Petitioner federal parolee, imprisoned for federal crimes
committed while on parole and clearly constituting parole
violations, held not to be constitutionally entitled to an
immediate parole revocation hearing, where a parole violator
warrant was issued and lodged with the institution of his
confinement as a "detainer," but was not executed. Pp.
429 U. S.
85-89.
(a) Petitioner's present confinement and consequent liberty loss
do not derive from the parole violator warrant, but from his
convictions for the crimes committed while on parole. Execution of
a parole violator warrant and custody thereunder are the operative
events triggering any loss of liberty attendant upon parole
revocation.
Morrissey v. Brewer, 408 U.
S. 471,
408 U. S. 488.
Pp.
429 U. S.
85-87.
(b) Deferral of the parole revocation decision until execution
of the parole violator warrant does not deprive petitioner of the
opportunity to serve any sentence imposed for parole violation
concurrently with the sentences imposed for the crimes committed
while on parole, since, if the Parole Commission chooses to revoke
parole, it has the power to grant, retroactively, the equivalent of
concurrent sentences, and to provide for unconditional or
conditional release upon completion of the subsequent sentences.
Pp.
429 U. S.
87-88.
(c) Issuance of the parole violator warrant, without more, did
not diminish petitioner's opportunity for parole on his intervening
sentences, since the same Commission that will consider such parole
will decide whether to revoke parole granted under the earlier
conviction, and since the statutory hearing to which petitioner
will be entitled upon his application for parole will give him the
same opportunity to persuade the Commission that he should be
released from custody as would an immediate hearing on the parole
violator warrant. P.
429 U. S.
88.
(d) As a practical matter, in cases such as this, in which the
parolee has been convicted of an offense plainly constituting a
parole violation, a decision to revoke parole would often be
foreordained, so that, given the predictive nature of the parole
revocation hearing, it is appropriate that such hearing be held at
the time at which prediction as to the parolee's ability to live in
society without committing antisocial
Page 429 U. S. 79
acts is both most relevant and most accurate -- at the
expiration of the parolee's intervening sentence. P.
429 U. S.
89.
Affirmed.
BURGER, C.J., delivered the opinion of the Court, in which
STEWART, WHITE, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ.,
joined. STEVENS, J., filed a dissenting opinion, in which BRENNAN,
J., joined,
post, p.
429 U. S.
89.
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari in this case to decide whether a federal
parolee imprisoned for a crime committed while on parole is
constitutionally entitled to a prompt parole revocation hearing
when a parole violator warrant is issued and lodged with the
institution of his confinement but not served on him. [
Footnote 1]
Page 429 U. S. 80
(1)
In 1962, petitioner was convicted in the United States District
Court for the District of Arizona of the crime of rape on an Indian
reservation, in violation of 18 U.S.C. $ 1153. There was no appeal,
and petitioner received a 10-year prison sentence. He was paroled
in 1966, with almost six years remaining to be served. While on
parole, petitioner shot and killed two persons on the Fort Apache
Indian Reservation. He was convicted on a guilty plea of
manslaughter as to one victim and second-degree murder as to the
other, for violations of 18 U.S.C. $ 1153; he received concurrent
10-year sentences for these two offenses. These crimes constituted
obvious violations of the terms of petitioner's 1966 parole.
See 18 U.S.C. $ 4203(a) (1970 ed. and Supp. V).
Soon after petitioner's incarceration for the two homicides, the
United States Board of Parole issued, but did not execute, a parole
violator warrant; this was lodged with prison officials as a
"detainer." [
Footnote 2]
Petitioner requested the Board to execute
Page 429 U. S. 81
the warrant immediately so that any imprisonment imposed for
violation of his earlier parole under the rape conviction could run
concurrently with his 1971 homicide sentences. The Board replied
that it intended to execute the warrant only upon petitioner's
release from his second sentence. At its 1974 annual review of
petitioner's case, the Board reaffirmed its decision to allow the
warrant to remain unexecuted.
Relying on
Morrissey v. Brewer, 408 U.
S. 471 (1972), petitioner began this federal habeas
corpus action in January, 1975, seeking dismissal of the parole
violator warrant on the ground that he had been denied a prompt
hearing at which the pending parole revocation issues could be
aired.
The District Court dismissed the petition without awaiting a
responsive pleading, stating:
"[A] parole revocation hearing is not required until the parole
violator warrant has been executed. The parole board is under no
obligation to execute the warrant, inasmuch as petitioner has been
in custody on his 1971 manslaughter [and murder] sentence[s] since
the time the warrant was issued and filed as a detainer against
him. [
Footnote 3]"
The Court of Appeals affirmed, relying on its earlier holding in
Small v. Britton, 500 F.2d 299 (CA10 1974), in which that
court had held that an incarcerated parolee is deprived of no
liberty interest by the lodging of a detainer against him, and is
thus entitled to no due process safeguards unless and until the
parole violator warrant is actually executed.
