Franklin v. Shields

Decision Date24 April 1978
Docket Number75-2057 and 75-2167,Nos. 75-2056,s. 75-2056
Citation569 F.2d 784
PartiesLynell FRANKLIN, Charles Jones, Lawrence Wilson, and Charles R. Vette, Appellants, v. Pleasant C. SHIELDS, Morris L. Ridley, W. K. Cunningham, Margaret Davis, N. W. Perdue, Appellees. Lynell FRANKLIN, Charles Jones, Lawrence Wilson, and Charles R. Vette, Appellees, v. Pleasant C. SHIELDS, Morris L. Ridley, W. K. Cunningham, Margaret Davis, N. W. Perdue, Appellants. Lee Royal WILLIAMS, Appellee, v. VIRGINIA PROBATION AND PAROLE BOARD, Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Michael Woodward, Third Year Law Student (Michael E. Geltner, New York City (court-assigned counsel) on brief), for appellee in 75-2167.

Linwood T. Wells, Jr., Asst. Atty. Gen., Richmond, Va. and (Andrew P. Miller, Atty. Gen. of Va., Richmond, Va., on brief), for appellants in 75-2057 and 75-2167 and appellees in 75-2056.

Before WINTER and BUTZNER, Circuit Judges, and FIELD, Senior Circuit Judge.

BUTZNER, Circuit Judge:

On appeal, the Virginia Probation and Parole Board challenges the district court's ruling that the fourteenth amendment's due process clause applies to parole release proceedings. We affirm. Both the Board and the prisoners question the specific procedural safeguards which the court found were constitutionally required in such proceedings. With respect to these, we affirm in part, reverse in part, and remand.

The four plaintiffs in Franklin 1 are Virginia prisoners who were eligible for parole but were denied release. Each filed a pro se complaint challenging the procedures by which they were denied parole and requesting injunctive relief and damages. The district court consolidated the four cases and appointed counsel, granting leave to file an amended complaint. Named as defendants were the five members of the Virginia Probation and Parole Board in their individual and representative capacities. The plaintiffs sought injunctive relief on behalf of a class consisting of all Virginia prisoners potentially eligible for parole. On appeal, we consolidated Franklin with Williams, 2 which raises substantially the same issues.

The prisoners argue that the due process clause entitles them to the following protections with respect to parole:

(1) Written notice or access to written notice of the standards and criteria used by the Board in determining whether parole will be granted;

(2) A hearing and personal appearance before the Board regarding the parole decision in their cases;

(3) An opportunity to inspect their prison files which are utilized by the Board in determining whether parole will be granted;

(4) An opportunity at the parole hearing to call witnesses and present evidence in support of a favorable parole decision, and an opportunity to cross-examine persons who have provided information to the Board which adversely affects their chances for parole;

(5) Appointed counsel or appropriate counsel substitutes at the hearing when specific facts are in dispute or when counsel is needed to assist them in communicating; and

(6) A statement of reasons for the denial of parole that are substantially related to the criteria used by the Board in making parole determinations and an indication of the changes in attitudes, habits, etc. which will be required before parole will be granted.

After the initial complaints were filed, the Board adopted several of these procedures as a matter of policy. Nonetheless, it denied that they were constitutionally required, and it refused to give assurances that they would be retained.

In Franklin, the district court concluded that parole proceedings are subject to the due process clause. 3 Specifically, it held that the standards and criteria governing parole decisions must be published; that a personal hearing is required; that prisoners must be allowed access to the information in their files on which the parole decision is based, unless such access would threaten prison security or potentially harm the inmate or others; and that prisoners must be given a statement of reasons when parole is denied. The district judge concluded, however, that due process does not require that prisoners be given the right to call and cross-examine witnesses, nor does it require that counsel be allowed at parole hearings. Other than directing the Board to devise a plan to allow prisoners limited access to their files, the court found the Board's existing procedures constitutionally adequate, and it denied all other injunctive relief. It stayed all class relief pending appeal, but kept its injunction in force for the benefit of the individual plaintiffs. Finally, it held that the defendants, having acted in good faith, are immune from damage suits. In Williams, the district court followed Franklin and also ruled that the Board does not have to draft a parole plan for each prisoner.


