Ellhamer v. Wilson Brief of Amici Curiae

    UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

WILLIAM L. ELLHAMER, )
)Petitioner - Appellee, )
)vs. )
)LAWRENCE E. WILSON, Warden, )
)Respondent - Appellant, )
)

_____________________________________________________ )
)CHARLES HINNINGTON, )
)Petitioner - Appellee, )

vs. )
)DEPARTMENT OF CORRECTIONS, )

et al., )
)Respondents - Appellants, )
)

_________________________________________ .)

No, 25919

No. 25953

BRIEF OF AMICI CURIAE 
N.A.A.C.P. LEGAL DEFENSE AND EDUCATIONAL 
FUND, INC., AND THE NATIONAL OFFICE FOR 

THE RIGHTS OF THE INDIGENT

ALICE DANIEL 
WILLIAM BENNETT TURNER

1095 Market Street, Rm. 418 
San Francisco, California 94103

Attorneys for Amici Curiae



INDEY

Page

STATEMENT 0? THE INTEREST OF Tip., AMICI
CURIAE ............................ ....... 1

ARGUMENT
THE STATE MAY NOT TERMINATE A 
PAROLEE'S LIBERTY AND ORDER HIS RE­
TURN TO PRISON WITHOUT OBSERVING 
MINIMAL SAFEGUARDS REQUIRED BY DUE 
PROCESS............ ................... 4

CONCLUSION 26



TABLE OF CASES

P.a_£.e„

In re Allen
78 Cal. Rptr. 207, 455 P.2d 143 (1969) 10

Ashworth v. United States
391 F.2d 245 (6th Cir. 1968) 14

Baxstrom v . Hero Id 
• 383 U.S. 107 (1966) 20

Blea v. Cox
75 N.M. 265, 403 P.2d 701 (1965) 13

In re Brown
67 Cal. 2d 339, 62 Cal. Rptr. 6, 431 
P .2d 630 (1967) 6

Carothers v. Follette
314 F.Supp. 1014 (S.D.N.Y. 1970) 2,20

Chewning v. Cunningham 
36S U.S. 443 (1962) 18

Commonwe a11h v . T in s o n
433 Pa. 328, 249 Atl. 2d 549 (1959) 12

Escalera v. New York City Housing Authority 
425 F .2d 853 (2d Cir. 1970) 15, 16

Fleming v. Tate
156 F.2d 848 (D.C. Cir. 1946) 25

Fortune Society v. McGinnis
70 Civ. 4370 (S.D.N.Y. Nov. 24, 1970) 2

l



In re Gault
387 U.S. 1 (1967) 17

Gilmore v. Lynch
No. 45878 (N.D.Cal. May 28, 1970) 17

Goldberg v. Kelly
397 U.S. 254 (1970) 4,5,14,16,22,23

Greene v. McElroy
360 U.S. 474 (1959) 14,16

In re Hall
63 Cal. 2d 115, 45 Cal. Rptr. 133, 403 
P.2d 389 (1965) 10

Hannah v. Larche
363 U.S. 420 (1969) 5

Hewitt v. North Carolina
415 F.2d 1316 (4th Cir. 1969) 13

Holt v.'Server
309 F.Supp. 362 (E.D. Ark. 1970) 2

Ex Parte Hoopsick
172 Pa. Super. 12, 91 A.2d 241 (1952) 15

Hyland v. Pro cunier
311 F.Supp. 749 (N.D.Cal. 1970) 10,17

Jackson v. Godwin
400 F.2d 529 (5th Cir. 1968) 2

Johnson v. Avery
393 U.S. 483 (1969) 19

Joint Anti-Fascist Refugee Comm. v. McGrath
341 U.S. 123 (1951) 16

ii



20

In re Jones
57 Cal. 2d 860, 22 Cal. Rptr. 478,'
372 P.2d 310 (1962)

Kent v. United States
383 U.S. 541 (1966) 13,15

Love v. Fit2harris
311 F. Supp. 702 (N.D. Cal.. 1970) 10

In re McClain
55 Cal. 2d 78, 9 Cal, ‘Rptr.. 824, 357 
P.2d 1086 (1960), cert, denied, 368 U.S. 
10 (1968) 9, 10

