Journal of Criminal Law and Criminology

Volume 65 | Issue 1 Article 3

1974

Parole and Probation Revocation Procedures afterMorrissey and GagnonH. Richmond Fisher

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Recommended CitationH. Richmond Fisher, Parole and Probation Revocation Procedures after Morrissey and Gagnon, 65 J. Crim. L. & Criminology 46(1974)

THz JouswrA or Cn meAL LAW & CmueoiocyCopyright @ 1974 by Northwestern University School of Law

PAROLE AND PROBATION REVOCATION PROCEDURES AFTERMORRISSEY AND GAGNON

H. RICHMOND FISHER*

I. Inrodu im

The status of parole or probation is one of con-ditioned liberty.' The purpose of parole and pro-bation is to permit a person convicted of a crimeto live outside a prison facility so long as thatperson observes certain rules during the term ofhis sentence.2 In this way, a person may be re-habilitated and become a constructive member ofsociety without being incarcerated for his entiresentence. Although parole and probation were notwithin the contemplation of the authors of theConstitution and Bill of Rights, parole and pro-bation emerged in the nineteenth century as partof an egalitarian movement that found rehabilita-tion a more satisfactory solution to crime andpunishment than the retributive approach of thePuritan ethic.3 Today, parole and probation areintegral parts of the penological system.

Probation and parole procedures are sharplydistinguishable. In the federal system, a courtgrants probation as part of the sentencing processupon entering a judgment of conviction. A courtin ordering probation may impose a sentence of

* Mr. Fisher, formerly the Legislative Assistant tothe Administrative Office of the United States Courts,is presently on the staff of the Criminal Division,United States Department of Justice, Washington,D.C. The views expressed herein are his own and do notreflect the policies of the Administrative Office or theDepartment of Justice.

I Parole is:... the release of an offender from a penal or cor-rectional institution after he has served a portionof his sentence, under the continued custody of thestate and under conditions that permit his rein-carceration in the event of misbehavior.

S. RuBnq, H. WEHorEN, G. EDWARDS & S. RosENz-wEIG, TIm LAW OF Ca mNAL CoRuEcrioN 546 (1963).

Probation is:... a disposition that allows the convicted offenderto remain free in the community while supervisedby a person who attempts to help him lead a law-abiding life.

Id. at 176.See generally, for a discussion of the historical basis

of probation and parole, D. DRESSLER, PRAcricE ANTHEORY or PRoBAZroN AND PARor (2d ed. 1969);F. F.4nn-n, Tam PAROLE PRocEss (1959); C. NEW-MAN, SOURCEBOOK ON PROBATION, PAROLE AND PAR-DONS (3d ed. 1968).2 Morrissey v. Brewer, 408 U.S. 471 (1972).

3 Rubin el al., supra note 1, at 176-79, 543-46.

imprisonment and suspend its execution or maysuspend the imposition of sentence.4 It is the courtwhich judicially sets the conditions, determinesthe period of probation (normally up to fiveyears), modifies probation during its continuance,transfers probation jurisdiction to another judicialdistrict when necessary, issues a warrant for theprobationer's arrest on an alleged probationviolation and conducts the probation revocationhearing.5 The probation officer acts directly forthe court in supervising probation. 6

Parole is another form of conditional release inthe federal system; it rests within the jurisdictionof the United States Board of Parole, an ad-ministrative body.7 In the course of the sentencingprocess, the court may designate a definite timeminimum for parole eligibility less than the normalone-third of the maximum term imposed (whichwould otherwise obtain as the minimum time).8 Thecourt may also fix a maximum period to be servedand may specify that the prisoner may becomeeligible for parole at such time as the Board ofParole may determine.9 This type of "indeter-minate sentence" gives the Board of Parole themaximum freedom in determining the period ofincarceration. Regardless of the court's precatorydeclarations in the sentencing order, the ultimatedecision as to the length of the parole term is leftwithin the discretion of the Board of Parole.0

The Board of Parole administratively establishesthe parole conditions and any modificationsthereof." Federal probation officers superviseparolees as well as probationers, but in overseeingparolees, they are acting for the Department ofJustice and not for the courts.12 It is the Board, or

418 U.S.C. § 3651 (1971).6 18 U.S.C. §§ 3651, 3653 (1971). Probation for a

juvenile may last for a period not exceeding his mi-nority. 18 U.S.C. § 5034 (1971).

6 18 U.S.C. §§ 3654, 3655 (1971).7 18 U.S.C. §§ 4201-10 (1971).818 U.S.C. § 4208(a)(1) (1971). The standard mini-

mal time for parole eligibility is set forth in 18 U.S.C.§ 4202 (1971).

9 18 U.S.C. § 4208(a)(2) (1971).10 18 U.S.C. § 4203 (1971).11 d.

18 U.S.C. § 3655 (1971) (final paragraph).

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a member thereof, which issues a warrant for aparole violation.' Although the two procedures,one judicial (probation) and the other adminis ra-tive (parole), follow different patterns of pro-cedure, both procedures involve one status-theconditional liberty of an offender who is free tolive his life within orderly restrictions. Failure toobserve parole or probation conditions may pro-duce the same result at the conclusion of a revoca-tion proceeding-the loss of liberty. 4

Obviously, probation or parole revocation is aserious matter for the probationer or parolee.Upon forfeiture of his conditional liberty, he willbe returned to prison, often to serve the remainderof his sentence. Recent Supreme Court decisions16

have recognized that, in view of the serious con-sequences which flow from a finding that anoffender has violated his probation or parole, dueprocess protections must be provided to theoffender during the revocation proceeding. Thisarticle will review those decisions, compare themwith existing rights provided to probationers andparolees at revocation hearings in the federalsystem, and make reference to several proposalsto reform parole and probation revocation pro-cedures.

H. The Anomalous Status of Conditioned Liberty

The status of the probationer or parolee isdifficult to analyze. Any analysis must scrutinizethe basic rationale for supervising a convictedman, for monitoring his way of life and for im-posing restraints on his lifestyle that would beconsidered unwarranted intrusions into theordinary citizen's privacy. Beyond such analysis,however, it is necessary to justify the procedureswhich support the termination of an offender'sliberty when he breaches the conditions of hisrelease. Courts have relied on several theories torestrict the parolee's or probationer's right to dueprocess protections. Courts commonly refer tothese rationales as the grace theory, the contract

1318 U.S.C. § 4205 (1971)." The Supreme Court recognized in Gagnon v. Scar-

pelli, 411 U.S. 778, 782 (1973), that in determining theprocedural guarantees mandated by the due processclause for revocation hearings, probation and parolerevocations would be treated in the same manner since,although neither procedure is part of a criminal prose-cution, both result in the loss of liberty. Thus, in dis-cussing the due process protections to be provided anoffender in a revocation proceeding, the rights of theprobationer and parolee will be considered together.

Is Gagnon v. Scarpelli, 411 U.S. 778 (1973); Mor-rissey v. Brewer, 408 U.S. 471 (1972).

theory, the custody theory and the parens patriaetheory.

The grace theory provides that the prisoner'srelease is not a right to which he is entitled, butrather is a privilege, a merciful act by the court orby the parole board.16 Through the grace theory,courts have justified the denial of minimal legalprotections to probationers and parolees. Sinceparole or probation is a gift, it may be limitedwith conditions imposed by the grantor of paroleor probation.

The contract theory arises from the fact thatoffenders must sign forms specifying the conditionsof their liberty. This theory holds that an agree-ment similar to any business contract exists be-tween the prisoner and the state. The contracttheory asserts that acceptance of the contractrequirements by the prisoner estops him fromcomplaining about its terms, since the prisonerwas free to reject the restrictions on his libertywhich were offered to him.17

Probationers are in the custody of the court andparolees are in the custody of the Board of Parole. 8

Chief Justice, then judge, Burger set forth thecustody theory in Hyser v. Reed,x9

A paroled prisoner can hardly be regarded as a"free" man; he has already lost his freedom by dueprocess of law and, while paroled, he is still a con-victed prisoner whose tentatively assumed progresstoward rehabilitation is in a sense being "fieldtested". Thus it is hardly helpful to compare hisrights in that posture with his rights before he wasduly convicted. 20

The custody theory restricts the prisoner'sstatus to that of a "quasi-prisoner" and shieldshim from judicial review on non-constitutional

16 The grace theory derives from justice Cardozo'sdictum in Escoe v. Zerbst, 195 U.S. 490, 492 (1935), that"... [p]robation or suspension of sentence comes asan act of grace." See Fuller v. State, 122 Ala. 32, 26 So.146 (1899), Curtis v. Bennett, 256 Iowa 1164, 131N.W.2d 1 (1964), cert. denied, 380 U.S. 958 (1965);People v. Marks, 350 Mich. 495, 65 N.W.2d 698 (1954).

"7 See United States v. Wilson, 32 U.S. (7 Pet.) 149(1833); United States ex rel. Randazzo v. Follette, 282F. Supp. 10, 15-16 (S.D.N.Y. 1968), a.ff'd, 418 F.2d1319 (2d Cir. 1969), cert. denied, 402 U.S. 984 (1971);Ex parte Edwards, 78 Okla. Crim. 213, 219-20, 146P.2d 311, 314 (1944).

