime.
On February 20, 1976, Coralluzzo commenced the instant civil rights action pursuant to 42 U.S.C. § 1983 (1970). He sought a declaratory judgment that the MPI procedure had violated his due process rights and an order directing the Board to reconsider his application for release in a manner consonant with due process requirements. He contended, inter alia, that the Board improperly had failed to inform him of the reasons for its decision and the evidence upon which it had relied, and that the Board should have given him an opportunity to examine the evidence in his file. In an opinion filed August 6, 1976, as amended October 6, 1976, Chief Judge Curtin held that the Board's post facto statement of reasons was an insufficient remedy for its initial due process violation; he ordered the Board to grant a new MPI hearing to be followed with a statement of reasons; and he ordered the Board to "disclose to the plaintiff all of the evidence, in unabridged form, which may be considered against him, absent a showing of good cause for keeping the information secret." 420 F. Supp. 592, 596. From that order, the Board and its members have appealed.
In view of the claims of the parties and the decision of the district court, we are presented with the threshold question whether the prisoner has an interest at stake in the MPI determination sufficient to warrant due process protection. We hold that he does. This holding follows as a sequel to our decision in United States ex rel. Johnson v. Chairman, New York State Board of Parole, 500 F.2d 925 (2 Cir.), vacated as moot, 419 U.S. 1015, 95 S. Ct. 488, 42 L. Ed. 2d 289 (1974). There, in light of the Supreme Court's decision applying the due process clause to parole revocation proceedings, Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972), we held that prospective parole entails a liberty interest commanding due process recognition. We stated, "Whether the immediate issue be release or revocation, the stakes are the same: conditional freedom versus incarceration." 500 F.2d at 928. See Zurak v. Regan, 550 F.2d 86 (2 Cir.), cert. denied, 433 U.S. 914, 97 S. Ct. 2988, 53 L. Ed. 2d 1101, 45 U.S.L.W. 3841 (1977); cf. Williams v. Ward, 556 F.2d 1143, 1158-59 (2d Cir. 1977). The same interest in conditional freedom is at stake at a MPI hearing. As we said in Walker v. Oswald, 449 F.2d 481 (2 Cir. 1971), the MPI proceeding is "an integral part of the parole release process."*fn2 Moreover the statutory scheme holds out the possibility of immediate release at the MPI stage. At least with respect to the preliminary question of the applicability of due process, the MPI and parole release determinations are distinguishable in immaterial degree only, not in kind.
The Board contends that the MPI proceeding is materially different from the various parole release situations dealt with in our prior decisions because the prisoner, having no reason to expect "imminent liberty", presents only a "very tenuous" liberty interest. To be sure, the principal purpose of the § 212(2) procedure is to facilitate the scheduling of a later parole release hearing and as an incident of that to establish a minimum period of imprisonment. Depending on the individual case that minimum period may exceed one year. But we find no indication either in Johnson or in the Supreme Court's recent decisions dealing with liberty interests of prisoners, see Meachum v. Fano, 427 U.S. 215, 224-25, 49 L. Ed. 2d 451, 96 S. Ct. 2532 (1976); Wolff v. McDonnell, 418 U.S. 539, 555-58, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974); Morrissey v. Brewer, 408 U.S. 471, 480-82, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972), that a substantial possibility of immediate release is the sine qua non of a cognizable liberty interest. To draw the constitutional line where the statistics show it to be more likely than not that the particular proceeding will result in immediate release could risk insulating from due process protection those stages of the parole release process which as a practical matter most seriously affect a prisoner's liberty interest.
The MPI hearing strikes us as involving precisely this type of liberty interest. It results in an effective minimum period of imprisonment. The statute provides the prisoner with no practical method of obtaining reconsideration by the Board until the date it has set for the parole release hearing arrives. The MPI hearing therefore may be the crucial component in the series of judicial ...