Page 429 U. S. 82
(2)
The Parole Commission and Reorganization Act, Pub.L. 94-233, 90
Stat. 219
et seq., was enacted shortly after we granted
certiorari. The Act renamed the Board the Parole Commission and
made other changes in federal parole procedures, principally to
codify the Board's existing practices. [
Footnote 4] Throughout the progress of this case below,
however, parole revocation procedures were controlled by the former
statutes, 18 U.S.C. §§ 4205 and 4207. [
Footnote 5] Under them, and the Board's own
regulations, 28 CFR § 2.53 (1975), [
Footnote 6] it was the Board's practice to issue a
parole violator warrant as a matter
Page 429 U. S. 83
of course whenever a federal parolee was convicted of a new
offense. Under the former statute and regulations, if the
subsequent sentence called for incarceration, the warrant was
lodged at the institution of confinement as a detainer, for
possible later service. A parolee so confined was then notified of
the issuance of the unserved warrant and given the opportunity to
make a written response. Upon receipt of the response, the Board
was authorized, in its discretion, to conduct a dispositional
interview designed to get the facts relevant to its revocation
decision. The parolee could retain counsel for the interview and
call witnesses. In lieu of an interview, the Board, in its
discretion, could review the parolee's case based on the record and
the written response.
After review -- or interview -- the Board had three options for
disposing of its parole violator warrant:
"(a) It could execute the warrant immediately and take the
parolee into custody. If parole was revoked at that
Page 429 U. S. 84
stage, the remainder of the parolee's original federal sentence,
reinstated by the parole revocation, would run concurrently with
the subsequent sentence from the time of execution of the warrant.
18 U.S.C. § 4205. Execution of the warrant deprived the
parolee of any good-time credits he might have previously earned on
his original sentence under 18 U.S.C. § 4161, and of credit
for the time spent while on parole. 18 U.S.C. § 4205; 28 CFR
§ 2.51 (1975)."
"(b) The Board's second option was to dismiss the warrant and
detainer altogether, which operated as a decision not to revoke
parole, and under which the parolee retained both his good-time
credit and credit for the time spent on parole. Presumably
dismissal of the warrant would reflect a Board decision that the
violation of conditions of parole was not of such gravity as to
justify revocation."
"(c) Third, the Board was free to defer a final decision on
parole revocation until expiration of the subsequent sentence, as
it elected to do in this case; under this third option, the Board
was authorized to execute the warrant, take the parolee into
custody immediately upon his release, and then conduct a revocation
hearing. Deferral of decision while permitting the warrant to stand
unexecuted would operate to allow the original sentence to remain
in the status it occupied at the time of the asserted parole
violation, 18 U.S.C. § 4205; it would not deprive the parolee
either of his good time or of the time spent on parole."
Respondent represents that the Board's general practice, before
passage of the 1976 Act, was to defer decision in order to have
before it the parolee's institutional record during his confinement
on the subsequent offense. That record would obviously be highly
relevant to the parole revocation decision. Annual reviews of the
status of every parolee to whom it had not granted a dispositional
interview were conducted under the former statute.
The 1976 Act and accompanying regulations, 28 CFR § 2.1
Page 429 U. S. 85
et seq. (1976), incorporate the former procedures with
few modifications. Under current law, the Parole Commission reviews
the parole violator warrant within 180 days of its issuance, 18
U.S.C. § 4214(b)(1) (1976 ed.); the parolee, after
notification of the impending review, is now entitled to assistance
of appointed counsel, if requested, in preparing his written
response. 18 U.S.C. § 4214(a)(2)(B) (1976 ed.). The 1976 Act
also abolishes the annual status review formerly required.
Previously it was general practice to defer execution of the
warrant to completion of the subsequent sentence. It is now firm
Commission policy that, unless "substantial mitigating
circumstances" are shown, the parole violator term of a parolee
convicted of crime is to run consecutively to the sentence imposed
for the subsequent offense. 28 CFR § 2.47(c) (1976).
