United States v. Kenton

• Citation: 262 F. Supp. 205
• Decision Date: 06 January 1967
• Docket Number: Civ. No. 11587,11658.,11580
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES ex rel. Louis OBLER v. Frank F. KENTON, Warden, Federal Correctional Institution, Danbury, Connecticut. UNITED STATES ex rel. Edward O. CHEVRETTE v. Frank F. KENTON, Warden, Federal Correctional Institution, Danbury, Connecticut. UNITED STATES ex rel. David Woodward COVEY v. Frank F. KENTON, Warden, Federal Correctional Institution, Danbury, Connecticut.

262 F. Supp. 205

UNITED STATES ex rel. Louis OBLER v. Frank F. KENTON, Warden, Federal Correctional Institution, Danbury, Connecticut.

UNITED STATES ex rel. Edward O. CHEVRETTE v. Frank F. KENTON, Warden, Federal Correctional Institution, Danbury, Connecticut.

UNITED STATES ex rel. David Woodward COVEY v. Frank F. KENTON, Warden, Federal Correctional Institution, Danbury, Connecticut.

Civ. Nos. 11587, 11580, 11658.

United States District Court D. Connecticut.

January 6, 1967.

COPYRIGHT MATERIAL OMITTED

Stephen E. Ronai, Milford, Conn., for petitioners.

Jon O. Newman, U. S. Atty., and John Cassidento, Asst. U. S. Atty., New Haven, Conn., for respondent.

MEMORANDUM OF DECISION

ZAMPANO, District Judge.

These three habeas corpus cases raise the common issue whether there has been an unreasonable delay in providing a parole revocation hearing for each of the petitioners. The cases were consolidated for consideration and hearings were held¹ at which the petitioners were represented by court assigned counsel, Stephen E. Ronai, who previously served in a similar case with distinction and success.²

I

Dire consequences face the parole violator who is returned to prison because he no longer is considered a fit subject for rehabilitative treatment in the community. He is required to serve the unexpired term of his original sentence, without a credit for the time he was on parole. 18 U.S.C. § 4205. In addition, all prior statutory good time earned when he originally was incarcerated is automatically forfeited. 18 U.S.C. § 4205; McKinney v. Taylor, 358 F.2d 689, 690 (10 Cir. 1966); Tr., Shore, p. 291. In some cases these penalties have the anomalous result of requiring a violator to spend more time actually incarcerated than he would have spent under the maximum sentence originally imposed.³ See, also, Mock v. United States Board of Parole, 120 U.S.App.D.C. 248, 345 F.2d 737 (1965); Stevenson v. United States, 250 F.Supp. 859 (D.Mich. 1966).

Yet, since the Supreme Court's pronouncements in Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935), the courts uniformly have held that revocation hearings are not criminal prosecutions circumscribed by constitutional protections.⁴ In Escoe, it was held that the provisions of the Federal Probation Act⁵ required notice and a hearing prior to revocation of probation. But the Supreme Court specifically denied that such procedures were compelled by the Constitution:

"In thus holding we do not accept the petitioner's contention that the privilege has a basis in the Constitution, apart from any statute. Probation or suspension of sentence comes as an act of grace to one convicted of a crime, and may be coupled with such conditions in respect of its duration as Congress may impose." 295 U.S. at 492, 55 S.Ct. at 819.

The Court went on to say, at page 493, 55 S.Ct. at page 820:

"Clearly the end and aim of an appearance before the court must be to enable an accused probationer to explain away the accusation. * * * This does not mean that he may insist upon a trial in any strict or formal sense. * * * It does mean that there shall be an inquiry so fitted in its range to the needs of the occasion as to justify the conclusion that discretion has not been abused by the failure of the inquisitor to carry the probe deeper."

Thus the procedural safeguards now afforded the alleged parole violator are premised, not on due process, but on the provisions of the parole statutes, the "needs of the occasion" and notions of fair play.

II

A parolee who is retaken into custody upon a violator's warrant "shall be given an opportunity to appear before the Board * * *". 18 U.S.C. § 4207.

In order that the "opportunity to appear" at a revocation hearing be an "effective appearance",⁶ and not a sterile, pro forma appearance,⁷ the hearing must be held within a reasonable time⁸ and the alleged violator must be informed of his rights to retain counsel⁹ and to present voluntary witnesses.¹⁰

The purpose of the hearing is 1) to determine whether in fact there has been a transgression, and 2) if so, to decide what future rehabilitative treatment is dictated by the circumstances.¹¹ The former issue in most cases merely requires recitation and proof of a past act and rarely poses a problem. But loss of parole status and reincarceration are not automatic consequences of parole infraction. The violation may be overlooked,¹² the violator may be immediately reparoled,¹³ or he may be required to serve only a part of his original sentence.¹⁴ If the "opportunity to appear" is to have any purposeful structure, it must provide the violator with a fair opportunity to present his side of the story to the Board to induce it to give him another chance.

