involvement if the members thought it was important to the decision whether to grant Ready parole. Their failure to seek such information about an event brought to their attention precludes them from relying upon subsequently discovered information to rescind Ready's parole.
This case is distinguishable from that of Bonomo v. McCall, Civil No. 79-1396 (M.D.Pa. Dec. 10, 1979) in which this Court held that the Parole Commission could reopen a prisoner's case based upon the occurrence of an institutional disciplinary violation which occurred prior to the setting of a final parole date because it did not appear in that case that the Commission had any notice of the violation when it set the parole date. In this case, the Commission had before it Ready's letter concerning the events at Leavenworth and chose not to pursue the matter. The Commission cannot now, under the guise of new information, rescind Ready's parole after receiving letters from the Internal Revenue Service and the United States Attorney which strongly objected to Ready's release on parole.
The information concerning Ready's use of subpoena and his adjustment to the community treatment center was new information within the meaning of 28 C.F.R. § 2.34 (1978) because there is nothing in the record to indicate the Commission was aware of the information prior to the decision to hold a rescission hearing. Because the Court cannot determine whether the Commission would have moved to rescind Ready's parole or whether it would have rescinded Ready's parole if it had not considered the letters from the I.R.S. and the U.S. Attorney concerning the Leavenworth tax fraud, the Court will order Ready released on parole unless a new determination is made that the new information warrants a rescission hearing.
Since Ready may face a new hearing, the Court will address Ready's due process claims. Ready argues that the Commission's policy of excluding witnesses for the prisoner and of the prohibiting cross examination of adverse witnesses in all parole rescission cases violates a prisoner's Fifth Amendment rights to due process of law. Respondents contend that the giving of written notice of the information to be considered at the parole rescission hearing, disclosure of copies of the final progress report of the community treatment center and letters from the U.S. Attorney and the I.R.S., the opportunity to be represented by an attorney who is only allowed to make a statement at the conclusion of the hearing, and the opportunity to submit written statements of witnesses constitute sufficient due process. The Commission's position is supported by Courts of Appeals' decisions in the Seventh and Tenth Circuits, Robinson v. Benson, 570 F.2d 920 (10th Cir. 1978); Christopher v. United States Board of Parole, 589 F.2d 924 (7th Cir. 1978). The Court of Appeals for the Second Circuit has held that a prisoner facing parole rescission is entitled to procedural protection approaching that of a person facing parole revocation. Drayton v. McCall, 584 F.2d 1208 (2d Cir. 1978).
The Commission submits that the right to call witnesses and the right to confront adverse witnesses which are provided in parole revocation hearings, Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972) are not applicable to parole rescission hearings because the prisoner's liberty interest in release on parole on the effective date of parole is not as great as the liberty interest of a person currently on parole. In addition, the location of a parole rescission hearing, which is held in the prison, is similar to that of prison disciplinary proceedings at which there is a limited right to call witnesses and no right to cross examine witnesses. Wolff v. McDonnell, 418 U.S. 539, 567, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974).
In determining whether a prisoner facing parole rescission should be afforded the opportunity to call witnesses and to cross examine adverse witnesses, the Court must find the proper balance between the interests of the prisoner and of society. Drayton v. McCall, 584 F.2d 1208, 1218 (2d Cir. 1978); Christopher v. United States Board of Parole, 589 F.2d 924, 929-30 (7th Cir. 1978); see Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976); Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). The grant of an effective date of parole does not contain the same expectation of liberty as does actual release on parole, see Christopher v. United States Board of Parole, 589 F.2d 924, 930 (7th Cir. 1978). Although a prisoner in Ready's situation can legitimately believe he is closer to release from incarceration than one who has been denied parole, that belief does not warrant more procedural protection than was provided to Ready in this case.
Once an effective date of parole is set, parole may be delayed under certain circumstances not here relevant, 28 C.F.R. § 2.29(c) (1978); 28 C.F.R. § 2.34(a) (1979), but may not be rescinded unless the prisoner is found to have committed an institutional disciplinary violation, 28 C.F.R. § 2.34(a), or upon receipt of new information adverse to the prisoner and unrelated to a prisoner's institutional misconduct. 28 C.F.R. § 2.34(b) (1978); 28 C.F.R. § 2.28(f) (1979). This led the Court of Appeals for the Second Circuit to conclude that a prisoner's interest in his future parole is protected by the Due Process Clause even under Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976) and Montanye v. Haymes, 427 U.S. 236, 96 S. Ct. 2543, 49 L. Ed. 2d 466 (1976) which require a justifiable expectation in law or in regulations that unpleasant consequences will befall a prisoner only under certain circumstances provided in the law or regulations. Drayton v. McCall, 584 F.2d 1208, 1214 (2d Cir. 1978).
This Court is unable to reach that conclusion. The two grounds for moving to rescind parole institutional misconduct and new information adverse to the prisoner unrelated to institutional misconduct relate to the same matters considered by the Commission when the decision to grant parole is made. Had the new information been received prior to rather than after the Commission set an effective date of parole, a prisoner would receive only the procedural protection afforded a prisoner facing the Commission for the first time. The fact that adverse information was not known to the Commission until after an effective date of parole had been set does not give a prisoner more procedural rights.