Me Connell v. Rhay 
393 U.S. 2 (1968) 11

Mead v. California Adult Authority 
415 F .2d 767 (9th Cir. 1969) 10

Mempa v. Rhay
389 U.S. 128 (1967) 11

Menechino v . 0swald
430 F.2d 403 (2d Cir. 1970) 6

Morris v. Travisono
310 F. Supp. 857 (D.R.I. 1970) 2,20

Mosher v. LaVallee
No. 67 CV 174 (N.D.N.Y. July 31, 1970) 2

In re Narcotic Addiction Control 
Commis s ion v. James

22 N.Y. 2d 545, 293 N.Y.S. 2d 531, 240 
N.E. 2d 29 (1968) 22 .

Nolan v. Scafati
430 F.2d 548 (1st Cir. 1970) 20

iii



15
North Carolina v. Fear 

395 U.S. 711 (1968)
In re O ’Malley

101 Cal. App. 2d 80, 224 P.2d 83 (1950) 10
Oyler v. Boles

368 U.S. 448 (1962) 18
Palmigiano v. Affleck

Nos. 4296 and 4349 (D.R.I. Aug. 24, 1970) 2
In re Payton

28 Cal. 2d 194, 169 P.2d 361 (1946) 5
People v. Dominguez

256 Cal. App. 2d 623, 64 Cal. Rptr. 290 
(1969) 10

People v. Hernandez
229 Cal. App. 2d 143, 40 Cal. Rptr. 100
(1964) . 10, 17

People v. Martinez
1 Cal. 3d 641, 83 Cal. Rptr. 382, 463 
P .2d 734 (1970) 10,15

Perry v. Williard
247 Ore. 145, 427 P.2d 1020 (1957) 13

Pointer v. Texas
380 U.S. 400 (1965) 14

Rose v. Haskins
383 F.2d 91, 97 (6th Cir. 1968) 17

Schuster v. Herold
410 F:2d 1071-(2d Cir. ), cert, denied,
396 U.S. 847 (1969) 20



Shapiro v« Thompson
. 394 U .S. 618 (1969) ... ' 16,23
Shone v. State of Maine

-406 F.2d 844 (1st Cir.)vacated as moot
396 U.S. 6 (1969) 20

Sniadach v ..Family Finance Corp.
395 U.S. 337 (1969) 22

Sostre v. Rockefeller
312 F.Sapp. 863 (S.D.N.Y. 1970) 20

Specht Vo Patterson
386 U.S. 605 (1967) 17,18,19

State v. Pohlabel
61 N.J. Super. 242, 160 A.2d 647
(App. Div. 1960) 15

Townsend v. Burke
334 U.S. 736 (1948) 15

United States ex reL Gerchman v. Maroney
355 F.2d 302 (3rd Cir. 1966) 18

United States v. Wade
388 U.S. 218 (1967) 12

In re Winship
397 U.S. 358 (1970) 17

Wright v. MeMann
387 F.2d 519 (2d Cir. 1967) 19

v



OTHER AUTH0R.IT IES

Pass

4 Attorney General's Survey on Release 
Procedure (1939) 9
Bates, Probation and Parole as Elements in
Crime Prevention, 1 Law &. Contem. Prob. 484
(1934) 24
California Adult Authority Policy Statement
No. 6 11/1/57 7
California Assembly Committee on Criminal 
Procedure, Deterrent Effects of Criminal 
Sanctions (1968) 23
California Criminal Law Practice (Coat. Ed.
Bar. 1969) 22
Parole Status and the Privilege Concept,
1.969 Duke L.J. 139 17
Progress Report. 1967-1968, California Depart­
ment of Corrections 6,8
Van Alstyne, The Demise of the Privilege-
Right Distinction in Constitutional Law, 81
Harv. L. Rev. 1439 (1968) 16

vi



STATEMENT OF THE INTEREST OF THE AMICI CURIAE

The NAACP Legal Defense and Educational Fund,
Inc. is a non-profit corporation formed under the 
laws of the State of New York in 1939. The Fund was 
incorporated to assist black people to secure their 
constitutional rights by the prosecution of lawsuits. 
Under its charter, one of its purposes is to pro­
vide free legal assistance to Negroes who suffer in­
justice because of race and who are unable, on account 
of poverty, to employ legal counsel.—^

A central purpose of the Fund is the legal 
eradication of practices in our society that bear with 
discriminatory harshness upon blade people and upon the 
poor, deprived and friendless, who too often are black. 
To further this purpose, the Fund in 1967 established 
a separate corporation, the National Office for the 
Rights of the Indigent (N.O.R.I.), having among its 
objectives the provision of legal representation to the 
poor in individual cases and the advocacy before appell­
ate courts of changes in legal doctrines which unjustly 
affect the poor.

1/The Fund's charter was approved by a New York court, 
authorizing the organization to serve as a legal aid 
society. It is entirely independent of other organiza­
tions, and is supported by- contributions from the public

1



In 1970 the Fund received a foundation grant 
for the purpose of promoting efforts toward penal 
reform. The grant contemplates that the Fund will do 
research to identify the most serious and fundament­
al problems in corrections and, where appropriate, will 
bring test litigation or suggest administrative or 
legislative reform.

The Fund has been involved in several impor-  ̂ ' *
tant prison cases in several different states, includ­
ing Jackson v. Godwin, 400 F.2d 529 (5th Cir. 1968);
Carothers v._Follette, 314 F.Supp. 1014 (S.D.N.Y. 1970);
Mosher _v. LaVallee, No. 67 CM 174 (N.D.N.Y. July 31,
1970); Holt v . Sarver, 309 F.Supp. 362 (E.D. Ark. 1970); 
Morris v . Travisono, 310 F.Supp. 857 (D.R.I. 1970);
Palmlgiano v . Affleck, Nos. 4296 and 4349 (D.R.I. Aug. 24, 
1970); Fortune Society v. McGinnis, 70 Civ. 4370 (S.D.
N.Y. Nov. 24, 1970). The issues presented in these cases 
cover a broad spectrum of the difficulties faced by 
prisoners in realizing their fundamental rights as 
American citizens.

