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THEODORE GREEN v. CECIL MCCALL (06/24/87)

decided: June 24, 1987.

THEODORE GREEN, DANIEL PORTER, O/B/O THEMSELVES AND ALL FEDERAL PRISONERS INCARCERATED WITHIN THE DISTRICT OF CONNECTICUT, PLAINTIFFS-APPELLEES,
v.
CECIL MCCALL, IN HIS CAPACITY AS CHAIRMAN, UNITED STATES PAROLE COMMISSION, AND BENJAMIN J. MALCOLM, GEORGE REED, DOROTHY PARKER, JOSEPH A. NARDOZA, J. ROBERT COOPER, ROBERT VINCENT, WILLIAM E. AMOS, AUDREY A. KASLOW, IN THEIR CAPACITY AS MEMBERS OF THE UNITED STATES PAROLE COMMISSION, AND THE UNITED STATES PAROLE COMMISSION, DEFENDANTS-APPELLANTS



Appeal from a judgment of the United States District Court for the District of Connecticut, T.F. Gilroy Daly, Chief Judge, permanently enjoining defendants to comply with procedures consistent with those specified in Drayton v. McCall, 584 F.2d 1208 (2d Cir. 1978), for parole rescission hearings. Affirmed.

Author: Kearse

Before: LUMBARD, KEARSE, and PRATT, Circuit Judges.

KEARSE, Circuit Judge:

Defendants United States Parole Commission and its chairman and members (collectively the "Commission") appeal from a judgment of the United States District Court for the District of Connecticut, T.F. Gilroy Daly, Chief Judge, permanently enjoining the Commission to comply with procedures consistent with those specified by this Court in Drayton v. McCall, 584 F.2d 1208 (2d Cir.), ("Drayton"), rev'g, 445 F. Supp. 305 (D. Conn. 1978), for parole rescission proceedings. On appeal, the Commission contends that decisions of the Supreme Court and this Court since Drayton have eroded the validity of Drayton's holdings (1) that an inmate whose early effective release date has been set has a liberty interest protectable under the Due Process Clause of the Fifth Amendment to the Constitution, and (2) that due process requires that, to the extent consistent with institutional safety, such an inmate be given the rights to be represented by counsel, to call witnesses, to confront and cross-examine adverse witnesses, and to have a de novo hearing concerning certain factual issues, before his early release date may be rescinded. We conclude that post-Drayton decisions of the Supreme Court and this Court have not undermined Drayton's analysis, and, accordingly, we affirm the judgment of the district court.

I. BACKGROUND

Under the federal parole system as it presently exists, see 18 U.S.C. §§ 4201-4218 (1982) (repealed effective Nov. 1, 1987, Pub. L. No. 98-473, tit. II, §§ 218(a)(4), 235(a)(1), 98 Stat. 2027, 2031 (1984), as amended by Pub. L. No. 99-217, § 4,99 Stat. 1728 (1985)), the Commission conducts an initial parole hearing for most prisoners shortly after their incarceration, 18 U.S.C. § 4208(a), following which the Commission may set an "effective date of parole," i.e., a date not more than six months away, 28 C.F.R. §§ 2.1(h), 2.12(b) (1986), or set a presumptive parole date as much as 15 years away, id. § 2.12(b), or schedule a hearing for reconsideration after years, id. If an "effective date of parole" (which we also refer to as an "early release date") is not set at the initial hearing, it may be set at a subsequent hearing. 18 U.S.C. § 4208(h); 28 C.F.R. § 2.14 (1986).

Plaintiffs Theodore Green and Daniel Porter commenced this suit, on behalf of themselves and others similarly situated, as federal prisoners incarcerated within the District of Connecticut whose early release dates had been set by the Commission but who had not yet been released from prison ("parole grantees"). At issue in this case are the hearing procedures to be followed when, after an early release date has been set but prior to the arrival of that date, the Commission is notified that the parole grantee has been guilty of new misconduct or receives other new unfavorable information and wishes to consider whether to rescind the early release date.

A. Drayton and its District Court Predecessors

In 1972, the Supreme Court ruled that a parolee, i.e., one already released form prison on parole, had certain due process rights that must be respected before his parole could be revoked. These included the right to written notice of claimed parole violations, disclosure of the evidence against him, and a hearing before a neutral body such as a traditional parole board at which he could be heard, present witnesses, and confront and cross-examine adverse witnesses. See Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972). The Court extended these requirements to probation revocation proceedings and added a requirement that, within the responsible agency's discretion, the parolee was entitled to representation by counsel. Gagnon v. Scarpelli, 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756 (1973).

