Prisons and Prisoners; Timing of Parole Revocation Hearings Following Arrest of Parole Violator

Subject:

Prisons and Prisoners; Timing of Parole Revocation Hearings Following Arrest of Parole Violator

Requested By:

James Woodard, Chairman North Carolina Parole Commission

Questions:

1. If a parolee is arrested on unrelated outstanding criminal charges and confined in a local confinement facility and the North Carolina Parole Commission then serves a parole violator warrant based on alleged technical violations of parole, is the Parole Commission required to hold a preliminary revocation hearing within seven (7) days of service of the warrant?

2. If the first question is answered affirmatively, is the Parole Commission then required to hold its final revocation hearing within forty-five (45) days of the parolee’s confinement in the local confinement facility?

3. If the Parole Commission hold its preliminary hearing within seven (7) days but does not hold its final revocation hearing within forty-five (45) days of the parolee’s confinement in the local confinement facility, is the parolee entitled to release, release on bond pending a Parole Commission hearing, or any other form of Habeas Corpus relief?

4. If the Parole Commission hold its preliminary hearing within seven (7) days of the parolee’s arrest but fails to hold its final revocation hearing within forty-five (45) days of the parolee’s reconfinement in the North Carolina Department of Correction, is the parolee entitled to release, release on bond pending a Parole Commission hearing, or any other form of Habeas Corpus relief?

Conclusions:

1. Yes.

2. No.

3. No.

4. No.

The first two questions pose unique factual circumstances. It is clear that when a parolee is charged with and convicted of a crime after his parole, the Commission may require that the intervening sentence be served prior to executing its parole violator warrant based on the subsequent conviction and taking custody of the parolee pursuant to that warrant. Moody v. Daggett, 429 U.S. 78 (1976); Gaddy v. Michael, 519 F.2d 669 (4th Cir. 1975) cert. denied, 429 U.S. 988 (1976); Cf. Jernigan v. State, 10 N.C.App. 562, 179 S.E.2d 788 (1971), aff’d, 279 N.C. 556, 184 S.E.2d 259 (1971). Occasionally however, the parolee has absconded and remained at large for a long period of time or has committed some other serious technical violation and the new charges upon which the parolee is held are not serious. In such situations, the parolee may be able to post bond on the outstanding charges. To avoid the risk that the parolee might make bond and flee, the Parole Commission executes and serves its warrant on the parolee in the local confinement facility. Even though the parolee is in custody on other charges, he must be given notice and a preliminary hearing within seven (7) days of his confinement. Under

N.C.G.S. § 15A-1376(b), a Parole Hearing Officer must hold a preliminary hearing within seven (7) days of the "arrest" of the parolee. By executing and serving its warrant, the Parole Commission in effect "arrests" the parolee. If the hearing is not held as required, the parolee will be entitled to make bail on the other charges and pursuant to G.S. § 15A-1376(b), he will be allowed to continue on parole until a final revocation hearing is held.

If the preliminary hearing is held within seven (7) days of execution and service of the warrant, the final revocation hearing may be delayed until the parolee is released from the custody of the local authorities. Nevertheless, the final revocation hearing must be held within forty-five (45) days of the parolee’s "reconfinement" in the North Carolina Department of Correction. G.S. § 15A-1376(e). The Statute mandates a hearing within forty-five (45) days of "reconfinement" without specifying the place of confinement. Although this had led to some confusion, we believe that reconfinement means return to the Department of Correction, not continued confinement on other charges.

The prefix "re" deserves some emphasis. The Parole Commission must act only when it reasonably can act – i.e., when the parolee is reconfined in the custody of the Department of Correction. The statutory time period within which the revocation hearing must be held begins to run when the Defendant is returned from the local confinement facility to a state institution. Whittington v. Commonwealth Board of Probation and Parole, 402 A.2d 1105 (Pa. 1979); People ex rel Spinks v. Dillon, 416 N.Y.S.2d 942 (1979). See also Inmates Councilmatic Voice v. Rogers, 541 F.2d 633, 636 (6th Cir. 1976) ("reasonable time" in which final parole revocation hearing must be held begins when the parole authorities take custody and return parolee to the state institution.)

