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Avant v. Clifford

Decided: June 23, 1975.

THOMAS X. AVANT, RICHARD ANDERSON, CLIFTON BRANDON, JAMES CAGLE, RONALD CRAWFORD, ROBERT CUTLER, GEARY GLASSPIE, ANDREW X. HOLIDAY, JOHN JOHNSON, JR., LEONARD JOHNSON, THOMAS J. KARTNER, CHARLES LEE, KENNETH T. MARKS, DWIGHT MASON, JAMES MCKEEVER, GREGORY MELVUS, ELLSWORTH X. SMITH, THOMAS MILTON STEVENS, JR., DONALD D. WASHINGTON, JOHN WILBELY, THOMAS WOOTON, JEROME AUSTELL, ALFRED AUSTELL, JOHN RICHARD MILLER AND ANTHONY M. PUCHALSKI, INMATES OF THE NEW JERSEY STATE PRISON SYSTEM, ON BEHALF OF THEMSELVES AND ALL THOSE SIMILARLY SITUATED, AND STEPHEN M. NAGLER, A NEW JERSEY RESIDENT AND A MEMBER OF THE PUBLIC-AT-LARGE, ON BEHALF OF HIMSELF AND ALL THOSE SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,
v.
ROBERT L. CLIFFORD, COMMISSIONER OF THE NEW JERSEY DEPARTMENT OF INSTITUTIONS AND AGENCIES AND THE NEW JERSEY DEPARTMENT OF INSTITUTIONS AND AGENCIES, DEFENDANTS-RESPONDENTS



For affirmance as modified -- Chief Justice Hughes, Justices Mountain and Sullivan and Judge Conford. Concurring in part and dissenting in part -- Justice Pashman. The opinion of the Court was delivered by Hughes, C.J. Conford, P.J.A.D., Temporarily Assigned (concurring). Conford, P.J.A.D., concurring in the result. Pashman, J. (concurring and dissenting).

Hughes

[67 NJ Page 503] This case involves a broad challenge, on constitutional and other grounds, of disciplinary procedures in effect in the New Jersey State Prison system.*fn1 As part

of its responsibility for the administration of the penal and correctional institutions, the Department of Institutions and Agencies, a principal department in the Executive Branch of the state government, promulgates standards and rules embodying these procedures. The department comprises the Commissioner of the Department of Institutions and Agencies as department head and chief executive officer, the State Board of Institutional Trustees (having some policy, research and recommendatory but no administrative functions) and various divisions, officials and employees provided by law. N.J.S.A. 30:1-1 et seq. In the statutory scheme, basic administrative jurisdiction and responsibility inhere in the commissioner.*fn2

The complaining parties herein (plaintiffs) include a number of past and present State Prison inmates and also Mr. Stephen M. Nagler, a New Jersey resident, purporting to represent the public interest in the issue.*fn3 The New Jersey Association on Correction*fn4 has participated as amicus curiae, and later the Office of Inmate Advocacy of the newly created Department of the Public Advocate was also welcomed as an

amicus participant.*fn5 The defendants-respondents are the Commissioner of the Department of Institutions and Agencies,*fn6 and the Department itself as responsible for the challenged standards and rules. No question is raised as to the standing and interest of parties or amici.

The rather complicated factual and procedural history of the cause may be considered to have commenced on November 25, 1971, when a riot broke out in the New Jersey State Prison at Rahway, entailing violence including the holding of hostages, the infliction of personal injuries and extensive destruction of property. Fortunately, no deaths occurred, although such had been the case in other rebellions in prisons across the nation.*fn7 Upon the restoration of order at Rahway, a number of prisoners, including plaintiffs, suspected of active participation in the riot were temporarily removed from Rahway and transferred to the Youth Correction Center at Yardville, a minimum security facility, under the authority of N.J.S.A. 30:4-85.*fn8

