Michael Ellis, Appellees/cross-Appellants v. District of Columbia, Appellants/cross-Appellees

al., Appellees/Cross- ELLIS, et Michael

Appellants, COLUMBIA, al., et OF

DISTRICT

Appellants/Cross-Appellees. 95-7090, 95-7109.

Nos. Appeals, Court of

United States Circuit.

District of Columbia

Argued 1996. Jan. May

Decided Wilson,

Mary Corporation L. Assistant Counsel, cause, argued appel- for lants/cross-appellees. With her on the briefs Ruff, Counsel, Corporation were F. Charles Reischel, Deputy Corporation L. Charles Pinkston, Jr., Principal Garland Counsel. Counsel, Deputy Corporation Washington, DC, appearance. entered Wheeler, cause, argued Edwin H. appellees/cross-appellants. him on With Smith, Washington, briefs was Jonathan M. DC. HENDERSON, RANDOLPH,

Before TATEL, Judges. Circuit Opinion for the Court filed Circuit Judge RANDOLPH.

Opinion concurring part dissenting part Judge TATEL. filed Circuit RANDOLPH, Judge: Circuit by prisoners In this class action and for- Columbia, prisoners mer of the District of brought under 42 U.S.C. the district 24-204(a). held in Price v. of D.C.Code We Process Clause that the Due court ruled (D.C.Cir.1995) Barry, (per cu- required the District 58 F.3d 369 Fifth Amendment riam), ‘expectan- Parole to hold “no Board of that this statute created of Columbia prisoners’ enough in advance entitling prisoner far cy of release’ to due may prisoners so that eligibility dates parole process protections.” Id. at 371. Our rea- deci- that if the Board’s released on date be soning straightforward and rested on the was provide cer- parole; to favor sions 24-204(a): prisoner § if a language of even assist them prisoners tain material required, everything the statute established parole understanding Board’s decisions the Parole still had discretion to the Board of and, cases; parole respect in their with deny parole. may only give Yet state laws revocations, prompt “preliminary to offer constitutionally protected liberty rise “to a are executed hearings” parole after warrants they interest if contain substantive limita- hearings no parole revocation and to discretion, in man- tions on official embodied This is an days thereafter. more than 90 datory statutory regulatory language.” or injunction issued permanent the appeal from Id. at 370. ruling. court’s to enforce the plaintiffs thus cannot establish a lib- While erty stemming interest from the District’s I statute, may they say one be derived parole with the district court’s will deal first We adopted in parole regulations the Board from some, all, prisoners judgment but not authority “to pursuant to its establish liberty parole, interest in have due regulations procedure.” for its rules and procedural rules protected the an interest § superseded 24-201a D.C.Code concerning the imposed in the court’s order statute, §§ 24-204.1-.3. Like the D.C.Code eligibility determinations. Board’s may regulations the state prisoner on its discre- “release A prisoner tion” after the has served one-third itself does Because the Constitution sentence, provided prisoner the of his (see any liberty create rules, substantially complied prison with Inmates, 442 v. Nebraska Penal Greenholtz probability pris- the there was a reasonable 2100, 2103-04, 1, 7, L.Ed.2d release, upon the law oner would not violate (1979)), must emanate such an interest “in- prisoner not be releasing the law, case, District of or this from state society.” compatible with the welfare statutory parole, law of law. The Columbia 28, § D.C.Mun.Regs. tit. 200.1.1 Code, contained in the District Columbia scoring system regulations establish a The follows: as parole decisions. guide the Board’s Board of appear it shall to the Whenever assigned § 204.1. Each candidate probabili- that there is a reasonable Parole to assist determin- Factor Score” “Salient prisoner live and remain ty that a will releasing prisoner. As the ing the risk law, that his violating the without it, put serves as “one regulations the “SFS” incompatible with the wel- is not release calculating parole eligi- used of the factors society, has and that he served fare of provisions of this sec- bility pursuant to the may ... Board au- minimum sentence SFS, § To calculate the tion.” 204.2. parole. his release on thorize (a) substantially prisoner has observed 1. The Ml text of institution; rules of the is: D.C.Code, (b) probability that reasonable There is In accordance with prisoner prisoner without be authorized to release will live and remain Board shall law; after he or she violating on in its discretion Board, or terms minimum number of term (c) served the release is opinion In imposed after he has served of the sentence society. incompatible the welfare of (¡6) which he the term or terms for one-third be, sentenced, if as the case or she was following criteria are met: yields assigns prisoner’s category a numerical value for each of factors to the risk Board score,” point range the “total which can categories: six 204.19-.20; 2-1, §§ App. 0-5. at 2-34. adjudications Prior convictions (cid:127) parole hearings, initial state 0-3), (ranging from point total adults with scores of 0-2 and thirty than Prior commitments of more (cid:127) youth point with a offenders total score (0-2), days granted” parole; “shall be adults with total Age of the commission of the at the time (cid:127) youth points scores of 3-5 and offenders with (0-2), current offense point total scores of 1-5 “shall denied” (0-1), period Recent commitment-free (cid:127) 204.19-20; §§ App. 2- prisoner at Status of the the time of (cid:127) parole hearings, later the Board be- (0-1), commission of the current offense gins point previ- with the total score from the and ous and either adds or subtracts one History opiate dependence of heroin or point depending (cid:127) upon whether the inmate’s adjustment

(0-1). negative posi- institutional was or youth point tive. Adult and offenders with 204.4; 2-1, § App. at 2-31 to -32. These granted” parole; scores of 0-3 “shall be adult categories and nu- the determinants of the youth point and offenders with scores of 4-5 merical values are described detail 204.21; parole. App. § “shall be denied” 2- §§ assigned 204.5-.16. The numerical values 2, at 2-37. categories six these are added to deter- SFS, range regulations permit mine the which can from 0-10. The the Board to devi- 2-1, App. suggested by at 2-31 to -32. with an ate from the outcome the total Prisoners risk; regarded point “in SFS of 9-10 are as low those score unusual circumstances.” risk; § regarded Appendix with scores of 6-8 are fair 204.22.2 2-1 lists six as reasons for regarded denying parole despite point those scores of 4-5 are as a low total risk; moderate and those with scores of score: 0-3 204.17; regarded high § as App. risk. Repeated parole supervi- failure under (cid:127)

