Warren E. Burger: We will hear arguments first this morning in 74-6438 Scott against Kentucky. Rivkin, I think you may proceed whenever you are ready.
Dean Hill Rivkin: Thank you. Mr. Chief Justice, may it please the Court. This case is here on a petition for Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit, which rejected a claim by Kentucky prisoners that the State Parole Board be required to abide by the minimum guarantee of procedural due process in determining whether or not to release prisoners on parole. Specifically the issue is two fold. First, whether the decision to grant or deny parole implicates an interest in liberty, protected by the Due Process clause of the Fourteenth Amendment, and secondly, if the parole function is accorded to constitutional protection, what are the minimum safeguards that apply? Before addressing these questions, I will discuss briefly, the threshold question of mootness, whose consideration has been deferred until this hearing. The State has suggested that the release on parole of the name petitioner has mooted this action. It is our position that this occurrence has not deprived this action of the necessary adversariness or by present vitality under Article 3. Three grounds support our view. First, we believe that this is a case capable of repetition between the parties, yet awaiting the plenary review of this Court.
Warren E. Burger: How do you explain Weinstein against Brad verdict on that basis?
Dean Hill Rivkin: In this case Your Honor, the petitioner Scott is on parole until 1984. He is also required to abide by a number of stringent conditions on his liberty. In Bradford, the petitioner was totally released from any restrictions by the State on parole.
Warren E. Burger: But he was on parole, was he not?
Dean Hill Rivkin: When the case was here and the decision was rendered mooting the case, the petitioner Bradford was off parole.
Warren E. Burger: He has served his full time and was not even subject to parole?
Dean Hill Rivkin: Yes, he had served his full sentence, that is right. Secondly, this is a paradigm of a case which has awaited plenary review of this Court.
Warren E. Burger: Well, Mr Rivkin one another question, if I may?
Dean Hill Rivkin: Yes.
Warren E. Burger: If, now being on parole, his parole is sought to be revoked, he would get a Morrissey type hearing, would he not?
Dean Hill Rivkin: Yes, he would, during that, that is right, but he would be returned…
Warren E. Burger: That is because he now has a conditional liberty outside the walls of the institution.
Dean Hill Rivkin: Under the terms of Morrissey, that is right. He would be returned to the institution, however, and would likely be eligible for parole after a number of years again. As I say his parole last until 1984.
Warren E. Burger: This sentence you mean?
Dean Hill Rivkin: This sentence, that is right, excuse me. Secondly, this is a case, a case which has awaited the plenary review of this Court in three other instances, in Scarpa versus Board of Parole, Johnson versus New York Board of Parole and Bradford versus Weinstein. The precise issue presented here has been mooted.
William H. Rehnquist: Those are not two separate grounds, but together they are one ground.
Dean Hill Rivkin: That is right. They are one of our three grounds, Your Honor.
Potter Stewart: That is capable of repetition yet evading review?
Dean Hill Rivkin: That is right. Those are the two prongs…
Potter Stewart: Right, yes.
Dean Hill Rivkin: Secondly, we believe that this case should be treated and maintained as a class action. It was commenced as a class action, but The District Court did not permit the complaint to be filed in form of corpus and dismissed the case although it never was officially filed with the Court. It only became a formal case with a number when the United States Court of Appeals for the Sixth Circuit granted a motion to proceed in form of (Inaudible). We believe that the district judge in essence precluded our moving for certification in this case. Secondly, there is no question that there is a live controversy here between the members of the class, the purported class, the prisoners of Kentucky and the Parole Board. Finally, under the intention of Rule 23, there are a number of lower Court cases supporting the proposition that the justice ability of the case is not affected when the name petitioner or the name plaintiff is mooted or the situation of the name plaintiff is mooted.
Potter Stewart: That is, if it is a class action.
Dean Hill Rivkin: If, regardless of formal certification these cases hold and they permit intervention and that is my third point. We have made a motion to substitute name petitioners here and in the alternative to intervene and we believe that in the interest of judicial economy and in the important interest of resolving this issue, which has come to this Court four times.
Thurgood Marshall: Did you do that in Court of Appeals?
Dean Hill Rivkin: No, in the Court of Appeals the name petitioner Scott was still in prison, he had not been paroled yet.
Thurgood Marshall: But did you move to have it certify as a class action?
Dean Hill Rivkin: No, we did not move that in the Court of Appeals.
Thurgood Marshall: You could have had intervention in Court of Appeals without any problem.
Dean Hill Rivkin: There was no necessity to have it then Your Honor. The petitioner Scott was in prison.
Thurgood Marshall: I think I read in brief that you had hundreds of these guys who are claimants at your door, so why did not you put some more of them in there, just as a precaution? If this put enough in there, they would not have paroled all of them.
Dean Hill Rivkin: I would like to think so.
Thurgood Marshall: Well, why did not you?
Dean Hill Rivkin: We chose out of ten or twelve individuals, we chose two whose statements seem to us representative or most representative of the class with the best factual situations. In retrospect, perhaps we should have included a large number.
Thurgood Marshall: I guess, you could not make it a -- the Court of Appeals could not have certified, even if you had asked them.
Dean Hill Rivkin: I do not think so Your Honor. At the time it was a live controversy. There was no question of that mootness in the Court of Appeals. The only question that came here…
Thurgood Marshall: They do not certify because of mootness.
Dean Hill Rivkin: The certification of the class I believe would have dispelled any mootness.
Thurgood Marshall: If you had asked for the certification in the Court of Appeals; my question is could the Court of Appeals certify?
Dean Hill Rivkin: I believe they could have, but we found no reason to, I am afraid, that the case was a live controversy, Scott was in prison and there was just no necessity to do that.
Thurgood Marshall: Well, then I misunderstood you. You said in the trial Court, you did not have a chance to have it certified.
Dean Hill Rivkin: That is right, we would have moved for Rule 23 certification.
