Joseph Menechino v. Russell G. Oswald, as Chairman of the New York State Board of Parole, New Yorkstate Board of Parole
430 F.2d 403
2d Cir.
1970
Check Treatment

*2 case would be reconsidered in 18 months. Hoffman, Atty. Gen., Hillel Asst. New July, appellant In commenced an (Louis City Lefkowitz, Atty. York J. Supreme Article York, Gen. of the State New Samuel Court, claiming New York County, Hirshowitz, Atty. Gen., A. First Asst. his federal and state constitutional City, brief), New on York for de- rights had been violated the absence fendants-appellees. legal May, counsel at his revo- hearing, cation March, FEINBERG, Before ANDERSON and 1967, hearing constituted cruel and un- Judges, MANSFIELD, Circuit Dis punishment usual violation his Judge.* trict Eighth rights. Amendment The com- plaint hearing. demanded a new An ini- MANSFIELD, Judge. District tial decision in favor August appeal by This Court on a state from 1968, was, judgment on June reversed district dismiss- court ing Appellate complaint Division, Depart- his under First the Federal Civ- ment, Rights Law, application, il which denied his hold- U.S.C. § general Judgment Declaratory Act, he had “no constitution- U.S.C. § representation by question al raises the counsel at whether a is entitled before under the Four- meantime, Board of procedural Parole.” In teenth Amendment due September, 1968, again rights being appellant upon ap- inter- peared before the Board viewed and without considered New York counsel again and was denied pa- State Board of with the Parole for release on proviso that his ease be considered in role termination of the sen- imposed by another 18 months. tence For the court. reasons hereinafter stated we affirm the August 1969, appellant commenced judgment below. present court, action in the district invoking jurisdiction pursuant its dispute. The essential facts not in 1331, 1343(3), U.S.C. Appellant imprisoned 1361 and §§ U. in Green Haven Prison, Y., Stormville, complaint alleges under a S.C. N. sen- 1983. His years imposed defendants,

tence from 20 in violation life of his constitu- May rights, on ty tional the New York Coun- determined pursuant to Court of General Sessions qualified parole, “Not guilty charge plea of mur- which, effect, constitutes a denial degree. having der in the After second liberty, adhering without paroled Au- Prison on been gust Attica requirements minimum delin- was declared process: (i) charges; notice quent by the Parole Board on December prison. (ii) 31, 1964, a fair returned to and was May appeared without 1965 he to cross-examination and to before members of compel favorable evidence and consorting individuals admitted witnesses; the attendance of favorable having giving mis- records and criminal grounds (iii) specification leading parole officer. to his information underlying which the facts (Complaint was based” determination Following parole in revocation of his P3). May, 1965, appellant appeared March

* designation. York, sitting by District New the Southern Of judg- declaratory suitably employed complaint self-sustaining seeks em- ployment (N.Y. so released” ment to the effect Correc- tion Law § “plaintiff Due under the is entitled the Fourteenth Process Clause In the case aof sentenced in charges, (i) notice of Amendment to term, to an indeterminate *3 including summary of a substantial appellant, such as the infor- collection of reports the and before the evidence forming mation the dossier used as the including Board, (ii) a fair for basis the com- Board’s decision of to cross-examina- the immediately mences almost after is and to tion and confrontation required sentenced. The Board is to 'oiA compel at- and favorable evidence tain “while still the case is fresh” infor-\ witnesses, and of favorable tendance may “complete mation as obtaina- grounds specification (iii) of respect prisoner, ble” includ- underlying and which facts complete crime, statement of * * based; is determination sentence, the nature of the the names of judge attorney, pro- and district questions raised of the Consideration report, reports bation and as to the understanding requires by appellant “prisoner’s social, physical, mental and procedures of the function and of the psychiatric history” (N.Y. condition and Board, Parole. The York of New Board 211). pris- Correction Law Before § appoint- consists of five members which parole oner is on released Board (N.Y. Executive ed Governor report further must obtain a from the Consol.Laws, McKinney’s Law, § c. prison pris- warden each in which the .study 241), required personally “to is * * * * * * prison- oner has confined as to the deter- prisoners institution, conduct er’s in the awith pa- their ultimate fitness to be mine any detailed statement as to infractions Law, (N.Y. McKin- roled” Correction prison discipline; rules or the extent 210). To- ney’s ConsoLLaws, c. § prisoner responded to which the has purpose the members have the ward this duty meeting improve made efforts his and mental prisons and at such condition; moral his then to- attitude necessary for a full times society, judge ward him, sentenced who eligible study prisoners of the cases attorney prose- the district who determining parole and of for release on him, policeman ar- cuted who and to conditions “when and under what him; his toward his rested attitude (N. may granted” whom such previous crime and career. criminal 210). Correction Law Y. § Board is to have be- also prisoner parole in Release report superintendent it a from the fore “solely initia- on the New York done giving prison- industries (N.Y. parole” the board tive prison, industrial record in er’s 214) applica- and no Law § Correction the kind of work recommendation as to may or on made perform and at he is best fitted prisoner. The Board behalf likely succeed. he is most which discretionary given power broad Lastly, must have a also good grant parole, reward not as a any psy- port physical, as to mental performance aof or efficient conduct chological examination “only board prisoner’s duties, if the but months been made within two has opinion there is is of eligibility parole. of his that, pris- probability if reasonable an inde- released, remain sentenced to After he will live oner is year, violating liberty term has served one the law terminate without eligible incompatible with when he become date release is that his “discretionary society” (N.Y. Correction welfare of (N.Y. parole” 213). Board Correction board members of the Law § 212). becomes he will When Law § also be “satisfied must eligible practice