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Teachey v. Carver

August 26, 1999

LARRY TEACHEY, ET AL., APPELLANTS,
v.
JOHN A. CARVER, ET AL., APPELLEES.



Before Terry and Schwelb, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Schwelb, Associate Judge

Appeals from the Superior Court of the District of Columbia

(Hon. Iraline G. Barnes, Trial Judge)

Argued April 14, 199

The principal question presented in these consolidated appeals is whether the District of Columbia Trustee for Offender Supervision *fn1 exceeded his legal authority by unilaterally promulgating a "directive" requiring the District of Columbia Board of Parole ("BOP" or "the Board") to issue parole violator warrants in situations in which the Board's regulations render that decision discretionary. The Trustee had reason to believe that prior to the issuance of Directive No. 001, prisoners whose parole should have been revoked had been allowed to remain on the streets and had committed additional violent crimes. The Directive was obviously issued to remedy this situation, and the procedures that it ordains may well be a long overdue step in the right direction. Nevertheless, we are compelled to conclude that the Revitalization Act, see note 1, supra, does not authorize the Trustee to override the Board's validly issued regulations without following the appropriate statutory procedures. We therefore reverse the trial Judge's orders upholding Directive No. 001.

I.

The District of Columbia parole statute authorizes the BOP, inter alia, to "determine if and when to terminate parole or conditional release or to modify the terms or conditions of parole or conditional release." D.C. Code § 24-201.2 (a) (1996). The statute further provides that if the Board, or any member of the Board, has reliable information that a prisoner has violated his parole, then the "said Board, or any member thereof, . . . may issue a warrant to any officer hereinafter authorized to execute the same for the retaking of such prisoner." D.C. Code § 24-205.

Pursuant to its authority under D.C. Code § 24-201.3, the Board has provided by duly promulgated regulation as follows:

"The Board or a member of the Board may elect to issue a violator warrant in those cases where the only violation of parole is the alleged new offense for which the parolee has been arrested. The Board shall make a written determination as to whether there is probable cause to believe that the parolee has committed the crime for which he or she was arrested and as to the following:

(a) Risk to the community if the parolee is allowed to remain on parole;

(b) History of the parolee while under supervision;

(c) Whether the parolee has other outstanding criminal charges; and

(d) Seriousness of the offense for which the parolee has been arrested." 98 DCMR § 217.3 (1987).

The Board's regulations further provide that where there is probable cause to believe that a parolee has committed or attempted to commit one or more of certain enumerated criminal offenses the Board "shall issue a violator warrant." 28 DCMR § 217.7 (emphasis added). *fn2 Where such probable cause relates to an offense not enumerated in ยง 217.7, however, the issuance of a warrant is discretionary, and the ...


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