Thurgood Marshall: You did not in the Court of Appeals?
Dean Hill Rivkin: We did not, no. And I am not sure whether the Court of Appeals could have done it at all under the federal rules.
Lewis F. Powell, Jr.: The Court of appeals mentioned in passing or in describing the case, as I recall, that it was a class action.
Dean Hill Rivkin: That is right, so did the district judge, Your Honor, and I think, they in fact treated it as a class action. Turning to the merits, the initial inquiry as established by the cases is into the nature of the interest at stake in the parole decision. An understanding of the paroling process will show that this interest has ample substance to be embraced within the concept of liberty, protected by the Due Process Clause of Fourteenth Amendment. Parole is a statutory creation of the State and is an integral part of the sentencing apparatus of the State. When an individual is sentenced, it is contemplated by the legislature, by the sentencing judge, by prison administrators and by the parole board that most prisoners will spend part of their time in incarceration and part of their on the streets on parole. Among the critical decisions made about an individual involved in the criminal justice system, the parole decision is one of the most important. From arrest to conviction to sentencing to imprison deprivations, to parole revocation, one of the major concerns of the system is the length of incarceration that an individual will serve. This concern is magnified in the parole decision, which unlike the other decisions, points that I have mentioned is not according constitutional protection or due process protection of any kind. This conception of parole as an integral part of the system of government decision making, determining the length of incarceration of an individual is often obscured by another notion of parole as simply another form of correctional treatment that is left to the unbridle discretion of experts who primarily are involved in predicting recidivism. However, common this conception was in days when parole was considered charity or a gift or a grace, it has not and cannot withstand present day scrutiny.
Warren E. Burger: Would you agree that the State Legislature can simply abandon a parole system entirely?
Dean Hill Rivkin: Yes, I do. If the state abandons a parole system and modifies its sentencing system which it would have to do, this case would not be here. This case does not involve the constitutional right to parole, and only fair consideration in the process of determining parole. Today, it is commonly accepted that the parole decision is based on a variety of factors unrelated to the predictive ability of the board. Some of these considerations are the past history of an individual, the offense the individual committed, the person’s institutional record, the prison population capacities in a particular state and others. To the extent that these factors enter the parole decision which they most certainly do, the absolute claim of expertise suggested by the State on behalf of the Board carries less force. Our opponents probably would concede that a variety of factors enter into the decision making process of the Board, but they claim that the board has unfettered discretion to weigh these factors in any fashion that they will. I think a look at the Kentucky system will reveal that the Board’s discretion is not as uncaving as the State suggests. Kentucky has created a scheme of conditional release, where prisoners spend part of their time in prison and part of their time outside on conditional release. The system is administered by a Board composed of professional decision makers, who make upwards of 1000 decisions per year. Although this Board is within the State Department of Corrections and relies on the State Department of Corrections for information, it is a statutory creature of its own within the sentencing apparatus and contemplated to be within the sentencing apparatus of the State. By statue, the board is required to abide by certain ground rules which evidence the legislature’s concern, the Kentucky Legislature’s concern with fair and complete consideration in the parole process. The Board is required, mandated by statute to amass a good deal of information on an individual and it is allowed to call on the resources of the Department of Corrections, the State police and others to gather this information. Secondly, the Board is required by statute to study the case history or the record of the individual. Thirdly, the board is required to deliberate on that record and fourth, to conduct a hearing which it does, often lasting five to ten minutes at the most and fifth, because the Board is composed of five members, it is also required to engage in some, sort of, collegial decision making, it is not one individual.
William J. Brennan, Jr.: Who attends the five or ten minutes hearing?
Dean Hill Rivkin: The hearing is attended by normally all members of Parole Board and the prisoner.
William J. Brennan, Jr.: That is all?
Dean Hill Rivkin: That is all, yes. Finally, the Board has been requested by the legislature or mandated by the legislature to promulgate regulations governing the phases of its operation. I believe the statue says in accordance with prevailing ideas of correction and reform.
Warren E. Burger: Legislature provides for no hearing if they wanted to, that there is no presence of the prisoner, would you think that?
Dean Hill Rivkin: That exist in I think three states, Georgia, North Carolina and one other state, there is no hearing at all required. The hearing here of course is rather short and what goes on inside, nobody is really quite sure, but if a legislature wants to do that, we do not think that that comports with minimum Due Process of course, if a legislature want to do that. We believe the hearing is an integral element of the process that is due.
William J. Brennan, Jr.: Hearing to find how?
Dean Hill Rivkin: A meaningful hearing, a hearing in which the individual is given an opportunity to present evidence, a statement, a meeting whatever adverse evidence is in the file against the individual. Very often and may be for instance, letters from people in the community, who this person, the prisoner has no idea who they are or why they are writing these letters. This chance to have a meaningful opportunity to meet this evidence is one of the ingredients of the hearing that we are requesting.
William J. Brennan, Jr.: With Court’s assistance…
Dean Hill Rivkin: We believe that assistance by an advocate, whether an attorney or a lay advocate would be essential. The federal system allows a person’s minister, a person’s spouse, a member of the person’s family to come in. This hearing is structured and we believe it can be structured to provide for a short presentation and according to some of the preliminary data that is coming out of those hearings, the assistance of an advocate is quite helpful.
William J. Brennan, Jr.: And would you allow prior access to the…
Dean Hill Rivkin: We also believe that that is one of the ingredients of due process. One of the…
William J. Brennan, Jr.: Before the actual hearing?
Dean Hill Rivkin: Before the actual hearing. Once again, this is also provided by the US board of Parole and this meets the substantial documentation of the errors that are contained in parole files. In fact, the Kentucky Parole Board was recently scrutinized by a Blue Ribbon Commission, a commission by the Governor of Kentucky and they found a file keeping sloppy, they found mistakes and they criticized it quite severely and for this reason, we believe that access to the file is important. It would not provide much hardship for the State to do that either since there are two files as I understand that they maintain, one at the prison, where the individual is and one in a central office where the Parole Board meets.
