Scarpa v. US Board of Parole, No. 71-1602.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPER CURIAM
Citation477 F.2d 278
PartiesRobert J. SCARPA, Petitioner-Appellant, v. U. S. BOARD OF PAROLE, Walter Dunbar, Chairman, et al., Respondents-Appellees.
Decision Date25 May 1973
Docket NumberNo. 71-1602.

477 F.2d 278 (1973)

Robert J. SCARPA, Petitioner-Appellant,
v.
U. S. BOARD OF PAROLE, Walter Dunbar, Chairman, et al., Respondents-Appellees.

No. 71-1602.

United States Court of Appeals, Fifth Circuit.

April 2, 1973.

Rehearing Denied May 25, 1973.


477 F.2d 279

Professor Donald Wilkes, Jr., University of Georgia School of Law, Athens, Ga., Professor Issac B. Covington, III, University of Georgia School of Law, Athens, Ga., for petitioner-appellant.

John W. Stokes, U. S. Atty., Richard H. Still, Jr., Asst. U. S. Atty., Atlanta, Ga., for respondents-appellees.

Before JOHN R. BROWN, Chief Judge, TUTTLE, Senior Circuit Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges.

GEWIN, Circuit Judge:

After affording careful and respectful consideration to the views expressed in the majority panel's disposition of the instant case,1 this court acting en banc reverses the decision of the panel. The district court's judgment dismissing appellant's complaint is therefore affirmed.

In view of the statement of facts contained in the majority and dissenting panel opinions it is necessary to set forth only brief facts in this opinion. On April 7, 1968, Scarpa entered a plea of guilty in the United States District Court for the Eastern District of New York to one count of a four count indictment, charging him with forging endorsements and uttering stolen United States Savings Bonds in violation of 18 U.S.C. § 495. The trial court imposed the maximum sentence of eight years, however, pursuant to 18 U.S.C. § 4208(a)(2),2 the judgment provided that Scarpa would be eligible for parole at any time after his incarceration.3

At the time of his federal conviction, appellant was confined in a New York state prison serving a sentence for attempted robbery and attempted grand larceny.4 Having completed his state sentence, Scarpa commenced serving his

477 F.2d 280
sentence in the United States Penitentiary in Atlanta on July 8, 1969. Approximately three months later, on October 13, 1969, he received his initial hearing before a commissioner of the United States Board of Parole (hereinafter the Board). The Board, after considering the application, denied parole. He subsequently instituted the present action for declaratory relief.5 He based his claim for relief on the internal procedures and practices of the Board which he asserted denied him due process of law. He further urged that the Board did not follow the applicable regulations which govern its internal procedures because it did not fully investigate all the information he submitted in his application for parole.6

The district court denied relief without a hearing. Recognizing the importance of "a full, fair hearing and consideration prior to a parole decision," the court concluded that Scarpa's complaint did not reveal such deprivations. Additionally, the court held that it was not improper for the Board to place controlling emphasis on Scarpa's previous criminal record in denying parole. Ultimately, the district court's judgment was reversed by a divided panel of this court.7

Assuming, as we must,8 that the allegations in Scarpa's complaint are true, the precise issue presented by this appeal is whether he has stated a cause of action upon which a federal court may grant relief. A peripheral issue, and one which is necessarily intertwined with his factual allegations, is whether the ingredients of procedural due process sought by Scarpa are necessary to bring the Board's procedures within minimal constitutional standards. Before reviewing the precise issues of the instant appeal, we feel that a brief review of the applicable law in this area is helpful.

The Board is an independent statutory agency which is granted broad discretionary powers in parole eligibility determinations.9 We have previously held that:

By the language of Title 18 U.S.C.A. § 4203, the Board of Parole is given absolute discretion in matters of parole. The courts are without power to grant a parole or to determine judicially eligibility for parole. United States v. Frederick, 405 F.2d 129 (3d Cir. 1968). Furthermore, it is not the function of the courts to review the discretion of the Board in the denial of the application for parole or to review
477 F.2d 281
the credibility of reports and information received by the Board in making its determination.10

The decision whether to grant parole is a very complicated one.