18Thompson v. United States Board of Parole, 375U.S. 957 (1963); Padilla v. Lynch, 398 F.2d 481 (9thCir. 1968); Hyser v. Reed, 318 F.2d 225 (D.C. Cir.),cerl. denied, 375 U.S. 957 (1963); Dillingham v. UnitedStates, 76 F.2d 35 (5th Cir. 1935).

19318 F.2d 225 (D.C. Cir.), cert. denied, 375 U.S. 957(1963).

20 Id. at 235.

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H. RICHMOND FISHER

grounds. A corollary of the custody theory is theparens patriae theory. The parens patriae theoryholds that the goals of the Board of Parole orcourt are in union with the goals of the parolee orprobationer. Both parties desire the offender'srehabilitation; therefore, judicial examination ofprocedures employed against the probationer orparolee becomes unnecessary 2'

The above theories which support the denial ofdue process protections to a probationer or paroleehave been eroded to a great degree by judicialdecisions. The Supreme Court in Morrissey v.Brewer2 rejected the entire right/privilege rationalewhich supported denial of due process in parolerevocation hearings. The Court recognized thatparole revocation is not part of a criminal prosecu-tion and that parole revocation deprives an in-dividual not of absolute liberty but only of theconditional liberty which hinges on compliancewith parole restrictions. However, the Courtrecognized that "... . this Court now has rejectedthe concept that constitutional rights turn uponwhether a governmental benefit is characterizedas a 'right' or as a 'privilege'. " 28 In addition, theCourt has determined that the loss which theindividual will suffer must control the extent towhich procedural protections will be provided forthe individual.24 Parole and probation have be-come accepted parts of the criminal justice system.To view probation or parole as an "act of grace"is to ignore the correctional goals of the penologicalsystem.

In addition to the downfall of the right/privilegedistinction, many courts have questioned theconstructive custody theory announced in Hyser v.Reed.25 These courts indicate that there is not acomplete loss of due process protections upon acriminal conviction. 2 The custody concept also

21 See generally concerning theories relied upon bycourts to justify the denial of due process rights toprobationers and parolees, Van Dyke, Parole RevocationHearings in California, 59 CAm. L. REv. 1215, 1243-54 (1971); Comment, Parole: A Critique of Its LegalFoundations and Conditions, 38 N.Y.U.L. REv. 702(1963); Comment, The Parole System, 120 U. PA. L.REv. 282, 286-95 (1971)." 408 U.S. 471 (1972). See Joyce v. Strassheim, 242

Ill. 359, 90 N.E. 118 (1909).1 Gagnon v. Scarpelli, 411 U.S. 778, 782, n.4 (1973);

Graham v. Richardson, 403 U.S. 365, 374 (1971);Hewitt v. North Carolina, 415 F.2d 1316 (4th Cir.1969).

2 Goldberg v. Kelly, 397 U.S. 254 (1970).25 318 F.2d 225 (D.C. Cir.), cert. denied, 375 U.S. 957

(1963).2 6See, e.g., Jackson v. Bishop, 404 F.2d 571, 576

(8th Cir. 1968); Sostre v. Rockefeller, 312 F. Supp. 863

conflicts directly with the practice of forfeitingrelease time upon violation of a parole or proba-tion condition. If one sentenced or reincarceratedfor a violation of his conditioned liberty agreementreceives no credit for his time spent on probationor parole, how can it be said that he was "incustody" during the period of conditional liberty?

The parens patriae theory, an alternative basisfor denying parolees counsel at a revocation hearingin Hyser is also subject to question. In re GaulP7

contains the basic theoretical attack upon theview that, in correctional situations, the govern-ment and the individual pursue identical goals.In Gault, the Court overturned the use of informaljuvenile court proceedings and required thatspecific due process protections be provided to ajuvenile in proceedings which might lead to thejuvenile's commitment. The Supreme Courtaccepted arguendo the respondent's contentionthat procedural guarantees were unnecessary be-cause the juvenile was in the state's custody forbenevolent reasons. However, the Court de-termined that "... unbridled discretion, howeverbenevolently motivated, is... a poor substitutefor principle and procedure." 28 The argumentagainst providing procedural protections toprobationers and parolees is comparable to theargument offered by state officials in Gault. Thereis no reason that the Gault rationale, denyingeffect to the parens patriae theory, ought not applyto the use of that argument in parole and proba-tion revocation proceedings.

The basic flaw in the aforementioned contracttheory is that there is no bilateral negotiation ofterms and that the person seeking release doesnot have the option to refuse restrictions on hisliberty. The court in Hahn v. Burke29 noted that" ... probation is in fact not a contract. Theprobationer does not enter into the agreement onan equal status with the state." 80

Having reviewed the validity of the theorieswhich support the denial of due process pro-tections to individuals who face revocation oftheir probations or paroles, it is necessary to

(S.D.N.Y. 1970), rev'd in part, modified in part sub nom.Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971).

27387 U.S. 1 (1967).RId. at 18.29 430 F.2d 100 (7th Cir. 1970), cert. denied, 402 U.S.

933 (1971).31 Id. at 104. See Burns v. United States, 287 U.S.

216 (1932); Weihofen, Revoking Parole, Probation orPardon Without a Hearing, 32 J. Cm. L. & C. 531,533 (1942).

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investigate the extent to which the erosion ofthose theories has caused an expansion of dueprocess protections to probationers and paroleesin revocation proceedings. A review of statutoryprocedures required in the federal system and ofconstitutional protections mandated by theSupreme Court will indicate how far governmenthas advanced in providing procedural safeguardsfor a person on the verge of forfeiting his con-ditioned liberty.

llE. Morrissey and Gagnon

In Morrissey v. Brewer" and Gagnon v. Scar-pelli,n2 the Supreme Court announced the dueprocess protections which an individual must begranted in a revocation proceeding. The due proc-ess requirements set forth by the Court serves toflesh out the federal statutes relating to parole andprobation and to specify the minimal proceduralprotections which the states must provide toparolees and probationers in their revocationhearings. Both decisions employ a balancing ofinterests test to determine the procedural pro-tections to be provided an individual withoutimposing an unacceptable burden on the govern-mental body granting the hearing."

The issue in Morrissey was whether the dueprocess clause as applied to the states by thefourteenth amendment "... requires that a Stateafford an individual some opportunity to be heardprior to revoking his parole." 4 After discussingthe role of parole in the criminal justice systemand rejecting the theory that constitutional rightsturn on whether the government benefit providedto a citizen is either a right or a privilege,"' theCourt determined that parole revocation was nota part of a criminal prosecution and, thus, a state

31408 U.S: 471 (1972). See Cohen, A Comment onMorrissey v. Brewer, 8 CmE. L. BuLL. 616 (1972); Note,Morrissey v. Brewer, 22 CATH. U.L. Rxv. 715 (1973);Note, Parolee's Right Under the Due Process Clause ofthe Fourteenth Amendment to an Opportunity to Be HeardPrior to Revoking His Parole, 11 DUQUESNE L. REv.693 (1973); Note, An Endorsement of Due Process Re-form in Parole Revocation: Morrissey v. Brewer, 6 Loy.L. RFv. 157 (1973).

"411 U.S. 778 (1973).3 Gagnon v. Scarpelli, 411 U.S. 778, 787-90 (1973);

Morrissey v. Brewer, 408 U.S. 471, 481-82 (1972).u Petitioner Morrissey served one year on a charge

of drawing false checks and was paroled. Seven monthsafter parole, authorities arrested and jailed petitionerfor parole violation. The Iowa Parole Board revokedpetitioner's parole on the basis of the parole officer'swritten report. Petitioner asserted that he received nohearing prior to the revocation of his parole. Morrisseyv. Brewer, 408 U.S. 471, 472-73 (1972).

Is Id. at 477-81.

need not provide the full panoply of rights due acriminal defendant."

However, Chief Justice Burger, writing for theCourt, stated that the termination of a parolee'sconditioned liberty does result in a "grievousloss" and falls under the protection of the dueprocess clause. The revocation process must beorderly even though it might be considered in-formal when compared to a criminal prosecution.The Court perceived two critical stages in therevocation process which required the impositionof some procedural guarantees.

Chief Justice Burger viewed the arrest andpreliminary hearing as the first critical stage ofrevocation procedure, since there might be asignificant time lapse between arrest and a finalrevocation decision. In addition, the parolee maybe arrested at a place distant from a state in-stitution.3 For these reasons, the Court foundthat due process required that an inquiry beconducted as soon after arrest as was possiblewhile evidence and sources were readily available.The hearing would determine whether there wasprobable cause to believe that the parolee hadviolated parole conditions. Since the failure of aparolee may involve a failure on the part of theparole officer to insure compliance with parolerestrictions, due process required that an officernot personally involved with the parolee make theprobable cause determination."

