APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
F. HEALY, Judge, presiding.
MR. PRESIDING JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 29, 1976.
This is an appeal from an order dismissing a complaint in mandamus which petitioned the trial court to direct the defendant, Chairman of the Illinois Parole and Pardon Board, to withdraw or set bail on certain parole violation warrants lodged against the plaintiffs, Grover Tucker and Ernest Denson.
Plaintiff Tucker was arrested on a parole violation warrant and reincarcerated on August 2, 1974. Prior to his arrest, Tucker was free on bond on pending criminal charges of armed robbery and burglary. On November 8, 1974, a parole and pardon board hearing officer conducted a preliminary hearing and found probable cause based on a prior finding of probable cause made by the circuit court that he had committed the offenses of armed robbery and burglary. On November 15, 1974, a second preliminary hearing was conducted and probable cause was found that Tucker had been in possession of a firearm. Although plaintiff's parole term expired on November 28, 1974, the parole violation warrants have not been withdrawn.
Plaintiff Denson was arrested for parole violation on September 3, 1974, while on bond on a pending criminal charge of armed robbery. He was brought before a parole and pardon board hearing officer on November 27, 1974, December 27, 1974, January 10, 1975, and January 17, 1975, at which times the scheduled preliminary hearings were continued. affidavits submitted by Denson and his counsel stated that Denson requested three continuances solely because he was advised by the hearing officer that probable cause would be found if he demanded a hearing. On January 17, 1975, plaintiff made a motion for bond on the parole violation warrant, but the request was denied. Denson's parole term expired on September 23, 1974.
Plaintiffs filed a complaint in mandamus petitioning the trial court to issue a writ of mandamus ordering the Chairman of the Illinois Parole and Pardon Board to withdraw the parole violation warrants or set bail on them. The defendant filed a motion to dismiss and for summary judgment which was granted by the court. Plaintiffs appeal to this court, seeking reversal of the order.
Illinois law (Ill. Rev. Stat. 1975, ch. 38, par. 1003-1-1 et seq.) provides that every person serving a term of imprisonment shall be eligible for parole when a designated portion of his sentence has been served. In each case, a hearing is conducted by the Parole and Pardon Board to determine whether parole should be granted. If parole is granted, the Board imposes certain "conditions of parole" which are deemed necessary to assist the person in leading a law-abiding life. A condition of every parole is that the individual shall not commit another offense during the parole term. If the parolee violates any condition prior to the expiration or termination of the term, the Board may (1) continue the existing parole, with or without modification, (2) parole the person to a half-way house, or (3) revoke the parole and reconfine the person. A parolee charged with a violation must be afforded a preliminary hearing before a hearing officer to determine if there is probable cause to hold him for a revocation hearing. The revocation hearing is subsequently conducted by the Board which must either revoke parole or order the person continued on parole with or without modification or enlargement of the parole conditions.
This law is in conformity with Morrissey v. Brewer (1972), 408 U.S. 471, 33 L.Ed.2d 484, 92 S.Ct. 2593, which held that while revocation of parole is not part of the criminal prosecution, the loss of liberty entailed is a serious deprivation requiring that the parolee be accorded certain minimal due process rights in a two-stage revocation process: first, a preliminary hearing to determine if probable cause exists and then a revocation hearing leading to a final evaluation of the facts and ultimately a determination of whether such facts warrant revocation.
The issue in this case focuses on the interval between the arrest of the parolee for an alleged violation and the Board's final decision on revocation. Petitioners contend that since probationers, by statute, are afforded the right to bail pending final resolution of their cases, parolees must be provided the same opportunity pursuant to the equal protection clause of the fourteenth amendment of the United States Constitution.
