500 F.2d 925 (2nd Cir. 1974), 617, United States ex rel. Johnson v. Chairman of New York State Bd. of Parole

Docket Nº:617, 73-2581.
Citation:500 F.2d 925
Party Name:UNITED STATES ex rel. Thomas JOHNSON, Petitioner-Appellee, v. CHAIRMAN OF NEW YORK STATE BOARD OF PAROLE and Commissioner of New York State Department of Correctional Services, Respondents-Appellants.
Case Date:June 13, 1974
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 925

500 F.2d 925 (2nd Cir. 1974)

UNITED STATES ex rel. Thomas JOHNSON, Petitioner-Appellee,


CHAIRMAN OF NEW YORK STATE BOARD OF PAROLE and Commissioner of New York State Department of Correctional Services, Respondents-Appellants.

No. 617, 73-2581.

United States Court of Appeals, Second Circuit.

June 13, 1974

Argued Jan. 21, 1974.

Burton Herman, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen., of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, of counsel), for respondents-appellants.

Stanley A. Bass, New York City (NAACP Legal Defense Fund, of counsel), for petitioner-appellee.

Before HAYS, MANSFIELD and OAKES, Circuit Judges.

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MANSFIELD, Circuit Judge:

This appeal by the Chairman of the New York State Board of Parole and the Commissioner of the New York State Department of Correctional Services from an order of Judge John F. Dooling, Jr., of the Eastern District of New York, raises the issue of whether the Due Process Clause of the Fourteenth Amendment requires the New York State Board of Parole to provide inmates of state prison facilities with a written statement of reasons when release on parole is denied them. We hold that it does.

Appellee Thomas Johnson is presently imprisoned in the Auburn Correctional Facility, Auburn, New York, under a sentence of from 15 to 16 years imposed on him as a second felony offender on June 6, 1966, by the New York Supreme Court, Kings County, after a jury trial. In March, 1973, Johnson appeared before members of the New York State Board of Parole, who, on March 13, 1973, denied him parole and continued his imprisonment for another year without giving him any statement of reasons for their decision. In April, 1973, Johnson brought an Article 78 proceeding in the New York Supreme Court, Cayuga County, seeking an order compelling the Board of Parole to inform him of their reasons for denying him parole. This proceeding was dismissed by the court on May 4, 1973, on the grounds that under N.Y. Correction Law § 212 1 the Board's decision was not subject to review since Johnson had made no showing that the parole proceedings were not conducted according to law.

After his Article 78 proceeding was dismissed, a decision which he did not appeal, Johnson on June 26, 1973, commenced the present action in the district court by petitioning for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. However, since Johnson did not seek actual release from custody but merely a statement of reasons for the denial of his parole, the district court, construing Johnson's pro se petition liberally, Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), treated it as an application for injunctive relief under 42 U.S.C. § 1983 which was not subject to an exhaustion of state remedies requirement. See Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968); Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964); Wilwording v. Swenson, 404 U.S. 519, 92 S.Ct. 407, 30 L.Ed.2d 418 (1972). Reaching the merits of the petition, the district court held that as a minimum safeguard against arbitrary action, the due process clause of the Fourteenth Amendment required the Parole Board to state the reasons for denying Johnson release on parole.


Appellants do not seriously question the district court's treatment of the habeas petition as a suit for injunctive relief under 42 U.S.C. § 1983. They contend, however, that our decision in Menechino v. Oswald, 430 F.2d 403 (2d Cir. 1970), cert. denied, 400 U.S. 1023, 91 S.Ct. 588, 27 L.Ed.2d 635 (1971), which upheld dismissal of a prisoner's complaint challenging parole release proceedings on constitutional grounds, mandates dismissal of the petition in this case. We disagree.

The issue before us in Menechino was not merely whether the prisoner desiring parole was entitled to a statement of reasons, but whether he was entitled to a whole gamut of due process rights which he sought as a package, including

'(i) notice of charges, including a substantial summary of the evidence and reports before the Board, (ii) a fair hearing, including the right of counsel, to cross-examination and confrontation and to present favorable evidence and compel the attendance of

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favorable witnesses, and (iii) a specification of the grounds and underlying facts upon which the determination is based; . . .' 430 F.2d at 405.

