Scarpa v. U. S. Board of Parole

After affording careful and respectful consideration to the views expressed in the majority panel’s disposition of the instant ease, 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), the judgment provided that Scarpa would be eligible for parole at any time after his incarceration.

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. Having completed his state sentence, Scarpa commenced serving his 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. 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.

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.

Assuming, as we must, 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. 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 the credibility of reports and information received by the Board in making its determination.

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.

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. The weight to be given Scar-pa’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 second-guess the outcome of such proceedings or what factors went into- their formulation.

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. The Board operates under a tremendous work load. 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.” 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 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.

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.

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. The Board’s position in this regard was adequately stated in Hyser v. Reed, by Judge (now Chief Justice) Burger:

. At this stage the contact between prisoner and Board includes none of the incidents or procedural 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.

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 constitutional compulsion. If legislation is adopted, the enactment will very likely set forth appropriate guidelines and standards of judicial review.

The judgment of the district court is affirmed.

. See Scarpa v. United States Board of Parole et al., 468 F.2d 31 (5th Cir. 1972). On June 28, 1972, a majority of this court ordered this case to be reheard en banc Id. at 43.

. 18 U.S.C. 4208(a)(2) provides:

[T]he court may fix the maximum sentence of imprisonment to be served in which event the court may specify that the prisoner may become eligible for parole at such time as the board of parole may determine.

. Compare with 18 U.S.C. § 4202 which restricts the Board’s authority to release only after one third of the sentence imposed has been served.

. See, Brief for Appellant at 5 (filed May 27, 1971); Appellant’s Amended Reargument of Appeal at Exhibit T (filed January 17, 1972); Appellee’s Supplemental Brief at 2 (filed July 31, 1972).

. Scarpa filed Ms complaint in the District Court for the District of Columbia, the situs of the Board. On September 29, 1970, the action was transferred to the United States District Court for the Northern District of Georgia, the locus of appellant’s confinement. See, 28 U.S.C. § 1404(a) and Young v. United States Bureau of Prisons, 125 U.S.App.D.C. 105, 367 F.2d 331 (1966).

. See 28 C.F.R. 2.12 et seq.

. While Scarpa’s appeal was pending, he received a second hearing before the Board in June, 1971. On the basis of representations by his counsel that he had been accorded a full and fair consideration at the second hearing, the appeal was dismissed for mootness. Scarpa v. United States Board of Parole et al., 453 F.2d 891 (5th Cir. 1971). Subsequently, Scarpa objected to the dismissal, and petitioned this court for a rehearing which was granted. A third hearing by the Parole Board is scheduled for June 1973. Appellee’s Supplemental Brief at 4 (filed July 31, 1972).

In the petition for rehearing, Scarpa raised a number of contentions not presented previously. Appellant asserted that he was entitled to: (a) a hearing before an objective and impartial examiner; (b) adequate notice of that hearing; (c) an opportunity to confront and cross-examine witnesses; (d) a right to retained counsel; and (e) written findings of fact and conclusions of law.

. See, Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Hargrave v. McKinney, 413 F.2d 320, 324 (5th Cir. 1969).

. See, 18 U.S.C. § 4203. The Board is composed of 8 members appointed by the President with the advice and consent of the Senate. 18 U.S.C. § 4201.

. Tarlton v. Clark, 441 F.2d 384, 385 (5th Cir. 1971) cert. denied, 403 U.S. 934, 91 S.Ct. 2263, 29 L.Ed.2d 713 (1971); Accord, Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225 (1963); Richardson v. Rivers, 118 U.S.App.D.C. 333, 335 F.2d 996 (1964). “Claims that parole was wrongfully denied have been uniformly rejected by the courts. Even those courts that have insisted upon procedural safeguards on parole revocation, are reluctant to extend them to parole granting decision. Courts are even more reluctant to review the merits of such decisions.” President’s Commission on Law Enforcement and Administration of Justice, Task Force Report : Corrections 85 (1967).

. 18 U.S.C. § 4203. Release by parole is merely a change in the-nature of the government’s custody of the convicted felon. 1-Iis actions are still closely supervised. The felon’s right to liberty vel non is not therefore at issue in the parole eligibility decision. United States ex rel. Bey v. Connecticut Board of Parole, 443 F.2d 1079, 1086 (2d Cir. 1971).

. See, Jones v. Salisbury, 422 F.2d 1326 (6th Cir. 1970); Riley v. Perini, 422 F.2d 397 (6th Cir. 1970). See also n. 7 supra.

. See, Brest v. Ciccone, 371 F.2d 981, 982 (8th Cir. 1967).

. See, Losieau v. Hunter, 90 U.S.App.D.C. 85, 193 F.2d 41 (1951).

. The Board processes over 17,000 parole requests a year. Appellee’s Supplemental Brief at 12 (filed July 31, 1972).

. Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960).

. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (replevin of a debtor’s goods); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (revocation of parole); Goldberg v. Kelly, 397 U.S. 354, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (termination of welfare benefits); Sniadach v. Family Finance Corporation, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) (attachment of a worker’s wages); Cafeteria & Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961) (termination of employment).

. See, Thompkins v. United States Board of Parole, 427 F.2d 222 (5th Cir. 1970); Cook v. Willingham, 389 F.2d 769 (10th Cir. 1968).

. The Board does not function as an adversary of the felon. The Board has an interest in releasing those who qualify for parole. Judge Mansfield’s explication of the Board’s role and function is particularly instructive in this regard. He stated:

The Board’s function is a different one. It must make the broad determination of whether rehabilitation of the prisoner and the interests of society generally would best be served by permitting him to serve his sentence beyond the confines of prison walls rather than by being continued in physical confinement. In making that determination the Board is not restricted by rules of evidence or procedures developed for the purpose of determining legal or factual issues. It must consider many factors of a nonlegal nature, such as psychiatric reports with respect to the prisoner, his mental and moral attitudes, his vocational education and training, the manner in which he has used his recreation time, his physical and emotional health . . .

Menechino v. Oswald, 430 F.2d 403, 407-408 (2d Cir. 1970), cert. denied, 400 U.S. 1023, 91 S.Ct. 588, 27 L.Ed.2d 635 (1971).

. 115 U.S.App.D.C. 254, 318 F.2d 225, 235 (1963), cert. denied sub nom. Thompson v. United States Board of Parole, 375 U.S. 957, 84 S.Ct. 446, 11 L.Ed.2d 315 (1963).

. “Like an alien seeking entry into the United States . . . [the prisoner] does not qualify for procedural due process in seeking parole.” Menechino v. Oswald, 430 F.2d 403, 408-409 (2d Cir. 1970), cert. denied, 400 U.S. 1023, 91 S.Ct. 588, 27 L.Ed.2d 635 (1971); Walker v. Oswald, 449 F.2d 481 (2d Cir. 1971); Dorado v. Kerr, 454 F.2d 892 (9th Cir. 1972). Likewise, the courts have uniformly rejected the argument that counsel must be provided at parole eligibility hearings. Buchanan v. Clark, 446 F.2d 1379 (5th Cir. 1971), cert. denied sub. nom. Buchanan v. United States, 404 U.S. 979, 92 S.Ct. 347, 30 L.Ed.2d 294 (1971). Accord, Schawartzberg v. United States Board of Parole, 399 F.2d 297 (10th Cir. 1968).