OPINION OF THE COURT
This appeal requires us to determine whether certain Delaware prison officials violated an inmate’s constitutional rights when, because of their fear of adverse public reaction and legislative reprisals against the prison system, they denied his applications for work release.
Following the denial of his work release applications, the inmate, Thomas H. Win-sett, brought a civil rights action in the United States District Court for the District of Delaware under 42 U.S.C. § 1983 (1976) and the fourteenth amendment to the federal constitution. In this action, Winsett sought compensatory and punitive damages as well as injunctive and declaratory relief. The prayer for injunctive relief, inter alia, sought to restrain the prison officials from considering possible public reaction and possible reprisal by the Delaware General Assembly when evaluating his future applications for admission to the program. Following a lengthy trial, the district court rejected Winsett’s claims and entered judgment in favor of the defendants. This appeal followed.
We conclude that the request for injunc-tive relief is moot; that Winsett’s prayer for damages is permissible as to two of the defendants, subject to certain findings to be made by the district court concerning official immunity and the measure of plaintiff’s
I.
Winsett was convicted in 1964 and sentenced to life imprisonment for the felony murder of Robert Paris, a Delaware State Police Officer. The killing aroused a pervasive public outrage throughout the state.1 As certain prison officials would later put it, “Winsett [was] singled out for more public and political attention than other inmates we know of [,] even those whose crimes were more serious. . . . ”
Winsett was duly confined in the Delaware Correctional Center to begin his sentence. During the next ten years leading up to the initiation of this litigation, Win-sett was a model prisoner. He pursued courses in heating and air conditioning, did maintenance work for the prison, wrote weekly articles about prison life in a prison newspaper, and got along well with other inmates and officers. On September 16, 1974, believing himself to be sufficiently rehabilitated to adjust to life outside the prison, Winsett requested classification to work release status. 425 F.Supp. at 610. Work release is a program by which prisoners are permitted to maintain employment in the community while still under correctional supervision. Releasees return to a correctional institution or a residential center after the completion of each workday. The work release program in Delaware is governed by 11 Del.C. § 6533(a). That section, at the time of Winsett’s initial application, provided:
(a) The Department may adopt rules and regulations governing the employment or education of trustworthy inmates outside the institutions . . . except that whenever the Department requests placement of inmates in a school of a reorganized school district, the approval of the board of education of that district shall be a prerequisite to such placement. 2
Pursuant to this statutory authority, the Delaware Department of Corrections adopted a set of rules, also applicable at the time of Winsett’s September 1974 application for work release.3 .Together, the statute and
Approval for work release requires the concurrence of three levels of decisionmak-ers. A prisoner must first apply to an appropriate “classification team.” In Win-sett’s case, this first level review was carried out by the Minimum Security Building Classification Team. That team approved his application for work release. Its recommendation was then forwarded to the so-called Institution Classification Committee which also approved Winsett’s application. 443 F.Supp. at 1370; 425 F.Supp. at 610.
As Winsett’s application was working its way up to Superintendent Raymond W. Anderson for his final approval, public opposition to granting work release to Winsett became increasingly evident. One manifestation of this growing opposition was an August 7,1974 letter addressed to Delaware Correctional Center Superintendent Anderson and written by Delaware State Senator Cicione. The letter strongly condemned what the Senator believed to be Anderson’s intention to prepare Winsett for work release. “As a State Senator,” the author declared, “I demand that you reconsider and retract the actions already taken and take immediate steps to return Winsett to the ranks of regular prison restrictions.”
The letter elicited an equally strong response from Superintendent Anderson. On August 8, 1974, more than a month before Winsett applied for work release, defendant Anderson wrote the Senator, informing him that “as long as I am Superintendent of the institution, I shall never be able to entertain any requests from Tom [Winsett] in regards to Work Release. . . .” The Senator “greatly appreciated” this response and “commend[ed Anderson] for [his] stand on not allowing Mr. Winsett to participate in the work-release program.” On September 26, 1974, Superintendent Anderson rejected Winsett’s application for work release.
