Liistro v. Robinson
Liistro v. Robinson
Opinion of the Court
Although these two eases are not, strictly speaking, companion cases, they reached our docket simultaneously, were argued at the same session and involve the same controlling question of law. We have, under the circumstances, decided to consider them in a single written opinion. Both are appeals from judgments of the Superior Court granting petitions for writs of habeas corpus and setting bail in each ease in the amount of $25,000 pending the appearance of the plaintiff parolees at full parole revocation hearings. The sole assignment of error in each case is that the court erred in concluding that the plaintiff was entitled to
The appeals raise the question as to whether the state violates the equal protection clause of the fourteenth amendment to the constitution of the United States by expressly extending the right to bail to alleged probation violators under § 53a-32
The facts in each case have been stipulated. Liistro, on March 7, 1972, was sentenced to two concurrent sentences, each for not less than two nor more than five years, for the crimes of robbery and aggravated assault. On July 6, 1973, he was paroled. On October 25, 1974, he was served with
Dowdy, on September 25, 1970, was sentenced to not less than five nor more than twelve years for robbery with violence. On April 30, 1974, he was paroled. On August 8,1974, he was arrested for violation of the statute concerning possession or sale of controlled substances. He was again arrested on October 21, 1974, this time for robbery in the first
Certification to appeal in both cases was granted pursuant to § 52-470 of the General Statutes. Following their respective hearings, parole for both plaintiffs was revoked and subsequently both have been reparoled. Despite the fact that neither plaintiff has an immediate interest in the outcome, we have decided to consider the defendants’ appeals. The single issue involved is one which is “capable of repetition, yet evading review.” Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S. Ct. 279, 55 L. Ed. 310; see Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201; Roe v. Wade, 410 U.S. 113, 125, 93 S. Ct. 705, 35 L. Ed. 2d 147. It directly affects the ongoing parole program of the state’s penal system, and could very well affect the plaintiffs
The plaintiffs claim, and the respective Superior Courts (J. Shea, J., and Alexander, J.) held, that since § 53a-32 of the General Statutes permits bail for alleged probation violators, bail must also be permitted for alleged parole violators in order to satisfy the requirements of the equal protection clause of the fourteenth amendment to the constitution of the United States. The court, in Liistro, relied upon the decision in Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656, and United States ex rel. Dereczynski v. Longo, 368 F. Sup. 682 (N.D. Ill., E.D.), affirmed without published opinion, 506 F.2d 1403 (7th Cir.). The court, in Dowdy, cited the above two cases but rested its analysis on the court’s rationale in Liistro.
We begin by observing that if a parolee has a right to bail while awaiting a parole revocation hearing, such a right must flow from the eighth or fourteenth amendments to the federal constitution, the state constitution, state statutes, or the common law. See In re Law, 10 Cal. 3d 21, 513 P.2d 621; Genung v. Nuckolls, 292 So. 2d 587 (Fla.); State v. Lawrence, 133 Vt. 330, 340 A.2d 67. There is no per se federal constitutional right to bail under these circumstances. See Argro v. United States, 505 F.2d 1374 (2d Cir.); Roberson v. Connecticut, 501 F.2d 305, 308 (2d Cir.); Hamilton v. New Mexico, 479 F.2d 343 (10th Cir.); Bloss v. Michigan, 421 F.2d 903, 905 (6th Cir.); In re Whitney, 421 F.2d 337 (1st Cir.); United States ex rel. Fink v.