2-1, at 2-32. sion, on-going Current offense prisoner’s The Board modifies a (cid:127) involves crimi- risk cate- behavior, nal gory by adding points subtracting pre- or post-incarceration and factors. Points are Lengthy history criminally related al- (cid:127) if: added abuse, cohol prisoner’s The History repetitive current conviction in- sophisticated (cid:127) crimi- (cid:127) against person, behavior, volved violence the use nal dangerous weapon, drug of a or distribu- Unusually prior extensive and serious (cid:127) tion; prisoner or if the has two or more (at convictions), felony record least five previous types convictions for these crimes; or cruelty Unusual to victims. (cid:127) prisoner has committed serious dis- (cid:127) 2-1, App. Appen- at 2-34 to -35. The list ciplinary infractions. 2-1 categories dix also contains for “Other” 204.18(a)-(h); App. change 2-32 to -34. A and “Other circumstances.” Id. at point is subtracted if the supplemented inmate has demon- 2-35. The Board appen- these prison pro- strated sustained achievement in dices with an “Addendum to Board Order” grams, assignments. industries or work which laid out four additional factors that 204.18(i); App. Appli- justify deviating -34. could from the numerical pre- post-incarceration guidelines.3 cation of these depart 2. Section 204.22 reads in full: factors which used to from the strict application may, provisions chapter. of this The Board in unusual circumstances pre post waive the SFS and the incarcera- chapter grant tion following factors set forth in this 3. The Addendum listed the countervail- deny parole to a candidate. In that ing factors: case, specify writing the Board shall those court, expectation impressed by the man- the state has created an of re- The district 204.19-.21, §§ language rising liberty held datory lease the level of interest point total scores had an inmates with low meaning within the of the Due Process Greenholtz, of release” and thus “expectation Allen, Clause. and Hewitt v. it, the As the court saw Helms, U.S. regulations prisoners with command of the L.Ed.2d 675 came to stand for the — point be released” —so low total scores “shall proposition ‘explicitly that a state’s “use that the “total the Board’s discretion limited mandatory language,’ in connection with the effectively pa- point determine[d] score ‘specified predi- establishment of substantive Board could role decision.” discretion, limit cates’ to forces a conclusion indicated disregard determination that the state has created a interest.” guidelines, the Board could do so Kentucky Dep’t Thompson, Corrections The court there- for unusual circumstances. 454, 463, U.S. fore concluded that Constitution (1989). L.Ed.2d 506 pris- Board to conduct Supreme Where the Court stands on this sufficiently point with low total scores oners subject longer is no certain. Sandin v. Con parole eligibility dates in advance of their —ner, — , they they as as could be released soon dealing pris L.Ed.2d 418 a case with eligible prisoners and to all became disciplinary proceedings, roundly on criti explain- denied with more information just methodology cized the ing the reasons for the denial. described. The majority thought gone Sandin the Court had B Helms, astray, particularly in Hewitt v. when liberty depend it made interests on the By of the district court’s the time dichotomy” “somewhat mechanical between decision, on Supreme Court had settled mandatory state that were and approach to the Due Process Clause at — , discretionary. those that were Id. thereof, existence, or lack of a made the 115 S.Ct. at 2298. The five Justices lan turn on the dissent, majority, agreed Sandin and two guage regulations governing parole. approach this had created undesirable there “is no constitutional or inherent While for to cabin disincentives states the discre person conditionally right of a convicted be prison tion of officials: states that set down expiration of a valid sen released before guidelines prison exposed strict for officials (Greenholtz, 7, at 442 U.S. at 99 S.Ct. tence” claims; themselves to constitutional those 2104), parole regulations might re a state’s prison to control that set down no rules quire release after a board “deter (in discretion) from such officials immunized themselves that the neces mines its broad (Board at — , 2299; claims. Id. 115 S.Ct. at id. sary prerequisites exist” Pardons J., 2415, — , joined by Allen, 369, 376, (Ginsburg, at 2303 Ste v. 482 U.S. (1987)), vens, J., 2419, dissenting).4 The in which event Court also be- 96 L.Ed.2d 303 _57 _50 lengthy history repeated has had failures The offender has The offender criminally-related substance abuse. parole supervision. under _58 _51 opportunity, but offense(s) involve(s) The offender had the on-go- The instant or effort toward rehabilitation made little no ing criminal behavior. remaining _52 preparation if or crime-free history lengthy The offender has a community. released to the criminally-related alcohol abuse. _59 program re- The offender needs and/or _53 history repetitive, The offender has services to minimize risk to .the habilitation sophisticated behavior. criminal communily actually when released to _54 unusually The offender has an extensive record, including prior at least or serious message was not lost on D.C. officials. 4. This felony 1994, five convictions. 25, July the D.C. Council amended On _55 offense(s) involve(s) The instant unusual replace with §§ 204.19-.21 to the word “shall” victim(s). cruelty to “may" repealed Appendices 2-1 2-2. _56 1994, engaged repeated 10- The offender Act of D.C.Act Technical Amendments 5193, 52(c)-(f), extremely negative D.C.Reg. be- 5203. This serious institutional 16, 1995, May legislation effective on havior. became approach” does this leave us? Sandin “the Hewitt had insinu- Where lieved that or Allen or management did not overrule Greenholtz into the courts ated federal — Supreme other Court decision. U.S. come,” “The time has prisons. state 5, 115 n. n. 5. To -& S.Ct. at & said, “to return to the due Court sure, reasoning embodied in abandoned the ... before the manda- principles established” applied to opinions, those at least insofar as dichotomy Id. tory-discretionary took hold. prisoners challenging the conditions of their at-, at 2300. state laws 115 S.Ct. While or the administration of the confinement protected by still create interests situation, prison. In this we think the Clause, Due Process henceforth “these open comply course to us is to with the rule generally be limited to freedom interests will Rodriguez Quijas expressed de v. Shear which, exceeding while not from restraint Inc., Express, son/American unexpected in such an manner as to sentence (1989): 1917, 104 “If L.Ed.2d 526 give protection the Due Process rise precedent application of this Court has direct force, im- of its own ... nonetheless Clause ease, yet appears in a to rest on reasons atypical significant hardship on the poses decisions, rejected in some other line of ordinary inmate in relation to the incidents of Appeals Court of should follow the case prison life.” Id. controls, directly leaving to this which prerogative overruling deci own dealing The Sandin test relates to claims 1921-22; sions.” Id. at see day-to-day management prisons. Smith, Trucking also American Ass’ns v. parole eligibility It seems ill-fitted to deter- is, Parole minations. the words San- (1990); $639,- L.Ed.2d United States din, surely a “freedom from restraint” but Currency, 558 in United States 955 F.2d always itself will be an “ordi- the restraint (D.C.Cir.1992). Until the Court instructs nary prison In incident life.” Id. other otherwise, us we must follow Greenholtz and words, prisoner parole if, if a is denied in— Sandin, because, they Allen unlike are di Sandin, prisoner terms of is restrained— rectly point. on Both cases deal with a prisoner “atypical” will never suffer an or prisoner’s liberty parole; in interest Sandin “significant hardship” compared as to other language not. does And so we return to the prisoners. He will continue to serve his sen- regulations. of the under the same as tence conditions his fellow argument inmates. There is no room for an independent regu Our review of the parole always imposes that the denial of ex- lations leads us to doubt whether the district traordinary by hardship extending length correctly degree court estimated the to which incarceration, gives and therefore rise to a guidelines the numerical control the Board’s liberty protected by interest the Due Process judgment. chapter The first section of the simply recasting That Clause. is a of the parole recognizes authority on the Board’s Greenholtz, argument rejected in 442 U.S. prisoner “to release a on in its discre — 7-11, 2103-06, (em 99 S.Ct. at and unaffected 28, § tion.” 200.1 liberty added). a Sandin —that interest phasis The calculations done under directly stems from the Constitution without regulations are intended to “enable the regard yet given when, to state law. And Green- Board to exercise its discretion Allen, when, holtz and an inferior court could not incompatible release is not (em that, accept argument safety community.” § no matter what added). provides, prisoner’s regulations state law a in phasis interest characterize parole can never amount to a Factor as “an actuarial the Salient Score protected by prognosis degree the Due Process Clause. aid to assess