Plaintiffs thereafter instituted in the United States District Court for the District of New Jersey an action under the Civil Rights Act, 28 U.S.C. § 1343 and 42 U.S.C. §§ 1983, 1985 and 1988, and the Declaratory Judgments Act, 28 U.S.C. §§ 2201 and 2202. Their complaint in that civil action, Avant v. Cahill, Docket No. 1883-71 (D.N.J. Nov. 3, 1972) alleged, in part, that their transfer from Rahway to Yardville was punitive in nature, and that their summary transfer and assignment to administrative segregation, without a hearing, offended their constitutional rights to due process. Shortly after their arrival at Yardville, plaintiffs were advised that as a result of their involvement in the riot at Rahway, disciplinary charges had been initiated against them, but the State voluntarily deferred holding administrative disciplinary hearings during the pendency of the Federal action. Evidentiary hearings in Avant v. Cahill were commenced by a District Court Judge with respect to the transfer and to the conditions under which plaintiffs were detained at Yardville. During the course of such hearings the Middlesex County Grand Jury indicted plaintiffs and others for various criminal offenses alleged to have occurred during the course of the Rahway riot.

Also during this period it was noted that the State of New Jersey (the department) had promulgated new rules with respect to prison disciplinary procedures effective January 24, 1972, and that such rules were purportedly adopted pursuant to statutory authority and were to be of statewide application. Inasmuch as plaintiffs' seeking of injunctive relief implicated the validity of such rules, this latter development withdrew from the single District Court Judge jurisdiction which could then be exercised federally only by a District Court of three judges, 28 U.S.C. § 2281, and that court was ultimately organized after the hearings were suspended by consent.

As recounted in the unpublished opinion of Judge Barlow for that three judge court (filed November 3, 1972),

subsequent developments were such as to alter this posture of the case:

During the time that the proceedings were thus suspended, five of the Rahway transferees -- two of them plaintiffs in this matter -- escaped from Yardville. The State of New Jersey, understandably concerned with the possibility of further escapes, immediately withdrew its voluntary deferment of the disciplinary proceedings. Proceedings were promptly held. As a result of the hearings, all or most of the plaintiffs here were found guilty of disciplinary infractions, were removed from Yardville to maximum security prisons in the state, and placed in administrative segregation at such institutions. [footnote omitted]

Another case in the Federal Court, Austell v. Yeager, Civil Action No. 44-72, had been consolidated with Avant v. Cahill, the facts in the Austell case described by Judge Barlow as being much simpler. Four plaintiffs, inmates of the New Jersey State Prison, were accused of instigating a work-stoppage; as a result they were placed in administrative segregation, without a hearing. Those plaintiffs alleged unconstitutional imposition upon them of punitive discipline. Their case being consolidated with Avant v. Cahill, the State voluntarily returned them to the general prison population pending determination of the Federal litigation.

Noting that plaintiffs challenged the State regulations on the basis of New Jersey law, including the alleged absence of sufficient statutory standards for delegation of authority to the Commissioner and other defects suggested therein, the Federal Court abstained until such matters could be passed upon by the New Jersey courts. It referred to the language of the United States Supreme Court in Reetz v. Bozanich, 397 U.S. 82, 90 S. Ct. 788, 25 L. Ed. 2d 68 (1970), restating that Court's holding in City of Meridian v. Southern Bell Tel. & Tel. Co., 358 U.S. 639, 79 S. Ct. 455, 3 L. Ed. 2d 562 (1959) as follows:

"Proper exercise of federal jurisdiction requires that controversies involving unsettled questions of state law be decided in the state tribunals preliminary to a federal court's consideration of the underlying

federal constitutional questions. * * * That is especially desirable where the questions of state law are enmeshed with federal questions. * * * Here, the state law problems are delicate ones, the resolution of which is not without substantial difficulty -- certainly for a federal court. * * * In such a case, when the state court's interpretation of the statute or evaluation of its validity under the state constitution may obviate any need to consider its validity under the Federal Constitution, the federal court should hold its hand, lest it render a constitutional decision unnecessarily." [397 U.S. at 85, 90 S. Ct. at 789-90, 25 L. Ed. 2d at 71]