William H. Rehnquist: Mr. Rivkin in your brief, I notice was filed before this Court’s decision in Meachum against Fano. Are you going to discuss the application of that case to your contention?
Dean Hill Rivkin: I plan to Your Honor, yes.
Potter Stewart: With your oral submission here and answers to the questions of the Chief Justice and Mr. Justice Brennan have not deviated from your brief, I would say on specifically 2 (b) one, two, three and four of the last 20 pages of your brief. Those are the four.
Dean Hill Rivkin: That is right. Those are the criteria, the minimum criteria that we believe are required in the process. In terms of channeling the discretion of the Board, the Board itself has promulgated 15 criteria that it looks at. The Board has also built up a body of precedents in the numbers, the vast numbers of decisions that they make each year. As I say these are professional decision makers. They make decisions according to precedents and criteria. They have listed the fifteen criteria and we believe that if an individual prisoner and his or her record makes an adequate showing before this Board that parole will likely assume. Finally, the statistics, nationwide and in Kentucky, show that most individuals are paroled. This underscores the importance, indeed the necessity of parole in a sentencing apparatus of a State and demonstrates that a prisoner will in fact be paroled upon an adequate showing under the criteria that the Board considers. The notion that the Board has unlimited discretion and could not for instance parole any prisoner just does not comport with the reality of the system.
Potter Stewart: As part of your argument, to the extent we have allowed you to make is directed to the claimant liberty.
Dean Hill Rivkin: That is right Your Honor. It is directed…
Potter Stewart: Let us assume that you have persuaded us that liberty is involved. You got to deal a little more in that, do not you, under the language of The Fourteenth Amendment, there has to be a deprivation of liberty without due process involved.
Dean Hill Rivkin: We think that the notion of deprivation in this instance is met both under the cases of this Court and the realities of the system. Under the cases of this Court, the notion that a person must be vested, and therefore, deprived of the right has not found total voice. Only last term, in the Hampton’s case, Hampton versus Mow Sun Wong, the Alien civil service case, the Court clothed individuals who were seeking federal jobs with the mantle of due process protection. Similarly, in Willner versus Board of Bar Examiners and Schware versus Board of Bar Examiners and Goldsmith versus Board of Tax Appeals, the Court did not make the distinction between an individual who has and possesses a benefit and one who is only applying and in fact, in the amicus brief filed by the Solicitor General in his Footnote 23, he seems to concede that an applicant for benefits, he mentions Unemployment Compensation Benefits that an applicant for those benefits will in fact be clothed with due process protection. Under the realities of the system, if an individual is not paroled, based on perhaps erroneous information in the file or illegitimate criteria, as is contemplated under the sentencing apparatus and by the sentencing judge, everyday that that person stays in parole, he or she is being deprived of an interest in liberty.
William H. Rehnquist: When you say, illegitimate criteria, is not under Kentucky law the decision of the Board is final?
Dean Hill Rivkin: There is review available in the Kentucky Courts. There have been a couple of decisions in the 60s by the High Court in Kentucky indicating that the Court would review the parole decision on an abuse of the discretion standard. They have never reviewed one successfully on behalf of a prisoner, but my understanding of those cases is that if for instance, an individual were not paroled and could show that it was done on a racially illegitimate basis, the Kentucky Court would review otherwise the discretion is rather Board.
William H. Rehnquist: To that extent and the State has set up some system within its own jurisdiction for correcting illegitimate, what you call use of illegitimate criteria?
Dean Hill Rivkin: The Court has indicated on one occasion that it would review for abuse of discretion. However, as I noted, it has never successfully reviewed once, first of all. Secondly, I think it shows that the Court recognizes that there is a palpable interest here. By the very fact of judicial review indicates that there is something here, not the ephemeral kind of interest that the State suggests, but something quite important and to be protected.
William H. Rehnquist: Did the State Court put it on a federal constitutional ground?
Dean Hill Rivkin: No, it was solely on and it sounded in administrative law in the same. There was only one decision that I could find like that and in that decision of course, the Court did talk about the parole as grace, it was a pre-Morrissey decision and that was the only decision I have been able to find on that point, but I think the existence of review is a recognition by the State Courts of Kentucky that parole is a substantial interest.
William H. Rehnquist: Would you say parole as grace and then you speak out as a pre-Morrissey decision. Certainly Morrissey did not hold that parole was not a matter of grace, did it?
Dean Hill Rivkin: No, Morrissey rejected the characterization of parole as grace.
William H. Rehnquist: I would not have thought so. I thought that the idea was that if you are once granted parole and you are in fact free from supervision then if that is to be revoked, you are entitled to a hearing.
Dean Hill Rivkin: That is right that was the holding of Morrissey.
William H. Rehnquist: That certainly does not hold that parole or granting or denial of parole is not a matter of grace.
Dean Hill Rivkin: It is a matter of discretion. I think it more properly characterized it, the notion of grace, I think goes into the notion of parole as a privilege which the Court rejected in Morrissey, the characterization of the process as a privilege.
William H. Rehnquist: Well, now why do you say that the Court rejected that in Morrissey?
Dean Hill Rivkin: I believe it explicitly said that we reject the characterization of parole as either a right or a privilege, and we will look on it as liberty that is valuable to be protected under the Fourteenth Amendment.
William H. Rehnquist: Well, that is parole once granted. Morrissey was done by the revocation of an existing liberty status. You are not asking to push that further and say that before the State has granted that liberty, you nonetheless have a liberty, interest.
Dean Hill Rivkin: That is right, and I think Your Honor’s question fits in directly with Mr. Justice Stewart’s question concerning whether an applicant for a benefit as opposed to one who retains a benefit is entitled to due process protection, and I believe under the cases of this Court, as well as under the notion that an individual who is not paroled could conceivably be characterized as being deprived of his/her liberty, if parole is not granted as contemplated under the system, that for those reasons, we believe that the application of parole was under due process protection.
