of its reasons for denial of parole. 569 F.2d at 800-01. The parole board may not consider prior uncounseled convictions in its parole release decision, Strader v. Troy, 571 F.2d 1263 (4th Cir. 1978), although it can consider prior criminal records. Wyatt v. United States Parole Commission, 571 F.2d 1089 (9th Cir. 1977). A state statute which denied credit for parole or probation time against a prison sentence did not violate due process. Hall v. Bostic, 529 F.2d 990 (4th Cir. 1975), cert. denied, 425 U.S. 954, 96 S.Ct. 1733, 48 L. Ed. 2d 199 (1976). In United States ex rel. Richerson v. Wolff, 525 F.2d 797, 800 (7th Cir. 1975), cert. denied, 425 U.S. 914, 96 S.Ct. 1511, 47 L. Ed. 2d 764 (1976), the court held that due process requires, at the minimum, that reasons be given for denial of parole release. However, the court further held that "a brief statement of the grounds for denial" is sufficient. In Richers on the grounds given were that the grant of parole would deprecate the seriousness of the offense and would not deter others from committing such crimes. The prisoner had been told that it was the seriousness of his commission of the crime which was delaying parole, not the seriousness of attempted murder generally, and he was told to continue his "excellent institutional adjustment and well conceived parole plans." State law required the board to deny parole if release would deprecate the seriousness of the prisoner's offense or promote disrespect for the law. The court found the board's statement of reasons satisfied the minimum due process requirements and affirmed the dismissal of the petition. In Bailey v. Holley, 530 F.2d 169 (7th Cir. 1976), cert. denied, 429 U.S. 845, 97 S. Ct. 125, 50 L. Ed. 2d 115, the court held that Richerson would not be applied retroactively. Childs v. United States Board of Parole, 511 F.2d 1270 (D.C. Cir. 1974) found that the board's exercise of its discretion in the parole release decision resulted in the prisoner either suffering a "grievous loss" or gaining a conditional liberty. The prisoner's interest was substantial; therefore, the parole decision was required to be guided by minimal standards of due process. This required that the applicant be given a written statement of the reasons for denial of his application. Robinson v. Benson, 570 F.2d 920 (10th Cir. 1978) considered rescission of federal parole which had been approved prior to the petitioner's release. While residing in a federal correctional institution awaiting his release on parole petitioner was arrested on state charges of attempting to pass a bad check. His parole grant was rescinded although the state charges were dismissed due to the inability to locate essential witnesses. The court found that since his parole date had been set the petitioner had more than a mere anticipation of freedom; he had a concrete expectation contingent upon his good behavior. Therefore, he was entitled to the minimum due process procedures outlined in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2693, 41 L. Ed. 2d 935 (1974), for prison disciplinary proceedings fór major misconduct. However, since the petitioner was not yet enjoying his liberty he was not entitled to the type of due process hearing to which parolees are entitled prior to revocation of parole as prescribed in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L. Ed. 2d 484 (1972). 192 The court found that the petitioner was not denied due process when his parole was rescinded after dismissal of the state charge, when he was denied appointment of counsel, when he was not permitted to confront and cross-examine adverse witnesses, and apparently when he was permitted to call only his wife as a witness in his own behalf. The court stated: "[W]e hold that the opportunity to call and cross-examine witnesses is not absolutely essential in a parole rescission proceeding to satisfy due process. 570 F.2d at 923. 7. Parole and Probation Revocation Hearings a. Due Process Requirements Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L. Ed. 2d 484 (1972) held that the due process clause of the Fourteenth Amendment applies to parole revocation proceedings. Both habeas petitioners had been arrested on parole violator warrants and committed to custody until parole was revoked. 192. See Section VIII, K,7 infra. The Court first noted that revocation of parole is not part of a criminal prosecution and the full panoply of rights afforded a defendant in such a proceeding does not apply to parole revocations. "Whether any procedural protections are due depends on the extent to which . [the parolees] will be 'condemned to suffer grievous loss.'"' 408 U.S. at 481, 92 S.Ct. at 2600, 33 L. Ed. 2d at 494.193 The Court found that the termination of a parolee's liberty does inflict a grievous loss and requires due process proceedings. The Court then recognized two important stages in the typical process of parole revocation--the initial arrest of the parolee and the decision whether to hold him for a final parole revocation decision, and the second stage, the final revocation decision. 