Petitioner asserts protected liberty interests in both the
length and conditions of his confinement. Those interests, he
argues, are disregarded in several respects by issuance against him
of an unexecuted parole violator warrant, which bars him from
serving his 1962 rape conviction sentence concurrently with his
1971 homicide sentences, retards his parole eligibility on the
later convictions, and adversely affects his prison classification
status. He argues that lack of a prompt hearing risks the loss of
evidence in mitigation which might induce the Board not to revoke
his parole. Respondent's position is that, whatever process may
eventually be due petitioner, the mere issuance of a parole
violator warrant works no present deprivation of protected liberty
sufficient to invoke due process protection.
(3)
In
Morrissey, we held that the conditional freedom of a
parolee generated by statute is a liberty interest protected by the
Due Process Clause of the Fourteenth Amendment which may not be
terminated absent appropriate due process safeguards.
Page 429 U. S. 86
The revocation hearing mandated by
Morrissey [
Footnote 7] is bottomed on the parallel
interests of society and the parolee in establishing whether a
parole violation has occurred and, if so, whether, under all the
circumstances, the quality of that violation calls for parole
revocation. The issue before us here, however, is not whether a
Morrissey-type hearing will ever be constitutionally
required in the present case, [
Footnote 8] but whether a hearing must be held at the
present time, before the parolee is taken into custody as a parole
violator. We hold that there is no requirement for an immediate
hearing.
Petitioner's present confinement and consequent liberty loss
derive not in any sense from the outstanding parole violator
warrant, but from his two 1971 homicide convictions. Issuance of
the warrant and notice of that fact to the institution of
confinement did no more than express the Board's intent to defer
consideration of parole revocation to a later time.
Page 429 U. S. 87
Though the gravity of petitioner's subsequent crimes places him
under a cloud, issuance of the warrant was not a determination that
petitioner's parole under his 1962 rape conviction will be revoked;
the time at which the Commission must make that decision has not
yet arrived. With only a prospect of future incarceration which is
far from certain, we cannot say that the parole violator warrant
has any present or inevitable effect upon the liberty interests
which
Morrissey sought to protect. Indeed, in holding that
"[t]he revocation hearing must be tendered within a reasonable time
after the parolee is taken into custody,"
Morrissey, 408
U.S. at
408 U. S. 488,
we established execution of the warrant and custody under that
warrant as the operative event triggering any loss of liberty
attendant upon parole revocation. This is a functional designation,
for the loss of liberty as a parole violator does not occur until
the parolee is taken into custody under the warrant.
Cf.
18 U.S.C. § 4206; 18 U.S.C. § 4213(d) (1976 ed.).
The other injuries petitioner claims to suffer either do not
involve a loss of protected liberty or have not occurred by reason
of the warrant and detainer. His real complaint is that he desires
to serve his sentence for the 1962 rape conviction concurrently
with his sentences for two 1971 homicides. But, as we have noted,
even after completion of the homicide sentences, the Commission
retains full discretion to dismiss the warrant or decide, after
hearing, that petitioner's parole need not be revoked. If
revocation is chosen, the Commission has power to grant,
retroactively, the equivalent of concurrent sentences and to
provide for unconditional or conditional release upon completion of
the subsequent sentence.
See 18 U.S.C. §§ 4211,
4214(d) (1976 ed.); 28 CFR §§ 2.21, 2.52(c)(2) (1976).
Thus, deferral of the revocation decision does not deprive
petitioner of any such opportunity;
Page 429 U. S. 88
nothing in the statute or regulations gives him any "right" to
force the decision of the Commission at this time.
Petitioner also argues that issuance of a parole violator
warrant, without more, diminishes his opportunity for parole on his
intervening sentence. Assuming for the moment that granting of
parole is a protected liberty interest which this warrant impinges,
this argument fails to take into account that here the same
Commission which will consider petitioner's parole under his 1971
homicide convictions will decide whether to revoke parole granted
under the 1962 conviction. The statutory hearing to which
petitioner will be entitled upon his application for release on
parole will give him the same full opportunity to persuade the
Commission that he should be released from federal custody as would
an immediate hearing on the parole violator warrant. Whether
different issues would be presented by the prospect of adverse
action by different and autonomous parole authorities we need not
consider.
Petitioner further claims that evidence of mitigation may be
lost if the revocation hearing is not held promptly, but he makes
no claim that there is additional evidence in his case which may be
vitiated by a delay. Had such claims been made, the Commission has
the power, as did the Board before it, to conduct an immediate
hearing at which petitioner can preserve his evidence. 18 U.S.C.
§ 4214(b)(2) (1976 ed.); 28 CFR § 2.47 (1976).
Page 429 U. S. 89
Finally, there is practical aspect to consider, for in cases
such as this, in which the parolee admits or has been convicted of
an offense plainly constituting a parole violation, the only
remaining inquiry is whether continued release is justified
notwithstanding the violation. This is uniquely a "prediction as to
the ability of the individual to live in society without committing
antisocial acts."
