(dissenting) :
I respectfully dissent.
The basic issue before us is whether a state prisoner is constitutionally entitled to the services of retained counsel at a parole release hearing. I reject the view that a prisoner has no greater rights than an alien in a foreign land, see pp. 408-409 of the majority opinion. I would hold that the Due Process Clause of the Fourteenth Amendment requires that a prisoner be allowed to have the assistance of retained counsel at his parole release hearing.
I.
Before discussing the applicable law, it is instructive to examine precisely what has happened to appellant in this case. He is now 41 years old and has been in prison continuously since he was 18, with a brief exception from August 1963, when he was released on parole, to March 1965, when he was apprehended pursuant to a parole violation warrant. Appellant is presently serving his original sentence of 20 years to life, imposed in May 1947 upon a plea of guilty to murder in the second degree. Therefore, he will remain in prison for the rest of his life unless the New York State Board of Parole decides to release him. In May 1965, he appeared before *413the Board of Parole and admitted, inter alia, that during his brief return to society he had consorted with individuals having a criminal record and that he had given misleading information to his parole officer. Parole was revoked upon these admissions and appellant was ruled ineligible for reconsideration of his parole qualifications for at least two years. Since then, appellant has received a few interviews with the Board at intervals ranging from one to two years. On each occasion he has been summarily denied release on parole and barred from reconsideration until the next interview. Each interview was quite brief. At no time was appellant given an opportunity to have the assistance of counsel, although recently he has apparently had counsel willing and anxious to assist him. We are told that appellant’s next meeting with the Board is scheduled for June 1971.
Appellant sought relief in the state courts and then filed this suit, attacking the procedure before the Board and particularly the prohibition of counsel. Since only declaratory relief was sought, no three-judge court under 28 U.S.C. § 2881 was asked for or required.1 The district judge felt compelled to grant the State’s motion for summary judgment, although indicating that if he “were writing on a tabula rasa,” his disposition might not be the same. This appeal followed.
II.
To view the primary issue before us in proper perspective, one must envision a statute which specifically prohibits the assistance of counsel at the sentencing in a criminal case. For that is similar to what New York State has done here. The Rules and Regulations of the New York State Board of Parole provide as follows:
Neither the inmate’s attorney nor any other party will be permitted to attend or speak in person in the inmate’s behalf or against him at any meeting of the Board of Parole at which the inmate’s release on parole is being considered. The board shall have complete discretion with respect to the presence of any other persons at such hearings.
9 New York Codes, Rules & Regulations § 155.9. Thus, we are not dealing with the question whether counsel must be appointed at a parole release hearing, The issue is whether all counsel can be banned. Appellant claims that the quoted Rule denies him procedural due process.2 His most powerful argument proceeds from two assumptions: that a parole release proceeding is essentially a continuation of sentencing, and that at sentencing he would be entitled to the assistance of retained counsel.
Appellant’s basic proposition is that a parole release hearing is part of the entire process of rehabilitation and correction which begins with a finding of guilt, goes on to the fixing of an appropriate sentence, and ends with the expiration of that sentence. Certainly, there is nothing startling about this view. The criminal process does not end abruptly with the clang of the prison gate; society has. a pervading interest in what happens to the prisoner thereafter.3 Moreover, modern penological attitudes and statutes which reflect them underscore the unbroken nature of the *414process.4 It is clearly the trend to divide responsibility for sentencing more and more between the judge who heard the trial or the guilty plea and those persons who thereafter observe the defendant in prison. Thus, in recent decades, Congress and state legislatures have given judges great flexibility in sentencing. A judge can now make merely the initial determination that a defendant should go to prison, fix an outside limit on incarceration and leave the length of custody to be determined by a Parole Board.5 Also, the judge can instruct the board to consider parole eligibility sooner than it ordinarily would.6 Moreover, in some situations, a judge may sentence a defendant to prison for an indeterminate period, with a Parole Board later deciding when, if ever, the prisoner’s return to society is advisable.7
Obviously, then, the responsibility for sentencing is increasingly being shared, with Parole Boards playing a greater and greater part. Moreover, this division of responsibility is explicitly recognized. Thus, the Senate Report on the bill which is now 18 U.S.C. § 4208 stated that the new sentencing procedures “would permit the court, at its discretion, to share with the executive branch the responsibility for determining how long a prisoner should actually serve.” 8 Similarly, the Task Force Report on Corrections (1967), prepared for the President’s Commission on Law Enforcement and Administration of Justice concluded (at p. 86):
Parole legislation involves essentially a delegation of sentencing, power to the parole board.
