Williams v. Missouri Bd. of Probation & Parole

• Decision Date: 17 January 1978
• Docket Number: No. 74CV125-W-2.,74CV125-W-2.
• Parties: James E. WILLIAMS and Junior Theobald, Individually and on behalf of all other persons similarly situated, Plaintiffs, v. MISSOURI BOARD OF PROBATION AND PAROLE et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

444 F. Supp. 473

James E. WILLIAMS and Junior Theobald, Individually and on behalf of all other persons similarly situated, Plaintiffs, v. MISSOURI BOARD OF PROBATION AND PAROLE et al., Defendants.

No. 74CV125-W-2.

United States District Court, W. D. Missouri, W. D.

January 17, 1978.

Ronald L. Rosemann and Michael Thompson, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, Mo., for plaintiffs.

Paul Robert Otto and J. Paul Allred, Jr., Asst. Attys. Gen., Jefferson City, Mo., for defendants.

MEMORANDUM OPINION AND JUDGMENT

COLLINSON, District Judge.

The plaintiffs in this action are prisoners incarcerated in the Missouri State Penitentiary, Jefferson City, Missouri, who were eligible for parole but were denied release. They filed a pro se Complaint challenging the Constitutionality of the procedures of the Missouri Board of Probation and Parole. They name the Missouri State Parole Board and its three members¹ as defendants. By this action, brought under the provisions of 42 U.S.C. § 1983 (1970), plaintiffs, on their behalf and on behalf of a class of inmates eligible for parole, seek injunctive and declaratory relief. Three months after the Complaint was filed, counsel from the Legal Aid and Defender Society of Greater Kansas City entered his appearance on behalf of plaintiffs and attorneys from that organization have represented plaintiffs since that time.

By order entered in July, 1975, the class plaintiffs sought to represent, all inmates incarcerated in penal institutions of the State of Missouri who are presently or in the future will be subject to the jurisdiction of the Missouri Board of Probation and Parole and who are being or will be brought before that Board for a parole release hearing, was certified.

Plaintiffs initially challenged the Parole Board procedures under both the Equal Protection Clause and the Due Process Clause of the United States Constitution, but plaintiffs abandoned their Equal Protection claims as demonstrated by the stipulation filed by the parties prior to the trial in this cause. That stipulation states the primary issue as whether "the due process requirements of the Fourteenth Amendment to the Constitution of the United States appertain in the parole release decisional process." The prisoners contend that the Due Process Clause entitles them to the following protections relating to parole eligibility determinations:

(1) Establishment and publication of factors, beyond the statement in the Board's Rules and Regulations, which the Board considers important in their decisional process and the criteria used by the Board in weighing the factors;

(2) Access to the factual data which the Board considers in determining whether to grant or deny parole with the opportunity to supplement, contradict or correct that data in writing prior to a parole decision and adequate notice of the existence of factual information upon which an adverse decision might be based;

(3) Representation by counsel or an advocate at the parole hearing;

(4) An opportunity at the parole hearing to be present when witnesses testify in their behalf; to cross-examine adverse witnesses who testify against them and to examine and rebut adverse information contained in their files; and

(5) A written statement of reasons, more specific than those currently given, for denial of parole and/or a written summarization of the factual basis for the Board's decision and the criteria and reasoning employed in the determination.

After the trial in this cause the Parole Board adopted new rules and regulations which provide: that an inmate may have one person attend the hearing with him; for written reasons for parole denial or set back; and for an administrative appeal process. Defendants have filed a post-trial motion based upon these new procedures by which they seek the dismissal on the grounds of mootness of the issues relating to the new procedures. Plaintiffs filed a "Motion in Opposition" to this motion in which they state that they "agree that only the narrowly circumscribed issue of counsel at the parole hearing is now moot, but the major thrust of plaintiffs' argument that the present procedure and factual information upon which an adverse decision might be made still lies at the heart of the case at Bar." For reasons discussed below the Court need not address defendant's motion.