Many factors are necessarily involved in such determinations. The Board's final determination may be based on any or all of the following: (1) length and seriousness of prior criminal record; (2) family history; (3) marital situation; (4) vocational and professional skills; (5) education; (6) physical condition; (7) living habits in a free community; (8) behavior and progress while incarcerated. The Board possesses the expertise and experience for ascertaining which factors are determinative from the unique situation presented by each applicant.

Scarpa alleges that the Board placed undue emphasis on his prior criminal convictions in denying him parole. Additionally he asserts that it did not investigate his marital situation or the job opportunities which would be available if granted parole.

Two underlying criteria guide the Board in its decision-making process. First, whether there is a reasonable possibility that the prospective parolee will remain at liberty without violating the law, and second, will such release be compatible with the welfare of society.11

Parole is an integral part of the rehabilitative process for convicted felons. One's propensity for criminal conduct is surely a strong indicator in deciding whether parole should be granted.12 The weight to be given Scarpa's criminal history is solely within the province of the Board's broad discretion in determining parole eligibility. It is not the function of the court to secondguess the outcome of such proceedings or what factors went into their formulation.13

We see no reason why the Board should be forced to make a full scale investigation of all the supportive facts used by the prisoner in applying for parole.14 The Board operates under a tremendous work load.15 For example in the instant case, even assuming that Scarpa had a stable family and guaranteed employment, it was not unreasonable for the Board to base their ultimate decision denying Scarpa's parole on his extensive past criminal record.

Scarpa's constitutional challenge is likewise without merit. The specific standards for procedural due process depend upon a "complexity of factors."16 The standards of due process may expand or contract depending on the particular governmental activity involved. However, we discern a distinct and controlling difference between a Board eligibility hearing and the cases relied

477 F.2d 282
upon by Scarpa to support his constitutional attack

All of the authorities cited by Scarpa concern instances where the government seeks to take action which would presumptively deprive one of goods, rights, or privileges which he already possesses. Each case mandates a hearing before governmental action is initiated which might cause a deprivation.17

The emerging and underlying principle is clear; once a cognizable benefit is conferred or received, governmental action must not be employed to deprive or infringe upon that right without some form of prior hearing. We are unaware, however, of any authority for the proposition that the full panoply of due process protections attaches every time the government takes some action which confers a new status on the individual or denies a request for a different status.

Whether the Board grants parole is a clearly distinguishable exercise of discretion from revoking one's conditional freedom. The fifth amendment commands that the government shall not deprive one of his life, liberty or property without due process of law. Scarpa is a convicted felon currently incarcerated in prison for his past transgressions. This manifest deprivation of liberty is the result of a due process hearing. The sentencing judge mandated a possible confinement of eight years. Scarpa now attempts to equate the possibility of conditional freedom with the right to conditional freedom. We find such logic unacceptable.18

If the Board refuses to grant parole, Scarpa has suffered no deprivations. He continues the sentence originally imposed by the court. He does not allege that the Board's actions were arbitrary, fraudulent, unlawful or without reason, but only that it did not fully investigate his case. We have previously discussed the weakness of this allegation.

The courts have repeatedly rejected Scarpa's contentions. These decisions are based on the realization that the granting of parole is not an adversary proceeding.19 The Board's position in this regard was adequately stated in Hyser v. Reed,20 by Judge (now Chief Justice) Burger:

. . . At this stage the contact between prisoner and Board includes none of the incidents or procedural
477 F.2d 283
safeguards which attend a criminal trial because the Board, at this stage, must evaluate the prisoner\'s record as a whole to determine whether he is a good risk for parole . . ..

Due process rights do not attach at such proceedings. In the absence of evidence of flagrant, unwarranted, or unauthorized action by the Board, it is not the function of the courts to review such proceedings.21

In sum, we find that Scarpa's complaint construed liberally both in its factual allegations and constitutional assertions, to be without merit. The procedures adopted by the Board are not manifestly unfair but only evidence an intent to evoke a reasoned determination of whether to grant parole. It may be that Congress in its legislative wisdom will see fit to adopt the procedures here urged, but this we refuse to do by judicial fiat based on some theory of justification through...

