Could Maryland hold parole and prison grievance hearings over closed-circuit TV instead of in person?

Plain-English summary

In 1989, the Maryland Parole Commission and the Inmate Grievance Commission ("IGC") asked the Attorney General whether they could adopt "video-conferencing," a closed-circuit television link between State offices in Baltimore and correctional facilities around Maryland, so hearing officers could conduct hearings without traveling to each prison. The Attorney General concluded yes, for parole grant hearings, parole revocation hearings, and IGC grievance hearings, including ones involving loss of "good-time" credit. Neither the Parole Commission's governing statute nor the IGC's grievance statute required in-person hearings, and the opinion concluded that due process was satisfied because the presiding official would still be able to see and hear the inmate and any witnesses in real time, just as in an in-person hearing. The opinion did recommend that the agencies' regulations preserve a presiding official's power to require an in-person hearing in the unusual case where a witness's credibility genuinely could not be assessed adequately over closed-circuit television.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The opinion's own text, as later annotated by the Attorney General's office, records that the Inmate Grievance Commission discussed in this opinion was eliminated by Chapter 251 (House Bill 1214) of the Laws of Maryland 1991, replaced by an Inmate Grievance Office within the Department of Public Safety and Correctional Services, with grievance hearings now conducted by the Office of Administrative Hearings. The statutory citations in this opinion (Article 41) also predate Maryland's later recodification of its corrections and public safety statutes into other articles of the Code.

Common questions

In 1989, could Maryland parole hearings be conducted over closed-circuit television?
Yes, according to this opinion. It concluded that the Maryland Parole Commission's governing statute did not require in-person hearings and that video-conferencing would let the commission evaluate the same factors relevant to a parole decision regardless of the change in format.

Did an inmate have a constitutional right to an in-person parole hearing?
No, per the opinion's analysis. It concluded that Maryland's parole statute did not create a protected liberty interest in parole itself (unlike some other states' mandatory-release statutes examined by the Supreme Court in Greenholtz and Board of Pardons v. Allen), so an initial parole grant hearing was not subject to constitutional due process requirements at all, let alone a right to be physically present.

What about parole revocation, where a parolee already has liberty to lose?
The opinion treated parole revocation differently because a parolee has a genuine, constitutionally protected liberty interest under Morrissey v. Brewer. It concluded video-conferencing still satisfied due process because all of the Morrissey procedural protections (notice, disclosure of evidence, an opportunity to be heard and present witnesses, cross-examination, a neutral decisionmaker, and a written decision) could be accomplished over closed-circuit television, and courts had already upheld even less traditional formats like telephone hearings in analogous contexts.

Were there any limits on using video-conferencing?
Yes. The opinion recommended that regulations expressly let the presiding official order an in-person hearing, for parole revocation and good-time-credit grievance hearings, if the inmate showed good cause or if the official determined that fair decision-making would otherwise be compromised, such as a case where assessing a witness's credibility over the video link was genuinely inadequate.

Background and statutory framework

The Maryland Parole Commission had, at the time, exclusive authority under Article 41, §4-504(a)(1) to authorize parole for most state inmates, and exclusive authority under §4-504(a)(7) to decide parole revocations. Section 4-506 and COMAR 12.08.01.17-.18A set out the factors the Commission had to weigh in deciding whether an inmate was suitable for parole. The Inmate Grievance Commission, a separate agency under Article 41, §4-102.1, gave inmates a forum to grieve complaints against Division of Correction or Patuxent Institution officials, with a hearing right under §4-102.1(f) once a grievance was found to have some merit on its face.