two months date would be entitled to have their deter- after the district court’s decision. 10-255, (1995). D.C.Reg. See D.C.Law The moot this case. If we were to regulations. the old mined in accordance with parties agree changes these did Compare ales, -U.S.-, Dep’t Corrections Mor- California conclude that 115 S.Ct. 131 L.Ed.2d regulations unamended est, did create inter- Graham, with Weaverv. possible prisoners it is who committed (1981). 67 L.Ed.2d 17 prior their crimes to the amendment’s effective 204.3) 204.19(b). (§ Instead, supervision. and as level of parolee” posed risk calculating parole factors used the Board refused to follow the indicated “one of the provisions of this pursuant to the eligibility parole. making result denied this n (§204.2). more, pro- these decision, Without section” part the Board relied on one of court’s question the district call into visions countervailing specifically factors listed provided that the numerical scores conclusion 2-1 and in Appendix the Board’s Adden- “effectively determine[] by the fact that dum —the Ellis’s offenses involved Furthermore, reg- decision.” cruelty unusual to his victims. The Board authorize the Board to dis- explicitly ulations psychologi- was also concerned that a recent simply by guidelines regard the numerical “impul- cal assessment had described Ellis as aggravating miti- referring specific “the sive and rebellious with low tolerance for Appendices gating as stated factors prone physical frustration and to act out with Among list- § 204.1. such factors and 2-2.” aggression.” factor This last was not listed Appendices are “Other” ed these Appendix 2-1 or in the Adden- Board’s App. change in circumstances.” “Other apparently dum. But did not 2-35; App. at 2-38. precluded relying think this it from on the scarcely constraining language. Instead, “Other” unlisted factor. the Board invoked following interpretation: un- suggests the It category the residual of “Other” as basis regulations, prisoner with a low der the denying parole. for un- granted parole be point total score shall opinion An of the District of Columbia Board, in the exercise of its discre- less the Appeals, Court of handed down after the tion, there is some other reason for believes case, district court decision this ends all granting him The case of the meaning reg doubt about the Board’s Ellis, revealing in plaintiff, lead Michael Hyman, ulations. McRae v. 667 A.2d regard. had been sentenced to 18- this Ellis (D.C.1995), presented the same issue gun point years abducting women at now before us: whether the District of Co brutally rap- separate three occasions and on parole regulations lumbia create “a constitu January ing Ellis was them. Before Id. tionally protected liberty interest.” management problem” who had to “serious In order to decide that issue the Court disciplined repeatedly for misconduct. we, that Appeals recognized, as have immediately years preceding his ini- the two regulations with an first had to construe any parole hearing, avoided disci- tial Ellis eye determining the extent to which the to completed his plinary infractions and General statutory grant deny or Board’s discretion to Drug Abuse Equivalency Diploma, a Alcohol Id. at 1358- parole had circumscribed. been Program, self- Treatment and several other system, scoring to the the court 59. As help programs. Ellis had Because “rigid merely guide, not a viewed this as conviction, only 21 single prior criminal was formula,” and not a constraint on the discre years rapes, time of the had not old upon tion conferred im- imprisoned or otherwise restricted been Id. at 1360-61. Under § of statute. mediately prior conviction for those to his regulations, if Board wished to disre offenses, or and was not addicted to heroin system gard scoring it the results of the Factor opiates, Ellis received Salient Score Id. at 1361. say writing. merely so in had eight, indicating that he a fair was grant or The “Board is not to either regulations, risk risk. Pursuant to the his upon attained.” deny parole based the score adjusted up for of his level was the violence Id. The Court of Appeals “ma[d]e therefore crimes, adjusted for his but was back down implied in” two of its recent explicit what was during conduct the most recent two model namely, that the statute end, years imprisonment. of his In the he decisions5— regulations vest substantial discre and the point According a total of 1. received score deny parole and court, grant this tion in the Board reasoning to the of the district “manda- high regulations lack the sort of parole, subject him to a that the score entitled Henderson, (D.C.1995). (D.C.1994); Hyman, 652 A.2d 634 Davis v. 5. White v. 647 A.2d 1175 ...; against liberty ... of evidence support a tions disclosure tory needed to character” ...; 1357, 1367. opportunity to heard in him be Id. at interest. present and documenta- person, to witnesses by the are not bound we evidence, ry and to confront and cross-exam- interpretation Appeals’s D.C.Court (unless hearing adverse witnesses ine Constitution, respect must its construc we good specifically officer finds cause Rogers, 457 Mills v. tion of D.C. law. See confrontation) allowing at a before 2442, 2448-51, 291, 300-04, Board; Board or a member of the and a (1982); Mississip Clemons v. L.Ed.2d 16 cf. statement of the Board’s final deter- written 1441, 1447-48, 738, 747, 110 pi 494 U.S. S.Ct. 219.1(b). § The is also mination.” (1990). own L.Ed.2d 725 Since both our timé, place, “approximate told of the reading Appeals’s and the D.C.Court hearing.” purpose(s) regulations indicate that the District’s 219.1(c). hearings Revocation must be “required after the Board deter is never reasonably place “at or near the of the held necessary prerequisites that the exist” mines arrest, sixty alleged parole violation or within 2419) (Allen, 376, 107 482 U.S. at (60) days of the interview.” prisoner’s point score does that a low total policy requires 219.3. Board that revoca- “eompel[ grant prisoner ] the Board to days tion held after the within (Price, 371), 53 F.3d at we hold that release” Board is notified of the execution of a war- give any prisoners a do not rant. procedures The imposed in the district court the name of due opinion, district its memorandum process were therefore unwarranted. that “[s]inee court concluded the defendants preliminary hearings do not offer

II violators, alleged parole they are in clear brings This us to the matter of requirements Morrissey.” violation of the Brewer, Morrissey v. revocation. Furthermore, because the evidence showed 33 L.Ed.2d 484 deny that “Defendants also revocation hear- that a state not terminate a established days ings within 60 and even 90 to a small parolee’s conditional consistent with significant alleged parole but number of vio- the Due Process Clause unless follows lators,” they were in “clear violation of Mor- orderly process, however informal.” “some rissey.” at 2601.’ Our concern

Id. adequacy therefore is the constitutional B procedures the District Columbia already place. has in Preliminary “hearings.” unfortunately problem first not men —one A parties incongruity tioned be —is regulations, opinion

Under the Board’s whenever tween the district court’s and its probable opinion speaks there is to believe that a order. the of the cause While need parolee “preliminary hearings,” has committed a crime or otherwise the order re parole, quires something violated the conditions of the Board different: the Board must “provide prompt preliminary or a member of the Board a a interview issue parolee’s warrant for the arrest. D.C.Mun. when a warrant issued the Board has 28, Regs. against parolee §§ 217.1-.7. After for a the warrant been executed violation_” added). executed, parolee right (emphasis is the “has the As a mat- law, preliminary ... we cannot have interview at or rea- ter of constitutional make injunction. sonably alleged parole portion place near the of the sense of this of the The arrest, already grant parolee unnecessary violation or without de- Board’s rules each the interview, interview, lay.” § right preliminary 219.1. In the to a “without unnecessary delay.” § parolee the is informed of the condi- 219.1. There is no allegedly ignoring tions violated and is informed of his indication that the Board is the rule. right might suppose is “to written notice of the claimed viola- One there difference be-

