The opinion of the court was delivered by: Emmet G. Sullivan, United States District Judge.
MEMORANDUM OPINION AND ORDER
The United States Parole Commission ("Commission") assumed the powers, duties and jurisdiction of the District of Columbia Board of Parole on August 5, 2000, pursuant to the National Capital Revitalization and Self-Government Improvement Act of 1997, Pub. L. No. 105-33, § 11231(a)(2), 111 Stat.712, 745 ("Revitalization Act"). The Commission's new responsibilities included the authority to revoke parole and to modify the conditions of parole for D.C. Code offenders. The Commission replaced the parole revocation procedures used by the D.C. Board of Parole with new parole regulations. The plaintiffs, a class of D.C. Code offenders released on parole supervision, filed this suit alleging that the Commission's new regulations, on their face and as applied, fail to provide the due process required by the Fifth Amendment of the U.S. Constitution. Plaintiffs' claim that hundreds of alleged parole violators have been arrested and kept in custody for months, while the Commission has failed to provide due process through timely and adequate probable cause determinations and revocation hearings, has been substantiated by the evidence presented to this Court. Today, over a year after the Commission assumed the duties of the D.C. Board of Parole, many of the problems continue.
The alarming state of affairs at the Commission is clear to the Court, not only from the evidence submitted by the plaintiffs in this case, but from the Commission's own proposed findings of fact and conclusions of law, submitted to the Court on June 12, 2001. The Commission admits that "[p]rior to August 5, 2000, the Commission was already struggling with existing backlogs in its parole cases" and that "it seriously underestimated the problems it would encounter or the staff it would need." Defendants' Findings of Fact ¶ 3. "As of August 5, 2000, the Commission did not have the personnel it needed to carry out the District of Columbia parole revocation function in compliance with the Revitalization Act, the Trustee's certification, the requirements of due process, and the time deadlines established in the procedural regulations which the Commission published on July 26, 2000 (effective August 5, 2000)." Id. at ¶ 2.
While the Commission claims that it attempted to establish the necessary administrative mechanisms for processing parole violators, it admits that "these preparations did not prove sufficient to address the serious difficulties that would arise...." Id. at ¶ 3. The Commission admits that it was "overwhelmed by the number of District of Columbia Code parolees who were arrested on warrants issued by the now abolished D.C. Board of Parole and by the Commission." Id. at ¶ 5.
The problems that the Commission faced were predictable. On June 21, 2000, Attorney General Janet Reno warned Congress that "if the Commission were not able to handle its caseloads, the result would '...include a flood of related prison litigation that could overwhelm not only the Commission's physical and legal resources, but those of the Bureau [of Prisons], United States Attorneys and District of Columbia as well." Id. at ¶ 4.
When the Commission took over, there were over 200 parolees arrested on warrants issued by the D.C. Board of Parole. See id. at ¶ 5. "The 'vast majority' of these arrested parolees were already overdue for revocation hearings, with delays extending from 60 days to 1 year." Id. Despite the existing backlog, D.C. parolees began to be arrested on existing warrants at a rate higher than the previous rate. See id.
The Commission candidly acknowledges that "the Commission was unable to process this influx of arrested parolees to final revocation hearings within the time frames established by its rules. The Commission has conceded that the situation amounted to a near breakdown in the revocation process for D.C. Code offenders, with a backlog of cases in October of 2000 of more than 400 arrested parolees awaiting revocation hearings. See id. at ¶ 6. In November of 2000, the Commission released 116 arrested parolees without hearings in an effort to reduce the backlog, but nonetheless, "delays of four months from arrest to the final revocation decision continued to be common ... with some hearings delayed six months or more." Id. at ¶ 7. The Commission found itself "unable to provide preliminary interviews in a timely manner," and unable to determine when warrants were executed, or which parolees were awaiting hearings. Additionally, the Commission admits that the documentary evidence needed to make findings as to probable cause and as to revocation of parole was often missing for those parolees arrested on violator warrants and in the Commission's custody. See id. at ¶ 8. The Commission concedes that "[t]he extensive delays experienced by the five named plaintiffs, prior to receiving their parole revocation hearings and decisions, were typical of the delays experienced by many parolees" and that "[d]elays continue to occur in many cases...." Id. at ¶ 16.
