Read and Summarize what you learned from this chapter ?

The term parole means a procedure by which a duly convicted defendant who has been sentenced to a term of imprisonment is allowed to serve the last portion of his or her sentence outside the prison walls, although he or she remains under supervision. The essence of parole is release from prison before the completion of one's sentence, on the condition that the parolee abide by certain rules during the balance of the sentence. It applies only to cases in which the convicted and sentenced defendant has served part of the imposed sentence in a correctional facility. It is a conditional release from confinement, contingent upon future conduct as set forth in the terms of the parole. The parolee is subject to future confinement for the unserved portion of his or her sentence in the event that he or she violates the provisions of parole.1

Parole was abolished by Congress for federal crimes committed after November 1, 1987. The Comprehensive Crime Control Act of 19842 created a United States Sentencing Commission to establish sentencing guidelines for the federal courts and established a regime of determinate sentences. Defendants sentenced for offenses committed on or after November 1, 1987, serve determinate terms under the sentencing guidelines and are not eligible for parole consideration. Postrelease supervision, termed "supervised release," is provided as a separate part of the sentence under the jurisdiction of the court. At least 16 states have abolished parole entirely, and a handful of others have abolished parole for certain offenses.

On the other hand, probation is a type of sentence in which an offender is allowed to remain free in the community subject to court-sanctioned conditions and under the supervision of a probation officer. Unlike parolees, probationers are sentenced directly to a term of community supervision; they do not spend time in a prison beforehand. Like parolees, however, probationers must abide by certain conditions; if any of the conditions are violated, the offender's probation may be revoked and the offender sent to prison.

In 2018, there were approximately 4.4 million people on probation and parole in the U.S., roughly double the amount of adults incarcerated in prisons and jails.

One of the primary purposes of parole is to aid prisoners in reintegrating into society as constructive individuals as soon as they are able, without being confined for the full term of the court-imposed sentence. Another purpose is to alleviate the costs to society of keeping prisoners in prison. In some states, parole is granted automatically after prisoners serve an established minimum prison term. In others, parole is granted or withheld by the discretionary action of a parole authority that bases its decision on information about a prisoner. In essence, the parole authority makes a prediction as to whether the prisoner is ready to return to society.

In Greenholtz v. Prisoners of the Nebraska Penal and Correctional Complex,4 the Supreme Court held that there is no protected liberty interest in the possibility of parole before the termination of the sentence. Because there is no entitlement, due process hearings are not required by the state's parole system. States are not constitutionally required to establish a parole system; it is instead a discretionary decision of the state to determine when a prisoner is ready for release. The Court explained that the reason for not requiring due process standards is simply that a decision for the granting of parole is not the equivalent of a guilt determination, as in a criminal proceeding or in the revocation of parole.

In Connecticut Board of Pardons v. Dumschat,5 a prisoner applied for commutation of his life sentence. His application was rejected without any explanation being given. Relying upon Greenholtz, the Supreme Court held that a prisoner has no constitutionally inherent right to commutation of a life sentence. The prisoner has nothing more than an expectation, as, for example, the expectation that he will not be transferred to another prison within the system. It is not a constitutional right but a unilateral hope. It was pointed out that the Connecticut statute at issue referred to the mere existence of a power to commute. There was no limit on what procedure was to be followed, what evidence could be considered, or what criteria were to be applied, all in contrast to the statute in Greenholtz, which created a right to parole under state law. However, this does not mean that the prisoner has no constitutional rights in the procedure used in granting or denying parole.

Statutes usually control the time at which specific groups of prisoners will become eligible for parole, if at all. The right to be considered at a parole hearing and the timing of the parole hearing are frequently within the sole discretion of the parole authority. However, in Grasso v. Norton,6 the court held that a federal prisoner who is sentenced under a statute that permits parole eligibility consideration at any time is entitled to "effective and meaningful" parole consideration at or before the one-third point of the maximum sentence. This was required even though the prisoner was given an initial parole hearing when entering the prison. "Meaningful" consideration for parole was satisfied by a "file review" and did not require a personal interview.

Similarly, the paroling authority is given wide discretion in determining how the interview or hearing with the prisoner will be conducted. Menechino v. Oswald7 summarized the rights of the prisoner at a parole hearing. The petitioner alleged that due process rights had been violated at his parole hearing. He claimed that the Constitution required that he be given: (1) notice; (2) a fair hearing with right to counsel, cross-examination, and presentation of witnesses; and (3) specification of the reasons used by the parole authority in its determination. The court denied that the prisoner had any due process rights at his parole hearing. It asserted that many of the essential conditions necessary for the application of due process standards are absent in the context of a parole hearing.

First, the proceeding is nonadversarial in nature. Both parties (the parole authority and the prisoner) have the same concernrehabilitation. Second, the primary function of the hearing is not fact-finding. On the contrary, the parole authority is making a determination based upon numerous tangible and intangible factors. Third, the prisoner has no present private interest to be protected, as is required before the Due Process Clause is applicable.

The wide discretion given to the paroling authority is limited, however. Written reasons for the denial of parole must be given to the prisoner. In United States ex rel. Johnson v. Chairman, New York State Board of Parole,8 the court stated that the Due Process Clause of the Fourteenth Amendment requires the parole board to provide a written statement of reasons to the prisoner when parole is denied. This conclusion is consistent with Menechino, which held only that a prisoner was not entitled to a specification of charges, counsel, and cross-examination.