1421 interview, arrested, they parties as where and the “prompt” preliminary were tween a ordered, disputed and one held “without parolee court whether either ever re- the pro- unnecessary delay,” as the Board’s rule hearing any ceived a revocation kind. Id. imagine how that But we cannot 478, vides. at at 2596. The S.Ct. Court held that of constitution- amount difference would to.a “lg factors, process due ]iven these would event, and, any the district magnitude al require inquiry seem to that some minimal that it did. This would be court never hinted reasonably place conducted at or near the enough portion the of the to reverse cause alleged parole violation or arrest as It regarding preliminary interviews.6 order promptly as convenient after arrest.” Id. at all, is, appealable, the order which is after added). 485, (emphasis at S.Ct. The opinion. 28 1291. not the court’s U.S.C. purpose inquiry of this minimal was to deter- that district suppose possible probable it is mine if supported We cause the arrest. hearing and a court considered an interview Id, at 92 S.Ct. at 2603. The decision- synonymous, although the terms have al- as officer, maker could be an administrative but legal ways quite carried different connota- person not the as the officer— —such opinion, spoke court about tions. In its “initially dealing with the case.” Id. at present allowing parolee “speak, infor- at Before final 2603. revocation mation, question witnesses.” adverse determination, right had a also that the Board must This seems assume time, hearing within a reasonable at whieh witnesses, scarcely which is what one call present he could evidence and examine wit- expect in an As we would to occur interview. nesses. Id. at 92 S.Ct. at 2603-04. said, parties nothing make have Morrissey The Court disclaimed intent They pay of the court’s order. atten- terms imposing pa- “an inflexible structure for- opinion. argu- Their tion to the court’s procedures.” role Id. at proceed assumption- on the ments writing at enjoined to hold an eviden- S.Ct. 2604. The task such “a court purpose determining procedure” responsibility code of was tiary hearing for the supported the war- whether cause each state. Id. at 92 S.Ct. at 2604. The correct, assumption rejected argument rant. if that we specifically Even Court portion still reverse this of the order. persons facing parole revocation must receive procedural protection pro- the same level of discussing what sort of informal vided to criminal defendants. “No interest revoked, before can be process; would be served in this formalism Morrissey began proposition with the Court utility informality will not lessen the of this process is and calls for that “due flexible reducing inquiry in the risk of error.” Id. at procedural protections particular as the such stating broadly at 2603. While situation demands.” parolees given right to have to be cases, said, many 2600. confront and witnesses in both cross-examine lag is “a substantial time between the there hearings, preliminary and final revocation and the eventual determination” and arrest recognized parolees the Court need not parolees places are often held at far from - rights informant receive these when “an they arrested. Id. at where were subjected of harm if his parolees in Morris- would be to risk 5.Ct. two away identity sey held 100 and 250 miles were disclosed” when were Instead, violation, proce- procedures.” "[s]uch state 6. In the absence of a due the state authority to order the requirements district court had no state dural must be enforced in comply procedures. Therefore, own Board to with its The courts under state law.” Id. at 649. government a local has mere fact that state or improper it was for the district court order the procedures does mean established certain cpnduct prompt preliminary Board to interviews. thereby procedures become that those substan reason, we affirm the district For the same to federal tive interests entitled constitu comply with court's refusal to order the Board protection. tional Brandon v. District Colum 204.19-22, 219.3, 219.8, 204.1, 219.1, §§ and Parole, 644, (D.C.Cir. bia Bd. 823 F.2d plaintiffs regulations, had as the “ 1987). To hold otherwise 'federalize’— complaint. requested in Count IV of their indeed, every deviation from 'constitutionalize' — adversary proceeding the attendant deny pro- “good cause” to such found officer 2603, counsel, confrontation, 487, 489, rights cross-exami at 2604. 92 S.Ct. cess. Id. at nation, compulsory process. Id. at and Scarpelli following year, Gagnon in v. The 123, at 867-68. Probable 95 S.Ct. 778, 1756, L.Ed.2d 656 411 U.S. 93 S.Ct. held, cause, “traditionally has been the Court (1973), probationer held that the Court nonadversary magistrate in a decided Illinois, County, and later in Cook arrested proceeding hearsay and written testimo on Wisconsin, Bay, with- incarcerated Green approved infor ny, and the Court has these hearing preliminary to a out a was entitled 120, proof.” mal modes of Id. condi- final revocation under the and 782, Morrissey. specified in Id. tions cautioned, The Court how- at 1759-60. analogy pro- a close between the There is ever, require Morrissey did not live of the Board of Parole and the issu- cedures casés; “affidavits, deposi- testimony in all ance of arrest warrants criminal eases tions, documentary might suf- evidence” and large and difference between the there is 5,n. 93 S.Ct. at 1760 n. 5. fice. Id. at 783 presented one situation here Morrissey the states Neither did “foreclose Morrissey. in the District Parole violators holding both the and the from custody pa- taken into of Columbia are place hearings at the of violation or final only role after the Board of Parole violations developing other creative solutions to from or a thereof issues a violator member Morrissey re- practical difficulties proba- on a warrant based determination quirements.” Id. parolee cause to believe the committed a ble later, years said that no A few new offense or violated a condition of re- preliminary hearing parolee if the 28, 217.3, §§ lease. already subsequent been convicted of a has 217.5, respect, 217.7. this 78, Moody Daggett, offense. v. 429 U.S. 86- magistrate deciding functions as does a 7, n. 89 & n. 97 S.Ct. 278-80 & whether to issue an arrest warrant. The (1976). supreme L.Ed.2d 236 One state in both instances is same— standard preliminary hearings held that are court has cause;, probable proceedings are non- both unnecessary if final revocation adversary; the evidence considered days of v. held within 30 arrest. State hearsay writing; live witnesses need P.2d Myers, 86 Wash.2d called; target not be and the of the arrest (in (1976) banc), approval cited with is, reasons, present.7 for obvious If that Washington Pierre v. State Bd. Prison is constitutional in the criminal context —and (9th Cir.1983); Terms, 699 F.2d see suppose it is—one would it to be constitu- DeLomba, 117 R.I. also State tional the context of revocation. (1977) 1273, 1275 (probation). A.2d hand, system On the other Morrissey authorized the officer su- authority To this line of must be added parolee’s pervising the release to direct his Pugh, Gerstein v. (and arrest. For that reason because 43 L.Ed.2d 54 decided under the parolee might place far be arrested Fourth had Amendment. defendant incarceration) Morrissey of his later authority prosecu- been arrested on the of a parolee entitled to a Court held was tor’s information. The Court held that indepen- judicial proceeding an informal before an probable cause determination was necessary but that the need not dent decisionmaker —such as member of state (b) History parolee supervi- for the warrant while under 7. When the basis offense, parolee's alleged sion; commission of a new must the Board that: make "written determination” (c) outstanding other Whether the charges; criminal (d) there is cause to believe that of the offense for which the Seriousness parolee has committed the crime for which he parolee has been arrested. following: or she was arrested and as to the D.C.Mun.Regs: tit. 217.3. (a) community Risk to the if the is parole; to allowed remain on sey again again to determine stressed that informal of Parole —in order Board ar- procedures cause existed for the probable suffice and that the “full whether significant is panoply rights The difference here rest. due a defendant crimi- [a —the probable or its member makes prosecution] apply parole Board nal does not A before the arrest.8 480, 482, 487, cause determination revocations.” 408 U.S. at inis all cases inter- decisionmaker 2600, 2600-01, Furthermore, neutral at officer and posed between far from clear what the Gerstein Court parolee is taken into cus- parolee before the sought convey by comparing criminal tri- This, Gagnon, tody. the words hearings “pro- als with revocation terms of at 1760 n. is the at 783 n. 93 S.Ct. U.S. if, against initial tection “initial error” — problem “creative solution” to the District’s error,” improper the Court meant an arrest. Morrissey addressed. trial, thought, A criminal we would have giving “protec- serves a other than function only pronouncing hesitation Our against prob- tion” made on than arrests less hearing proce pre-revocation District’s acquittal A able cause. defendant’s does not constitutionally sufficient stems dures arrested; wrongly show that he was it shows grounds two for of Gerstein’s the second government prove that the did not his preliminary pa distinguishing Morrissey. A guilt beyond a reasonable doubt. And a hearing, the Court role revocation Gerstein may through defendant be convicted over- wrote, probable cause deter “more than the if, whelming proof even at the time of his required mination the Fourth Amend arrest, police enough did not have ment, evi- purpose gathering serves the support dence to the warrant. Much the testimony, since the final rev preserving live reasoning applies hearing frequently is held some at same to revocation hear- ocation place ings, although proof pre- from the where the vio some distance standard at 121 n. 95 ponderance lation occurred.” U.S. of the evidence. at 867 n. 22. The added raté, At the Gerstein Court’s may proceedings pro offer less “revocation protecting lone statement about the need for initial than the more for