While the Commission may have ameliorated some of the problems it faced last fall, the Commission remains unable to comply with its regulations. The Commission remains "unable to comply with its regulation requiring final determinations as to revocation within 21 days of the revocation hearing, excluding weekends and holidays, as required by 28 C.F.R. § 2.105(c). Approximately 90 percent of the Commission's cases do not meet this deadline." Id. at ¶ 13. Moreover, the ability of the Commission to maintain the improvements it has made long term is questionable. The Commission relies upon "significant voluntary contributions of unpaid overtime from the Commission's civil service staff that processes its cases." Id. at ¶ 15. "These 'unpaid, gratuitous hours' are necessary for the Commission to 'maintain function.'" Id. The Commission concedes that these "improvements are not sustainable for the long-term...." Id. The Commission has requested, and hopes to receive, additional funding from Congress, but admits that "there is no basis for the Court to determine whether Congress will grant the ... appropriation request...." Id.
The Commission further admits that it "is constitutionally obligated to resolve the current problem of repeated unconstitutional delays in the most efficient and expedient manner possible." Defendants' Conclusions of Law ¶ 9. To bring its practices in conformity with the Constitution, the Commission states that either: (1) it must obtain "from Congress an appropriation sufficient for the Commission to hire such additional personnel as will enable the Commission to meet its time deadlines and satisfy due process; or (2) in the absence of an adequate Congressional appropriation, to take such measures, including but not limited to a revision of its revocation regulations, in consultation with the Attorney general and other interested agencies, to resolve the problem within the reasonable period of time." Id. at ¶ 10. Thus far, neither of these has happened.
It is in this context that plaintiffs, D.C. Code offenders released from custody on parole supervision, commenced this class action lawsuit seeking injunctive relief from certain regulations, practices, and procedures of the Commission. Plaintiffs allege that the Commission's regulations, on their face and as applied, systematically violate the constitutional rights of D.C. parolees. Specifically, plaintiffs claim the Commission's regulations, codified in 28 C.F.R. § 2.70, et seq., fail to provide parolees with either a prompt determination of probable cause or a timely final revocation decision. Plaintiffs further allege that in practice, individuals are subjected to even greater delays than allowed under the already deficient regulations. Accordingly, plaintiffs seek injunctive relief from the Commission's regulations, practices and procedures on the grounds that the Commission's actions violate the Fifth Amendment of the United States Constitution.
Pending before the Court are plaintiffs' motions for class certification and summary judgment and defendants' motions to dismiss and summary judgment. Since the plaintiffs have fulfilled all the requirements to justify class certification of this action, the Court GRANTS plaintiffs' motion for class certification.
Plaintiffs' motion for summary judgment rests on the following three grounds: 1) the Commission's regulations, as written, are unconstitutional as a matter of law, 2) the Commission has failed to comply with those regulations, resulting in even more egregious unconstitutional delays, and 3) the Commission's practices constitute a policy and custom of constitutional violations sufficient to justify injunctive relief. Defendants' motion to dismiss presents three arguments: 1) an action in habeas corpus is plaintiffs' sole course of action, 2) plaintiffs' claims are without merit, and 3) the relief plaintiffs request would violate the separation of powers doctrine.
The Court hereby concludes that the Commission's regulations relating to the timing of probable cause determinations and final revocation hearings are in violation of the principles of due process, both on their face and as applied, and that the evidence demonstrates a sufficient pervasive pattern of constitutional violations to justify injunctive relief. Since the defendants' contentions are refuted by both the law and the evidence, the Court DENIES defendants' motion to dismiss. In addition, the Court GRANTS plaintiffs' motion for summary judgment and DENIES defendants' cross-motion for summary judgment as moot.