Relief in the federal courts thus being withheld, the plaintiffs next brought an action by way of an appeal to our Appellate Division pursuant to R. 2:2-3(a)(2).*fn9 On February 27, 1973, defendants-respondents filed a "Statement of Items Comprising the Record on Appeal" which included, inter alia, a copy of the Standards of the Division of Correction and Parole of the New Jersey Department of Institutions and Agencies (then extant, being effective January 24, 1972) governing the Discipline Program area, the New Jersey State Prison Inmate Rule Book as revised in May, 1972, and a list of penalties which might be imposed by the institutional disciplinary committee.

On June 5, 1973, this Court ordered that this appeal be certified directly to it. R. 2:12-1. The case was first argued before this Court on September 25, 1973. There were changes in the membership of the Court in that year, and the case came on for reargument on November 21, 1973. In the course of that argument the Court requested counsel to provide it with information as to procedures in other state and federal prison systems, specifically as to whether confrontation and cross-examination of witnesses to a disciplinary infraction were permitted and their impact upon the operation of such systems. The result of such inquiry was embodied in a

report in a supplemental brief and appendix circulated to counsel and filed with the Court.

On June 26, 1974, the United States Supreme Court issued its significant opinion in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), enumerating the procedural due process rights of state prison inmates in prison disciplinary proceedings. Consequently on July 3, 1974, plaintiffs sought reargument, and the Court scheduled such argument for its Fall session.*fn10 Meanwhile, on July 16, 1974, the Attorney General, on behalf of defendants-respondents, advised the Clerk of the Court of relevant changes which had been made in the standards and rules during the pendency of the action, including publication in 6 N.J. Register 15 of some 185 pages of standards and rules, relating to inmates' rights and duties in state correctional institutions, for inclusion in the New Jersey Administrative Code at N.J.A.C. 10:35-1.1, et seq. The Department also issued its "Guidelines Regarding Application of Disciplinary Procedures as Required in Wolff v. McDonnell."*fn11 On September

16, 1974, the Court granted the motion of the Office of Inmate Advocacy to appear as amicus curiae. On October 3, 1974, the Department issued an Administrative Memorandum dealing, inter alia, with (a) an inmate's right to counsel-substitute and (b) the adjustment committee's discretion regarding the collection and presentation of evidence. The Inmate Advocate's Office of the Department of the Public Advocate filed its brief on October 29, 1974.

The case was argued for a third time on January 6, 1975, the Court urging the parties, as it had done before, to cooperate in any appropriate manner for the improvement of the institutional rules and standards, particularly since during the pendency of the federal and state court litigation it had come to appear, as pointed out in the brief of plaintiffs, that "the focus of both the Avant and Austell cases shifted to an attack upon the new procedures * * *."

The plaintiffs as well as the amici continue, of course, to urge that the delegation of authority to the Commissioner is defective insofar as it is not accompanied by sufficient legislative standards; that the promulgation of those rules failed to comply with the requirements of the New Jersey Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq.; that plaintiffs' rights under the First and Fourteenth Amendments are offended because the promulgation of such rules and regulations is accomplished without notice to the public, and that such substantive rules and regulations are unconstitutionally vague and deficient.

For the completion of the record it should be recalled that at the oral argument of January 6, 1975, the Office of the Attorney General, on behalf of the Department, had assured the Court that it was continuing its efforts to refine and improve its standards governing the inmate discipline programs and procedures. On March 20, 1975, it filed with the Court on appropriate notice to all parties, newly revised Standards effective March 24, 1975. These new standards elicited a mixed reception from the parties. Counsel for plaintiffs, though reserving all other points of argument, commended the improved procedures.*fn12 On the other hand the New Jersey Association on Correction was "distressed and dismayed" by this new development.*fn13

For the sake of finality and scope of decision, we shall attempt to weigh the current standards and rules against our concept of fairness, due process and constitutional right

with sufficient certainty to allay the fears expressed that the Department might one day (perhaps under different administration) discard the new reforms and resume older and allegedly improper procedures. In addition to what other courts have ruled and what we shall say here, there are other substantial assurances of the permanency of reform.