Morrissey, supra at
408 U. S. 480.
In making this prophecy, a parolee's institutional record can be
perhaps one of the most significant factors. Forcing decision
immediately after imprisonment would not only deprive the parole
authority of this vital information, but since the other most
salient factor would be the parolee's recent convictions, here a
double homicide, a decision to revoke parole would often be
foreordained. Given the predictive nature of the hearing, it is
appropriate that such hearing be held at the time at which
prediction is both most relevant and most accurate -- at the
expiration of the parolee's intervening sentence.
Accordingly, and without regard to what process may be due
petitioner before his parole may be finally revoked, we hold that
he has been deprived of no constitutionally protected rights simply
by issuance of a parole violator warrant. The Commission therefore
has no constitutional duty to provide petitioner an adversary
parole hearing until he is taken into custody as a parole violator
by execution of the warrant.
Affirmed.
[
Footnote 1]
This constitutional issue has divided the Courts of Appeals.
Three of the Circuits have concluded that a parolee convicted of
crime committed while on parole is entitled to a due process
hearing promptly upon issuance of the parole violator warrant and
detainer.
Jones v. Johnston, 175 U.S.App.D.C. 151, 534
F.2d 353 (1976),
cert. pending sub nom. Siler v. Byrd, No.
76-355;
United States ex rel. Hahn v. Revis, 520 F.2d 632
(CA7 1975),
mandate recalled, No. 74-1057 (Aug. 27, 1975);
Cleveland v. Ciccone, 517 F.2d 1082 (CA8 1975). Other
Circuits have held that no due process requirements attach at this
time.
Reese v. U.S. Bd. of Parole, 530 F.2d 231 (CA9
1976),
cert. pending sub nom. Reese v. U.S. Parole Comm'n,
No. 75-6703;
Gaddy v. Michael, 519 F.2d 669 (CA4 1975),
cert. pending, No. 75-5215;
Orr v. Saxbe, No.
74-341 (MD Pa. Nov. 27, 1974),
aff'd without opinion, 517
F.2d 1399 (CA3 1975),
cert. pending sub nom. Orr v. Levi,
No. 75594;
Colangelo v. U.S. Bd. of Parole, No. 74-251 (WD
Ohio, Dec. 11, 1974),
aff'd without opinion, 517 F.2d 1404
(CA6 1975);
Small v. Britton, 500 F.2d 299 (CA10 1974);
Cook v. U.S. Attorney General, 488 F.2d 667 (CA5),
cert. denied, 419 U.S. 846 (1974).
[
Footnote 2]
A detainer in this context is an internal administrative
mechanism to assure that an inmate subject to an unexpired term of
confinement will not be released from custody until the
jurisdiction asserting a parole violation has had an opportunity to
act -- in this case, by taking the inmate into custody or by making
a parole revocation determination. When two autonomous
jurisdictions are involved, as for example when a federal detainer
is placed against an inmate of a state institution, a detainer is a
matter of comity.
[
Footnote 3]
Civ.Action No. 75-2C3 (Kan., Jan. 2, 1975).
[
Footnote 4]
The Commission's newly promulgated rule, 28 CFR § 2.57
(1976), validates any order of the Board entered prior to May 14,
1976 (the Act's effective date).
[
Footnote 5]
Title 18 U.S.C. § 4205 provided:
"A warrant for the retaking of any United States prisoner who
has violated his parole may be issued only by the Board of Parole
or a member thereof and within the maximum term or terms for which
he was sentenced. The unexpired term of imprisonment of any such
prisoner shall begin to run from the date he is returned to the
custody of the Attorney General under said warrant, and the time
the prisoner was on parole shall not diminish the time he was
sentenced to serve."
Title 18 U.S.C. § 4207 provided:
"A prisoner retaken upon a warrant issued by the Board of
Parole, shall be given an opportunity to appear before the Board, a
member thereof, or an examiner designated by the Board."
"The Board may then, or at any time in its discretion, revoke
the order of parole and terminate such parole or modify the terms
and conditions thereof."
"If such order of parole shall be revoked and the parole so
terminated, the said prisoner may be required to serve all or any
part of the remainder of the term for which he was sentenced."
