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NCJ Number: 69456 Find in a Library
Title: DUE PROCESS BEHIND BARS - THE INTRINSIC APPROACH
Journal: FORDHAM LAW REVIEW  Volume:48  Issue:6  Dated:(MAY 1980)  Pages:1067-1109
Author(s): J GUGLIELMELLI
Date Published: 1980
Page Count: 43
Format: Article
Language: English
Country: United States of America
Annotation: A UNIFIED APPROACH TO DEFINING PROCEDURAL DUE PROCESS RIGHTS FOR PRISONERS TO ENSURE PROTECTION OF HUMAN DIGNITY IS PROPOSED; THEORIES UNDERLYING DUE PROCESS PROTECTION AND APPLICATION ARE HIGHLIGHTED.
Abstract: DUE PROCESS GENERALLY PROTECTS TRADITIONAL INTERESTS, SUCH AS OWNERSHIP OF REAL PROPERTY AND FREEDOM, FROM ARBITRARY PRACTICES IN THE CRIMINAL JUSTICE SYSTEM. AN ENTITLEMENT, HOWEVER, IS A PROPERTY OR LIBERTY INTEREST DERIVED FROM THE RELATIONSHIP BETWEEN GOVERNMENT AND THE INDIVIDUAL THAT EXTENDS BEYOND THE SCOPE OF THESE CUSTOMARY CONCERNS. THIS ENTITLEMENT MUST EXTEND, THEREFORE, TO PRISONERS AS WELL. THEORIES APPLICABLE TO PRISONERS INCLUDE THE CONDITIONAL LIBERTY THEORY AND STATUTORY DUE PROCESS THEORY. BECAUSE THE LIMITATIONS PLACED ON THESE THEORIES LEAVE THE PRISONER AT THE MERCY OF GOVERNMENT, A NEW APPROACH IS NECESSARY TO ENSURE DUE PROCESS. THE PROPOSED INTRINSIC APPROACH RESOLVES THE PROBLEMS BY GRANTING INDIVIDUALS, AGAINST WHOM THE GOVERNMENT DECISIONS OPERATE, A CHANCE TO PARTICIPATE IN THE DECISIONMAKING PROCESSES. BEFORE THE INTRINSIC APPROACH CAN BE UNIFORMLY APPLIED, IT IS FIRST NECESSARY TO ESTABLISH A FACTUAL UNITY AMONG THE THREE SPECIFIC INMATE SITUATIONS--DISCIPLINE, RELEASE, AND REVOCATION--TO DETERMINE HOW EACH FITS WITHIN THE REHABILITATIVE MOLD. PRISON DISCIPLINARY PROCEEDINGS MUST BE BASED ON THE MUTUAL ACCOMMODATION BETWEEN INSTITUTIONAL NEEDS AND OBJECTIVES AND BASIC CONSTITUTIONAL RIGHTS. BASIC LIBERTY INTERESTS ARISE WITH REGARD TO WORK RELEASE PROGRAMS, GOOD TIME CREDIT, INTERPRISON TRANSFERS, AND PRISONER CLASSIFICATIONS. IN ADDITION, ALTHOUGH DUE PROCESS REQUIREMENTS APPLY TO ALL PAROLE REVOCATION PROCEEDINGS, THESE REQUIREMENTS ARE NOT GUARANTEED FOR PAROLE RELEASE HEARINGS IN LIGHT OF THE RECENT SUPREME COURT HOLDING IN GREENHOLTZ V. INMATES OF NEBRASKA PENAL & CORRECTIONAL COMPLEX (1979). IT IS ARGUED THAT CERTAIN MINIMUM CRITERIA MUST BE MET TO SATISFY INTRINSIC DUE PROCESS AND TO FULFILL THE REHABILITATIVE STRATEGY. THESE CRITERIA INCLUDE ADEQUATE NOTICE TO THE PRISONER OF GOVERNMENT ACTION, DISCLOSURE BY THE AUTHORITIES OF EVIDENCE, AN OPPORTUNITY TO BE HEARD, AN IMPARTIAL BOARD, AND A WRITTEN STATEMENT OF REASONS FOR AN ADVERSE DECISION. IF THE REHABILITATIVE PROCESS IS TO BE EFFECTIVE UNIFORM APPLICATION OF CONSTITUTIONAL GUARANTEES IS MANDATORY. A TOTAL OF 356 FOOTNOTES ARE INCLUDED IN THE ARTICLE.
Index Term(s): Inmate Programs; Parole hearing; Prisoner's rights; Rehabilitation; Right to Due Process
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