John Paul Stevens: Mr. Rivkin, your brief I think includes the statistics on the percentage of applications for parole that are actually granted in Kentucky.
Dean Hill Rivkin: That is right, there are 60% of the individuals who are in prison are released on parole and of those 60%, 68% are paroled the first time they appear before the Board, and those are statistics from 72 or 74 approximately.
Warren E. Burger: Thank you.
Dean Hill Rivkin: With parole viewed in the context above, the nature of the interest at stake becomes apparent. It is not in an ephemeral, unilateral interest or desired, but rather a claim to freedom, legitimized by the legislature, by the sentencing apparatus, by prison administrators, and by the Parole Board itself. To characterize parole is nothing more than a mere hope or anticipation misconceives the dynamics of the system and the understandings that shape it. The Court has recognized the palpability of a prisoner’s interest in Morrissey versus Brewer. I think that it is interesting to note that in Morrissey versus Brewer the decision-making process that goes on revocation is very similar to, if not exactly similar to the decision-making process that goes on in parole release. First as the Court’s opinion noted, the Board ascertains certain facts about the individual.
Warren E. Burger: Which hearing are you talking about, the hearing on the ground of the scene or the hearing back at the institution?
Dean Hill Rivkin: The hearing back at the institution, the second hearing, the Board first must ascertain certain facts just as it does in parole release. Second, and as the Court noted, the more complex decision and the discretionary decision is the decision as to whether those facts justify in that instance returning the individual to prison, in our instance whether the person should be released on the street, and it is that discretionary decision and the discretionary decision making that are here, in both of those processes that are the same.
Warren E. Burger: By the time he has last hearing, the time he has the second hearing back at the institution, under Morrissey, he still is in a conditional liberty status, is he not? His parole has not yet been revoked.
Dean Hill Rivkin: The prisoner, I believe normally would be incarcerated during that period.
Warren E. Burger: It has then not then revoked.
Dean Hill Rivkin: That is right.
Warren E. Burger: Incarcerated in the same sense, a person is incarcerated when he is arrested before he is charged?
Dean Hill Rivkin: That is right. It has not formally been revoked until the Board does so at the second final hearing, that is not this case of course. Following Morrissey, the majority of the Courts of Appeals have upheld the position we urge today, cognizant of the evolving approach to due process contained in some of the more recent decisions of this more recent decisions of this Court including (Inaudible). Under this approach, if a person is able to assert a legitimate claim of entitlement to a government benefit, due process ensues. In parole, such a legitimate claim of entitlement is a product of the practices and understandings that have grown out of the system of rules that govern the parole system. Very much like in Perry versus Sindermann where there was a de facto system of teacher tenure, an unwritten common law of parole also exists. This unwritten common law generates a substantial claim that if a prisoner meets certain criteria or conditions, parole will be granted.
William H. Rehnquist: Well, did not Meachum reject the idea that there could be any claim for a hearing in connection with the transfer other than on a statutory basis?
Dean Hill Rivkin: I think the difference between Meachum and this case is two or three fold. First of all in Meachum, the State had not created any, sort of, apparatus or system or statute governing classifications in prison, whereas in the parole situation, the State has created the parole apparatus as an integral part of the sentencing apparatus.
William H. Rehnquist: But it has not said you will be paroled if such and such condition has met, has it?
Dean Hill Rivkin: No, the State has not said that, but in fact that is what happens.
William H. Rehnquist: Well, but then that is a non-statutory thing.
Dean Hill Rivkin: It is a practice.
William H. Rehnquist: Yeah, but did not Meachum reject the notion that a practice, even if it could be shown with the equivalent of a statutory entitlement.
Dean Hill Rivkin: I do not think so Your Honor. I think the distinction is between the intention of the State in creating a system of classification and the discretion invested, which is vastly different in the classification situation where the State has not spoken nor has the prison administrator spoken, whereas here not only the legislature had spoken, not only the sentencing judge has intended, but the Board itself is promulgated certain criteria. The measure of discretion here, I believe is much more bounded. Secondly, I believe also that the nature of the interest involved in Meachum is not the, kind of classic, fundamental, bedrock interest in freedom that parole involves. The notion of intrastate transfer I believe is of a different order, and should be treated so by the Court. Thirdly, Meachum also involved considerations of internal prison security, which are not at all in the picture in this case. I would like to…
Potter Stewart: You said that even though there is not a explicit statutory provision of a kind as described in my brother Rehnquist’s question there. There is a kind of common law entitlement similar to a practical entitlement, as similar to that discussed in Perry versus Sindermann and the Roth case.
Dean Hill Rivkin: Exactly, Your Honor. Claimant entitlement is exactly similar. I would like to reserve the remainder of my time for rebuttal please.
Warren E. Burger: Mr. Kimberlin.
Patrick B. Kimberlin III: Mr. Chief Justice, if the Court please. The respondents would first address themselves the threshold issue here which we believe is one of jurisdiction. As the Court is aware, the petitioner was released on parole. We believe that this fact has essentially mooted the case, and therefore, this Court no longer has jurisdiction under Article 3, since it is no longer an active case of controversy. We believe that the fact that he has been paroled eliminated any personal stake in the outcome which he may have had in this case. Furthermore, we do not believe that the fact that when the complaint was filed in this action, it had allegations pertained to a class action or requesting class action under rule 23. The fact of the matter is the case was not certified as a class action. It has never been certified as a class action and of course there has been no definition of a class in this case.
Potter Stewart: How do you knowing that? First of all the District Judge dismissed this without any opportunity --
Patrick B. Kimberlin III: Yes, Your Honor.
Potter Stewart: Their occasion to certify it class, although it was requested in the complaint.
Patrick B. Kimberlin III: Yes, Your Honor that is true.
