Rhode Island Advisory Opinions August 15, 1996: AG U96-05 (August 15, 1996)

Rhode Island Attorney General Opinions

1996.

AG U96-05.

Executive Secretary

Rhode Island Parole Board

Department of Corrections

One Center Place

Providence, Rhode Island 02903

Dear Ms. Carnevale:

I write in response to your request for an unofficial advisory opinion "specifying the burden or proof necessary for a revocation of parole". You also question whether an inmate has a right to "review information which is used by the Parole Board to make a parole determination."

The questions you pose relate to the due process rights attendant to the revocation of parole. These rights were addressed fairly comprehensively in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). In Morrissey, the United States Supreme Court set forth guidelines concerning the revocation of parole. The court delineated two different stages in the parole revocation process. Your letter does not specify which stage you question and I therefore address both.

First, the court determined that when the parolee is arrested and detained, "due process would seem to require that some minimal inquiry be conducted at or reasonably near the place of the alleged parole violation ...." 92 S.Ct at 2602, 408 U.S. at 485. At that preliminary hearing, the standard applicable to the determination is whether there are "reasonable grounds" to believe that the arrested parolee has violated a parole condition. 92 S.Ct at 2602. The parolee must be given notice of the hearing and advised that the purpose is to determine whether there is probable cause to believe that he or she has committed a parole violation. Id. at 2603. 1 On request of the parolee, any person who has given adverse information on which parole revocation is to be based, is to be made available for questioning in the presence of the parolee. However, if the hearing officer determines that an informant would be subjected to a risk of harm if his identity were disclosed, the witness need not be subjected to confrontation and cross-examination. Id.

Subsequent to the preliminary hearing is the full revocation hearing held by the Parole Board. At the revocation hearing stage, "[the] hearing must be the basis for more than determining probable cause; it must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation." The parolee must have the opportunity to be heard at a hearing and "... to show, if he can, that he did not violate the conditions [of parole], or, if he did, that circumstances in mitigation suggest that the violation does not warrant revocation." Id. at 2603. The Morrissey court went on to dictate the following minimum requirements for due process. Those minimum requirements include disclosure to the parolee of evidence against him or her; opportunity to be heard in person and to present witnesses and documentary evidence; and the right to confront and cross-examine adverse witnesses unless the hearing officer specifically finds good cause for not allowing confrontation. 92 S.Ct. at 2604.

The due process rights set forth in Morrissey have been adopted by Rhode Island's Supreme Court in numerous cases. In Gaze v. State, 521 A.2d 125 (R.I. 1987), the court specifically stated:

We ... adopted as our minimum degree of due process for revocation hearings those protections first enumerated by the United States Supreme Court in Morrissey, supra, and later applied by it to the probation revocation context in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756 ....

521 A.2d at 127.

While the Rhode Island Supreme Court has not specifically elaborated on the burden or proof at the revocation hearing stage (as opposed to the preliminary hearing stage), other courts which have followed Morrissey have done so. In Commonwealth v. DelConte, 419 A.2d 780 (Pa. 1980), the Pennsylvania Superior Court stated:

In a revocation hearing the standard of proof is a preponderance of the evidence, United States v. Iannece, 405 F.Supp. 599 (E.D.Pa. 1975) ... or in other words, such proof as leads the trier of fact to find that the existence of a contested fact is more probable than its non-existence ....

419 A.2d at 781. See also Pickens v. Texas, 497 F.2d 981 , 982-83 (5th Cir.), cert. denied 419 U.S. 880, 95 S.Ct. 145 (1974) (proof beyond reasonable doubt not required); United States v. Lauchli, 427 F.2d 258, 260 (7th Cir.), cert. denied 400 U.S. 868, 91 S.Ct. 111 (1970) (proof beyond reasonable doubt not required for probation revocation).

Therefore, the standard of proof applicable to parole revocation hearings is a preponderance of the evidence. Otherwise put, the Board is not required to find a violation of parole "beyond a reasonable doubt" - the standard of proof necessary to find an individual guilty of a crime - because "... revocation of parole is not part of the criminal prosecution process, and is therefore not entitled to the full panoply of due process rights ... [but instead] must accord the parolee a minimum degree of due-process protection. Gaze v. State, 521 A.2d 125 at 127, citing Morrissey v. Brewer, supra.

Your second question is whether the parolee has a right to review information used by the Board to make a parole determination. You do not specify whether you refer to the initial parole determination or a parole revocation proceeding. With respect to the latter, Morrissey provides that a parolee at a revocation hearing has a due process right to disclosure of the evidence against him, as well as the opportunity to confront and cross-examine adverse witness. The only exception to the right to confront and cross-examine is if the State can establish good cause for not allowing confrontation (that the witness would be subjected to risk of harm if his identity were disclosed). 408 U.S. at 486-87; 92 S.Ct. at 2603; Accord, Gaze v. State, 521 A.2d at 128.

Therefore, it would appear that a parolee has a right to review the information which the Board intends to consider as evidence in making a determination as to whether or not to revoke parole. If the Board determines, however, that disclosure of the evidence would subject a witness to harm, then the Board may withhold that information. The burden rests on the Board to justify any such failure to disclose.

Finally, I will address the issue of the right of an inmate to review information used by the Board to make an initial parole determination (as opposed to revocation of parole). There is no Rhode Island case law which discusses this issue. The weight of authority, however, appears to indicate that the applicant for parole has no due process right to access to his or her parole file.