For the defendant before a sentencing judge or a prisoner before the Parole Board, the stakes are exactly the same: on the one hand, freedom to remain in or to return to society and on the other, incarceration in prison, in this case possibly for life. In New York, the standards for the judge and the Parole Board in making that determination are remarkably similar.9 Indeed, the Correction Law of the State of New York refers to the Board’s role in a parole release proceeding as a “judicial function.” 10 If the functions of judge and Parole Board under these arrangements are viewed objectively, the parole release proceeding in New York, as elsewhere, does seem in practical effect to be an extension of the sentencing process, and I accept that proposition. See Note, Due Process: The Right to Counsel in Parole Release Hearings, 54 Iowa L.Rev. 497, 505 (1968).
This brings us to appellant’s second assumption, which concerns those rights guaranteed at sentencing. In Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948), the Supreme Court granted a writ of habeas corpus to a state prisoner because of the “require-*415mént of fair play which absence of counsel [at sentencing] withheld from this prisoner.” Less than three years ago, the Court unanimously stated in Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 257, 19 L.Ed.2d 336 (1967):
In particular, Townsend v. Burke, supra, illustrates the critical nature of sentencing in a criminal case and might well be considered to support by itself a holding that the right to counsel applies at sentencing.3 Many lower courts have concluded that the Sixth Amendment right to counsel extends to sentencing in federal cases.4
Thereafter, in McConnell v. Rhay, 393 U.S. 2, 4, 89 S.Ct. 32, 34, 21 L.Ed.2d 2 (1968) (per curiam), the Court made! clear that “[t]he right to counsel at sentencing must * * * be treated like i the right to counsel at other stages of j adjudication.” I conclude, therefore, / that appellant’s minor premise is sound and that at a judicial sentencing the Constitution requires the presence of counsel. See also United States ex rel. Diblin v. Follette, 418 F.2d 408 (2d Cir. 1969).
This, of course, hardly ends the ease; it is only the beginning of the necessary inquiry. Appellant in fact claims as a constitutional right more procedural protection than he is now constitutionally entitled to at a judicial sentencing, e. g., confrontation of witnesses. Moreover, even though a parole release proceeding is in practical effect an extension of the sentencing process, it does not follow that it must be treated in exactly the same way. Appellant in effect concedes this by foregoing reliance on the right to counsel guaranteed by the Sixth Amendment as applied to the states through the Due Process Clause of the Fourteenth Amendment. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). He relies instead on the more general requirements of procedural due process, citing principally Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L.Ed.2d 287 (1970); Mem-pa v. Rhay, supra, and In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). The Supreme Court has instructed us that in this context due process is
an elusive concept. Its exact boundaries are undefinable, and its content varies according to specific factual contexts. * * * Whether the Constitution requires that a particular right obtain in a specific proceeding depends upon a complexity of factors. The nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding, are all considerations which must be taken into account.
Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1514, 4 L.Ed.2d 1307 (1960). See also Goldberg v. Kelly, supra, 397 U.S. at 263, 90 S.Ct. 1011; Cafeteria & Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). Accordingly, I turn to application of these general criteria to a parole release hearing, focusing primarily on the right to assistance of retained counsel.
