The opinion of the court was delivered by: Moran, District Judge.
This case is a class action challenge to the Illinois parole
revocation system. The court granted preliminary injunctive
relief in an earlier opinion, Faheem-el v. Klincar, 600 F. Supp. 1029
(N.D.Ill. 1984). It must now consider whether plaintiff and
the class he represents are entitled to preliminary injunctive
relief on the issue of the State's denial of bail to all alleged
parole violators. Also before the court are plaintiff's petition
for a rule to show cause why defendants should not be held in
contempt of an earlier order of the court, and plaintiff's motion
for summary judgment.
A. Illinois Parole System
Sentencing judges in Illinois have a maximum of seven
sentencing options, including imprisonment. Illinois Rev.Stat.
ch. 38, ¶ 1005-5-3(b). The legislature has mandated imprisonment
for the most serious offenses. Id. at ¶ 1005-5-3(c). In other
Except where specifically prohibited by other
provisions of [the Unified Correctional Code], the
court shall impose a sentence of probation or
conditional discharge upon an offender unless, having
regard to the nature and circumstance of the offense,
and to the history, character and condition of the
offender, the court is of the opinion that:
(1) his imprisonment or periodic imprisonment is
necessary for the protection of the public; or
(2) probation or conditional discharge would
deprecate the seriousness of the offender's conduct
and would be inconsistent with the ends of justice.
Ill.Rev.Stat. ch. 38, ¶ 1005-6-1(a).
Most Illinois prisoners are paroled. In 1977 the legislature
adopted a system of determinate sentences for felonies that
included mandatory parole terms. Ill.Rev. Stat. ch. 38, ¶
1005-8-1.*fn1 Individuals who were sentenced under the law in
effect before February 1, 1978, the effective date of the
determinate sentencing system, and who are otherwise eligible
for parole, see Ill.Rev.Stat. ch. 38, ¶ 1003-3-3(a), may be
paroled unless the Prisoner Review Board*fn2 determines that:
(1) there is a substantial risk that he will not
conform to reasonable conditions of parole; or
(2) his release at that time would deprecate the
seriousness of his offense or promote disrespect for
the law; or
(3) his release would have a substantially adverse
effect on institutional discipline.
Parole is subject to conditions deemed necessary by the
Prisoner Review Board to assist the parolee in leading a
law-abiding life. Ill.Rev.Stat. ch. 38, ¶ 1003-3-7. Two
conditions of every parole are that the parolee not violate any
criminal statute or possess a firearm or other dangerous weapon.
Id. at ¶ 1003-3-7(a). The Board in its discretion may also impose
a variety of other conditions outlined by statute.*fn4
As the Supreme Court recognized in Morrissey v. Brewer,
408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), parole is an
integral part of the penological system. Parole is not a form of
clemency. Rather, it is a variation of imprisonment designed to
facilitate the integration of convicted criminals back into
society. Subject to parole conditions, parolees are able to
resume their normal job, family, work and community life. By
shortening the periods of confinement, parole alleviates both
prison overcrowding and the cost of maintaining prison systems.
The Prisoner Review Board is empowered to enforce compliance
with parole conditions. See Ill.Rev.Stat. ch. 38, ¶ 1003-3-9.
Among other options it may revoke parole and order the
reincarceration of a parole violator. Id. at ¶ 1003-3-9(a)(3).
Parole revocation has serious consequences for the parolee.
First, the ties to job, family and community that the parolee may
have reestablished are again severed. Cf. Barker v. Wingo,
407 U.S. 514, 520-21, 92 S.Ct. 2182, 2187, 33 L.Ed.2d 101 (1972)
(discussing the deleterious effects of imprisonment on pretrial
detainees). Second, as a result of parole revocation, a parolee
will generally face a substantial period of imprisonment. For
parole violators who have been sentenced under the old
indeterminate sentencing system, "recommitment shall be for any
portion of the imposed maximum term of imprisonment or
confinement which had not been served at the time of parole and
the parole term, less the time elapsed between the parole of the
person and the commission of the violation for which parole was
revoked." Ill.Rev.Stat. ch. 38, ¶ 1003-3-9(a)(3)(i)(A). For those
parolees who serve determinate sentences, recommitment is for the
remainder of the parole term and, at the discretion of the
Prisoner Review Board, up to one additional year representing
time not served due to the accumulation of good conduct credit.
