U.S. ex rel Richerson v. Wolff, 75--1241

Decision Date05 April 1976
Docket NumberNo. 75--1241,75--1241
Citation525 F.2d 797
PartiesUNITED STATES of America ex rel. Charles RICHERSON, Petitioner-Appellant, v. Dennis WOLFF, Warden, Sheridan Institution, and the Illinois Parole and Pardon Board, Respondents-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Frank S. Merritt, Chicago, Ill., for petitioner-appellant.

William J. Scott, Atty. Gen., Melbourne A. Noel, Jr., Asst. Atty. Gen., Chicago, Ill., for respondents-appellees.

Before HASTINGS, Senior Circuit Judge, and SPRECHER and BAUER, Circuit Judges.

SPRECHER, Circuit Judge.

The questions raised by this appeal are whether the Due Process Clause of the Fourteenth Amendment requires that state prisoners be given reasons for the denial of parole release and whether Ill.Rev.Stats. ch. 38, § 1003-3-5(c) provides adequate reasons.


Upon being granted leave to file his petition in forma pauperis, the petitioner, Charles Richerson, filed his petition for a writ of habeas corpus on January 6, 1975. In his pro se 'Argument to Support Habeas Corpus Petition,' petitioner argued that he was denied parole because the granting of parole 'would deprecate the seriousness of such an offense and would not deter others from committing such crimes' and that such reasons were vague and uninformative. Petitioner concluded that

. . . this Court should grant him his release and thereafter require the Illinois Parole and Pardon Board to inform inmates in the future who have been denied parole (1) the reason for refusal of parole, (2) the conditions and requirements which he must fulfill for favorable consideration, and (3) a probable but although not guaranteed release date if such conditions are met. Such procedure and requirements would seem to meet the Due Process Clause better than the present procedure and requirements.

The respondents to the petition were the Warden of the Sheridan Correctional Center, Sheridan, Illinois, where petitioner was detained, and the Illinois Parole and Pardon Board. Upon the entry by the district court of a rule upon them to plead, the respondents filed a motion to dismiss in which they alleged that the petitioner had been sentenced on August 1, 1972, for three counts of attempted murder and one count of aggravated assault for a term of six to twelve years. The respondents sought dismissal of the petition on the grounds primarily that the reasons given were sufficient and such reasons were 'specifically promulgated by the Illinois legislature . . . to deny parole.'

In petitioner's answer to respondents' motion to dismiss, petitioner quoted from the district court opinion in United States ex rel. Johnson v. Chairman of New York State Board of Parole, 363 F.Supp. 416 (E.D.N.Y.1973), one of the earlier opinions holding that due process requires disclosure of reasons for denying release on parole.

In an order dated February 3, 1975, supported by a memorandum opinion, the district court granted respondents' motion to dismiss and denied the petition for a writ of habeas corpus. Petitioner's 'Petition for Rehearing,' in which he cited several district court due process cases, was denied by the court by an order dated March 12, 1975.

Petitioner filed a timely notice of appeal. Several briefs were filed in this court: (1) petitioner's pro se brief in which he repeated his due-process-requires-reasons argument presented to the district court but also purported to broaden the scope of the inquiry to include issues as to the right to hearing, right to counsel, examination of his parole file, and the right to rehabilitation; (2) respondents' brief, responding only to the due process argument; (3) petitioner's motion to dismiss appeal and memorandum in support raising new issues of improper delegation of state power, violation of separation of powers provision of the Illinois Constitution and unconstitutional extending of sentence; (4) respondents' answer to motion to dismiss; and (5) petitioner's reply.

Petitioner was not represented by counsel but this court permitted amicus curiae briefs to be filed on petitioner's behalf by the Prisoners Legal Assistance and the American Civil Liberties Union. Both of these excellent briefs centered on the issues properly before us: (1) does due process require the giving of reasons for denial of state parole release and (2) does the Illinois statute requiring the stating of certain reasons satisfy due process?