Potter Stewart: And how do you explain the Court of Appeals reference to this case as a class action? It is in the fourth line of their opinion, short of the quarter.
Patrick B. Kimberlin III: Well, we do not believe that the reference to it as a class action in effect stable should as a class action, Your Honor.
Potter Stewart: There is no explanation to that. It was not conceded to be a class action.
Patrick B. Kimberlin III: That is correct Your Honor, that is correct. It was not conceded to be a class action at any time Your Honor. Furthermore, we do not believe that this particular ---
John Paul Stevens: Mr. Kimberlin, I think the petitioner is still in custody in a legal sense, and that he is on parole now.
Patrick B. Kimberlin III: He is on parole now.
John Paul Stevens: Does that mean he is subject to certain restrictions on his conduct?
Patrick B. Kimberlin III: Yes, he is Your Honor.
John Paul Stevens: Under the Kentucky procedure, may he apply for a change in the present restrictions? Is there a procedure for a person on parole seeking to modify the restrictions that are imposed?
Patrick B. Kimberlin III: Yes, it is possible Your Honor.
John Paul Stevens: Would that be in the nature of a parole release hearing that he made such an application?
Patrick B. Kimberlin III: No, well in a parole release hearing, yes, it would be somewhat similar to that, but not a parole consideration hearing. A parole consideration would determine the initial issue of whether to actually grand a parole as opposed any modification of a parole, once it is in fact granted.
John Paul Stevens: In a modification he would be entitled to any particular kind of procedure that would be followed in such a request?
Patrick B. Kimberlin III: Well, Your Honor, I do not know exactly what the procedure would be or what he would be entitled to in that type of hearing in which he would ask for modification, I do not know.
John Paul Stevens: I see.
Patrick B. Kimberlin III: We do not think that this case falls within the during the old doctrine of a case of a reoccurring nature yet evading review, because it appears to be that this particular doctrine only applies to cases where the same parties once again come into conflict at some subsequent time. Here we believe that best only a very remote possibility that the petitioner would at some crucial point in time valid his parole which is what he would have to do.
Thurgood Marshall: What about petitioner’s figure that one-third of them do?
Patrick B. Kimberlin III: Well, that figure of course would --
Thurgood Marshall: That is a pretty good percentage.
Patrick B. Kimberlin III: But that only applies to those who actually do, and I do not believe this Court would have to entertain the presumption. Now, this particular individual would in order to ---
Thurgood Marshall: You assumed that he would, I do not think you have assumed either one, can you?
Patrick B. Kimberlin III: Well, I think there would be a presumption that an individual who has been granted a parole, would you ever think he could to sustain that parole and continue it in order that he may maintain the conditional liberty that at parole reflects.
Thurgood Marshall: And it also recognizes the fact that one-third do not.
Patrick B. Kimberlin III: One-third do not, one-third do valid approach, yes, Your Honor, that is true. Finally, we do not feel that there are any clatter legal consequences, which the petitioner can show that would indicate that he would be adversely affected as a consequence of his having been denied parole at the first parole consideration hearing, which would bring him within the preview of that particularly rule, and one of the considerations of ---
Thurgood Marshall: I do not want you to give a legal advice of the petitioner or run a law school or anything, but how could he avail all of this?
Patrick B. Kimberlin III: I am sorry Your Honor, I did not hear you.
Thurgood Marshall: How could the petitioner in this case evade the situation he is now in?
Patrick B. Kimberlin III: You mean in light of the mootness problem here?
Thurgood Marshall: Yes.
Patrick B. Kimberlin III: It would seem to me that the first thing to then is to try and attempt in every possible way to achieve certification of the class at some point in time prior to the case reaching this stage in the litigation. Secondly, secondly he could have as many co-plaintiffs as possible in the suit who are in the same situation he felt that he was in, in order to ensure that the case would survive.
Thurgood Marshall: I thought, I limited to this case, what could he have done in this case, where he had two people, he asked class action, the judge ignored it, what could he have done?
Patrick B. Kimberlin III: It is a possibility, he could have asked for class action in United States Sixth Circuit Court of Appeals. Whether they would had certified class.
Thurgood Marshall: And the thought this is that is what?
Patrick B. Kimberlin III: Well, I would say there is only a possibility Your Honor. I do not know that there is authority that would sustain that position.
Thurgood Marshall: Do you know of any case?
Patrick B. Kimberlin III: No, Your Honor I do not.
Thurgood Marshall: So I guess he is just stuck. All the State has to do is when a man files a suit like this, to parole him, and as (Inaudible).
Patrick B. Kimberlin III: Well, Your Honor he came up for second parole consideration hearing as a matter of course at which time he was granted the parole, which he desired and that happened just prior to certification being to the petition for Writ of Certiorari being valid in this case.
Thurgood Marshall: It seems to me that your suggestion is that he could have asked the Court of Appeals?
Patrick B. Kimberlin III: Well, there are any number of cases that have been before this Court Your Honor where individuals, whatever action was coming against them, they considered adversely for which they were seeking protection or relief no longer existed or they themselves were no longer in preview.
Thurgood Marshall: The case is not against him, it is his case.
Patrick B. Kimberlin III: Yes Your Honor.
William H. Rehnquist: Well, of course petitioner has gotten everything he wants, I mean, he has gotten parole. It is not entirely accurate to say that he is stuck. It is really his lawyers or the class, which he might have wanted to represent that are stuck.
Patrick B. Kimberlin III: Well, that certainly is correct Justice Rehnquist because after all he has in fact being granted the parole, and that is why we feel he no longer has any personal interests at stake.
Thurgood Marshall: Then the class action is just out.
Patrick B. Kimberlin III: We believe it is out, we do not believe it can survive.
Thurgood Marshall: And you do not know of any way to keep it in.
Patrick B. Kimberlin III: No, Your Honor.