The National Advisory Commission on Criminal Justice Standards and Goals (Peterson Commission) in 1973 adjured the states and their correctional agencies to energize rules reflecting due process requirements with respect to discipline (with which those most recently adopted in New Jersey are generally compatible). National Advisory Commission on Criminal Justice Standards and Goals, Report on Corrections, Standard 2.12 at 51-52. See also, National Council on Crime and Delinquency, "A Model Act for the Protection of Rights of Prisoners," 18 Crime and Delinquency 1 (1972).

The United Nations Standard Minimum Rules for the Treatment of Prisoners (1974) suggests in Rule 35 that:

(1) Every prisoner on admission shall be provided with written information about the regulations governing the treatment of prisoners of his category, the disciplinary requirements of the institution, the authorized methods of seeking information and making complaints, and all such other matters as are necessary to enable him to understand both his rights and his obligations and to adapt himself to the life of the institution.

(2) If a prisoner is illiterate, the aforesaid information shall be conveyed to him orally.

As well, the New Jersey Legislature has recently expressed its insistence on fairness in the disciplinary process. On April 21, 1975, it adopted Senate Bill 762 (signed by the Governor on May 15, 1975 and now L. 1975, c. 95) to provide that:

1. Subject to guidelines set down by the Director of the Division of Correction and Parole, every State penal and correctional institution shall formally promulgate and publish rules and regulations

governing the rights, privileges, duties and obligations of the inmate population confined therein. Among other things, such publications shall set forth the authorized sanctions for various classes of violations of the aforesaid rules and regulations, and detail the procedures for imposing summary and administrative punishment as well as for appealing therefrom. No punishment may be meted out other than of the type and in the manner prescribed by such rules and regulations.

2. Upon the arrival of a prisoner in any correctional institution in the State, he shall be furnished with a copy of the institution's rules and regulations and shall have the meaning of the same explained to him. Spanish language copies of the institutional rules and regulations shall be provided to Spanish-speaking prisoners not conversant with the English language To the extent possible, foreign language speaking prisoners not sufficiently conversant with the English language shall also be provided with verbal explanations in their language of greatest facility of all institutional rules and regulations.

Portions of this legislation are duplicative of existing sections of the Standards recently adopted by the New Jersey Department which require that within two days of admission each inmate shall be given a copy of an inmate handbook (591.213) containing information relating to rights and privileges of offenders including the right to constitutional due process (591.273) and dealing with the disciplinary process in general (591.277), as well as other notice material. The sections of the Standards on the Inmate Discipline Program (250 et seq.) require that each inmate on arrival be advised in writing of the acts prohibited and types of disciplinary action which may be taken and other information concerning the disciplinary system (251.261). Inmates unable to read, write, speak or understand English have additional rights of communication with administrative personnel in their own language. The written information tendered to inmates lists prohibited acts (251.263), and specifies the range of sanctions for violations (251.264). Despite such redundancy, the adoption of the statute evinces a legislative intent auguring well for the permanency of reform.

Thus, though we mold the record to deal with the present standards of procedure, we have no doubt of the propriety

and permanent effect of the decisional reach of the opinions we here express,*fn14 as to deal satisfactorily by way of legal measurement with those standards previously in effect.

At the end of its long journey, then, the case has now been ably briefed and fully argued and is therefore ripe for decision.

We consider here issues involving not only the constitutional and other rights of prisoners but the preservation of societal order through enforcement of the law, including as integral to the latter the maintenance of security of the penal and correctional institutions of the state. We thus deal with imperatives concerned not only with individual right but with the peace and protection of the people, -- and so must view as relevant to each other concepts associated with the establishment of justice and the insuring of domestic tranquility, as did our forefathers in the Preamble to the Constitution itself.