[
Footnote 6]
"(a) In those instances where the prisoner is serving a new
sentence in an institution, the warrant may be placed there as a
detainer. Such prisoner shall be advised that he may communicate
with the Board relative to disposition of the warrant, and may
request that it be withdrawn or executed so his violator term will
run concurrently with the new sentence. Should further information
be deemed necessary, the Regional Director may designate a hearing
examiner panel to conduct a dispositional interview at the
institution where the prisoner is confined. At such dispositional
interview, the prisoner may be represented by counsel of his own
choice and may call witnesses in his own behalf, provided he bears
their expenses. He shall be given timely notice of the
dispositional interview and its procedure."
"(b) Following the dispositional review the Regional Director
may:"
"(1) Let the detainer stand"
"(2) Withdraw the detainer and close the case if the expiration
date has passed;"
"(3) Withdraw the detainer and reinstate to supervision; thus
permitting the federal sentence time to run uninterruptedly from
the time of his original release on parole or mandatory
release."
"(4) Execute warrant, thus permitting the sentence to run from
that point in time. If the warrant is executed, a previously
conducted dispositional interview may be construed as a revocation
hearing."
"(c) In all cases, including those where a dispositional
interview is not conducted, the Board shall conduct annual reviews
relative to the disposition of the warrant. These decisions will be
made by the Regional Director. The Board shall request periodic
reports from institution officials for its consideration."
[
Footnote 7]
In the present case, where petitioner has already been convicted
of and incarcerated on a subsequent offense, there is no need for
the preliminary hearing which
Morrissey requires upon
arrest for a parole violation. This is so both because the
subsequent conviction obviously gives the parole authority
"probable cause or reasonable ground to believe that the . . .
parolee has committed acts that would constitute a violation of
parole conditions," 408 U.S. at
408 U. S. 485,
and because issuance of the warrant does not immediately deprive
the parolee of liberty. The 1976 Act calls for no preliminary
hearing in such cases. 18 U.S.C. § 4214(b)(1) (1976 ed.);
see 28 CFR § 2.48(f) (1976).
Congress has provided a statutory right to a parole revocation
hearing along
Morrissey lines even where the parolee
"knowingly and intelligently admits violation" of the terms of his
parole, or has been convicted of a crime committed while on parole
and is therefore barred from relitigating facts constituting a
parole violation. 18 U.S.C. §§ 4214(c), (d) (1976 ed.);
see Morrissey, supra at
408 U. S. 490.
At the hearing the parolee may present evidence addressed to
whether, given his admitted violation, circumstances exist
justifying his continued release on parole. 28 CFR § 2.50
(1976). Petitioner will be entitled to this statutory hearing
within 90 days after execution of the warrant. 18 U. 3. C. §
4214(c) (1976 ed).
[
Footnote 8]
Petitioner also argues that the pending warrant and detainer
adversely affect his prison classification and qualification for
institutional programs. We have rejected the notion that every
state action carrying adverse consequences for prison inmates
automatically activates a due process right. In
Meachum v.
Fano, 427 U. S. 215
(1976), for example, no due process protections were required upon
the discretionary transfer of state prisoners to a substantially
less agreeable prison, even where that transfer visited a "grievous
loss" upon the inmate. The same is true of prisoner classification
and eligibility for rehabilitative programs in the federal system.
Congress has given federal prison officials full discretion to
control these conditions of confinement, 18 U.S.C. § 4081, and
petitioner has no legitimate statutory or constitutional
entitlement sufficient to invoke due process.
MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN joins,
dissenting.
The Court holds that the lodging of a detainer with an
institution in which a parolee is confined does not have the kind
of impact on his custodial status that requires a due process
hearing. That holding does not answer the question which I regard
as critical in this case. For it is clear that, sooner or later, a
parole revocation hearing will be held; the
Page 429 U. S. 90
question is whether the timing of that hearing is an element of
the procedural fairness to which the parolee is constitutionally
entitled. I am persuaded that it is.
I start from the premise that parole revocation is a deprivation
of liberty within the meaning of the Fifth and Fourteenth
Amendments, and therefore must be preceded by due process. The
Court so held in
Morrissey v. Brewer, 408 U.
S. 471,
408 U. S.
481-483. In that case, the revocation resulted in the
return of the parolee to prison whereas in this case the parolee is
already incarcerated for a separate offense. But in both
situations, the revocation affects the length of his confinement
and therefore may result in a "grievous loss" of liberty. [
Footnote 2/1] Accordingly, it is clear --
and I do not understand the Court to disagree,
see ante at
429 U. S. 85-86,
429 U. S. 89 --
that the parolee's constitutional right to have the revocation
hearing conducted fairly is not affected by his custodial status.
[
Footnote 2/2] Moreover, since
the
Page 429 U. S. 91
parole revocation process begins when the Parole Commission
issues the revocation warrant, [
Footnote 2/3] it plainly follows that the constitutional
protections afforded the parolee attach at that time. The question,
then, is whether the parolee's right to a fair hearing includes any
right to have the hearing conducted with reasonable dispatch.