Thurgood Marshall: And you do not know of any way that a group of prisoners who want this done can get relief other than all of them joining as petitioner.
Patrick B. Kimberlin III: If I were counsel, I would had seen to it that very many of them would have joined as plaintiffs together.
Thurgood Marshall: Your answer is the only way to join in lawsuit.
Patrick B. Kimberlin III: Yes, Your Honor that is true.
Thurgood Marshall: So that is the end of class action in this field.
Patrick B. Kimberlin III: So it has to, in any class action?
Thurgood Marshall: As a class action in prisoner cases, where they can be paroled, there is no way for class action.
Patrick B. Kimberlin III: Well, the District Judge would have granted a class action that would resolve the problem. There have been cases in other Circuits where the judge has granted class action.
Thurgood Marshall: Where a District Judge refuses to certify a class, there is no possibility of a class action.
Patrick B. Kimberlin III: I do not know, but that is true Your Honor, that may be, but I do not know.
John Paul Stevens: I am back to Justice Rehnquist question about the petitioner having been granted all the relief he sought. He did complained of the fact he did not get an adequate hearing the first time he came up for parole, did he not?
Patrick B. Kimberlin III: Yes, Your Honor that is true.
John Paul Stevens: And if he should prevail in the litigation, is it completely unconceivable that there might be some remedy for the failure to grant the hearing when he says he was constitutionally entitled for hearing for his damages or his statements or reasons for the first time, is that unconceivable?
Patrick B. Kimberlin III: Yes, Your Honor that is true, that is a possibility.
John Paul Stevens: Then how come the case be moved?
Patrick B. Kimberlin III: Maybe you have me there. If they had not granted him a parole then he could possibly have sought relief in state courts, but he was granted a parole.
John Paul Stevens: But he is seeking relief in a Federal Court now for that very reason?
Patrick B. Kimberlin III: Well, for the same reasons, although he has been extended relief, we do not believe that he has an extended parole, that he is entitled to any relief now because we do not feel he has any personal interest at stake.
John Paul Stevens: But he did not get the parole the first time he asked for it?
Patrick B. Kimberlin III: No, he did not, Your Honor, That is true.
John Paul Stevens: He served some time in jail as a result of that.
Patrick B. Kimberlin III: Yes sir, but that would lead us then to the very basic nature of the case itself in parole consideration, which I think I shall now address myself to that ---
John Paul Stevens: Of course, you do that.
Patrick B. Kimberlin III: Yes, Your Honor.
Warren E. Burger: Any idea that there is some retroactive possible kind of relief presupposes the answers of the question presented by the entire case, does it not?
Patrick B. Kimberlin III: Yes, Your Honor this is why I think I perhaps now should address myself to the very essence of the case on the merits.
William H. Rehnquist: Did they complaint or asked for the damages?
Patrick B. Kimberlin III: No Your Honor he did not ask for damages, and in fact I do not believe that perusal of the complaint will even reveal that the petitioner himself ever alleged that he was entitled to be paroled at that first hearing.
John Paul Stevens: The last paragraph for relief is the plaintiffs be awarded any and all other relief to which they or the members of their class may appear to be entitled under that prayer a judge would have the power to grant broader relief.
Patrick B. Kimberlin III: That would be a possibility, although he did not succeed if we were prosecuting --
John Paul Stevens: When we talk about mootness, we are talking about the power of the District Court, not the form of the pleading, are we not?
Patrick B. Kimberlin III: Yes Your Honor.
William H. Rehnquist: Was that your understanding that the Court could have award damages without a specific added prayer for damages?
Patrick B. Kimberlin III: No, Your Honor, I believe you grant specifically request damages, it is a possibility.
William H. Rehnquist: That was my thought.
Patrick B. Kimberlin III: We would now turn to the primary issue on the merits, which is whether the due process calls does in fact attach two parole consideration hearings in Kentucky and it is the belief of the respondents that it does not. The whole predicate upon which constitutional application in support to Due Process Clause is concerned the past has been that a liberty interest or property interest is at stake. Here we do not feel that there is either a liberty or a property interest at stake. The thrust of the petitioner’s argument is that he does in fact have an interest in liberty. We believe that that interest in liberty has been effectively extinguished as a consequence of his convictions in the state trial courts in Kentucky for robbery and armed robbery for which he receives ten and 12 year sentences to be served concurrently. We believe that as a consequence of this conviction, his liberty interest no longer exists within the sense of what we are talking about here within the context of this case. Obviously, the fact that a person has been convicted as a felon and sent to jail does not mean he loses all his constitutional rights and we certainly are not saying that. We are saying that in so far as the context of parole consideration is concerned, his conviction does extinguish his liberty interest. Furthermore, we do not feel he has any property interest at stake. An examination of the relevant statutes and regulations in Kentucky will reveal that there is no entitlement given to the petitioner in so far as parole is concerned.
John Paul Stevens: General Kimberlin, let me put a hypothetic case to you. Supposing that State of Kentucky had a system in determining sentences, which provided that say the sentence would be one to three years, that after the prisoner served the first year, there would be a hearing before the judge at which time the judge would decide whether or not any additional time should be served, and the judge would have absolute and total discretion, either to release the man at that time or to say he should serve another year or two. Would the Due Process Clause entitle the prisoner to a fair hearing at that time?
Patrick B. Kimberlin III: Well now, we are dealing with a judge type situation.
John Paul Stevens: That is the first question, as soon as you answer that I am going to ask the case of any different, if the power were given to a Parole Board instead of a judge.
Patrick B. Kimberlin III: I think it would be different than from the situation we have here, in that the sentencing process has ended once in parole, when the person has left the state trial court level.
John Paul Stevens: Well, their argument of course is that as a practical matter, the sentencing process really has not ended, that is why I am trying to put the hypothetical case where the statute had made it perfectly clear that the decision on how long the man would be incarcerated would be made by a judge after a third of the statutory period had already been served and the judge would then have absolute discretion either to prolong the period of incarceration or to release the man. How would that be different from the situation we have?