Thereupon, on October 15, 1974, Winsett initiated this action. He alleged that the defendants’ decision was predicated on the “sensitivity” of his offense, and charged that such a factor is “a legally impermissible” basis for evaluating work release applications. Winsett proceeded against F. Earl McGinnes, Secretary of the Delaware Department of Health and Social Services, Paul W. Keve, Director of the Delaware Division of Adult Corrections and later Acting Commissioner of the Delaware Department of Corrections, Raymond W. Anderson, Superintendent of the Correctional Center, and Donald Davis, Deputy Superintendent of the Delaware Correctional Center.4
While this action was pending in the trial court, Winsett applied a second and third time for work release. His second application, filed in early March of 1976, was approved by both the Minimum Security Building Classification Team and the Institution Classification Committee. However, Milton Horton, then Assistant Director of the Adult Division, recommended that Win-sett’s “application be deferred until [a] decision on [the] transfer” was made.5 Paul
Winsett filed his third and final application for work release in November, 1976. Again he was approved by the Minimum Security Building Classification Team and the Institution Classification Committee. A third committee, newly created by the General Assembly and entitled the Institutional Release Classification Board, also approved Winsett’s application. The application was vetoed, however, by Milton Horton, now Assistant Bureau Chief of Adult Correction. Horton advanced three reasons for his veto decision: (1) the seriousness of the offense; (2) the lack of a certified parole release date, which he believed was required by the existing guidelines; and (3) Winsett’s previous history of model conduct during incarceration in other institutions for offenses committed prior to the Paris murder, and that his good conduct during his present incarceration should therefore be given less weight. This veto was approved by then Commissioner James T. Vaughn.
Following the denials of Winsett’s second and third applications for work release, additional defendants Milton Horton, James Vaughn, and Superintendent Walter W. Redman were joined in the action.6 On December 30, 1976, the district court, in a preliminary jurisdictional ruling, held that plaintiff’s request for injunctive relief, insofar as it sought his immediate admission to work release, would be denied. 425 F.Supp. at 613. The court based its ruling on the Supreme Court’s decision in Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), which held that “when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus[,]” with the attendant requirement of exhaustion of state remedies. Id. at 500, 93 S.Ct. at 1841. Winsett has not appealed from that decision. The court also held that Winsett’s claims for damages, and for declaratory relief as a predicate to damages, could be entertained on the merits. 425 F.Supp. at 612-13. Implicitly, the court further held that, insofar as Winsett’s plea for injunctive relief was intended not to secure his immediate release but simply to prevent the future application of impermissible standards in evaluating his work release requests, that injunctive action could be heard in a federal forum.
Winsett’s case went to trial on July 21, 1977. At the outset, his lawyer made clear that the primary objection was to the allegedly impermissible standards used in rejecting Winsett’s applications for work release. Superintendent Anderson acknowledged the correspondence with Senator Ci-cione, and admitted that the Senator’s Chairmanship of the Joint Finance Committee was a matter of particular concern to the administration of the corrections system. He also acknowledged that he had been aware of the possibility that Paul Keve might not be confirmed by the Senate, given its displeasure with the prison system. Anderson was also examined with respect to his answers to certain interrogatories which seemed to indicate that his rejection of Winsett’s initial application was influenced primarily by public pressure in general and the complaints of “[t]he State Police and certain Senators” in particular.
Appellee Keve’s testimony was even more revealing. The Legislature, Keve noted,
Keve acknowledged that if he had taken steps toward granting Winsett work release, relations between the prison system and the legislative leadership would have suffered.7 Indeed, he noted, the rejection of Winsett’s second application had nothing at all to do with the existing eligibility criteria. Rather, it was the result of “intense legislative pressure.” Had it not been for this pressure, Keve admitted, Winsett would have gone on work release. Although this pressure apparently was not formal legislative action, it was very difficult for him to take “any kind of decisive action in that particular job without incurring some displeasure of somebody and very, very frequently legislators.” He knew he could expect some “praise from one kind of legislator and intensive criticism from another kind.” He therefore had to weigh Winsett’s best interests and the effect of his release on the overall program and other inmates.8 The trial court rendered its decision on January 31, 1978. It found that the denials of Winsett’s first and second applications for classification to work release “were motivated at least in substantial part by prison officials’ concern about a possible retaliation by the Delaware General Assembly.” 443 F.Supp. at 1371. In the case of the second denial, the court was convinced that “Acting Commissioner Keve believed that he had an alternative approach to work release which would better serve Winsett’s interests.” Id. The court further found that the rejection of Winsett’s third application “was not motivated by [a] concern with possible retaliation by the General Assembly or by a concern for public reaction.” Id.
