Hyser v. Reed

318 F.2d 225, 115 U.S. App. D.C. 254

Opinions

BURGER, Circuit Judge, with whom WILBUR K. MILLER, WASHINGTON, DANAHER and BASTIAN, Circuit Judges, concur.

These cases arise from parole revocation proceedings and have been consolidated for en banc consideration by the court inasmuch as the basic questions are common to all the appeals. Each appellant was ably represented by court appointed counsel in the District Court and in this court.

Hyser v. Reed, No. 16716

Hyser was convicted of violation of the National Motor Vehicle Theft Act and the Marihuana Tax Act and was sentenced to a term of ten years imprisonment, on December 17, 1952. He was mandatorily released on March 5, 1959 from the United States Penitentiary, Leavenworth, Kansas. On November 18, 1959, he was arrested as a mandatory release violator and returned to Leavenworth Penitentiary. He had a hearing before a member of the United States Parole Board on January 12, 1960, but was not afforded the opportunity to be represented by counsel. His mandatory release was revoked on February 26, 1960. On May 10, 1961, following our holding in Glenn v. Reed, 110 U.S.App.D.C. 85, 289 F.2d 462 (-April 7, 1961), he was offered a new hearing with counsel present. He did not accept the offer and filed a declaratory judgment action seeking his release. Summary judgment was granted in favor of the Parole Board, and Hyser appealed. The record does not reveal what condition of parole Hyser was found to have violated, nor does Hyser’s complaint contain allegations denying violation of a condition of parole.

Jatoft v. Chappell, No. 16806

Jatoft was convicted of kidnapping and transporting a stolen vehicle in interstate commerce and was sentenced to a term of twenty years imprisonment, on June 27, 1947. He was released on parole, June 6,1956, from the United States Penitentiary, Atlanta, Georgia. On February 25, 1959, he was arrested on a parole violator warrant and on March 9, 1959, had a hearing before a member of the Parole Board at the Federal Detention Headquarters in New York City. At the hearing Jatoft was not advised of his right to have counsel and did not have the assistance of counsel. His parole was revoked on May 5, 1959. The violations of parole conditions upon which the Board relied to revoke Jatoft’s parole were association with one Brando, a person with a criminal record, and involvement with Brando in a scheme to defraud a department store by returning stolen goods for cash refunds. Before a representative of the Board, Jatoft admitted returning merchandise to the department store which involved the forging of names on credit slips. He denied knowledge of Brando’s criminal record. On May 15, 1961, after the decision in Glenn v. Reed, supra, he was offered a new hearing with the right to retain counsel, but he refused the offer and instituted a declaratory judgment action seeking his release. Summary judgment was granted in favor of the Parole Board and Jatoft appealed.

Whitling v. Reed, No. 16811

On June 18, 1957, Whitling was committed to the custody of the Attorney General under the provisions of the Federal Youth Corrections Act, 18 U.S.C. § 5010(b) (1958). He was released on parole on June 20, 1959. On June 13, 1960, he was arrested on a parole violator warrant. He was afforded a hearing by the United States Board of Parole, on August 24, 1960, at the Federal Reformatory at Chillicothe, Ohio, but did not have assistance of counsel nor was he advised of his right to retain counsel. His parole was revoked on October 5, 1960. Appellant filed a declaratory judgment action in the District Court on March 1, 1961. Subsequent to Glenn v. Reed, supra, the Parole Board offered him a new revocation hearing with the right to retain counsel, which appellant refused. Summary judgment was granted in favor of the Parole Board in the declaratory judgment action and Whitling appealed. Whitling’s complaint does not contain allegations denying violation of condition of parole. Subsequent to judgment, however, Whitling asked leave to file an amended complaint which alleged that he had admitted violation of parole only as a result of coercion and threats, apparently allegedly made by representatives of the Parole Board. The District Court denied leave to file the amended complaint.

Thompson v. United States Board of Parole, No. 16873

Thompson was convicted of homicide by a General Court Martial while he was in service on June 22, 1945, ánd was sentenced to life imprisonment. Subsequently the Army jCIemency Board reduced the sentence to a term of twenty-eight years. He was released on parole on May 31, 1955, and was authorized to reside in the Bridgeport, Connecticut, district. On July 12, 1960, Thompson left his authorized parole district without permission. The same day he was arrested on a concealed weapons charge by New Jersey state authorities. He was tried and convicted of the weapons offense in a New Jersey state court and served a two month jail sentence. A parole violator warrant was issued for the retaking of appellant on August 25,1960, and he was arrested under this warrant on November 10, 1960, upon his release from a New Jersey state jail, and was returned to the Federal Penitentiary at Lewisburg, Pennsylvania. Thompson admitted violation of parole. He was afforded a hearing by a member of the Parole Board on February 7, 1961, but was not afforded the assistance of counsel nor advised of his right to counsel. His parole was revoked on March 14, 1961. On May 3, 1962, after Reed v. Butterworth, 111 U.S.App.D.C. 365, 297 F.2d 776 (Nov. 9, 1961), he was offered a new hearing with the right to retain counsel and present voluntary witnesses, which he refused. Appellant filed a declaratory judgment action seeking his release and summary judgment was granted in favor of the Parole Board. Thompson appealed.

Neiswenter v. Chappell, No. 17041

Neiswenter was convicted of mail theft and forgery and was sentenced to a term of ten years imprisonment, on July 17, 1953. He was mandatorily released on October 23, 1959. On September 18, 1960, he was arrested on a mandatory release violator warrant and was returned to the Federal Penitentiary at Lewis-burg, Pennsylvania. On September 30, 1960, he was interviewed by a case-worker at the Penitentiary, and was informed of the charges against him, which included theft, loss of employment due to absenteeism, leaving his authorized parole district without permission, contributing to the delinquency of a minor, breaking, entering and larceny. He admitted all of the charges except the charge of theft. He had a hearing before a member of the Parole Board on November 7, 1960, but was not given the opportunity to retain counsel. His mandatory release was revoked on January 6, 1961. Neiswenter filed a declaratory judgment action in the District Court seeking his release from custody on March 30, 1961. On May 2, 1961, after Glenn v. Reed, supra, the Board offered a new hearing with the opportunity to retain counsel, which he declined. On December 1, 1961, after Reed v. Butter-worth, supra, he was offered another hearing at which he would have been allowed to retain counsel and present witnesses in his behalf who would appear voluntarily. He declined the offer. Summary judgment was granted in favor of the Board of Parole in the declaratory judgment action on January 3, 1962, and Neiswenter appealed.

