reason for revocation, declaring that no hearing at all is required in such cases because the fact of violation has already been established by a court. Shelton v. United States Bd. of Parole, supra, 388 F.2d at 573. However, that decision misconceives the duties of the Parole Board and permits the imposition of substantial deprivations without due process of law.
The D.C. Board of Parole, like the United States Parole Board under discussion in Shelton, retains full discretion to place a parolee back on the street even though he has clearly violated the conditions of his parole. See D.C. Code § 24-206; 18 U.S.C. § 4207. The Board must consider mitigating circumstances and rehabilitative potential as well as the existence of parole violations before determining that reincarceration is appropriate. Cf. United States ex rel. Hitchcock v. Kenton, 256 F. Supp. 296 (D.Conn.1966). Thus, a revocation hearing to adduce evidence on these matters is of vital importance even to a parolee whose parole violation has already been established by a court of law. Moreover, delay in holding the hearing could substantially prejudice such a parolee. Not only might mitigating evidence be lost during the years of intervening incarceration, see Jenkins v. United States, 337 F. Supp. 1368 (D.Conn.1972), but the parolee could be arbitrarily deprived of the opportunity to have his reincarceration, if ordered, run concurrently with the remainder of his intervening sentence. The maintenance of a detainer against an inmate whose parole will never actually be revoked has other undesirable effects, triggering an unnecessary loss of prison privileges and hampering rehabilitation by placing the parolee's future into a state of prolonged uncertainty.
In light of these considerations, the Court holds that plaintiff had a right to a prompt parole revocation hearing on the contested warrant. Shelton no longer requires a contrary result, because it has been effectively overruled by the Supreme Court's decision in Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), which held that the Fifth Amendment requires not only a prompt revocation hearing but also an earlier preliminary hearing "near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available." Id. at 485, 92 S. Ct. at 2602. While the petitioners in Morrissey had not been convicted of crimes while on parole, the language in that decision is broad enough to encompass such parolees. The Court stressed the importance of the revocation hearing as a forum for issues other than the simple fact of parole violation, id. at 479-480, 488, 92 S. Ct. 2593, and stated that the hearing could be simplified by barring evidence on the parole violation itself if such violation had previously been established by a criminal conviction. Id. at 490, 92 S. Ct. 2593. The clear import of these comments is that a conviction during parole may alter the content of the revocation hearing, but it does not dispense with the requirement that such a hearing be promptly held. See also Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). In fact, at least one court has held that a convicted parolee has a right under Morrissey to a preliminary as well as a final revocation hearing, even though the former proceeding is narrowly confined to establishing the existence of a parole violation. See, In re La Croix, 108 Cal.Rptr. 93 (Cal.App.1973).
Because more than five months have passed since the contested detainer was lodged at McNeil Island, it is now too late for defendant to cure its error by affording plaintiff a revocation hearing. The Federal Courts have indicated that an unjustified delay* of more than three months in providing a parole revocation hearing requires the issuance of a writ of habeas corpus releasing the parolee from the Parole Board's custody. See cases cited in Marchand v. Director, U.S. Probation Office, 421 F.2d 331, 335 n. 5 (1st Cir. 1970).
Defendant therefore is directed to cancel its warrant for parole violation against plaintiff and to direct the authorities at the McNeil Island Federal Penitentiary to withdraw that warrant from plaintiff's files.
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