of his freedom if his parole is not revoked; he still must answer the new criminal charges filed against him.
The Court in Morrissey envisioned a two-stage revocation process. "The first step in a revocation decision . . . involves a wholly retrospective factual question: whether the parolee has in fact acted in violation of one or more conditions of his parole." 408 U.S. at 479, 92 S. Ct. at 2599. If the fact-finder determines that a parole violation has occurred, the parole board must then ask a second question: "should the parolee be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation?" Id. at 480, 92 S. Ct. at 2599.
When this process involves an alleged technical parole violator, the Board plays a unique role. It is the sole finder of fact, and alone determines whether a parole violation has in fact occurred. Should the board decide that no violation has occurred or that, even though a violation has occurred, revocation is not warranted, the technical violator will be returned to the conditional liberty he previously enjoyed.
When the Board is called upon to deal with a parolee whose only alleged parole violation is the commission of a new crime, however, its role changes significantly. No longer is it the only finder of fact. Indeed, at the first stage of the final revocation process, it is not a finder of fact at all. The crucial and "wholly retrospective factual question" that must be answered, Morrissey v. Brewer, supra, 408 U.S. at 479, is whether a parole violation has occurred, in other words, whether the parolee has in fact committed a new crime. The Board does not answer that question; the criminal justice system does, and "[the] Board takes the position that it is bound by the determination of guilt as determined in the criminal court system wherein the parolee was convicted." Doc. #45, Affidavit of Hermann Tartler, P 8.
The Board cannot begin to apply its own expertise to the ultimate revocation decision until the criminal justice system has answered that question.
It therefore appears that to hold a revocation hearing prior to trial for a parolee who is accused of a new crime is to conduct an exercise of futility. Under the present administrative scheme, the Board does not know prior to trial whether the parolee has in fact violated the terms and conditions of his parole, for the trial is dispositive of that issue. Thus, the final parole revocation inquiry envisioned by the Court in Morrissey cannot properly begin until the Board learns whether or not the parolee has violated his parole. The Board does not learn that fact until the guilt or innocence of the parolee has been determined within the criminal justice system.
The touchstones for the application of the Due Process Clause of the Fourteenth Amendment are reasonableness and fairness in view of all the facts and circumstances of a particular case. Barker v. Hardway, 283 F. Supp. 228, 237 (S.D. W.Va.), aff'd, 399 F.2d 638 (4th Cir. 1968), cert. denied, 394 U.S. 905, 89 S. Ct. 1009, 22 L. Ed. 2d 217 (1969); see Hyland v. Procunier, 311 F. Supp. 749, 750 (N.D. Cal. 1970). In the instant case, the most important circumstance that this Court must consider in deciding whether the requirements of due process have been satisfied is the Board's reliance on the criminal justice system for a determination of the fact of a parole violation. This circumstance radically differentiates the situation of a parolee accused of a new crime from that of a technical violator. "Reasonable" time parameters for the latter's final revocation hearing are therefore not necessarily "reasonable" time parameters for the final revocation hearing of the former. Given the Board's reliance on the outcomes of the criminal justice system, the final revocation hearing of a parolee accused of a new crime would be unreasonably delayed only if his right to a prompt and speedy trial were itself violated. See Klopfer v. North Carolina, 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967). Plaintiff does not make such a claim here and, in any event, I do not believe that the five-month delay between his arrest and conviction would support such a claim if plaintiff had in fact made it. See United States v. Lewis, 406 F.2d 486 (7th Cir.), cert. denied, 394 U.S. 1013, 89 S. Ct. 1630, 23 L. Ed. 2d 39 (1969). Accordingly, in light of all the circumstances and facts of this case, I hold that the Board did not violate plaintiff's due process rights by delaying his final parole revocation hearing until after his trial on the new criminal charges lodged against him.
The decision of the Court of Appeals for the First Circuit in Flint v. Mullen, supra,5 points to this result too. If it is constitutionally preferable to hold a final revocation hearing after trial, it is surely not unreasonable to do so when the trial itself has not been unreasonably delayed.
III. REVOCATION HEARINGS AFTER SENTENCING
Plaintiff further argues that the Board, by delaying his final revocation hearing until after his sentencing on the new criminal charges, committed an additional constitutional violation. In response, the Board, relying on Commonwealth v. Greer, 215 Pa. Super. 66, 257 A. 2d 317 (1969), which gave the term "conviction" a highly technical meaning that included sentencing as well as a finding of guilt, contends that it may properly wait until after sentencing to hold a revocation hearing for convicted parole violators. Until sentence is pronounced, the Board says, "conviction" is not complete. I do not find this argument persuasive. I prefer to give the term "conviction" its ordinary meaning, namely, a verdict or plea of guilty. That is also the meaning that the Pennsylvania Legislature gave the term when it authorized the Board to recommit "convicted parole violators." 61 P.S. § 331.21a(a). A verdict or plea of guilty provides the Board with all the information it needs to begin the parole revocation process, for it establishes the fact of a parole violation. It is then the Board's responsibility to determine whether or not revocation is justified. The Board has presented no compelling reason for waiting until after sentencing to make this determination. Accordingly, I hold that the Board must afford a convicted parole violator a final parole revocation hearing within a reasonable time after his guilt is established.