the Board’s as revealed The Board’s exercise of this discre appearance tionary power in its rules is to schedule his has been held highest three or more Board members York’s court be absolute and visiting beyond long in- where institution review as as the court carcerated, statutory positive time inter- at which he is Board violates re (N.Y. quirement. case considered viewed Hines v. State Board of Pa Regs. Rule role, Code of & Rules N.E.2d N.Y. provides: (1944); Briguglio expressly 155.9 v. New State Parole, N.Y. N.Y.2d hearings. “155.9 Attendance S.2d 246 N.E.2d Once attorney any nor Neither inmate’s although prisoner, released on permitted party at- will be prison walls, outside continues to be speak person in- tend legal custody of the warden against him at mate’s behalf *4 prison from he is is which released and meeting of Board Parole at of subject being to to retaken and returned parole is which the release on inmate’s custody expiration until of actual being The board shall considered. (N.Y. term of sentence Correc complete respect have discretion 213); People Natoli tion Law rel. ex § presence persons of Lewis, 478, 41 N.E.2d 287 N.Y. .v. hearings.” at such People Santos, (1942); A.D.2d Following an such interview 1969). (1st Dep’t 298 N.Y.S.2d 526 prisoner re- shall be decides whether vari- The is not after it has considered the issue before us leased York, prescribed. expressly reports factors instead of ous and whether New forbidding represented “the environment to it considers a addition person by “the plans return” and to counsel or some other to Parole, employment him.” for would secured the Board kind before denied, adopt dis- in its statu If have been better advised to repr “re- for tory permitting future date fix a such cretion measures us question ease. consideration” esentation.1 The Report instance, Task Force 1. For to Delaware decline hear counsel. See Corrections, (1964) ; Commission President’s Kansas § Code Ann.T. leg (1967) (1964) ; recommends Enforcement Law Minn.Stat. Stat.Ann. 62-2248 § stating: safeguards, providing (Supp. islation “Obviously 243.05 § Ann. 637.06 renumbered § legislative ; will de 1960) scheme New Mexico Stat.Ann. 41-17-27 § questions complete of (1955). as when the such of state termine a schedule For hearing requirements respect and wheth a has a to for fender. statutes with (p. hearing more than one” a he has er counsel connection 13). probation, Institute’s American Law n. see revocation of prison permit Sklar, would Penal Code Model Law Practice Probation preparation for Hearings, er to consult counsel 55 J.Crim. Parole Revocation permit but would not &L.C. P.S. 175 hearing. appear Appeals Several at the has counsel Tenth Court of Circuit permit permitted statute states held that where hearings. represented represented by counsel retained counsel ap art. 42.12 Equal Ann.C.C.P. Vernon’s Texas See Clause dictates that Protection ; Georgia (1967) provided pointed § Code Ann. 77-541 § 18 must be counsel ; (1968) Willing indigent prisoner. Rev.Code 94-9835 § Montana Earnest v. Comp.L.Ann. ; Michigan (1955) ham, 791.- §§ indigent prisoners ef 791.244 most are Since expressly hand, ruling jurisdictions the other some states On fect such a representation prohibit prob permitting counsel counsel retained would parole hearings. ably Adm. Burns Indiana courts with demands to flood the (13-1609)-11; Reg.Ann. N. appointed § Rules the thousands ; annually. John Law Y.Correction interviews held release (Sup.Ct.N.D.1968), State, 11,000 York, instance, N.W.2d holds over year. interpreting hearings 12-59-15 An N.D.Cent.Code § each 38th Supp.). (1963 Report Board power allow the of Parole Others nual of the Division matter, giving decide the

4Q7 U.S. without Whether depends ment affected Cafeteria is whether pair condition manded Ed.2d mental the minimum ly action Local issue we issue (as such action adversary certain an distinguished “does not 886, of fact is resolved 473, impairment which threatens every action and existing private is the existence by appellant. 894, according recognize & Restaurant A.F.L.-C.I.O. that action. the Constitution conceivable fundamental the nature of the require safeguards requiring S.Ct. accomplished him private interest. 1743, 1748, against Workers v. in which a vital private case of trial-type due statutory) a fundamental destroy resolving The Constitu constitutional governmental McElroy, 367 safeguards. process mandates interest,” through interest govern govern benefit *5 Union, person Usual hear 6 im de L. misuse prosecute vestigations ent purpose not have herent between verse, workers liams 337 U.S. tween the In a real sense the Parole Board in re- Congress voking Here there is not the fense lationship partaking grant 1084, errant released and the Board’s genuine [*] “Fundamentally withdrawing 93 in a child parole occupies conflicting [*] L.Ed. People making reports 241, pursuer identity but intends. criminal case. parolee have [*] to aid offenders.’ Wil- prisoner’s privilege. 249, prosecution not been trained to State of New punishment the Parole Board’s and the Board in- objectives soon as privilege (cid:127)* Thus 69 S.Ct. quarry interest the role of attitude parens of their desire to be [*] Here there ‘Probation policy but a from an possible. and de- 1079, at patriae. but as be- we do [*] York, par- not ad- in- objective to re- and are interest its In the case some of as he is a as soon lease requiring proce essential conditions good parole risk and to allow him dural due as matter consti liberty supervision as under remain missing. first are tutional good long (318 F.2d risk” as place appel the Board of Parole is 237, adversary. contrary the On the lant’s assumption On the erroneous that identity with Board has of interest an Board’s determination of whether seeking to him to the extent that it paroled should be is an adver- encourage foster his rehabilitation alleges sary proceeding, complaint society. readjustment give appellant fails by position described Board’s was well charges” against him de- “notice of Justice) Judge (now Burger Chief mands notice furnished. 