Although it found the first two rejections to have been largely the product of prison
The trial court also rejected Winsett’s equal protection claim. It held that his failure to allege or prove any class-based discrimination precluded recovery under the Equal Protection Clause. Accordingly, although it acknowledged the rather striking irregularities in the first two refusals of his work release applications, the trial court denied all of Winsett’s requests for relief.
Winsett appealed. On May 17, 1977, while the appeal was pending, Winsett was granted parole with the condition that he be transferred to a correctional institution in another state and serve four years in that institution prior to his release to parole supervision. On November 16, 1978, Win-sett was transferred to Kilby Correctional Facility near Montgomery, Alabama. As we explain in more detail below, this transfer measurably changes the scope of available relief.
II.
We note at the outset that whatever may be the defendants’ substantive liability, Winsett’s demand for injunctive relief is now moot. The only injunction sought by Winsett in this appeal is one to restrain the defendants from continuing to rely on allegedly impermissible criteria in evaluating his future applications for work release. Because Winsett has now received a conditional parole, is no longer subject to Delaware’s jurisdiction, and shows no interest in returning,9 his injunctive request no longer implicates “an actual controversy at [this] stage ... of review . . . .” Steffel v. Thompson, 415 U.S. 452, 459 n. 10, 94 S.Ct. 1209, 1216, 39 L.Ed.2d 505 (1974).10 There is no evidence on the record suggesting that Winsett is currently harmed in any respect by whatever legislative animosity influenced past evaluations of his work release petitions. Cf. Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974) (even though injunction was dissolved with the end of a strike, employers still retained sufficient interests and injury to warrant declaration that state welfare benefits plan for strikers was invalid); Carroll v. President & Commissioners of Princess Anne, 393 U.S. 175, 178, 89 S.Ct. 347, 350, 21 L.Ed.2d 325 (1968) (court decision continues to affect official response to rally). Nor do we have any reason to suppose that there may be future occasions on which Winsett will again confront similar treatment. Cf. Southern Pacific Terminal Co. v. I. C. C., 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911) (short term orders of ICC are capable of repetition, yet evading review). Furthermore, Winsett did not file his complaint as a class action, in which the need for injunctive relief often survives the mootness of the class representative’s interest. See, e. g., Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975).
Winsett’s transfer to Alabama vitiates any need to enjoin the application of allegedly impermissible criteria in his case, and because none of the exceptions to the traditional mootness doctrine is present, we will vacate the district court’s disposition of plaintiff’s injunctive claim and remand with a direction to dismiss.11 United States v.
III.
Although Winsett’s claim for injunctive relief is now mooted, his claims for damages, and for declaratory relief as a predicate to damages, are not. Although he has not demonstrated that the threatened application of impermissible criteria poses any likelihood of ongoing or prospective harm, it is conceivable that past applications may give rise to damages. For example, prison officials acknowledged at trial that work release may favorably affect an inmate’s chances for an early parole. In addition, work release is a source of wages for the working inmate. Where such claims remain, the foreclosure of injunctive relief does not moot a party’s entire cause of action.12 We therefore turn to Winsett’s substantive attack on the allegedly impermissible criteria applied in his applications for work release.
A. Due Process
Winsett argues in this court, as he did in the district court, that the Delaware Department of Correction, by establishing a work release program and by promulgating standards for its administration created a protectible state law interest in participation in the program by eligible inmates. He contends that the use of impermissible criteria by the Department in denying him access to the work release program denied him his right to “liberty” guaranteed by the fourteenth amendment.