The most obvious consideration is that for the prisoner the stakes could hardly be higher. Since the Parole Board has the power to determine whether appellant must remain in prison for the rest of his life, he has an obvious interest in having his case for parole presented effectively. Appellant is a man of little education and the transcripts of the parole release proceedings reveal, as might be expected, his inability to express himself clearly and to present his justifications for parole. Apparently the basic reason for the Board’s refusal to grant parole release has been appellant’s admission of "consorting,” which resulted in revocation of parole in 1965. The attempts of appellant, alone in the room with the Board, to persuade its members *416that he had made a mistake which would not be repeated reflect his own inadequacies and his concern over antagonizing the Board. It requires little imagination to conclude that a trained lawyer could have materially aided both appellant and the Board, unless the inaccurate and unworthy assumption is made that lawyers generally do more harm than good.11 It makes little difference whether present parole personnel are seen as sincere men earnestly doing the best they can in a difficult job,12 or are regarded less favorably.13 On either view, a Parole Board should be interested in such relevant facts as job availability for a prisoner, his family situation, and his progress in self-education. The ability to marshal such facts and to uncover unfairness that a trained lawyer possesses would improve, not injure, the parole release hearing.14
The majority opinion suggests that the “administrative burden * * * would be enormously increased” by allowing counsel at a parole release hearing. But some states already do so,15 and apparently there has been no paralysis of their systems. Nor is it necessary to assume that allowing retained counsel will carry with it an exactly corresponding obligation to appoint counsel for all indigent potential parolees, thus flooding the courts with demands for appointment. While there is force to the equal protection claim, that presents a different question. Thus, the Supreme Court in Chandler v. Fretag, 348 U.S. 3, 9, 75 S.Ct. 1, 5, 99 L.Ed. 4 (1954), which recognized the right to counsel at an “habitual criminal” sentencing, said: “Regardless of whether petitioner would have been entitled to the appointment of counsel, his right to be heard through his own counsel was unqualified.” Similarly, the Task Force Report on Corrections, supra, at 86, notes this distinction and states that “there seems no legitimate reason for limiting representation by retained counsel at parole hearings.” As the Supreme Court observed in Johnson v. Avery, 393 U.S. 483, 489-490, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), there are a number of less than perfect, but acceptable, solutions to the problem of providing counsel to persons deprived of their liberty, outside the hard core of criminal prosecution itself. One solution, which would go far to ameliorating any fears of enormous administrative burdens, would be to appoint counsel only for those prisoners who have been denied parole at their first opportunity therefor.16 Finally, allowing retained counsel at a parole release hearing does not mean that he should be allowed to convert it into a trial any more than counsel could achieve such a result at a sentencing in court.
In short, considering the broad discretion wielded by the Parole Board, the virtually unfettered procedure, the gravity of the consequences to the prisoner, his inability to present his case as well as a lawyer could, the sentencing function of the Board, and the possible burdens of allowing the assistance of retained counsel, appellant’s legal position is persuasive. I conclude that the traditional procedural due process criteria suggest that a prisoner at a parole re*417lease hearing should be entitled to the services of retained counsel.
Turning from these general considerations to the reported cases, so far as I can tell the precedents do not compel us to deny such assistance of counsel. There is authority suggesting that result, which is discussed below, but we are cited to no case in the Supreme Court or in this court which now requires us to take that course.17 On the other hand, there are recent decisions in the Supreme Court and in the courts of appeals which do lend strong support to appellant’s position.
In Mempa v. Rhay, supra, the Supreme Court held unanimously that counsel was constitutionally required at a hearing which combined probation revocation and deferred sentencing. After referring, as indicated above, to the right to counsel at the usual sentencing hearing, the Court went on to note that (389 U.S. at 135, 88 S.Ct. at 257):
It is true that sentencing in Washington offers fewer opportunities for the exercise of judicial discretion than in many other jurisdictions. The applicable statute requires the trial judge in all cases to sentence the convicted person to the maximum term provided by law for the offense of which he was convicted. Wash.Rev.Code § 9.-95.010. The actual determination of the length of time to be served is to be made by the Board of Prison Terms and Paroles within six months after the convicted person is admitted to prison. Wash.Rev.Code § 9.95.040.