These issues have not lacked importance since Americans chose long ago to be governed under constitution rather than other forms. But now, under the urgency and pressures of the times, they have reached a stage so crucial as to demand priority of attention from every branch of government. Horrendous conditions frequently incident to imprisonment, and abuses not only of constitutional right but basic elements of decency in the disciplinary process, have been increasingly directed to public attention. It has been said that, "[l]ife in present day American prisons is generally barren and futile, and at worst brutal and degrading." Gifis, "Decisionmaking in a Prison Community," 1974 Wis. L. Rev. 349, 350, n. 6. See Menninger, The Crime of Punishment [67 NJ Page 515] (1968); Hirschkop and Millemann, "The Unconstitutionality of Prison Life," 55 Va. L. Rev. 795 (1969). The blunting of societal conscience leads inevitably to eventual societal danger (Attica, The Official Report, supra) and appeals to that conscience have long been made.*fn15 This dichotomy, of the voice of conscience and the good sense of societal protection, no doubt accounts for the tendency of the law to progress in recent years from the judicial reticence expressed in McCloskey v. Maryland*fn16 to the explication of the reasons for caution in intervention of Procunier v. Martinez*fn17 to, finally, the confrontation by the Supreme

Court in Wolff, supra, with "important questions concerning the administration of a state prison" in respect of disciplinary procedures.

The issues in the present case come to us, under our constitutional system, in our role as final arbiter of the validity of state action, federal courts having abstained, as stated, pending the finality and scope of decision in the state courts, that being thought to have the potential of making unnecessary further consideration in the federal forum of federal constitutional issues involved. Reetz v. Bozanich, supra; see, Procunier v. Martinez, supra; Baggett v. Bullitt, 377 U.S. 360, 84 S. Ct. 1316, 12 L. Ed. 2d 377 (1964).

Considering first the substantive validity of the rules themselves (apart and aside from the challenged manner of their promulgation) the Court must be conscious of that "healthy sense of realism" mentioned by Mr. Justice Powell in Procunier v. Martinez, supra.

Turning away from any illusion that a court by judicial fiat can enforce the idealism of poets,*fn18 as resolutely we must remind ourselves of another important judicial constraint, against questioning the wisdom (as distinguished from measuring the constitutional validity) of the legislative decision to confer upon the Commissioner and Department the wide charter of management and control of the institutions embodied in N.J.S.A. 30:1-1 et seq., supra. The Court has frequently recognized this limitation. In Grand Union Co. v. Sills, 43 N.J. 390, 403 (1964), Justice Jacobs said:

As explicitly, the Court said in Thomas v. Kingsley, 43 N.J. 524 (1965) that:

We pause to state the scope of our role. We may not question the wisdom of this statute. The policy decision is the exclusive responsibility of the other branches of government. Our narrow authority is to determine whether the statute so plainly exceeds the constitutional power of the Legislature that we must adjudge it invalid. [at 530]

We repeat that whether Chapter 141 is otherwise equitable or inequitable, prudent or imprudent, is a matter to be decided exclusively by the legislative and executive branches. [at 534]

And similar expressions, ofttimes on the most controversial issues, leave no room for doubt upon the doctrine, respecting as it so clearly does the appropriate boundaries of action of separate branches of government.*fn19

The United States Supreme Court exercises similar restraint, asserting that it does not

sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs or social conditions. [ Griswold v. Connecticut, 381 U.S. 479, 482, 85 S. Ct. 1678, 1680, 14 L. Ed. 2d 510, 513 (1964)]