The unifying purpose of the Fund's lawsuits has 
been not only elimination of the most barbaric and out­
moded conditions of prison life, but also implementation 
of the rule of law in the corrections phase of the 
criminal process» We believe that if the lawbreaker is to be

2



rehabilitated, he must be convinced of -the validity 
of our legal system. Because his attitude toward 

- society after release from prison will be shaped by 
his experience with its representatives who administer 
the penal system, minimal standards of fairness should 
be observed in every phase of the correctional process. 
In short, we believe that prison officials, like all

# # j  * Vpublic officials, should be accountable to principles 
of law. We believe that the decision below in this 
case will further this aim, and that the decision, is a 
sound balance of the realities of parole and considera­
tions of public policy.

3



ARGUMENT

THE STATE MAY NUT TERMINATE A 
AMD ORDER HIS RETURN TO PRISON 
MINIMAL SAFEGUARDS REQUIRED BY

PAROLEE!S LIBERTY' 
WII ROUT OBSERVING 
DUE PROCESS.

The decision to suspend parole has critically 
important consequences for the parolee. It means 
that lie will be removed from his community, family 
and work, and returned to prison for an indetermin­
ate but certainly substantial period of time. It 
would seem fairly obvious that a decision of such 
moment, depriving an individual of his liberty, should 
be made in a formalized proceeding which gives some 
assurance that the factual basis for suspension was 
arrived at fairly and accurately; and indeed, it is now 
clear that the Constitution requires no less.

In Goldberg v. K elly, 397U.S. 254, (1970), the 
Supreme Court held that minimal procedural safeguards 
are constitutionally required whenever the state proposes 
to act in a way which will adversely affect an impor­
tant individual interest. The extent to which procedur­
al due process must be observed is influenced by the 
extent to which the individual may be "condemned to 
suffer grievous loss" by the government action, and whether 
the individual's interest in avoiding that loss out­
weighs the governmental interest in summary, adjudication.

4



Which procedural safeguard's ' are. necessary is deter­
mined by the precise nature, of the governmental 
function involved and of the private interest that 
has been affected by the governmental action.
Goldberg v. Kelly, supra; Hannah v. Larche, 363 U.S, 
420, 442 (i960).

Analysis of the governmental function involved 
in parole suspension and of the individual's interest 
in retaining his status compels the conclusion that 
essential procedural due process safeguards should he
observed at parole suspension proceedings.
The Nature Of The Governmental Function Performed

The primary function performed at a California
parole suspension hearing is to make the factual deter­
mination that "good cause" for suspension exists, 
since suspension without cause is prohibited by Section 
3063 of the California Penal Code. In the usual case, 
the statute is satisfied by a finding that the parolee 
violated one or more of the conditions of parole. In 
re Payton, 23 Cal. 2d 194, 169 P.2d 361 (1946). Having 
made the initial determination that a violation occurre 
the Board is then authorized to go on and consider a 
variety of other factors before it decides, as a discre 
tionary matter, whether return to prison is

5



o /warranted
In making, the determine. .ion that "good cause" 

for suspension exists, the Adult: Authority is fre­
quently called upon to resolve disputed questions of 
fact. When the parolee has been convicted of a 
crime committed while on parole, there may be little 
dispute about the facts but even then, lack of 
finality in the criminal conviction may warrant takingo f
evidence on the underlying facts.—

Department of Corrections statistics show that 
small percentage of parolees are returned to 
because of new felony crimes.

only a 
prison

2/The need to make a factual determination as the pre­
dicate for further action distinguishes parole revoca­
tion proceedings from parole release decisions, where 
procedural due process may be less necessary because 
no existing interest is jeopardized by charges of mis­
conduct and no findings are required. Cf. Menechino v. 
Oswald, 430 F.2d 403 (2d Cir. 1970).

3/California law prohibits revoking parole on the basis 
of an invalid conviction. In re Brown, 67 Cal. 2d 339, 
62 Cal. Rptr. 6, 431 P.,2d 630 (1967)7

4/For men released in 1965 the return rate was 38.3 per 
cent, with only 14.9 per cent returned with new felony 
crimes. Of those released in 1966, 17.1 per cent were 
returned to prison, including only 5.6 per cent with 
new felony crimes. Of the 1968 releases, 15.7 per cent 
were returned, including 4.11 per cent with new felony 
convictions. (Progress Report 1967-1968, California 
Department of Corrections).

6



The majority of parole suspensions are based on 
alleged misconduct for which the paro.lee was never 
tried; and in such cases the need foi procedural 
regularity is much greater because the facts are more 
often in dispute.

California Adult Authority Policy Statement 
No. 6 (11/1/57) [Appendix A, infra] authorizes 
suspension at the district attorney's request, on 
the basis of criminal allegations which the parolee 
denies. This procedure gives the prosecutor's case 
the effect of, and even more finality than a 
criminal conviction (which might be reversed on 
appeal). The district attorney is given the power to 
effect a parolee's return to prison on the basis of 
charges which have never been subjected to the scru­
tiny of a magistrate or grand jury. No judicial 
officer ever reviews the prosecutor's evidence to 
see whether even a prima facie case could be proved; 
and yet the parolee is denied all the procedural safe-* 
guards he would have received had the prosecution been 
forced to put its case to trial.

