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FAHEEM-EL v. KLINCAR

October 25, 1985

KAREEM FAHEEM-EL, ON HIS OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
PAUL KLINCAR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Moran, District Judge.

  MEMORANDUM AND ORDER
  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.

I. BACKGROUND

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 cases:

    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 Supreme Court has recognized that the parolee has a liberty interest in continued parolee status. Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). It there characterized the revocation of parole as inflicting a "grievous loss" on the parolee and often on others: family, friends, employers. Id. The Court also recognized that the parolee is not the only one who has an interest in parole. Society has an interest in preventing the wrongful denial of parole in order to facilitate the reintegration of convicted criminals into society. Id. at 484, 92 S.Ct. at 2601. The Court also stated that "society has a further interest in treating the parolee with basic fairness: fair treatment in parole revocations will enhance the chances of rehabilitation by avoiding reactions to arbitrariness." Id. (footnote omitted).

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 hearing include:

    (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 hearing.

B. Faheem-el's Challenge

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 his parole.

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 ...


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