Fitzpatrick v. Chappell, No. 17042

Fitzpatrick was convicted of impersonating an Army officer and obtaining money under false pretenses in violation of 18 U.S.C. § 912 and transporting forged checks in interstate commerce and was sentenced to a total term of ten years imprisonment on April 16, 1951. He was released on parole on October 15, 1954. On October 27, 1957, he was arrested on a parole violator warrant and returned to the Federal Penitentiary at Atlanta, Georgia. On December 14, 1959, he was interviewed by the Chief of Classification and Parole of the Atlanta Penitentiary, was informed of the charges against him, which included failure to maintain contact with the parole office, leaving his authorized parole district without permission and issuing bad checks. He admitted that he violated the conditions of his parole. On February 12, 1960, he had a hearing before a member of the Board of Parole, at which time he was not represented by counsel nor advised of his right to retain counsel. His parole was revoked on May 2, 1960. Fitzpatrick instituted a declaratory judgment action in the District Court seeking his. release from custody, on May 10, 1961. A part of the relief requested was a declaration that his sentence expired April 16, 1961, and as a result he would not be subject to rearrest as a parole violator if he was released because of improper hearing by the Parole Board. On May 16 and June 26, 1961, after Glenn v. Reed, supra, he was offered a new hearing by the Board at which time he could be represented by retained counsel. He refused the offer. On November 30, 1961, after Reed v. Butterworth, supra, he was offered a new hearing at which he would have been entitled to be represented by retained counsel and to present witnesses who would testify in his behalf voluntarily. He refused the offer. On January 3, 1962, summary judgment was granted in favor of the Parole Board in the declaratory judgment action and Fitzpatrick appealed.

Williamson v. Chappell, No. 17043

Williamson was sentenced, on September 17, 1953, to a term of ten years in the custody of the Attorney General. On January 28, 1960, he was released on parole from the Federal Correctional Institution at La Tuna, Texas. On November 5,1960, a parole violator warrant was issued for his arrest and he was retaken on January 4, 1961, and was confined in the Leavenworth Penitentiary. On January 13, 1961, he was interviewed by a parole officer and informed of the charges against him, which included leaving his authorized parole district without permission and issuing worthless checks. lie admitted leaving/' the district without permission and de-'¡ nied issuing the worthless checks. On January 28,1961, Williamson had a hearing before a member of the Board of Parole but was not advised of his right to counsel. Parole was revoked on March 10, 1961. On May 5, 1961, after Glenn v. Reed, supra, he was offered a new hearing with the right to retain counsel, which he refused. He filed a declaratory judgment action in the District Court seeking his release. On December 1, 1961, after Reed v. Butterworth, supra, he was offered a new hearing at which he could be represented by retained counsel and could present witnesses in his own behalf who would appear voluntarily. He refused the offer. Summary judgment was granted in favor of the Parole Board in the declaratory judgment action and Williamson appealed.

Jamison v. Chappell, No. 17059

Jamison was convicted July 21, 1945, of transporting a stolen motor vehicle in interstate commerce and was sentenced to a total term of fifteen years imprisonment. On January 26, 1951, he was released on parole. On January 25, 1957, a parole violator warrant was issued for his arrest and he was retaken on April 1, 1957, and delivered into the custody of the warden of the Federal Penitentiary at Leavenworth, Kansas. He was afforded a hearing before a member of the Board of Parole. Although Jamison had retained an attorney to represent him at the hearing, the Board member refused to allow counsel to appear. Jami-son’s wife who came to the hearing to testify was not allowed to do so. The charges of violation of conditions of parole included leaving his authorized parole district without permission, associating with persons having a criminal background, passing worthless checks, burglary and robbery. At the hearing Jamison denied all charges against him. On June 5, 1957, his parole was revoked. On May 9, 1961, after Glenn v. Reed, supra, Jamison was offered a new hearing at which he could be represented by retained counsel. He refused the offer apparently on the ground that he was indigent at that time and could not pay his own counsel fee. On May 22, 1961, he filed a declaratory judgment action in the District Court seeking release. As a part of the relief, he requested a declaration that if he is released from custody because of the improper hearing that he not be subject to arrest on a violator warrant because his sentence time has run. On December 1, 1961, after Reed v. Butterworth, supra, he was offered a new hearing where he could be represented by retained counsel and present witnesses in his own behalf who agreed to appear voluntarily. He refused the offer. At the hearing on motions for summary judgment the District Court ordered the Board of Parole to hold the hearing which Jamison had refused. The hearing was held before a member of the Board of Parole in Washington, D. C. Jamison was represented at the hearing by counsel appointed by the District Court in the declaratory judgment action, though the appointment did not include this duty. On March 2, 1962, Jamison’s parole was revoked. On March 8, 1962, summary judgment was granted in favor of the Parole Board and Jamison appealed.

Proceedings Before The Board

In none of these cases were the appellants advised at the time of the hearing that they had a right to have retained counsel present at the revocation hearing, and counsel did not appear in their behalf. Nor were any of the appellants informed that they could present the testimony of voluntary witnesses, and such testimony was not presented. However as we have noted all these hearings occurred prior to our decisions in Glenn v. Reed¹ or Reed v. Butterworth.² Subsequent to the Glenn decision, in April, 1961, each appellant was advised of his right to have retained counsel present at a revocation hearing and a new hearing was offered, and in December 1961, following the Butterworth holding, each appellant except Thompson ³ was advised that at a new hearing testimony of voluntary witnesses could be presented. Each appellant declined to sign statements accepting the proffered hearing, but elected instead to file suit for declaratory judgment in the District Court seeking immediate release from confinement. Each appeal is from summary judgment granted in favor of the government.

Contentions on Appeal

The claims for release by these appellants are predicated on the ground that the revocation steps taken by the United States Parole Board were void and illegal. In essence appellants claim they are entitled to a revocation hearing before the Board which includes

(a) appointed counsel for indigents,

(b) specification of charges,

(c) confrontation and cross examination of the Board’s informants,

(d) right to examine confidential reports of the Board,

(e) compulsory process to obtain witnesses, and

(f) a hearing held in the district where the alleged parole violation occurred.

In essence it is urged that except for a jury, parolees must be given virtually the full due process safeguards of a criminal prosecution before the Board can revoke parole. The due process argument rests on the contention that because the Board has discretionary power to deny parolees credit toward their sentences represented by the time spent on parstle, it deprives them of liberty in a constitutional sense. It is clear that a citizen must be given a criminal trial to ascertain his guilt of a crime in the first instance before a penalty may be imposed, but the question before us is: Does constitutional due process require the Parole Board to conduct adversary hearings in the nature of a non-jury criminal trial in order to revoke parole of a person whose guilt of crime has already been determined in a criminal trial ? Appellants’ contentions require us to decide whether the procedural safeguards urged are commanded (a) by the statutes creating the Parole Board, (b) by the Administrative Procedure Act, (c) by the Constitution.