The opinion's due process analysis split into two tracks. For an initial parole grant decision, the opinion applied Greenholtz v. Inmates of Nebraska Penal & Correctional Complex and Board of Pardons v. Allen, concluding that due process attaches only where a state's parole statute uses mandatory language creating a real expectation of release; because Maryland's statute, unlike Nebraska's or Montana's, did not use that kind of mandatory language, an inmate had no constitutionally protected interest in a parole hearing at all, a conclusion the opinion found reinforced by Bryant v. State, a Fourth Circuit case interpreting Maryland's own parole statute the same way. For parole revocation, the opinion applied Morrissey v. Brewer, which does recognize a parolee's protected liberty interest and requires specific procedural protections (written notice, disclosure of evidence, an opportunity to be heard and present witnesses, cross-examination absent good cause otherwise, a neutral decisionmaker, and a written decision). The opinion concluded video-conferencing was compatible with every one of those requirements, drawing support from Gagnon v. Scarpelli's recognition that Morrissey did not foreclose "creative solutions" to practical hearing difficulties, and from a line of lower-court cases upholding telephone hearings in other due-process contexts under the balancing test from Mathews v. Eldridge. For IGC hearings touching good-time credit, a liberty interest recognized in Wolff v. McDonnell, the opinion extended the same video-conferencing analysis, since the same core ability to observe and question witnesses was preserved.

Citations and references

Statutes and regulations:

• Article 41, §§4-504(a)(1) and 4-504(a)(7), the Parole Commission's authority over parole grants and revocations
• Article 41, §4-506 and COMAR 12.08.01.17-.18A, the statutory and regulatory factors governing parole suitability determinations
• Article 41, §4-102.1(a), (d), (f), and (h), establishing the Inmate Grievance Commission and its hearing procedure
• Article 27, §700, Maryland's statutory good-time-credit provision
• SG §10-202(a)(3)(vi) and §10-208(e), the Administrative Procedure Act provisions discussed as inapplicable, or in the alternative compatible with video-conferencing
• Chapter 251 (House Bill 1214) of the Laws of Maryland 1991, which eliminated the Inmate Grievance Commission

Cases:

• Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 7 (1979), and Board of Pardons v. Allen, 482 U.S. 369 (1987), on when a state parole statute's mandatory language creates a protected liberty interest
• Bryant v. State, 848 F.2d 492, 493 (4th Cir. 1988), and Paoli v. Lally, 812 F.2d 1489 (4th Cir. 1987), holding Maryland's parole statute creates no protected liberty interest in release
• Brandon v. District of Columbia Board of Parole, 823 F.2d 644, 648 (D.C. Cir. 1987), and Shango v. Jurich, 681 F.2d 1091, 1101 (7th Cir. 1982), on a state-created hearing procedure not itself being a protected liberty interest
• Morrissey v. Brewer, 408 U.S. 471 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973), on the due process protections required for parole and probation revocation
• Mathews v. Eldridge, 424 U.S. 319, 335 (1976), the balancing test applied to assess whether video-conferencing satisfies due process
• Casey v. O'Bannon, 536 F. Supp. 350 (E.D. Pa. 1982), Sterling v. District of Columbia, 513 A.2d 253 (D.C. App. 1986), and Babcock v. Employment Division, 696 P.2d 19 (Or. App. 1985), upholding telephone hearings against due process challenges in other benefits contexts
• Wolff v. McDonnell, 418 U.S. 539, 557 (1974), recognizing a protected liberty interest in good-time credit
• Vitek v. Jones, 445 U.S. 480, 493 (1980), and Montanye v. Haymes, 427 U.S. 236, 242 (1976), on the limits of due process protection for changes in prison confinement conditions
• Bryant v. Department of Public Safety, 33 Md. App. 357, 370, 365 A.2d 764 (1976), and State Human Services Department v. Gomez, 657 P.2d 117, 119 (N.M. 1983), on hearing officers being able to fairly judge witness demeanor and credibility without an in-person hearing
• Department of Transportation v. Armacost, 299 Md. 392, 415-16, 474 A.2d 191 (1984), and Vavasori v. Commission on Human Relations, 65 Md. App. 237, 243, 500 A.2d 307 (1985), on the due process protected-interest threshold under Article 24 of the Maryland Declaration of Rights
• Staley v. Board of Educ., 308 Md. 42, 47 n.4, 517 A.2d 349 (1986), on regulations adopted under statutory authority having the force of law
• State v. Fuller, 308 Md. 547, 520 A.2d 1315 (1987), applying Morrissey-style due process protections to probation revocation
• State ex rel. Turner v. Kinder, 740 S.W.2d 654 (Mo. 1987), a contrasting case where a statute's "personally present" language, not due process, barred video-conferencing for guilty pleas
• Greenberg v. Simms Merchant Police Service, 410 So. 2d 566, 567 (Fla. App. 1982), Hannah v. Larche, 363 U.S. 420, 440 n.16 (1960), Dorsey v. Maschmann, 571 F.2d 1002, 1003 n.1 (8th Cir. 1977), and Ganz v. Bensinger, 480 F.2d 88, 89 (7th Cir. 1973), cited on narrower supporting points in the opinion's analysis