The Court decided that certain proceduralprotections should be provided the parolee at thepreliminary hearing stage. The parolee mustreceive notice that a hearing will be held to de-termine whether there is probable cause to be-lieve he has committed a parole violation. Thenotice must allege acts which constitute paroleviolations. At the hearing, the parolee must havethe opportunity to appear and to speak in hisdefense; "... he may bring letters, documents, orindividuals who can give relevant information tothe hearing officer." 10 The parolee may alsorequest that persons who have provided informa-tion which supports the revocation action bequestioned in his presence.4' The hearing officer

"1 Id. at 480.7Id. at 482.

IsId. at 485.9 The person who determines whether there exists

probable cause that a parole violation has been com-mitted need not be a judicial officer. Id. at 486.

40 Id. at 487.4 1 Id. The hearing officer need not subject a witness

to confrontation if the witness would be endangered byhaving his identity exposed.

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H. RCHMOND FISHER

has the duty to make a summary of the documentsand responses which emerged at the preliminaryhearing. Based on the summary, the officer shoulddetermine whether there is probable cause to sendthe parolee before the Board for a final revocationdecision. Although the finding need not be formal,the, officer must "... state the reasons for hisdetermination and indicate the evidence he re-lied on...." 4

2

The Court required many of the same pro-cedural protections at the revocation hearing,the second stage of the revocation process, if theparolee desires that a hearing be held. The revoca-tion hearing, during which contested facts areconsidered, results in a revocation determination.The parolee must be provided an opportunity todemonstrate, if he can, that he did not violateparole conditions; or, if he did violate his parole,that mitigating circumstances exist which suggestthat the violation does not warrant revocation. 2

Noting that each state must design its owncode of procedure, the Court set forth the mini-mum requirements of due process that must beafforded to the parolee:

(a) a written notice of the claimed violations ofparole; (b) disclosure to the parolee of the evidenceagainst him; (c) opportunity to be heard in personand to present witnesses and documentary evidence,(d) the right to confront and cross-examine adversewitnesses (unless the hearing officer specificallyfinds good cause for not allowing confrontation);(e) a "neutral and detached" hearing body such asa traditional parole board, the members of whichneed not be judicial officers or lawyers; and (f) awritten statement by the fact finders as to theevidence relied on and the reasons for revokingparole."

In setting forth procedural requirements for therevocation process, the Court cautioned that ithad no intention of equating the proceeding witha criminal prosecution. The Court viewed therevocation process as "... a narrow inquiry; theprocess should be flexible enough to considerevidence including letters, affidavits, and othermaterials that would not be admissible in anadversary criminal trial." 41

In Gagnon v. Scarpelli,46 the Supreme Court42 Id., quoting Goldberg v. Kelly, 397 U.S. 254, 271

(1970).11408 U.S. at 488.44 Id. at 488-89.4 Id. at 489.46 411 U.S. 778 (1973). In Gagnon, petitioner received

decided an issue which it declined to consider inMorrissey, the right of a probationer or paroleeto appointed counsel at a revocation proceeding.Justice Powell, the author of the Court's opinion,recognized that the purpose of probation andparole is to rehabiltat offenders and to returnthem to society as soon as possible. In reviewingthe functions of the parole officer, the Courtfound that the officer's role required that he bothsupervise the offender's rehabilitation and recom-mend revocation of probation when, in his broaddiscretion, such a course of action seemed neces-sary. Of necessity, a probation officer who recom-mends revocation compromises his role as counselorto the probationer.

When the officer's and probationer's viewsconcerning the alleged violation differ, due processrequires a resolution of the divergent views be-fore there can be an informed revocation de-cision. 1 Both the parolee or probationer and thestate have interests in an accurate determinationof whether a parole or probation violation hasoccurred. The individual does not wish to lose hisfreedom without careful consideration of hisconduct and the state does not wish to endangerthe safety of the community by allowing an in-dividual, who violates legitimate correctionalrestrictions, to remain free. justice Powell notedthat the procedural protections announced inMorrissey serve as substantial protection againsterroneous revocation determinations.

The Court believed, however, that "...theeffectiveness of the rights guaranteed by Morrisseymay in some circumstances depend on the use ofskills which the probationer or parolee is unlikelyto possess." 4 Although the revocation proceed-ings lack formality, the probationer or parolee

a suspended sentence on a charge of armed robbery.Petitioner's probation was revoked without a hearingafter petitioner was convicted of burglary. Petitionercontended on appeal that he gave the confession onwhich his second conviction was based under duress andthat the denial of both a probation revocation hearingand the right to counsel at that hearing constitutedviolations of due process. Id. at 779-80.

The Court held that Morrissey v. Brewer, 408 U.S.471 (1972), required that petitioner be provided a pre-liminary and final revocation hearing with the pro-cedural protections announced in that case. 411 U.S. at782. In discussing the right to counsel issue, the Courtpointed out that petitioner did not attempt to retaincounsel and, therefore, the Court in Morrissey refusedto decide the issue of whether an individual had theright to retained counsel at a revocation proceeding. Id.at 783 n.6.

47411 U.S. at 785.48 Id. at 786.

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might experience difficulty in presenting hisversion of the facts in situations which require theexamination or cross-examination of witnesses orthe presentation of complex documentary evi-dence. However, the Court found that, whilesituations would arise in which the need for theexpertise of counsel would exist, there was noconstitutional requirement that counsel be pro-vided in all revocation proceedings.49

The Court noted that the introduction ofcounsel into revocation proceedings would sub-stantially alter the nature of the proceeding. Thebody making the revocation determination wouldsurrender its traditional role as a fact finder andassume the role of a judge at trial less concernedwith the offender's rehabilitative needs. As a resultof the adversary nature of the proceedings,"... the hearing body may be less tolerant ofmarginal deviant behavior and feel more pressureto reincarcerate (rather) than to continue non-punitive rehabilitation." "

In light of the narrow range of situations inwhich an individual would require the assistanceof counsel, necessitating changes in the particularsof the revocation hearing, the Court held thatdue process did not require that informal revoca-tion procedures be abandoned entirely. Instead,the Court adopted a case by case approach similarto the method announced in Betts v. Brady" fordetermining when the' right to the assistance ofcounsel would attach in a revocation proceeding.The Court left to the governmental body re-sponsible for administering parole and probationrevocation the burden of determining on a caseby case basis the circumstances which requiredthe appointment of counsel.n The Court's analysis

49 The Court noted that, in many cases, the proba-tioner or parolee had been convicted or had admittedcommitting a crime at the time of the revocation hear-ing. In such instances, the Court determined that therewas no need to appoint counsel to present evidence inmitigation on behalf of the offender. Id. at 787. Seegenerally, Sklar, Law and Practice in Probation andParole Revocation Hearings, 55 J. Canr. L.C. & P.S.175, 192-93 (1964).

For other Supreme Court decisions denying theright to counsel, see Kirby v. Illinois, 406 U.S. 682(1972); Schmerber v. California, 384 U.S. 757 (1966).50 Gagnon v. Scarpelli, 411 U.S. 778, 788 (1973).51316 U.S. 455 (1942). The Court in Gagnon asserted

that there are "critical" differences between criminaltrials and revocation proceedings. The Court foundthat the right to counsel at revocation hearings arosenot from the nature of the proceeding but rather fromthe peculiar circumstances of a case. 411 U. S. at 788-89.E411 U.S. at 789. 18 U.S.C. § 3006A(c) (1971) pro-

vides for the appointment of counsel for indigent de-fendants in federal criminal cases: "A defendant for

concluded that it would not be possible to formu-late a precise set of guidelines to determine whendue process would require the appointment ofcounsel.

The Court, while refusing to announce con-stitutional standards which would govern theappointment of counsel, did suggest that, incertain fact situations, a state must carefullyconsider the appointment of counsel. Such cir-cumstances include (1) when the parolee or pro-bationer claims that he has not committed thealleged violation of the conditions upon which heis at liberty or (2), if the violation is a matter ofpublic record, when there are compelling reasonswhich justified or mitigated the violation andwhen the reasons mitigating against revocationare complex and difficult to present. The Courtstressed that the individual's ability to speakeffectively for himself should be weighed by thestate agency.n Finally, the Court required thatthe reasons supporting a refusal to appoint counselbe set forth in the record whenever a request forcounsel is denied.M

In rejecting the circuit court determination thatthe Constitution required the states to providecounsel for indigents in all revocation proceedings,the Court determined that such a rule ".... wouldimpose direct costs and serious collateral dis-advantages without regard to the need or likelihoodin a particular case for a constructive contributionby counsel." 51 If counsel were appointed in allcases, the state would, of necessity, be representedby counsel. Furthermore, the Court determinedthat since criminal prosecutions differ fromrevocation proceedings, the sixth amendment, asinterpreted in Gideon v. Wainwright" and Arger-singer v. Hamlin does not require the application

whom counsel is appointed shall be represented atevery stage of the proceedings from his initial appear-ance before a United States magistrate through appeal."It is now mandatory that the assistance of counsel beoffered a probationer in federal probation revocationproceedings. 18 U.S.C. § 3006A(b) (1971). Title 18 ofthe United States Code is silent as to whether a paroleeis entitled to appointed counsel at a federal parolerevocation proceeding. 18 U.S.C. §§ 4201-10 (1971).

