523 F.2d 990 (2nd Cir. 1975), 29-35, Cardaropoli v. Norton

Docket Nº:29-35, Docket 75-2005, 75-2015, 75-7023-75-7026, 75-2033.
Citation:523 F.2d 990
Party Name:Paul J. CARDAROPOLI et al., Petitioners-Appellees, v. John J. NORTON, Warden, Federal Correctional Institution, Danbury, Connecticut, et al., Respondents-Appellants.
Case Date:September 29, 1975
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 990

523 F.2d 990 (2nd Cir. 1975)

Paul J. CARDAROPOLI et al., Petitioners-Appellees,

v.

John J. NORTON, Warden, Federal Correctional Institution,

Danbury, Connecticut, et al., Respondents-Appellants.

Nos. 29-35, Docket 75-2005, 75-2015, 75-7023-75-7026, 75-2033.

United States Court of Appeals, Second Circuit

September 29, 1975

Argued Sept. 3, 1975.

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Pierce O'Donnell, Washington, D. C. (Dennis E. Curtis, Stephen Wizner, Michael J. Churgin, New Haven, Conn., on the brief), for petitioners-appellees.

Thaddeus B. Hodgdon, Atty., Dept. of Justice, Washington, D. C. (John C. Keeney, Acting Asst. Atty. Gen., Edward S. Christenbury, Atty., Dept. of Justice, Peter C. Dorsey, U. S. Atty., and Thomas

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F. Maxwell, Asst. U. S. Atty., on the brief), for respondents-appellants.

Before KAUFMAN, Chief Judge, and LUMBARD and ANDERSON, Circuit Judges.

IRVING R. KAUFMAN, Chief Judge:

While lawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen, it is today clear that an iron curtain is not drawn between the prisons of this country and the Constitution. Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Hearings of varying degrees of formality have been required in cases involving revocation of parole, Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), revocation of probation, Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), certain prison disciplinary proceedings, see, e. g., Wolff v. McDonnell, supra, and the involuntary transfer of a prisoner to an institution for the criminally insane. United States ex rel. Schuster v. Herold, 410 F.2d 1071 (2d Cir.), cert. denied, 396 U.S. 847, 90 S.Ct. 81, 24 L.Ed.2d 96 (1969). We are now called upon to decide whether similar procedural safeguards must be extended to federal prisoners prior to their classification as "Special Offenders" or "Special Cases".

I.

A brief overview of the facts relevant to this appeal will place the issues raised in their proper context. Paul Cardaropoli entered the Federal Correctional Institution ("F.C.I.") in Danbury, Connecticut on June 8, 1973, to serve a five-year sentence for conspiracy to distribute, and distribution of, about one gram of cocaine. He discovered by chance three months later that his institutional files had been labelled "Special Offender" 1 on the basis of information contained in a "Report on Convicted Prisoner by United States Attorney." 2 The Report alleged that Cardaropoli had

(1) Associated with several well known organized crime figures in Western Massachusetts, (2) Owned and operated the Hideaway Lounge in Springfield, Massachusetts, a known center for prostitution and drug-related offenses, (3) was present at the so-called "Little Appalachia" meeting in Worcester, Massachusetts, which was attended by every known organized crime figure from Massachusetts and Rhode Island.

Cardaropoli received no prior notice of the classification, nor was he accorded any opportunity to contest its factual basis. Requests in December, 1973, and July, 1974, for Administrative Remedy seeking removal of the label from his file and record proved of no avail.

Cardaropoli first became eligible for furlough in June, 1974. F.C.I. Danbury Policy Statement (Feb. 27, 1974); Bureau of Prisons Policy Statements 7300.12B (January 7, 1974), 7300.12C (July 23, 1974). But his furlough request was rejected by his institutional counselling team, and his administrative appeal to the warden met the same fate. No specific reasons for the denial were revealed. In a subsequent appeal to the Director of the Bureau of Prisons from the decision denying furlough, Cardaropoli contended that the request had been rejected because of his Special Offender designation, and denied any association with organized crime. The Assistant Director of the Bureau gave short shrift to Cardaropoli's claims. He noted that, according to Justice Department records, Cardaropoli was "a known associate of persons connected with organized criminal

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activity," and that he had attended a meeting of such persons in Worcester, Massachusetts.