In King v. United States, 492 F.2d 1337 (7th Cir. 1974), we held that the provision of the Administrative Procedure Act which requires that prompt notice be given of the denial in whole or in part of a written application, petition, or other request of an interested person made in connection with any agency proceedings, 5 U.S.C. § 555(e), was applicable to federal parole release hearings and that such provision required that a brief statement of the reasons for denial be given to the applicant for parole. 1

Although, in view of our conclusion that the Administrative Procedure Act applied and required a statement of reasons for denying parole, we did not reach the question of whether due process required the giving of reasons, we said in King at 1343:

(A) substantial argument can be made that some modicum of due process should attend the denial of the expectation of conditional freedom on parole inasmuch as its termination after having been granted inflicts a 'grievous loss' of a 'valuable liberty' (Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)).

Inasmuch as the Administrative Procedure Act applies only to federal parole release procedures, subsequent courts dealing with state prisoners were squarely presented with the due process argument. The Second Circuit held in United States ex rel. Johnson v. Chairman of New York State Board of Parole, 500 F.2d 925 (2d Cir.), vacated as moot, 419 U.S. 1015, 95 S.Ct. 488, 42 L.Ed.2d 289 (1974), that due process requires that a state prisoner who has been denied parole be given a statement of reasons.

Without defining the effect of its application, the Fourth Circuit applied the due process clause to the conduct of state parole proceedings in Bradford v. Weinstein, 519 F.2d 728 (4th Cir. 1974), cert. granted, 421 U.S. 998, 95 S.Ct. 2394, 44 L.Ed.2d 664 (1975). 2

Since King was decided, the Supreme Court decided Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), dealing with the rights of state prisoners charged with serious misconduct which could lead to the forfeiture of good-time credits. Mr. Justice White said for the Court at 557 and 558, 94 S.Ct. at 2975:

But the State having created the right to good time and itself recognizing that its deprivation is a sanction authorized for major misconduct, the prisoner's interest has real substance and is sufficiently embraced within Fourteenth Amendment 'liberty' to entitle him 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.

Since prisoners in Nebraska can only lose good-time credits if they are guilty of serious misconduct, the determination of whether such behavior has occurred becomes critical, and the minimum requirements of procedural due process appropriate for the circumstances must be observed. (Emphasis added.)

The Court found that 'the deprivation of good time is not the same immediate disaster that the revocation of parole is for the parolee. . . militating against adopting the full range of procedures suggested by Morrissey for alleged parole violators . . ..' Id. at 561, 94 S.Ct. at 2977.

The Court then concluded at 563, 94 S.Ct. at 2978:

Two of the (Morrissey) procedures that the Court held should be extended to parolees facing revocation proceedings are not, but must be, provided to prisoners in the Nebraska Complex if the minimum requirements of procedural due process are to be satisfied. These are advance written notice of the claimed violation and a written statement of the factfindings as to the evidence relied upon and the reasons for the disciplinary action taken. (Emphasis added.) 3

The District of Columbia Circuit has held that due process also applies to federal parole release procedures and requires that federal prisoners be given a written statement of reasons for denial of parole. Childs v. United States Board of Parole, 167 U.S.App.D.C. 268, 511 F.2d 1270 (1974). 4 Judge Fahy said for the court at 1280:

Just as the (Supreme) Court found in Wolff that the State, having created the valuable right to good time, must act according to constitutional safeguards when it withdraws the right, so here, where the federal government has made parole an integral part of the penological system, I believe it is also essential that authority to deny parole not be arbitrarily exercised. 5

We conclude that due process includes as a minimum requirement that reasons be given for the denial of parole release.


The Illinois Unified Code of Corrections, effective January 1, 1973, provides that the Parole and Pardon Board in the Illinois Department of Corrections

. . . shall not parole a person eligible for parole if it determines that:

(1) there is a substantial risk that he will not conform to reasonable conditions of parole; or

(2) his release at that time would deprecate the seriousness of his offense or promote disrespect for the law; or

(3) his release would have a substantially adverse effect on institutional discipline.

Ill.Rev.Stats. ch. 38, § 1003--3--5(c).

The Code of Corrections further provides in Section 1003--3--5(f) that:

The Board shall render its decision within a reasonable time after hearing and shall state the basis therefor both in the records of the Board and in written notice to the person on whose application it has acted. In its decision, the Board shall set the person's release date, or...

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