tection from error against initial errors strikes us as an ex at 121-22 n. process_” mal criminal Id. tremely thin reed on which rest constitu n. 22. first 95 S.Ct. at 867 The Court’s tional mandate that the Board must hold differentiating process of issu- ground for evidentiary hearings to determine testimony live ing arrest warrants —in which already having despite cause the Board’s support parolee’s is not —cannot necessary probable cause determi made the testimony right to live before constitutional magistrates in the same manner as nations hearing. There is no reason his revocation issuing warrants in criminal prosecu arrest in the- District of to believe violators 481, 487, 490, Morrissey, 408 U.S. at tions. frequently far from are detained Columbia 2600, 2603, 2604-05, and later 92 S.Ct. place of violations. Given the small their 5, 788, 790, n. Gagnon, 411 U.S. at 783 District, every reason to size of the there is 5, 1762-63, 1763-64, at 1760 n. said opposite. As to the Court’s sec- believe the requirements flexible and due are distinguishing Morrissey, it is ground for ond variable, procedures be infor that the in the doubtless true revocation mal; “an there should be uninvolved than criminal trials. District are less formal preliminary evaluation person to make [the] where this consideration But we not sure believing of the basis the conditions Court could hard- should lead. Gerstein Morrissey, 408 been violated.” have ly have meant that because at 2602. In an analo 92 S.Ct. hearing is less formal and less elaborate than circumstance, emphasized also trial, gous Gerstein pre-revocation procedures a criminal pretrial proce to view the State’s the need more formal and more elaborate must be a whole.” 420 U.S. pre-trial procedures. criminal Morris- dure “as than report regarding the giving a detailed rests and officer must sub- 8. A District Columbia Board, super- parolee's adjustment pre- overall under request for a warrant mit senting request 213.10. upon vision. the evidence which the 1424 where; Here, finding of an “unadorned of a statistical the Board’s determination

at 868. step probable pattern” cause is not the last before the is at not sufficient. Id. 96 hearing. parolee Each taken into Washing- revocation Applying at 606-07. Rizzo S.Ct. custody right prompt prelimi- to a Cullinane, ton v. Mobilization Committee nary interview. (D.C.Cir.1977), 566 F.2d 107 this court de- requirement § 219.1. there is no injunction any clined to sustain absent law for live witnesses at the under District “directed, showing that the defendants au- interview, is notified of the sub- approved” allegedly thorized or unconsti- alleged violations and of the stance of his (citing tutional conduct. Id. at 122 also rights afforded him in the revoca- that will be Washington Community, Free Inc. v. Wil- hearing, part fulfill at tion which least (D.C.Cir.1973)). son, 484 F.2d preliminary hearing. function of a Further- Even if mistakes were made in some instanc- more, parties agree all that under es, “it extrapolate is not reasonable to policy in a mo- Board’s which more —of general policy of lawlessness from such mis- hearings ment —final revocation must be held takes.” 566 F.2d at 123. days within 30 execution violator regulations require The District’s revoca- Consolidating preliminary warrants. hearings days tion to be held within 60 of the hearings single pro- final revocation into a (§ 219.3), preliminary par- interview and the ceeding constitutionally permissible. E.g., is agree policy requires ties that Board revoca- Gagnon, 411 at 783 n. at 1760 U.S. hearings days tion to be held within 30 5; Pierre, after n. 699 F.2d at 473. Without notice of a warrant’s execution. If pre-detention determination followed, policy interview, sys- Board’s the District’s cause and without the clearly comports holding process. final tem with due the Board’s hear- revocation ings space days may Morrissey, within the short U.S. 92 S.Ct. at 2603- process. thus fulfill the demands of due itself 04. There is no indication that of the procedures place, ordered, authorized, With those other individual defendants system constitutionally Board’s sufficient. approved deviations from the norm. Wash- Committee, ington Mobilization F.2d Hearings. 2. Revocation end, simply the district court presented by final issue is the district court’s relied on the kind of “unadorned statistical order that the Board conduct all final Rizzo, evidence” deemed insufficient in hearings days revocation within 90 espe- U.S. at 96 S.Ct. at 606. This was execution, despite warrant’s the fact that the cially delays unwarranted because extended policy practice Board has neither a nor a cases; may well be reasonable in individual refusing provide hearings revocation with everything depends on the reason for the in that time. The district court was im delay. Moody, 429 U.S. at pressed by evidence that the Board “den[ies] 278-79; Wingo, Barker v. cf. hearings days within 60 and even 2182, 2191-92, 92 S.Ct. 33 L.Ed.2d 101 days significant within to a small but (1972). We therefore conclude that the evi- alleged parole number of violators.” This dence is insufficient a matter of law to as support evidence cannot the court’s order. support injunction ordering the Board to Goode, 362, 379-80, See Rizzo days. conduct revocation within 90 598, 608-09, (1976). 46 L.Ed.2d 561 Injunctive type relief is warranted in this pervasive 1983 action if there is “a Ill

pattern flowing plan ... from a deliberate district court’s order We reverse the re- the named defendants.” Id. at (internal omitted). quiring the District of Board of quotations at 606 Columbia To es parole hearings enough far Parole to hold pattern, plain tablish the existence of such a prisoners’ parole eligibility tiffs must show advance of dates either the local officials responsibility prisoners had so that be released on that allegedly direct uncon stitutional if the decisions are in behavior or that the incidence of date Board’s favor of parole; requiring such misconduct was more than severe else- cer-

1425 appellees to claims such as those that them in is fatal prisoners to assist to tain material depends type of con- raise on the discretion parole decisions understanding the Board’s ferred. cases; and, parole respect to with in their revocations, Board to offer requiring the final issue in this case involves individ- parole after interviews” prompt “preliminary who, earning pa- after their release on uals parole to executed and are

warrants role, allegedly are later rearrested for violat- days than 90 hearings no more ing parole. the terms of their court’s the district We affirm because, thereafter. in parolees some are rearrested to refusing enjoin the defendants Board, to order of of the Board or a member view regula- procedural the Board’s comply they with to believe that probable cause exists crimes, the District of tions. have committed other parole regulations authorize rear- Columbia part, part. reversed in in Affirmed probable cause to believe rest when there is has violated even a minor that concurring in TATEL, Judge, part Circuit parole, of condition in dissenting part: and (1987), keeping parole § offi- such as work, and see cer informed residence portions of the court’s I two concur 207.6(j), geographic remaining within fixed- prop- agree that the district court opinion. I limits, 207.6(c), following “all in- see and of Colum- require to the District erly refused 207.6(i). officer, § parole of a structions” comply its own Parole to with Board of bia injunction’s court reverses the Because the agree I that we regulations. also procedural requirement the District Columbia court’s order re- the district cannot sustain prompt preliminary parol- to offer final revocation the Board to hold quiring violating parole are rearrested for ees who ninety days. hearings within conditions, charged violating -with individuals respect to the court’s reversal of With may conditions of wait even minor timely parole requirement of court’s district days having jail up thirty before for judgment I in the hearings, concur they have been opportunity to show that agree I reasoning. part of the court’s is, wrongfully arrested —that that the Board Hyman, my colleagues that McRae v. they lacked cause to believe (D.C.1995), Dis- a decision of the A.2d 1356 view, my In violated a condition Appeals rendered trict of Columbia Court per- District of Columbia injunction, court issued its after the district satisfy process re- the due mit this do Appeals clear that the D.C. Court makes Brewer, Morrissey v. 408 U.S. quirements of interprets the District Columbia (1972). I 33 L.Ed.2d S.Ct. requiring Board to regulations as never respectfully dissent. I any inmate. therefore grant parole to I. give regulations do not