Nevertheless, the Court held that counsel was necessary because the sentencing judge and the prosecutor furnish the Washington Board of Prison Terms and Paroles with a recommendation as to the length of time the defendant should serve, and the Board “places considerable weight on these recommendations.”
The Court then stated (id., 88 S.Ct. at 257):
Obviously to the extent such recommendations are influential in determining the resulting sentence, the necessity for the aid of counsel in marshaling the facts, introducing evidence of mitigating circumstances and in general aiding and assisting the defendant to present his case as to sentence is apparent.
I do not suggest that Mempa is either controlling or indistinguishable. Obviously, it is neither. Emphasizing that more was involved than sentencing, the Court observed that “certain legal rights may be lost if not exercised” at the hearing in court, e. g., the right to appeal or to withdraw a prior plea of guilty. Moreover, the question in Mem-pa was the right to counsel at the judicial proceeding, “whether it be labeled a revocation of probation or a deferred sentence,” 389 U.S. at 137, 88 S.Ct. at 258, not at a later hearing before the Board, the question before us now. Yet the case indicates that the Constitution requires counsel at all sentencing proceedings, and that “sentencing” is not confined to what a judge first prescribes after trial. In both Mempa and the companion case, Walkling v. Board of Paroles, the defendant had first been sentenced to a term of probation to begin after serving a term of imprisonment and after making restitution to the defendant’s victim. Id. at 130, 132, 88 S.Ct. 254. The right to counsel issue was raised at a second sentencing hearing, which took place months (as in Mempa) or years (as in Walkling) later. The same was true in McConnell v. Rhay, supra, which held Mempa retroactive. To the extent that Mempa emphasized the need for counsel in sentencing by a judge presumably trained in fact-finding and operating within a structure of traditional objectivity and impartiali*418ty, one may ask whether counsel is not a fortiori required at a sentencing hearing by a Parole Board. Moreover, because the role of the trial judge in Mempa was so limited (he could only impose the “maximum term”), the true role of counsel was to produce facts for the future use of the Parole Board. Accordingly, I believe that Mempa supports appellant’s assertion that he is entitled to the services of counsel before the New York Parole Board for the purpose of “in general aiding and assisting the defendant to present his case as to sentence.” Mempa, supra, 389 U.S. at 135, 88 S.Ct. at 257. Cf. Hewett v. North Carolina, 415 F.2d 1316, 1322 (4th Cir. 1969), and Ashworth v. United States, 391 F.2d 245 (6th Cir. 1968) (per cu-riam), both holding that because of Mem-pa, counsel is now required at revocation of probation proceedings. See also Cohen, Sentencing, Probation, and the Rehabilitative Ideal: The View from Mempa v. Rhay, 47 Tex.L.Rev. 1 (1968).
Moreover, there are other recent decisions that support appellant’s position. In Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), the Court struck down a prison regulation barring inmates from furnishing assistance to other prisoners in the preparation of petitions for post-conviction relief. In Goldberg v. Kelly, 397 U.S. 254. 270, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), the Court held that a welfare recipient is entitled to certain due process procedural protections before termination of benefits, including the right to representation by retained counsel at a hearing. Similarly, the meaning of constitutional due process has been expanded in other analogous areas. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L. Ed.2d 527 (1967), made clear that counsel was required in a juvenile proceeding. Cf. Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966) . In Specht v. Patterson, 386 U. S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967) , the Court held that where the basis for sentencing as a sexual offender was not the finding of guilt, but a new finding of fact, e. g., that the defendant, if at large, constituted a threat of bodily harm to the community, due process required that an adversary hearing be held. In United States ex rel. Schuster v. Herold, 410 F.2d 1071, 1073 (2d Cir. 1969), this court held that before a prisoner may be transferred to a state institution for insane criminals, “he must be afforded substantially the same procedural safeguards as are provided in civil commitment proceedings.” In reaching that conclusion, we relied heavily on another recent Supreme Court decision, Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966). In Shone v. Maine, 406 F.2d 844 (1st Cir.), vacated as moot, 396 U.S. 6, 90 S.Ct. 25, 24 L.Ed.2d 6 (1969), the court extended due process procedural protections to juvenile offenders about to be transferred from a boys’ training center to a men’s correctional center.