Consequently, we find the special offender designation is not inappropriate. Except in unusual circumstances, which we do not see here, social furloughs are not ordinarily granted to persons significantly associated with organized criminal activity. 3

Cardaropoli filed a petition for habeas corpus on March 18, 1974, challenging his classification as Special Offender. On October 17, 1974, the District Court for the District of Connecticut, Robert C. Zampano, Judge, ordered the designation removed from Cardaropoli's records and files, and enjoined reclassification in the absence of the procedural protections mandated for the Special Offender program in his decision in Catalano v. United States, 383 F.Supp. 346 (D.Conn.1974) announced eight days earlier. Although the Government here appeals from the orders filed in Cardaropoli and six similar cases, 4 it elected not to appeal the decision from which they were spawned. Nonetheless, we must decide this appeal in the light of the extensive findings of fact concerning the nature and effect of the Special Offender classification, and the safeguards to be afforded, 5 set forth in Judge Zampano's reasoned opinion in Catalano.

II.

To frame Judge Zampano's ruling, a brief description of the prior procedures for classifying Special Offenders, and the grave consequences of this designation, is in order. The Bureau of Prisons, during the pendency of the Catalano case, promulgated a series of standards "to identify and tabulate information on certain special categories of offenders who require greater case management supervision than the usual case." United States Bureau of Prisons Policy Statement 7900.47 (April 30, 1974). These new 6 guidelines set forth eight broad categories meriting Special Offender designation: non-federal prisoners, members of organized crime, protection cases, extreme custody risks, subversives, notorious individuals, persons who have threatened high government officials, and any other offender who requires "especially close supervision."

The modus operandi is that the warden of each prison assigns a staff member to coordinate the Special Offender program. Institution staff members base their initial determination on court records, information from the Central Office of the Bureau of Prisons, "or other reliable sources." 7 Affirmative recommendations to impose Special Offender status are reviewed by the Central Office in Washington, D. C., and, if confirmed,

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prevent the transfer of such inmates or their participation in community programs without prior approval by the Central Office. A stamped notation of these restrictions is recorded on the prisoner's file at the institution. Bureau of Prisons Policy Statement 7900.47, paragraph 6 (April 30, 1974).

Neither these procedures nor those previously in effect afford a prisoner formal notice that he is a possible subject for Special Offender designation, nor do they inform him that the label has been recommended or approved. Moreover, the inmate is not apprised of the factual foundation for the classification and, though his administrative remedies are preserved, Bureau of Prisons Policy Statements 2001.6 (February 14, 1974), 2001.6A (October 18, 1974), "at best these provide merely a review 'on the records.' " Catalano v. United States, supra, 383 F.Supp. at 349.

Perhaps the most significant of Judge Zampano's findings in Catalano is his conclusion that

The consequences of a "Special Offender" classification are significant. In most cases, the designation delays or precludes social furloughs, release to half-way houses and transfers to other correctional institutions; in some cases, the characterization may bar early parole.

383 F.Supp. at 350. The Special Offender's request for temporary leave or transfer is subjected to the additional requirement of securing approval by the Central Office of the Bureau of Prisons. "Inordinate delays are common." Id. Moreover, approval of applications for leave or transfer at the institutional level may often be summarily overruled by the Central Office, "solely on the ground that the petitioners were 'Special Offenders.' " Id. 8

The classification also has significant consequences for an inmate's parole application. The Regional Director of the Board of Parole may designate as within the "original jurisdiction" of the Regional Directors the application of a Special Offender whose label is based upon participation in organized crime. 28 C.F.R. § 2.17(a), (b)(2) (1974). All original jurisdiction cases are eventually submitted for en banc consideration of the five Regional Directors. 28 C.F.R. § 2.17(a) (1974). 9

The Board of Parole does review the underlying evidence relied upon by the Bureau of Prisons in designating an inmate a Special Offender. 10 If the classification is found to have some basis in fact, "his parole release may well be affected, even to the point of exceeding the appropriate length of time prescribed" by the United States Board of Parole Table of Guidelines, 28 C.F.R. § 2.20 (1974). Catalano v. United States, supra, 383 F.Supp. at 350.

III.

We agree with Judge Zampano's finding that social furloughs, work release, transfer to Community Treatment Centers, and the opportunity for early parole are

cognizable benefits extended to all prisoners at the F.C.I. These amenities

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are eagerly solicited and received by the inmates and obviously play a meaningful role in enhancing rehabilitation, reducing frustration, maintaining morale, and minimizing unrest in the prison setting.

Catalano v. United States, supra, 383 F.Supp. at 351. The Special Offender classification works serious alteration in the inmate's conditions of confinement because it hinders or precludes...

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