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1989/Volume74_1989.pdf (this opinion appears at printed pages 187-199 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

PAROLE

Parole Commission - Inmate Grievance Commission - "Video-
Conferencing" - Due Process - Hearings May Be Conducted Over
Closed-Circuit Television

                      February 17, 1989

Mr. Paul J. Davis, Chairman
Maryland Parole Commission

Mr. Marvin N. Robbins
Executive Director
Inmate Grievance Commission

You have requested our opinion on whether the Maryland Parole

Commission and the Inmate Grievance Commission ("IGC") may adopt
procedures under which the presiding officials would conduct all
hearings over closed-circuit television.

For the reasons set forth below, we conclude that the Maryland

Parole Commission and the IGC may adopt procedures generally
authorizing the conduct of hearings over closed-circuit television.
However, with regard to parole revocation hearings and IGC hearings
involving loss of "good-time" credits, these procedures should
expressly recognize the presiding official's power, in unusual
circumstances, to order that closed-circuit television not be used for a
particular hearing or for particular testimony.

                                I

                          Background

 Under the proposal, called video-conferencing, a closed-circuit

television system would link State offices in Baltimore with correctional
facilities throughout the State. This system would permit the Maryland
Parole Commission and the IGC to conduct hearings from their offices
without incurring the cost and inconvenience of traveling to and from
the correctional facilities.

 The hearings would be conducted exactly as they are now, except

that the commissioners (or, where applicable, the hearing officers)
would conduct the hearings from their offices while the inmates remain
at their respective institutions.1

Prison personnel, if required to testify as witnesses, would testify
from their respective institutions as well. The correctional facility
would have a facsimile machine available if it were necessary to
transmit copies of documents during the course of a hearing.

The Parole Commission and the IGC would adopt appropriate

changes in their regulations to authorize this new approach to the
conduct of hearings. See Article 41, §§4-507(b) and 4-102.1(h) of the
Maryland Code.2

 1
   For ease of reference, we shall refer to the person or persons who conduct

these hearings as the "presiding official."
2
All statutory references in this opinion are to Article 41, except as otherwise
specified.

                                     II

                     Maryland Parole Commission

A. Requirements of State Law

 The Maryland Parole Commission has "the exclusive power to ...

[a]uthorize the parole of individuals sentenced under the laws of this
State to any ... place of confinement or detention within the State."
§4-504(a)(1).3 COMAR 12.08.01.17 provides that "[a]ll prisoners
sentenced to a term of 6 months or more shall receive a parole hearing
after serving not more than one-fourth of their sentence, or in the case
of multiple sentences, one-fourth of their total combined sentences."
In determining if an inmate is suitable for parole, Parole Commission
members and hearing examiners must consider the factors enumerated
in §4-506 and COMAR 12.08.01.18A.4