Background of Parole System

In order to set the appellants’ claims in context, it is necessary to outline the procedures presently followed by the Board and to keep in mind the underlying purposes of parole. The United States Parole Board was established by Congress to administer the parole system as a part of the program to rehábilitate federal prisoners and restore them to useful membership in society. 18 U.S.C. §§ 4201-4207.⁴ The rehabilitation program of the Bureau of Prisons includes vocational training, education and the operation of industries by Federal Prison Industries, Inc., in which useful skills can be learned and developed and the prisoners benefited from participation in productive activity for which they are paid. 18 U.S.C. §§ 4121-4128. Inducements to rehabilitation are also held out in the form of deductions from the sentence based on work record and general behavior. 18 U.S.C. §§ 4161-4166. At a point the prisoner may be afforded an opportunity to serve part of the sentence outside the prison on parole — conditional release under supervision and restrictions but with liberty not otherwise impaired. 18 U.S.C. §§ 4164, 4203. Violation of a condition of parole can lead to arrest, return to prison and revocation of parole. 18 U.S.C. §§ 4205-4207. Thus a federal prisoner may come in contact with the exercise of the Board’s discretionary powers on two occasions: first when parole is granted and second when and if parole is revoked. While on parole, he is in frequent contact with the Board’s field representative, the parole officer.

The general category of parolees can be broken down into two distinct groups: mandatory releasees and parolees. Mandatory releasees are those prisoners who have served their sentences less a credit for good behavior, 18 U.S.C. § 4161, and for industrial or employment performance “good time,” 18 U.S.C. § 4162. When a prisoner has served his sentence Jess his good time credit he is entitled, <as a matter of right, to be released. 18 U.S.C. § 4163. This type of prisoner release is based on an arithmetical computation; there is no discretion in the Bureau of Prisons to deny release.⁵ A mandatory releasee does not achieve absolute freedom upon release from prison. For a period of time equal to his good time allowance less 180 days, the mandatory releasee is treated as if he were released as a parolee and is subject to supervision by the United States Parole Board. 18 U.S.C. § 4164 (1958 ed. Supp. II).

Unlike a mandatory releasee, a parolee gains his conditional freedom as the result of the exercise of discretion by the Parole Board. After a federal prisoner has served a prescribed portion of his sentence, 18 U.S.C. §§ 4202, 4208, he may apply for parole. 18 U.S.C. § 4203; Parole Board Directive No. 1, § 2.12, 27 Fed.Reg. 8488 (August 24, 1962). Each applicant for parole is given a hearing before a member of the Board or an examiner, at the federal prison where he is incarcerated. If he is serving a term of more than one year he is entitled to appear at the hearing in person. Parole Board Directive No. 1, § 2.15, supra at 8489. The hearing officer is required to make a report of the interview and a recommendation to the Board. In reaching its decision the Board considers the report, the recommendation of the examiner and all information concerning the prisoner, gathered from recommendations, if any, of the sentencing judge, from the Federal Bureau of Investigation, prison and social agencies. Parole Board Directive No. 1, § 2.14, supra at 8488. On the basis of this information the Board is empowered to apply a broad congressional standard. The Board may grant parole when it is of the opinion “there is a reasonable probability that such prisoner will live and remain at liberty without violating the laws” and upon “such terms and conditions * * * as the Board shall prescribe.” 18 U.S.C. § 4203. Implicit in the term “reasonable probability” is a recognition that the Board will err sometimes in granting conditional release with the result that the prisoner must be returned to custody to serve his unexpired term. The Board's' discretion to grant, deny or revoke parole is broad. Congress has granted the Board power to revoke a conditional release upon determining that a condition of the parole has been violated.⁶

This first contact between a prisoner and the Board which leads either to the initial grant of or denial of parole is not in issue in this case. We mention it only to indicate the procedure that is followed by the Board. At this stage the contact between prisoner and Board includes none of the incidents or procedural safeguards which attend a criminal trial because the Board, at this stage, must evaluate the prisoner’s record as a whole to determine whether he is a good risk for parole; if he is thought to be a good risk, he is released on parole.

The relationship of the parolee and the Board beginning with this period of conditional release may be described as the supervisory or regulatory period. During the period of parole, the prisoner on conditional liberty is subject to the supervision of the Board acting through a federal parole officer. 18 U.S.C. § 3655; Dept, of Justice Order 271-62, § 0.126 (b), 27 Fed. Reg. 5172 (June 1, 1962). The premise of this phase of the rehabilitation process is that the prisoner has reached a point where further incarceration would not yield greater rehabilitation and the prisoner has progressed to a stage where he is believed to be ready to return to society subject to minimal supervision. If a parolee thereafter meets all the conditions of his parole he gains absolute freedom on the date when his sentence would have terminated. In other words, the parole time is credited against his total sentence in much the same manner as good time allowances are given to prisoners. However, if a parolee violates a condition of parole the conditional release may be revoked.

It is the revocation stage with which we are concerned in these appeals. If the Board finds that a parolee has violated a condition of his parole, it may revoke parole and return the parole violator to prison where he will “be required to serve all or any part of the remainder of the term for which he was sentenced.” 18 U.S.C. § 4207. Stated in another way, the Board has the power to return the parole violator to prison and refuse to allow him credit toward the service of his sentence for the time spent on parole.

I

The Parole Statute

Appellants recognize that the parole statute, 18 U.S.C. §§ 4201-4210, is silent on the procedural safeguards which they now claim. They do not take the position that the words “opportunity to appear before the Board” in 18 U.S.C. § 4207, comprehend all of the claimed safeguards. We have construed those words to permit parolees to be represented by retained counsel, Glenn v. Reed, supra, and to present voluntary witnesses, Reed v. Butterworth, supra.

From our review of the nature and purposes of parole it can be seen that appellants are neither totally free men who are being proceeded against by the government for commission of a crime, nor are they prisoners being disciplined within the walls of a federal penitentiary. They stand somewhere between these two. A paroled prisoner can hardly be regarded as a “free” man; he has already lost his freedom by due process of law and, while paroled, he is still a convicted prisoner whose tentatively assumed progress towards rehabilitation is in a sense being “field tested.” Thus it is hardly helpful to compare his rights in that posture with his rights before he was duly convicted.

The legal proceeding most comparable to revocation of parole is revocation of probation. The Supreme Court has considered claims by probationers that they be accorded full dress hearings by the District Court before revocation and in each instance the Court has rejected the claim. Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266 (1932). In Escoe v. Zerbst, 295 U.S. 490, 493, 55 S.Ct. 818, 819, 79 L.Ed. 1566 (1935) Justice Cardozo, speaking for the Court, said:

“Clearly the end and aim of an appearance before the court must be to enable an accused probationer to explain away the accusation. * * This does not mean that he may insist upon a trial in any strict or formal sense. * * * It does mean that there shall be an inquiry so fitted in its range to the needs of the occasion as to justify the conclusion that discretion has not been abused by the failure of the inquisitor to carry the probe deeper.”

In Williams v. People of State of New York, 337 U.S. 241, 250, 69 S.Ct. 1079, 1084, 93 L.Ed. 1337 (1949), the Court (per Justice Black) dealing with the use by a sentencing judge of probation reports in making the choice between a death sentence and life imprisonment said:

“We must recognize that most of the information now relied upon by judges to guide them in the intelligent imposition of sentences would be unavailable if the information were restricted to that given in open court by witnesses subject to cross-examination. * * *

“The type and extent of this information [probation reports] make totally impractical if not impossible open court testimony with cross-examination. Such a procedure could endlessly delay criminal administration in a retrial of collateral issues. * * * The due process clause should not be treated as a device for freezing the evidential procedure of sentencing in the mold of trial procedure.”