254, Hyser Reed, U.S.App.D.C. v. “charges” or accusations There are sub nom. 318 F.2d cert. denied against appellant. Nor Board Thompson Pa v. United States Board deciding necessarily upon, called role, 957, 84 11 L. S.Ct. parole, whether should released on court, sit Ed.2d where the fact, disputed issues of resolve ting banc, procedural due held en the occasion for use of skills process was not the Consti lawyers, judges with associated pro federal tution in judicial process. ceedings : a different The Board’s function is Pa- “The Bureau of Prisons and It must make the determina- operate one. broad from the basic role Board placed tion of premise prisoners whether rehabilitation their society custody re- and the interests to be rehabilitated generally per- as would best be served to useful lives as soon in the stored mitting beyond judgment can him to serve his sentence transition Board’s prison safely plainly confines walls rather ; This is what made. being power, physical confine- Board which has the abso continued in its making discretion, grant liberty ment. that determination lute him the prison serving rules of evi- is not restricted his sentence outside óf developed procedures type protected or walls. The dence interest however, determining legal process, purpose or factual many usually presently factors enjoyed, issues. It must consider one wel psychiat- non-legal nature, (Goldberg Kelly, as U. of a fare benefits prisoner, reports respect ric S. 90 S.Ct. 25 L.Ed.2d (Es attitudes, (1970)); occupation premises voca- his mental and his moral training, Housing City the man- Au education and calera v. New York tional (2d thority, April recreation in which he his 425 F.2d 853 ner has used health, time, 1970); (Dixon physical his and emotional attendance at school prison Education, intra-personal relations State Board his Alabama habits, 1961)); inmates, and other status staff community immigrant (Leng May nature and alien Bar extent of Ma v. ber, to him available L.Ed. sources that will be U.S. release, including (1958)); employment (Greene the environ- 2d 1246 plans McElroy, return. ment which he (1959)); or existence legal suggesting Without organization (Joint charitable or social worker render could not Refugee Anti-Fascist Committee respect to the nu assistance at all with McGrath, picture before the merous facets however, (1951)). Appellant, L.Ed. 817 Board,2 problem is not to be resolved presently enjoy does not freedom usually the tradi one which demands beyond movement walls and training skills, expertise of le tional nothing sentence, court’s gal important Far is an counsel. more rules, in state statutes entitles him understanding numerous it, “right” or a whether be labeled a mentioned, which have we have factors *6 “privilege.”3 He is to be entitled medicine, psychiatry, crimi do released after full service of sentence nology, penology, psychology and human good during time less earned incarcera relations. given tion. The Board is absolute missing is Another essential element exclusive discretion to decide whether private interest en- existence of proceedings not to initiate joyed appellant, he is en- or to and, so, whether should titled, type qualifying for due granted Appellant to him. has been con readily protection. process acknowl- We stitutionally deprived of his lib course, edge, appellant has an erty period of his sentence. being by the in considered “interest” seeking entry Like an alien into appears dispute, 2. There to be in- little (1935), pro- Court held that stance, representative that such a could right guaranteed by bation not a by obtaining sometimes assist the Board grace but Constitution “comes as an act of presenting and dence, additional relevant evi- Jay to one convicted of a crime.” v. respect such as facts with to the Boyd, 345, 919, 351 U.S. 76 S.Ct. 100 prisoner’s employment prospects, family court, L.Ed. in 1242 likewise community protect life, characterizing suspension could deportation, against Board decisions based on misin- “analogous it described adequate formation or lack of powers informa- prison- Parole’s to release federal Usually person tion. the inmate is a parole” (p. 354, 925). ers on 76 S.Ct. limited education. he is un- Furthermore Carolina, see Hewett North But v. 415 likely because of 1316, (4th nervous tension 1969), 1323 F.2d Cir. Van express logically able to himself as Alstyne, Bight-Privi- The Demise of the might setting. as he Board in a lege different Law, Distinction 81 Constitutional Harv.L.Bev. 1439 Zerbst, 490, 3. In Escoe v. 295 U.S. 492- 818, 819, L.Ed. 1566 79

409 (6th Cir.), distinguished denied, (as from 2d 91 cert. 392 U.S. States alien) quali 88 he does not S.Ct. 20 L.Ed.2d 1408 lawful resident seeking (1968); Patterson, procedural process fy due Williams v. 389 F.2d (10th 1968); Shaughnessy Washington parole. 374 States Cir. v. v. United 625, Hagan, (3d 1960), Mezei, 287 73 F.2d 332 S.Ct. Cir. ex rel. 345 U.S. Hing denied, Wong (1953); Fun cert. L.Ed. (196-1); 1964) Rivers, (2d Esperdy, L.Ed.2d 1259 Jones F.2d 656 Cir. v. v. (4th Hodge Judge Marshall), 1964); (per denied sub F.2d Cir. v. cert. (7th 1965); Sang Markley, Ng Esperdy, 379 339 F.2d 973 nom. v. Cir. Sui Authority, 562 Mead v. California Adult S.Ct. (9th 1969). F.2d 767 Cir. See also Corrections, Dep’t Dunn California questionable It whether Board (9th 1968) (dictum); 401 F.2d 340 Cir. is even to hold a Dunbar, (9th Williams v. 377 F.2d question whether Cir.), denied, cert. parole.4 In this should be released (1967); Earnest respect the determination made Willingham, (10th Cir. parole, differs revocation of where 1969); States, Cotner v. United 409 F. plausible reasons be advanced 1969); 2d 853 United States proc minimum favor of due Parker, Halprin ex rel. 418 F.2d 313 argued may parolee, It ess. (3d having released, enjoys liberty In accord is the recent de unanimous private interest, akin and that to a Ap cision of New York Court of seeking deprive him of peals Briguglio New York State alleged liberty of his violation because Parole, Board of N.Y.2d 298 N.Y. of one or of his more the conditions S.2d 704 In view of the unani allega Upon parole. denial rejection mous constitutional due Board is called resolve process proceedings, relatively present narrow thus issue grounds present plausible which at least circumstances, ed. such Under right, fail the claim must contended, fair fundamental further be determination, where not even prisoner be ac ness dictates grounds exist. process at a corded constitutional including trial-type are entitled A final factor we legal suited traditional skills counsel with weigh minimum due is the burden which controversy. just Neverthe such a notice, (advance requirements *7 by less, although jurisdictions various counsel, hearing, provision cross-ex- repre parolee permit to be statute findings) place would amination by a rev retained counsel sented pa- upon and its the State proceeding, courts of ocation all circuit Larche, 363 procedures. Hannah role