Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 84 C 2561, James B. Moran, Judge.
Cummings and Cudahy, Circuit Judges, and Gordon, Senior District Judge.*fn*
We are asked whether, consistent with the Due Process Clause of the Fourteenth Amendment, a state may deny every parolee who is arrested on a new criminal charge any consideration for release prior to the final revocation hearing. In Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593, the Supreme Court decided that parolees have a significant liberty interest in maintaining their conditional freedom. Thus the Court held that the Due Process Clause requires certain procedures including hearings prior to revocation of parole but it declined to hold that the full panoply of rights due a defendant in a criminal proceeding applied in the parole-revocation context.
Of the many issues in this lawsuit, this interlocutory appeal only concerns the plaintiff's challenge to Illinois' blanket denial of bail to arrested parole violators awaiting a final revocation hearing. The district court had jurisdiction of this 42 U.S.C. § 1983 action under 28 U.S.C. § 1343(a)(3), and our jurisdiction over that court's interlocutory order is under 28 U.S.C. § 1292(a)(1). The district court awarded the plaintiff class, those detained pending final revocation hearings on new criminal charges, preliminary injunctive relief requiring that class members be considered for release on bail. We affirm that decision as modified herein.
This case has its inception in the Supreme Court's landmark decision of Morrissey v. Brewer. That case held that parolees have a liberty interest that falls within the protection of the Due Process Clause. 408 U.S. at 482. The Court, concluding that "the interest of both State and parolee will be furthered by an effective but informal hearing" (at 484-485), divided the parole-revocation process into two stages: first, the arrest of the parolee and the preliminary revocation hearing, and second, the final revocation hearing. In the first stage, an independent decisionmaker, who need not be a judicial officer, must hold a hearing "at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest" to determine "whether there is probable cause or reasonable ground to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions" (at 485). The parolee must be given notice of the hearing, its purpose, and the alleged parole violations (at 486-487). The court specified the minimum procedural requirements for this first hearing:
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.
408 U.S. at 487. The hearing officer is supposed to compile a summary of "the responses of the parolee and the substance of the documents or evidence given in support of parole revocation and of the parolee's position" and to state the reasons for his decision and the determinative evidence. Id. (citing Goldberg v. Kelly, 397 U.S. 254, 271, 25 L. Ed. 2d 287, 90 S. Ct. 1011).
In the second stage of the revocation process, the Court required the state to provide within a "reasonable time" after the parolee is arrested -- a two-month period did not seem unreasonable -- a hearing which "must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation" (at 488). The parolee can present arguments and evidence controverting the alleged violations of the conditions of parole and claiming that those violations do not warrant revocation. Id. The opinion listed the minimum due process requirements as including:
(a) written notice of the claimed violations of parole; (b) disclosure to the 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 reasons for revoking parole.
408 U.S. at 489. The Court also stressed that the final revocation hearing, although determining the fate of the parolee's liberty interest, is not "a criminal prosecution in any sense" and that the traditional rules of evidence may be relaxed. Id. It declined to decide if the parolee could be assisted by retained or appointed counsel. Id. In the later decision of Gagnon v. Scarpelli, 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756, it was held that the state had to provide appointed counsel in some parole and probation revocation cases, such as when the parolee makes a colorable claim that he or she did not commit the alleged violation or when his or her reasons against revocation are complex, and the Gagnon Court concluded that in every case when a parolee's request for counsel is refused, the grounds for refusal must be stated in the record. Id. at 790-791.*fn1
The Illinois procedures for parole revocation track in form the prescriptions of Morrissey. Illinois has established the Prisoner Review Board (the "Board"), which is responsible for administering parole and mandatory supervised release and the revocation process. By statute, a parolee is entitled to a preliminary and a final revocation hearing; the latter must be heard by at least one member of the Board and decided by a majority vote of a panel of at least three members of the Board. Ill. Rev. Stat. ch. 38, para. 1003-3-9(c) to (e). The Board has authority to revoke parole or to order parole continued with or without modifying the conditions of parole. Id. at para. 1003-3-9(f). The regulations of the Board provide for the minimum procedural requirements established by Morrissey. See Ill. Admin. Code tit. 20, §§ 1610.140, 1610.150. The Board's regulations also provide a parolee with the right to be represented by retained counsel at the preliminary and final revocation hearings. Id. at § 1610.140(c). Finally, the regulations require that the preliminary hearing be held "within 10 days of the parolee's apprehension unless continued by the hearing officer for up to an additional two weeks to permit the production of witnesses or materials relevant to the hearing." Id. at § 1610.140(b)(3).