Winsett’s due process claim has both procedural and substantive overtones. It is procedural in the sense that the alleged use of impermissible criteria by the Department denied Winsett of the process of work release application review required under the Delaware regulations. His due process claim is substantive in the sense that regardless of any procedural rights, the application of impermissible criteria deprived him, as contrasted with other eligible inmates, of access to the work release program. Regardless of whether Winsett’s due process claim is substantive, procedural, or an amalgam of both, he must have a protectible liberty or property interest in order to invoke the protection of the fourteenth amendment. We therefore first consider whether any protectible fourteenth amendment interest is implicated in the Delaware work release program.
It is well-settled that when a person is lawfully incarcerated for the conviction of a crime, that person’s constitutional rights become circumscribed. Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1059, 92 L.Ed. 1356 (1948). The Supreme Court has been careful to indicate, however, that although a prisoner’s rights “may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisoners of this country.” Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974).
Inasmuch as a prisoner’s liberty is most directly implicated by his imprisonment, the Supreme Court has struggled to define the extent of a prisoner’s fourteenth amendment liberty interest. The Court has been generally reluctant to find a constitutionally protected liberty interest while a prisoner is still under actual confinement.13
Even if the Constitution is not the source of a prisoner’s potential liberty interest in various aspects of his confinement, the Supreme Court has been willing to extend fourteenth amendment protection when a state has itself created a liberty interest in the form of a specific guarantee. In Wolff, supra, the Nebraska legislature had provided for a “good-time credit” system under which a prisoner’s sentence could be reduced for good behavior. Under this system, good-time credits could only be forfeited through “serious misconduct.” The Court held that because the state created the right to good-time credits which could only be removed if the prisoner engaged in serious misconduct, “the prisoner’s interest has real substance and is sufficiently embraced within Fourteenth Amendment ‘liberty’ to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated.” 418 U.S. at 557, 94 S.Ct. at 2975. Indeed, the Court’s non-recognition in Meachum of a constitutional liberty interest in prison transfers must be viewed in light of the absence of any state-created right to remain in the prison of original commitment. See 427 U.S. at 226-27, 96 S.Ct. at 2539.
But the Court in Greenholtz acknowledged that although there was no constitutionally cognizable liberty interest in access to a discretionary parole system, “the expectancy of release provided for in [the Nebraska parole] statute” may be entitled to some measure of constitutional protection. 442 U.S. at 12, 99 S.Ct. at 2106. The Court cautioned, however, that the existence of a statutorily created liberty interest depends upon the statutory language and “must be decided on a ease-by-case basis.” Id.
From this review of Supreme Court precedent, it becomes evident that Win-sett’s claim of a liberty interest in participation in the Delaware work release program must be grounded either in the Constitution or in the statutorily-set schema for work release in Delaware. Winsett does not-press for a constitutionally-based liberty interest in work release. He also concedes that the language of 11 Del.C. § 6533 does not create a protected interest entitling him to participate in the work release program. The fundament of his claim is the set of regulations promulgated by the Department to implement the basic legislative grant of authority to create a work release program. It is this set of comprehensive regulations which Winsett claims creates the liberty interest subject to fourteenth amendment protection.
Initially, we do not believe that Win-sett’s concession that the statute itself does not create the state-created right is fatal to his case, for we believe the right may be established in the regulations implementing the statute. In Durso v. Rowe, 579 F.2d 1365 (7th Cir. 1978), cert. denied, 439 U.S. 1121, 99 S.Ct. 1033, 59 L.Ed.2d 82 (1979), the Seventh Circuit, although declining to find a liberty interest in a work release statute, nevertheless held that if the prisoner could
The district court in the instant case declined to find a state-created liberty interest because, even though Winsett met all the criteria for eligibility, it believed that the work release statute and regulations did not deprive the program of its “essentially discretionary character.” 443 P.Supp. at 1373. Although it acknowledged Winsett did meet all the criteria for work release but was denied work release status by the exercise of the prison officials’ discretion, the court concluded Winsett never had any state-created entitlement to work release. We disagree.