1411 U.S. at 789.u Id. at 791.1 Id. at 787.

56 372 U.S. 335 (1963).57 407 U.S. 25 (1972). In Argersinger, the Court

extended the right to appointment of counsel to anysituation wherein the defendant could be imprisonedas a result of a conviction. See also Comment, Arger-singer v. Hamlin: For Better or For Worse?, 64 J. Cans.L. & C. 290 (1973).

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of a per se rule regarding the appointment ofcounsel in revocation proceedings.

The Supreme Court's analysis and decision inGagnon is contrary to that of the Court of Appealsfor the Second Circuit in United States ex rel.Bey v. Connecticut State Board of .ParoleYs Thecourt in Bey held that it was a violation of dueprocess for Connecticut to revoke the petitioner'sparole without affording him the right to counsel.An analysis of the reasoning by the court in Beymay serve to challenge the rationale relied uponby the Supreme Court in Gagnon. In deciding theright to counsel issue, the court considered threefactors: (1) petitioner's stake in the parole revoca-tion proceeding; (2) the importance to the fairnessof the proceeding of the right to counsel; and (3)the anticipatable effect on state institutions ofrecognizing the right to counsel.5 9

The court, in discussing the first factor, de-termined that petitioner's interest in the pro-ceeding was the loss of his conditioned freedom.Comparing Bey's plight to that of petitioner inMempa v. Rhay, 0 the court found that bothpetitioners risked the loss of "... a status that is

- 443 F.2d 1079 (2d Cir.), vacated as moot, 404 U.S.879 (1971). Other cases preceding Gagnon which dis-cussed the right to counsel in revocation proceedingsinclude United States ex rel. Martinez v. Aldredge,468 F.2d 684 (3d Cir. 1972) (denying right to counsel);Flint v. Hocker, 462 F.2d 590 (9th Cir. 1972) (requiringcounsel at probation revocation proceeding deemed an"integral" part of the sentencing process); Dennis v.California Adult Authority, 456 F.2d 1240 (9th Cir.1972) (erecting case by case approach to right to coun-sel); Barber v. Nelson, 451 F.2d 1017 (9th Cir. 1971)(requiring counsel at proceeding wherein probation isrevoked and an original sentence is imposed); Beardenv. South Carolina, 443 F.2d 1090 (4th Cir. 1971)(denying right to counsel); Serviss v. Mosely, 430 F.2d1287 (10th Cir. 1971) (right to counsel when violationis contested); Shaw v. Henderson, 430 F.2d 1116 (5thCir. 1970) (denying right to counsel); Alverez v. Turner,422 F.2d 214 (10th Cir. 1970) (requiring right to coun-sel); Rose v. Haskins, 388 F.2d 91, cert. denied, 392U.S. 946 (1968) (denying right to counsel); Williams v.Dunbar, 377 F.2d 505 (9th Cir. 1967) (denying paroleethe rights to counsel, summon witnesses and cross-examine adverse witnesses); Brown v. Warden, 351F.2d 564, cert. denied, 382 U.S. 1028 (1965) (denyingright to counsel); Gaskins v. Kennedy, 350 F.2d 311(4th Cir. 1965) (denying right to counsel); Welsh v.United States, 348 F.2d 885 (6th Cir. 1965) (denyingright to counsel).

59 443 F.2d at 1086.o 389 U.S. 128 (1967). In Mempa, the Court held

that an indigent probationer must be represented byappointed counsel at a combined revocation and sen-tencing hearing. The Court reasoned that counsel mustbe provided ". . . at every stage of a criminal proceed-ing where substantial rights of the accused may beaffected .... " Id. at 134. The Court determined thatsentencing was such a stage even when accomplishedat a probation revocation proceeding.

considerably more desirable than that of a prisoner.When revocation is threatened, they all have thesame interest in maintaining that status." 61 Thecourt also stated that a parole revocation will marthe parolee's employment opportunities andstanding in the community upon his ultimaterelease from imprisonment. The court's conclusionwas that substantial rights were involved in therevocation proceeding, rights which requiredthe assistance of counsel.

The second factor investigated by the Bey courtconcerned the lawyer's role in a parole revocationproceeding. The court recognized that a revocationproceeding will often involve the application ofknowledge from experience in several disciplinessuch as psychology, sociology and penology. Inthis phase of the revocation hearing, the courtfound no need for a lawyer's special skills. 2 How-ever, the hearing board must determine thatevents between the prisoner's release and thehearing justify the forfeiture of the prisoner'sconditioned liberty. Whether Bey would lose hisliberty depended upon a narrow interpretation of aspecific factual situation. The court determinedthat the lawyer's training qualified him "1... toanalyze and organize for the benefit of an im-partial tribunal evidentiary matter bearing on theoccurence of nonoccurence as well as the sig-nificance of past events." 1 The lawyer may beable to point to mitigating circumstances andfacts not revealed in the parole officer's report. Atthe very least, a lawyer could emphasize factsfavorable to his client or suggest disciplinary

11 United States ex rd. Bey v. Connecticut StateBoard of Parole, 443 F.2d 1079, 1087 (2d Cir.), vacatedas moot, 404 U.S. 879 (1971), quoting Rose v. Haskins,388 F.2d 91, 103 (6th Cir.), cert. denied, 392 U.S. 946(1968) (Celebrezze, J., dissenting).

6 443 F.2d at 1087.63 Id. See Specht v. Patterson, 386 U.S. 605 (1967),

where the Court suggested that a formal hearing withcounsel is required in any proceeding affecting thepresent or future liberty of any of its citizens.

A hearing on revocation becomes an adversary pro-ceeding once the parolee disputes the charges againsthim. As the court stated in Menechino v. Warden, 27N.Y.2d 376, 380, 267 N.E.2d 238, 241, 318 N.Y.S.2d449, 453-54 (1970):

Can there be, in such a case, any reasonable doubtas to the value of counsel in developing and prob-ing factual and legal situations which may deter-mine on which side of the prison walls appellantwill be residing?Even in a non-adversary situation, there remains a

need for counsel to articulate the parolee's worthinessfor parole. Bearden v. South Carolina, 443 F.2d 1090,1094 (4th Cir. 1971); Martin v. United States, 182F.2d 225, 227 (5th Cir.), cert. denied, 340 U.S. 892(1950).

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procedures short of outright parole revocation.However, the court cautioned that trial tacticspermitted in an adversary proceeding should notbe used. The role of counsel is to facilitate, notimpede, the flow of information to the Board. Thecourt concluded that the "... [Bloard may takeappropriate measures to assure that the counselappreciates his limited role and presents hisclient's case accordingly." "

The final factor which the court considered inBey was the impact of granting the right to counselupon the state's parole system. The court foundthat the state had failed to demonstrate thatproviding counsel to develop and evaluate relevantevents bearing on a revocation decision wouldinhibit the parole process. 5 The court believedthat the presence of counsel would aid the flow ofpertinent information and would guard againstdistortion and error. Further, there would be noeffect upon the relationship between the paroleeand the parole officer since the right to counselwould not arise until revocation of the parolebecame an imminent possibility." The court dis-missed the contention that the presence of counselwould result in fewer paroles. Such a suggestionimproperly assumed that Parole Board memberswould "... react vindictively to spite the legalprocess .... " and deny paroles to those whowould normally receive them.Y In summary, thereasoning in Bey indicates that an individual'spossible loss of liberty outweighs the burden on

"443 F.2d at 1089. The ninth circuit in Williams v.Dunbar, 377 F.2d 505, 506 (9th Cir. 1967), found thatallowing counsel to appear at a parole revocation hear-ing might impede the parole process. However, Michi-gan allows retained counsel and many due processprotections at parole revocation hearings and retains avery high parole rate. McH. STAT. Awx. § 28.2310(1)(1972); Warren v. Michigan Parole Board, 23 Mich.App. 754, 179 N.W.2d 664 (1970). See generally, Sklar,supra note 49.

65 A court has suggested that requiring the appoint-ment of counsel in revocation proceedings would over-come the resources of the bar. In re Tucker, 5 Cal. 3d171, 182, 486 P.2d 657, 663, 95 Cal. Rptr. 761, 767(1971). However, Mr. Justice Brennan's concurrencein Argersinger v. Hamlin, 407 U.S. 25 (1972), suggestedthat an increased demand for lawyers could be satis-fied. He indicated that increased enrollment in lawschools together with supervised student participationin criminal matters could "... be expected to make asignificant contribution, quantitatively and qualita-tively, to representation of the poor in many areas.... 1" Id. at 41 (Brennan, J., concurring).

6" 443 F.2d at 1088.6 See Rose v. Haskins, 388 F.2d 91, 102 n. 15 (6th

Cir.), cert. denied, 392 U.S. 946 (1968) (Celebrezze, J.,dissenting); Sklar, supra note 49 at 175 n.157.

the state to provide counsel for indigents atrevocation hearings.

