Alverez v. Turner

• Citation: 422 F.2d 214
• Decision Date: 20 February 1970
• Docket Number: No. 571 to 585-69.,571 to 585-69.
• Parties: Mike ALVEREZ et al., Appellees, v. John W. TURNER, Warden, Utah State Prison, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

422 F.2d 214 (1970)

Mike ALVEREZ et al., Appellees, v. John W. TURNER, Warden, Utah State Prison, Appellant.

Nos. 571 to 585-69.

United States Court of Appeals, Tenth Circuit.

February 20, 1970.

Lauren N. Beasley, Chief Asst. Atty. Gen., for appellant.

Gerald H. Kinghorn and Phil L. Hansen, Salt Lake City, Utah, for appellees.

Before PICKETT, Senior Circuit Judge, and LEWIS and HICKEY, Circuit Judges.

LEWIS, Circuit Judge.

These cases are separate appeals taken by the appellant Turner as Warden of the Utah State Prison from orders of the United States District Court for the District of Utah, Central Division, effectuating the discharge of the appellees from the custody of appellant and returning each appellee to parolee status. Because similar factual and legal questions underlie the appeals, the cases were consolidated for argument, their procedural history with some exceptions to be noted can be generalized, and our views expressed herein are applicable to each case except where specific reference is made to a designated case.

Each appellee has been convicted of a felony in the state courts of Utah; each appellee was subsequently paroled with the parole of each later revoked; each appellee was then returned to the custody of appellant. Apparently triggered by this court's decision in Earnest v. Willingham, 406 F.2d 681, appellees, together with numerous other inmates in the Utah State Prison, filed petitions for federal habeas corpus relief under 28 U.S.C. § 2254 alleging constitutional infirmities in the state parole revocation proceedings that had led to each petitioner's return to custody. The trial court initiated evidentiary hearings and found, preliminarily, that many of the petitioners had been subjected to parole revocation without having been given the opportunity to appear with appointed counsel, although indigent and without waiver of that asserted right.¹ The trial court then directed and allowed subsequent rehearings before the Utah State Board of Pardons. Workman v. Turner, District Court No. C-230-68, (Feb. 19, 1969). The Board obtained counsel for twelve of the appellees, reheard their cases during May, 1969, and again revoked their paroles.² The appellee Hurst had only one hearing, held in April, 1967, at which he was represented by counsel. The appellee Ray Jenkins declined to be reheard without the presence of jailhouse counsel. The appellate record does not reflect that appellee Ornelas was ever accorded a second hearing.

On August 11, 1969, the trial court resumed its evidentiary hearing to determine if the Board had corrected the errors asserted to exist in prior revocation proceedings. On the basis of its supplemental inquiry, the district court found, severally, that each revocation was unconstitutional because petitioner "was denied his constitutional rights to have witnesses under oath and evidence presented, be confronted by his accusers, cross-examine, and have compulsory process." In granting the writs, the court ordered the discharge of all appellees, and it is this order appellant warden contests on appeal.³

The appellate record presented to us is so lacking in specificity that it defies review of individual cases as to any particularized legal or factual premise for the trial court's release of individual appellees. We have before us transcripts of only the second hearings accorded twelve of the appellees before the Board of Pardons and the transcript of the judicial evidentiary hearing. The latter, although consisting of over 200 pages, contains little of evidentiary substance except the continuing admission of the appellant that the appellees who were granted rehearings before the Board were not accorded compulsory process nor other traditional instruments of due process applicable to original trials of persons accused of crime. The remainder of the evidentiary transcript is largely a reflection of extended dissertations by court and counsel of subjective views concerning social justice and conditions at the Utah Prison. Despite record difficulties we are asked to decide, first, whether parole revocation hearings command the rights to witnesses, evidence, confrontation, cross-examination, and compulsory process; and secondly, irrespective of our disposition on the former issue, whether the rehearings measured up to the procedural needs of the occasion.