  3 The Parole Commission does not make decisions about parole from Patuxent

Institution. See Article 31B, §11(b)(2).
4
Section 4-506 provides:
"Each hearing examiner and Commission member determining if an
inmate is suitable for release on parole shall consider:
(1) The circumstances surrounding the crime;
(2) The physical, mental, and moral qualification of the inmate
eligible for parole;
(3) The progress of the inmate during his confinement, including the
academic progress of the inmate in the mandatory education program
required in §22-102 of the Education Article.
(4) Whether or not there is reasonable probability that the inmate, if
released on parole, will remain at liberty without violating the law;
(5) Whether or not release on parole of the inmate is compatible with
the welfare of society;
(6) An updated victim impact statement or recommendation prepared
under §4-504(d) of this subtitle; and
(7) Any recommendation made by the sentencing judge at the time
of sentencing."
COMAR 12.08.01.18A sets forth in greater detail the criteria that the Commission
is to use in determining whether an inmate is suitable for release.

The statute governing the Parole Commission contains several

references to hearing procedures. §§4-507, 4-508, 4-509, and 4-511.5
Nothing in the statute is inconsistent with the use of video-
conferencing. See Greenberg v. Simms Merchant Police Service, 410
So. 2d 566, 567 (Fla. App. 1982). The fundamental nature of the
hearing will be unchanged. The inmate and presiding official will
continue to be able to see, hear, and talk to each other. See generally
Silbert, Evaluation of First Appearances 60 (1985).

 The Parole Commission decides whether to grant an inmate parole

based on its judgment about the circumstances of the crime as well as
the inmate's progress and adjustment while in prison. We do not
believe that the Commission's use of video-conferencing would
significantly affect its ability to conclude whether an inmate is suitable
for parole, since the Commission will be able to evaluate the factors
relevant to this decision regardless of the proposed change in format.
For this reason, we conclude that a properly adopted regulation
authorizing video-conferencing would be consistent with State law.

B. Due Process - Parole Hearings

 The requirements of the Due Process Clause of the Fourteenth

Amendment apply only if a person has a protected interest, that is, "he
must have more than a unilateral expectation of [the right;] [h]e must,
instead, have a legitimate claim of entitlement to it." Greenholtz v.
Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 7
(1979).6 "There is no constitutional or inherent right of a convicted
person to be conditionally released before the expiration of a valid
sentence," the Supreme Court held. Id. Depending on the structure

   The Parole Commission is not subject to the contested case procedures of the

Administrative Procedure Act. §10-202(a)(3)(vi) of the State Government Article
("SG" Article). Even if it were, video-conferencing does not conflict with the APA's
hearing procedures. A hearing conducted by video-conferencing enables a party to
call and examine witnesses, offer evidence, cross-examine adverse witnesses, and
present summation and argument, just as if the presiding official were physically
present. See SG §10-208(e).

 6
   The prerequisite is the same under Article 24 of the Maryland Declaration of

Rights. See, e.g., Department of Transportation v. Armacost, 299 Md. 392, 415-16,
474 A.2d 191 (1984); Vavasori v. Commission on Human Relations, 65 Md. App.
237, 243, 500 A.2d 307 (1985).

and language of a particular statute, however, a state may establish a
parole system that creates a protectible entitlement. 442 U.S. at 12.

In Greenholtz, the Supreme Court held that Nebraska's parole-

determination statute created an entitlement protected by due process
because of its mandatory language and the presumption that such
language consequently created, that parole release would be granted
absent certain findings. 442 U.S. at 11-12.7 More recently, in Board
of Pardons v. Allen, 482 U.S. 369 (1987), the Court applied the
Greenholtz analysis and held that the mandatory language of Montana's
parole statute created a presumption that parole release would be
granted when certain findings are made. Thus, the state had created
a protected liberty interest by statute. 482 U.S. at 376.8

By contrast, neither the Maryland parole statute nor the Parole

Commission's regulations contain language comparable to that deemed
by the Supreme Court in Greenholtz and Allen to create a liberty

 7
     The Nebraska statute provided in pertinent part:
      "Whenever the Board of Parole considers the release of a committed
 offender who is eligible for release on parole, it shall order his release
 unless it is of the opinion that his release should be deferred because:
      (a) There is a substantial risk that he will not conform to the
 conditions of parole;
     (b) His release would depreciate the seriousness of his crime or
 promote disrespect for law;
       (c) His release would have a substantially adverse effect on
 institutional discipline; or
       (d) His continued correctional treatment, medical care, or vocational
 or other training in the facility will substantially enhance his capacity to
 lead a law abiding life when released at a later date.