Plaintiffs make no claim that they are entitled to immediate release or that they have a right to be granted parole. Their claims instead are a straightforward attack on the Constitutionality of the procedures of the State Parole Board and specifically on the denial of procedural Due Process protections in the course of parole eligibility determinations.

The parties have stipulated to the structure of the Board and the procedures it employs in making those decisions. Their stipulation includes the following facts. The Missouri Board of Probation and Parole was created pursuant to RSMo. § 549.205 (1969). The Board has ultimate responsibility for the granting and denying of parole to prisoners in all state penal institutions in Missouri. In addition, the members of the Board supervise the probation and parole staff which is responsible for supervising parolees and probationers and compiling presentence reports at the request of sentencing judges. The Board consists of three members appointed by the Director of the Department of Social Services with approval of the Governor and with the advice and consent of the Senate. The members of the Board are currently W. R. Vermillion, Chairman, Ferd Sturm, and Dick D. Moore. The Board employs two parole analysts who participate in the decision to decide whether inmates should be granted parole and who write the statement of reasons on behalf of the Board which informs an inmate why he has been refused parole. The analysts have no administrative responsibilities. The Board employs fifteen institutional parole officers who are stationed in each of the institutions under the supervision of the Division of Corrections. One of the functions of each institutional parole officer is to evaluate inmates prior to parole hearings and reviews and prepare a written report summarizing all data known about the inmate and evaluating his chances of success on parole, including a recommendation as to whether parole should be granted. At the time of the stipulation in July, 1976, each institutional parole officer was responsible for interviewing and evaluating approximately 450 inmates each year. Other duties include the performance of counseling functions, answering correspondence pertaining to inmates, serving as a member of the classification team for the inmates in their case load.

RSMo. § 549.261 (1969) provides that prisoners in the Missouri Division of Corrections shall be released on parole when, in the opinion of the Board, there is reasonable probability that the prisoner can be released without detriment to the community or to himself. Under the provisions of RSMo. § 549.261 an inmate shall be eligible to make application for parole and shall be given a hearing when he has served one-third of his sentence or twelve months, whichever is less, in an orderly and peaceful manner without having any infraction of the rules or laws of the institution reported against him. Any inmate who has served two-thirds of his time or two years, whichever is less, shall be eligible to make application for parole and shall be given a hearing. Paroles may be granted, however, before the minimum period specified has been served. That same section further provides that parole is to be ordered only in the best interest of society and not as an award of clemency; it is not to be considered a reduction of sentence or pardon. A prisoner shall be placed on parole only when the Board believes that he is able and willing to fulfill the obligations of the law abiding citizen. Every person while on parole remains in the legal custody of the institution from which he was released, but is subject to the orders of the Board.

The rules and policies governing the parole decision making process are contained in the statutes discussed above and in the rules and regulations of the Board set out in the booklet published by the Parole Board entitled "Rules and Regulations Governing the Granting of Paroles and Related Procedures" as modified in January, 1977. An inmate's first parole hearing generally will be scheduled according to a chart printed in the booklet; however, any inmate so requesting may have a parole hearing at the end of his first year at the institution even if the chart would indicate it should be after a longer period. Within thirty days of an inmate's assignment within the Division of Corrections, the inmate is notified by letter of the month of his first parole hearing. Within forty-five days of the first and of any subsequent hearings, the inmate is notified by letter of the exact day of the hearing.²

Parole hearings are conducted by a panel of three persons comprised of the two parole analysts and one member of the parole board. Following the initial hearing, parole may be granted, denied or the case may be "setback." The term "setback" is used to describe the setting of a case for another hearing or review at a subsequent time. When the Board issues a setback and assigns the inmate to a review at a later date, the inmate is notified of the month and the year during which the review is to take place. This notification is made in writing on the same sheet that contains the written statement of the reasons for the setback.³ A parole review differs from a parole hearing in that the inmate does not appear before the Board personally but information contained in his parole file, including a prereview report prepared by an institutional parole officer, is reviewed by a panel and a decision may be made to grant or deny parole or give a further setback.

All inmates are provided a copy of the rules...