The work release statute and the regulations envision the grant of work release when a prisoner meets certain eligibility criteria and the prison authorities, exercising their sound discretion, concur that work release is appropriate. The presence of discretion on the part of the prison authorities in the work release program does not negate the possibility that a state-created entitlement to work release may exist, because we do not view the prison authorities’ discretion as absolute. If the prison authorities could by the arbitrary exercise of discretion deny a work release application to a prisoner even though he met all eligibility requirements, then any entitlement to work release would be illusory rather than real. The trial court apparently perceived the discretion vested in the Delaware prison authorities as unbridled, rendering any claim of entitlement to work release an illusion. We are not persuaded, however, that the Superintendent’s discretion under the state regulations in granting work release is as boundless as the trial court believed.
The authority of the Department of Corrections to adopt regulations governing work release stems from the work release statute, 11 Del.C. § 6533(a). Although the trial court may be correct that the regulations adopted do not exhaust the criteria pertinent to a decision whether or not to grant work release, it is by no means clear that the Superintendent may, under the rules, invoke any criterion he chooses. First, the state has established an elaborate institutional system for processing work release applications, a system that at various times has included at least two and sometimes three separate committees whose recommendations were forwarded to the Superintendent. We cannot believe that those committees, whose function apparently involved making rather detailed evaluations of inmates’ fitness for work release, were intended to be overridden for any reason chosen by the Superintendent, however unrelated to the statutory purpose of section 6533.
More critically, 11 Del.C. § 6533(a), under which the regulations were promulgated, is itself subordinate to section 6531, which sets forth the programs — including work— which the Commissioner must establish, and the purposes those programs must serve. That section provides, in pertinent part:
Persons committed to the institutional care of the Department shall be dealt with humanely, with effort directed to their rehabilitation, to effect their return to the community as safely and promptly as practicable. The Commissioner shall establish the following programs, and may establish others: Education, including vocational training; work; case work counselling and psychotherapy; library and religious services; commissary; and shall institute procedures for the study of classification of inmates for these purposes.
The regulations promulgated under section 6533(a) must thus satisfy the broad dictates of section 6531: “humane” treatment, “rehabilitation,” and “return to the community
The trial court correctly noted that some other relevant considerations — among which it included the prognosis for the inmate’s behavioral adjustment, the risk of flight, and the inmate’s personal safety— are not specified in the regulations. But those were not the considerations which the trial court found to have motivated the prison officials in evaluating Winsett’s first two applications. Had they been, they could certainly have been justified as consistent with the policies of section 6531. Instead, the underlying reason for the adverse decisions on Winsett’s applications was a lurking fear that an approval would possibly invoke unfavorable public reaction and legislative reprisal. This fear was sparked by communication from one or more of the legislators. Although these reasons may have significance in the broad administration of a prison system, no place has been provided for their consideration in the exercise of discretion whether to grant or deny a prisoner work release under the regulatory provisions.
The trial court’s reasoning, which apparently, would limit protectible interests solely to those which can be described as vested rights, effectively arrogates to the States the power to devise both the interests pro-tectible by due process and the process which is due. Thus, in the trial court’s view, whenever a State conditions an otherwise protectible interest on the outcome of a highly discretionary process, however arbitrary and inadequate in practice, the interest is defeasible and not entitled to due process safeguards. Such a construction of the relevant law is unacceptable. Meachum v. Fano, supra, does not entail such a construction. There, after all, the Court noted that there was no state statutory predicate whatsoever for the right to remain in one prison until certain specified events occurred. Thus, however vital to an inmate’s interests was the desire to remain in one prison, there was no state-sponsored expectation interest which due process would protect.
In Delaware, there are specific criteria for work release which we believe if met, give rise to a liberty interest in work release. Although discretion is vested in the prison authorities to grant or deny work release, that discretion must be exercised consistently with the purpose and policy behind work release. We hold that a state-created liberty interest in work release arises when a prisoner meets all eligibility requirements under the state regulations and the exercise of the prison authorities’ discretion is consistent with work release policy. We conclude that Winsett had a protectible liberty interest in work release because he met all eligibility criteria under the Delaware regulations and the considerations influencing the discretionary denial of work release, namely concern for public reaction and fear of legislative reprisals, were outside the legitimate bounds of the prison officials’ discretionary power. In other words, had they acted within the permissible scope of their discretion, Winsett would have been granted work release. To hold otherwise, would mean that the state-created interest in work release for eligible prisoners could be overridden simply by the prison officials’ abuse of discretion. We therefore conclude that Winsett had a liberty interest protectible under the fourteenth amendment’s guarantee of due process.