agree that the liberty constitutionally protected rise to determining District of Co- whether the point separately on this interest. I write liberty regulations create a lumbia explain why I believe that reasons: my colleagues two parole, follow v. Ne principle Allen, established Greenholtz they do so hesi- but Greenholtz Inmates, 1, 12, 442 U.S. light Penal tantly, suggesting braska of the Su- 2100, 2106, Sandin, L.Ed.2d 668 decision preme Court’s recent Allen, “[wjhere Pardons v. on this Supreme Board Court stands 2415, 2418-20, Maj. op. 96 L.Ed.2d longer certain.” subject is no (1987) view, statutory regulatory lan and should my or Sandin does —that prison place. In San- requiring parole of certain Allen guage Greenholtz and leave constitutionally protected din, its discussion gives rise to a the Court restricted ers changes in conditions and should survive based on interest —does claims — confinement, it was Conner, U.S.-, suggesting that nowhere Sandin altering parole precedents. (1995); overruling 2293, 132 empha and to or L.Ed.2d 418 immediately Indeed, Allen cited presence of discretion that whether the size the. stating, recognize rigid “we that States tem is not a formula ... because the after grant deny Board is not under certain circumstances create either attained”). upon protected by based the score Be- interests which the Due — Sandin, at-, Appeals cause we are bound D.C. Court of Process Clause.” My that, interpretations of colleagues agree at 2300. District Columbia mu- nicipal regulations, appel- notwithstanding dispar- the Sandin McRae is fatal to Court’s liberty regulations lees’ claim that the agement of the search for interests in are sufficient- ly mandatory liberty mandatory language, to create a interest see id. at-& 5; parole. n. at 2298-2300 & n. see also at-, J., (Ginsburg, id. 115 S.Ct. at 2303 upon interpret regu- Were we called the dissenting) (suggesting protected liberty afresh, lations I reach a con- different interests derive from the Due Process Clause clusion, the same conclusion that the district itself, mandatory language in not “from local court reached. McRae and other D.C. Court codes”), prison Supreme the Court has not Appeals interpreting parole reg- cases the ap- instructed lower courts to abandon this regulations’ ulations have focused on the proach parole. Maj. op. the context of See grants of considerable “discretion” to the at 1418. the Whatever merits the distinc- carefully considering Board without what mandatory discretionary tion between regulations sort of discretion the confer. language only when minor conditions of con- Supreme distinguished Court has be- stake, finement are at I think the distinction discretion, types tween two one of which is determining makes sense in the context of perfectly compatible with the existence of a prisoner protected liberty whether a has a liberty Supreme interest. As the ex- parole. interest Parole decisions do not plained in Allen: simply implicate minor conditions of confine- [T]he [Greenholtz] Court made a distinc- ment, but per- instead determine whether a entirely tion between two distinct uses of restraint, physical son will be free un- the term discretion. In one sense of the deniably liberty great a interest and one of word, an official has discretion when he or Clause, substance. Under the Due Process simply by she “is not bound standards set government may imprison person only the a by authority question.” In this Where, pursuant through to law. the use of sense, officials who pa- have been told to mandatory jurisdiction’s language, a law re- they role whomever wish have discre- quires prisoners prior the release of certain tion- But the term discretion in- sentences, expiration to the keeping their signify stead that “an official must use persons imprisoned such for the duration of judgment applying the standards set deprives

their sentences them of ab- words, him authority”; in [or her] other legal sent authorization and thus without due an official has discretion when the stan- process of principle law. The embodied in statutory dards set regulatory Greenholtz and Allen is therefore sound: applied mechanically.” scheme “cannot be requiring parole Laws prisoners under The Court determined Greenholtz that specified give certain circumstances rise to a presence of official discretion in this constitutionally protected liberty interest. incompatible sense with the exis- tence of a in parole release determining In appellees whether the have when release is after the Board constitutionally protected liberty interest in (in discretion) determines its broad parole, key question is therefore whether necessary prerequisites exist. parole regulations the District of Columbia Allen, 107 S.Ct. at 2419 require grant parole the Board to under Taking Rights (quoting Ronald Dworkin, certain circumstances. The D.C. Court of SeRIously (1977)) (citations omitted) 31-32 Appeals recently made clear that inter- Allen). (pronoun alteration prets regulations requiring as not ever prisoner view, the Board to my language release on of the District of McRae, See (holding parole regulations 667 A.2d at 1360-61 Columbia in effect at the parole regulations’ sys- that, that the suggests “numerical time of district court order ” specific or consider circum- “shall not count unusual circum- presenting in cases added). (emphases Ap- stances. 204.5-.16 Board stances, confer on the regulations regulations includes score pendix form of discre- second Parole calculating the SFS. Subsection sheet applying judgment in to use power tion —the provides that Board shall use “[t]he 204.17 relatively more specified standards —not SFS to candidate’s determine Al- first form discretion. unbounded categories] applies to risk [of four] which though amendments —re- added). (emphasis “may” candidate.” the word “shall” with placing the word Appendix points are accordance regu- repealing the in three subsections category. The assigned to each risk Board worksheets —went parole calculation lations’ that, determining instructed whether then court entered after the district into effect parole, it granted should be a candidate of order, Amendments Act Technical see “pre and 52(c)-(f), “shall consider” nine enumerated 10-302, § 1994, D.C.Act based on post incarceration factors” institu- 5193, 5203 D.C.Law D.C.Reg. prisoner’s the (1995) (effective tional behavior and whether May date D.C.Reg. past or convictions involved the use current version of 16,1995), here the earlier I discuss violence, drugs. § weapons, or 204.18 arguably govern regulations, which would the added). A in (emphasis Appendix scoresheet of the for some members parole decisions the assigns for each of these points factors. plaintiff class. that, after the regulations then of the District 204 of title 28 Section assigned an inmate a be- Board has score Municipal Regulations, entitled Columbia granted” for “[p]arole shall be tween and Parole,” man- Granting uses for “Procedures scores, supervision degree with the certain pro- throughout. It first datory language score, “[p]arole and varying on the based vides: scores. 204.19- shall be for other .denied” determining whether As its criteria for added). Finally, (emphases .21 subsection or paroled shall be incarcerated individual regulations provides: 204.22 of the criteria the Board shall use the reparoled, circumstances, may, in unusual The Board Appendices 2- in and set this section forth pre post and incar- the and the waive SFS criteria chapter. this 1 and 2-2 to These chapter factors set forth this ceration fac- post-incarceration and pre consist of grant deny parole to a or candidate. Board to exercise its enable the tors which case, specify shall In that the Board when, when, release discretion it used to de- writing factors which those safety the incompatible with the pro- part application the strict community. Any parole decision release , chapter. of this visions numerically falling the determined outside Appendix 2-1 A “Decision Worksheet” explained reference guideline shall be for a possible lists reasons decision mitigating aggravating or specific to the Among the rea- “outside of the Guidelines.” 2- Appendices 2-1 and factors as stated “[r]epeated as specific items such sons supervision,” as as well failure under (1987) (em- 28, § 204.1 “[o]th- items such as general fill-in-the-blank added). pro- then 204.2 phases Subsection factors and pre-incarceration “[o]ther er” assign each Board shall “[t]he vides that change circum- [post-incarceration] score for a salient factor candidate stances.” (SFS)” calculating parole eligibili- use for added). Analyzed types terms of the two (emphasis ty. Subsection Allen, regula- these calcu- discretion discussed purposes that the “[f]or 204.4 states may, the provide that Board SFS, assign a tions seem to Board shall lating circumstances, exercise categories, depending upon of six value to each” numerical prisoner’s of discretion. When forms prior and both including, example, for convictions added). unusual, has free rein case is (emphasis § 204.4 incarcerations. parole, pro- grant not to or regula- decide whether categories, the of these six For each ab- its reasons. state vided it Board that “shall” tions instruct circumstances, however, violations, purpose, alleged parole and the of unusual id. sence 2602-03; regulations appears language of the to re- grant parole prisoners parolee quire permitted speak present the Board to be determining qualifying hearing, scores. evidence and witnesses id. at 2603; present, unusual circumstances are 92 S.Ct. at whether be permitted form the Board exercises the second of dis- to confront and ad- cross-examine witnesses, judgment in using applying a set verse unless “an informant would cretion — subjected specified identity standards. one of the to risk of harm if his disclosed,” id.; criteria on which the Board a were base that the “[ojth- finding of unusual officer state the reasons his or her deci- circumstances — identify evidence, supporting er” —leaves the Board considerable flexibili- sion and id. ty, the Board’s discretion is- constrained Although the District of Columbia Board requirement factor listed as policy Parole requiring the Board to “[ojther” prisoner’s must render indeed thirty hold final revocation within ease “unusual.” days after the Board is notified that a interpret