Id. at ¶ 1003-3-9(a)(3)(i)(B).
The Morrissey Court outlined due process requirements that
protected the parolee's substantial liberty interest. First,
there must be a preliminary parole revocation hearing "conducted
at or reasonably near the place of the alleged parole violation
or arrest and as promptly as convenient after arrest while
information is fresh and sources are available." 408 U.S. at 485,
92 S.Ct. at 2602. This preliminary hearing must be before an
"independent officer." Id. at 485-86, 92 S.Ct. at 2602-03. The
parolee must be able to play an active role at the hearing:
[T]he parolee should be given notice that the
hearing will take place and that its purpose is to
determine whether there is probable cause to believe
he has committed a parole violation. The notice
should state what parole violations have been
alleged. At the hearing the parolee may appear and
speak in his own behalf; he may bring letters,
documents, or individuals who can give relevant
information to the hearing officer. On request of the
parolee, a person who has given adverse information
on which parole revocation is to be based is to be
made available for questioning in his presence.
However, if the hearing officer determines that an
informant would be subjected to risk of harm if his
identity were disclosed, he need not be subjected to
confrontation and cross examination.
Id. at 486-87, 92 S.Ct. at 2603. Second, the Morrissey Court held
that within a "reasonable time" after the preliminary revocation
hearing there must be a final revocation hearing. Id. at 488, 92
S.Ct. at 2603. The minimum requirements of due process at that
(a) written notice of the claimed violation of
parole; (b) disclosure to parolee of evidence against
him; (c) opportunity to be heard in person and to
present witnesses and documentary evidence; (d) the
right to confront and cross examine adverse witnesses
(unless the hearing officer specifically finds good
cause for not allowing confrontation); (e) "a neutral
and detached" hearing body such as a traditional
parole board, members of which need not be judicial
officers or lawyers; and (f) a written statement by
the fact-finders as to the evidence relied on and the
reason for revoking parole.
Id. at 489, 92 S.Ct. at 2604. While these procedural requirements
are not as strict as that of a criminal trial, id., they
nevertheless represent the constitutional minimum.
The Illinois parole revocation statute shows the influence of
Morrissey. The statute provides for both a preliminary and final
revocation hearing. Ill.Rev.Stat. ch. 38, ¶¶ 1003-3-9(c), -9(e).
It requires parolees to be apprised by written notice of the
alleged violations, allows them to be present at the final parole
revocation hearing, which is before a panel of the Prisoner
Review Board, and permits them to bring witnesses on their behalf.
Id. at ¶ 1003-3-9(e). The rules of the Prisoner Review Board
explicitly provide a much fuller range of procedural
protections.*fn5 One notable feature of the statute and
regulations is the absence of any provision for the release of
alleged parole violators on bail pending a final revocation
Plaintiff Kareem Faheem-el was sentenced in 1973 to a term of
30 to 90 years imprisonment for murder. He was paroled from the
Stateville Correctional Center on October 5, 1983. On January
23, 1984, he was arrested for the alleged possession of cocaine
and sent to Cook County Jail. He was served on February 7, 1984
with a notice charging violation of his parole conditions. A
preliminary hearing was held on March 1, 1984 and the hearing
officer found probable cause to believe that Faheem had violated
his parole. Faheem was not considered for bail. The final parole
revocation hearing was held on February 5, 1985, over one year
after his arrest. Faheem was found to have been in violation of
Faheem's lawsuit is directed primarily at three features of the
parole revocation system. First, he alleges that defendants
customarily deny parolees the opportunity to present their own
witnesses or to cross-examine adverse witnesses at the
preliminary parole revocation hearing. Second, Faheem challenges
the practice of delaying final parole revocation hearings until
after disposition of the underlying criminal action. This ...