as to the criteria to be considered in passing upon applications for parole.
Plaintiffs have moved, pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, to modify the memorandum and order filed herein on October 1, 1973, and no opposition has been filed. Upon consideration thereof the motion is hereby granted, and the court orders that the memorandum and order of October 1, 1973 be and the same hereby is modified to include the following:
Findings of Fact
1. The Board does not presently provide, on a routine basis, statements of its reasons for not granting parole.
2. The Board's failure to convey reasons for its decisions not to grant parole has an impact upon parole applicants which includes both the appearance and reality of lacking fundamental fairness.
3. Under the Parole Board's present practices and procedures there exists a substantial danger that a significant number of decisions not to grant parole are made without reasoned consideration of the relevant facts and factors in each case, and are, therefore, arbitrary and capricious.
4. The Board's failure to require that decisions not to grant parole include stated reasons of any kind fails to provide reasonable assurance that such decisions will be reasoned decisions, based upon the facts of each case, rather than arbitrary or capricious decisions.
5. Under present Parole Board practices and procedures, a narrative written statement of reasons for not granting parole, which includes reference to the relevant facts and factors in each case, can be supplied by the Board with a minimum of administrative burden or additional resources.
6. The Board does not presently provide an opportunity for a parole applicant, or a representative of an applicant, to become apprised of the information before the Board which will be considered in passing upon the application for parole. This refusal is expressly not limited to a claimed need for confidentiality, but is instead asserted to be necessary on the ground that such appraisal would make the parole interview overly adversarial because applicants would attempt to dispute adverse allegations.
7. Present practices and procedures do not provide reasonable assurance that the Board's decisions on applications for parole will be based upon reasonably reliable determinations of fact. In fact, under present Parole Board practices and procedures, there exists a substantial danger of decisions which are based upon clearly erroneous assumption of fact.
8. The sources of said danger of error include evidence of filing errors and omissions; confusion stemming from instances of mistaken identity; possible reliance upon outdated and superceded information; reliance upon unsubstantiated assertions; reliance upon conflicting, unclear, and in some instances not apparently reliable psychological testing data and similar information; and the like.
9. A procedure permitting a parole applicant to become apprised of the information which is before the Board, and to submit in some form a response, would greatly reduce the presently excessive danger of erroneous factual bases for decisions. Such a procedure can readily be devised so as to involve relatively little additional administrative burden. Such a procedure can be adopted with relatively little delay in the decision-making process. And, such a procedure can be adopted without thwarting the non-adversarial purposes of the parole application process. Indeed, such a procedure may frequently lead to the correction of errors -- such as those resulting from misfiling, outdated information, or mistaken identity -- which the Board would view as helpful rather than adversarial or "argumentative."
The constitutional requirements of minimal due process -- i.e., the appearance and actuality of fundamental fairness; reasonable assurance of reasoned decisions rather than arbitrary or capricious ones; and reasonable assurance of reasonably reliable factual bases for decisions -- are applicable to the parole application process.
In the context of the parole application process, minimal due process requires, for the reasons set forth in the foregoing findings of fact, and in the October 1, 1973 memorandum and order, each of the procedures set forth in the order of October 1, 1973.
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