passed upon appeal the issue which have 420, 442, 80 4 S.Ct. that —seven in number —have held According Annual 1307 as is entitled to not of Pa- Report of the New York Division right. Hyser year a matter of constitutional 1967, which been has role Haskins, counsel, by holds Reed, supra; F. New York Rose v. furnished (1969) ; R.I. 144.340-144.370 §§ Stats. states authorize Indeed some ; (1956) upon S.D.C.L. 13-8-18 § recommitment Gen.Laws Anderson, ; (1964) determination, parte In re 23-60-22 § without Board’s ex pris- Other P.2d hearing, Or. much less since statutes, the sub- state, on custody silent which are of the is still oner require prison ject, not just construed have been walls if he were within the Varner, hearing. Ohio St. re working Colo. or farm. ; (1957) ; ex rel. (1961 Supp.) State 142 N.E.2d § Rev.Stats.Ann. 39-17-6 Whittier, N.W. (1955) ; Minn. Bush v. 148-61.1 N.C.Gen.Stats. ; Oregon Rev. 2d Okl.St.Ann. § 11,000 parole more interviews or toas the amount of time which the de- hearings annually. required From the record of fendant should be to serve be- appears parole. Supreme that interviews fore Court noted necessary written information while the dossier of that aid of counsel was to as- voluminous, sentencing judge may by marshalling sist the before the Board If, appel- introducing usually hearing the facts is brief. evidence appear mitigating demands, Appellant is to each circumstances. lant argues reasonably may antici- very that this would be the func- counsel we (in- tion served pate burden counsel administrative that hearing. no- cluding preparation advance tice, subpoenaing cross-examina- accept appellant’s We do not con arguments witnesses, counsel tion of tention that a release determina decisions) preparation of written simply tion is a continuation or defer accompa- increased, enormously would be sentencing. prisoner’s ment of sen upon delays attendant usual nied already finally tence has been decreed Initially, course, clogged calendars. changed. pa the court and cannot be A providing problem of there would be release, role Board’s determination as to prisoners legal competent services hand, may the other is not final and indigent. are themselves, most of whom changed be reviewed and time in provide that hardly fair It would recognize the Board’s discretion. We wealthy should have Mempa analogous our case to great right legal whereas sentencing hearing the extent that a denied majority prisoners would be essentially nature, non-adversarial they too simply because guilt having determined, and that Although adminis- poor. the increased among legal counsel, may things, might alone, standing burden, trative perform a function similar to that which steps justify not denial might perform pa not aat by appellant, we believe demanded e., bringing role release i. out relevant the other when considered with arguing relevant information discussed, it militates factors we have clemency. However, sentencing at a against relief. hearing lawyer may required also be perform legal represents Urging functions of a nature sentencing, of Parole. which en- a form of deferred thing may For one called sentence ables to “tailor a authorities legal rights, offender,” appellant particular con- insure certain such as gov- appeal, are not waived. He before us tends that the situation hearing, depend well decide recent de- erned Court’s ing upon Rhay, development Mempa further cision in facts, to advise a client to to with move plea guilty ad or to assert was entitled draw which held a defendant grounds setting represented a de- aside counsel at ditional to be guilty moving rev- held after in arrest of verdict ferred judgment. probation. Our attention These services demand his ocation of *8 training lawyer, particularly that directed to the fact skill and a not mere Mempa required sentencing ly non-legal pleading was court assistance clemency. represents Washington law to sentence under Thus statutory pro clear chance” to to the maximum defendant’s “last the defendant legal rights function, like trial court its tect his at term and that here, repeatedly limited to For it the Board of Parole level. this reason has legal making representation recommendation to held opportunity 759, 1441, Indeed to the defendant’s U.S. 90 S.Ct. plea may prove (May 1970). 4, to be withdraw his well Richardson, his last. McMann 397 v.

4U constitutionally required. opportunity” (389 counsel 135-136, 88 Burke, 736, 257-258). 334 U.S. Townsend 68 S. S.Ct. at v. (1948). 92 L.Ed. 1690 As the Ct. None of these considerations noted Supreme Mempa: stated in Court Mempa Court in are found important here. “Even more in a case is the fact certain le as this The other by ap- decisions relied gal rights may if be lost not exercised pellant significant legally differ one, Washington stage. For this spects from the case before us and are appeal provides law that an in a case controlling therefore persua- neither nor guilty involving plea of followed instance, sive. For probation can be taken after sen was not here confronted with the neces- following imposed tence is sity making findings new as the basis Farmer, probation. v. 39 State imposing sentence, depri- a new new 237 P.2d 734 Wash.2d vations, hardships or new for which in a where accused Therefore case process required. minimum due would be although agreed plead guilty, to g., Specht See, Patterson, e. v. 386 U.S. defense, because he was had a valid L.Ed.2d 326 probation, absence of offered (defendant (1967) represented must be imposition sen of the deferred at the required counsel where court was to might result loss of well tence find that he “constitutes a threat ap ordinarily appeal. While bodily public” harm to order guilty peals plea less from a impose under a sentence statute differ- following trial frequent than those pleaded ent from that which he merits, of im incidence on the guilty); United States ex rel. Schuster guilty pleas is not properly obtained Herold, (2d 1969) 410 F.2d 1071 Cir. being capable slight so (Equal requires Protection Clause See, e. minimis. de characterized as prisoner may found insane v. Gil g., rel. Elksnis ex States United transferred to a mental institution (D.C.S.D.N.Y. F.Supp. ligan, subjected where he would be to “sub- Machibroda Cf. deprivations, hardships stantial in- States, 82 S.Ct. 368 U.S. dignities” opportunity and loss L.Ed.2d parole, he be accorded the same due Washington process entitled); statutes which a civilian is “Likewise (1st Maine, guilty plea Shone 406 F.2d provide can (Equal prior 1969) Protection