joins (concurring in part, dissenting in part).
I am in agreement with the guiding principles set forth by Judge Burger in his opinion for the majority of the Court. My dissent is in the application of those principles to the operation of the parole system under the existing statutes. My views, however, are not intended as an attack upon the majority opinioh’'but, since I largely agree with its approach, as a statement of an affirmative position *258on the several matters necessary to a decision of the appeals.
The Board is not a judicial body. Perhaps it is best described as administrative and supervisory. It administers and supervises a part of the penal system, with special responsibility for its rehabilitative and ameliorative features. The Board’s responsibility begins after a person has been convicted of a criminal offense and has had the rights and protections pertaining to the administration of the criminal law. In paroling such a person the Board is not conducting an adversary proceeding. There is no suggestion from any quarter that the procedures for granting parole are comparable to those of an adversary character.
A change in relationship between Board and individual occurs after parole has been granted and a question as to its violation arises; but this change in relationship does not extend to transforming the Board into an adversary of the parolee. This is so even though an alleged crime is said to be the violation. For a violation of parole is not a crime. A loss of parole status, which had relieved the prisoner of the need to serve in full his original sentence, may result, but when the Board takes up the problem of violation it is still engaged in administering or supervising a sentence. It is not engaged in a proceeding which leads to a sentence.
Personal liberty, however, is involved in proceedings incident to an alleged violation of parole. For this reason the proceedings must conform with due process of law. But due process of law varies widely with circumstances. Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960); Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944). It is one thing in a prosecution for crime. It is another in administering the parole system. In some aspects of the parole system due process of law is like that applicable to the revocation of probation, the nature of which is explained in Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266 (1932), or to sentencing, reviewed in Williams v. People of State of New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). And see Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935). The Board must obey applicable legislation but otherwise it seems to me the Board is required only to perform its functions fairly under fair procedures. It may not act unreasonably or arbitrarily.
With the above in mind we consider first the statute. With respect to a parole violation the requirements of the statute are divided into three main parts:
I. Section 4205, 18 U.S.C., provides that a warrant for the retaking of a parolee “who has violated his parole” may be issued by the Board or a member thereof. A warrant is not required to be issued. A violation may be overlooked. And this statutory language requires a finding of violation before a warrant is issued and the parolee retaken. This is the plain reading of the language and no reason appears to depart from its plain reading. Compare, in contrast, the Virginia statute discussed by the Court in Jones v. Cunningham, 371 U.S. 236, 83 S. Ct. 373, 9 L.Ed.2d 285 (1963). In giving our statute this meaning I bear in mind that if the alleged violation is the commission of a crime — a positive harm to the community — the parolee may be arrested under ordinary procedures and prosecuted. The community has this protection. There is accordingly no policy reason for failing to read Section 4205 as requiring a finding of violation before a parolee is arrested and retaken under authority of the Board. Depriving a person of his parole liberty is not a substitute for prosecution for crime, with its protections of the Bill of Rights.
The statute does not prescribe the procedure for finding a violation. But since the Due Process Clause requires a fair procedure, commensurate with the nature of the problem, we read into the statute such a procedure. So doing I would require before a violation can be found, unless it is admitted, or evidenced *259by proof of conviction of an offense which also constitutes a parole violation, that the parolee be given a hearing after he has had notice of the claim of violation. At the hearing he should have the opportunity to be heard in person and to present witnesses, to bring counsel to assist him, and to have access to, and, on request, confrontation, of the sources of information as to the alleged violation, with right of cross-examination. See Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959). This hearing should ordinarily be in the District where the violation occurred if the parolee so desires, and should be as near to the place of occurrence as is reasonably possible, if this is requested; that is, the hearing is to be at a place reasonably convenient to enable the parolee fairly to meet the claim. And in order that a proper review of these proceedings may be made by the Board or member in deciding whether to issue a warrant for retaking the parolee the officer conducting the hearing should preserve a record of what witnesses were present, along with a summary of their testimony and with a notation of the requests made by the parolee and their disposition. It is upon this record that a finding of violation is to be made, unless admitted or established by proof of a conviction. At this hearing the parolee may also introduce evidence, see No. III, infra, bearing upon the discretion of the Board in event a violation is found.
II. When a violation has been found upon the basis of an admission, or upon proof of conviction of an offense which constitutes a violation, or as the result of the suggested type of hearing, and only then, a warrant may issue by the Board or a Board member under Section 4206 and the parolee may be retaken.1 The issuance of a warrant, however, and the retaking, are discretionary.
III. After arrest and retaking the prisoner is given a statutory opportunity under Section 4207 to appear before the Board. This appearance has to do with the discretionary action to be taken by the Board as a consequence of the violation. The finding of a violation itself, previously made, may also be reconsidered at this later stage in the discretion of the Board, on the record made under the procedure set forth above; and if additional evidence is offered, there is the right of confrontation and cross-examination. At this appearance under Section 4207 the parolee may, as this court has previously held,2 have counsel and present witnesses. The communication and clerical facilities of the Government should also be made available to the *260prisoner to a reasonable degree to enable him to obtain and present to the Board in addition to his own statements and the testimony of any witness he has present, such statements, credentials, testimonials, and affidavits, as may bear upon the discretionary action the Board is empowered to take as a consequence of the violation.
The Board is not required to revoke the parole; it may revoke and terminate it, or it may modify the terms and conditions of the parole. It may also require the prisoner to serve only a part of the remainder of the term for which he was sentenced. 18 U.S.C. § 4207.
