Due Process Requires Hearing before Return to Parole in Mistaken Release

 

by David M. Reutter

 

The Sixth Circuit Court of Appeals has upheld the grant of qualified immunity to defendants who returned a man to parole without granting him a hearing. It also upheld a grant of attorney fees to the man for prevailing on his core due process claim.

 

Rageed Akrawi was convicted in 1991 for conspiracy to deliver and manufacture over 650 grams of cocaine. Michigan law, at the time, mandated a life without parole sentence, but when that punishment was changed by the state’s 1999 legislature, Akrawi received a life with parole possibility sentence. The Michigan Parole Board granted him parole in 2008.

 

It discharged him from his four-year parole in 2010. “Four months later, defendant Barbara Sampson, chair of the Parole Board, realized that Akrawi’s early discharge had violated a Michigan statute," wrote the court. She promptly placed Akrawi back on parole.

 

Akrawi then filed a civil rights action alleging due process violations and seeking monetary damages. The District Court held the defendants violated due process by not holding a hearing before placing Akrawi back on parole. Two weeks later, a hearing was held, so the Sixth Circuit held the defendant’s challenge to that portion of the order was moot.

 

The district court’s order also found the defendants were entitled to qualified immunity because the right was not clearly established. The Sixth Circuit found that Morrissey v. Brewer, 408 U.S. 471 (1972) requires a hearing before a parolee can be returned to prison. That case, however, “does not speak to a return to parole, as opposed to a return to prison, constitutes a ‘grievous loss.’” Thus, Akrawi’s claim of a hearing requirement was not “beyond debate” in federal case law.

 

The Sixth Circuit also affirmed the award of attorney fees to Akrawi. It found the $300 hourly rate, which amounted to a $32,200 award, rather than at $250 hourly rate was within the District Court’s discretion. See: Akrawi v. Remillet, 504 Fed. Appx 450 (6th Cir 2012).

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