It is apparently the position of the Parole Commission that it
has no obligation to go forward with the revocation hearing until
after the parolee has completed the service of his sentence for the
second offense. [
Footnote 2/4] It
may therefore wait as long as 10 or 20 years after commencing the
revocation process by issuing a warrant. This position, I submit,
can be tenable only if one assumes that the constitutional right to
a fair hearing includes no right whatsoever to a prompt hearing.
Precedent, tradition, and reason require rejection of that
assumption.
In
Klopfer v. North Carolina, 386 U.
S. 213,
386 U. S. 226,
the Court
Page 429 U. S. 92
held that the States were required by the Due Process Clause of
the Fourteenth Amendment to provide a defendant with a prompt
hearing because the right to a speedy trial "is one of the most
basic rights preserved by our Constitution." That holding rested in
part on common law tradition of such a fundamental nature as to be
reflected in the Magna Carta itself. [
Footnote 2/5] In that case, Mr. Justice Harlan, though
disagreeing with the view that the "speedy trial" provision of the
Sixth Amendment was directly applicable to the States, concurred
with the conclusion that a state procedure
"which in effect allows state prosecuting officials to put a
person under the cloud of an unliquidated criminal charge for an
indeterminate period, violates the requirement of fundamental
fairness assured by the Due Process Clause of the Fourteenth
Amendment."
Id. at
386 U. S.
227.
The common law tradition that supports both the Court's holding
and Mr. Justice Harlan's separate concurrence in
Page 429 U. S. 93
Klopfer, [
Footnote 2/6]
also requires respect for a parolee's interest in the reasonably
prompt disposition of charges pending against him, regardless of
whether or not he is incarcerated.
This Court has already held that present incarceration for one
offense does not deprive an inmate of his right to a prompt trial
on a second charge.
Smith v. Hooey, 393 U.
S. 374;
Strunk v. United States, 412 U.
S. 434. Moreover, the Court has made it clear that the
constitutional protection applies not only to the determination of
guilt but also to the discretionary decision on what disposition
should be made of the defendant. This point was squarely decided
with respect to parole revocation in
Morrissey v. Brewer.
[
Footnote 2/7] And in
Pollard
v. United States, 352 U. S. 354, the
Court, though rejecting the particular claim, recognized that a
defendant's right to a speedy trial included a right to a prompt
sentencing determination. The entire Court subscribed to the view
that delay in regard to disposition "must not be purposeful or
oppressive."
Id. at
352 U. S. 361.
That view contrasts sharply with the Parole Commission's conscious
policy of delaying parole revocation decisions under these
circumstances.
Those holdings recognize the defendant's legitimate interest in
changing the uncertainty associated with a pending charge into the
greater certainty associated with its disposition. [
Footnote 2/8] In the words of a former director of
the Federal
Page 429 U. S. 94
Bureau of Prisons that were quoted by the Court in
Smith,
supra at
393 U. S. 379,
the "
anxiety and concern'" which accompany unresolved charges
have as great an impact on the incarcerated as on those at large.
[Footnote 2/9]
"[I]t is in their effect upon the prisoner and our attempts
Page 429 U. S. 95
to rehabilitate him that detainers are most corrosive. The
strain of having to serve a sentence with the uncertain prospect of
being taken into . . . custody . . . at the conclusion interferes
with the prisoner's ability to take maximum advantage of his
institutional opportunities. His anxiety and depression may leave
him with little inclination toward self-improvement. [
Footnote 2/10]"
Although those comments were directed at the prisoner's right to
a prompt trial on a second criminal charge, they are also
applicable to the incarcerated parolee's interest in a reasonably
prompt revocation hearing.
Under the respondent's position, the petitioner's hearing may
come as much as 10 years after his intervening conviction. It is
unlikely that such a delayed hearing would focus on the question
whether facts in mitigation existed at the time of commission of
the intervening offense; rather, the primary inquiry would no doubt
be directed at the question whether petitioner made satisfactory
institutional progress in the service of his intervening sentence
to justify his return to society. That is the sort of inquiry that
would, in any event, be appropriate in a parole release hearing. In
short, a prolonged delay will inevitably change the character of
the revocation hearing. If unlimited delay is permitted, the
procedural safeguards which were fashioned in
Morrissey to
assure the parolee a fair opportunity to present facts in
mitigation and to challenge the government's assertions will have
become meaningless. Delay will therefore violate the "fundamental
requirement of due process" -- "the opportunity to be heard
at
a meaningful time and in a meaningful manner.'" Mathews v.