Notwithstanding the congruence of the Illinois parole-revocation procedures with the constitutional minimum requirements articulated in Morrissey, the plaintiff herein, Kareem Faheem-El, also known as Lawrence Griffin, discovered that the state's observance was in word but not deed. The plaintiff, who was paroled after serving ten years for a murder conviction, was arrested on January 23, 1984, for alleged possession of three grams of cocaine and sent to Cook County jail. The record indicates that on that same day a warrant was issued by an officer of the Department of Corrections and was received by an employee of the Chicago Police Department. The warrant ordered that the plaintiff be held for delivery to the Department of Corrections. It was not until day 16 of his confinement, on February 7, 1984, that Faheem-El was served with notice charging violation of his parole conditions. In contravention of the Board's own regulations, Faheem-El was confined for almost six weeks after his arrest without receiving a preliminary revocation hearing, which finally took place on March 1, 1984. The plaintiff claimed, and the report of the hearing officer supports the plaintiff's claim, that he attempted to present the testimony of an eyewitness who allegedly could exonerate him of the drug-possession charge but was denied that request. Plaintiff alleged that he was not allowed to cross-examine the state's witnesses, despite the appropriateness of such under Morrissey and the Board's own regulations. The hearing officer found that probable cause existed to believe that Faheem-El violated a condition of his parole and he was held in jail pending his final revocation hearing.
Over one year after his arrest and confinement, Faheem-El received a final revocation hearing on February 5, 1985. Plaintiff filed in March of 1984 this suit seeking inter alia a bail hearing. The plaintiff was never considered for bail during the eleven-month period while he waited in jail for a final revocation hearing, although the underlying offense that he was charged with is bailable under Illinois law. At the final revocation hearing, Faheem-El was found to be in violation of his parole. The record does not indicate whether his parole was revoked.
Faheem-El brought this class action on March 27, 1984, about three weeks after his preliminary revocation hearing. He challenged the defendants' policies of (1) customarily refusing to allow parolees to present witnesses or to cross-examine adverse witnesses at the preliminary revocation hearing, (2) delaying final revocation hearings until after disposition of the underlying criminal charge, although this delay may amount to many months, (3) denying parolees credit for time spent in jail awaiting their final revocation hearing, and (4) refusing to consider alleged parole violators for bail pending their final revocation hearing.
The district court's first opinion mostly dealt with procedural issues in the case. The court dismissed the habeas claims because of the plaintiff's failure to exhaust his state remedies but retained jurisdiction over the plaintiff's § 1983 claims. Faheem-El v. Klincar, 600 F. Supp. 1029, 1032-1034 (N.D. Ill. 1984).*fn2 On the issue of class certification, the court held that Article III concerns of standing and mootness as well as the requirements of Rule 23 were satisfied here and thus a class action was appropriate. Id. at 1034-1038. On the bail issue, which is the subject of this interlocutory appeal, the district court certified a state-wide class of parolees facing parole-revocation proceedings because of their arrest on new criminal charges. Id. at 1038; see Faheem-El v. Klincar, 620 F. Supp. 1308, 1316 n.12 (N.D. Ill. 1985). On the substantive issues, the court preliminarily enjoined the defendants from refusing to allow parolees to present witnesses and confront and cross-examine adverse witnesses at the preliminary revocation hearing. 600 F. Supp. at 1038-1039; see Order for Prelim. Inj. (Dec. 19, 1984) (Moran, J.). The district court also granted a preliminary injunction against the defendants' policy of delaying the final revocation hearing until after the trial on the underlying criminal charges. 600 F. Supp. at 1039-1041; see Order for Prelim. Inj. (Dec. 19, 1984) (Moran, J.). The district court ordered further briefing on the bail issue. 600 F. Supp. at 1039.
In its second opinion the district court granted summary judgment and entered a permanent injunction on the plaintiff's challenge to the preliminary revocation hearing procedures. 620 F. Supp. at 1322. Judge Moran ordered the Board to give Faheem-El a new final revocation hearing employing procedures that comported with the requirements of Morrissey. Id. at 1323-1324.
The district court also addressed the bail issue in its second opinion. The court found that the Illinois statutes, as interpreted by the Illinois Supreme Court, do not allow parolees to be considered for release on bail pending the final revocation hearing. Id. at 1314. In a thorough and thoughtful opinion, Judge Moran ruled that the plaintiff class had a reasonable likelihood of success on all three of its legal challenges to Illinois' policy of a blanket denial of bail to parolees. First, the court held that although the Eighth Amendment does not guarantee an individual a right to be released on bail, it probably does prevent a blanket denial of consideration for bail, with limited exceptions such as capital cases. Id. at 1314-1318. The court also found that the denial of consideration of arrested parolees for bail violated the Fourteenth Amendment's Equal Protection Clause, even employing only a rational basis standard of review, because the judge found that there did not seem to be any distinctions between arrested probationers, who can be considered for bail, and arrested parolees that were rationally related to the difference in treatment. Id. at 1320-1322. Finally the court found that the blanket denial of bail probably violates the Fourteenth Amendment's Due Process Clause because it automatically extinguishes the parolees' liberty interest no matter the individual circumstances. Id. at 1318-1320.*fn3 Having found that the other grounds for granting a ...