Until actually released on parole, a prisoner can legitimately expect release only if he does not violate institution rules and if no new adverse information is received by the Commission. While he has control over the former, a prisoner has no control over the latter and his hope that no adverse information will reach the Commission is not entitled to the procedural protection afforded a parolee. This is true even if, as in Ready's case, he was at a community treatment center and was experiencing more freedom than he enjoyed at Lewisburg. Because the grant of parole rests in the discretion of the Commission and because the Commission considers new information up to the moment of release, the Court concludes that the individual conditions of confinement to which a prisoner is subjected prior to release do not warrant different measures of procedural protection before parole may be rescinded. The constitution does not require different rules for prisoners at Lewisburg Penitentiary, Allenwood Prison Camp, or community treatment centers.
The government's interest in the parole rescission setting is no less than its interest in the original parole situation. As set forth in Christopher v. United States Board of Parole, 589 F.2d 924 (7th Cir. 1978), the Government has a substantial interest in the relatively quick rescission of parole if it is discovered that the prisoner is an improper candidate for parole. This interest is particularly strong if the Government discovers that its decision to grant parole was based on false premises. In addition, the Government has a strong interest in rescinding an improper determination that a prisoner is to be paroled because there is the chance that the public will suffer when such a person is released. Christopher v. United States Board of Parole, 589 F.2d 924, 930-31 (7th Cir. 1978). The Government's interests are served by a proceeding which is relatively expeditious and which provides a factual basis for the Commission to exercise its expertise in determining whether the rescission of parole is warranted.
The attendance of defense witnesses who are able to provide relevant information is not constitutionally mandated in order to provide a sufficient factual basis to make a rescission decision. Ready was given the opportunity to present written statements of witnesses whom he felt would be favorable to him, but Ready did not do so. While personal testimony might be preferable, the use of substitutes such as written statements does not deprive a prisoner of due process. Nothing in the Commission's regulations prohibits the use of witnesses if the Commission is not satisfied with written statements. In any event, Ready is not in a position to complain about the inadequacy of written statements because he did not submit any witness's statements.
Ready also seeks the right to cross examine witnesses and to call adverse witnesses. This right is provided in parole revocation hearings unless the hearing officer specifically finds good cause for not allowing confrontation. Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 2604, 33 L. Ed. 2d 484 (1972). In contrast, a prisoner facing institution disciplinary proceedings has no right to confront adverse witnesses either by calling them as witnesses or by cross examination. Baxter v. Palmigiano, 425 U.S. 308, 321-22, 96 S. Ct. 1551, 1559-60, 47 L. Ed. 2d 810 (1976); Wolff v. McDonnell, 418 U.S. 539, 567, 94 S. Ct. 2963, 2980, 41 L. Ed. 2d 935 (1974). The added procedural protection of cross examination provided in revocation cases is appropriate because the parolee is facing the loss of an important interest freedom from physical confinement. A prisoner in Ready's position, however, faces the loss of only an expectation of freedom. That expectation is conditioned upon not only continued good behavior, 28 C.F.R. § 2.34(a) (1978); 28 C.F.R. § 2.34(a) (1979), but is also subject to review if new adverse information is received. 28 C.F.R. § 2.34(b)(1) (1978); 28 C.F.R. § 2.28(f) (1979). Since the nature of the loss to the prisoner is less and the grounds permitting that loss are the same as go into the decision to grant or deny parole, the right of confrontation and cross examination is not required. Accord Robinson v. Benson, 570 F.2d 920, 923 (10th Cir. 1978).
The Court recognizes that concerns of institutional safety and promptness which lead the Supreme Court to conclude that cross examination and confrontation of adverse witnesses was not required in prison disciplinary proceedings may be absent in some rescission cases. See Drayton v. McCall, 584 F.2d 1208, 1220 (2d Cir. 1978). This does not alter the Court's conclusion that confrontation and cross examination need not be provided. Even if confrontation and cross examination could be provided without severely slowing the rescission process or increasing the danger to witnesses, they are not necessary because the interest of the prisoner facing rescission is not entitled to the same degree of protection as that required for the parolee facing revocation because the threatened deprivation to the prisoner is less severe than the possible loss to the parolee. Further, the Court's view is that the risk of an erroneous decision by the Commission is not substantially increased because of the absence of confrontation and cross examination of adverse witnesses. See Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18 (1976). So long as the prisoner has the opportunity to contest the allegations of adverse witnesses, the Commission has sufficient information to exercise properly its discretion whether to rescind parole. The Court, therefore, concludes that the Commission's decision prohibiting Ready from calling witnesses and confronting and cross examining adverse witnesses did not violate Ready's Fifth Amendment right to due process of law.
Because of the Commission's improper application of 28 C.F.R. § 2.34(b) (1978) in deciding to hold a parole rescission hearing, Ready's petition for writ of habeas corpus will be granted to the extent that he shall be released on parole pursuant to the Commission's notice of action dated May 2, 1978 on March 1, 1980 unless the Commission decides pursuant to 28 C.F.R. §§ 2.28(f) and 2.34 (1979), and without considering the allegation of Ready's involvement in the Leavenworth fraud, that a rescission hearing is appropriate and holds a new rescission hearing before that date.
© 1992-2004 VersusLaw Inc.