Probation and Parole: Procedural Protection

Later cases have addressed several procedural questions left open in Morrissey and Gagnon.

In Moody v. Daggett, 429 U.S. 78 (1976), the Supreme Court held that a parolee has no right to an initial preliminary hearing before being confined to prison for a suspected parole violation when the parolee-inmate already has been convicted of the crime upon which parole revocation is based. The conviction, based on proof beyond a reasonable doubt, provides the requisite probable cause to believe there has been a violation. In addition, the Court clarified what it meant by a "reasonable time" for the final revocation hearing. Here, the parolee-inmate understandably wanted to serve his parole violation and new crime sentence concurrently. Thus, he argued for a speedy revocation hearing. The Court rebuffed this, finding that the right to a parole revocation hearing begins only when the parolee is taken into custody for the parole violation.

It is clear that Morrissey envisioned that, as the accuser, the government is obliged to present persuasive evidence of violation. In the face of almost total legislative and rule-making neglect, the courts have concluded that a violation need not be proved beyond a reasonable doubt, but only by a preponderance of the evidence (State ex rel. Flowers v. Dep't of Health and Social Serv., 81 Wis. 2d 376, 260 N.W. 2d 727 (1978)), or an even lower standard of proof. (See Relation v. Vermont Parole Board, 660 A.2d 318, 320-21 (Vt. 1995)). This leads to the further conclusion that an acquittal on criminal charges will not bar a revocation of probation or parole based on the same grounds as the earlier acquittal.

In the opposite situation, where an unsuccessful revocation proceeding occurs before a criminal proceeding, some would argue that the government is estopped from going ahead with the criminal case. That is, if the facts underlying the alleged violation could not be convincingly shown to meet a preponderance (or lower) standard, then obviously they cannot meet the beyond-the-reasonable-doubt standard. But in Commonwealth v. Cosgrove, 629 A.2d 1007, 1011 (Pa. Super. 1993), the court held that the informality of a revocation proceeding should not estop a subsequent criminal proceeding.