Faheem-El v. Klincar, FAHEEM-EL

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Before BAUER; POSNER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION, and KANNE; FLAUM, Circuit Judge, with whom BAUER, Chief Judge, and CUMMINGS, CUDAHY, POSNER and COFFEY; CUMMINGS, Circuit Judge, with whom CUDAHY; EASTERBROOK, Circuit Judge, with whom
• Citation: 841 F.2d 712
• Parties: Kareem, on his own behalf and on behalf of all others similarly situated, Plaintiff-Appellee, v. Paul KLINCAR, Chairman, Illinois Prison Review Board, Michael Lane, Director, Illinois Department of Corrections, and Harold Thomas, Superintendent, Adult Community Services, Defendants- Appellants.
• Docket Number: No. 85-3008,FAHEEM-EL
• Decision Date: 25 February 1988

Page 712

841 F.2d 712 56 USLW 2554 Kareem FAHEEM-EL, on his own behalf and on behalf of all
others similarly situated, Plaintiff-Appellee,
v.
Paul KLINCAR, Chairman, Illinois Prison Review Board,
Michael Lane, Director, Illinois Department of
Corrections, and Harold Thomas,
Superintendent, Adult
Community Services,
Defendants-
Appellants. No. 85-3008. United States Court of Appeals,
Seventh Circuit. Argued Sept. 15, 1987.
Decided Feb. 25, 1988.

Page 713

Jack Donatelli, Asst. Atty. Gen., Chicago, Ill., for defendants-appellants.

Thomas Peters, Murphy, Peters David & O'Brien, Thomas J. Bamonte, Sachnoff Weaver & Rubenstein, Ltd., Chicago, Ill., for plaintiff-appellee.

Before BAUER, Chief Judge, and CUMMINGS, WOOD, CUDAHY,

Page 714

POSNER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION, and KANNE, Circuit Judges.

FLAUM, Circuit Judge, with whom BAUER, Chief Judge, and CUMMINGS, CUDAHY, POSNER and COFFEY, Circuit Judges, join.

Under Illinois law, parolees arrested on new criminal charges are not considered for bail on these charges pending the outcome of their final parole revocation hearing. Plaintiff Kareem Faheem-El challenged this procedure on behalf of himself and those similarly situated. The district court certified a statewide class of parolees arrested on new criminal charges and granted a preliminary injunction requiring the state of Illinois to consider members of the plaintiff class for bail. The district court concluded that there was a reasonable likelihood that the plaintiff class would be successful on the merits of its claim that the denial of bail consideration for parolees was inconsistent with the Eighth Amendment prohibition against excessive bail, and the requirements of both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. We reverse.

I.

In Illinois, most prisoners are ultimately paroled. Parole ¹ is defined as the "conditional and revocable release of a committed person under the supervision of a parole officer." Ill.Rev.Stat. ch. 38, para. 1005-1-16 (1985). Under Illinois law, parole is administered and regulated by the Illinois Prisoner Review Board ("the Board"). The Board is authorized both to set conditions for parole and to determine whether a violation of those conditions warrants revocation of parole. Id. at para. 1003-3-1(a)(5). Two conditions are imposed on every parolee. A parolee may not (1) violate any criminal statute, or (2) possess a firearm or other dangerous weapon. Id. at para. 1003-3-7(a). The Board may also impose other parole conditions which it "deems necessary to assist the subject in leading a law-abiding life." Id. These other conditions are enumerated in the statute. ² See id. at para. 1003-3-7(b).

If a parolee violates a condition of parole, the Board is empowered to consider a variety of options including modifying the conditions of parole, or revoking parole. Id. at para. 3-3-9(a). The procedure for reviewing alleged parole violations is specified by statute and regulation. ³ The Board is required to send an individual charged with a parole violation written notice of the conditions he or she is alleged to have violated, as well as notice of the time and place of a preliminary hearing ("the preliminary revocation hearing"). Ill.Admin.Code tit. 20, Sec. 1610.140(a) (1985). The preliminary revocation hearing must be held within 10 days of the parolee's arrest, subject to a possible continuance of up to two additional weeks

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if the hearing officer determines that the delay is necessary to produce relevant materials and/or witnesses. Id. at Sec. 1610.140(b)(3).

At the preliminary revocation hearing a Board designated hearing officer "determine[s] if there is cause to hold the person for a [final] revocation hearing." Ill.Rev.Stat. ch. 38, para. 1003-3-9(c) (1985). Parolees are allowed to testify, present witnesses, documents, and other evidence on their own behalf. Ill.Admin.Code tit. 20, Sec. 1610.140(b)(1) (1985). Parolees are also allowed to question witnesses who present adverse information unless the hearing officer determines that disclosure of a witness' identity will subject the witness to risk or harm. Id. If, from the information presented at the preliminary revocation hearing, the hearing officer determines

that there is reasonable ground to believe that the alleged violation did occur, and that there is probable cause to hold the parolee for a final decision of the Prisoner Review Board on revocation, the parolee shall be returned to the institution or facility from which he was released on parole or to another facility of the Department of Corrections.