See Williams v. State of Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959).

While there are distinguishing factors between probation and parole, the underlying purposes are closely allied. In each the entity which grants is the entity which is empowered to revoke. each situation the revoking authority is being exercised pursuant to explicit statutory authority.⁷ Moreover that power is being exercised by a person or persons experienced in sifting and weighing evidence and evaluating the factors involved in the grant or revocation of conditional freedom. Congress, which is the source of both of these penological devices has given no indication that the revocation of parole should be more difficult or procedurally different than revocation of probation.

The Administrative Procedure Act

Appellants next urge that various sections of the Administrative Procedure Act, 5 U.S.C. §§ 1004-1006, apply to revocation proceedings before the Board and as such guarantee to them the various safeguards which were denied them. In order for these sections of the Administrative Procedure Act to be applicable to the Parole Board, the Board must fit the description of 5 U.S.C. § 1004: “In every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing * *

These words limit coverage of the Administrative Procedure Act to agencies which are required by their own statute of creation to adjudicate, after hearing. Our conception of the functions of the Board, discussed in this opinion, leads us, to the conclusion that the Board does not adjudicate, nor is it required to hold hearings, in the sense that those words are employed in the Administrative Procedure Act.⁸

Suffice it to point out with regard to appellants’ claim to appointed counsel, that the Administrative Procedure Act, 5 U.S.C. § 1005(a), if it were held to apply, provides only that a person compelled to appear before an agency “shall be accorded the right to be accompanied, represented, and advised by counsel or, if permitted by the agency, by other qualified representative.” Thus the Administrative Procedure Act does not require appointment of counsel for an indigent. The parole statute, 18 U.S.C. § 4207, construed by this court in Glenn v. Reed, supra, provides for the right to be represented by retained counsel when appearing before the Board on revocation of parole.

The Constitutional Claims

In view of the sweeping constitutional contentions for an adversary type hearing we will deal with each point separately.⁹ Preliminarily, we note that the various safeguards to which the appellants say they are entitled are essentially those established by the Sixth Amendment. The appellants do not explicitly urge, nor would we accept the contention that the Sixth Amendment applies to parole revocation proceedings. The Sixth Amendment by its terms governs only “criminal prosecutions.” Counselman v. Hitchcock, 142 U.S. 547, 563, 12 S.Ct. 195, 35 L.Ed. 1110 (1892). Compare Levine v. United States, 362 U.S. 610, 616, 80 S.Ct. 1038, 4 L.Ed.2d 989 (1960) and Strickland v. United States, 114 F.2d 556 (4th Cir. 1940). But appellants urge that the various elements of the Sixth Amendment relating to venue, notice of charge, confrontation, compulsory process for witnesses and right to counsel, are included in the due process restrictions of the Fifth Amendment as they apply to actions ot the Parole Board.

The Bureau of Prisons and the Parole Board operate from the basic premise that prisoners placed in their custody are to be rehabilitated and restored to useful lives as soon as in the Board’s judgment that transition can be safely made. This is plainly what Congress intends. Thus there is a genuine identity of interest if not purpose in the prisoner’s desire to be released and the; Board’s policy to grant release as soon as possible. Here there is not the attitude of adverse, conflicting objectives as between the parolee and the Board inherent between prosecution and defense in a criminal case. Here we do not! have pursuer and quarry but a relationship partaking of parens, patriae. In a real sense the Parole Board in revoking parole occupies the role of parent withdrawing a privilege from an errant child not as punishment but for misuse of the privilege. “Probation workers making reports of their investigations have not been trained to prosecute but to aid offenders.” Williams v. People of State of New York, 337 U.S. at 249, 69 S.Ct. at 1084. Perhaps the more correct view is that retributive justice is satisfied by the conviction whereas the sentence is a process of treatment. It is important to bear this in mind in determining whether there would be any gain to the parolee or to society in taking steps urged by the dissenting opinions which tend to equate parole processes with criminal prosecutions.

Appointed Counsel: Appellants concede that Congress has not authorized the Parole Board to appoint counsel for indigent parolees appearing before it and that Congress has not empowered the federal courts to make such appointments. The decisions of this court which hold that the parolee must be advised of his right to have retained counsel present are based on judicial construction of the words “opportunity to appear before the Board” in 18 U.S.C. § 4207. Glenn v. Reed, 110 U.S.App.D.C. 85, 289 F.2d 462 (1961); Robbins v. Reed, 106 U.S.App.D.C. 51, 269 F.2d 242 (1959). Cf. Moore v. Reid, 100 U.S.App.D.C. 373, 246 F.2d 654 (1957); Fleming v. Tate, 81 U.S. App.D.C. 205, 156 F.2d 848, affirming In re Tate, 63 F.Supp. 961 (D.D.C. 1946). They do not stand for the proposition that the presence of counsel is mandatory whenever a parolee appears before the Board or that parole revocation proceedings were to become adversary proceedings.

In Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962), the Supreme Court did not place an indigent’s right to counsel and a free transcript in judicial proceedings on any command of the Constitution, but more narrowly on its interpretation of a statute, 28 U.S.C. § 1915. No case has yet held that an interested party in an administrative or regulatory proceeding is entitled to be furnished with counsel if he cannot afford one of his own choice. I • We hold due process does not require that indigent parolees be provided with appointed counsel when they appear before the Parole Board in revocation proceedings.

Confrontation and Cross Examination: Appellants claim that due process in the context of a parole revocation requires that they be allowed to cross-examine the informants who supplied the Board with information on which revocation is based. The parole revocation process is neither a “criminal prosecution” nor an adversary proceeding in the usual sense of that term. The primary issue before the Board is: Has the parolee violated a condition of his parole? Even if this determination is adverse to the parolee the Board has discretion to continue his parole notwithstanding a violation. In accord with this generally accepted view of the nature of parole as an integral part of the rehabilitation process, we hold that due process does not require the Board to allow cross-examination of its sources of information in parole revocation proceedings. See Williams v. New York, supra.

Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959), relied on by appellants, does not require that the Board produce its informants for cross-examination by a prisoner charged with parole violation. The Greene case held that absent clear- congressional authorization the Department of Defense could not establish a security clearance program for employees of private employers engaged in performing government contracts where 'security clearance and hence continued employment could be denied without hearing and opportunity to confront and cross-examine informants relied upon to deny the clearance. No constitutional issue was decided; the Court simply held that neither Congress nor the President had authorized the Defense Department to establish a program which did not provide for confrontation and cross-examination of persons whose testimony was relied upon by the government. Earlier, in Escoe v. Zerbst, 295 U.S. 490, 493, 55 S.Ct. 818, 79 L.Ed. 1566 (1935), the Court had held that the requirement of a hearing in revocation of probation was not rooted in the Constitution but upon what Congress provided. Cf. Hannah v. Larche, 363 U.S. , 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960).