While the Court in Gagnon did provide for theright to counsel when circumstances so required,the Bels v. Brady approach" to the right tocounsel must be considered subject to criticism.Over the twenty-one year period during whichBelts stood, the Supreme Court was required toreview numerous fact situations to determinewhether due process required the appointment ofcounsel. In Townsend v. Burke," the Court heldthat counsel must be provided at a sentencingafter a plea of guilty when false assumptionswere made concerning petitioner's criminal record.In that case, the Court felt that counsel couldmake certain that conviction or sentence was notbased on erroneous information.

In 1957, the Court in Moore v. Michigan0 re-quired that counsel be appointed at a hearingfollowing the entry of a guilty plea when thedefendant had not "... intelligently and under-standingly" waived counsel before pleadingguilty, Next, the Court in Hamilton v. Alabamanmandated that counsel be appointed at an ar-raignment although the defendant entered a pleaof not guilty. Due process required the appoint-ment of counsel in the Alabama proceeding sincecertain defenses had to be raised or abandoned atthat stage of the prosecution. Finally, the Courtoverruled the special circumstances test of Beltsin Gideon v. Wainwrigh wherein the Court heldthat the sixth amendment as applied to the statesthrough the fourteenth amendment necessitatedan absolute right to appointment of counsel infelony cases. In light of the treatment given Beltsby the Court, it is understandable that the Courtof Appeals for the Fourth Circuit in Hewitt v.

- 316 U.S. 455 (1942). In Betts, the Court held thatthe due process clause did not require appointment ofcounsel for indigents in criminal cases. The Courtadopted the following test:

Asserted denial [of due process] is to be tested byan appraisal of the totality of facts in a given case.That which may, in one setting, constitute a denialof fundamental fairness, shocking to the universalsense of justice, may, in other circumstances, andin light of other considerations, fall short of suchdenial.

Id. at 462. See J. Israel, Gideon v. Wainwright: The"Art" of Overruling in Tnx Suizxm COURT REVIEW,1963 (P. Kurland ed. 1963); Kamisar, Bels v. BradyTwenty Years Later: The Right to Counsel and DueProcess Values, 61 MacH. L. REv. 219 (1962).

"9 334 U.S. 736 (1948).70 355 U.S. 155 (1957).71368 U.S. 52 (1961).- 372 U.S. 335 (1963).

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North CarolinaP rejected the Belts approach inrequiring that counsel be appointed for indigentsin all probation revocation proceedings,

... if we were to adopt a case by case approach,articulation of where the line should be drawn be-tween those who should have been supplied withcounsel and those who may be denied counsel,would be most difficult if not impossible. Even themost superficially frivolous proceeding may revealto competent counsel procedural or substantive ir-regularities which require correction in order tosafeguard the interests of a probationer . 4

The Supreme Court encountered difficulty inapplying the Betts approach to criminal cases inwhich the accused's liberty was at stake. Whetherthe Court will be able to sustain a case by caseapproach in cases in which the conditioned libertyof a probationer or parolee is at issue remainsopen to question. It can be argued that due processdemands that counsel be provided at revocationhearings since "... society has further interest intreating the parolee (or probationer) with basicfairness: a fair treatment in parole revocationswill enhance the chanc4 of rehabilitation by avoid-ing reactions to arbitrariness." 75

The Supreme Court rejects the view that arevocation hearing is a step in the criminal processwhich requires furnishing the defendant with fullprocedural protections. As a result, the probationeror parolee will not receive the full benefit of thefourth amendment protection against unreason-able searches and seizures.76 Although the law

- 415 F.2d 1316 (4th Cir. 1969).741d. at 1325. The logic supporting the view ex-pressed in Hewitt remains despite the Supreme Court'sopinion in Gagnon. The fourth circuit adopted a caseby case approach to the appointment of counsel atparole revocation hearings in Bearden v. South Carolina,433 F.2d 1091 (4th Cir. 1971).

71 Morrissey v. Brewer, 408 U.S. 471, 484 Z1972).78 In Morrissey, the Court indicated that, while thedue process clause required a two stage revocationproceeding, it did not mandate the imposition of rigidrules concerning the admissibility of evidence. Therevocation process should be flexible enough to admitevidence which would ordinarily be excluded from acriminal proceeding. Morrissey v. Brewer, 408 U.S.471, 489 (1972).

Williams v. New York, 337 U.S. 241 (1949), pro-vides further support for the view that flexibilitywill govern proceedings outside the criminal process.In Williams, the Court affirmed the sentence of a trialjudge who overruled a jury recommendation of life im-prisonent and imposed a death sentence after con-

dering presentencing information. In sanctioning thisexercise of judicial discretion in the consideration ofpresentence information, the Court held that due proc-ess did not require the application of strict rules ofevidence in sentencing proceedings.

surrounding the application of the exclusionaryrulew to parole and probation revocation pro-ceedings is not completely settled, the generalview is expressed in United States ex rel. Sperling v.Fitzpatrick.7' In Sperling, the petitioner contestedthe use of illegally seized evidence to prove aparole violation. The court held that the ex-clusionary rule was not applicable in parolerevocation hearings. The court grounded itsdecision on the fact that the Parole Board haswide discretion, consistent with due process, touse reliable evidence in making its revocationdetermination. The appellant did not dispute thatthe illegally seized evidence constituted proof of aparole violation.

79

In United States ex rel. Lombardino v. Heyd,80

the court upheld the probation revocation eventhough the evidence on which the revocation wasbased was illegally seized, requiring dismissal ofthe criminal charge. Conceding that probationersare entitled to basic constitutional rights, thecourt perceived the issue to be the extent of thoserights. The court refused to equate an accused'srights in a criminal prosecution and an individual'srights in a revocation proceeding.

At present, the degree of proof necessary forprobation revocation is less than that required fora criminal conviction in which proof of guiltmust exist beyond a reasonable doubt.s Typically,

See generally White, The Fourth Amendment Rights ofParolees and Probationers, 31 U. Prr. L. REv. 167(1969); Note, Extending Search and Seizure Protectionto Parolees in California, 22 STAx. L. Rnv. 129 (1969).

7 The exclusionary concept as applied in criminalproceedings is set forth in Mapp v. Ohio, 367 U.S.643 (1961); Elkins v. United States, 364 U.S. 206(1960); Weeks v. United States, 232 U.S. 383 (1914).

78426 F.2d 1161 (2d Cir. 1970).79 The concurring opinions of Judges Lumbard and

Kaufman, id. at 1164, 1166, indicated that the goals ofthe parole system could be best achieved without astrict application of the exclusionary rule.

The First Circuit Court of Appeals adopted theSperling rule in Baxter v. Davis, 450 F.2d 459 (1st Cir.1971). In Baxter, two grand jury indictments werereturned against the parolee, but the county districtattorney declined to prosecute. The court held thatthe Parole Board could consider the findings of probablecause and the return of indictments against the paroleein a revocation proceeding.

However, in Cotlle v. Wainwright, 338 F. Supp. 819(M.D. Fla. 1972), the district court excluded from evi-dence in a parole revocation hearing, two North Caro-lina convictions on the ground that the indigent paroleewas not represented by counsel at the trials.

80318 F. Supp. 648 (E.D. La. 1970), a.ff'd, 438 F.2d1027 (5th Cir. 1971). See also United States v. Hill,447 F.2d 817 (7th Cir. 1971).

81 United States v. D'Amato, 429 F.2d 1284, 1286(3d Cir. 1970); United States v. Nagelberg, 413 F.2d708, 709 (2d Cir. 1969).

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a district judge in the federal system "... needonly be reasonably satisfied that terms of proba-tion have been violated and the sole question onreview is whether he abused his discretion in re-voking probation." 2 The rationale for a lesserstandard of proof is the same as in other areaswhere full due process protections are denied to aparolee or probationer-"... a revocation pro-ceeding is not a trial of a criminal case." 1 Inprobation revocation proceedings, the ParoleBoard wields broad discretion in revoking a condi-tional release." Although a Parole Board mustcomply with procedural rights established bystatute and by Morrissey, a review court will notintervene unless a board has dearly abused itsdiscretion in revoking a parole or mandatory-release.85 Indeed, judicial decisions seem to indicatethat the Parole Board's judgment is virtuallyunreviewable.86

IV. Present Revocation Procedures in theFederal System

Although probation and parole are vital facetsof the criminal justice system, to this time Congresshas determined not to legislatively prescribespecific parole and probation revocation pro-cedures. Congress, as part of its general programof regulating prisoners in the federal system andof preparing them for re-entry into society, estab-lished the United States Board of Parole andprovided it with the authority to develop pro-cedures relating to parole revocationY Since theenabling legislation requires, only that an arrestedparolee be given the opportunity to appear before"the Board, a member thereof, or an examinerdesignated by the Board," " parole revocation isbasically an administrative procedure.