Numerous Circuit Courts of Appeal have decided that a parole applicant does not enjoy a constitutional due process right to information in a parole board's file. In Billiteri v. United States Board of Parole, 541 F.2d 938 (2nd Cir. 1976) the Second Circuit concluded that even after parole is denied, discovery and disclosure of a parole file is not required as part of the minimum due process to be accorded a parole applicant. While a petitioner is entitled to written statement setting forth the grounds for denial and the essential facts underlying the board's decision, the petitioner has no constitutional right to the information in the parole board's file, including but not limited to the presentence report. 541 F.2d at 645.

The Sixth, Eighth and Fourth Circuits have issued similar holdings. In Mayes v. Trammel, 751 F.2d 175 (6th Cir.1984), the Sixth Circuit determined that the Tennessee parole scheme, by virtue of the Board's rules, created a liberty entitlement protected by the due process clause. However, the court noted that absent such a rule, "Nearly every federal court that has addressed the issue has held that an inmate has no right to inspect his file or be informed of its contents." Id. at 179 citing Slocum v. Georgia State Board of Pardons and Paroles, 678 F.2d 940, 942 (11th Cir.), cert. denied, 459 U.S. 1043 (1982); Schuemann v. Colorado State Board of Adult Parole, 624 F.2d 172, 175 (10th Cir. 1980) [access to parole files and other procedural rights are not constitutionally required under a parole statute which does not create a liberty interest]; Jackson v. Reese, 608 F.2d 159, 160 (5th Cir. 1974). See also Ingrassia v. Purkett, 985 F.2d 987 (8th Cir. 1993) (no absolute right to access to parole file in Missouri, where parole statute does not create a liberty interest in parole and Board has almost unlimited discretion to grant or deny parole); Bloodgood v. Garraghty, 783 F.2d 470, 472 (4th Cir. 1986) (procedural due process does not require a parole candidate be given access to his parole file at all - only a statement of reasons why parole has been denied.)

However, some courts have alluded to the potential for a constitutional right to access to parole files. For example, in Walker v. Prisoner Review Board, 694 F.2d 499 (7th Cir. 1982), the Seventh Circuit Court of Appeals found a right to access because the Illinois Prisoner Review Board had adopted a rule providing that candidates for parole shall have access to all documents which the Board considers in denying parole or setting a release date. 2 Notwithstanding, the Walker court went on to note that whether a parole candidate had a constitutional due process right to access to parole files "must be resolved on a case by case basis". Id. at 503 citing Williams v. Ward, 556 F.2d 1143, at 1159-60 (2nd Cir. 1977). The relevant inquiry, the court stated, was whether "after taking into account the inherently flexible nature of due process, the combination of procedures available to the parole candidate is sufficient to minimize the risk that a decision will be based on incorrect information." Id . In the Williams case, the Second Circuit also recognized that "there may in the future be circumstances where in inmate plausibly contends that the only way he can demonstrate reliance on an impermissible factor [in denying parole] or can show a particular allegation concerning his record to be false ... is by obtaining access to the detailed evidence in his file ...." 556 F.2d at 1160.

Given the weight of authority, it is my conclusion that an applicant for parole does not have a due process right to access to his or her parole file. This opinion is buttressed by State v. Ouimette, 367 A.2d 704 (R.I. 1976) wherein the Rhode Island Supreme Court noted that while an inmate does not enjoy the same interest in parole as an individual who has already been released on parole, "some minimal due process is both necessary and desirable in [initial] parole release proceedings to insure fairness to all." Id. at 708. The court found that such minimal due process rights include the right to be informed in writing of the basis for any refusal to grant parole. Subsequently, in State v. Tillinghast, 609 A.2d 217 (R.I. 1992), the Rhode Island Supreme Court noted that a prisoner's liberty interest in parole only entitled the applicant to know in what respects he or she falls short of qualifying for parole. Id. at 218, quoting Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct 2100, 60 L.Ed.2d 688 (1978).

I trust this is responsive to the Board's request. A copy of the Morrissey, Gaze, and Ouimette opinions are enclosed.

Very truly yours,

Lisa Dinerman

Special Assistant Attorney General

1 Under some circumstances, a preliminary hearing is not necessary to detain an individual if the grounds for detention has been established in some other manner by which due process has been afforded. See State ex rel Brown v. Artison, 138 Wis.2d 350, 405 N.W.2d 797 (Wis.App. 1987); Nelson v. U.S., 479 A.2d 340 (D.C.App. 1984) (in re probation revocation).

2 Some states provide by statute or by regulation that inmates have a right to review their parole files. See, for example, Walker, supra, and Jackson v. Illinois Prisoner Review Board, 657 F.Supp. 823 (N.D. Ill. 1987) addressing Illinois Prisoner Review Board rule providing that candidates for parole shall have access to all documents which the Board considers in denying parole or setting a release date. The State of Nebraska apparently provides that its Parole Board has discretion to make available to the inmate any information "whenever the board determines that it will facilitate the parole hearing" Neb.Rev.State. § 83-1,112(1) (1976). See Greenholz, supra., 442 U.S. 1, 15, footnote 7. Indeed, for a period of time, 18 U.S.C § 4208 required that inmates sentenced under federal law be given reasonable access to their parole files. That statute was repealed, however, and cases decided thereunder are therefore no longer binding.