443 F.2d 1079 (2nd Cir. 1971), 817, United States ex rel. Bey v. Connecticut State Bd. of Parole

Docket Nº:817, 35107.
Citation:443 F.2d 1079
Party Name:UNITED STATES ex rel. John BEY, Petitioner-Appellant, v. CONNECTICUT STATE BOARD OF PAROLE, Respondent-Appellee.
Case Date:May 17, 1971
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 1079

443 F.2d 1079 (2nd Cir. 1971)

UNITED STATES ex rel. John BEY, Petitioner-Appellant,

v.

CONNECTICUT STATE BOARD OF PAROLE, Respondent-Appellee.

No. 817, 35107.

United States Court of Appeals, Second Circuit.

May 17, 1971

Argued April 14, 1971.

Page 1080

Robert Hermann, New York City (Milton Adler, The Legal Aid Society, New York City, on the brief), for petitioner-appellant.

Stephen J. O'Neill, Asst. Atty. Gen. (Robert K. Killian, Atty. Gen. Of Conn., on the brief), for respondent-appellee.

Before WATERMAN, SMITH and KAUFMAN, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

Nearly a century after its inception as one aspect of a reform movement still widely identified as the 'new' penology, the device of releasing prisoners from incarceration on a trial basis as parolees has long since gained common acceptance by the penal systems of every state. 1 Unlike most other Circuits, this court until recently has had little occasion to consider constraints that Fourteenth Amendment guarantees may place on the operation of state parole systems. This appeal, however, requires us for the third time within a year to decide whether an important aspect of a state's parole procedures operates to deprive affected prisoners and parolees of due process of law.

Last term we held in Menechino v. Oswald, 430 F.2d 403 (2d Cir. 1970), that due process did not guarantee legal representation to New York State prisoners when they appeared at a hearing to determine whether they would be released on parole. 2 The instant appeal presents the question, expressly reserved for later decision in Menechino, but since decided affirmatively by New York's highest court, 3 whether the Constitution nevertheless requires that parolees be afforded legal assistance at a proceeding to determine whether parole status should be revoked. We hold that it does, and that Bey, the petitioner and appellant here, was not accorded due process of law when his parole was revoked and he was reimprisoned following a 1960 hearing before the Connecticut Board of Parole where Bey appeared alone, but was not represented by a lawyer.

I.

An appreciation of the issue presented to us, and our resolution of it, requires a preliminary understanding of the functioning of the Connecticut parole system as it was constituted in 1960. For purposes of deciding this case, the operation of the system is best described with reference to Bey's own history of brief release and subsequent recommitment to prison more than ten years ago, where he has remained confined since.

Pursuant to state law, Conn.Gen.Stat. §§ 54-125, 54-126, appellant was released as a parolee from the Connecticut State Prison on June 10, 1960, where he had been serving a life term for second degree murder. Bey's release was necessarily premised on a finding by the parole board that there was a 'reasonable probability that (he would) live and remain at liberty without violating the law and * * * (that his) release (was)

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not incompatible with the welfare of society.' Id. § 54-125. The board was required to arrive at this finding only after weighing a complex of factors, many intangible and subjective. 4

Bey was released from prison in the custody of a parole officer under standard conditions stated on a form signed by Bey prior to his release. The restrictions included a requirement that Bey not 'own, possess, use, sell, or have under his control any deadly weapons or firearms,' and that he not leave Connecticut without prior permission from a parole board staff member.

The events following Bey's provisional release that resulted eventually in his arrest and reimprisonment less than six months later, on November 30, 1960, are known to us only through a report prepared by a parole officer, Earl C. Mercer, 5 after Bey was arrested and in preparation for his revocation hearing. By Mercer's account, Bey appears to have performed the duties required of him by each of three jobs he held while on parole satisfactorily. He, nevertheless, seemed to progressively disappoint, annoy, and disturb his employers and eventually his parole officer.

During the period of his release, Bey was employed successively in unskilled jobs at the Radiant Baseboard Plant in Newington, the Porter School in Farmington, and the Institution of Living in Hartford, a mental institution, all in Connecticut. In each instance minor difficulties developed shortly after Bey assumed each new job. For example, while he was employed at the Newington plant, Bey's parole officer was required to investigate a report by Bey's landlady that he was engaged in a 'sex orgy.'