Neb. Rev. Stat. §83-1,114(1) (1976) (emphasis added). The statute also listed 14
explicit factors and one catchall factor that the Board was to consider in reaching a
decision. See Neb. Rev. Stat. §§83-1,114(2)(a)-(n) (1976).
8
The Montana statute at issue in Allen provided in pertinent part:
"Subject to the following restrictions, the board shall
release on parole any person ... when in its opinion there is
reasonable probability that the prisoner can be released without
detriment to the prisoner or to the community."
Mont. Code Ann. §46-23-201 (1985) (emphasis added).

interest.9 Although §4-506 and COMAR 12.08.01.17 enumerate
certain factors that the Commission is to consider when determining
whether an inmate is suitable for parole, neither creates a presumption
that parole will occur. In Bryant v. State, 848 F.2d 492, 493 (4th Cir.
1988), the court held that "since the Maryland parole statute does not
create a legitimate expectation of parole release," the inmate, who
alleged that he was wrongly denied a parole hearing, "has no right
protected by the due process clause." 848 F.2d at 493. See also Paoli
v. Lally, 812 F.2d 1489 (4th Cir. 1987). Thus, since an inmate has
neither an inherent constitutional right to parole nor, in Maryland, a
state-created liberty interest in parole, the parole hearing itself need not
meet the requirements of due process.

Moreover, although a state's law may establish certain procedures

to guide parole determinations, "[c]ourts have explicitly and repeatedly
rejected the proposition that an individual has an interest in a state-
created procedural device, such as a hearing, that is entitled to
constitutional due process protection." Brandon v. District of
Columbia Board of Parole, 823 F.2d 644, 648 (D.C. Cir. 1987).

 In Brandon, an inmate alleged that he had a constitutionally

protected interest in having the parole board adhere to its own
regulations and procedures for parole consideration, including a right
to a meaningful annual reparole hearing. 823 F.2d at 647. In rejecting
the inmate's claim, the court held: "The mere fact that the government
has established certain procedures does not mean that the procedures
thereby become substantive liberty interests entitled to federal
constitutional protection within the Due Process Clause." 823 F.2d at

648. See also Shango v. Jurich, 681 F.2d 1091, 1101 (7th Cir. 1982).

     Thus, although COMAR 12.08.01.17 provides that "[a]ll prisoners
     ... shall receive a parole hearing after serving not more than one-fourth
     of their sentence," this state-created procedure is not a liberty interest
     entitled to constitutional due process protection. Rather, it is a state
     right that "must be enforced in state courts under state law." Brandon,
     823 F.2d at 649. As discussed in Part II A above, we believe that this

     9
     We look to the regulations as well as the statutory language since rules adopted
     pursuant to statutory authority have the force and effect of law. Staley v. Board of
     Educ., 308 Md. 42, 47 n.4, 517 A.2d 349 (1986).

procedure may be conducted by video-conferencing without offending
State law.

C. Due Process - Parole Revocation Hearings

Unlike an inmate who has no inherent constitutional right to parole,

a parolee has a protected liberty interest in retaining his or her
freedom. Morrissey v. Brewer, 408 U.S. 471 (1972). As the Supreme
Court recognized, a parolee may "be gainfully employed and is free to
be with family and friends and to form the other enduring attachments
of normal life." 408 U.S. at 482. Thus, "the liberty of a parolee ...
includes many of the core values of unqualified liberty and its
termination inflicts a 'grievous loss' on the parolee and often on
others." Id. The parolee is entitled to rely on "an implicit promise
that parole will be revoked only if he fails to live up to the parole
conditions." Id.