As we have observed, §§ 54-126 and 54-127 of the General Statutes contain no express authorization for the release on bail of alleged parole violators. This court has held that the Superior Court possesses the common-law powers formerly exercised by the Court of King’s Bench to “admit to bail in all cases on consideration of the nature and circumstances of the case”; State v. Vaughan, supra, 461; but, as there noted, “[t]his power continues after
“Equal protection analysis must commence with a determination of whether a legislative classification . . . impinges upon a fundamental right. Where the legislation impinges upon a fundamental right ... it must be struck down unless justified by a compelling state interest. Dunn v. Blumstein, 405 U.S. 330, 335, 342, 92 S. Ct. 995, 31 L. Ed. 2d 274. Where the statute does not involve fundamental rights . . . the legislation will withstand constitutional attack if the distinction is founded on a rational basis. McGinnis v. Royster, 410 U.S. 263, 270, 93 S. Ct. 1055, 35 L. Ed. 2d 282 Dandridge v. Williams, 397 U.S. 471, 484, 485, 90 S. Ct. 1153, 25 L. Ed. 2d 491; F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S. Ct. 560, 64 L. Ed. 989; In re Application of Griffiths, 162 Conn. 249, 258, 294 A.2d 281, rev’d, 413 U.S. 717, 93 S. Ct. 2851, 37 L. Ed. 2d 910; see Douglas v. California, 372 U.S. 353, 358, 83 S. Ct. 814, 9 L. Ed. 2d 811.” Laden v. Warden, 169 Conn. 540, 542, 363 A.2d 1063. The
The plaintiffs maintain that under either the traditional “rational basis” test, or the more stringent “strict scrutiny” test, the state cannot justify providing hail for probationers while denying it to parolees. The cases they cite are not persuasive. In Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484, the United States Supreme Court held that a state could not revoke parole without affording the parolee minimal due process safeguards. The court extended these Morrissey due process safeguards in toto to the case of an alleged probation violator; Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656; see also State v. White, 169 Conn. 223, 239, 363 A.2d 143; and the plaintiffs make no claim that they were not afforded due process of law. In their briefs, both plaintiffs quote a footnote from Gagnon. The footnote is dropped from the following statement (p. 782) in the opinion: “Petitioner does not contend that there is any difference relevant to the guarantee of due process between the revocation of parole and the revocation of probation, nor do we perceive one.” (Emphasis supplied.) The footnote, obviously referring to due process rather than equal protection of rights, states: “Despite the undoubted minor differences between probation
To read Morrissey v. Brewer, supra, and Gagnon v. Scarpelli, supra, as requiring identical treatment of probationers and parolees when due process rights are not involved is, we believe, to read them too broadly. “We begin with the proposition that the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations. Cf. Mempa v. Rhay, 389 U.S. 128 . . . [88 S. Ct. 254, 19 L. Ed. 2d 336].” Morrissey v. Brewer, supra, 480. Further, the court, in Morrissey, clearly contemplated that a parolee would be confined from the time of his arrest as
“When a question of constitutionality is raised, courts must approach it with caution, examine it with care, and sustain the legislation unless its invalidity is clear [_citations omitted].” Snyder v.
Essentially the same equal protection claim now made by the plaintiffs was made in United States ex rel. Dereczynslzi v. Longo, 368 F. Sup. 682, 688, a decision by a judge of the United States District Court for the Northern District of Illinois, affirmed without published opinion, 506 F.2d 1403 (7th Cir.). The plaintiffs and the Superior Courts relied on the authority of that case. The judge in Dereczynski, however, did not specifically decide the constitutional issue, but, although noting that the parole statutes involved in that case were silent on the right to bail, whereas the probation statutes permitted bail, nevertheless construed the parole statutes to provide for bail. United States ex rel. Dereczynski v. Longo, supra, 688. We do not follow such a practice of judicial legislation but, rather, follow the principle that “ [w] e have no choice but to interpret the statutes as they are written.” Mancinone v. Warden, 162 Conn. 430, 439, 294 A.2d 564.
There is error in both cases, the judgments are set aside and both cases are remanded to the Superior Court for further proceedings in the light of this decision and the present factual situation as that court finds it to exist.
In this opinion Loiselle, Longo and Barber, Js., concurred.
Enacted as 1969 Public Act No. 828, § 32, and amended in, subsection (b) only by 1971 Public Act No. 871, § 12:
“[General Statutes, Rev. to 1975] Sec. 53a-32. violation op probation OR CONDITIONAL DISCHARGE: ARREST; PROCEDURE. (a) At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge, or may issue a notice to appear to answer to a charge of such violation, which notice shall be personally served upon the defendant. Any such warrant shall authorize all officers named therein to return the defendant to the custody of the court or to any suitable detention facility designated by the court. Any probation officer may arrest any defendant on probation without a warrant or may deputize any other officer with power to arrest to do so by giving him a written statement setting forth that the defendant has, in the judgment of the probation officer, violated the conditions of his probation. Such written statement, delivered with the defendant by the arresting officer to the official in charge of any correctional center or other place of detention, shall be sufficient warrant for the detention of the defendant. After making such an arrest, such probation officer shall' present to the detaining authorities a similar statement of the circumstances of violation. Provisions regarding release on bail of persons charged with a crime shall be applicable to any defendant arrested under the provisions of this section. Upon such arrest and detention, the probation officer shall immediately so notify the court or any judge thereof. Thereupon, or upon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. At such hearing the defendant shall be informed of the manner in which he is alleged to have violated the conditions of his probation or conditional discharge, shall be advised by the court that he has the right to retain
“(b) If such violation is established, the court may continue or revoke the sentence of probation or conditional release or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by reliable and probative evidence.”