Having concluded that Winsett has a pro-tectible state-created interest in work release, we must now consider whether its denial could have violated the fourteenth amendment’s guarantee of due process. Winsett’s argument is primarily substantive in nature. The consideration of impermissible criteria, fear of public outcry and legislative reprisal, brought different treatment to Winsett than any other applicant to the
We believe that Winsett has made out a case of deprivation of his procedural due process rights in the denial of his first two work release applications. The district court found, as we have previously noted, that Winsett’s first and second applications for work release were rejected, at least, in substantial part by prison officials because of a fear of legislative reprisals against the prison system as a whole. The State of Delaware does not contend that these findings were clearly erroneous. We can only conclude that in considering the extraneous criteria, Superintendent Anderson and Commissioner Keve violated the procedure to be accorded Winsett’s work release application, and that Winsett has a cause of action against them for the alleged deprivation of procedural due process.14
B. Equal Protection
The trial court rejected plaintiff’s equal protection attack on the criteria applied to his work release requests. It did so on the ground that Winsett did not allege a class-based discrimination. Because we have found those criteria impermissible on due process grounds, we express no views on Winsett’s equal protection contentions.
IV. Official Immunity
Because the district court found that no constitutional rights were violated, it did not have occasion to reach the issue of the applicability of the good faith immunity defense to Commissioner Keve and Superintendent Anderson. The defendants contend that even if this court finds that Winsett’s constitutional rights were violated, we may not assess damages against Commissioner Keve. Relying on the Supreme Court’s decisions in Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), and Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978), defendants argue that Commissioner Keve enjoys an official immunity from recoveries in damages. They also observe that should we find Superintendent Anderson liable, we
In Wood v. Strickland, supra, the Supreme Court recognized a qualified immunity for school board members. The Court held that
a school board member is not immune from liability for damages under § 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student.
420 U.S. at 322, 95 S.Ct. at 1001. More recently, in Procunier v. Navarette, supra, the Court applied Wood to an inmate’s section 1983 damage action against prison officials. It also made clear that Wood established two separate grounds for rejecting official immunity in a particular case. First, the Court stated:
[T]he immunity defense would be unavailing to petitioners if the constitutional right allegedly infringed by them was clearly established at the time of their challenged conduct, if they knew or should have known of that right and if they knew or should have known that their conduct violated the constitutional norm.
434 U.S. at 562, 98 S.Ct. at 860.
On remand, the district court should consider whether, even though we have found the denial of work release by defendants Anderson and Keve to be constitutionally infirm, they are entitled to the benefit of good faith immunity for actions of officials when they are sued for damages pursuant to section 1983. In that connection, it clearly will be relevant for the court to consider whether the interest which they violated was “clearly established at the time of their challenged conduct,” and whether there were any other factors which could have given them reason to know that their conduct was constitutionally defective.
The second branch of the Wood decision authorizes liability when the official has acted with “malicious intention” to deprive the plaintiff of a constitutional right or to cause him “other injury.” Procunier, supra, 434 U.S. at 566, 98 S.Ct. at 862. “This part of the rule,” the Court has observed, “speaks of ‘intentional injury,’ contemplating that the actor intends the consequences of his conduct.” Id. The court will also need to consider whether its finding that “Commissioner Keve believed that he had an alternative approach to work release which would better serve Winsett’s interests,” 443 F.Supp. at 1371, should shield him from liability under the second branch of the Wood formulation of good faith immunity. The record amply corroborates Keve’s efforts to obtain for Winsett a transfer to the Corrections Department in Minnesota, a transfer which he expressly believed would result in an earlier, and safer, parole. Although Winsett may well have been injured through a loss of earnings and a denial of early parole, the record may preclude a finding on remand that Commissioner Keve acted maliciously toward Winsett.
