Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Illinois Parole Violators Enforce Revocation Due Process Rights with Consent Decree

by John E. Dannenberg

The class of all Cook County, Illinois parole violators was granted a preliminary injunction by the U.S. District Court, Northern District, Eastern Division, ordering the Illinois Department of Corrections (IDOC) to conduct preliminary parole revocation hearings within ten days after arrest, at or near the site of the alleged violation. The injunction halted IDOC?s practice of taking newly-arrested violators first to the Cook County Jail, then to Stateville prison and finally to the prison from which they were paroled ? all before giving them their legally-required preliminary revocation hearing.

The effect of IDOC?s practice had been to unconstitutionally delay due process as well as to simply deny it by removing violators from the area where potentially-helpful witnesses were located. A consent decree in the case has since been preliminarily approved.

Charles King and seven other named defendants filed suit under 42 U.S.C. § 1983 seeking future injunctive relief for themselves and all other similarly situated accused parole violators who were spirited away from the Cook County Jail within ten days of their arrests and sent to remote prisons, where their preliminary parole revocation hearings were often not held for many months. Because they sought only future injunctive relief and not release from custody, § 1983 and not habeas corpus was the instrument of choice. (See, e.g., Wilkinson v. Dotson, 125 S.Ct. 1242 (2005); PLN, July 2005, p.28). [§ 1983 is the proper vehicle when challenging the procedure, but not the fact, of incarceration].

Plaintiffs? attorneys, Thomas and Kevin Peters, sought relief for the class of all similarly-affected Cook County parolees. It is estimated that over 500 parole violators? rights had been thus abused by IDOC over the previous two years. The class was defined as future Cook County parole violators who are (a) taken into custody at the Cook County Jail, (b) transported from the jail within 10 days without having had a preliminary parole revocation hearing, (c) transferred to IDOC, and (d) held without a preliminary parole revocation hearing for more than 60 days.

In opposing the complaint, IDOC argued that the principles of Gerstein v. Pugh, 420 U.S. 103 (1975) should prevail over those of Morrissey v. Brewer, 408 U.S. 471 (1972), which were cited by the plaintiff parole violators. Gerstein dealt with Fourth Amendment rights to a ?prompt? probable cause hearing after a warrantless arrest, whereas Morrissey dealt with Fourteenth Amendment due process rights to protect the liberty interest in parole. Morrissey established parole violators? rights to a preliminary hearing located reasonably near the place of the alleged violation and as promptly as convenient after arrest.

The district court, in ruling on the plaintiffs? motion for a preliminary injunction, distinguished Gerstein and Morrissey hearings. Morrissey hearings require greater due process protections, including the opportunity to call witnesses, cross examine adverse witnesses and present evidence, in addition to the right to counsel and the right to personally appear. Moreover, Gerstein and Morrissey hearings are distinguishable on their putative results: Whereas a finding of probable cause to detain in Gerstein does not prevent release on bail, such a finding in a Morrissey hearing ?extinguishes a parolee?s right to ... bail.?

In sum, the district court was persuaded that IDOC?s policy of not providing timely preliminary parole revocation hearings within ten days while the arrestees were still at the Cook County Jail violated their Fourteenth Amendment due process rights under Morrissey. Further, the court noted that ?parolees have a limited constitutional right to confront and cross examine persons who have provided testimony or evidence which could be used to revoke parole.?

Rather than take the case to trial, IDOC agreed to enter into a consent decree. The consent decree includes the following provisions: 1) Accused parole violators shall be transferred to the IDOC?s Northern Reception and Classification Center at Stateville within five calendar days after a parole violation warrant is issued, and a preliminary parole revocation hearing shall be held within 10 business days of imprisonment. If such transfers to the IDOC are not possible, a preliminary revocation hearing shall be held at the applicable Cook County facility within 10 business days of imprisonment. 2) All such revocation hearings shall include due process protections as set forth under the Morrissey standard, including an investigation of the police report and an interview with the arresting officer (a ?King Investigation?). The results of the King Investigation shall be disclosed at the revocation hearing, and the accused parole violator has the right to cross examine the investigator, the right to present written evidence and the right to counsel. 3) Accused parole violators will be notified of the written findings of the hearing officer within 24 hours. If a finding of probable cause is made, the parole violator may be transferred to any IDOC facility.

Additionally, the John Howard Association (JHA) was appointed to monitor the consent decree for a period of one year, with the monitoring fees to be paid by IDOC ($150/hour for JHA Executive Director Malcolm C. Young, $125/hour for JHA Director Charles A. Fasano, and $100/hour for other JHA staff members). The consent decree also specified that IDOC would pay plaintiffs? counsel attorney fees in the amount of $25,987.50, calculated at $135/hour; any final attorney fees in excess of those specified in the decree will be billed at the end of the monitoring period.

The proposed consent decree was preliminarily approved by the district court on November 2, 2006, and notification of the class members was ordered. A fairness hearing is scheduled for January 19, 2007. See: King v. Walker, USDC ND Ill., Eastern Div., Case No. 1:06-CV-00204.

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

King v. Walker