In further refinement of the issues, we are not concerned here (nor are the appellants, as emphasized in their brief) with disciplinary response to minor infractions, sometimes called "On-the-Spot-Correction" involving slight punishment such as verbal reprimand, temporary withdrawal of privileges or brief confinement to tier (Standards, 253.271),

but even in such case the new standards are protective.*fn20 We deal rather with disciplinary matters which may subject an individual to "grievous loss" by way of punishment for serious misconduct. It is the prospect of such "grievous loss" which quickens the right to constitutional due process by way of procedural protections. Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972); Goldberg v. Kelly, 397 U.S. 254, 263, 90 S. Ct. 1011, 1018, 25 L. Ed. 2d 287, 296 (1970); Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 168, 71 S. Ct. 624, 647, 95 L. Ed. 817, 852 (1951) (Frankfurter, J. concurring). The elements of such "grievous loss" are broadly conceded in the Standards under review, responsive to Wolff, supra.*fn21

Thus we need not pause here (in view of the Department's acknowledgment of its procedural due process obligations applicable to sanctions entailing "grievous loss") to reexamine older distinctions between "rights" and "privileges." Goldberg v. Kelly, supra; Shapiro v. Thompson, 394 U.S. 618, 627, n. 6, 89 S. Ct. 1322, 1327, 22 L. Ed. 2d 600, 611

(1969); Graham v. Richardson, 403 U.S. 365, 374, 91 S. Ct. 1848, 1853, 29 L. Ed. 2d 534, 543 (1971); Van Alstyne, "The Demise of the Right-Privilege Distinction in Constitutional Law," 81 Harv. L. Rev. 1439 (1968). Compare Carothers v. Follette, 314 F. Supp. 1014, 1026-27 (S.D.N.Y. 1970) with Hanvey v. Pinto, 441 F.2d 1154 (3rd Cir. 1971).

While we consider here procedural due process in its constitutional sense,*fn22 it should also be remembered that in the exercise by New Jersey courts of their function of review (as here) of the action of administrative agencies (such as the Department of Institutions and Agencies), we have not been satisfied with enforcement of naked constitutional right, but have gone further to strike down arbitrary action and administrative abuse and to insure procedural fairness in the administrative process. For instance, in requiring (on the latter extra-constitutional ground) that a parole board divulge its reasons for denial of parole, Justice Jacobs traced in Monks v. N.J. State Parole Board, 58 N.J. 238 (1971), the history and rationale of the exercise of this jurisdiction:

Our judicial system has historically been vested with the comprehensive prerogative writ jurisdiction which it inherited from the King's Bench; that jurisdiction has been frequently exercised in the supervision of inferior governmental tribunals including administrative agencies. See the very early cases of State v. Justices, &c., of Middlesex, 1 N.J.L. *244 (Sup. Ct. 1794), where Chief Justice Kinsey described the jurisdiction "as unlimited and universal as injustice and wrong can be" (at *248), and Ludlow v. Executors of Ludlow, 4 N.J.L. *387 (Sup. Ct. 1817), where Chief Justice Kirkpatrick described it as "very high and transcendent" (at *389); and also the more recent cases of Fischer v. Twp. of Bedminster, 5 N.J. 534 (1950), where Justice Heher noted that the "inherent power of

superintendence of inferior tribunals" (at 560) was secured by the 1844 Constitution and could not be impaired by the Legislature, and McKenna v. N.J. Highway Authority, supra, 19 N.J. 270, where Justice Burling noted that the prerogative writ jurisdiction included not only the review of "judicial actions" but also the superintendence of civil corporations, magistrates and "other public officers." (at 274). When our 1947 Constitution was prepared, pains were taken to insure not only that the court's prerogative writ jurisdiction would remain intact, but also that the manner of its exercise would be greatly simplified (art. VI, sec. 5, para. 4). See Ward v. Keenan, 3 N.J. 298, 303-308 (1949). The implementing court rules now provide an easy mode of review designed to insure procedural fairness in the administrative process and to curb administrative abuses. See In re Masiello, 25 N.J. 590, 603 (1958); Elizabeth Federal S. & L. Assn. v. Howell, 24 N.J. 488, 499 (1957).