Once again, I do not suggest that these decisions are indistinguishable. They did not involve parole release proceedings ; moreover, some of them relied in whole or in part on a constitutional theory — denial of equal protection of the laws — which does not so obviously apply here, since the Parole Board regulation bans counsel for rich and poor alike.18 The majority opinion attempts to distinguish some of these cases on the ground that they involve an “interest * * * presently enjoyed,” and appellant does not now “enjoy freedom of movement beyond the prison walls.” With all respect, I submit that the distinction is unsound; what is most significant is the type of “interest” involved and the *419potential effect of the hearing upon it, not whether the “interest” is already held. The decisions discussed above persuade me that when the immediate stakes of a hearing are imprisonment or freedom, due process commands that a prisoner be allowed at least to have the assistance of retained counsel.
The majority points out that a number of other circuits have, at various times in the more or less recent past, stated that counsel is not required as a constitutional matter in parole revocation procedures and thus a, fortiori the Constitution could not require counsel in parole release hearings. Three of the most recent cases cited, United States ex rel. Halprin v. Parker, 418 F.2d 313 (3d Cir. 1969); Cotner v. United States, 409 F.2d 853 (10th Cir. 1969); and Earnest v. Willingham, 406 F.2d 681 (10th Cir. 1969), deal with the obligation to furnish appointed counsel to indigents in revocation proceedings. Except for Earnest, the cases do not discuss whether retained counsel can constitutionally be banned, and Earnest is based upon a right-privilege distinction which was undermined by Goldberg v. Kelly, supra. See note 17 supra.
Of the remaining circuit court cases cited, only three were decided after the recent decisions of the Supreme Court in Mempa and all preceded Goldberg v. Kelly. Of those three, only the opinion of the Tenth Circuit in Williams v. Patterson, 389 F.2d 374 (1968), and the opinion of the Sixth Circuit in Rose v. Haskins, 388 F.2d 91 (Celebrezze, J., dissenting), cert. denied, 392 U.S. 946, 88 S.Ct. 2300, 20 L.Ed.2d 1408 (1968), deal with Mempa; with all respect, I disagree with the distinction of Mempa in those cases (and in Briguglio v. New York State Board of Parole, 24 N.Y.2d 21, 298 N.Y.S.2d 704 (1969), also relied on by the majority). Mempa was regarded as having more substantial effect in the later Sixth Circuit decision in Ashworth v. United States, 391 F.2d 245 (1968), and in a very recent decision of the Fourth Circuit. See Hewett v. North Carolina, 415 F.2d 1316 (1969).
In any event, I do not claim that the question before us can be decided by a tally of the cases. I suggest only that the issue whether retained counsel may be banned at a parole release proceeding is at this time an open one in this circuit and in the Supreme Court, and that the most recent decisions of the Court support the view that such a rule offends procedural due process. Accordingly, I would hold that appellant at his next parole release interview cannot be denied such assistance.
III.
Appellant’s complaint sought additional relief, including the right “to cross-examination and to present favorable evidence and compel the attendance of favorable witnesses,” notice of charges, and specification of grounds upon which the parole release determination was based. At oral argument, most — and perhaps all — of these additional demands were apparently withdrawn or waived. Therefore, extended consideration of these alleged rights is out of place at this time. My basic approach would be to afford appellant no more in the way of these procedural protections than he is constitutionally entitled to at a sentencing proceeding before a judge, and apparently he has received that.