The Board of Parole has the sole authority toissue a warrant for the retaking of a parolee.89

2 Amaya v. Beto, 424 F.2d 363, 364 (5th Cir. 1970).8 Morrissey v. Brewer, 408 U.S. 471, 489 (1972).81 Parole revocation hearings are informal and flexible

proceedings. Morrissey v. Brewer, 408 U.S. 471, 489(1972). See also, concerning a parole board's discretionto revoke parole Earnest v. Mosely, 426 F.2d 466, 468(10th Cir. 19705; Hyser v. Reed, 318 F.2d 225, 234(D.C. Cir.), cert. denied, 375 U.S. 957 (1963).

85 Earnest v. Mosely, 426 F.2d 466, 468 (10th Cir.1970); Clark v. Stevens, 291 F.2d 388 (6th Cir. 1961);Freedman v. Looney, 210 F.2d 56 (10th Cir. 1954).8 6 Shelton v. United States Board of Parole, 388 F.2d567, 576 (D.C. Cir. 1967); Hyser v. Reed, 318 F.2d225, 240 (D.C. Cir.), cert. denied, 375 U.S. 957 (1963).

7 18 U.S.C. §§ 4201-10 (1971). See generally Note,Parole Revocation in the Federal System, 56 Go. L.J.705 (1968).

88 18 U.S.C. § 4207 (1971).89 18 U.S.C. § 4205 (1971).

The warrant issues when a member of the Boardbelieves that the facts alleged in the complaint, 0

if proved, demonstrate "satisfactory evidence" ofa parole violation.9'

After the arrest, the Probation Officers Manual"8

sets forth the procedures to be followed.

The probation officer, acting not as a judicial officer,but as an agent of the Justice Department, inter-views the parolee. The parolee receives two formsto be completed and signed. C.J.A. Form 22 re-quests him to list those charges contained in theParole Board warrant that he wishes to contest,those he declines to contest, and any convictionsreceived since the Board granted mandatory releaseor parole to him. This form also advises him that hemay apply to the United States District Court forthe appointment of an attorney to represent him athis revocation hearing. "f the United States mag-istrate or the court determine that the interests ofjustice so require" and if he is found to be indigent,the request for appointment of counsel will begranted.93

The alleged violater is then asked to completethe Preliminary Interview and Revocation Hear-ing Form" which offers him one of three choices:postponement of the preliminary interview, alocal revocation hearing, or a hearing at a federalinstitution if he is not released after the initialinterview.

The preliminary interview will be postponed bythe hearing officer if the alleged violator requestsadditional time to secure the presence of anattorney and/or witnesses at the interview. Thepreliminary interview will also be delayed if the

90 Private citizens, the parolee's family members andpolice are sources of information concerning paroleviolations. Hyser v. Reed, 318 F.2d 225, 240, cert.denied, 375 U.S. 957 (1963). The parole officer willbring to the attention of the Board information con-cerning a parolee's failure to conform to technical con-ditions imposed by the Board. Parole Revocation in theFederal System, supra note 87 at 709.

91 28 C.F.R. § 2.35 (19675. UNrED STATES BoARDor PA.orn, RuLts at 22 (1965). The issuance of anarrest warrant based on a criminal charge is sufficientevidence to support the issuance of a parole warrant.Hyser v. Reed, 318 F.2d 225 (D.C. Cir.), cert. denied,375 U.S. 957 (1963).

2 UNITED STATES PROBATION OrxCERS MANUAI,Probation Division, Administrative Office of the UnitedStates Courts, §§ 8.41-46 (1973).

93 CJ.A. Fopam 22 (February, 1971); Statement ofParolee on Mandatory Release Concerning Appoint-ment of Counsel Under Criminal Justice Act. Thealleged offender may retain his own counsel to repre-sent him at the preliminary interview and any subse-quent revocation hearing.

94 PRELmmNARY INTERvIEw AND REvOCATION HAR-

ING Fopm (Parole Form F-2, Rev. June, 1973).

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H. RICHMOND FISHER

parole officer requests the appearance of adversewitnesses to be cross-examined by the parolee,provided that he has not been convicted of a newcriminal charge and that he denies all charges ofparole violation. 5 The adverse witness should beproduced upon a determination by the hearingofficer that the witness would face no risk of harmif his identity were disclosed.s6 During the pre-liminary interview, the accused may presentdocuments and voluntary witnesses on his behalf,and cross-examine adverse witnesses.Y At theconclusion of the preliminary hearing, the hearingofficer must decide whether or not there is probablecause that the alleged offender violated his paroleconditions. A finding of probable cause willnecessitate a revocation hearing.

Th6 revocation hearing will be conducted locallyupon completion of the initial interview if theparolee has denied violation of his conditionedliberty agreement and if he has not been convictedof a new violation while under supervision. TheBoard then may conduct a revocation hearing inthe community where the alleged violation tookplace, if the accused requests the services of anattorney or the attendance of adverse witnesses.98

In addition, the Preliminary Interview andRevocation Hearing Form provides, "Whereappropriate, a local revocation hearing may takethe place of a preliminary interview." 19 Themeaning of this sentence is unclear. Will thepreliminary hearing to determine probable causebe consolidated with the revocation hearing todetermine a de facto violation? Or will the pre-liminary hearing be eliminated in some circum-stances?

The accused will be returned to a federal in-stitution for his revocation hearing, if, after thepreliminary interview, the Parole Board has notordered release and the alleged violator admits ordoes not deny that he is guilty of violating theconditions of release, or if he has been convictedof violating a law since his release. Even thoughhe denies guilt and has no new convictions, theaccused will be returned to a federal institution,if he requests that his revocation hearing be heldthere, and if he desires to waive his right to cross-examine adverse witnesses. 00

95 Id.96 Morrissey v. Brewer, 408 U.S. 471, 487 (1972)." PRELImqARY INTERviEw AND REvocATION HEAR-

ING FoRm (Parole Form F-2, Rev. June, 1973).

99 Id.100 UNITED STATES PROBATION OYFICERS MANUAL,

If the prisoner refuses to sign the RevocationElection Hearing Form, he has not waived theright to a hearing with an attorney or the rightto present witnesses. The probation officer simplynotes on the form that the parolee "was advisedof his rights but refused to sign the form." 1 01

The parole officer then prepares a summary of thepreliminary interview, informs the prisoner of thealleged violations and records the parolee's com-ments. This summary is sent to the Parole Board.

The final step of the revocation process is ahearing before the Parole Board,07 which decideswhether the parole should be revoked or modified.The revocation hearing is normally non-adversarialin nature. The decision to revoke or to modifymust be based on "sufficient evidence" and on theBoard's belief that revocation relates to whetherthe parolee is a good risk to remain in the com-munity. 3 The procedural safeguards establishedby the Morrissey'0 4 and Gagnon °5 decisions mustbe complied with throughout the preliminaryinterview and revocation hearing proceedings.Any determination resulting from a parole revoca-tion hearing may be appealed to a regional and anational parole board.0°

Probation revocation procedures in the federalcriminal justice system derive from separatestatutory authority0 7 A probation officer mayarrest a probationer for cause without a warrantor a court of proper jurisdiction may issue awarrant for arrest for alleged violation of proba-tion.z' s Then, enforcement authorities are ordered

Probation Division, Administrative Office of the UnitedStates Courts, § 8.46 (1973). In a situation in whichthe parolee admits the alleged violations, and does notrequest that witnesses appear on his behalf at the pre-liminary interview, but does request that witnesses beinterviewed who might present mitigating informationto the Parole Board, the probation officer should makea "reasonable effort" to obtain this information bypersonal interview or by mail and to present it to theBoard. Id.

101 Id.10218 U.S.C. § 4207 (1971).103 Hyser v. Reed, 318 F.2d 225 (D.C. Cir.), cert.

denied, 375 U.S. 957 (1963); Moore v. Reid, 246 F.2d654 (D.C. Cir. 1957).

M 408 U.S. 471 (1972).105 411 U.S. 778 (1973).106 As of October 1, 1973, a parolee in Parole Board

Region 1 may appeal a parole board revocation deter-mination to the Regional Director and then to the Na-tional Appellate Board. Region 1 is comprised of thefollowing states: Maine, New Hampshire, Massachu-setts, Vermont, Rhode Island, Connecticut, New York,New Jersey, Pennsylvania, Delaware, Maryland,Virginia, West Virginia and the District of Columbia.28 C.F.R. 184, §§ 2.20 2 21 2.23, 2.43 (1973).

107 18 U.S.C. § 3653 (19715.10 Id.