Eldridge, 424 U. S. 319,
424 U. S. 333,
quoting Armstrong v. Manzo, 380 U.
S. 545, 380 U. S.
552.
Petitioner argues that the detainer itself is the source of
Page 429 U. S. 96
his grievous loss which mandates a hearing. That is not my view.
In my judgment, the detainer is comparable to an arrest or an
indictment which identifies a time when it is clear that the
government has a basis for going forward with appropriate
proceedings and from which the right to a speedy determination
accrues. [
Footnote 2/11] Since I
believe the right to orderly procedure leading to a reasonably
prompt decision is a fundamental attribute of due process, I cannot
accept the conclusion that the right is vindicated by simply
lodging a detainer and letting it remain outstanding for year after
year while the prisoner's interest in knowing where he stands may
be entirely ignored. [
Footnote
2/12]
I therefore respectfully dissent.
[
Footnote 2/1]
In
Wolff v. McDonnell, 418 U.
S. 539,
418 U. S. 558,
the Court held that loss of "good-time credits" was a deprivation
of liberty which required due process protections because the loss
of credits could lengthen confinement.
"We think a person's liberty is equally protected, even when the
liberty itself is a statutory creation of the State. The touchstone
of due process is protection of the individual against arbitrary
action of government,
Dent v. West Virginia, 129 U. S.
114,
129 U. S. 123 (1889). 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."
Ibid.
Similarly, as the Seventh Circuit held in
United States ex
rel. Miller v. Twomey, 479 F.2d 701, 715 (1973):
"The time when an inmate may enjoy liberty is directly affected
by the disallowance of statutory good time. . . . The cancellation
of such credits thus inflicts the same kind of 'grievous loss' on
the prisoner as does the revocation of parole [citing
Morrissey]."
[
Footnote 2/2]
The status of the incarcerated parolee is comparable to that of
a defendant on trial for one offense who is already imprisoned for
another.
Cf. Smith v. Hooey, 393 U.
S. 374;
Strunk v. United States, 412 U.
S. 434,
412 U. S.
439.
[
Footnote 2/3]
The issuance of a parole revocation warrant suspends the running
of a convict's sentence and parole until final disposition of the
parole violation charges may be made by the Commission. 28 CFR
§ 2.44(d) (1976). The issuance of the warrant must be
considered the commencement of the parole revocation process, since
suspension of the running of a parolee's sentence could not
otherwise be justified. Thus, the due process protections, which
the Court has held apply to the parole revocation process,
Morrissey, attach at that time.
[
Footnote 2/4]
The majority suggests that under the prior law, which has
governed this case since its filing, the Parole Board if it revoked
parole as to a parolee while he was incarcerated on an intervening
sentence, would be required to make the service of both sentences
concurrent.
See ante at
429 U. S. 83-84,
citing 18 U.S.C. § 4205. I do not read § 4205 as placing
such a restriction on the Board's discretion, but even if it did,
such a statutory provision does not affect the constitutional
question. Moreover, whatever the effect of § 4205, this
statute has been overridden by the Parole Commission and
Reorganization Act, Pub.L. 94-233, 90 Stat. 219. Thus, 18 U.S.C.
§ 4210(b)(2) (1976 ed.) now expressly allows the Commission to
determine whether the two sentences will be served "concurrently or
consecutively."
[
Footnote 2/5]
As the Court noted, 386 U.S. at
386 U. S. 224,
the Magna Carta as interpreted by Sir Edward Coke guaranteed to all
speedy justice.
"In [Coke's] explication of Chapter 29 of the Magna Carta, he
wrote that the words 'We will sell to no man, we will not deny or
defer to any man either justice or right' had the following
effect:"
"'And therefore, every subject of this realme, for injury done
to him in
bonis, terris, vel persona, by any other
subject, be he ecclesiasticall, or temporall, free, or bond, man,
or woman, old, or young, or be he outlawed, excommunicated, or any
other without exception, may take his remedy by the course of the
law, and have justice, and right for the injury done to him, freely
without sale, fully without any deniall, and speedily without
delay.'"
Quoting E. Coke, 2 Institutes 55 (Brooke, 5th ed., 1797).
The opinion in Klopfer, 386 U.S. at
386 U. S.
225-226, n. 21, also notes that the Massachusetts
Constitution of 1780, Part I, Art. XI, provided:
"Every subject of the commonwealth ought to find a certain
remedy, by having recourse to the laws, for all injuries or wrongs
which he may receive in his person, property, or character. He
ought to obtain right and justice freely, and without being obliged
to purchase it; completely, and without any denial; promptly, and
without delay; conformably to the laws."