Though the presence of the warrant may make bail on the outstanding criminal charges a futile gesture, that cannot affect this result. Cooke v. United State Attorney General, 488 F.2d 667, 671 (5th Cir. 1974). The parolee is still in custody on the other charges and not the parole violation warrant. Id.

The seven (7) day and forty-five (45) day time limits set out in G.S. § 15A-1376(b) protect the parolee from an unfair and unconstitutional loss of liberty. However, this liberty interest is not triggered until the warrant is executed and the parolee is taken into custody pursuant to it. Moody v. Daggett, supra 429

U.S. at 86 Morrisey v. Brewer, 408 U.S. 471, 488 (1975). For these reasons, we interpret G.S. § 15A-1376(b) to mandate a final revocation hearing forty-five (45) days from the time the parolee is returned to the custody of the North Carolina Department of Correction and not forty-five (45) days from his confinement in a local confinement facility on other charges.

From the discussion above, it is clear that the parolee is not entitled to Habeas relief if the Parole Commission does not hold a final revocation hearing within forty-five (45) days of his confinement in a local confinement facility on other charges.

Even if the parole Commission fails to hold a hearing within forty-five (45) days of a parolee’s reconfinement in the Department of Correction, the parolee would not be entitled to outright release or release on bail. With his conviction, the parolee loses his presumption of innocence and is not constitutionally entitled to bail. In re Whitney, 421 F.2d 337 (1st Cir. 1970); Lee v. Pennsylvania Board of Probation and Parole, 467 F.Supp 1043 (E.D. Pa. 1979); U.S. ex rel Taylor v. Brierton, 458 F.Supp. 1171 (N.D.Ill. 1978). Although probationers are allowed bail, it is not a violation of the Equal Protection Clause to deny bail to parolees in similar situations. People ex rel Tucker v. Kostos, 68 Ill.2d 88, 368 N.E.2d 903, 906 (1977); Listro v. Warden, 365 A.2d 109 (Conn. 1976). In G.S. § 15A-1345(b) the General Assembly specifically provided that probationers would be entitled to bail. Although the procedural safeguards to which parolees are not granted the right to bail. G.S. § 15A-1376 provides for the "arrest" and "reconfinement" of the parole violator but there is no provision concerning bail. The Parole Commission is authorized to hold its hearing without arresting the parolee if it is not necessary to arrest him. G.S. § 15A-1376(a). The Statute is designed to allow the Parole Commission to determine when it can allow a parole violator to remain free pending a revocation hearing. There is no provision for judicial intervention at any point. For all these reasons, a parolee cannot be placed on bail pending his parole revocation hearing.

It is also clear that those not afforded a timely final revocation hearing are not entitled to outright release. Releasing these prisoners is strong medicine to prevent administrative delays. If the legislature had intended to impose such a remedy it would have set it out in the Statute as it did in G.S. § 15A-703 (indictment may be dismissed for failure to provide for a speedy trial). Smith v. United States, 577 F.2d 1025, 1028 (5th Cir. 1977).

All of this is not to say that a parolee would be without any remedy if he were not provided a hearing indefinitely. If the Parole Commission fails to act in accordance with the statutory mandate, it could be compelled to hold a hearing by issuance of a Writ of Mandamus. See Pender v. Joslin, 262 N.C. 496, 504, 138 S.E.2d 143 (1964). Also, as we have pointed out, the Constitution requires that a parolee be provided a hearing within a reasonable time after he is taken into custody pursuant to a parole violator warrant. A Federal Court could also order a hearing in the event of a delay. Nevertheless, a parolee can never be released from custody as a result of delay in holding his parole revocation hearing unless he can show unreasonable delay (at least several months) and prejudice resulting from that delay. Beck v. Wilkes, 589 F.2d 901 (5th Cir. 1978).

Rufus L. Edmisten Attorney General

Ben G. Irons, II Assistant Attorney General