Most parole suspensions are based on non-criminal 
acts which are alleged to violate the conditions of 
parole. Many of the conditions are extremely broad and 
general, such as the prohibition against "association

7



with individuals of bad reputation"; (Condition 8, 
California Parole Agreement, App. Br.'Appendix "i") 
or the requirement to conduct oneself "as a good 
citizen." (Condition 12)

■ The very nature of the charges on which most 
parole suspensions are based makes it inevitable 
that there will frequently be. dispute about the under­
lying facts. The basic'question of whether the 
parolee performed the acts claimed to violate the 
agreement is decided by the parole agent's written 
report, which is given conclusive weight. Yet these 
reports are not even based on the agent's firsthand 
knowledge of the circumstances. Parole agents have 
large caseloads, averaging 70-80 parolees (Progress 
Report 1967-1968), and it is impossible for an agent 
to have personal knowledge of the activities of all 
his parolees. In preparing his report,the agent 
relies on hearsay and rumor gathered from sources of 
unproven reliability, without necessarily investiga­
ting either the basis for his informant's information 
or his motives in relaying it. Even when the parolee 
is charged, with a specific act such as drinking in 
violation of Condition 5B (which prohibits consump­
tion of any alcoholic beverage), it must be recognized 
that the agent's report is usually based on hearsay, 
since a parolee would rarely drink in the presence of



It should be noted that parole suspension 
and revocation is based on a written report. The 
agent is not present at the hearing to answer ques­
tions or explain the bases for his assertions. Even 
when the report contains firsthand knowledge, there 
is rio guarantee of fairness. Some of the parole 
conditions, such as the onerequiring cooperation with 
the parole agent (Condition 10) are susceptible to 
highly subjective interpretation. Parole agents are 
human and it is possible that friction between the 
agent and the parolee may have influenced the agent's 
judgment.^ Since the parole agent is not present for 
questioning about his report, there is no way for the 
fact-finder to judge the reliability of his perceptions 
and interpretations, cr to make sure that they are un­
colored by bias.
Substantive Limitations on State Action

There are important substantive limitations on 
the Adult Authority's power to suspend or revoke parole. 
In addition to the basic requirement that good cause be 
shown, which bars the Authority from acting on the basis 
of "whim, caprice or rumor", In re McClain, .55 Cal. 2d

5/S’ee 4 Attorney General's Survey on Release Procedure
'246-7 (1939).

his agent.

- 9 ~



78, 9 Cal. Rptr. 824 
dended, 368 U.S. 10 
ed in the absence of

,'357 P.2d 1086 (1960), cert. 
(1968), revocation is prohibit- 
"substantial evidence" that a

violation occurred. In f_e O’Malley, 101 Cal'. App. 2d 
80, 224 P.2d 88 (1950). An invalid criminal convic­
tion will not support revocation. In re Hall, 63 Cal.“78 T ----- .2d 115, 45 Cal. Rptr. 133, 403 P.2d/(1965); nor will 
proof that the parolee violated an unconstitutional 
parole condition. See Mead v . California Adult
Authority, 415 F.2d 767 (9th Cir. 1969). See also 
Love v. Fitzharris, 311 F.Supp. 702 (N.D. Cal. 1970), 
(ex post facto prohibition); Hyland v. Procunier. 311 
F.Supp. 749 (N.D. Cal. 1970) (First Amendment).

The notion that parole is an act of grace, 
revocable without regard to constitutional limitations 
on state action has been specifically rejected by 
the California, courts. See People v. Martinez, 1 Cal. 
3d 641, 83 Cal. Rptr. 382, 463 P.2d 734 (1970);
People v. Hernandez, 229 Cal. App. 2d 143, 40 Cal. 
Rptr. 100 (1964). See also In re Allen, 78 Cal. Rptr. 
207, 455 P.2d 143 (1969); People v. Dominguez, 256 
Cal. App. 2d 623, 64 Cal. Rotr. 290 (1969).

Although the legality of the Adult Authority's 
decision to suspend parole depends on the accuracy of

10



its factual determination that a violation has 
occurred and its observance of substanfive limita­
tions on what evidence may be relied on in making 
that determination, present procedures are entirely 
inadequate to provide an}7 confidence in the relia­
bility of the Authority's findings.
The Hight To Representation 3?y Counsel

We wholeheartedly endorse the decision of
the court below, which.held that, at a minimum, the 
presence of counsel is constitutionally required at 
the time when the state proposes to curtail a parolee's 
liberty and return him to prison.

The court below compared the nature and effect 
of a California parole suspension proceeding with a 
Washington probation revocation, and held that the 
decisions in McConnell v. Rhay, 393 U.S, 2 (1968) and 
in Msmpa y. Rhay, 389 U.S. 128 (1967) require that 
a parolee be given the right to representation by 
counsel at a suspension hearing. That analysis was 
clearly right. Appellant has pointed out that parole 
and probation have traditionally been treated in the 
same terms (App. Br. p.ll); and we submit that the 
essential' similarity between the two leaves no room 
for distinguishing Mempa now. Both the parolee and 
the probationer have been convicted of a crime by due 
process of law and then granted conditional freedom.

