NCJ Number
18163
Journal
Duke Law Journal Volume: 1974 Issue: 6 Dated: (1974) Pages: 1119-1163
Date Published
1975
Length
45 pages
Annotation
PROPOSES LEGISLATIVE ACTION BELIEVED NEEDED TO ESTABLISH FAIRNESS AND CONSISTENCY IN THE PAROLE SYSTEM.
Abstract
THE AUTHOR CONSIDERS THAT THE MAJOR JUDICIAL OBSTACLE TO REQUIRING MANDATORY PROCEDURAL SAFEGUARDS IN PAROLE HEARINGS IS THE 'PRESENT ENJOYMENT' REQUIREMENT OF THE DUE PROCESS TEST WHICH HAS BEEN ESTABLISHED BY THE SUPREME COURT IN RECENT DECISIONS. THIS REQUIREMENT HOLDS THAT DUE PROCESS RIGHTS APPLY ONLY WHEN THE INDIVIDUAL IS THREATENED WITH LOSING CONSTITUTIONAL GUARANTEES WHICH HE PRESENTLY ENJOYS. THE INMATE IS THUS EXEMPTED FROM DUE PROCESS RIGHTS IN PAROLE RELEASE HEARINGS BECAUSE THE HEARING INVOLVES A DECISION AS TO WHETHER OR NOT TO BESTOW A FREEDOM OF ACTION NOT PRESENTLY ENJOYED WHICH WAS PREVIOUSLY LEGITIMATELY DEPRIVED BY THE STATE. IT IS RECOMMENDED THAT THIS JUDICIAL OBSTACLE BE DISSOLVED THROUGH LEGISLATIVE ACTION THAT CLEARLY DELINEATES THE PROCEDURAL SAFEGUARDS TO BE FOLLOWED IN PAROLE RELEASE HEARINGS. THE SUGGESTED ESSENTIALS OF SUCH STATUTORY REFORM INCLUDE A HEARING FOR THE INMATE BEING CONSIDERED FOR PAROLE, NOTICE OF WHEN AN INMATE WILL BE CONSIDERED AND DISCLOSURE OF RECORDS TO BE CONSIDERED, ASSISTANCE OF COUNSEL, ESTABLISHMENT OF CRITERIA FOR JUDGING AN INMATE'S FITNESS FOR PAROLE, STATEMENT OF REASONS UPON DENIAL OF PAROLE, AND JUDICIAL REVIEW OF ALLEGATIONS THAT A PAROLE BOARD ACTED IN AN ARBITRARY MANNER.