The relatively narrow thrust of the Greene holding was underscored in the later case of Cafeteria and Restaurant Workers v. McElroy, 367 U.S. 886, 894, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961) , where the Court pointed out

“The Fifth Amendment does not require a trial-type hearing in every conceivable case of government impairment of private interest. * * The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation. Federal Communications Comm’n v. WJR, 337 U.S. 265, 275-276 [69 S.Ct. 1097, 93 L.Ed. 1353] ; Hannah v. Larche, 363 U.S. 420, 440, 442 [80 S.Ct. 1502, 4 L.Ed.2d 1307]; Hagar v. Reclamation District No. 108, 111 U.S. 701, 708-709 [4 S.Ct. 663, 28 L.Ed. 569]. ‘“[D]ue process,” unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.’ It is ‘compounded of history, reason, the past course of decisions * * *.’ Joint Anti-Fascist [Refugee] Comm. v. McGrath, 341 U.S. 123, 162-163 [71 S. Ct. 624, 95 L.Ed. 817] (concurring opinion).

“As these and other cases make clear, consideration 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. Where it has been possible to characterize that private interest (perhaps in oversimplification) as a mere privilege subject to the Executive’s plenary power, it has traditionally been held that notice and hearing are not constitutionally required. Oceanic Stream Navigation Co. v. Stranahan, 214 U.S. 320, 340-343 [29 S.Ct. 671, 53 L.Ed. 1013]; State ex rel. Knauff v. Shaughnessy, 338 U.S. 537 [70 S.Ct. 309, 94 L.Ed. 317]; Jay v. Boyd, 351 U.S. 345, 354-358 [76 S.Ct. 919, 100 L.Ed. 1242]; cf. Buttfield v. Stranahan, 192 U.S. 470, 497 [24 S.Ct. 349, 48 L.Ed. 525], (Footnote omitted.)”

Without indulging in semantical exercises as to whether the operation of the parole system gives rise to “rights” or “privileges” in the parolee, we should note that there are obvious factual distinctions between attempted governmental action which destroyed the means of livelihood of an engineer employed by a private contractor and governmental relations with a convicted prisoner released subject to certain conditions before completing a sentence imposed after full due process criminal trial. The very; conditions imposed — which are not challenged here — could not be imposed on a; person not convicted and under sentence. The United States cannot constitutionally impair a citizen’s right to leave the District of Columbia or frequent pool halls, but it can do so to Hyser and the other appellants, whose freedoms have been substantially abridged in accord with the requirements of due process.

Access to Board Files: Appellants claim that they are constitutionally entitled to examine the confidential reports made by Parole Officers and the Board’s staff. In light of our view of the purpose of parole and of the revocation process, we hold that appellants are not entitled to discovery of the Board’s files. See Williams v. People of State of New York, 337 U.S. 241, 250, 69 S.Ct. 1079, 93 L.Ed. 1337.

Right to compulsory process: Appellants’ next contention is that due process requires that they be afforded compulsory process to procure witnesses. They concede, as they must, that Congress has not invested the Parole Board with subpoena power and that this important power is not an inherent attribute of agency authority. We cannot read it into the statute.¹⁰ As to the constitutional claim, it is sufficient to note that the Parole Board is not bound by the rules of evidence in considering information relating to parole violation. It is the established practice of the Board to consider all communications, i. e., affidavits, letters, telegrams, prison records, even though hearsay in the strict evidentiary sense, in reaching a conclusion. This flexibility affords greater protection to alleged violators than would be allowed in an adversary proceeding with conventional rules of evidence. It permits the Board to consider all relevant information which may be helpful' to the parolee/ To hold that compulsory process is "constitutionally required would imply that revocation hearings are comparable to criminal prosecutions rather than to administrative processes within the framework of prisoner rehabilitation and penal administration. Our treatment and directives relating to the preliminary interview later in this opinion will ameliorate some of the handicaps which confront a parolee upon his arrest ifor parole violation.

As a practical matter we think that in eases where the parolee disputes the acts or conduct relied upon as a parole violation, the question whether there is evidence to support Parole Board action can in the extreme cases be dealt with on judicial review notwithstanding the relatively narrow scope of that review. Moore v. Reid, 100 U.S.App.D.C. 373, 246 F.2d 654 (1957).

Obviously resort to the courts will be minimized if before revoking parole the Board discloses to the parolee the maximum amount of information concerning parole violation and the informants relied upon. It must be remembered that cases coming before the courts for review of Board action will involve relatively narrow issues. It can be assumed that where Board action rests on a criminal conviction while on parole, judicial review will be sought infrequently and relief will be granted in only extraordinary circumstances, if ever. This same situation is likely to prevail where the parolee admits the parole violation. Judicial review of Board action with respect to a finding of parole violation is admittedly narrow and limited. Even more limited is judicial review of the Board’s judgment as to what it should do about the violation. Once the violation is established or admitted, the exercise of discretion in determining whether or not parole should be revoked, represents a very high form of expert regulatory and administrative judgment and the expert appraisal of the Parole Board in this area can be regarded as almost unreviewable.

II

Viewing the contentions collectively, there emerges a common thread of complaint that a parolee may be arrested for parole violation and returned to a prison far from his authorized place of residence where, in most cases, the alleged violation took place. Distance alone, it is argued, makes it difficult if not impossible to collect information or produce witnesses favorable to the parolee. Additionally it is argued that if there is a substantial time lapse between the arrest and the appearance before the Board, this adds another obstacle to securing information by the parolee. We therefore turn to an examination of the administrative steps leading to and following an arrest for parole violation.

Information concerning alleged parole violations may come from various sources including private citizens, police, members of the parolee’s family. Compare Parole Board Directive § 2.14, supra at 8488. It may come to the Parole Board, the Attorney General or the Parole Officer. From whatever source, the information leads to an administrative arrest warrant only if it is brought to the notice of the Board by an application for a warrant as provided by Congress. It seems clear that the Board has no inherent power to issue warrants or effect an arrest for retaking and that its powers derive from Congress.¹¹ To implement the statutory authority, the Board has adopted a regulation which provides: “If a parolee or mandatory releasee violates any of the conditions under which he shall have been released, and satisfactory evidence is presented to the Board, a warrant may be issued and the offender returned to an institution.” Parole Board Directive No. 1, § 2.35, 27 Fed.Reg. 8490 (Aug. 24, 1962). See also id. § 2.37 (warrant shall be issued only by the Board or a member thereof.)

It seems clear from the statute and the Board’s rules that the administrative arrest warrant can issue only on “satisfactory evidence” i. e., on information on which the Board is prepared to rely for that purpose. It is equally clear that in issuing a warrant the Board or its member makes only a tentative or preliminary evaluation finding to the effect that reasonable grounds or cause appears to justify a belief that the parole conditions have been violated.¹² This phase can be analogized to the processes by which a criminal arrest warrant issues although Congress evinced no intent to require precisely the same formalities and safeguards as to those contained in the Constitution for criminal arrests. We are not advised whether the warrant recites the specific parole violations charged. It appears that a conclusory statement of violation of conditions of parole may be what is now provided.