11



Although restricted by reasonable regulations, 
each has significantly more liberty than he would 
have if his "privileged” status were revoked, and each 
faces imprisonment as the penalty for violating the 
conditions attached to his status.

Quite apart from the question of whether the 
Sixth Amendment right to counsel is applicable to 
parole suspension proceedings, counsel is required by 
due process in order to insure "the integrity of the 
fact-finding process" which is the predicate for re­
turning the parolee to prison. The decision to sus­
pend parole usually rests on allegations of miscon­
duct for which the parolee was never tried. The need 
to resolve factual issues of this kind is, in itself, 
sufficient reason for according the parolee the right 
to counsel at suspension hearings. The Supreme Court
of Pennsylvania so held in Commonwealth v._Tinson,
433 Pa. 328, 249 Atl. 2d 549 (1969), in which it said

"...there can be no doubt as to the 
value of counsel in developing and pro­
bing factual legal situations which, may 
determine on which side of the prison 
Weills appellant may be residing."—'

6/By his presence alone counsel can enhance the fairness 
and reliability of the suspension hearing without 
transforming it into an adversarial proceeding. Cf. 
United States v. Wade, 383 U.S. 218, 238 (1967).



A number cf other courts have held that tlie need to 
make a factual determination dictates the right to 
counsel at revocation proceedings, irrespective of 
whether sentence is to be imposed. See Hewitt v .
North Carolina, 4.15 F. 2d , 1316, 1322 . (4th Cir. 1969) ; 
Perry v. Williard, 247 Ore. 145, 427 P.2d 1020 (1967); 
Blea v. Cox, 75 N.M„ 265, 403 P.2d 701 (1965). Cf. 
Kent _v̂  United States , 333 U . S . 541, 561 (1966) .-

7/Even if Mempa were to be narrowly read as a "sent­
encing" case, it should be applied to this case. The 
petitioner in Mempa was sentenced under the provisions 
of an Indeterminate Sentence Law which was the model 
for the California statute. In California, parole sus­
pension automatically fixes the defendant's sentence 
at the statutory maximum. In Washington, probation re­
vocation has the same effect. In each proceeding, it 
must be determined whether the defendant performed a 
particular act of misconduct and,then, whether commission 
of that act warrants incarceration. In each case counsel 
has a vital role to play, first in helping to develop 
the underlying facts, and then in supplying information 
about mitigating circumstances and the character of the 
individual, which/fa'^d to the conclusion that imprison- 
ment is unwarranted despite the misconduct.
In both Washington and California, the actual term is 
set at a later date following imprisonment; but that 
decision may be influenced by the recommendation which 
both the California Adult Authority and the Washington 
judge are entitled to make. Indeed, counsel could play 
an even more effective role eit a parole suspension hear­
ing in California than at probation revocation in Wash-

13



Parole suspension affects the most essential 
human interest, liberty;' and the legality of sus­
pension depends on a determination requiring the re­
solution of disputed factual, isues. While we fully 
endorse the district court decision, we submit that 
in this setting due process requires other procedural 
safeguards besides the presence of counsel. We believe 
the parolee is also entitled to written notice of the 
charges, the right to confront his accusers and the 
right to present witnesses on his own behalf. In addi­
tion, the decision must rest on articulated reasons 
and findings supported by substantial evidence adduced 
at the hearing. Goldberg v . Kelly, 397 U.S. 254 (1970);
Greene v.McElroy, 360 U.S. 474 (1959).
Other Essential Procedural Safeguards

When resolution of disputed issues of fact is
required, the rights to confrontation and to present 
witnesses are essential. Cf. Pointer v_. Texas, 380 
U.S. 400 (1965). It is a denial of due process to use 
staff reports of such dubious reliability as the 
parole agent's report as the foundation for parole sus­
pension, Such reports are not entitled to the benefit 
of an "irrebuttable presumption of accuracy" and it is

7/footnote continued
,ington,because.when parole is suspended in California, 
the Adult Authority can order the parolee's placement 
in a Short Term Return Unit. (See California Criminal 
Law Practice (Cent. Ed. Ear 1969) §23.158 p. 605), but 
the Washington judge has no such option. Cf. Ashworth 
United States, 391 F.2d 245 (6th Cir. 1968).

14



of "critical importance 
"examination, critic5srn

" that they be subjected 
and refutation"- Kent v.

to
United

States, supra. 383 U.S. at 563 8/

Written findings are essential to insure that 
suspension has not been ordered for a constitutionally 
impermissible reason and that all the substantive limita 
tions discussed above were obeyed. In addition, such 
findings eliminate the necessity for holding a full- 
scale evidentiary hearing in the event that judicial 
review is sought. See North Carolina v. Pearce, 395 
U.S. 711 (1968); Kent v . United States, 383 U.S. 541,
561 (1966); Escalera v. New York City Housing Authority, 
425 F.2d 853 (2d Cir. 1970); in re_ Martinez, 1 Cal. 3d 
641, 83 Cal. Rptr. 382, 463 P.2d 734 (1970).

The adjudicatory nature of a parole suspension 
hearing and the enormity of the parolee's Interest in its 
outcome clearly show the need for fair and reliable 
proceedings. California's summary procedure falls far 
short of what is required by due process. The argu­
ments advanced by the state to justify its perfunctory 
methods will be discussed seriatim. Briefly, the .