 Accordingly, certain procedural protections are constitutionally

required.10 A parolee is entitled to a final revocation hearing
that includes:

      (a) written notice of the claimed violations of parole;
      (b) disclosure to the parolee of evidence against him;
      (c) opportunity to be heard in person and to present
      witnesses and documentary evidence; (d) the right to
      confront and cross-examine adverse witnesses (unless
      the hearing officer specifically finds good cause for
      not allowing confrontation); (e) a "neutral and
      detached" hearing body such as a traditional parole
      board ...; and (f) a written statement by the fact
      finders as to the evidence relied on and reason for
      revoking parole.

408 U.S. at 489.11

 10
    These same due process requirements apply when the State seeks to revoke

probation. See Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973); State v. Fuller, 308
Md. 547, 520 A.2d 1315 (1987).

  11
    In addition, a prompt preliminary hearing following the arrest of the accused

violator must be held near the site of the arrest or alleged violation to determine
whether there is "probable cause" to believe that the accused violated the conditions
of release. Morrissey, 408 U.S. at 485. This determination must be made by
someone not directly involved in the case, although the hearing officer need not be
a judicial official. 408 U.S. at 486. The parolee must be given notice of the purpose
and date of the hearing and what parole violations have been alleged. The parolee
may appear and speak on his or her behalf and produce witnesses and documentary
evidence. "On request of the parolee, [a] person who has given adverse information
on which parole revocation is to be based is to be made available for questioning in
his presence," unless the hearing officer determines that an informant would be
subjected to a risk of harm if the informant's identity were disclosed. 408 U.S. at
487.

 The Maryland Parole Commission has exclusive authority to hear

cases involving parole revocation (except as to parole from Patuxent
Institution). §4-504(a)(7). The Commission has adopted regulations
that encompass the procedural requirements established in Morrissey.
See COMAR 12.08.01.22.

 At the outset, we must consider whether one of Morrissey's

requirements, that the parolee be afforded the "opportunity to be heard
in person", precludes the use of video-conferencing.12 We think
not. In Morrissey, the Court was reacting to a procedural system
under which parole was revoked merely on the basis of a written report
by the parole officer. 408 U.S. at 472-73. The Court described the
kind of in-person hearing it required as follows: "At the 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. On request of the parolee, [a] person who has given
adverse information on which parole revocation is to be based is to be
made available for questioning in his presence." 408 U.S. at 487. All
of this can be accomplished through video-conferencing.

 Moreover, the Supreme Court itself subsequently has made clear

that Morrissey does not stand in the way of procedural innovations

 12 We are not aware of any cases on point. State ex rel. Turner v. Kinder, 740

S.W.2d 654 (Mo. 1987), concerned a statute providing that guilty pleas could only
be accepted if the defendant was "personally present." The Missouri Supreme Court
held that this statute precluded use of video-conferencing to take guilty pleas from
prisoners charged with criminal offenses within a prison. The court's holding rested
wholly on its understanding of legislative intent, however, not on an application of
the Due Process Clause.

designed to further a state's interest in efficient administration of its
parole system:

      While in some cases there is simply no adequate
      alternative to live testimony, we emphasize that we
      did not in Morrissey intend to prohibit use where
      appropriate of the conventional substitutes for live
      testimony, including affidavits, depositions, and
      documentary evidence. Nor did we intend to
      foreclose the States ... from developing other creative
      solutions to the practical difficulties of the Morrissey
      requirements.

Gagnon v. Scarpelli, 411 U.S. 778, 782 n.5 (1973). Video-
conferencing is exactly such a "creative solution."