Bey later admitted, according to the parole officer, that a friend had arranged to provide him with a girl with whom to have sexual relations. The landlady entered Bey's room to find him on his bed with the girl, a bottle of whiskey on the floor, and his friend in a nearby chair. The parole officer was disturbed not only over the incident but by Bey's apparent 'belligerence' at his landlady's and parole officer's interference with his private affairs. The parole officer was also annoyed at Bey's complaints that his job was unsuitable, that he was receiving inadequate medical treatment for boils and a lame shoulder, and that the services provided him by the parole officer were in other ways inadequate.

At the Porter School, the foreman at the school and the parole officer eventually became 'very apprehensive' that Bey was becoming too involved with one of the girl students there, whose ages ranged from 13 to 16 years. The bases for their suspicions are not revealed in Mercer's report. Similarly, while Bey was working as a groundsman at the Institute of Living, his parole officer was told by an official at the Porter School that Bey was writing 'upsetting' letters to girls and faculty members at Porter and had become 'a little too friendly' with two of the girls. Events began to come to a head when the parole officer learned that, contrary to the officer's instructions, Bey had persisted in talking freely about his prison record, and that Bey sometimes bought whiskey which he took to his room but which others consumed there. Finally, on November 29, Bey's parole officer received a call from an unnamed individual 'whose word (was) believed to be reliable by the parole officer,' reporting that Bey had threatened to leave Connecticut without informing the parole board, had shown a dagger of knife

Page 1082

to a fellow-employee, and had bragged that he had killed a policeman before and 'could kill again if anyone bothered him.' A search of Bey's room was conducted the next morning, after Bey had gone to work, by two parole officers and the Assistant Personnel Director at the Institute. A 'new English style hunting knife was found in a paper box under some clean clothing on a shelf in Bey's closet,' in the words of Mercer's report. Bey was taken into custody and returned to prison later the same day.

Mercer's report, dated December 14, was addressed to the Executive Secretary of the Parole Board, James I. McIlduff. Notably, Mercer considered the knife incident, although a clear violation of a parole condition (see p. 3006 supra), 'in itself not of tremendous import.' Based on Bey's past record, as well as his record on parole, and on 'a number of psychiatric evaluations which have been made,' Mercer described Bey as 'an extremely unstable individual' and 'potentially dangerous.' According to Mercer, Bey's parole officer had decided that 'it is incompatible with the welfare of society that John Bey be continued on parole.' Because he considered Bey to be 'mentally incapable of accepting the responsibilities of parole,' Mercer recommended that he 'should not be re-paroled without extensive psychiatric study.'

The procedures to be followed after Bey's arrest and return to prison were prescribed by the parole board Regulation 'Revocation of Parole.' Bey was to have 'reasonable notice of the charges against him' and 'an opportunity to appear before the parole board at its next regular meeting at the State Prison to admit, deny, or explain the violation charged.' After considering the case, the parole board could select any of five options for disposing of Bey's case. Thus, Bey could be reprimanded; his parole might be continued under more stringent conditions, or closer supervision; time previously earned toward reduction of his term of imprisonment could be withheld or withdrawn; and of course, his parole could simply be revoked.

Following a hearing conducted December 21, 1960, at which Rey appeared pro se, the Board chose the last, most severe, alternative. As an automatic consequence of parole revocation, Bey was remanded to prison to serve the unexpired portion of the term of his maximum sentence at the date of his violation of a parole condition. Although he could be reconsidered for parole at any time, he would automatically be heard again for possible release on parole only after serving another year of imprisonment. Parole Board Regulation X.C, D. Although Bey's arrest was statutorily authorized for any reason 'deem(ed) sufficient' by the parole board, a precondition to parole revocation and reincarceration was that Bey had been arrested 'for violation of his parole.' Conn.Gen.Stat. § 54-128(a).

At the time it revoked Bey's parole, the board had before it Bey's testimony (there is nothing in the record to indicate the nature of the testimony), Mercer's report, and also a much briefer report prepared by the Executive Secretary, James McIlduff. McIlduff's report consisted of a digest of Mercer's report, in the main stressing aspects least favorable to Bey, and miscellaneous representations based on Bey's previous record. For example, McIlduff described Bey as...

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