Clause time withdrawn juvenile sentence, imposition in order to find of- Wash.Rev.Code “incorrigible” supra, Farmer, fender 10.40.175, as basis trans- State v. ferring Boys Training judge him from Center discretion finds in his the trial served, Center). justice to Men’s Correctional Nor is will be the ends of state, Shannon, this the in an case where the ad- 60 Wash.2d State v. seeking versary proceeding, deprive Without undertak- P.2d liberty, catalog person property or a status the various situations See, presently enjoyed. lawyer Dixon v. be of substan- could which a Education, Alabama State Board of defendant in such tial to a assistance 1961) (expulsion plea case, can reiterated that college); Goldberg tax-supported guilty improperly ob- well be Kelly, promise de- have a tained very (1970) (termination probation placed wel- fendant Gault, payments); In re fare of which furnishes the revocation desiring 18 L.Ed.2d withdraw occasion for *9 delinquent (adjudication juvenile plea. An uncounseled defendant Ruffalo, commitment); might likely In very of this re be unaware changes legislation ate the character parole system, purpose parole (disbarment). and the hearing should not be on revocation analysis last the Board’s adversary proceeding. turned into an prisoner determination as to whether a say is enti not to This is good represents parole an risk as is a arbitrarily its deci tled to act or base pect prison discipline, not an ad of state investigation token sions on careless or adversary judication rights pro in whimsey. The or on hunch or Haskins, ceeding. 388 E.2d Rose upon a thor should fair based judici 1968). If the federal Cir. including ough investigation, a search ary, of the Due Process in the name parolee’s inquiry ver into the own supervision Clause, undertook pertinent sion of the facts. See disciplinary procedures, it would Kenton, McCreary ex rel. States involved, upon inextricably become ; (D.Conn.1960) F.Supp. also inevitably follow, in would suits Ken ex rel. Buono v. see United States non-judicial non-legal, determinations 1961); ton, (2 287 F.2d training equipped by for which it is not Washington Hagan, 287 Although experience. (3 333-334 argument, counsel, upon indicated oral rudimentary initially he seeks Judge (dissent- FEINBERG, Circuit providing process in the form of ing) : permitted to “assist” that counsel be respectfully dissent. I Board, this would we no doubt that have (by appellant before us is whether The basic issue be followed demands constitutionally entitled others) procedur is panoply full for the rights complaint, counsel at in to services of retained al demanded in hearing. reject doctors, I the view cluding cross-examination rights greater workers, prison has psychiatrists, offi that a case foreign land, cials, pp. an alien to see the like. We believe majority opinion. upon un 408-409 would be I such a course would embark of the hold that Process Clause Due wise. requires that a Fourteenth Amendment judgment court the district the assist- be allowed have affirmed. parole re- of retained counsel at his ance hearing. (concur- lease ANDERSON, Judge Circuit ring) : I. Judge respects I concur all opinion discussing law, applicable insofar as Mansfield’s excellent Before precisely of the case before it examine deals with the facts is instructive If, however, happened appellant of what the discussion in this us. what has petitioner years or contend and has claim case. He now old revocation, continuously prison the case were one since he was granting parole, August exception rather than one of with a brief interpreted imply a case parole, he when was released apprehended to hold this court would be inclined March he was when require pursuant constitutional due would violation to a warrant. right trial-type hearing, serving origi- Appellant presently witnesses, life, years imposed confrontation with nal sentence of 20 witnesses, etc., I subpoena guilty May plea Recognition agree. prepared degree. am not There- murder in the second completely alter fore, would of such a for the remain in will system the nature of his life the New rest unless Pa- officers functions of to release Board of Parole decides State Congress by appropri- appeared May 1965, role Board. Until him. *10 admitted, inter to what of Parole and New York State has done here. Regulations during alia, so- The Rules his brief return to of the New ciety provide individuals State Board had consorted with of Parole having follows: and that a criminal record misleading given to his

had information attorney any Neither the inmate’s nor parole Parole was revoked officer. party permitted other will be to at- appellant ruled was these admissions speak person tend or in the in- pa- ineligible of his for reconsideration against any mate’s behalf him at years. qualifications for at least two role meeting of the Board Parole at then, appellant few Since has received a which the inmate’s release on is intervals interviews with the Board being considered. The board shall ranging years. from one to two On complete respect have discretion with summarily each de- occasion he has been presence persons to the nied release on barred from hearings. at such reconsideration until the next interview. quite Each At no interview was brief. Codes, Regulations 9 New York Rules & given appellant opportunity time an Thus, dealing 155.9. we are not to have the assistance al- question whether counsel must be though recently apparently he has had appointed release willing and anxious to assist The issue is whether all counsel can be him. next We told that Appellant quot- banned. claims that meeting with the Board is scheduled ed Rule denies him June 1971. process.2 powerful argument His most proceeds assumptions: from two that a sought Appellant relief essentially is suit, attacking courts and then filed this sentencing, continuation and that at procedure par- before the sentencing he would be entitled to the ticularly prohibition of counsel. assistance of retained counsel. sought, declaratory Since relief was three-judge court under 28 U.S.C. § Appellant’s proposition basic required.1 2881 was asked for or part of the en- judge compelled grant district felt process tire of rehabilitation and correc- summary judgment, State’s motion for begins finding tion which with a although indicating if he “were goes guilt, fixing appro- on to the of an writing rasa,” disposi- aon tabula priate sentence, expi- ends appeal not be the same. This Certainly, ration of that sentence. there followed. nothing startling this about view.