When a parolee is taken into custody under a Board warrant he is technically in the custody of the Attorney General and is detained temporarily in an available jail or detention institution and thereafter transported to a federal penitentiary.¹³ The length of this temporary incarceration near the place of retaking appears to be determined at least in part by the availability of suitable transportation and custodial officers who transport the parolee. After he is returned to the federal prison the Parole Board grants him an “opportunity to appear.” See Glenn v. Reed, supra, and Reed v. Butter-worth, supra.

The steps surrounding the retaking of a parolee may be summarized as follows:

1. Receipt and preliminary evaluation of information of alleged parole violation.

2. Application to Board for administrative warrant for retaking and issuance of the warrant.

3. Service of warrant, retaking of parolee and temporary detention in available detention quarters.

4. Transportation of parolee to a federal prison.

5. Preliminary interview with parolee by Board representative.

6. Hearing before Board on alleged violation of parole conditions.

Fundamentally the Parole Board’s interest and its objective are to release a prisoner as soon as he is a good parole risk and to allow him to remain at liberty under supervision as long as he is a good risk. However, in providing for a warrant type of procedure for retaking parolees thought to have violated parole conditions, Congress has recognized the need for some minimal procedural safeguards to prevent or reduce the consequences of the Board’s receiving erroneous information or of erroneous action by the Board’s representatives.¹⁴

We have noted that the parole of prisoners is one of the chief tools in the rehabilitation process. The procedures for terminating parole are simply an acknowledgement that in granting parole some errors will be made; and the errant parolee must be retaken for his own good as well as that of society. The more relaxed are the standards for parole release the greater will be the proportion of such “errors.” Congress had a dual purpose in setting up a statutory provision for the issuance of an administrative arrest warrant for parolees: (1) provide a means to retake the parolee and to pursue inquiry into the alleged revocation, and (2)" provide minimum safeguards for the parolee. The Board recognized this in its regulations making the issuance of a warrant depend upon the existence of “satisfactory evidence.” Parole Board Directive No. 1, § 2.35, 27 Fed.Reg. 8490 (Aug. 24, 1962).

It is therefore_nlain f.hatjarole cannot be revoked arbitrarily, as for example to supply the prison with a parolee who is a trained medical technician. Revocation must be for “cause.” “Satisfactory evidence” of parole violation must appear. The basis for Board action in revoking parole must have a rational and legitimate relationship to whether the parolee is a good parole risk. What constitutes such cause is left by Congress to the discretion of the Board and judicial review of its exercise is very limited. The functions of the Parole Board involve the application of blended concepts of criminology, penology, and psychology, and if the doctrine of “administrative expertise” should carry weight anywhere it should do so in this area. It is worth repeating that the Board which revokes parole is the same Board which grants parole; its whole orientation is to release prisoners and to keep them at liberty.

The entire statutory scheme of parole and the formalizing of the revocation procedures show that Congress intended and the Board has undertaken to establish a retaking process based on 'concepts of basic fairness. It is the responsibility of the Board — and the courts — to give meaning to this intent. The historic purpose of an arrest warrant in the criminal law context was to interpose between the government and the citizen a neutral official charged with protecting basic rights. This evolved from centuries of experience which demonstrated the need for a neutral evaluation of the reason for an arrest. Since reliable report, even if hearsay, will support a criminal arrest or search warrant against an individual or his property, a fortiori it will support an administrative warrant to retake a convicted prisoner conditionally released by the Parole Board. Compare Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), with cases cited in note 12, supra. See Abel v. United States, 362 U.S. 217, 230-234, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). The parolee at liberty on a conditional release is obviously not in the same posture as an ordinary citizen who has neither charge nor conviction outstanding, but it does not follow that the parolee is without any rights for Congress has given him certain protections.¹⁵

There are three critical stages in the chain of events from the time of a report that a parolee is violating his parole to an ultimate recommitment to serve the remainder of his sentence. The first stage is that some responsible official must evaluate the report of violation and make a tentative estimate which is then reviewed by a Board member before he issues a warrant to retake. Congress has contemplated this procedure and the Board’s regulations implement the statute adequately if, as we understand it to be the case, (a) the application for a warrant is made in written form reciting the alleged violations of the parolee which constitute the “satisfactory evidence” for retaking; and (b) that one or more members of the Board exercise independent discretion in determining that the application recites facts, which if true, afford cause or reasonable grounds for a belief that conditions of parole have been violated. The arrest warrant should contain, or have appended to it the application reciting, the reasons why parole revocation is sought with reasonable specificity to inform the parolee of the alleged grounds and enable him to meet and answer them if he so elects. It may be that this information is given to the parolee under existing procedures.

The second critical stage is the actual arrest and retaking of the parolee. This event may occur hundreds or in some cases even thousands of miles from the federal prison to which he is to be returned. In a case where he is arrested for departing from his assigned district the arrest may occur at a point far distant from his residence.

The Board has wisely provided for a preliminary interview which in context is a first step toward a tentative evaluation of what the parolee wishes to offer by way of explanation of his conduct. Yle conclude that this preliminary “interview” must, in order to meet standards of fairness inherent in the congressional. scheme of parole, be conducted at or reasonably near the place where the alleged parole violation occurred, or the place of the violation chiefly relied upon, and as promptly as is convenient after the arrest while the information is likely to be fresh and the sources are available. Cf. 18 U.S.C. § 3653, supra n. 7.¹⁶

We bold that the preliminary interview should, while informal, be in the nature of a preliminary inquiry held before a person designated by the Board, under 18 U.S.C. § 4207, e. g., the District Probation Officer, at which time the parolee may produce voluntary witnesses to give information relevant to the alleged parole violation specified in the warrant or application for warrant. The designated officer shall hear such persons as may be produced by the parolee in his behalf and record a summary or digest of their statements which bear on the alleged violation.¹⁷ The summary of the interviews and any other material submitted shall be sent forthwith by the local officer to the Parole Board, or to persons the Board may designate, to determine whether there was satisfactory evidence for the issuance of the warrant. If the Board finds satisfactory evidence of parole violation the parolee then may be returned to a federal penitentiary to await final consideration of the proposed revocation of parole. However, if the Board finds there is an absence of satis-’ factory evidence of parole violation the parolee must be discharged forthwith and restored to his conditional freedom.¹⁸

We do not contemplate that the preliminary interview, or indeed the subsequent appearance before the Board, if there be such, be converted into an adversary proceeding in any sense. Our purpose is no more than to implement what we think Congress meant to provide. While the retaking is not “an arrest within the meaning of the constitutional provisions,” Story v. Rives, 68 App.D.C. 325, 97 F.2d 182 (1938), the use of the terms “warrant” and “arrest” by Congress and vesting in the Board the power to issue the warrant satisfy us that something more than casual processes or varying improvisations was intended. Moreover we think this interpretation will tend to simplify the entire process for the supervising parole officer, for the Board and the Attorney General as well as for the courts.