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to bring the probationer "as speedily as possible"before the court of the district having jurisdictionover him. The court then decides whether torevoke the probation and to require the proba-tioner to serve the sentence which was imposed attrial, or a lesser sentence, or, if imposition ofsentence was suspended, to impose any sentencewhich could have been originally imposed.'09

The Administrative Office of the United StatesCourts has revised the rather informal probationrevocation procedures to incorporate the require-ments of Morrissey and Gagnon.'0 The preliminaryhearing must be held before a federal judge ormagistrate. The following procedural rights areincorporated at this stage: 1) notice of the allegedviolations of probation including a statement ofthe allegations relied on for revocation; 2) theopportunity to appear personally; 3) the op-portunity to present witnesses in his own behalf;4) the right to confront and cross-examine ad-verse witnesses unless the hearing officer de-termines that disclosure of a witness' identitywould subject him to risk of harm; 5) a writtenreport of the hearing including a determinationas to whether there is probable cause to hold theprobationer for the final revocation hearing; 6)the appointment of counsel at the preliminaryhearing to represent the probationer at the finalrevocation hearing; and 7) the right to bail at thediscretion of the judicial officer pursuant to Rule32(f) of the Federal Rules of Criminal Procedure."

Two additional rights are provided the accusedat the final revocation hearing: disclosure of theevidence against him and a written statement bythe fact finders as to the evidence relied on andthe reasons for revoking probation, should it berevoked."

V. Proposed Reforms of Revocation Procedures

In recent years, the unfairness which exists inpresent probation and parole procedures has be-come evident to certain commentators and legis-lators. President Johnson's Commission on Law

109 Id.10 See "Memorandum to All Chief Probation Officers

and Officers in Charge of Units," August 27, 1973,issued by the Administrative Office of the United StatesCourts.

I" FED. R. Cinn. P 32(f), provides:The court shall not revoke probation except aftera hearing at which the defendant shall be presentand apprised of the grounds on which such actionis proposed. The defendant may be admitted tobail pending such hearing.12 See "Memorandum," supra note 110.

Enforcement and Administration of Justice notedthat:

[T]he correctional strategy that presently seems tohold the greatest promise, based on social sciencetheory and limited research, is that of reintegratingthe offender into the community. A key element inthis strategy is to deal with problems in their socialcontext, which means in the interaction of the of-fender and the community. It also means avoidingas much as possible the isolating and labeling ef-fects of commitment to an institution. There islittle doubt that the goals of reintegration arefuthered much more readily by working with anoffender in the community rather than by incar-cerating him.'"

The American Bar Association Advisory Com-mittee on Sentencing and Review supports theabove conception of corrections. As Draft ofStandards Relating to Probation"i recommendssweeping changes in the probation system., TheAdvisory Committee offers a new definition ofprobation: "... any sentence which does not in-volve confinement and which is conditional in thesense that the defendant remains subject for aperiod of time to the control of the court." "I Thenew definition eliminates the differences in ter-minology relating to the imposition of a sentenceand suspension of its execution versus the sus-pension of the imposition of sentence. The ABAreport views probation not as a substitute for asentence but rather as a sentence in itself."6

Probation is a sentence, to the ABA Committee,designed to achieve a specific end-the orderlyreintegration of an individual into society byimposing restrictions on his activities. That theprobationer may be subjected to imprisonmentupon a violation of his probation does not necessi-tate a definition of "probation" which includessuch a possibility. Adverse consequences mayresult from a broad definition of probation. If ajurisdiction requires that a sentence be imposedand then suspended before probation may begranted, the imposed term may limit sentencingdiscretion upon a subsequent probation violation.The Advisory Committee believed that a manda-

13 Tna PREsiENT's CoinUssio ON LAW EmroncE-MENT AND AmnmusTRATIon or JUSTICE, TAsE FORCERPORT: CoRECTIoNs 28 (1967).

14 AmEicAN BAR ASSOCIATION PRoj cT ON STAND-ARDS IFOR CRMINAL JUSTICE, STANDARDS RELATINGTO PROBATION (1970) [hereinafter referred to as ABAPROBATION].

15 ABA PROBATION 9.16 Id. at 25.

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tory sentence upon probation revocation is un-desirable and should not be a part of the probationrevocation process." 7

There is another reason for amending thedefinition of "probation." When an offender issentenced to probation with a suspended periodof incarceration, he is loathe to appeal his con-viction, however riddled with error the recordmay be. In effect, the case is open-ended until thepoint of revocation is finally reached. There is noneed to include a period of suspended imprison-ment among the conditions of probation.

There are two benefits to be derived fromgranting probation without a suspended period ofimprisonment. First, the probation need not beconsidered a "conviction," carrying with it the"ex-con" stigma that is a death blow for re-habilitation in many cases.ns Second, the time ofprobation revocation rather than the time whenprobation commences is the appropriate momentfor setting a prison sentence since the offender'spersonality may have changed in the interim.

The Advisory Committee recommend a reforma-tion in probation assumptions to facilitate the useof probation in appropriate cases because:

(1) it maximizes the liberty of the individual whileat the same time vindicating the authority of thelaw and effectively protecting the public from fur-ther violations of the law; (2) it affirmatively pro-motes the rehabilitation of the offender by con-tinuing normal community contacts; (3) it avoidsthe negative and frequently stultifying effects ofconfinement which often severely and unnecessarilycomplicate the reintegration of the offender intothe community; (4) it greatly reduces the financialcost to the public treasury of an effective correc-tional system; (5) it minimizes the impact of theconviction upon innocent dependents of the of-fender."'

Two bills,1"° introduced during the secondsession of the 92d Congress, propose to apply asimilarly enlightened view toward the parolesystem. H.R. 13118 provides for the establishmentof a National Parole Institute,'m the purpose ofwhich is to serve as a national clearing house of

117Id.

18 New legislation relating to simple possession ofsoft drugs is a device for avoiding the onus of a finalconviction. 21 U.S.C. § 844(b) (1972).

19 ABA PROBATION 27."' H.R. 13118, 92d Cong., 2d Sess. (1972) (intro-

duced by Representative Kastenmeier); S. 3993, 92dCong., 2d Sess. (1972) (introduced by Senator Burdick).

I H.R. 13118, 92d Cong., 2d Sess. § 4232 (1972).

information and a lobbying organization. It wouldsponsor research in new parole techniques, recom-mend innovations in the parole process to alllevels of government, encourage competent peopleto enter the parole field, and promote the em-ployment of ex-offenders. The bill would alsoestablish an independent Board of Parole' in theexecutive branch to coordinate national parolepolicy. S. 3993 provides for the creation of anAdvisory Corrections Council 3 and a UnitedStates Parole Commission" in the Departmentof Justice. The Council would suggest innovationsin the administration of criminal justice and theParole Commission would perform functionssimilar to the aforementioned National ParoleInstitute.

H.R. 13118 and S. 3993 provide, in most cases,for release on parole after an offender has servedone-third of a definite term or terms of over onehundred and eighty days or after serving ten tofifteen years of a life sentence or of a sentence ofmore than forty-five years. Release should begranted unless the Board finds that the individual'sliberty is incompatible with the welfare of societyor that he will not abide by the conditions ofparole."' Both bills provide that the conditionsof parole be reasonably related to the prisoner'sprevious conduct and present situation, thatliberty be deprived only where "necessary for theprotection of the public welfare," and that theconditions be "sufficiently specific to serve as aguide to supervision and conduct." " 6

The ABA Advisory Committee recommendsthat the conditions imposed by the court on aprobationer aid him in living within the boundsof the law. "They should be reasonably related tohis rehabilitation and not unduly restrictive ofhis liberty or incompatible with his freedom ofreligion. They should not be so vague or ambiguousas to give no real guidance." 127 The conditionsshould be sufficiently specific "so that probationofficers do not in fact establish them." The Ad-visory Committee also recommends that theprobationer be allowed to petition the court for a.clarification or change of conditions. This isimportant as the success of probation as a cor-

1' H.R. 13118, 92d Cong., 2d Sess. § 4201 (1972).m S. 3993, 92d Cong., 2d Sess. § 5002 (1972)."4S. 3993, 92d Cong., 2d Sess. § 4201 (1972).125 H.R. 13118, 92d Cong., 2d Sess. § 4205 (1972);

S. 3993, 92d Cong., 2d Sess. § 4202 (1972).6 H.R. 13118, 92d Cong., 2d Sess. § 4211 (1972);

S. 3993, 92d Cong., 2d Sess. § 4202 (1972).m ABA PROBATION 44-45.

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rectional procedure is closely related to the"flexibility within which it is permitted to oper-ate.2"128

Proposals for change include modifications inpresent revocation procedures. The ABA Ad-visory Committee took exception to the federalstatute which permitted a probation officer toarrest a probationer for cause, wherever found,without a warrant." 9 The Advisory Committeebelieved that warrants based on probable causeshould be required to support a probationer'sarrest unless the probation violation involved thecommission of another crime or other standardsfor arrest without a warrant have been met. Inaddition, the Committee would eliminate theauthority of probation officers to arrest proba-tioners.'"

The ABA Advisory Committee concluded thata probationer must account for any allegedviolation of probation conditions. Although suchviolations would widen the scope of conduct whichwould permit an arrest, an alleged probationviolation ought not support a relaxation of pro-tections against the abuse of ordinary arrestprocedures."' Relaxing the standards on whichan arrest is based neither instills a respect for lawin the probationer nor aids him in leading a law-abiding life, which is the purpose of probation.While the Advisory Committee accepted the viewthat a probation officer must have the power to"bring in" the probationer, the officer's dual roleas law enforcer and counselor to the probationercaused the Committee to conclude that the officerought not have the power to formally arrest hischarge. The officer's authority is more properlyexercised in securing issuance of the warrant;normal arresting personnel should execute thewarrant.