8/The fallibility of reports such as these has been 
demonstrated in a number of cases in which the court 
held that due process had been violated by setting sen­
tence on the basis of materially false information con­
tained in presentence reports, Townsend v„ Burke, 334 
U.S. 736 (1948); State v. Fohla.be!, 61 N.J. Super. 242, 
160 A.2d 647 (App. Div. I960); Ex Parte Hoopsick, 172 
Pa. Super. 12, 91 A.2d 241 (1952)."



state's theories are as follows: (1) Since parole
has traditionally been treated as a form of grace 
rather than as a right, it may be revoked by any 
method, however arbitrary, that the state chooses to 
employo (2) Due process is unnecessary because a 
suspension proceeding is part of the rehabilitative 
process and not a .stage in a criminal proceeding.
(3) Having lost his freedom by virtue of a criminal 
conviction, an. individual retains no rights which 
are entitled to constitutional protection. (4) The 
administration of the penal system is exclusively 
a state function. None of these arguments is con­
vincing.
1• The Right-Privilege Distinction

First, the simplistic right-privilege distinc­
tion has been repudiated by the courts in a series of 
cases in which its superficiality and inadequacy as an 
analytic tool for resolving constitutional questions 
affecting important individual interests has been noted.
E .g. Goldberg v. Kelly, 397 U.S. 254 (1970); Shapiro v. 
Thompson, 394 U.S. 618, 627 n.6 (1969); Greene v. McElroy, 
360 U.S. 474 (1959); Joint Anti-Fascist Refugee Comm, v . 
McGrath, 341 U.S, 123, 163 (1951)^ Escalera v. New York 
City Housing Authority, 425 F.2d 853 (2d Cir. 1970). See 
generally Van Alstyne, The Demise of the Privilege-Right 
Distinction in Constitutional Law, SI Harv. L. Rev. 1439 
(196*8) .

It is now clear that labelling an interest a

16



"privilege" will not foreclose judicial inquiry 
into the conditions upon which it is granted or with­
held ; and this is true in prison and parole adminis­
tration, as in other governmental functions. See Rose v. 
Haskins', 383 F.2d 91, 97 (6th Cir. 1968) (Celebrezze,
J. dissenting); Gilmore v. Lynch, No. 45878 (N„D. Cal. 
May 28, 1970) (three-judge court); Hyland v. Procurrier, 
311 F.Supp. 749 (N.D, Cal. 1970); People v. Hernandez,
229 Cal. Apu. 2d 143, 40 Cal. Rptr. 100 (1964). See 
generally Parole Status and The Privilege Concept,
1969 Duke L.J. 139.
2. The Civil-Criminal Distinction

Second, the Supreme Court had repeatedly said 
that due process questions are not to be answered by 
resort to labels such as "civil" or "criminal". Re­
gardless of the label traditionally attached to a pro­
ceeding, and irrespective of whether its purpose is 
"rehabilitative" or "punitive", the Supreme Court lias 
held that it is necessary to focus on the essential 
reality of the situation. If, as the result of that 
proceeding an individual charged with misconduct may 
lose his liberty, due process requires that he be given 
all the essential safeguards required by due process.
In re Winship, 397 U.S. 358 (1970); In re Gault, 387 
U.S. 1 (1967); Specht v. Patterson, 386 U.S. 605
(1967) .

17



81

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no definite criteria for answering them. The sentenc­
ing court had a wide discretion to consider a variety 
of factors in reaching its decision. Yet the subtlety 
of the issues to be decided was not seen as a reason 
why procedural due process could be dispensed with.; nor 
was the fact that the court acknowledged the partial].}’ 
rehabilitative goal of the statute. Parenthetically, 
it may be observed that commitment under the sexual 
psychopath law, for a period of one day to life, did not 
necessarily require incarceration for longer than the 
sentence which would otherwise have been imposed for 
the crime of which the defendant had been convicted. 
Finally, as indicated above, the Supreme Court's decision 
in Specht rested on 14th Amendment due process grounds 
rather than on the Sixth Amendment, showing that it was un 
necessary to characterize the proceedings as "criminal" 
in order to require that it conform to procedural due 
process requirements.
4. Deference To State Penal Administration

Federal courts have traditionally deferred to the 
presumed expertise of state prison officials, but matters 
of penal administration are no longer accorded automatic 
immunity from judicial scrutiny. It is now clear that 
a state's right to regulate its own penal system does 
not justify its interference with prisoners' federally 
protected rights. See Johnson v. Avery, 393 U.S. 483 
(1969); Wright v. McManh, 387 F.2d 519, 526-27 (2d Cir. 
1967).

19



UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

No. 25919 )
)
)WILLIAM L. ELLHAMER, )
)Petitioner - Appellee, )
)vs. )
)LAWRENCE E. WILSON, Warden, )
)Respondent - Appellant. )
)

_____________________________________  )

No. 25953

CHARLES HINNINGTON,
Petitioner - Appellee,

vs.
DEPARTMENT OF CORRECTIONS, et al., 

Respondents - Appellants.