If we were free to executed, warrant has been the Board does way, they give protected this rise to a provide preliminary hearing of the sort parole interest under Greenholtz required Morrissey. Instead, the District Ap- and Allen. Because the D.C. Court of “preliminary a offers interview” at which the peals authoritatively interpreted reg- the parolee parole receives notice the condi- provide ulations to that the Board is never allegedly tions violated and is informed of required scoring to abide the numerical rights what his or her will be at the subse- however, system, agree I that the quent parole hearing. revocation See do not create a (1987). 28, § Be- parolee opportunity

cause the has no to con- finding probable II. test the supporting cause warrant, the the interview does not my colleagues, I Unlike believe that the satisfy requirements Morrissey. For provide prompt prelimi Board’s failure to reason, this the district court found the nary hearings upon executing parole revoca Board in violation of the Due Process Clause. places tion warrants it in violation of Morris- Although required the district court’s order sey. Morrissey holds that the Due Process the District to prompt preliminary hold “a person a Clause entitles whose re is interview,” Columbia, Ellis v. District No. first, hearings: voked to two parolee’s after a (D.D.C. 1995) 91-3041, 30, (order), 2at Mar. alleged parole arrest and detention for an “ opinion accompanying the order indicates violation, prompt ‘preliminary hearing a that actually district court intended to determine whether there is cause or direct the preliminary Board to “the ground reasonable to believe that the arrest hearings required by Morrissey,” Ellis v. parolee ed has committed acts that would Columbia, District slip op. No. at conditions,” constitute a violation of (D.D.C. 1995) (mem.). 30, Mar. Because 485, 2602; second, 408 U.S. at 92 S.Ct. at parties agree seem to that what a final “leadfingj revocation to a final requires district court’s Morrissey- order is a any evaluation of contested relevant facts style preliminary hearing, this were court to and consideration of whether the facts as appellees’ share the views the due revocation,” determined warrant id. at case, easily issues this we could resolve the Morrissey 92 S.Ct. at 2608. The Court ex discrepancy between the district court’s or- that, plained although preliminary hear opinion by remanding der and its either informal, ing is to be see id. at 92 S.Ct. by modifying clarification or the order our- process requires at proba due that the selves. ble cause determination “be made some directly case,” one not involved in assuming id. at Even that district court’s 2602; parolee 92 S.Ct. at requires prompt be order the Board to hold given preliminary hearing, preliminary hearings notice of the of the sort described response at 1759. In Id. at 93 S.Ct. however, colleagues conclude my Morrissey, Morrissey argument that the including to Wisconsin’s both procedures, Board’s that the practical problems cause requirements would final revocation and a interview regarding compacts interstate for states with days, satisfy the de thirty hearing within parolees, probationers and supervision of The court Process Clause. the Due mands of unmoved, stating: “Some Gagnon Court was announcing pro simply Morrissey as treats any disruption inevitably attends amount of disagree. I in like cases. cedure confident, ruling. are ruling, new We constitutional broad Morrissey Court issued however, of the interstate that modification might require obviously knew one that undue strain the compact can remove without existing parole revoca modify their states to compliance technical hurdles acknowledging more serious procedures. tion 5,n. Morrissey.” Id. at 782 already parole with devised many states had own, 1760 n. 5. their see Mor procedures at 2604 at 488 n. 92 S.Ct. rissey, 408 U.S. to limit support their efforts Morris- pro of due requirements and that the n. facts, my colleagues point out that sey to its flexible, Morrissey never cess justifica- Morrissey Court offered two requirements basic identified certain theless requirement: two-hearing tions for the follow. The Court’s states must “[tjhere lag typically a substantial time Morrissey requirements that the statement and the final rev- between the arrest” on impose great burden “should determination, “it and that ocation system,” id. State’s place arrested at a distant that the ex suggests that the Court likewise institution, may be to which he the state require those implement pected the states [parole revocation] final returned before the holding of its limitation The Court’s ments. Morrissey, 408 at is made.” U.S. decision id., parole,” further to “future revocations 485, of the word at 2602. The uses S.Ct. it recognition that the Court’s demonstrates be,” may phrase “it how- “typically” and the previously not imposing requirements was ever, awareness that sub- show the Court’s Acknowledging that it by all states. followed and final lags between arrest stantial time procedure” be “write a code of could not hearing always do not occur and responsibility of each “that is the cause place of the place of arrest and the that the in State,” its decision Morris- the Court saw always distant. may not be hearing final requirements minimum “deciding the sey as broad, gen- a nevertheless issued The Court 92 S.Ct. process.” Id. of due prelimi- requiring all states to offer eral rule hearings in addition to final revocation nary Morrissey suggests Nothing hearings. Morrissey to im- The Court’s intention hearing requirement preliminary requirement on all states two-hearing pose a where a apply to a small state would Scarpelli, 411 Gagnon v. U.S. clear from place of arrest great between distance (1973), 1756, 778, 36 L.Ed.2d 93 S.Ct. hearing final would place of the and the Morrissey year the Court one after which requirement unlikely or that protections to due the same extended was not a case in which distance apply 782, id. at revocations. See probation may to its facts Limiting a case problem. Gagnon, the Court at 1759-60. our own applying appropriate when well be Morrissey as follows: described court we as a lower federal precedents, but parolee enti- that a Specifically, we held directives to follow the required are hearings, preliminary a two one tled to directives when those Supreme Court even arrest and deten- hearing at the time of his announc- facts of the case beyond the extend proba- there is whether tion to determine ing them. that he has committed cause to believe ble Morrissey the Court recognize that I and the other a parole, of his a violation absolutely in- an to establish hearing did not intend comprehensive more somewhat Indeed, Gagnon the flexible scheme. final revocation making of the prior to the to fore- not “intend did Court stated decision. developing ... ... that he or close the States she violated the conditions of me, practical satisfy to the creative solutions difficulties To this does not Morris- requirements.” Morrissey sey’s, requirement preliminary hearing 5, promptly at 1760 n. 5. held 783 n. Absent “as as convenient after ar- Supreme Morrissey, instruction from the rest.” 408 U.S. at Morrissey down states water re at 2602. however, quirements, trying a court to deter Although the Ninth Circuit has ruled that jurisdiction’s procedures mine whether a preliminary hearing is not if a acceptable “creative solution” to the diffi provides state a final revocation hear imposed by Morrissey culties should test ing twenty-one days, within Pierre see v. those, procedures asking they whether Washington State Bd. Prison Terms & guarantee parolees substantially pro all the Paroles, (9th Cir.1983), 699 F.2d Morrissey procedures pro tections that the and some state courts have similar reached Moody Daggett, v. vide. periods thirty days conclusions for or less good 50 L.Ed.2d 236 ais involving parole probation in cases revo There, example. pre the Court held that a see, cation, e.g., Myers, State v. 86 Wash.2d liminary hearing necessary is not when a (1976) (en banc) (up 545 P.2d offense, parolee subsequent is convicted of a holding provision single probation of a revo subsequent obviously for the conviction es hearing thirty days cation within of issuance probable parolee tablishes cause that the vio warrant), of arrest the Seventh Circuit has lated conditions. Id. at 86 n. 97 suggested ten-day in dictum that even a de parolee S.Ct. at 278 n. 7. A convicted of a lay holding preliminary hearing may subsequent nothing offense loses when a standard, Morrissey violate the see Luther no state offers' at which Molina, (7th 627 F.2d 75 n. 3 Cir. to contest cause revoca 1980). explained, As the Seventh Circuit tion; parolee already oppor had an Burger Morrissey “Chief Justice [in ] tunity government’s to contest the charges contemplating seemed to be an almost im proof under a standard of more favorable to hearing; mediate which one would occur parolee than would be available even before the transported was