In all the above the Board, from the very beginning and through each step must act on behalf of the parolee as well as in the public interest. Counsel, though permitted, I think is not in these circumstances the touchstone of due process, either traditionally or rationally. With the Board and its agents having the duty of functioning in the interest of the individual in a supei-visory capacity, the touchstone of due process is freedom from arbitrariness and abuse of discretion, with fair and impartial procedures for obtaining the information upon the basis of which to make decisions, the fairness of the procedure being considered in terms of the consequence of the decision to be made. This consequence may be that the parolee is obliged to serve the balance of a sentence which had been previously imposed in a criminal proceeding governed by the applicable provision of the Bill of Rights.
The impact of a parole violation is upon a conditional personal liberty. This is not the same as the impact on liberty of a trial for crime. While due process is required, this does not as a rule for parole violation call for a procedure broken down into the right to have counsel appointed, or to have compulsory process. If, however, these appear in a particular case to be essential to the reaching of a fair and reasonable result by the Board the Board may not validly act without them. Ordinarily this is not the situation. Perhaps it is of some use to add that the action of the Board is subject to judicial review, with counsel appointed for an indigent if requested, and with compulsory process also available.
Applying these standards to the pending cases I review them under the following guides:
1. If violation of parole has not been denied by a plaintiff in his pleadings, I now treat the violation at this state of these cases as though factually admitted. In these instances, unless the hearing with respect to revocation, modification or discretionary action after arrest has conformed with the views above expressed, such hearing and reconsideration I think should now be accorded, if requested.
2. If the violation of parole is denied, and it is not now clear that the finding of violation, followed by warrant and arrest, is supported by proof of a conviction, or if it is not clear that the Board has conformed substantially with the procedures I have outlined, my view is that the prisoner should be released and the Board, if so advised, may proceed de novo.
It appears and is admitted by the Board that in the Jamison case the parolee has consistently protested his innocence of a violation, has offered witnesses who would or could testify to pertinent events, and has preserved his objections for our consideration. Since he has not been accorded the procedures I now find were due him, I think he is being illegally held and should be restored to freedom. Furthermore, it appearing that his sentence would have run out in July, 1960, when but for this retaking he would have presumptively been on parole, his restoration to freedom should be unqualified. Since the retaking was improper his incarceration since that time should be considered for present purposes as if he were never retaken and his parole had continued uninterruptedly to the expiration of his sentence. See Glenn v. Reed, *261110 U.S.App.D.C. 85, 289 F.2d 462 (1961), where freedom was restored as the only proper remedy for a wrongful retaking, though the court did not take occasion to consider the matter of credit for time already spent on parole.3
The other cases, with one exception to be noted, are seen to be ones of an admitted parole violation, the question remaining being one of discretionary treatment after the retaking and so they fall under Number 1 above. Accordingly these plaintiffs must be given an opportunity to have an appearance before the Board of the character set out above. The Board then will be in a position to exercise its judgment as to whether any of these appellants should be remitted to parole, and if so under what conditions, and whether if the parole in any case is revoked all or only some of the remaining time should be served.
The exception is the case of Whitling. It does not appear that he freely made an admission to the charge of parole violation. There are allegations (in his rejected offer to amend his complaint) of threats and coercion against him in connection with a statement apparently relied upon by the Board. From this record we are unable to pass upon the merits of his defenses. It is not apparent that the Board considered them. I disagree with the District Court’s finding that this appellant “had admitted violating the conditions of his parole.” Accordingly, as I see it, he ought to be released, but without prejudice to the Board proceeding de novo in his case.
Finally, in regard to Jatoft, where there is an assertion of innocence both at the court level and before the Board, it must be said that his contentions were considered by the Board and there was sufficient evidence to support a finding of a violation in the absence of any proffer by him of testimony or witnesses to support his contention that he did not know the persons with whom he was associating were involved in a criminal operation. Of course the post-violation retaking procedures should be complied with in this case.
. The majority opinion, note 20, says that in this manner we raise the arrest of a parolee who has been convicted of crime to a higher plane than the Constitution accords persons only accused of crime. This overlooks the many safeguards attaching to one arrested for crime. He is entitled to speedy arraignment with advice as to his rights, including the right to counsel, and he is ordinarily entitled to his liberty on bail bond. There is a separation of the arresting function from that of detention, and the magistrate reviews the adequacy of the basis for the arrest. Persons currently retaken on a Board warrant, however, may be and often are transported great distances to a federal prison where they must await the visit of a Board member before their cases are considered. In the meantime such a person is cut off from family, friends, and employer. His situation is not comparable to that of a person arrested on an ordinary warrant for possible criminal prosecution, with the protections of the Constitution and Federal Rules of Criminal Procedure. The majority’s treatment of the problem — arrest followed by local incarceration and then a hearing — is an improvement over the present practice but does not afford the solution a plain reading of the statute requires. No Constitutional objection to such a solution is suggested. Moreover, rather than complicating and making more difficult the parole system and its desirable objectives, as the majority opinion suggests, we believe acceptance of our approach would not adversely affect the salutary purposes of the system nor make its operations more difficult than will the plans adopted by the majority.
. Robbins v. Reed, 106 U.S.App.D.C. 51, 269 F.2d 242 (1959).
. We distinguish the facts here from those in Fitzpatrick, a companion case, where it is also argued that a sentence has run if credit be given for time spent on parole. The difference is that in Fitzpatrick the violation is admitted and so the case falls within the others to be dealt with below.