In Earnest v. Willingham, supra, we held that the federal board's practice of allowing legal representation at hearing if the releasee in question bore that expense infringed the releasee's right to equal protection and that, therefore, the opportunity to appear with appointed as well as retained counsel must be made available to every releasee facing a question of disputed fact. Our opinion in Earnest both explored and updated the judicial posture to conditional release programs, see 406 F.2d at 682, and by way of summary it would only be useful to emphasize that scrutiny of parole revocation hearings has been in practice thus far restricted to a determination of fair play in their conduct. "Early release (be it mandatory release, parole or probation) and revocation hearings are matters of legislative grace not constitutionally mandated." Id., citing Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935). We have repeatedly stated, most recently in Esquivel v. United States, 10 Cir., 414 F.2d 607, 608:

Although a parole revocation hearing need not conform to the dictates of due process * * * procedural "needs of the occasion" must be met to circumscribe the Board\'s discretion. However, whether a parole is revoked for a violation of its terms rests in the sound discretion of the Board of Parole. Brown v. Taylor, 10 Cir., 287 F.2d 334, cert. denied, 366 U.S. 970, 81 S.Ct. 1933, 6 L.Ed.2d 1259.

In the cases at bar any compulsion of Earnest was met for each appellee was afforded counsel at rehearing. In asking us to extend the limited equal protection aspect of Earnest to the broad scope of constitutional due process applicable to trials appellees simply misconceive the nature and procedural requisites of parole revocation hearings. Although a conditional liberty is at stake, the decision to revoke parole is prognostic, for the integrated object of the Board (and every board administering conditional release programs) is "to determine the optimum release date for each inmate after giving full consideration to the nature of the offense, the degree of risk, the release plans, the extent of his rehabilitation, and his potential for living within the norms of society." Rules and Regulations, supra, "Objective of the Board," as amended (1967; July, 1969). As a part of this process, then, a hearing on revocation is directed to reassessing those variables in light of the charged violations of a parolee's agreement of parole. Id., ch. I, § 6(6), ch. III, § 5; see Utah Code Ann. §§ 77-62-15, -16 (1953).

In 1967, the President's Commission suggested questions characteristic of any penological decision, and their application to the proceedings at issue is self-evident:

(1) The extent or degree of threat to the public posed by the individual. Significant clues will be provided by the nature of the present offense, and the length of any prior record;

(2) The extent or degree of an individual\'s commitment to criminal or delinquent values, and the nature of his response to any earlier correctional program;

(3) The kind of personal stability and responsibility evidenced in his employment record, residential patterns, and family support history;

(4) The kind of personal deficiencies apparent, including educational and vocational training needs;

(5) The personal, psychological characteristics of the offender that determine how he perceives the world and his relationship to it. President\'s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 179-80 (1967).

In its Report, the Commission recommended that pardon and parole proceedings be refined in part by channeling more expert and differentiated information into the decision-making process; procedural safeguards associated with due process were not viewed as the means to best implement conditional release programs, presumably due to the type of decision they demand. Id. at 181.

Correspondingly, the Utah State Legislature has mandated that the Board have before it full information from the state Adult Probation and Parole Section and the several penal institutions concerning the internment record of a prisoner, a record on his conduct in the community from which he was committed, and "a complete report on the prisoner's social, psychological, and psychiatric condition and history." Utah Code Ann. § 77-62-8(a) (1953). The warden of the institution in which the prisoner has been confined must detail a report "of the prisoner's institutional record of behavior, discipline, type and manner of work performed, his own efforts to improve his mental and moral condition, and his attitude toward society." A profile of "the physical, mental, and psychiatric condition of the prisoner during the entire period of confinement" must accompany the warden's report. Finally, the law enforcement officials responsible for the legal proceedings leading to a prisoner's commitment must submit a report, and the Adult Probation and Parole Section is required to present the Board a summary of its pre-sentence and pre-parole investigations. Utah Code Ann. §§ 77-62-8(b) (1953). When an indeterminate sentence is imposed, the committing judge must certify to the Board a similar background report. Utah Code Ann. § 77-62-8(c) (1953).

Although this informational pool is usually prepared before a prisoner is first paroled, it remains in the Board's files and obviously provides source material from which to reassess a parolee's overall situation in revocation proceedings. Thus, the Board's necessary familiarity with the prisoner's case history removes...