The criminal does not end ab- II. ruptly clang prison gate; with the society pervading interest what has. primary To view the issue before us happens thereafter.3 proper perspective, one envision must Moreover, penological modern attitudes specifically prohibits statute which and statutes which reflect them under- assistance of counsel in a criminal For that is similar score unbroken nature case. Appellant equal pro- 2. 1. in the district court rais also advances Another action argument. ing substantially tection same issues did seek See note infra. injunctive convening relief and the three-judge appeal presently Burger, Island, An No Man is an court. court, ; pending Dawson, A.B.A.J. 325 R. this Docket No. Sen- tencing from the district refusal to con court’s statutory vene, a court because the consti Lewis tutional issue was insubstantial. F.Supp. (S.D.N.Y. Rockefeller, *11 clearly to di- process.4 It the trend is forcement Administration of Justice sentencing (at p. 86): responsibility more for concluded vide judge who heard the more between legislation essentially Parole involves guilty plea and those the trial or the delegation sentencing, power of to the de- persons observe who thereafter the board. Thus, recent prison. in dec- in fendant For sentencing the defendant before a legislatures Congress ades, judge aor before the Parole great flexibility given judges in have Board, exactly the stakes are the same: judge sentencing. now A can make hand, on the one freedom to remain in merely that a initial determination the society or to return other, and on the go prison, fix an defendant should prison, pos- incarceration in in this case and leave incarceration limit on outside sibly York, for life. In New the stand- length custody determined of the judge ards for the the Parole Board judge Also, can a Parole Board.5 making in that determination are re- parole eli- to consider instruct the board markably similar.9 Indeed, the Correc- ordinarily gibility it would.6 sooner than Law State New York re- situations, judge Moreover, in some fers to the Board’s role in a for sentence a defendant proceeding “judicial lease as a func- period, a Parole with indeterminate tion.” If judge the functions of deciding when, ever, later arrangements Board under these society prisoner’s return is advisable.7 objectively, viewed then, Obviously, responsibility for York, elsewhere, increasingly being sentencing shared, practical does seem effect an ex- greater playing a Parole Boards with sentencing process, tension and I Moreover, greater part. this divi- accept proposition. Note, Due recog- responsibility explicitly sion of Right Process: The to Counsel in Parole Thus, Report on Senate nized. Hearings, Release 497, 54 Iowa L.Rev. bill is now 18 stated which U.S.C. § procedures new brings This us court, permit second its “would discre- assumption, rights tion, which concerns those to share the executive branch guaranteed sentencing. determining In Townsend responsibility how Burke, 741, 736, 1252, long actually 68 S.Ct. should serve.” (1948), Similarly, L.Ed. 1690 Report the Task Force granted corpus Court (1967), prepared writ habeas Corrections “require- a state because En- President’s Commission Law 4208; 5. apparently §§ U.S.C. N.Y.Penal L. 4. New York The State 70.40. agrees. § brief this court Lewis its Rockefeller, No. referred Docket 4208(a) p. 6. 18 U.S.C. § in note the State 19: conceded impos- It must be remembered that See, 7. defendant, Penn.Stat.Ann. §§ a sentence aon criminal 1172; 19-1, determining §§ an in- Colo.Rev.Stat. 6-8. trial court supervised confined, dividual must be S.Rep.No.2013, Cong., community 8. good 85th 2d Sees. Cong. protection. 1958 U.S.Code Adm. own & At the time of sen- News, pp. 3891, tence, 3892. the court establishes maximum period custody during the cor- Compare 9. N.Y.Penal L. §§ 65.00 and rection and the defend- rehabilitation 65.05, key expected place. 213. § N.Y.Corr.L. ant to take is the use rehabilitative custody 10. various in the cor- N.Y.Corr.L. levels program. rectional treatment custody Parole is one level or form of ** * part correc- is still * * * process. tional

¿J.JK play Wainwright, mént of fair which absence of coun 372 U.S. sentencing] this sel withheld from [at He relies instead years ago, general prisoner.” Less three on the requirements more unanimously Mempa process, citing stated principal- Court Rhay, 128, 134, ly Goldberg Kelly, S. (1967): (1970); Ct. L.Ed.2d 287 Mem- *12 pa Rhay, supra, Gault, v. and In re Burke, particular, v. su- Townsend 1, 1428, U.S. 18 L.Ed.2d 527 pra, of the critical nature illustrates (1967). Supreme The in- Court has sentencing in a criminal case structed us that in this context due might support well be considered process is holding right the a itself Many sentencing.3 applies at concept. an Its elusive bounda- exact 3. Kadish, Ex undefinable, Advocate and the See ries are and its content pert in the Peno-Correctional —Counsel according specific varies factual Process, Minn.L.Rev. * * * the contexts. Whether Con- requires particular stitution the concluded that lower courts have right specific proceeding in obtain right ex- to counsel Sixth Amendment depends upon complexity of factors. sentencing in federal cases.4 tends to right alleged in- nature States, g., E. 182 F. Martin United v. 1950) ; volved, proceeding, (C.A. the of nature McKin- 2d 225 5th Cir. States, ney U.S.App.D.C. United v. possible pro- burden on that ; Nunley (1953) v. 208 F.2d 844 ceeding, are all considerations which (C.A. States, 10th 283 F.2d 651 United must taken into be account. 1960). Larche, 420, 442, Hannah v. U.S. Thereafter, Rhay, 393 v. McConnell 1502, 1514, 4 L.Ed.2d 1307 S.Ct. 21 L.Ed.2d U.S. Kelly, Goldberg supra, See also curiam), (per Court made! 1011; at S.Ct. Cafeteria & right sen- counsel at clear that “[t]he * * * Union, Restaurant Workers Local 473 i tencing like treated must McElroy, 886, 895, 81 stages S.Ct. right at other to counsel j Accord- conclude, therefore, / adjudication.” I ingly, gen- application I turn to these premise appellant’s is sound minor eral criteria to release sentencing judicial at a and that focusing right primarily on the to as- presence requires Constitution sistance of retained counsel. rel. also States ex counsel. See (2d Follette, 418 Diblin v. The most obvious consideration is that hardly could stakes ease; higher. hardly This, course, Board has ends the Since necessary power beginning appel determine whether Appellant inquiry. claims as a lant fact must remain the rest life, right procedural pro- more of his has an obvious interest constitutional constitutionally having parole presented ef than is now his case for tection fectively. sentencing, Appellant judicial is a man little entitled to Moreover, transcripts pa education and the confrontation witnesses. reveal, proceedings though role even inability expected, express practical his him an effect extension justifica clearly present process, his it does not follow self Apparently exactly parole. tions for basic it must be treated grant Appellant reason for the Board’s refusal way. in effect concedes same by foregoing ad