the manner in which he has used his time in prison, his physical and emotional health, his intra-personal relations with the prison staff and other inmates, and the prisoner's parole plan -- his employment and residence arrangements and the environment to which he plans to return. The Board possesses the expertise and experience for ascertaining which factors are determinative of the unique situation presented by each applicant. Scarpa v. United States Board of Parole, supra. The statute, 18 U.S.C.A. §§ 4202, 4203, expressly gives the Board broad discretion in determining parole eligibility in recognition of the fact that many variables, some of an intangible and subjective nature, go into making an informed and intelligent parole decision. In short, in providing for parole, Congress realized the difficult and imprecise nature of parole prognosis.
Therefore, absent an abuse of discretion amounting to the denial of a constitutional right, and absent a decision that is clearly inconsistent with the broad statutory criteria, a court will not review the Board's discretion in denying an application for parole. The courts should not serve as a super-Parole Board.
There remains petitioner's contention that the Board's mode of operation violates the due process clause of the fifth amendment. There is a difference of opinion among the lower federal courts as to whether due process applies to parole decision-making, and if it does, the nature of the process that is due.
In Morrissey v. Brewer, 1972, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 the Supreme Court held that although parole revocation does not call for the full panoply of rights due a defendant in a criminal proceeding, revocation of a parolee's liberty falls within the protection of the due process clause. Thus, the court held that a revocation hearing must be conducted reasonably soon after the parolee's arrest and that minimum due process requirements are: (1) written notice of the claimed violations of parole; (2) disclosure to the parolee of the evidence against him; (3) opportunity to be heard in person and to present witnesses and documentary evidence; (4) the right to confront and cross-examine adverse witnesses, unless the hearing officer specifically finds good cause for not allowing confrontations; (5) a neutral and detached hearing body such as the traditional parole board; and (6) a written statement by the factfinders as to the evidence relied on and the reasons for revoking parole.
Morrissey, however, does not dictate that prisoners looking forward to release on parole be equated with paroles facing loss of their conditional freedom. While a necessary precondition to revocation of parole and reincarceration is a factual finding that a parolee has violated a condition of his parole, the parole release decision is based on a complex of tangible and intangible, of objective and subjective, factors having to do with psychiatry, criminology, psychology, penology and human relations. In Morrissey, the Court, in footnote 8 of its opinion, 408 U.S. at 482, 92 S. Ct. 2593, 33 L. Ed. 2d 484, intimated that the due process requirements established therein for parole revocation proceedings need not be extended to those still incarcerated seeking parole. The Supreme Court, quoting approvingly from United States ex rel. Bey v. Connecticut State Board of Parole, 2 Cir. 1971, 443 F.2d 1079, 1086, vacated as moot, 1971, 404 U.S. 879, 92 S. Ct. 196, 30 L. Ed. 2d 159, a case which sharply distinguishes between parole revocation proceedings and initial parole decision-making, stated: "It is not sophistic to attach greater importance to a person's justifiable reliance in maintaining his conditional freedom so long as he abides by the conditions of his release, than to his mere anticipation or hope of freedom." 408 U.S. at 482, n.8, 92 S. Ct. at 2601. This implies at the very least that the Court believes the parole decision-making process does not call for the full panoply of rights due a parolee in a parole revocation proceeding, cf. Wolff v. McDonnell, 1974, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 and may indicate that the Court views the type of interest involved here, i.e., the "mere anticipation or hope of freedom," as not being the type of private interest qualifying for due process protection, cf. Board of Regents v. Roth, 1972, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548.
In Scarpa v. United States Board of Parole, 5 Cir. 1973, 477 F.2d 278, (en banc), vacated and remanded for consideration of question of mootness, 1974, 414 U.S. 809, 94 S. Ct. 79, 38 L. Ed. 2d 44, the Court of Appeals for the Fifth Circuit held that due process rights do not attach to Parole Board proceedings dealing with the grant or denial of parole.
The court reasoned as follows:
"The emerging and underlying principle is clear; once a cognizable benefit is conferred or received, governmental action must not be employed to deprive or infringe upon that right without some form of prior hearing. We are unaware, however, of any authority for the proposition that the full panoply of due process protections attaches every time the government takes some action which confers a new status on the individual or denies a request for a different status.