Hence, we see no incompatibility between any of the requirements

of Morrissey and a hearing conducted by video-conferencing. Nor do
we perceive any other due process bar to the use of this technique.13
Indeed, hearings conducted by telephone, a procedure that departs more
markedly from the traditional norm of an in-person hearing, have been
upheld in cases involving property interests. See, e.g., Casey v.
O'Bannon, 536 F. Supp. 350 (E.D. Pa. 1982) (public assistance
appeals may be conducted by telephone without violating claimant's
right to due process); Sterling v. District of Columbia, 513 A.2d 253
(D.C. App. 1986) (use of telephone hearings do not violate an
unemployment claimant's right to due process); Babcock v.
Employment Division, 696 P.2d 19 (Or. App. 1985) (unemployment
compensation hearing may be conducted by telephone without violating
claimant's right to due process).

 These courts, applying the due process test set forth in Mathews

v. Eldridge, 424 U.S. 319, 335 (1976), balanced (1) the private interest
that could be affected, (2) the risk of an erroneous deprivation of that
interest because of the procedures used, and (3) the state's interest in

 13 We need not address the potential effect of the Sixth Amendment, which

applies only to "criminal prosecutions." E.g., Hannah v. Larche, 363 U.S. 420, 440
n.16 (1960). It does not apply to parole hearings or parole revocation hearings.
E.g., Dorsey v. Maschmann, 571 F.2d 1002, 1003 n.1 (8th Cir. 1977); Ganz v.
Bensinger, 480 F.2d 88, 89 (7th Cir. 1973).

conserving its fiscal and administrative resources. Although significant
property interests were at stake, these courts concluded that due
process is not violated when the state conducts something other than a
face-to-face hearing. In Casey, for example, the court was convinced
that a factfinder could "effectively judge credibility over the phone by
noting voice responses, pauses, levels of irritation and other factors,"
and thus found no due process violation. 536 F.Supp. at 354.

In most parole revocation cases, the due process balancing test

would come out the same way. To be sure, "the loss of liberty ... is
a serious deprivation ...." Gagnon v. Scarpelli, 411 U.S. at 781
(1973); it is, therefore, an exceptionally important private interest
under the first prong of the Mathews v. Eldridge test. But the use of
video-conferencing does not intrinsically pose a risk of erroneously
depriving a parolee of that interest, because the presiding official will
remain able to assess, visually and aurally, the demeanor of any
witness whose credibility is called into question. For its part, the State
will save significant resources if video-conferencing is used for parole
revocation hearings.14 In our view, the balance generally favors the
constitutionality of video-conferencing.

 Nevertheless, we cannot rule out the possibility of an unusual case

posing due process problems, one in which witness credibility is
potentially determinative but, for some demonstrable reason, the
presiding official cannot adequately assess credibility over closed-
circuit television. We suggest that this slight risk be accommodated in
regulations. A presiding official should be authorized to go to the
hearing site in order to conduct all or part of a hearing if (i) the
parolee requests the presence of the presiding official and shows good
cause for the request or (ii) even without a request, the presiding
official determines that fair decisionmaking would be compromised if
video-conferencing were used. In our view, due process requires no
more than this.15

 14 According to the Division of Correction, 935 revocation hearings were held

in 1988.
15
We also suggest that the regulations incorporate a requirement, akin to that
in the Maryland Rules, that the camera operator "not distort the appearance or
demeanor of participants in the [hearing] by the use of camera ... techniques." Rule
2-416(e).

                                    III

                   Inmate Grievance Commission

A. Requirements of State Law

 The IGC is a separate agency within the Department of Public

Safety and Correctional Services. §4-102.1(a). Any inmate who has
a grievance or complaint against "officials or employees of the Division
of Correction or the Patuxent Institution" may submit a grievance to
the IGC. §4-102.1(d). If a grievance "is not found to be on its face
wholly lacking in merit," the inmate is entitled to a hearing, at which
the inmate has a reasonable opportunity to call witnesses. §4-102.1(f).