We agree with the defendants that the case must be remanded to the trial court for findings as to possible malice on the part of Superintendent Anderson. Winsett does not challenge this suggestion. We believe that there is ample evidence in the record from which the district court may make the requisite findings with respect to the applicability of the’good faith immunity defense and that there is no requirement to adduce any additional testimony. Accordingly, we will remand the case to the district court in order that it make the requisite findings as to Anderson’s liability in damages under the malice test articulated in Wood.
V. Proof of Actual Damages
Because it believed that the defendants’ rejection of Winsett’s work release applications violated none of his constitutional rights, the trial court had no occasion to assess what damages Winsett may properly collect. On remand, the trial court, if it
VI. Conclusion
We are not unmindful that sixteen years ago, Winsett was found guilty of the wanton slaying of a Delaware State Police officer. The public outrage generated by that murder apparently has not yet subsided. However, the strength of our legal system is the recognition of the right of all American residents to have their individual cause — even though it be merely an interest in a rehabilitation process — considered on its merits. The right to due process is fundamental in our legal system and must, of necessity, preclude consideration of impermissible reasons. Due process may not be sacrificed because of public outrage and blinding passions of society. Public outrage may at times perform a useful function in our society, but it serves no purpose in fairly and objectively judging the merits of a person for access to a rehabilitation program.
Accordingly, the judgment of the district court will be reversed insofar as it dismisses Winsett’s action for damages against Superintendent Anderson and Commissioner Keve, affirmed insofar as it dismissed Win-sett’s damage claim against Commissioner Vaughn, Superintendent Redman, and Assistant Bureau Chief Horton, and in the denial of injunctive relief on the ground of mootness. The case will be remanded for further proceedings not inconsistent with this opinion.
Each side to bear its own costs.
1.
See Winsett v. McGinnes, 443 F.Supp. 1369, 1369-70 (D.Del.1978); Winsett v. McGinnes, 425 F.Supp. 609, 610 (D.Del.1976).
2.
This section was somewhat revised by an Act of August 5, 1976, 60 Del.Laws, c. 705, codified in 11 Del.C. §§ 6533(a), 6533A. The changes do not affect the disposition of this case.
3.
The rules in effect at that time were entitled “Criteria and Procedure for Statewide Work Education Release.” They provided:
I. Basic Criteria, All Institutions:
1. Within one year of release or parole eligibility date.
2. Demonstrated interest in personal improvement: progress toward increased maturity and self understanding. This will be evaluated on basis of inmate’s work habits, program participation and general adjustment.
II. Basic Procedures:
1. Written application is submitted by inmate, following which it is considered by and must be approved successively by:
a. Classification team
b. Work/education release staff
c. Superintendent
III. Variations:
1. Delaware Correctional Center
a. Applicant must be assigned to Minimum Building before he can apply.
b. Application is made to the Minimum Classification team first, then to the Institutional Classification Team.
2. Sussex Correctional Institution
Classification Committee makes final decision.
3. Women’s Correctional Institution
No variation from basic.
IV. Specific Criteria for Admission to Plum-mer Center:
1. Six months to parole eligibility or release.
2. Sufficient experience in the work/education release program at the institution to have demonstrated a stable, dependable work and adjustment record.
3. Family or personal history associated with Wilmington area.
4. A score of at least 34 points on the scoring tool used by Plummer Center.
NOTE: Exceptions can be made to all of the above procedures. Exceptions must be approved by the Superintendent and Supervisor for Work/Education Release. If there is a conflict between these two, it is to be resolved by a committee of the Superintendent, State Supervisor for Work/Education Release, and Assistant Director for Community Services.
4.
Defendants’ motion for a directed verdict as to F. Earl McGinnes and Donald R. Davis was granted at the close of the plaintiff’s case. 443 F.Supp. at 1369 n. 1. Winsett has not appealed that disposition.
5.
See 443 F.Supp. at 1370. The “transfer” referred to by Horton was a project, ultimately unsuccessful, that Keve had been developing for several months. Essentially, Keve had hoped to work out a contract with the Corrections Department of the State of Minnesota *1001under which the interstate transfer of certain inmates could be accomplished. It was felt that this project would be especially suitable for Winsett.
6.