In the instant case, plaintiff's parole revocation hearing was held almost nine months after his conviction. Was this delay unreasonable? I believe that it was. In Morrissey v. Brewer, supra, the Supreme Court said that a "lapse of two months [between a parolee's initial detention and the final revocation hearing] . . . would not appear to be unreasonable." 408 U.S. at 488, 92 S. Ct. at 2604. In the instant case, a similar lapse of time between conviction and the final parole revocation hearing would not have been unreasonable. In Sutherland v. District of Columbia Board of Parole, 366 F. Supp. 270 (D. D.C. 1973), the Court held that a delay of five months in granting a hearing after conviction was unreasonable as a matter of constitutional law. In the instant case, the delay was almost seven months longer than that suggested in Morrissey, and almost four months longer than that found unconstitutional in Sutherland. In light of these cases, then, I hold that the revocation hearing afforded plaintiff was unreasonably delayed and that the delay therefore violated his Fourteenth Amendment right to a reasonably prompt final revocation hearing.
The decision of the Court of Appeals for the Fifth Circuit in Cook v. United States Attorney General, 488 F.2d 667 (5th Cir. 1974), does not dictate a contrary result. While the Court there found no constitutional violation, even though a much longer delay ensued between the lodgment of a detainer and a final revocation hearing than is the case here, it rested its decision on two factors not present in the instant case. In Cook, the detainer warrant had never been executed. Moreover, the plaintiff there did not show that he had been prejudiced by the delay. Here, the execution of the detainer is not in issue, and the plaintiff, in his affidavit, has recited facts which might permit at least a colorable inference that he has been prejudiced by the delay. Given these crucial factual differences between Cook and the instant case, I do not believe that Cook should control the result I reach here.
IV. THE ISSUE OF BAIL
In his final constitutional claim, plaintiff contends that the detainer lodged against him by defendants deprived him of his right to bail under the Eighth and Fourteenth Amendments. I find this argument without merit. The same plaintiff advanced the same claim, supported by the same arguments, in another case this Court recently decided. Burgess v. Roth, 387 F. Supp. 1155 (E.D. Pa. 1975). For the reasons stated therein, I hold that the detainer lodged against plaintiff by the defendants did not deprive him of his right to bail under the Eighth and Fourteenth Amendments. Burgess v. Roth, supra, 387 F. Supp. at 1162.
V. THE DAMAGE ISSUE
In the instant case, plaintiff has shown a violation of his Fourteenth Amendment rights. Nevertheless, an award of damages would be justified here only if defendants had disregarded clear and previously announced constitutional standards. The difficulty I have experienced in determining the extent to which the Morrissey standards apply to the instant plaintiff and similarly situated parolees has persuaded me that the application of those standards to parolees accused of new criminal offenses was not announced with sufficient clarity to justify an award of money damages.
An affidavit of Hermann Tartler, secretary of the Board, lends additional support to the conclusion that the Board acted in good faith and in reasonable reliance on the relevant constitutional standards when it decided to detain the present plaintiff. See Doc. #45, App. B, at paras. 6(d), 7. Except for assertions in the plaintiff's brief, assertions which are not sufficient to raise a material issue of fact, that affidavit stands uncontradicted in the present record. Moreover, the record reveals that the present regulations of the Board, first proposed in 2 Pa. B. 972, June 3, 1973 and now codified at 39 Pa. Code §§ 71.3 and 71.4, were modified prior to final adoption in an attempt to comply with the due process requirements of Morrissey. See 2 Pa. Bull. 1465, August 5, 1972. In these circumstances, to award money damages to the plaintiff would be to render a retroactive decision on new constitutional grounds. That practice is not favored in this Circuit. See Bauer v. Sielaff, 372 F. Supp. 1104, 1108 (E.D. Pa. 1974), and cases cited therein. Accordingly, I hold that plaintiff, even though he has prevailed on one of his constitutional claims, is not entitled to an award of money damages.
VI. THE SCOPE OF THIS DECISION
In view of the present extensive litigation on behalf of prisoners which challenges so many phases of the criminal justice and correctional systems, it is essential that trial court judges be especially cautious about writing overly expansive constitutional opinions which go far beyond the factual parameters of the particular case they are deciding. When a judge writes overbroadly, he may articulate doctrines for other unspecified factual situations with implications that he did not anticipate. Often, if he had foreseen those implications, he would have been more reluctant to announce "eternal constitutional principles." In this case, plaintiff's counsel take the broadest approach possible and urge the Court to promulgate doctrines which extend far beyond the factual contours of this case. This approach is probably good advocacy for one's client, but the trial judge's role differs from that of the advocate. In this case, my ruling of unconstitutionality is primarily focused on the extensive delay between conviction and sentencing -- a period of nine months. I am holding merely that a delay of such magnitude without affording a detained parolee a final revocation hearing is a constitutional violation.
Of course, there may be circumstances where the original criminal trial is so long delayed that the delay itself would be a violation of defendant's constitutional right to a speedy trial on the "new" criminal charges. See p. 410, supra. Such a delay would, a fortiori, be a violation of defendant's right to a reasonably prompt revocation hearing. In this case, however, I do not find that the instant plaintiff was denied his right to a speedy trial. Thus there was no attendant violation of his right to a reasonably prompt revocation hearing.
Plaintiff has shown that the Board, by delaying his final parole revocation hearing for nine months after his conviction on the new criminal charges lodged against him, has violated his constitutional right to due process. He is therefore entitled to summary judgment on that issue. On all other issues, however, his motion for summary judgment will be denied, and the Board's motion for summary judgment will be granted. Counsel for plaintiff and defendant are directed to submit to the Court, within 20 days of the filing of this opinion, a proposed form of order not inconsistent with this opinion.
The foregoing opinion shall constitute the Court's findings of fact and conclusions of law as required by Rule 52(a) of the Federal Rules of Civil Procedure.
A. Leon Higgibotham