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69 practice notes
  • Childs v. U.S. Bd. of Parole, Nos. 74--1052
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 19, 1974
    ...that now before us. See, also, the opinion of Judge Tuttle in Scarpa v. United States Board of Parole, 468 F.2d 31 (5th Cir. 1972), rev'd, 477 F.2d 278 (1973) (en banc). The en banc opinion reversing, however, in no manner suggested non-justiciability of the issue. Reference to that decisio......
  • Payton v. U.S., No. 79-2052
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 2, 1981
    ...review such decisions, especially on constitutional grounds, 10 in the event of parole denial. See, e. g., Scarpa v. U.S. Board of Parole, 477 F.2d 278, 280-82 (5th Cir.) vacated for consideration of mootness, 414 U.S. 809, 94 S.Ct. 79, 38 L.Ed.2d 44, dismissed as moot, 501 F.2d 992 (5th Ci......
  • Inmates of Nebraska Penal and Correctional Complex v. Greenholtz, No. 77-1889
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 9, 1978
    ...342, 50 L.Ed.2d 218 (1976), on remand sub nom. Bell v. Kentucky Parole Bd., 556 F.2d 805 (1977); Scarpa v. United States Bd. of Parole, 477 F.2d 278 (5th Cir.) (en banc), vacated and remanded to consider mootness, 414 U.S. 809, 94 S.Ct. 79, 38, L.Ed.2d 44, dismissed as moot, 501 F.2d 992 (5......
  • Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, No. 78-201
    • United States
    • United States Supreme Court
    • May 29, 1979
    ...Lundgren, 528 F.2d 1050 (CA5), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 283 (1976); Scarpa v. United States Board of Parole, 477 F.2d 278 (CA5) (en banc), vacated as moot, 414 U.S. 809, 94 S.Ct. 79, 38 L.Ed.2d 44 (1973); Scott v. Kentucky Parole Board, No. 74-1899 (CA6 Jan. 15, ......
  • Request a trial to view additional results
69 cases
  • Childs v. U.S. Bd. of Parole, Nos. 74--1052
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 19, 1974
    ...that now before us. See, also, the opinion of Judge Tuttle in Scarpa v. United States Board of Parole, 468 F.2d 31 (5th Cir. 1972), rev'd, 477 F.2d 278 (1973) (en banc). The en banc opinion reversing, however, in no manner suggested non-justiciability of the issue. Reference to that decisio......
  • Payton v. U.S., No. 79-2052
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 2, 1981
    ...review such decisions, especially on constitutional grounds, 10 in the event of parole denial. See, e. g., Scarpa v. U.S. Board of Parole, 477 F.2d 278, 280-82 (5th Cir.) vacated for consideration of mootness, 414 U.S. 809, 94 S.Ct. 79, 38 L.Ed.2d 44, dismissed as moot, 501 F.2d 992 (5th Ci......
  • Inmates of Nebraska Penal and Correctional Complex v. Greenholtz, No. 77-1889
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 9, 1978
    ...342, 50 L.Ed.2d 218 (1976), on remand sub nom. Bell v. Kentucky Parole Bd., 556 F.2d 805 (1977); Scarpa v. United States Bd. of Parole, 477 F.2d 278 (5th Cir.) (en banc), vacated and remanded to consider mootness, 414 U.S. 809, 94 S.Ct. 79, 38, L.Ed.2d 44, dismissed as moot, 501 F.2d 992 (5......
  • Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, No. 78-201
    • United States
    • United States Supreme Court
    • May 29, 1979
    ...Lundgren, 528 F.2d 1050 (CA5), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 283 (1976); Scarpa v. United States Board of Parole, 477 F.2d 278 (CA5) (en banc), vacated as moot, 414 U.S. 809, 94 S.Ct. 79, 38 L.Ed.2d 44 (1973); Scott v. Kentucky Parole Board, No. 74-1899 (CA6 Jan. 15, ......
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