“[General Statutes §§ 54-126 and 54-127. Rev. to 1975] Sec. 54-126. rules and regulations concerning parole. Said board of parole may establish such rules and regulations as it deems necessary, upon which such convict may go upon parole, and the panel for the particular ease may establish special provisions for the parole of a convict. The commissioner of correction shall enforce such rules, regulations and provisions and retake and reimprison any convict upon parole, for any reason that such panel, or the commissioner with the approval of the panel, deems sufficient; and the commissioner may detain any convict or inmate pending approval by the panel of such retaking or reimprisonment.”
“Sec. 54-127. rearrest. The request of said commissioner, or any officer of the department of correction so designated by the commissioner, or said board of parole or its chairman shall be sufficient warrant to authorize any officer of the department of correction, or any officer authorized by law to serve criminal process within this state, to return any convict or inmate on parole into actual custody; and any such officer, police officer, constable or sheriff shall arrest and hold any parolee or inmate when so requested, without any written warrant, and, for the performance of such duty, the officer performing the same, except officers of said department, shall be paid by the state, through the department of correction, such reasonable compensation as is provided by law for similar services in other cases.”
At least one ease has held that denial of bail to a parolee as a matter of policy violates the federal constitution. “This court has recently been admonished to give individual consideration to speedy trial applications and not attempt to do justice ‘in wholesale lots,’ Wallace v. Kern, 499 F.2d 1345 (2d Cir. 1974). The blanket poliey of the State Board of Parole, holding all suspected violators in custody until full determination of state criminal charges, is a way of doing injustice at wholesale. The federal constitution at least requires that every parole violator be treated as an individual, and not denied bail as a matter of policy. Cf. United States v. Hartford, 489 F.2d 652, 655-656 (5th Cir. 1974); United States v. Baker, 487 F.2d 360 (2d Cir. 1973).” United States ex rel. Napoli v. New York, 379 F. Sup. 603, 606 (E.D. N.Y).
General Statutes § 53a-32, entitled “Violation of probation or conditional discharge: Arrest; procedure,” provides in part that “[provisions regarding release on bail of persons charged with a crime shall be applicable to any defendant arrested under the provisions of this section.” See footnote 1 for the complete language.
See footnote 2.
This commission was provided by Special Act No. 351 of the 1963 Session of the General Assembly and Special Act No. 314 of the 1965 Special Session of the General Assembly. Section 54-114, the forerunner of § 53a-32, contains the identical bail provision as set forth in footnote 4, supra. The bail language, with no relevant recorded comment, was first adopted in Public Acts 1957, No. 287, § 2. This act ostensibly was passed merely to reinstate the power of arrest in probation officers, which had been repealed by mistake. It repealed § 3340d of the 1955 Supplement which contained no bail language and substituted the 1957 version which not only restored the probation officers’ power of arrest but also added the bail provision. See 7 Conn. H. Proc., pt. 4, 1957 Sess., pp. 1928-29; 7 Conn. S. Proc., pt. 4, 1957 Sess., p. 2101.
Dissenting Opinion
(dissenting). The equal protection clause of the fourteenth amendment to the United States constitution does not prohibit a state from granting privileges to specified classes of persons where sufficient reason exists; but where advantages are conferred upon some, the state must justify its denial to others by reference to a legitimate ground for distinction. Thompson v. Shapiro, 270
The United States Supreme Court has recently stated: “Despite the undoubted minor differences between probation and parole, the commentators have agreed that revocation of probation where sentence has been imposed previously is constitutionally indistinguishable from the revocation of parole. See, e.g., Van Dyke, Parole Revocation Hearings in California: The Right to Counsel, 59 Calif. L. Rev. 1215, 1241-1243 (1971); Sklar, Law and Practice in Probation and Parole Revocation Hearings, 55 J. Crim. L.C. & P.S. 175, 198 n.182 (1964).” (Emphasis supplied.) Gagnon v. Scarpelli, 411 U.S. 778, 782 n.3, 93 S. Ct. 1756, 36 L. Ed. 2d 656. The majority have restricted the meaning of “constitutionally” in that statement to “for due process purposes” by indicating that the court’s specific citations of authority in support of that statement are primarily concerned with due process rights. The use of the introductory signal, “See, e.g.,” preceding the authorities cited, however, signifies that
The majority opinion states that “substantial” differences exist between the status of probationers and parolees. It is noteworthy that the United States Supreme Court has expressly recognized the differences to be minor. The first “difference” pointed out by my brethren is that a parolee is not subject to judicial control whereas a probationer is. That is undoubtedly true. If bail were to be accorded to a parolee, however, the courts and not the parole board would make the relevant determination. The second “difference” suggested is that “ [p] robation is granted because the sentencing court is of the opinion that confinement is not necessary for the protection of the public and probation provides a better chance of rehabilitation, whereas parole is technically a custody status.” Despite the fact that a parolee is technically in the custody of the parole board, the paramount consideration in granting either parole or probation is the determination whether the parolee or probationer would constitute a threat to the welfare of society.