ERRATA

PLEASE NOTE THE FOLLOWING CORRECTION IN THE BRIEF FOR THE AMICI CURIAE IN THIS CASE:

At page 20, line 7, the citation to Nolan v. Scafati, 
430 F .2d 548 (1st Cir. 1970) should be followed by Shone v. 
State of Maine, 406 F .2d 844 (1st Cir.) vacated as moot, 396 
U.S. 6 (1969).

1095 MARKET STREET, SUITE 418, SAN FRANCISCO, CALIFORNIA 94103



It is no longer possible to rebut challenges 
to state penal procedures by claiming that all constitu­
tional rights were lost by virtue of the prisoner's 
criminal conviction. State prisoners retain the right 
to observance of procedural due process when additional 
restraints are to be imposed on their already restrict­
ed liberty. See Nolan v. Scafati, 430 F.2d 548 (1st.
Cir. ) vacated as moot 396 U-. S. 6 (1969); Car others v. 
Follette, 314 F.Supp. 1014 (S.D.N.Y. 1970): Sostre v. 
Rockefeller, 312 F.Supp. 863 (S.D.N.Y. 1970); Morris v. 
Travisono, 310 F.Supp. 857 (D.R.I. 1970). See Baxstrom v . 
Herold, 383 U.S. 107 (1966); Schuster v. Harold, 410 
1 F. 2d 1071 (2d Cir.), c.ert. denied, 396 U.S. 847 (1969).

The parolee may not be a "free man", but he 
enjoys far greater liberty then he would have if parole 
were revoked. Certainly his status gives the parolee 
at least as much right as the unreleased prisoner to the 
protection of constitutional guarantees against oppressive 
official, action. See In re Jones, 57 Cal. 2d 860, 862,
22 Cal. Rptr. 478, 372 P.2d 310 (1962).

Thus, none of the arguments offered by the state

20



to show that the parolee lacks a protectible interest 
ih. his status ii convincing or even tenable under 
recent cases. California procedures, are entirely in­
adequate to protect that interest against arbitrary
or discriminatory government action.
Inadequacy Of Present Procedures •

The state has attempted to justify the summary 
nature of suspension proceedings by pointing out that 
a primitive kind of hearing is afforded later at the 
time of formal revocation. (App. Br. 19-20).' Some­
what inconsistently with its earlier description of 
the revocation decision as discretionary, the state 
concedes that at this hearing the Adult Authority 
makes a "factual, determination on the parole violation 
charges and determines whether they warrant a return 
to prison or a refixing of the term previously set." 
While accurately characterizing the nature and import 
of the revocation hearing, the state fails to recognize 
that this characterization necessarily implies that 
the parolee is entitled to essential protections re­
quired by procedural due process. The "formal revoca­
tion hearing" does not meet these requirements because 
it denies the parolee the right to counsel, to present 
witnesses, to cross-examination, and to written finding

Aside from the procecural inadequacies of the 
revocation hearing now afforded returned parolees, it



fĉ ils to meet the due process requirement that a ' 
constitutionally adequate hearing take place before 
an individual is deprived of his liberty. In re Narcotic 
M^j^lgn^ontro^Gommission v. James. 22 N.Y. 2d 545}
?-93 N.Y..S. 2d 531, 240 N.E. 2d 29 (1968). Cf. Goldberg
— U 'Se 25/4 (1970) ; Sniadach gv._ Family 
F^anc e__Corg395 U. S. 337 (1969).

The parolee is deprived of his liberty at the 
suspension stage, when the decision is made to return 
him to prison for revocation proceedings. He may wait 
60 days m  prison before the revocation hearing, and 
e\cn if the decision is then made to reinstate him on 
parole, an additional delay may occur pending arrange­
ment of a new parole program. (California Criminal 
Law Practice §123.,58 p.606). Suspension means loss of 
hard-to-find employment as well as separation from 
family and deprivation of liberty in prison. It means 
ihat, even if reinstated, the parolee will again have 
to endure the difficult reentry period during which 
most parole failures occur.

Revocation hearings are held in Vacaville and 
San Quentin, which may be several hundred miles from 
the residence of the parolee and his potential witness­
es, and so as a practical matter the right to present 
witnesses at that time would be a hollow one. Because

22



due process requires that a parolee receive a mean­
ingful hearing, that hearing must take place in the
local community prior to suspension of parole.
The State1s Interest in Summary Adjudication

The nature of the governmental function in­
volved in parole suspension proceedings, and the 
parolee's interest affected thereby mandate observance 
of procedural due process, unless the state has an 
overwhelming interest $hich can only be served by summary 
adjudication. See Goldberg v. Kelly, 397 U.S. 254 
(1970). But the State of California has no strong
interests which are advanced by adherence to present 

9 /procedure.— To the contrary, the state, like the 
parolee, has an interest in insuring that there is an 
accurate factual foundation for parole suspension or 
revocation. The cost of keeping a man on parole is far 
less than the cost of maintaining him in prison. — -

9/The state has not claimed that imposition of procedural 
safeguards would unreasonably burden the administration 
of the parole laws. In any event, it is now clear that 
in the absence of more compelling affirmative reasons, 
mere administrative efficiency will not justify the 
omission of procedural safeguards which would otherwise 
be required. E.g. Shapiro.v . Thompson, 394 U.S. 618 
(1969) .-

10/In 1*966-67 the cost of maintaining one adult prisoner 
in California was $2,623, while the average parole cos 
was $572. per parolee. California Assembly- Committee 
on Criminal Procedure. Deterrent Effects of Criminal 
Sanctions, 38 (1968).