While we provide this means to assemble and record information favorable to the alleged parole violator at the time and place it is most likely to be available, we do not intend to preclude the tender of additional information to the Parole Board before the revocation is finally acted upon. Reed v. Butterworth, supra. See also Glenn v. Reed, supra. Nor do we intend to preclude the Board from affording the parolee his opportunity to appear before the Board, at or near the place where the alleged violation occurred, whenever the Board finds that process feasible.

To summarize this phase of the holding we emphasize that if the parolee elects to present evidence contesting the alleged parole violation and evidence bearing on his standing as a good parole risk at the time of the preliminary interview, thus combining the return on the warrant with his “opportunity to appear” under § 4207, the Board may in its discretion dispense with a hearing at the prison. However, this would not preelude the Board from considering affidavits or letters submitted after the preliminary interview in support of the parolee’s contentions.

To meet these standards, which seem at once implicit in the statutory scheme and essential to implement the congressional purpose, the Regulations of the Board must, to the extent necessary, be amended by the Board to provide the following steps :¹⁹

1. An administrative arrest warrant under 18 U.S.C. § 4205 (1958) shall be issued only upon a written application to the Board reciting the facts believed to constitute a violation of a condition or conditions of parole. The Board may in its discretion prescribe the form of such application and designate the persons or officers who may sign it. See Parole Board Directive No. 1, § 2.35, supra, at 8490. If the application for the warrant is based on an alleged parole violation other than a conviction for a violation of law, the application shall contain a statement of the grounds with such specificity as to events, places, dates and names as will enable the parolee to meet the claim that he has violated a condition of parole.

2. The warrant shall be issued if one or more members of the Board believe that the facts recited in the application, if true, amount to satisfactory evidence that parole conditions have been violated. Parole Board Directive No. 1, § 2.37, supra at 8490.

3. The warrant shall be signed by one or more members of the Board and shall contain a statement of the alleged violations of conditions of parole or alternatively a copy of the application for the warrant may be attached to the warrant. It shall also recite that an officer designated by the Board will interview persons designated by the parolee and record a summary or digest of their statements bearing on the alleged parole violation.

4. Upon executing the warrant by taking the parolee into custody, the parolee shall be lodged in a suitable place of detention as near as reasonably possible to the place of parole violation. See Parole Board Directive No. 1, § 2.38, supra at 8490.

5. Within a reasonable time thereafter and before the parolee is transported to a federal prison, the officer designated by the Board shall conduct a preliminary interview with the parolee and record a summary or digest thereof. The interviewing officer shall also interview and make a summary or digest of the statements of any other persons who desire to make statements-on behalf of the parolee.

Ill

In Glenn v. Reed, supra, and Reed v. Butterworth, supra, this court held that a parole revocation hearing is invalid if the alleged parole violator is not informed prior to his appearance before the Board of his right to retain counsel and to present voluntary witnesses to the Board. Before those holdings, each appellant in the present appeals had been given an opportunity to appear which was invalid if tested by the standards later enunciated in the Glenn and Butter-worth opinions. However, none of the appellants objected at that time to the type of proceeding afforded. Each appellant first raised the objection after the Glenn decision. We have allowed them now to raise the question of the adequacy of the proceeding afforded. We have carefully considered their contentions and except as we now direct modification of the time and place of the procedures following arrest we have not accepted them.

Our holding relating to the arrest procedures and scope, time and place for the preliminary interview of an arrested parolee follows from our considered judgment that the statutory scheme developed by Congress over many years intended that some such safeguards be provided and that Congress left it to the Board and the courts to shape such procedures. We have already noted that the Board has gone a long way to give content to the statutes and that what we add now is essentially a matter of drawing together a coherent pattern consistent with what the Board has step by step provided.

The basic parole statute has been in existence since 1910, 36 Stat. 820, and all of its editions have contained provisions for retaking of violators on warrant without specifically providing the details of the procedure we now prescribe even though from time to time the Board has evolved additional safeguards and protective devices to implement the statute. Considerations of orderly administration must of necessity enter into this decision. The number of convicted persons on parole is large and the number retaken on administrative warrants is substantial. Balancing the array of competing considerations we are unwilling to hold that prisoners validly convicted, paroled and thereafter retaken should now be set at liberty for want of compliance with steps only now for the first time commanded.²⁰ See Reed v. Butterworth, supra.

Coming to the applicability of these procedures we must recognize that all of these appellants have long since been transported from the place of arrest to a federal prison. When this litigation was commenced appellants could not anticipate the scope of any ultimate holding and we will not penalize them for having refused the type of hearing proffered by the Board. However the posture of the several appellants variesThose who have not denied the charged violation of parole or any whose parole’ was revoked because of a criminal conviction would not now be benefited by a hearing which is designed specifically to make a record only in cases where the fact of violations controverted. Appellant Whitling claims his admission of violation was coerced; appellant Jamison has denied the alleged violation of parole conditions on which revocation was based; while on parole neither was. convicted of any criminal charge.

As to appellants Whitling, Case No. 16811, and Jamison, Case No. 17059, we-remand to the District Court to afford each an opportunity to advise that court what voluntary witnesses each would produce and what information such persons will give bearing on the factual issue of parole violation if a preliminary interview-hearing is held within a reasonable time at or near the place of the alleged parole violation. If it appears to the District Court that such hearing at such place is necessary in order to provide a fair hearing on the alleged parole violation in the circumstances of the particular case, the District Court shall so order.

As to appellants Hyser, Case No. 16716, Jatoft, Case No. 16806, Thompson, Case No. 16873, Neiswenter, Case No. 17041, Fitzpatrick, Case No. 17042, and Williamson, Case No. 17043, no useful purpose would be served by such procedure and the judgments appealed from are affirmed without prejudice to the right of each such appellant to have, upon request, the “opportunity to appear” before the Board pursuant to 18 U.S.C. § 4207. We note that the Board has already tendered such opportunity to each of these appellants. This opportunity to appear shall be for the limited purpose of presenting to the Board reasons why the parole violation charged should not operate as a basis for revoking parole.

Remanded as to Nos. 16811 and 17059.

Affirmed as to Nos. 16716, 16806, 16873, 17041, 17042 and 17043.

1 . 110 U.S.App.D.C. 85, 289 F.2d 462 (1961).

2 . 111 U.S.App.D.C. 865, 297 F.2d 776 (1961). See Barries v. Reed, 112 U.S.App.D.C. 192, 801 F.2d 516 (1962).

3 . Through administrative oversight Thompson was not advised of the right to voluntary witnesses until May 1962.

4 . The Declaration of Principles of the American Correctional Association (1960), states:

“With a few possible exceptions, all offenders released from correctional institutions should be released under parole-supervision, and parole should be granted at the earliest date consistent with public safety and the needs of rehabilitation. Decisions pertaining to an individual’s parole should be made by a professionally competent board. The type and degree of supervision should be adopted to the-needs of the individual offender.”

5 . However, judgment is exercised in determining “good time” credit.

6 . 18 U.S.C. § 4207 “Revocation upon retaking parolee

“A prisoner retaken upon a warrant issued by the Board of Parole, shall be given an opportunity to appear before the Board, a member thereof, or an examiner designated by the Board.