 A properly adopted video-conferencing procedure would be

consistent with the hearing mandated by §4-102.1(f). Because the
presiding official would be able to hear and see all the witnesses,
video-conferencing comports with "the basic rules of fairness" to which
all State administrative hearings are subject. Bryant v. Department of
Public Safety, 33 Md. App. 357, 370, 365 A.2d 764 (1976). See State
Human Services Department v. Gomez, 657 P.2d 117, 119 (N.M.
1983) (a "telephonic television hearing" in an AFDC appeal affords a
public officer a sufficient opportunity to observe the demeanor of a
witness). See also Babcock v. Employment Division, 696 P.2d at 21
(the "audible indicia of a witness' demeanor are sufficient" to make an
adequate judgment as to credibility, a necessary prerequisite to a fair
hearing).16

B. Due Process

 Although the General Assembly created the IGC as a forum for

inmates to grieve alleged wrongs, this procedural mechanism in and of
itself is not protected by the Constitution. The requirements of due

 16
    Assuming for purposes of this opinion that the contested case procedures of

the Administrative Procedure Act apply to IGC hearings, we believe that the APA
does not prevent the use of video-conferencing. See note 5 above.

process only apply if the grievance itself involves a protected interest.
See Greenholtz, 442 U.S. at 7.17

 In Wolff v. McDonnell, 418 U.S. 539, 557 (1974), the Supreme

Court held that a prisoner's right to "good-time credit", that is, credit
for good behavior leading to an earlier release, was a protected liberty
interest under the Fourteenth Amendment.18 Nevertheless, the
deprivation of good time, though "unquestionably a matter of
considerable importance ... is qualitatively and quantitatively different
from the revocation of parole or probation," because it "does not then
and there work any change in the conditions of [the inmate's] liberty."
418 U.S. at 561. Particularly in light of a state's interest in controlling
prison disciplinary proceedings, the Due Process Clause does not
require "the full range of procedures suggested by Morrissey for
alleged parole violators ...." Id.

We concluded in Part II C above that due process does not

generally prohibit the use of video-conferencing for parole revocation
hearings. It follows that video-conferencing generally may be used by
the IGC even if a hearing involves the loss of good-time credits.19

 17
   Not all complaints rise to the level of a protected interest. "[C]hanges in the

conditions of confinement having a substantial adverse impact on the prisoner are not
alone sufficient to invoke the protections of the Due Process Clause, '[a]s long as the
conditions ... [are] within the sentence imposed upon him.'" Vitek v. Jones, 445
U.S. 480, 493 (1980) (quoting Montanye v. Haymes, 427 U.S. 236, 242 (1976)).
18 As is true of parole, this liberty interest exists only if a state has "created the
right to good time." 418 U.S. at 557. Maryland has done so. See Article 27, §700.
19 The IGC's regulation should likewise allow for a presiding official to order,
for good cause, that video conferencing not be used in a particular hearing. See text
accompanying note 15 above.

                                      IV

                                 Conclusion

For the reasons set forth below, we conclude that the Maryland

Parole Commission and the IGC may adopt procedures generally
authorizing the conduct of hearings over closed-circuit television.
However, with regard to parole revocation hearings and IGC hearings
involving loss of "good-time" credits, these procedures should
expressly recognize the presiding official's power, in unusual
circumstances, to order that closed-circuit television not be used for a
particular hearing or for particular testimony.

                                 J. Joseph Curran, Jr.
                                 Attorney General


                                 Sharon Krevor-Weisbaum
                                 Staff Attorney

Jack Schwartz
Chief Counsel
Opinions & Advice

Editor's Note:

In Chapter 251 (House Bill 1214) of the Laws of Maryland 1991,

the General Assembly eliminated the Inmate Grievance Commission in
favor of an Inmate Grievance Office within the Department of Public
Safety and Correctional Services. Grievance hearings are now
conducted by the Office of Administrative Hearings.