Morrissey preliminary hearing. prison.” federal Id. at 74 n. 3. The Sev My colleagues regard constitutionally as a enth Circuit Congress noted that when re acceptable “creative solution” parole system the District’s vised years the federal a few requirement pre-detention of a finding decision, Morrissey provided after it probable by a among cause neutral changes parolee administrator its that a alleged to provision and preliminary of a parole interview fol- have violated a condition is to entitled hearing lowed a final revocation “preliminary within a hearing ... without unneces thirty days. if per- sary delay, Even the Constitution to if probable determine there is mits states to preliminary “[c]onsolidat[e] the to cause believe that he has violated a condi and final single revocation into a parole.” tion of his Id. at (quoting proceeding,” Maj. 4214(a)(1)(A)) op. see I do not (ellipsis original; U.S.C. in thirty-day delay omitted). think that a is quotation constitutional- interrial marks ly acceptable. Morrissey’s Under Report accompanying dual Senate the bill intro structure, hearing wrongfully a pa- ducing unnecessary delay” detained the “without lan given prompt rolee must be a opportunity guage timing prelimi stated: “The probable contest the finding per- nary crucial; cause hearing particularly and is even if haps regain liberty. found, his or her probable But parolee under cause is not if a procedures, the District’s parolee wrongful- jail in awaiting held his for more ly perhaps days, job on account of a probably misun- than one or two his will detained — derstanding part parole on the of a reintegration badly officer as be lost and his efforts S.Rep. parolee’s to- the disrupted.” whereabouts or satisfaction (quoting Id. at 74 n. 3 jail thirty conditions —can sit in Cong., (1975), for No. 94th 1st Sess. 25-26 days opportunity 347) (in with no reprinted to demonstrate that in 1976 U.S.C.C.A.N. omitted). probable quotation course, lacks cause to believe ternal marks Of Amendment, Morrissey, 408 U.S. at see not Congress are members views of holding in it rested its issues this the constitutional dispositive of Amendment, which it on the Fourth Gerstein evaluating whether But presents. case that ‘process is due’ “define[s] held alone District during which thirty-day period in crimi persons property for seizures of may be incarcerated parolees of Columbia eases, including suspects the detention-of nal be heard satisfies opportunity to an without Gerstein, trial,” at 125 n. pending telling I find Morrissey requirements, justifying at 868 n. 27. Report ac- of the Senate the authors Amendment, on the Fourth exclusive reliance implementing Mor- legislation companying explained “[t]he the Gerstein delay lasting over rissey thought explicitly tailored Fourth Amendment was problematic. days two justice system,” and “the the criminal for holdings suggest, the colleagues myAs probable cause determi Fourth Amendment Pugh, 420 U.S. v. Morrissey and Gerstein stage of an in fact nation is the first 854, 867-68, 43 L.Ed.2d 54 108, 123, 95 S.Ct. system, unique jurisprudence, elaborate tension. appear to be considerable rights safeguard the of those designed to Morrissey says that the Constitu Id. con of criminal conduct.” accused contest early opportunity an requires tion trast, Morrissey that “the stated the Court is rearrested cause when part of a criminal is not revocation conditions, holds Gerstein violating parole for panoply full prosecution and thus the guarantee not does the Constitution proceeding in such a rights due a defendant is first person when a opportunity such Mor apply revocations.” does committing a criminal allegedly detained rissey, 92 S.Ct. at reasoning of Gerstein Although the act. then, Process Clause af Perhaps, the Due Morrissey's rationale doubt on some cast protections pre procedural fords more efforts to Court’s although the Gerstein pro liminary stage entirely con Morrissey distinguish were in the the Fourth Amendment cess than does view, 1422-23, my Maj. op. at vincing, see prosecution be pretrial phase of criminal message for lower courts important most a criminal trial ex protections cause Court’s carry away from Gerstein revocation hear in a final ceed those is that distinguish two cases attempts to ing. The Ger- Morrissey place. left the Court distinguishing be- the merits of Whatever Morrissey Brewer “In v. Court stated: stein pre- proceedings and parole revocation tween held that Gagnon Scarpelli, we ground that the former on the trial detention prior to revo probationer arrested parolee or Due Process Clause while governed to an informal is entitled cation Amend- the Fourth governed by latter is arrest, place of with some hearing at the ment, may still be alive the distinction Gerstein, testimony.” provision for live context, v. in States United another well. 22, 22 at 867 n. 121 n. S.Ct. U.S. Property, 510 U.S. Daniel Good Real James omitted). year (citations explaining one the L.Ed.2d hearing preliminary Moody in that no later although recently stated that Supreme Court convicted parolee has been when a required governed property of is- civil forfeiture the offense, Supreme Court subsequent of a the and the Due Amendment the Fourth both hearing which preliminary spoke of “the Clause, of or detention “the arrest Process upon for a Morrissey requires arrest subjects [the suspects ... [are] criminal n. Moody, at 86 429 U.S. violation.” governed to be ha[s] considered Court] added). (emphasis at 278 n. 7 Fourth Amendment provisions of the the Morrissey in constitutional to other reference further reason follow without A at-, 499. consti- Id. different spite guarantees.” of lies the Gerstein [of the seizure noted that “unlike the two decisions. While The Court bases for tutional proceeding] in a civil Morrissey property on forfeiture holding in real based its Court suspect of a the arrest detention of the Fourteenth ... Process Clause Due pro- regular criminal part as of Fourth of the occurs without mention Amendment cess, safeguards ordinarily where other parolee’s en- revocation is the conviction compliance process.” sure with due Id. another offense. This modification would supports necessary James Daniel Good thus the notion be to conform the order protections Moody’s holding Morrissey’s because extensive ulti- prelimi- trial, mately proce- nary in a criminal afforded is not in such circum- protections required dural Moody, stances. See U.S. 86 n. stages prosecution may of a criminal be few- S.Ct. at 278 n. 7. protections required than the pre-

er

liminary stages proceedings. other sorts governs

If the Due Process Clause is what due revocation proce

dures, holding then the Court’s recent that, exigent

James Daniel Good absent cir

cumstances, requires the Due Process Clause government notice and an NATIONAL ASSOCIATION the AD- FOR opportunity seizing to be heard before real VANCEMENT OF COLORED PEO- property (presumably day) for even a in a PLE, BRANCH, JEFFERSON COUNTY case, at-, civil forfeiture see 510 al., Appellees, et 505, suggests parolees S.Ct. at detained alleged parole violations are entitled to prompt probable cause within a UNITED STATES SUGAR CORPORA- days. matter of Even if we doubted the Sugar TION and Cane Growers Co- possibility satisfactorily reconciling Mor operative Florida, Appellants. Gerstein, rissey, property seizure cases Good, such as James Daniel proper Nos. 95-5110. respect course for us with to this issue would United Appeals, States Court of today be the same course we follow District of Columbia Circuit. respect supposed to the tension between Greenholtz and Allen on the one hand and Argued March 1996. apply Sandin on other: We should May Decided “directly point.” Maj. decision that is op. on Supreme explained at 1418. As the Court passage majority today quotes opinion: precedent

Part I.B. of its “If a Supreme]

[the Court application has direct ease, yet appears reject to rest on reasons decisions,

ed in some other line of the Court Appeals should follow the which case di controls,

rectly leaving Supreme to the prerogative overruling its own deci Rodriguez Quijos

sions.” de v. Shear Inc., Express, son/American 1921-22, 104 L.Ed.2d 526 484, 109 (1989). I would Morrissey thus follow de

spite doubt that Gerstein east on

Morrissey’s Morrissey rationale. concerns revocation; Gerstein does not. agree I thus with the district

court that the Board’s failure pre-

liminary hearings Morrissey, violates I would

modify the district court’s order to make it

inapplicable to cases in which the basis for

Case Details

Case Name: Michael Ellis, Appellees/cross-Appellants v. District of Columbia, Appellants/cross-Appellees

Court Name: Court of Appeals for the D.C. Circuit

Date Published: May 28, 1996

Citation: 84 F.3d 1413

Docket Number: 95-7090, 95-7109

Court Abbreviation: D.C. Cir.