“The Board may then, or at any time in its discretion, revoke the order of parole and terminate such parole or modify the terms and conditions thereof.

“If such order of parole shall be revoked and the parole so terminated, the said prisoner may be required to serve all or any part of the remainder of the term for which he was sentenced.”

7 . Compare the statutory authority of the Parole Board vis-a-vis parole revocation, 18 U.S.C. §§ 4201-4210, with that of the various District Courts vis-a-vis probation revocation, 18 U.S.C. §§ 3651-3653. Note the breadth of the District Court’s authority:

“As speedily as possible after arrest the probationer shall be taken before the court for the district having jurisdiction over him. Thereupon the court may revoke the probation and require Mm to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed.” 18 U.S.C. § 3653.

Similarly, the Parole Board, in revoking parole, may require the parolee “to serve all or any part of the remainder of the term for which he was sentenced.” 18 U.S.C. § 4207.

8 . See Moore v. Reid, 142 F.Supp. 481 (D.D.C.1956), rev’d on other grounds, 100 U.S.App.D.C. 373, 240 F.2d 654 (1957).

9 . See discussion of problems relating to revocation of probation and parole:

Hink, The Application of Constitutional Standards of Protection to Probation, 29 U.Chi.L.Rev. 483 (1962) ; Weihofen, Revoking Probation, Parole or Pardon without a Hearing, 32 J. of Crim.L. & Criminology 531 (1941).

10 . See I Davis, Administrative Law Treatise § 303 (1958).

11 . 18 U.S.C. § 4205 provides:

“A warrant for the retaking of any United States prisoner who has violated his parole, may be issued only by the Board of Parole or a member thereof and within the maximum term or terms for which he was sentenced. The unexpired term of imprisonment of any such prisoner shall begin to run from the date he is returned to the custody of the Attorney General under said warrant, and the time the prisoner was on parole shall not diminish the time he was sentenced to serve.”

The present section 4205 is an amalgamation of former §§ 717 and 723c of Title 18. Section 717 provided that a warrant may issue only upon “reliable .information.” The merger of the two sections occurred in the 1948 recodification of Title 18. The reviser’s notes indicate that the omission of the words “reliable information” was probably a drafting oversight. There is no express reference of congressional intent that would indicate that the change was intentional.

12 . The holdings on this score are limited. With one exception, the eases we have found which discuss the question of the requirements of cause upon which the warrant may issue arose under the old statutory language of 18 U.S.C. §§ 717, 723c. United States ex rel. De Lucia v. O’Donovan, 82 F.Supp. 435 (N.D.Ill. 1948), aff’d 178 F.2d 876 (7th Cir. 1949), appeal dismissed, 340 U.S. 886, 71 S.Ct. 204, 95 L.Ed. 643 (1950), on remand for hearing on the merits, 107 F.Supp. 347 (N.D.Ill.1952); Story v. Rives, 68 App. D.C. 325, 97 F.2d 182 (1938); Christianson v. Zerbst, 89 F.2d 40 (10th Cir. 1937). In Hiatt v. Compagna, 82 F.Supp. 295 (N.D.Ga.1948), rev’d, 178 F.2d 42 (5th Cir. 1949), aff’d by an equally divided court, 340 U.S. 880, 71 S.Ct. 192, 95 L.Ed. 639 (1950), the Fifth Circuit, obiter dictum, said “There is nothing in the present statute, of force since September 1, 1948, requiring that the warrant be based on ‘reliable information’ as stated in former Title 18, Section 717.”

13 . 18 U.S.C. § 4206 provides that the arresting officer “shall execute such warrant by taking such prisoner and returning him to the custody of the Attorney General.” See Parole Board Directive No. 1, § 2.38, 27 Fed.Reg. 8490 (Aug. 24, 1962).

18 U.S.C. § 4082 provides:

“Persons convicted of an offense against the United States shall be committed, for such terms of imprisonment as the court may direct, to the custody of the Attorney General of the United States or his authorized representative, who shall designate the places of confinement where the sentences shall be served.

“The Attorney General may designate any available, suitable, and appropriate institutions, whether maintained by the Federal Government or otherwise, or whether within or without the judicial district in which the person was convicted.

“The Attorney General may order any inmate transferred from one institution to another. * * * ”

14 . In the fiscal year 1960, the Board issued 1,016 warrants for arrest of parolo violators and 670 warrants for the arrest of mandatory release violators. Ann. Rep’t of the Attorney General of the United States 428-430.

During the fiscal year ending June 30,' 1960, the Parole Board held 12,640 hearings of all types, of which a substantial number were violator hearings. Ann. Rep’t of the Attorney General of the United States 416 (1960).

15 . In Story v. Rives, 68 App.D.C. 325, 331, 97 F.2d 182, 188 (1938), this court had occasion to note that “A warrant issued for the retaking of a [parolee] * * * proceeds upon an entirely different premise and serves a different purpose than in the case of a warrant for the arrest of a person charged with the commission of a crime. A released prisoner is not a free man. * * * Consequently, it cannot be said that the retaking of a prisoner who is already within the legal custody of the authorities constitutes an arrest within the meaning of the constitutional provisions.”

16 . The arresting officer is presently authorized to confine the parolee temporarily in a local jail while awaiting transport to the prison from which he was released.

17 . There is no requirement in the statutes or regulations that such persons be sworn to testify under oath and we do not intend to require it. Since sworn written statements may be filed there is plainly no bar to receiving information under oath if the witness is willing.

18 . The Parole Board may, of course, elect to delegate authority to the local officer who conducts the interview to evaluate the evidence before him and decide whether there is an absence of satisfactory evidence of parole violation and empower him to discharge the parolee when there is not. Under 18 U.S.C. § 3655 (1958), “Each probation officer shall perform such duties with respect to persons on parole as the Attorney General shall request.” By Department of Justice Order 271-62, § 0.126(b), 27 Fed.Reg. 5172 (June 1, 1902), the Attorney General has delegated this authority to the Parole Board. See also 18 U.S.C. § 4207.

19 . We are aware that some of the steps liere provided are already followed by the Board but wo now state them fully to place the whole process in orderly sequenee.

20 . The dissenting views may be summed up, as we see them, as calling for (a) an adversary proceeding on parole revocation with virtually all the incidents of a criminal prosecution except a Grand Jury at the threshold and a jury of twelve to pass on the facts' (view of Judges Bazelon and Edgerton), and (b) a hearing before arrest (view of Judges Ealiy and Wright). As to the second proposal —a hearing before arrest — this would raise the arrest of a convicted person then under sentence to a higher plane and afford him more protection than the Constitution gives citizens who stand convicted of no crime. Wfi see nothing in the statutes or the Constitution which supports such an interpretation and indeed the appellants have not claimed they were entitled to a hearing before arrest. Judge Fahy’s arguments as to taking arrested parolees great distances to prisons where they must await the Board’s convenience are met by the procedures we now prescribe. Were these dissenting views to prevail parole revocation could well become so complicated and so difficult that the entire parole system and. its desirable objectives would suffer.