H.R. 13118 and S. 3993 provide that a paroleebe retaken upon issuance of a warrant by theBoard of Parole, the current practice. A UnitedStates marshal customarily executes the warrant.1n

Both bills allow for the execution of the warrantby any officer of any federal penal or correctionalinstitution, or any federal officer authorized toserve criminal process within the United States. 33

' Id. at 48.ni18 U.S.C. § 3653 (1971).110 ABA PROBATION 59-60.

' Id. at 61.L' UNITED STATES PROBATION OFFICERS MANUAL

§ 8.44 (1973).I- H.R. 13118, 92d Cong., 2d Sess. § 4217(d) (1972);

S. 3993, 92d Cong., 2d Sess. § 4206 (1972).

The two bills provide for different parole re-vocation hearing procedures. H.R. 13118 providesfor the reincarceration of the parolee if, after apreliminary hearing, the Board has substantialreason to believe that the offender will not appearfor his subsequent revocation hearing." Theparolee is not reimprisoned if he has been grantedbail or otherwise released by the court havingjurisdiction over the offense constituting thealleged parole violation. The preliminary hearingshould be held as soon as possible after the paroleehas been retaken.

S. 3993 does not provide for a preliminaryhearing simlai to that of H.R. 13118; it statesthat a parolee, shall be granted a hearing beforea United States magistrate as soon as possibleafter being retaken on a warrant.8 5 Unlike theexisting statute,'36 retained or appointed counselwill be provided to the parolee. In addition, theparolee may present witnesses on his behalf andcross-examine adverse witnesses. The magistratethen prepares a summary and makes a recom-mendation to the Parole Commission based onfacts presented at the hearing. The Commissionmust make a recommendation concerning eachalleged violation. Such determination may consistof one of the following: a dismissal of revocationproceedings; a reprimand; an alteration of paroleconditions; a referral to a residential communitytreatment center for all or part of the remainderof the original sentence; a formal revocation ofprobation; or "any other action deemed necessaryfor successful rehabilitation of the violator, andwhich promotes the ends of justice." 17

The revocation hearing under H.R. 13118 isheld not before a magistrate, but before a memberof the Parole Board."' The same rights are grantedto the parolee as under S. 3993. Should the Boardfind that the parolee did violate a condition of hisparole, it must inform him within ten days of thehearing. The Board's determination may consistessentially of the same alternatives available to theParole Commission under S. 399311 Should theparolee's alleged violation consist of being chargedwith a criminal offense, H.R. 13118 stipulatesthat no hearing shall be held, but that the ParoleBoard will render a determination on revocation

14 H.R. 13118, 92d Cong., 2d Sess. § 4217(f) (1972).316 S. 3993, 92d Cong., 2d Sess. § 4207(a) (1972).12 18 U.S.C. § 3006A (1971).2" S. 3993, 92d Cong., 2d Sess. § 4207 (1972).I- H.R. 13118, 92d Cong., 2d Sess. § 4218(d) (1972).239H.R. 13118, 92d Cong., 2d Sess. § 4218(e) (1972).

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after final judgment by the trial court havingjurisdiction over the criminal offense.140 Acquittalwill result in dismissing the warrant, while con-viction is prima fade evidence of the violation ofthe conditions of parole by the parolee.'4' Aprisoner whose parole is revoked and who issubject to having his parole "good time" forfeitedor to being assigned to reside in or participate inthe program of a residential community treatmentcenter or similar facility may, according to H.R.13118, file an appeal within ten days after theBoard's determination.'42 At least five membersof the Board will consider the appeal and theparolee has the right to consult an attorneyconcerning his appeal. Finally, H.R. 13118 pro-vides for judicial review of Parole Board de-cisions.'4

The ABA Advisory Committee proposal con-cernmg probation revocation procedures is similarto the proposed legislation concerning parolerevocations. The Committee supports the viewexpressed in H.R. 13118 that a revocation de-termination must be postponed until dispositionof the criminal charge in those situations in whicha revocation proceeding depends solely on thecommission of another crime." The ABA pro-posal would permit the probation court in itsdiscretion to detain the probationer without bailpending disposition of the criminal charge. Anindictment would constitute probable cause whichwould support detention.145 The Committee wouldfind it "unseemly" for a probation court to revokeprobation when the trial court acquits the proba-tioner of the charge. However, action on theparole violation need not be deferred when the

140 H.R. 13118, 92d Cong., 2d Sess. § 4218(f) (1972).141

1d.I- H.R. 13118, 92d Cong., 2d Sess. § 4219(a) (1972).14 M.R, 13118, 92d Cong., 2d Sess. § 4221 (1972).14 The ABA Advisory Committee believed that post-

ponement was necessary:The relative informality of a probation revocationproceeding, as compared to the trial of an originalcriminal charge, underlines the danger. Relaxationof rules of admissibility of evidence, the absenceof a jury, a lesser burden of proof-factors such asthese can lead to an abuse of the proceeding bybasing revocation upon a new criminal offensewhen the offense could not be proved in an ordi-nary criminal trial. Additional complexity is intro-duced by the position in which the probationer isput as regards his privilege against self-incrimina-tion: a revocation proceeding before trial of thecharge on which it is based well could compromisethe assertion of this fundamental constitutionalright.

ABA PROBATION 63.1 Id. at 62-63.

criminal charge "involves an incidental violationof the conditions of the probation." 46

In addition to the specific protections whichSupreme Court decisions provide to the parolee,the Committee included the right to representa-tion by retained or appointed counsel, proof of aviolation by a preponderance of the evidence ifthe facts of the violation are contested, a recordof the proceedings, and the right to appeal anorder revoking parole.0 4 The Committee con-sidered these procedural rights essential to "assurethe integrity of the revocation proceedings as atruth-seeking inquiry." 14

VI. conclusion

The United States Constitution does notspecifically provide for the application of dueprocess of law to parole and probation revocationproceedings. These forms of conditional libertydeveloped in the nineteenth century from theegalitarian movement that considered rehabilita-tion a more effective solution to crime than retribu-tion.

The conditioned liberty status has been offeredas a privilege, an act of grace by the government,not a right to which an individual is entitled.Numerous theories have been formulated to ex-plain the relationship between the prisoner andthe state: the concepts of grace, contract, custodyand parens patriae. Upon analysis these theoriesappear inconsistent, at odds with one another, andunrealistic in relation to the purpose of probationand parole-the orderly reintegration of the indi-vidual into society. Although the logic of eachtheory is different, the result upon applying eachtheory is the same-the insulation of the individ-ual from the procedural protections available incriminal proceedings.

The Supreme Court in Morrissey and Gagnon hasrequired that parolees and probationers be pro-vided with limited due process rights in revocationproceedings. In Morrissey, the Court establishedcertain procedural safeguards in the parole revo-cation process. In Gagnon, the Court appliedthese safeguards to probation revocation, andgranted to both parolees and probationers theright to counsel in limited circumstances. Thefederal government has revised its establishedprocedures accordingly.

116 Id. at 65.147 Id.1 Id. at 67.

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The Gagnon decision, however, may well raisemore questions than it answers. The SupremeCourt's return to the special circumstances test ofBetts v. Brady seems a philosophical retreat to theearly development of due process of law. It alsoplaces on the Court the task of determining whichcircumstances warrant the right to counsel. Bettsplaced this same burden on the Court more thanthirty years ago.

The Court's refusal to grant the right to counselin all contested probation and parole revocationproceedings is based on the determination thatprobation and parole revocation are not part ofthe criminal prosecution process. However, theloss of liberty is threatened in these proceedings asmuch as in a criminal prosecution. The fact thatthe liberty is "conditioned" makes it no less asubstantive right than the liberty at stake in anycriminal trial. The consequence of a revocationdecision is much more like the consequence of afinding of guilty in a criminal trial than the resultof an ordinary administrative proceeding.

The goal of both probation and parole is theorderly reintegration of the individual into society.

The recommendations of the ABA Advisory Com-mittee on Sentencing and those embodied in H.R.13118 and S. 3993 of the 92d Congress presentstandards of due process that protect the rightsof the individual while allowing the state to regu-late his activities. Defining probation as a sen-tence, thus eliminating the concept of a suspendedperiod of imprisonment, granting the right to re-tained or appointed counsel, allowing the opera-tion of the exclusionary rule, proving a contestedviolation beyond a reasonable doubt or by a pre-ponderance of the evidence, and securing judicialreview of orders revoking conditioned libertywould make a substantial contribution to thefactual inquiry-whether the' alleged offender didindeed commit a violation of his conditioned lib-erty agreement.

In Morrissey and Gagnon, the Supreme Court an-nounced its view of the due process protections tobe provided in revocation proceedings. Therefore,the duty to provide the full range of proceduralprotections necessary to protect the liberty of aparolee or probationer passes to the Congress andto the state legislatures.

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