From the outset the petitioner in Menechino made it clear that his principal interest was in obtaining the right to be represented by counsel and to cross-examine witnesses. His request for a specification of the grounds of the Parole Board's election was at all times subordinated to these primary demands. Indeed, the focus of the arguments, briefs and our opinion in Menechino was almost entirely upon his demand for the right to counsel, cross-examination and introduction of affirmative evidence. It was apparent that unless the full panoply of procedural due process rights sought by him were granted, Menechino was not interested merely in obtaining a statement of the Board's reasons. We therefore gave no consideration to partial relief.

In denying Menechino the full-scale formal trial-type due process rights demanded by him we based our decision mainly on the ground that a parole release, as distinct from a parole revocation, determination is not an adversarial proceeding in which 'charges' are preferred and disputed issues of fact presented, which might require that the weapons of legal counsel, cross-examination and other procedural protections be made available to the prisoner. We noted that, on the contrary, in parole release proceedings, the Board may have an identity of interest with the inmate, at least to the extent of granting release where it will aid in the prisoner's rehabilitation and adjustment to society without presenting an undue risk of further anti-social activity. The significance of the distinction between parole release and parole revocation proceedings was later noted by us in United States ex rel. Bey v. Connecticut, 443 F.2d 1079, 1086 (2d Cir.), vacated as moot, 404 U.S. 879, 92 S.Ct. 196, 30 I.Ed.2d 159 (1971).

A second ground for our decision in Menechino was that since New York had granted almost absolute power to the Board to deny parole and the prisoner did not presently enjoy any liberty, he lacked a sufficient 'interest' to entitle him to procedural due process in a parole release proceeding. We view this second ground as having been superseded by the Supreme Court's rejection of similar reasoning in its more recent decision in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), holding that in parole revocation proceedings the Board must, as a matter of minimum due process, provide the parolee with a hearing. It is true that in Menechino we indicated (430 F.2d at 409) that we might reach the same conclusion in a parole revocation proceeding where the 'parolee, having been released, enjoys a liberty akin to a private interest (of which) . . . the Board is seeking to deprive him . . . because of his alleged violation of one or more of the conditions of his parole,' and that the issues raised by specific charges against a parolee might lend themselves to 'a trial-type hearing, including the right to legal counsel with traditional skills suited to such a controversy,' 430 F.2d at 409. However, we also noted that as of that date all other courts of appeal faced with the issue-- some seven in number-- had held that a parolee was not entitled to such due process protection in parole revocation proceedings. In our view Morrissey not only cast grave doubt upon these decisions but, more important for present purposes, rejected the concept that due process might be denied in parole proceedings on the ground that parole was a 'privilege' rather than a 'right.' 2

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See Graham v. Richardson, 403 U.S. 365, 374, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971). Parole was thenceforth to be treated as a 'conditional liberty,' representing an 'interest' entitled to due process protection. A prisoner's interest in prospective parole, or 'conditional entitlement,' must be treated in like fashion. To hold otherwise would be to create a distinction too gossamer-thin to stand close analysis. Whether the immediate issue be release or revocation, the stakes are the same: conditional freedom versus incarceration.

Our view is strengthened by the fact that most inmates in New York can expect parole. Fifty-four percent of all prisoners released from prison in 1970, according to 46 reporting jurisdictions, left as parolees. Kastenheimer and Eglit, Parole Release Decision-Making: Rehabilitation, Expertise and the Demise of Mythology, 22 Amer,U.L.Rev. 477, 481 (1973). In New York the figure is even higher. In 1972, for instance, the New York State Parole Board released 4,412 inmates on parole, or 75.4% Of the cases coming before it. See 'Report on New York Parole' by Citizens' Inquiry on Parole and Criminal Justice, Inc. (1974), 48. Thus, the average prisoner, having a better than 50% Chance of being granted parole before the expiration of his maximum sentence, has a substantial 'interest' in the outcome. For him, with such a large stake, the Board's determination represents one of the most critical decisions that can affect his life and liberty.

Accordingly we conclude, in light of Morrissey, that some degree of due process attaches to parole release proceedings. This conclusion does not overrule Menechino, which held that an inmate being considered for parole was not entitled to the full panoply of due process rights, including a specification of charges, counsel, and cross-examination, in a non-adversarial determination. A determination that an inmate being considered for release on parole is entitled to one due process weapon (e.g., a statement of reasons) would not...

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