The fourteenth amendment provides that no state shall "deprive any person of life liberty, or property, without due process of law . . . " The application of this clause to parole proceedings involves two questions: first, is a prisoner's interest in parole protected by the fourteenth amendment; and second, if it is, what specific procedures are required to assure due process of law? We turn to the first issue.

The prisoners' interest in these proceedings is the present right to be considered for parole, a right created by Virginia law. 4 This feature of Virginia's correctional system is not based on any constitutional requirement, because a state is not obliged to provide a parole system for its prisoners. Thus, the prisoners' interest is aptly described as a privilege or a matter of grace. Nevertheless, this characterization of the prisoners' interest does not defeat their claim. The distinction between a right and a privilege is no longer an acceptable basis for determining whether the due process clause applies to a governmental benefit. 5

The Supreme Court has held that if state law creates a right which involves a person's liberty, the individual possessing this right is entitled to "those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated." 6 Relying on this principle, the Court has ruled that the due process clause applies to prison disciplinary proceedings involving forfeiture of statutory privileges and to probation and parole revocation proceedings. 7 Conversely, a state does not deprive a prisoner of due process by summarily transferring him from one prison to another if it has not created a right to confinement in a particular prison. 8 Therefore, we must examine the Virginia statutes governing release on parole: first, to ascertain what rights are granted a prisoner by these statutes; and second, to determine if these rights involve the prisoner's liberty.

Under Virginia law, every person imprisoned for a felony becomes eligible for parole after serving one fourth of his term or 12 years, whichever is less. A person sentenced to life imprisonment becomes eligible after serving 15 years. 9 The Board is authorized to adopt rules granting release on parole, 10 conduct hearings, issue subpoenas, administer oaths, and take testimony. 11 The statutes direct the Board to investigate "the history, the physical and mental condition, and the character of the prisoner, and his conduct, employment and attitude while in prison." 12 The Board must then determine whether parole "will be compatible with the interests of the prisoner and society." 13 The Board must review each eligible prisoner's case annually until he is released. 14 Thus, it is readily apparent from an examination of Virginia law that a prisoner has a right to be considered for parole, and that this right is protected by statutory safeguards.

Since the Virginia statutes contemplate that a prisoner who has satisfied all the requirements for parole will be conditionally released, the Board's investigation and review are crucial. A prisoner has much at stake in properly conducted parole proceedings, for they may result in his conditional freedom. 15 If the proceedings are flawed even unintentionally and in good faith, through reliance on incomplete or incorrect information they may add years to a prisoner's confinement. Consequently, the accuracy and the sufficiency of the information the Board obtains in its investigation, which the statutes require, can have a decisive effect on parole. Also, whether the Board's review is full and fair, as contemplated by the statutes, may be a determinative factor in the grant or denial of parole. Therefore, we hold that the statutes governing the manner in which a prisoner shall be considered for parole confer on the prisoner an interest in liberty.

Because a prisoner has a statutory right to fair parole consideration, and because this right involves the prisoner's liberty, we conclude that parole is subject to the due process clause. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 484 (1974), confirms this conclusion. In Wolff, the Court noted that one effect of depriving a Nebraska prisoner of his statutory good behavior credits is to delay his conditional release. 16 It held that the prisoner was entitled to the minimal due process safeguards necessary to assure that the state would not arbitrarily revoke his credits. 17 Similarly, in Virginia, arbitrary denial of parole would unjustifiably delay a prisoner's conditional release. The fact that the proceeding in Wolff was disciplinary, and therefore, adversary, does not alter our conclusion, although parole reviews are generally considered non-adversary. 18 A person need not be involved in an adversary proceeding to invoke the protection of the due process clause. 19 The non-adversary posture influences which procedural safeguards...

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