There is no record of any motion by Winsett to join these defendants, and the testimony at trial indicates that they participated only in their official capacities. We will assume that these defendants were joined as subsequent prison officials as to whom injunctive or declaratory relief, barring similar decisions in the future, might be applicable. Because of our disposition of Winsett’s plea for equitable relief, however, see infra at 1002-1003 and note 11, our consideration of these defendants as formal parties has no effect on their or anyone else’s liability.
7.
With respect to tensions in the summer of 1976 between the Department and legislative leadership, Keve testified:
Q. No. I am saying that were you to take steps which would have been positive with respect to Tom Winsett’s work release, that it would have endangered or at least made more difficult your relationships with the powers in the General Assembly?
A. Yes, it would have. We were already having various kinds of problems with the Legislature being very critical of the Department’s operation, I would say from, oh, very early spring in 1976 right on through the summer. There were efforts in the Senate while it was still in session up to the end of June to make demands upon the Governor for my discharge, for instance, and frequent calls for changes; and, as I said, at the same time there were bills being pushed through the Legislature to circumscribe our privilege of extending outside status to inmates.
8.
Later in the examination of Commissioner Keve,. the court attempted to elicit from the witness precisely how great a factor in his consideration of Winsett’s second application was the Legislature’s intervention. Keve commented:
There is another factor, and in one sense you can say it is a different factor and in another it is inseparable. . . This one I mentioned, the fact that if Mr. Winsett had been put into work release, my assessment of his chances of parole, assuming he is still in Delaware, were such that I would have to assume that he would be in a work release much longer than what we would consider an optimum safe period of time for a person to be in work release, and that certainly was a factor that would reasonably give us much pause. But you see, it is still related to the same basic background condition because you ask, why was he probably not going to get parole very soon, and it goes right back to the same things, the public and legislative attitudes which the Parole Board also realistically had to give much weight to.
9.
Indeed, Winsett indicated to the examining psychiatrist that he planned to return to Alabama once he was paroled because his parents and siblings are located there.
10.
See Note, The Mootness Doctrine in the Supreme Court, 88 Harv.L.Rev. 373, 374-77 (1974).
11.
Because Winsett’s suit for injunctive relief must be vacated, there can be no liability assessed against defendants Horton, Vaughn and Redman. See note 6 supra.
12.
See Note, supra note 10, 88 Harv.L.Rev. at 373.
13.
The Court has been willing to find a liberty interest once a prisoner has regained his freedom even though that freedom is subject to revocation and circumscribed by conditions of parole. See Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (liberty interest in parole revocation).
14.
The dissent would allow public opinion to enter into the administrative decisionmaking process as a permissible and even significant element in granting or denying work release by prison officials. Dissenting opinion typescript at pp. 1014-1015. Under the dissent’s thesis, prison officials could legitimately consider in the exercise of their discretion what they perceive may be public reaction, regardless of its lack of bearing on the prisoner’s qualifications for participation in work release under the established state standards. Such form of deci-sionmaking could be dangerous to and destructive of procedural due process. Public opinion against a prisoner could be orchestrated on notes and chords as discordant as race, creed, ethnic background, labor activities, political views, or other factors having no pertinence to a prisoner’s rehabilitative progress and fitness to participate in a work release program.
We do not deny that society has a legitimate interest in insuring the punishment of crime, especially serious felonies. But society also recognizes that more often than not there is a terminal point to retribution and that it should, as Delaware has done, concern itself with the rehabilitation and return of the prisoner to a productive role in the community. When a state undertakes to provide a work release program for the rehabilitation of its prisoners, some degree of imprecision in determining the eligibility of the candidates may be tolerated. But when discrepant treatment between prisoners is purposeful and participation in work release is denied to one prisoner only because of the Superintendent’s amorphous perception of public opinion, then the laudable purposes of a structured program are skewed by a basic lack of fairness. If work release for a prisoner is not determined solely on the basis of the statutory and regulatory criteria established by the state but may also depend upon what may be perceived public reaction to it, these extraneous considerations can cut both ways. Not only can worthy work release applications be thereby denied but similar influences may compel admittance to the program of undesirable and unqualified applicants.