Patrick B. Kimberlin III: Well, perhaps it is not different from the situation.
John Paul Stevens: Well, then if that is not different, would the Due Process Clause apply to such a hearing? I think that may be the issue here.
Patrick B. Kimberlin III: I think perhaps it would not apply in that kind of situation coming before judge who has complete discretion upon a statutory entitlement that a person be considered after he serves a certain amount of time of the sentence.
John Paul Stevens: So the key to your position really is the totality of the discretion invested in the Parole Board or the sentencing judge?
Patrick B. Kimberlin III: I think the key to our position here is what is his interest here? Is it an identifiable interest that can be clothed in the protections of the Due Process Clause? Is it one of liberty or is it one of property and we do not think it is either one. Counsel, Mr. Rivkin indicated just previously that his case does not depend on the right to parole.
John Paul Stevens: I think that his position is that it is a liberty interest because the question to be decided is how long shall a man stay in jail?
Patrick B. Kimberlin III: Well, that is an expectation and so far as the petitioner himself is concerned, he hopes to be released. He has a valid sentence against him that is been rendered against him.
John Paul Stevens: That seems to be one of the 60% instead of one of the 40%.
Patrick B. Kimberlin III: Well, I do not know exactly what the statistics will mean because in statistics, we are looking at the end result and in order to build up those statistics to begin with, the Parole Board had to consider each case on a case-to-case basis and a parole consideration itself reflects a very individualistic treatment of each person. The Parole Board has an identity of interest with a prisoner. If he can possible be paroled, they will want him to be paroled, if it is in the best interest of the individual and the society. We feel that there must be a predicate for due process application. In Meacham v. Fano there was no predicate for a due process application. There has to be a liberty or property interest and furthermore we think it not only has to be a liberty or property interest, but has to be a liberty or property interest which is presently being enjoyed by the person who seeks protection or to which he is presently entitled to. In the Morrissey case…
Potter Stewart: Actually deprived of it.
Patrick B. Kimberlin III: Exactly, he has to be deprived of it. In the Johnson case out at the Second Circuit Court of Appeals, in United States ex rel. Johnson vs. New York Parole Board. In that case, the Second Circuit equated the expectation of parole with the person’s status who has already been granted parole and they referred in there to a Footnote 8 in the Morrissey case, referring to Bay vs. Connecticut where this Court, Mr. Chief Justice Burger who wrote the Morrissey opinion and used that Footnote. In that Footnote something to the effect that it is not being sophistic to distinguish between a mere anticipation or hope of being granted parole as opposed to a person who has already been granted parole and this Footnote was used in that part of the Morrissey decision which dealt with the nature of the interest that was involved not to some weight the Johnson case in the Second Circuit distinguished that Footnote by saying that, it makes no difference whether he is presently enjoying it or presently entitled to it because all that Footnote means is that the Supreme Court indicated that more constitutional protections could be accorded to somebody who is already on parole and it may be taken away.
Thurgood Marshall: Mr. Kimberlin I have another point. What is “close supervision” in Kentucky?
Patrick B. Kimberlin III: I am not exactly sure what that would mean other than the fact but talking with all respondents.
Thurgood Marshall: I mean does he has to go to the prison everyday or you spend nights there, but what is the…
Patrick B. Kimberlin III: I do not know that it is necessary to know what exactly what “close supervision” would be because this is the status somebody whould have who is on parole.
Thurgood Marshall: You say that this case has moot because the man is out on parole under “close supervision” and you tell me that I do not need to know what “close supervision” is?
Patrick B. Kimberlin III: Well, we have talked to our clients about “close supervision” about the aspects of this case in the individual characteristics of Scott and “close supervision” would be checking him with parole officers being limited in where he could go and that sort of thing, but no we do not know. There has never been an opportunity by the respondents to set forth a specific factual information, which is really pertinent to this case.
Warren E. Burger: Petitioner would put it in the record in this case as to the nature of the…
Patrick B. Kimberlin III: Of “close supervision” Your Honor? No, I do not believe so.
Thurgood Marshall: Well, whose job is it on this mootness point? It is his job, isn't it?
Patrick B. Kimberlin III: Well, I believe it is not my job.
Thurgood Marshall: Well, if he has to report to the prison three days a week, and spends two days in the prison, would you say the case was moot?
Patrick B. Kimberlin III: Yes, Your Honor because those kinds of considerations deal specifically with the possible.
Thurgood Marshall: If he was released on parole one hour a week, would you say this case was moot?
Patrick B. Kimberlin III: I do not think that those considerations would be relevant to the consideration of mootness to determination of mootness, Your Honor.
Thurgood Marshall: Well, what makes it moot, is that (Inaudible).
Patrick B. Kimberlin III: Yes, Your Honor.
Thurgood Marshall: Well, I am saying if he is not really out, it would not be moot, would it?
Patrick B. Kimberlin III: If he were actually back in the prison again?
Thurgood Marshall: If he was not actually out which is just as clear to me as “close supervision.”
Patrick B. Kimberlin III: Anyone who is on parole, there is always some limitations. It is a conditional liberty which was recognized in the Morrissey case, yes Your Honor. Finally, we would say that the Court, we feel should give consideration to whether the person is actually enjoying such an interest or is entitled to such an interest. An expectation we feel is not sufficient to extend constitutional due process protections and that is all we believe that the petitioner has…
John Paul Stevens: General Kimberlin that is the very point. What do you say about the Goldsmith against the Board of Tax Appeals, the case involving the account that wanted to get admitted.
Patrick B. Kimberlin III: Yes, Your Honor. In so far as that case is concerned and perhaps bar cases there was an entitlement, a statutory formal policy set forth in which it established a class and if someone…
John Paul Stevens: Well, let me just interrupt you. Was it a statutory matter or was it a policy by practice over and over that they could admit these people?