on the release has reliance this "consorting,” resulted guaranteed mission of the Sixth to counsel in 1965. The at in revocation applied the states Amendment tempts appellant, in the room alone through Process Clause the Due Board, persuade its members Gideon Amendment. Fourteenth sentencing, criminal” said: “habitual he had made mistake which would “Regardless petitioner repeated inade would reflect his own whether antagoniz appointment of quacies his concern over have been entitled imagi through requires little It to be heard the Board. unqualified.” lawyer Simi- own counsel was nation to conclude that trained materially Report appel larly, Task Force on Correc- both could have aided Board, tions, supra, the inaccurate notes this distinction lant and the unless legiti- unworthy assumption is made that that “there seems states generally limiting representation lawyers do more harm than mate reason hearings.” good.11 makes difference It little retained counsel parole personnel are in John- As whether Court observed 489-490, earnestly doing Avery, men as sincere son seen they job,12 are there in a difficult best can regarded favorably.13 perfect, but On either a number of less less *13 view, acceptable, problem of interested to the a Parole Board should be solutions availability job providing deprived persons in facts such relevant as counsel to prisoner, family situation, liberty, core his and their the hard outside prosecution progress itself. solu- in The criminal One his self-education. abil ameliorating ity tion, go to to to marshal such uncover far facts which would lawyer pos any administrative unfairness that a fears of enormous trained improve, injure, pa burdens, appoint counsel would not the sesses would be hearing.14 prisoners for those who have role release parole opportunity at first denied their opinion suggests majority that allowing Finally, retained therefor.16 * * * “administrative burden the hearing does at counsel enormously increased” al- would not mean that he should be allowed lowing at a release hear- counsel than convert it into trial more ing. already so,15 do But states some a result at counsel could achieve such paral- apparently there has been sentencing in court. systems. ysis Nor is neces- their short, considering the discre- broad allowing sary to that retained assume Board, the Parole wielded the carry exactly counsel will with it cor- grav- virtually procedure, unfettered the obligation appoint responding ity consequences prisoner, of the to the indigent potential parolees, thus for all inability present as well case ap- flooding with demands the courts lawyer could, as a the func- pointment. force to the While there is Board, possible tion of the bur- protection claim, presents equal allowing dens re- the assistance Supreme Thus, question. the different legal position tained Fretag, persuasive. in I tradi- Court Chandler v. conclude that 99 L.Ed. criteria tional right suggest recognized to counsel at at which opinion majority 11. such an disavows also Force Rev. 829-30. See Task opinion. assumption. Report Corrections, supra, note 2 to its at 86. See Life, majority Jackson, Board, opinion. 15. 12. See note See July 10, 1970, at 54. great majority 16. show that Statistics Gaylin, applications 13. In the of Their W. Service initial Country, Prison, granted. g., War Resisters in 332-42 E. in in 2,743 approximately 65%, 4,278, out of or persons appearing Radish, granted in 14. The Ad- it. An- discussion the first time were 38th Expert Report, Parole, vocate and the nual Division of Table —Counsel p. Process, 45 Minn.L. Peno-Correctional (id., hearing to the The then entitled Court stated should be lease 257): counsel. of retained services Obviously general Turning considera to the extent recom- from these cases, in reported far I mendations are influential deter- so tions resulting compel mining sentence, precedents ne- do us tell can cessity for aid mar- deny of counsel. of counsel in assistance shaling introducing suggesting facts, authority re evidence There is mitigating below, in circumstances sult, but we which discussed general assisting aiding Supreme de- to no case are cited now re fendant his case to sen- which Court or this court apparent. quires On the tence that course.17 us take hand, recent decisions there are Mempa suggest I do not is either courts Court controlling indistinguishable. Ob- strong appeals support do lend Emphasizing viously, it is neither. appellant’s position. sentencing, more was involved supra, Mempa Rhay, the Su legal rights that “certain Court observed unanimously preme Court held lost if not exercised” constitutionally counsel was hearing court, ap- probation rev which combined peal prior plea of to withdraw a sentencing. After ocation deferred guilty. Moreover, question Mem- above, referring, as indicated pa judi- to counsel at the *14 sentencing to counsel at usual proceeding, cial “whether it be labeled on to note that the Court went probation a deferred revocation 257): 135, (389 at at U.S. 88 S.Ct. 137, sentence,” at 88 389 U.S. S.Ct. at hearing 258, at a later before the sentencing Washing- It that is true Board, question us Yet before now. opportunities ton fewer offers the case the Constitution indicates judicial than in exercise of discretion sentencing requires pro- all counsel at many jurisdictions. appli- “sentencing” ceedings, is not and that judge requires trial cable statute judge prescribes first confined what a in all the convicted cases sentence Mempa trial. In both and after person provided to the maximum term Walkling case, companion v. Board offense of which law Paroles, had the defendant first been 9.- was convicted. Wash.Rev.Code § probation term of to be- sentenced determination 95.010. The actual gin serving imprison- a term after length of is to time be served making to the restitution ment and after Prison the Board of made 130, 132, 88 defendant’s Id. at victim. months Paroles within six Terms and issue to counsel 254. The S.Ct. person is admitted after the convicted sentencing hear- raised at a second was prison. 9.95.040. Wash.Rev.Code § (as ing, place months which took (as Walkling) Mempa) years Nevertheless, later. that counsel held Court sentencing necessary true in McConnell v. The same was was because the Mempa Rhay, supra, judge held retroac- prosecutor furnish and the Mempa empha- Washington the extent of Prison Terms and tive. To Board sentencing need for counsel as to the sized the Paroles with recommendation length judge presumably in fact- trained time the defendant should serve, finding “places operating a structure and within considera- objectivity impartiali- weight and ble recommendations.” traditional these here, holding majority, 3, raised on the issue Escoe in note cites v direet “right-privilege” . Zerbst, 490, 492-493, in each would dictum 295 55 S.Ct. U.S. overruled, undermined, Jay 818, (1935), if not L.Ed. v. seem 1566 79 Goldberg Rhay, 354, 919, Mempa supra, Boyd, 345, v. v. 351 U.S. supra. Kelly, 100 Neither is a L.Ed. 1242 418 ty, 541, 1045, whether one ask counsel is not 16 L.Ed.2d 84 sentencing hearing required Specht Patterson, at a In . 386 U.