In Connecticut, strong similarities exist between the position of a parolee and that of a probationer. Bach has been convicted of a crime and is subject to the strict control of a governmental official. General Statutes §§ 53a-30 (a), 54-126. The parolee must always spend time in a correctional institution, while the probationer may be incarcerated prior to probation. General Statutes §§ 53a-28 (b) (c), 53a-39. Both are subject to the Uniform Act for Out-of-State Parolee Supervision. General Statutes §§ 54-132-54-138. If either is charged with violating parole or probation, the proof required to revoke is substantially less than that required in a criminal trial. State v. Roberson, 165 Conn. 73, 327 A.2d 556. During the period of parole or probation either may be completely discharged upon a showing of “good cause” or that he “will lead an orderly life.” General Statutes §§ 53a-33, 54-129.
“Red things may be associated by reason of their redness, with disregard of all other resemblances or of distinction. Such classification would be logically appropriate. Apply it further: make a rule of conduct depend upon it and distinguish in legislation between red-haired men and black-haired men and the classification would immediately be seen to be wrong; it would only have arbitrary relation to the purpose and province of legislation.” Tanner v. Little, 240 U.S. 369, 382, 36 S. Ct. 379, 60 L. Ed. 691. The fact that parole and probation systems have different administrators has only arbitrary relation to legislation which would allow bail to one group and deny it to another.
The primary purpose of bail is to ensure the future presence of the person at the time when his presence is required. See, e.g., 8 Am. Jur. 2d, Bail and Recognizance, § 4. A relevant consideration in deciding whether to grant bail, particularly in the case of post-conviction bail, is whether the freedom of the person convicted would constitute a threat to the welfare and safety of society. That determination is one for the trial court to make on the facts of each case. There are no differences between parolees and probationers which would justify the legislature in making the determination that society needs protection from parolees but not from probationers, when both have previously been considered “good risks.”
“Therefore, although neither the probationer nor the parolee has an Eighth Amendment right to bail pending revocation hearings, we find that if one group may be so privileged, then so must the other, and that the pertinent Illinois statutes so read,” said the court in the case of United States ex rel. Dereczynski v. Longo, 368 F. Sup. 682, 689, (N.D. Ill., E.D.) aff’d 506 F.2d 1403 (7th Cir.). That case presented facts almost identical to those of the present case. The pertinent Illinois statutes allowed bail for probationers but were silent as to the right to bail of parolees. Relying upon Gagnon v. Scarpelli, supra, the court held (p. 688): “We are mindful of maintaining proper respect for the legislature as a coordinate branch of government, and proper judicial restraint requires a presumption of constitutionality of . . . [the parole
It is not unreasonable, considering the presumption of constitutionality and the lack of an express parolee bail provision, to construe § 5á-127 to be the analogue of § 53a-32. I would, therefore, find no error in the trial courts’ decisions.
General Statutes § 53a-29 states that a court may sentence a person to probation if it believes that “(1) Present or extended institutional confinement of the defendant is not necessary for the protection of the public; (2) the defendant is in need of guidance,
General Statutes § 54-125 indicates that the parole board may grant parole if “(1) it appears from all available information, including such reports from the commissioner of correction as such panel may require, that there is reasonable probability that such inmate will live and remain at liberty without violating the law and (2) such release is not incompatible with the welfare of society.”
“Fictions of 'custody’ and the like that have been created by statute or court decisions cannot change the reality of a parolee’s conditional freedom and cannot affect the constitutional protections surrounding his interest in that conditional freedom.” Rose v. Haskins, 388 F.2d 91, 98 n.2 (6th Cir.) (opinion of Celebrezze, J., dissenting).
Reference
- Full Case Name
- Mathias Liistro v. Carl Robinson, Warden, Connecticut Correctional Institution, Somers; Clifton Dowdy v. Richard Wezowicz, Warden, Community Correctional Center, Hartford
- Cited By
- 56 cases
- Status
- Published