~ 23



In addition to the -direct saving to the state when a 
man is on parole, there is no indirect -saving in welfare 
costs, because many families are forced onto the welfare 
rolls when the family wage-earner is sent to prison.”  
Thus the state has an economic interest in keeping 
parolees out of prison unless there is a firm factual 
foundation for revocation.

In addition to its economic interest, the 
state has an interest in advancing the rehabilitation 
of criminal offenders. Parole systems have been.pro­
vided precisely because they are regarded as sound

] 2/penological devices for fostering rehabilitation.—
No rehabilitative goal is served by revoking the 
parole of a man who has not in fact engaged in serious 
misconduct. Indeed, mistaken revocation, or revocation 
based on an erroneous conception of the facts maybe 
seen as anti-rehabilitative because it tends to under­
mine the parolee's faith in the rule of law; and by 
giving him a justified feeling of having been wronged 
by society, discourages him from reflecting upon his 
own responsibility to society.

No doubt a parole revocation proceeding in which

11/ Id. p, 39

12/See, e.g. Bates, Probation and Parole as Elements in 
Crime Prevention, 1 Law & Contemp. Prob. 484 (1934)

24



a man t./as represented by counsel and accorded other 
basic due process safeguards would take longer than 
the present method. However, such a change would not 
necessarily be regrettable. When a decision is to be 
made of the seriousness of the one to deprive a man of 
his freedom, it should be the-result of a solemn and 
formal proceeding of sufficient duration to permit 
measured deliberation and consideration of the issues. 
The benefit to.be derived from a measured proceeding 
were described as follows by the Court in Fleming v. 
Tate, 156 F.2d 848, 850 (D.C. Cir. 1946):

"The parole system is an enlightened effort 
on the part of society to rehabilitate con­
victed criminals. Certainly no circumstances 
could further that purpose to a greater extent 
than a firm belief on the part of such offend­
ers in the impartial, unhurried, objective 
and thorough processes of the machinery of the 
law. And hardly any circumstances could with 
greater effect impede progress toward the desired end 
than a belief on their part that the machinery 
of the law is arbitrary, technical,too busy, 
or impervious to facts."

25 -



CONCLUSION

■The judgment of the district court should be affirmed.

Respectfully submitted,

ALICE DANIEL 
WILLIAM BENNETT TURNER

1095 Market. Street, Rm. 418 
San Francisco, California 94103

Attorneys for Amici Curiae
December, 1970

26



APPENDIX A

CALIFORNIA ADULT AUTHORITY1S 
COOPERATION WITH LAW ENFORCEMENT

NEW OFFENSES W

STATEMENT OF POLICY CONCERNING 
REGARDING REVOCATION OF PAROLE 
ITHOiJT PROSE CUT ION

FOR

Whenever a parolee comes to the attention of law enforcement for 
a new offense, the parole agents, under established policy, are in­
structed to cooperate fully with investigating and prosecuting 
agencies. However, such cooperation is never intended as inter­
ference, nor is it ever an attempt to influence the decision to 
prosecute or forego prosecution.
Experience reveals that prosecution usually follows where evidence 
is sufficient to establish guilt. However, there are a number of 
exceptions involving cases in which prosecution agencies have in­
dicated that the time, trouble and expense of prosecution seemed 
unnecessary since the return to prison under revocation of parole 
offered adequate protection to society.
In principle/ the Adult Authority is in accord with this approach.
In the past this procedure has been followed in some areas with such 
good effect that it seems desirable that this policy be made clear 
throughout the State so that the program may be adopted and followed 
to whatever extent local agencies care to employ it.
The functions of the Adult Authority, of necessity, impose some litni 
tations upon its participation in the application of this policy. 
Therefore, in order to be fair and just and at the same time not 
usurp the functions of other agencies, the following factors should 
be present in cases submitted for this procedure:

1. The parolee must accept full responsibility for the 
act or acts constituting the new offense and admit the 
same to the parole agent; or

2. His guilt is so patent by the evidence amassed against 
him that his admission of. guilt is of no materiality; and

Policy Statement #6
11/1/57



3. The maximum of the term presently being served by the
parolee must be sufficient to give adequate jurisdiction 
commensurate with the gravity of the new violation; and

‘4. The request or initiation of parole revocation without 
prosecution must come from the prosecuting agency of the 
district.

In pursuance of this policy any District Attorney wishing to employ 
this process of parole revocation may communicate such desire to the 
supervisor of the nearest parole office. The supervisor will be 
responsible, through established procedure, to immediately bring 
the matter to the attention of the Adult Authority.
The decision of the Adult Authority will be transmitted promptly 
to the District Attorney through the Chief of the Division of Adult 
Paroles.
The foreging statement is not intended to limit or change in any 
measure or degree the standards for parole performance, or the 
policies relating to supervision, suspension and revocation of 
parole. Such policies heretofore established shall remain in full 
force and effect.

Policy Statement #6
11/1/57