Id. at Sec. 1610.140(b)(2) (emphasis added). The hearing officer must set forth in writing the basis for his or her determination. Id.

The determination of whether a parolee has actually violated a condition of parole is made at the revocation hearing ("the final revocation hearing"). This hearing must be conducted before at least one member of the Board. Ill.Rev.Stat. ch. 38, para. 1003-3-9(e) (1985). The parolee is entitled to substantially the same procedural safeguards that are required at the preliminary revocation hearing. See Ill.Admin.Code tit. 20, Sec. 1610.150(b). If the panel conducting the revocation hearing determines that a violation has occurred, it decides whether parole should be continued, modified, or revoked. Id. at Sec. 1610.160. If parole is revoked, the parolee is reconfined for a period which is determined under the Prisoner Review Board Rules. See id. at Sec. 1610.160(c).

II.

On January 23, 1984 the rules governing parole revocation became applicable to Kareem Faheem-El, the plaintiff in the present lawsuit. On that day he was arrested and charged with possession of three grams of cocaine. At the time of his arrest Faheem-El was on parole after serving ten years for a murder conviction. On the day of his arrest, a parole warrant was issued and Faheem-El was detained at the Cook County Jail. On February 7, 1984 he was served with formal notice alleging that he had violated a condition of his parole.

Although the Prisoner Review Board Rules require that a parolee receive a preliminary revocation hearing within 10 days of his or her arrest (subject to a possible continuance of up to 14 days), Faheem-El's preliminary revocation hearing was not held until March 1, 1984. The hearing officer determined that there was probable cause to believe that Faheem-El had committed the alleged crime, thereby violating a condition of his parole. He was incarcerated pending his final revocation hearing. This proved to be a substantial period of time. It was not until February 5, 1985, more than a year after his arrest, that Faheem-El received his final revocation hearing and was held to be in violation of his parole.

On March 27, 1984, during the period when he was detained pending his final revocation hearing, Faheem-El brought an action on behalf of himself and others similarly situated under 42 U.S.C. Sec. 1983 and 28 U.S.C. Sec. 2254. The portion of his complaint which is relevant to this appeal ⁴

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alleged that Faheem-El was charged with a bailable offense under Illinois law, but that he was denied bail because he was a parolee at the time of his arrest. On April 30, 1984, Faheem-El, on behalf of the plaintiff class, filed a motion for a preliminary injunction seeking in part an order mandating an immediate bail hearing.

To date the district court has issued two published opinions addressing Faheem-El's case. Faheem-El v. Klincar, 600 F.Supp. 1029 (N.D.Ill.1984) and Faheem-El v. Klincar, 620 F.Supp. 1308 (N.D.Ill.1985). The first opinion worked through a morass of procedural issues. ⁵ In part, the court certified a statewide class of parolees who are presently or in the future will be subject to parole revocation proceedings because of their arrest on new criminal charges. Faheem-El, 600 F.Supp. at 1034-38. The district court also resolved some substantive issues not presently before this court. ⁶

In its second opinion, the district court considered the constitutionality of denying members of the certified class a bail hearing on the new criminal charges. The court concluded that the plaintiff class had a reasonable likelihood of success on the merits on three separate theories. First, the district court reasoned that even if the Eighth Amendment does not guarantee an individual the right to be released on bail, it nevertheless forbids the blanket denial of bail to all parole violators arrested on new charges. Faheem-El, 620 F.Supp. at 1314-18. Second, the district court concluded that the inherent arbitrariness of denying bail to all parolees, regardless of the nature of the original conviction or the new charges, deprived parolees of their liberty interest without due process of law in violation of the Fourteenth Amendment. Id. at 1318-20. Finally, the court determined that Illinois law improperly distinguished between individuals on parole and probation. Id. at 1320-22. Individuals on probation who are arrested on bailable charges are eligible for bail, while parolees are not. The district court held that this distinction was not rationally related to a legitimate state interest and therefore violated the Equal Protection Clause of the Fourteenth Amendment. Concluding that the other requirements for a preliminary injunction were satisfied, the district court entered the injunction.

III.

A district court must consider four factors in deciding whether a preliminary injunction should be granted. These factors are: (1) whether the plaintiff has a reasonable likelihood of success on the merits; (2) whether the plaintiff will have an adequate remedy at law or will be irreparably harmed if the injunction does not issue; (3) whether the threatened injury to the plaintiff outweighs the threatened harm the injunction may inflict on defendant; and (4) whether the granting of the preliminary injunction will disserve the...