Thereafter, in a series of habeas corpus petitions filed in the District of Connecticut, a number of parole grantees, contending that they were entitled to the same protections as parolees, alleged that their due process rights were being violated by the Commission's parole rescission procedures. In the first such case, Williams v. United States, 383 F. Supp. 402 (D. Conn. 1974), the district court held that the due process rights accorded in parole revocation hearings were also required in parole rescission hearings; these included advance notice of the hearing, the assistance of counsel, and the opportunity to call witnesses and to confront and cross-examine adverse witnesses. Id. at 405. In at least five subsequent cases, the court found that the Commission had denied each petitioner the due process rights outlined in Williams. See, e.g., Green v. Nelson, 442 F. Supp. 1047, 1058-60 (D. Conn. 1977) (finding that the Commission had provided Theodore Green, one of the named plaintiffs in the present action, with a constitutionally inadequate parole rescission hearing and ordering his release on parole), and cases cited therein; Porter v. Wilkinson, No. B-77-245 (D. Conn. Mar. 1, 1978) (granting relief to Daniel Porter, the other named plaintiff in this case, on the same grounds). None of these decisions was appealed by the Commission.

In 1978, when the district court in Drayton held that the Commission had once again violated a parole grantee's due process rights by conducting a parole rescission hearing without the requisite procedural protections, 445 F. Supp. at 311, the Commission appealed. As discussed in greater detail in Part II below, this Court approved the district court's holding that a parole grantee has a protectable liberty interest entitling him to procedural due process in parole rescission hearings, 584 F.2d at 1214-18, but concluded that not all of the procedures required for parole revocation hearings were required for parole rescission hearings. Id. at 1218-19. Instead, in order to balance the parole grantee's interest against the appropriate governmental interest, id. at 1219, we ruled that the rights to have the evidence disclosed, to testify, and to present evidence need not be accorded if to do so would threaten institutional safety; and we ruled that the right to confront and cross-examine adverse witnesses should be recognized only as to such witnesses as are willing to testify, id. at 1220.

B. The Decision Below

In 1978, prior to our decision in Drayton, Green and Porter filed the present class action seeking, inter alia, an injunction requiring the Commission to follow the procedures found constitutionally mandated in the district court's prior cases. The district court entered a preliminary injunction ordering the Commission to provide constitutionally adequate procedures as required in its Williams line of decisions.

Final judgment was entered in March 1986, permanently enjoining the Commission to follow procedures consistent with those set forth in Drayton. The court rejected the Commission's contention that injunctive relief was unnecessary because the Commission had changed its written policies governing parole rescission hearings, finding that many of the Commission's written policies were not always implemented. The court found, as one example, that in connection with 21 of 44 parole rescission hearings held within the district between February 1983 and February 1985, the Commission had failed to send the parole grantee the advance notice of hearing mandated by both the preliminary injunction and Commission regulation, 28 C.F.R. § 2.34(a). Because of this and other evidence that the Commission was not fully complying with the ordered procedural requirements, the court permanently enjoined the Commission to give the parole grantee, inter alia, (1) written notice of action scheduling the hearing, describing the charges, and stating the grantee's procedural rights; (2) disclosure of documents pertaining to the charges, unless this would threaten institutional or personal safety; (3) a de novo hearing before a neutral and detached hearing body; (4) the right to counsel; (5) an opportunity to be heard in person and to call witnesses, unless this would threaten institutional safety; (6) the right to confront and cross-examine adverse witnesses, unless this would threaten institutional safety; and (7) a written statement of the results of the hearing.

This appeal by the Commission followed.

II. DISCUSSION

On appeal, the Commission urges that we reverse the judgment of the district court, contending principally that post-Drayton developments in the law establish that (1) a parole grantee has no protectable liberty interest, and (2) even if the parole grantee does have such an interest, its protection does not require implementation of several of the procedures ordered by the district court. We reject both contentions.

A. The Existence of a Protectable Liberty Interest

The Commission argues that certain Supreme Court decisions, principally that in Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979) ("Greenholtz"), and decisions of this Court in the wake of Greenholtz, have in effect overruled Drayton, and that in light of these more recent ...


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