Patrick B. Kimberlin III: Well, I think it was a rule of court in the tax case because it would be the Court of Tax Appeals that would be in charge of permitting people to come before you.
John Paul Stevens: Did not the rule and the tax case specifically provide that the Board had absolute discretion to turn the man down?
Patrick B. Kimberlin III: Well, it may have been Your Honor, but now if someone in that Goldberg case, if an individual fell within the class that would be entitled to become a member of the Tax Court Bar then he could not be denied relief without due process being accorded I believe. Now, the thing here is, the State of Kentucky permits someone -- it establishes a class of persons who may be considered for parole. It does not establish by policy or statute to regulation that class, which entitle someone to parole. I believe there is a great difference in that. If we had a statute which said that a person, if he met A, B, C, D, and E is entitled to parole then we could not deny him a parole once he establishes that he meets to A, B, C, D, and E.
John Paul Stevens: Did you read the Goldsmith case is indicating that any lawyer in any accountant was entitled to be admitted to practice?
Patrick B. Kimberlin III: No, Your Honor. I believe if an attorney or an accountant in that particular case fell within the class that he would be entitled to be admitted that he could not subsequently be denied upon the discretionary basis without a due process hearing. Here there is no class in which this petitioner or any other prisoner in Kentucky would fall within which would entitle him to be paroled. If there were, that would establish an entitlement to a liberty interest and here there is no such entitlement to a liberty interest or a property interest and there is obviously nothing that he is presently enjoying within a property or liberty aspect. We would now turn to assuming argument that due process does in fact apply to this case. How much process is due? We would first suggest a possibility of a remand to lower courts to establish an evidentiary basis, in order to determine exactly what the policies and practices of the Parole Board are, as opposed to how they have been pleaded in this particular case. In the event this Court does not deem a remand necessary, we would suggest that the present policies and practices as we are able to determine them now are sufficient to meet with minimal due process standards, after all the entire Parole Board meets to consider a parolee at a parole consideration hearing. If they cannot all meet, of course a quorum will meet to consider the individual. He has right to be present and he has the right to be heard. The Parole Board will consider under present regulation some 14 specific factors, and there is one 15th factor which in effect permits the Parole Board to consider any other possibility. We feel that in light of all this, the risk of any possible error is at best minimal and a chance of arbitrariness minimal, and we feel that these minimal due process protections are sufficient to accord no change in the procedures in Kentucky at this time. Specifically, as to some of the requests that he has made for relief and so far as an attorney is concerned, we feel that the introduction of counsel at a parole consideration hearing and there are several hundreds of these held every year by the Parole Board would turn the hearing into a truncated trial type procedure and change the very nature and form of the consideration in role of the Board into almost an adversarial type process and we do not feel that that is all necessary and there has only been one other case in which we feel, perhaps in Goldberg versus Kelly where the right to counsel has been extended and the whole Indian Trial Procedure, administrated procedure clothed in a trial type proceeding. We do not feel that there is any necessity for a written writ list of reasons is the actual practice in most cases now for the Parole Board to extend to the person being considered in all reason why he has being denied parole, we feel that this is sufficient. That would effectively eliminate that particular argument we feel and so far as due process question is concerned and the meaningful hearing and opportunity to rebut adverse facts we feel he has these by his right to be present at the hearing and to address the Board and from talking with the respondents is their position at any time that they feel there is some problem in the record in so far as possibly granting for a particular person at parole, they would discuss it with him at the hearing and we feel that this is a sufficiently meaningful hearing in so far as minimal due process is concerned.
Lewis F. Powell, Jr.: Mr. Attorney General, suppose no hearing were accorded to prison inmate at all and the Board denied parole without any hearing, what recourse, if any would the prisoner have?
Patrick B. Kimberlin III: Well, he has an entitlement. If under our rules and regulations of statutes he was never accorded a hearing, he would be entitled I believe to pursue a relief in State Circuit Courts for the reason that he has under our statutes and regulations and entitlement to be considered on the basis of whatever his sentence may be after a certain service of that sentence to be considered for parole and if that would not be extended to him, that entitlement we feel could be protected by going into the State Circuit Courts in order to seek relief and so the Circuit Court could order the Kentucky Parole Board to consider him for parole if in fact no hearing was ever held at all.
Speaker: (Inaudible)
Patrick B. Kimberlin III: Essentially, the idea, yes Your Honor that would be true. In conclusion we would submit that the Due Process Clause does no attach to parole consideration hearings in Kentucky and that if it does, the current procedures do comport properly with the minimal aspects of the Due Process Clause of the Fourteenth Amendment.
Warren E. Burger: Mr. Rivkin, you have two minutes.
Dean Hill Rivkin: Just a few points Your Honor. I believe that General Kimberlin stated our case when he noted in response to questions about Goldsmith that an individual or if an individual becomes a member of the class then he or she is entitled to due process protection. I think that is precisely the nature of the process of parole release. The Board, exercising discretion, uses the criteria that it has developed over the years. It reviews the files as the statistics to know a large number of individuals meet those criteria and in fact are paroled. This is much closer to the sentencing analogy that Mr. Justice Stevens noted and to the type of discretion that was exercised in Morrissey versus Brewer and the type of process that existed in Morrissey versus Brewer and for instance in Meachum versus Fano. Parole release is part of this continuum in the criminal justice process, involving the important interest of release on parole as opposed to whatever interest an individual would have which is not constitutionally protected under Meachum versus Fano. Finally, I think that the reading of depravation under the Due Process Clause to exclude this case would be an overly formalistic reading under this Court’s case is in Goldsmith and Schware and Wilner and alster term in Hampton and for these reasons we believe that the judgment of the United States Court of Appeals for the Sixth Circuit should be reversed and the case remanded for an evidentiary hearing and further proceedings.
Warren E. Burger: Thank you gentlemen. The case is submitted.