The Commission assumed authority over all District of Columbia parole matters on August 5, 2000, pursuant to the Revitalization Act. See Pub. L. 105-33, 111 Stat. 712 (1997). This Act vested the Commission with those responsibilities formerly held by the Board of Parole of the District of Columbia, including the power to both revoke and modify the conditions of parole of all persons convicted of felonies in the District of Columbia and later released on parole. Id. Pursuant to this authority, the Commission adopted new regulations regarding its procedures for handling the disposition of alleged parole violations. 28 C.F.R. § 2.70 et seq.
At the time the Commission assumed responsibility for D.C. parole matters, the Commission inherited a large backlog of cases. Immediately, the Commission found that its resources were "overwhelmed", and operations "reached a state of near collapse." 7/16/01 Tr. at 101 (statement of defense counsel Michael Stover: "Following the transition on August 5 of 2000, the Parole Commission was hit with a huge backlog of cases, 230 cases, waiting in custody for hearings. It overwhelmed our resources.
We reached a state of near collapse."). In October 2000, "the Commission [still] had a backlog of over 240 arrested parolees who were beyond the constitutional deadline established by the U.S. Supreme Court in Morrissey v. Brewster." 7/17/01 Tr. at 49 (discussing the Commission's report to the Bush Administration). Indeed, in the months following its assumption of responsibility, the backlog increased. See 7/17/01 Tr. at 50.
The Commission admits that it continues to face a "litany of issues" including, "over 200 overdue revocation hearings; over 100 backlogged and overdue arrest warrants; and, over 300 late initial and re-hearings." 7/17/01 Tr. at 51 (discussing the Commission's statements to Congress in its March 29, 2001 budget request). Ultimately, if the current state of affairs is allowed to continue "the crisis will continue to worsen. Once again the Commission will be in the unenviable position of either having to release offenders for whom constitutionally required revocation hearings cannot be timely conducted, or leaving it to the U.S. District Court to issue writs of habeas corpus to remedy noncompliance with its orders." United States Parole Commission Report of January 4, 2001. It is within this framework that the defendants themselves have admitted, "the defendants recognize that plaintiffs have a good case for some appropriate relief." Def's Cross-Mot. For Sum. Judg. at 37.
The U.S. Parole Commission Regulations At Issue
The Commission enacted the following, presently challenged, regulations in order to govern the parole revocation process:
· 28 C.F.R. § 2.98(a)(2): If a parolee is alleged to have violated the conditions of his release, and satisfactory evidence thereof is presented, the Commission...may issue a warrant for the apprehension and return of the offender to custody.
· 28 C.F.R. § 2.101(a): A parolee who is retaken on a warrant issued by the Commission shall promptly be offered a preliminary interview...The purpose of the preliminary interview is to determine if there is probable cause to believe that the parolee has violated his parole as charged.
· 28 C.F.R. § 2.101(d): At the conclusion of the preliminary interview, the interviewing officer shall inform the parolee of his recommended decision as to whether there is probable cause to believe that the parolee has violated the conditions of his release, and shall submit to the Commission a digest of the interview together with the recommended decision.
· 28 C.F.R. § 2.101(d)(2): If the interviewing officer's recommended decision is that there is probable cause to believe that the parolee has violated a condition (or conditions) of his release, the Commissioner shall notify the parolee of the final decision concerning probable cause within 21 days of the date of the preliminary interview.
· 28 C.F.R. § 2.102(f): A local revocation hearing shall be scheduled to be held within sixty days of the probable cause determination. Institutional revocation hearings shall be scheduled to be held within ninety days of the date of the execution of the violator warrant upon which the parolee was retaken.
· 28 C.F.R. § 2.103(a): The purpose of the revocation hearing shall be to determine whether the parolee has violated the conditions of his release and, if so, whether his parole or mandatory release should be revoked or reinstated.
· 28 C.F.R. § 2.103(d): All evidence upon which the finding of violation may be based shall be disclosed to the alleged violator at or before the hearing. The hearing officer or examiner panel may disclose documentary evidence by permitting the alleged violator to examine the document during the hearing, or where appropriate, by reading or summarizing the document in the presence of the alleged violator.
· 28 C.F.R. § 2.105(c): The Commission's [final revocation] decision shall ordinarily be issued within 21 days of the ...