408 U.S. at 485, 92 S. Ct. at 2602, 33 L. Ed. 2d at 496. The Court found that at the initial arrest stage due process requires that a prompt194 preliminary hearing before someone not directly involved in the case195 be conducted at, or reasonably near the place of the alleged parole violation or arrest 196 to determine whether there is probable cause or reasonable grounds to believe that the arrested parolee has committed acts which would constitute a violation of 193. But see cases discussed in Section VIII, K, 1 supra requiring consideration of whether the plaintiff has been deprived of life, liberty or property prior to consideration of grievous loss. 194. See discussion of Moody v. Daggett, infra, Section VIII, K, 7, b. 195. The preliminary hearing must be conducted before someone who is independent but not necessarily a judicial officer. 408 U.S. at 485-86, 92 S.Ct. at 2602, 33 L. Ed. 2d at 497. 196. No prejudice was shown by the failure to conduct the preliminary hearing near the place of the alleged violation. The hearing was conducted near the place of the arrest and the probationer was released on bond from the time of his arrest until the final hearing. Kartman v. Parratt, 535 F.2d 450 (8th Cir. 1976). In Mack v. McCune, 551 F.2d 251 (10th Cir. 1977), the court found that the parolee, with assistance of counsel, had waived his right to a local hearing. 197 parole conditions. The parolee should be given notice that the hearing will take place, that its purpose is to determine whether there is probable cause to believe he has violated parole, and the notice should describe the parole violations alleged. 198 408 U.S. at 486-87, 92 S.Ct. at 2603, 33 L. Ed. 2d at 497. 197. Where the parolee has been convicted and incarcerated on a subsequent offense there is no need for the preliminary hearing, Moody v. Daggett, 429 U.S. 78, 86 n. 7, 97 S.Ct. 274, 278 n. 7, 50 L.Ed.2d 236, 243 n. 7. The subsequent conviction gives the parole authority probable cause. However, a bond forfeiture is not a conviction for purposes of determining whether the parolee is entitled to a preliminary hearing, Wolfel v. Sanborn, 555 F.2d 583 (6th Cir. 1977). Where one condition of parole prohibited the parolee from leaving the state without permission and he was arrested in another state, no preliminary probable cause hearing was required. Stidham v. Wyrick, 567 F.2d 836 (8th Cir. 1977). 198. In Kartman v. Parratt, 535 F.2d 450 (8th Cir. 1976), the court found that the description of one of the three charges was impermissibly vague but the error was harmless beyond a reasonable doubt. In U.S. v. Evers, 534 F.2d 1186 (5th Cir. 1976), cert. denied, 429 U.S. 1024, 97 S.Ct. 644, 50 L.Ed.2d 626, the court found the notice was sufficient in stating that the basis of revocation was "arrest and possession of marihuana on November 24, 1974." However, in United States ex rel. Carson v. Taylor, 540 F.2d 1156, 1159-60 (2d Cir. 1976), the petitioner was denied due process where revocation was based partially on grounds not included in the notice. The court observed that the board had been aware of the violations well in advance of the hearing and could have given written notice that they would be considered. However, the court stated: We do not intend this decision to be viewed as 540 F.2d at 1160. At the preliminary hearing "the parolee may appear and speak in his own behalf; he may bring letters, documents, or individuals who can give relevant information to the hearing officer.' 408 U.S. at 487, 92 S.Ct. at 2603, 33 L. Ed. 2d at 497. He may confront and crossexamine witnesses unless the hearing officer determines that the informant would be subjected to risk of harm if his identity were disclosed. 199 The hearing officer must make "a summary, or digest, of what occurs at the hearing in terms of the responses of the parolee and the substance of the documents or evidence given in support of parole revocation and of the parolee's position." 408 U.S. at 487, 92 S. Ct. at 2603, 33 L. Ed. 2d at 498. Although the officer is not required to make formal findings of fact or conclusions of law, he should state the reasons for his determination and indicate on which evidence he relied. The officer's determination that there is probable cause to hold the parolee for the final decision of the parole board justifies the parolee's continued detention and return to the correctional institution pending the final decision. 200 Prior to the final revocation decision the parolee is entitled to a prompt 201 second hearing at which contested facts will be determined and consideration given to whether the facts warrant revocation. The parolee has the right to be heard, to show that he did not violate the conditions of parole, or that revocation is not warranted because of mitigating circumstances. Evidence may be considered which is not admissible in an adversary trial. The Court stated: "Obviously a parolee cannot relitigate issues determined against him in other forums, as in the situation presented when the revocation is based on conviction of another crime." 408 U.S. at 490, 92 S. Ct. at 2605, 33 L. Ed. 2d at 499. 199. No error was made in refusing to call the two parole officers who prepared the parole violation report which was considered as evidence at the hearing, without finding that an informant would be subjected to risk of harm. Stidham v. Wyrick, 567 F.2d 836, 838 (8th Cir. 1977). 200. 408 U.S. at 487, 92 S.Ct. at 2603, 33 L. Ed. 2d at 498. The opinion does not discuss consideration of release on bond. 201. A delay of two months is not unreasonable. at 488, 92 S.Ct. at 2604, 33 L. Ed. 2d at 498. 408 U.S. |