In sum: I conclude that minimum procedural due process requires New York to allow appellant the assistance of retained counsel at a parole release hearing. Because the majority opinion denies that right, I dissent.
. Another action in the district court raising substantially the same issues did seek injunctive relief and the convening of a three-judge court. An appeal is presently pending in this court, Docket No. 34300, from the district court’s refusal to convene, a statutory court because the constitutional issue was insubstantial. Lewis v. Rockefeller, 305 F.Supp. 258 (S.D.N.Y. 1969).
. Appellant also advances an equal protection argument. See note 18, infra.
. See Burger, No Man is an Island, 56 A.B.A.J. 325 (1970) ; R. Dawson, Sentencing 3 (1969).
. The State of New York apparently agrees. In its brief in this court in Lewis v. Rockefeller, Docket No. 34300, referred to in note 1, the State conceded at p. 19:
It must be remembered that in imposing a sentence on a criminal defendant, a trial court is determining that an individual must be supervised or confined, for the good of the community or for his own protection. At the time of sentence, the court establishes the maximum period of custody during which the correction and rehabilitation of the defendant is expected to take place. The key to the rehabilitative process is the use of various levels of custody in the correctional treatment program.
Parole is one level or form of custody * * * it is still part of the correctional process. * * *
. 18 U.S.C. §§ 4201, 4208; N.Y.Penal L. § 70.40.
. 18 U.S.C. § 4208(a) (1).
. See, e. g., 19 Penn.Stat.Ann. §§ 1166, 1172; 39 Colo.Rev.Stat. §§ 19-1, 6-8.
. S.Rep.No.2013, 85th Cong., 2d Sees. (1958), 1958 U.S.Code Cong. & Adm. News, pp. 3891, 3892.
. Compare N.Y.Penal L. §§ 65.00 and 65.05, with N.Y.Corr.L. § 213.
. N.Y.Corr.L. § 212.
. See Kadish, The Advocate and the Expert — Counsel in the Peno-Correctional Process, 45 Minn.L.Rev. 803, 806 (1961).
. E. g., Martin v. United States, 182 F. 2d 225 (C.A. 5th Cir. 1950) ; McKinney v. United States, 93 U.S.App.D.C. 222, 208 F.2d 844 (1953) ; Nunley v. United States, 283 F.2d 651 (C.A. 10th Cir. 1960).
. The majority opinion disavows such an assumption. See note 2 to its opinion.
. See Jackson, Parole Board, 69 Life, July 10, 1970, at 54.
. W. Gaylin, In the Service of Their Country, War Resisters in Prison, 332-42 (1970).
. See the discussion in Radish, The Advocate and the Expert — Counsel in the Peno-Correctional Process, 45 Minn.L. Rev. 803, 829-30. See also Task Force Report on Corrections, supra, at 86.
. See note 1 of the majority opinion.
. Statistics show that the great majority of initial parole release applications are granted. E. g., in New York in 1967, 2,743 out of 4,278, or approximately 65%, of the persons appearing for parole for the first time were granted it. 38th Annual Report, Division of Parole, Table 9, p. 222.
. The majority, in note 3, cites Escoe v. Zerbst, 295 U.S. 490, 492-493, 55 S.Ct. 818, 79 L.Ed. 1566 (1935), and Jay v. Boyd, 351 U.S. 345, 354, 76 S.Ct. 919, 100 L.Ed. 1242 (1956). Neither is a direet holding on the issue raised here, and the “right-privilege” dictum in each would seem undermined, if not overruled, by Mempa v. Rhay, supra, and Goldberg v. Kelly, supra.
. Query, however, whether other theories of denial of equal protection may not be invoked; e. g., is a prisoner whose sentence .is effectively determined by a Parole Board entitled to less assistance of counsel than a defendant whose sentence is determined by a judge, or a prisoner about to be transferred to a hospital for the criminally insane, cf. United States ex rel. Schuster v. Herold, supra? See appellant’s brief, pp. 33-36.