In White v. Parole Board of State of N.J., 17 N.J. Super. 580 (App. Div. 1952), a modern counterpart of the ancient writ proceeding, the prisoner's attack on his parole board classification was rejected, but in his opinion for the Appellate Division Justice Brennan suggested that, constitutional compulsions aside, proper procedural safeguards on vital classification issues are called for by "considerations of simple fairness." 17 N.J. Super. at 586. So here, fairness and rightness clearly dictate the granting of the prisoner's request for a statement of reasons. That course as a general matter would serve the acknowledged interests of procedural fairness and would also serve as a suitable and significant discipline on the Board's exercise of its wide powers. It would in nowise curb the Board's discretion on the grant or denial of parole nor would it impair the scope and effect of its expertise. It is evident to us that such incidental administrative burdens as result would not be undue; * * *. [58 N.J. at 248-49]

Thus, in applying the requirements of procedural "due process" to our scrutiny of the standards under review, we use the term in that broader aspect, not confined entirely to constitutional right as such but going beyond. See, Note, "Decency and Fairness: An Emerging Judicial Role in Prison Reform," 57 Va. L. Rev. 841 (1971).

We turn to the elements of "due process" (in the broad sense we have described) as invoked in the case of "grievous loss" faced by those charged with serious prison violations, to determine whether such requirements are met in the departmental standards for dealing with disciplinary infractions. This suggests a basic inquiry (by way of analogy) as

it did in the case of parole revocation dealt with by the Supreme Court in Morrissey v. Brewer, supra, where it said:

Once it is determined that due process applies, the question remains what process is due. It has been said so often by this Court and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands. "[C]onsideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action." Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S. Ct. 1743, 1748, 6 L. Ed. 2d 1230, 1236 (1961). * * * Its flexibility is in its scope once it has been determined that some process is due; it is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure. [408 U.S. at 481, 92 S. Ct. at 2600, 33 L. Ed. 2d at 494]

We have no hesitancy in equating our problem here to the beginning proposition of Morrissey, supra, that "revocation of parole" (like prison discipline) "is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply." 408 U.S. at 480, 92 S. Ct. at 2600, 33 L. Ed. 2d at 494. Nor is the governmental stake in the revocation of parole (described in Morrissey as an "overwhelming interest in being able to return the individual to imprisonment without the burden of a new adversary criminal trial * * *" 408 U.S. at 483, 92 S. Ct. at 2601, 33 L. Ed. 2d at 495) much unlike the governmental imperative for the maintenance of institutional security and the punishment of disciplinary violations to that end. And just as in Morrissey it was thought that "* * * the State has no interest in revoking parole without some informal procedural guarantees," 408 U.S. at 483, 92 S. Ct. at 2601, 33 L. Ed. 2d at 495, we can conceive of no state interest in the imposition of prison discipline absent procedural fairness, however informal, in the accomplishment thereof.

Morrissey did not ignore, nor do we, the therapeutic effect of fair procedural justice, recognizable as such by the prison

offender as well as the accused parole violator. Morrissey asserted that:

The parolee is not the only one who has a stake in his conditional liberty. Society has a stake in whatever may be the chance of restoring him to normal and useful life within the law. Society thus has an interest in not having parole revoked [prison punishment imposed] because of erroneous information or because of an erroneous evaluation of the need * * *. And society has a further interest in treating the parolee [prison offender] with basic fairness: fair treatment * * * will enhance the chance of rehabilitation by avoiding reactions to arbitrariness.

Given these factors, most States have recognized that there is no interest on the part of the State in revoking parole [imposing prison punishment] without any procedural guarantees at all. What is needed is an informal hearing structured to assure that the finding * * * will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the * * * behavior.

We now turn to the nature of the process that is due, bearing in mind that the interest of both State and parolee [prison offender] will be furthered by an effective but informal hearing. [408 U.S. at 484, 485, 92 S. Ct. at 2601-02, 33 L. Ed. 2d at 496; ...


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