An effective hearing, therefore, necessarily contemplates a hearing within a reasonable time after rearrest. This procedural safeguard is important to prevent undue, frustrating pre-hearing incarceration and to limit the possibility that a long delay will impair the ability of the violator to defend himself. Cf. United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627 (1965). The Board's present administrative burdens,¹⁵ of course, must not go unrecognized by the courts. On the other hand, as Judge Clark forewarned several years ago, to the extent the Board's administrative procedure results in prejudicial, tardy hearings it is inconsistent with the statutory purpose of revocation hearings. United States ex rel. Buono v. Kenton, 287 F.2d 534, 536 (2 Cir. 1961).

No mechanical test is dispositive. As with the claim of a deprivation of the right to a speedy trial,¹⁶ whether there has been a deprivation of the right to a revocation hearing within a reasonable time depends upon all the circumstances of the case. A long delay in and of itself is but one element, albeit a forceful one,¹⁷ to be considered. Timely objection to the delay, unavailability of witnesses, lost sources of mitigating evidence, the violator's own conduct as a contributing cause of the delay, and the Parole Board's reasons for the delay are factors which also must weigh in the balance.

III

Following the landmark Hyser¹⁸ decision, the Parole Board in 1963 amended its rules,¹⁹ issued a set of instructions to personnel, and placed into use Form 59(a), which apparently was designed to indicate concisely the alleged violator's choice among three alternatives open to him after arrest for parole violation.

The new administrative procedures required that all accused violators be given a preliminary interview in the district of arrest as soon as reasonably possible after being taken into custody by a United States marshal. In this informal interview, a probation officer, acting as a parole officer, reads to the parolee the charges noted on the violator's warrant application. The parole officer by direct questions then must ascertain whether the parolee admits or denies²⁰ the allegations of the warrant.

If the parolee admits the violation (and does not wish to retain an attorney and/or call witnesses to appear at the interview²¹), the parole officer is specifically directed to: 1) prepare a summary or digest of the interview, 2) make a reasonable effort to locate and interview witnesses with pertinent information or make a reasonable effort to obtain statements from witnesses by mail, 3) comment as to possible reinstatement or reparole, and 4) forward promptly his report to the Board of Parole. It is important to note that these directives are contained in a series of memoranda to the Board's personnel²² but are not set forth in Form 59(a) used by the parole officer in the field.

The violator is then kept in local custody to await a determination by the Parole Executive or staff professional— not members of the Board—either to recommend reparole²³ or to return him to prison for a revocation hearing at a later date. The decision is promptly forwarded to the United States Marshal. If it is decided to reincarcerate the violator, a prison is designated and the violator is returned to await a revocation hearing by a member or agent of the Board. Prison revocation hearings generally are scheduled quarterly each year at the various federal institutions.²⁴

Considering the scope of the Board's duties, obligations and administrative burdens, it appears that the Board has made a sincere effort to provide adequate procedures for the parole violator to state his case within a reasonable time after arrest.²⁵

However, the system does, at times, break down in practice. First, many months of pre-hearing incarceration occur in a few cases when there is an inordinate delay in transferring the violator from local custody to the prison and, as a consequence, he misses the regularly scheduled quarterly meeting of the Board at the prison, or, due to clerical errors and inadvertence, the violator is not given the opportunity to appear when the revocation hearings are held at the prison. But it appears that these difficulties are infrequent and the courts are available to provide a remedy on a case to case basis.²⁶

Secondly, and more basic a problem in the framework of the system, is the inadequacy of Form 59(a), used by the parole officers in the field at the time of the preliminary interview. The form is mislabeled, vague, ambiguous and confusing. Cf. Phillips v. United States Board of Parole, 254 F.Supp. 529, 534 (N.D.Ill.1966). It has been subject to a variety of interpretations by different parole officers with respect to the admitted violator's rights at the time of the preliminary interview. The form merely provides, inter alia, that, if the parolee admits his guilt in violating the conditions of his release, "he will be returned to a federal institution where he will be afforded a revocation hearing before the Board of Parole." This provision is accepted literally by most parole officers in the field. The admitted violator is generally lodged in a local jail, awaiting federal prison...