4 minute read

Probation and Parole: Procedural Protection


Morrissey and Gagnon. The term revocation at times refers to the act of imprisonment or reimprisonment, and at other times to the process of establishing a violation. Revocation is perhaps best viewed as a process resembling a cameo trial at which facts are alleged and proven to show a violation; that is, that the supervisee was at "fault" by committing a new crime or violating a condition of his release. After a violation is established, the judge or parole authority must then make a sentencing-like decision since a violation need not invariably result in incarceration.

Until the decision in Morrissey v. Brener, 408 U.S. 471 (1972), due process protections had often been denied at revocation by characterizing probation and parole as a privilege (an act of grace); as governed by contract (whereby the supervisee simply agreed to initial incarceration at the discretion of the court); or, in the case of parole, as a matter of continuing custody with reimprisonment argued to be simply the reassertion of full custody. Morrissey laid those arguments to rest by holding that the conditional liberty enjoyed by a parolee was within the compass of the liberty interests protected by the due process clauses of the Fourteenth and Fifth Amendments. In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Court applied the same analysis and reached the same result with regard to probation revocation. Morrissey held that procedural due process required that a parolee be accorded a hearing with an opportunity to be heard on the charge and the possible disposition, as well as to present evidence. Sandin v. Conner discussed earlier should not affect these decisions because the liberty interest at stake derives from the Constitution itself and not from any statutory formula employed by a state.

The Court further determined that there must be two hearings; a prompt preliminary hearing (conducted near the place of alleged violation or arrest) to determine probable cause that a violation occurred; and a final revocation hearing (which in fact most often takes place in a prison setting, for a parolee) to resolve contested relevant facts and determine whether those facts warrant imprisonment.

The minimum requirements of the preliminary hearing are as follows:

  1. The hearing is to be conducted by an individual who is not involved in commencing the revocation proceedings. The state need not create a special hearing officer for these proceedings, and a parole officer other than the officer who recommended the revocation proceedings is considered sufficiently neutral.
  2. Prior to the hearing the parolee is to receive notice of the facts upon which revocation is based.
  3. The parolee is to be present at the hearing.
  4. The parolee is entitled to be heard on his own behalf.
  5. There is to be a written summary of the evidence and arguments presented.
  6. The hearing officer shall make a written statement of his decision and reasoning, stating the facts upon which he relied.
  7. During this hearing, the parolee is entitled to cross-examine any persons giving adverse information upon which revocation could be based, unless the hearing officer finds that revealing the identity of an informant may subject him to an unreasonable risk.

The final hearing is to be conducted by a neutral body or individual, and the parole board itself was held to qualify as such a body. This aspect of the decision has evoked strong criticism on the ground that parole officials tend to confirm the decision-making of their colleagues. In addition, Morrissey requires:

  1. The hearing is to be held reasonably promptly; the Court found a period of two months to be reasonable.
  2. Written notice is to be given the parolee of the claimed violations of parole.
  3. The evidence against the parolee must be disclosed to him.
  4. The parolee is to be afforded an opportunity to be heard on his own behalf, to present evidence, and to call witnesses.
  5. The parolee is to be permitted to cross-examine adverse witnesses unless the hearing officer specifically finds good cause to deny cross-examination.
  6. There is to be a written decision setting forth the facts and the reasoning upon which it is based.

In Gagnon the Court held that at a probation or parole revocation proceeding the alleged violator also has a qualified right to appointed counsel. The right exists if there is a substantial issue regarding whether the alleged violation occurred or, even if the violation is a matter of public record or is uncontested, there are substantial reasons—complex or difficult to develop—that justified or mitigated the violation and that make revocation inappropriate.

In the process of deciding the counsel-atrevocation issue, Gagnon also made clear that there is an absolute right to counsel at judicial sentencing, but only a qualified right at revocation. Thus, where a judge suspends the imposition of sentence (as in Mempa v. Rhay, 389 U.S. 128 (1967)) and grants probation, a subsequent revocation proceeding is also a sentencing proceeding for the purposes of right to counsel. However, where the judge imposes a sentence (as in Gagnon) and suspends its execution, then the prison term is already fixed, the accused has been previously sentenced, and any right to counsel is governed by the above-noted Gagnon formula.

Additional topics

Law Library - American Law and Legal InformationCrime and Criminal LawProbation and Parole: Procedural Protection - Introduction, Granting Release, Release And Sandin V. Conner, Parole Rescission, Beyond Parole: Other Decisions Affecting Release Of Prisoners