fortiori Moreover, because S. 87 Parole Board. S.Ct. 18 L.Ed.2d 326 Mempa judge (1967) , the role trial Court held that where the only impose (he so could basis for limited as a sexual offender term”), finding guilt, true role “maximum was not but a new fact, finding defendant, produce facts for the fu- was to large, bodily ture Accord- at use of the constituted a threat Board. ingly, Mempa ap- supports community, harm I believe that re quired pellant’s adversary that he is entitled assertion counsel before the New held. In ex United States rel. services Schuster Herold, (2d purpose for the 410 F.2d Parole Board 1073 Cir. general aiding assisting 1969), the de- this “in court held prisoner may his case as sen- fendant be transferred to a state supra, Mempa, criminals, institution tence.” U.S. insane “he substantially Car- must Hewett v. North afforded S.Ct. 257. Cf. olina, (4th safeguards pro same 415 F.2d as are States, 1969), proceedings.” vided in civil Ashworth v. commitment reaching 1968) (per conclusion, cu- 391 F.2d we relied riam), holding heavily Mem- both that because of another recent decision, pa, Herold, Court counsel is now Baxstrom v. probation proceedings. Co- also S.Ct. Probation, hen, Sentencing, Re- Maine, Shone v. 406 F.2d (1st Cir.), moot, habilitative Ideal: The View vacated as Mempa Rhay, (1969), Tex.L.Rev. S.Ct. L.Ed.2d 6 process procedural court extended due Moreover, are other there recent deci- protections juvenile offenders about support position. sions that boys’ training to be transferred from a Avery, In Johnson center to men’s correctional center. *15 prison regulation again, suggest Court struck down a Once I do not barring furnishing indistinguishable. inmates assist- these decisions are They prisoners prepara- parole ance to in pro- the did not involve release ; petitions post-conviction ceedings moreover, tion of re- some them relied Goldberg Kelly, part lief. in or in v. 254. whole on a U.S. constitutional theory equal protection 25 L.Ed.2d S.Ct. of the —denial (1970), obviously apply the held Court that a welfare re- laws —which does not so cipient here, regulation process is entitled to certain due since the Parole procedural protections poor bans before termina- counsel rich and alike.18 benefits, including majority opinion tion of attempts to The to distin- representation guish ground retained at a some of counsel these cases * * * hearing. Similarly, they meaning of con- “interest involve an expand- presently process enjoyed,” appellant stitutional due has been does analogous “enjoy ed in other In re not areas. now freedom movement Gault, beyond 18 L. With all re- walls.” (1967), spect, Ed.2d 527 made clear that coun- I the distinction submit juvenile unsound; required significant sel proceed- was in a what is most ing. States, type Cf. Kent United v. “interest” involved and the Query, however, judge, whether or a other theories a determined protection hospital equal may of denial of to be transferred to about invoked; criminally insane, is a sen- United States whose cf. effectively Herold, supra? tence .is determined rel. Schuster v. ex brief, pp. Board entitled to less assistance coun- 33-36. sel than a defendant whose sentence is it, upon majority). Mempa potential hearing effect of the already garded having

not whether the “interest” more substantial effect per- in discussed above the later Sixth in held. decisions Circuit decision States, me that when the immediate Ashworth F.2d 245 suade v. (1968), very imprisonment in stakes of recent decision of freedom, Fourth Circuit. See Hewett v. due commands Carolina, least have North 415 F.2d 1316 be allowed at assistance of retained counsel. any event, I do not claim that question majority points a num- can decided out that us only have, tally suggest I ber of other circuits at various of the cases. past, times the more or less recent issue whether retained counsel at a release stated is not banned that counsel open this one in this cir- revoca- is at time an constitutional matter a, Court, Supreme procedures in the and that cuit and and thus fortiori require decisions of the most recent Court could not counsel Constitution support hearings. such a rule of- the view that Three of procedural process. cited, Accord- ex fends most recent cases United States appellant (3d Parker, ingly, at his Halprin I would hold that rel. 418 F.2d v. States, 1969); next release interview cannot be Cotner United 1969); denied such assistance. and Earnest Willingham, (10th Cir. 406 F.2d 681 III. 1969), obligation with the to fur- deal appointed indigents sought nish Appellant’s complaint addition- proceedings. Ear- Except relief, including “to cross- al nest, cases do not discuss whether favorable examination and constitutionally compel retained counsel can attendance of evidence and banned, charges, witnesses,” and Earnest is based notice of favorable right-privilege grounds upon un- specification distinction which was supra. by Goldberg Kelly, dermined determination was supra. argument, See note 17 most—and At oral based. perhaps demands these all—of additional remaining Of the cases circuit court apparently or waived. withdrawn were cited, after three were decided Therefore, extended consideration recent Court decisions place alleged rights out of these Goldberg Mempa preceded Kel and all My approach would be this time. basic ly. three, only opinion of those Of way appellant no more to afford the Tenth Patter Circuit Williams v. protections of these opin son, 389 F.2d 374 *16 constitutionally entitled to a sen- ion Has Rose v. Sixth Circuit tencing dissenting), judge, and before a (Celebrezze, J., kins, 388 F.2d 91 apparently received that. he has denied, t. cer (1968), deal that minimum I In sum: conclude Mempa; respect, requires disa I New with all gree Mempa in appellant the assistance distinction York to allow (and Briguglio release hear- those cases counsel at retained Parole, majority opinion ing. de- 24 N.Y.2d State Board Because right, relied also 298 N.Y.S.2d 704 I dissent. nies that