[
Footnote 2/6]
"To support that conclusion, I need only refer to the
traditional concepts of due process set forth in the opinion of THE
CHIEF JUSTICE." 386 U.S. at
386 U. S.
227.
[
Footnote 2/7]
"There must also be an opportunity for a hearing, if it is
desired by the parolee, prior to the final decision on revocation
by the parole authority. This hearing . . . must lead to a final
evaluation of any contested relevant facts and consideration of
whether the facts as determined warrant revocation."
408 U.S. at
408 U. S.
487-488.
[
Footnote 2/8]
The prisoner also has an interest in disposing of detainers
because they may affect the conditions and extent of his
custody.
"[U]nder procedures now widely practiced, the duration of [a
prisoner's] present imprisonment may be increased, and the
conditions under which he must serve his sentence greatly worsened,
by the pendency of another criminal charge outstanding against
him."
Smith v. Hooey, 393 U.S. at
393 U. S.
378.
Moreover, the Court in
Smith quoted a former director
of the Federal Bureau of Prisons as writing:
"'Today, the prisoners with detainers are evaluated
individually, but there remains a tendency to consider them escape
risks and to assign them accordingly. In many instances, this
evaluation and decision may be correct, for the detainer can
aggravate the escape potentiality of a prisoner.' Bennett, 'The
Last Full Ounce,' 23 Fed.Prob. No. 2, p. 20, at 21 (1959)."
Id. at
393 U. S. 379
n. 8.
Under present Bureau of Prisons' policy, a detainer will not
preclude a more lenient classification of a prisoner, but "the
seriousness of a detainer must be considered when custody
reductions are considered." Bureau of Prisons, Policy Statement
7300.112 � 4 (Apr. 8, 1976).
See also Bureau of
Prisons, Policy Statement 7500.72 � 4 (May 8, 1972).
It should be noted that, if a prisoner would rather face the
uncertainty and restrictions which might occur because of an
outstanding detainer in hopes that the Commission would prove more
lenient at a later revocation hearing, he could certainly waive his
right to a prompt hearing.
[
Footnote 2/9]
The Bureau of Prisons recognizes the detriments created by
allowing detainers to remain unexecuted.
"Because uncertainty as to status can have an adverse effect on
our efforts to provide offenders with correctional services, we
should encourage detaining authorities to dispose of pending
untried charges against offenders in federal custody."
"The casework staff at all institutions may cooperate with and
give assistance to offenders in their efforts to have detainers
against them disposed of, either by having the charges dropped, by
restoration to probation, or parole status or by arrangement for
concurrent service of the state sentence."
"
* * * *"
"The presence of a detainer oftentimes has a restricting effect
on efforts to involve the offender in correctional programs. For
this reason, caseworkers at federal institutions are expected to
assist offenders in their efforts to have detainers disposed
of."
Bureau of Prisons, Policy Statement 7500.14A (Jan. 7, 1970).
[
Footnote 2/10]
Bennett, The Last Full Ounce, 23 Fed. Prob. No. 2, pp. 20, 21
(1959).
[
Footnote 2/11]
By emphasizing the fact that the filing of a warrant starts the
parole revocation process, I do not mean to imply that the
parolee's right to a prompt revocation hearing should depend upon
the filing of a warrant. If the Commission has full notice of a
parolee's intervening conviction, it should not be permitted to
wait until the termination of the intervening sentence to act.
Compare United States v. Marion, 404 U.
S. 307 (holding that due process places some restraints
on government delay in bringing an indictment)
with Barker v.
Wingo, 407 U. S. 514 (a
speedy trial case).
[
Footnote 2/12]
I do not imply that the parole authorities actually discharge
their responsibilities in such a heartless manner. But I cannot
accept a constitutional holding that would permit them to do
so.
I should also make clear that I would not prescribe any
inflexible rule that the hearing must always take place within a
fixed period. Nor would I require that the prisoner's interest in a
reasonably prompt determination of his status always mandate a
personal appearance either at the place of his incarceration or at
the place where the parole board normally sits. If justification
for the revocation is established by a new conviction, there would
seldom be need for a hearing on the discretionary aspects of
revocation -- certainly not unless strong mitigating circumstances
were identified. But the fact that the prisoner has only a slight
chance of prevailing on the merits does not justify a total
rejection of his interest in a prompt disposition. Moreover, if, as
respondent contends, delay will sometimes be in the parolee's best
interest, the parolee could always waive his right to a prompt
hearing.