• 1, 2 The United States Supreme Court in Gagnon v. Scarpelli (1973), 411 U.S. 778, 36 L.Ed.2d 656, 93 S.Ct. 1756, extended the Morrissey procedural rights to probationers, holding that there is no difference relevant to the guarantee of due process between the revocation of parole and the revocation of probation. Clearly parole and probation differ in terms of time and application; however, despite distinguishing factors between the two, the underlying purposes are closely allied (Hyser v. Reed (D.C. Cir. 1963), 318 F.2d 225, 236), and the commentators have agreed that there is no difference relevant to the guarantee of due process between the revocation of parole and the revocation of probation. (Gagnon v. Scarpelli (1973), 411 U.S. 778, 782 n. 3, 36 L.Ed.2d 656, 661 n. 3, 93 S.Ct. 1756, 1759 n. 3.) The essence of both is a grant of conditional freedom which, "although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a `grievous loss' on the parolee." (Morrissey v. Brewer (1972), 408 U.S. 471, 482, 33 L.Ed.2d 484, 92 S.Ct. 2593.) Accordingly, the parolee's liberty has been found to be valuable and within the protection of the fourteenth amendment. (Morrissey v. Brewer (1972), 408 U.S. 471, 482, 33 L.Ed.2d 484, 92 S.Ct. 2593.) While the liberty insured by the Constitution is not the conditional liberty granted to parolees, it is clearly protectible as a fundamental interest.
• 3 The eighth amendment does not suggest that a parolee charged with violation of a condition of parole has a right to remain at liberty through a bail procedure similar to that in the case of those charged with, but not convicted of, a crime. (In re Whitney (1st Cir. 1970), 421 F.2d 337, 338.) However, as pointed out in United States v. Schrieber (E.D.N.Y. 1973), 367 F. Supp. 791, 792, that point neither decides that a parolee or probationer may not be admitted to bail, nor excludes the conclusion that due process commends, if not requires, consideration of the question of whether either might not be admitted to bail if, on an individual basis, the circumstances would dictate otherwise. We find it unnecessary in the instant case to reach this question since the legislature has deemed it advisable to provide bail for probationers. Our concern here is whether the failure to grant bail to parolees is violative of the equal protection clause of the fourteenth amendment.
The State contends that the omission of a bond provision for parolees does not deny equal protection, even though bail is available to probationers at the discretion of the circuit court, because there is a rational basis for the distinction which is predicated on an "inherent difference" between a probationer and a parolee. It is alleged that a parolee has demonstrated by virtue of his criminal history that he represents a threat to the public, in the opinion of the sentencing court. On the other hand, a probationer has been found through similar judicial proceedings not to require incarceration and, as a result, cannot be presumed to hold out as great a danger to society. We find this propostion to be unpersuasive in light of the United States Supreme Court's pronouncements in the Morrissey and Gagnon decisions, and directly refuted by a statute providing that the court may require potential probationers to serve a term of periodic imprisonment under certain conditions. Ill. Rev. Stat. 1975, ch. 38, par. 1005-6-3.
• 4 We also reject respondent's contention that a mere showing of some rational relationship is sufficient to sustain the difference in treatment between probationers and parolees. When a classification made by the State touches on a fundamental interest, the constitutionality of its action must be judged by the stricter standard of whether it promotes a compelling State interest. (Shapiro v. Thompson (1969), 394 U.S. 618, 638, 22 L.Ed.2d 600, 89 S.Ct. 1322.) The compelling interest standard is not limited in application to those cases involving "suspect classifications"; for whenever a fundamental interest is impaired, the courts will demand a more convincing showing that the classification is necessary to achieve the State objective. (Shapiro v. Thompson (1969), 394 U.S. 618, 638, 22 L.Ed.2d 600, 89 S.Ct. 1322.) Under this standard, we find that the denial of bail to parolees is a violation of the equal protection clause of the United States Constitution.
A similar result was reached by the Federal District Court in United States ex rel. Dereczynski v. Longo (N.D. Ill. 1973), 368 F. Supp. 682, an action brought by four parolees incarcerated in the Cook County Department of Corrections and charged with parole violations. The court found that the classification did not present a legitimately defensible difference, in light of the Gagnon decision, since a valid classification must be reasonable, not arbitrary, and based upon some ground of difference having a fair and substantial relation to the object of the legislation, ...