The purpose of requiring written reasons for the denial of parole is to provide the courts with a record upon which to determine whether the actions of the Parole Board have been "arbitrary and capricious"a standard of judicial review of administrative acts. The reason for denial that has been attacked most often is "release at this time would depreciate the seriousness of the offense." Although many courts still recognize the broad discretion vested in the paroling authority,9 courts have held that something more than a general reason for the denial of parole is required.10 Denial of parole based in general language and not specifically addressed to the prisoner's personal situation may amount to no reason at all and does not protect the prisoner from arbitrary and capricious action by the parole board.

The Parole Commission and Reorganization Act, applicable to federal prisoners, was repealed as of 1992 by the Sentencing Reform Act of 199411 which, among other things, created the United States Sentencing Commission12 as an independent body in the Judicial Branch, with power to promulgate Sentencing Guidelines establishing a range of determinate sentences for all categories of federal offenses and defendants according to specific and detailed factors. The Sentencing Reform Act was held to be constitutional in Mistretta v. United States.13 However, the binding nature of the sentencing guidelines were declared unconstitutional in United States v. Booker,14 leaving sentencing essentially to the informed discretion of the trial judge.

In discussing limitations on the discretion of the parole authority to grant or refuse release, we should note that the preceding cases are exceptional. The prevailing view is that the discretion of the parole authority in release hearings is broad.

In California Department of Corrections v. Morales,15 a prisoner was sentenced to 15 years to life for the 1980 murder of his wife and became eligible for parole in 1990. As required by California law, the Board of Prison Terms held a hearing in 1989, at which time it found the prisoner unsuitable for parole for numerous reasons, including the fact that he had committed his crime while on parole for an earlier murder. The prisoner would have been entitled to subsequent suitability hearings annually under the law in place when he murdered his wife. The law was amended in 1981, however, to allow the Board to defer subsequent hearings for up to three years for a prisoner convicted of more than one offense involving the taking of a life, if the Board finds that it is not reasonable to expect that parole would be granted at a hearing during the intervening years and states the bases for the finding. Pursuant to this amendment, the Board scheduled the prisoner's next hearing for 1992. The prisoner then filed a federal habeas corpus petition, asserting that as applied to him, the 1981 amendment constituted an ex post facto law barred by the U.S. Constitution. The Supreme Court held that the amendment's application to prisoners who committed their crimes before it was enacted did not violate the ex post facto clause. The amendment did not increase the "punishment" attached to the prisoner's crime. It left untouched his indeterminate sentence and the substantive formula for securing any reductions to the sentencing range. By introducing the possibility that the Board would not have to hold another parole hearing in the year or two after the initial hearing, the amendment simply altered the method to be followed in fixing a parole release date under identical substantive standards.16

The argument that the clause would forbid any legislative change that has any conceivable risk of affecting a prisoner's punishment was rejected. In contrast, the Supreme Court has long held that the question of what legislative adjustments are of sufficient moment to transgress the constitutional prohibition must be a matter of degree and has declined to articulate a single "formula" for making this determination. The Supreme Court believed that there was no need to do so here, either, because the amendment creates only the most speculative and attenuated possibility of increasing the measure of punishment for covered crimes, and such conjectural effects are insufficient under any threshold that might be established under the clause. The amendment applies only to those who have taken more than one life, a class of prisoners for whom the likelihood of release on parole is quite remote. In addition, the amendment affects only the timing of subsequent hearings and does so only when the Board makes specific findings in the first hearing. Moreover, the Board has the authority to tailor the frequency of subsequent hearings. The prisoner offered no support for his speculation that prisoners might experience an unanticipated change that is sufficiently monumental to alter their suitability for parole or that such prisoners might be precluded from receiving a subsequent expedited hearing. Nor was there a reason to think that postponing an expedited hearing would extend any prisoner's actual confinement period. Because a parole release date often comes at least several years after a suitability finding, the Board could consider when a prisoner became "suitable" for parole in setting the actual release date.

The information used during the grant of parole may also raise constitutional issues. In Johnson v. Texas Department of Criminal Justice,17 prisoners sued the Parole Board of Texas to prohibit them from using furlough history, writ-writing activities, and the Board's receipt of protest letters when making parole determinations. Relief was denied with respect to a consideration of a prisoner's furlough history when making parole determinations. However, with respect to the writ-writing activities, the district court noted that historically there has been a bias against prisoners considered to be writ-writers by the employees of the Texas Department of Corrections (TDC), and it determined that there should be a Board rule that prohibits the consideration of a prisoner's legal activities when the Board determines that prisoner's candidacy for parole. To do anything less would restrict, at least as a practical matter, a prisoner's access to the courts. The state and its officers may not abridge or impair the petitioner's right to apply to a federal court for a writ of habeas corpus. Whether a writ of habeas corpus addressed to a federal court is properly drawn and what allegations it must contain are questions for that court alone to determine. Given prisoners' constitutional right of access to the courts, any consideration of writ-writing as a factor in the parole decision is a deprivation of due process and also violates the Equal Protection Clause.18 Any distinction made between prisoners who seek access to the courts and those who do not violates the Equal Protection Clause. Further, prison officials may not retaliate against or harass a prisoner for exercising the right of access to the courts

With respect to the Board's receipt of protest letters when making parole determinations, the Board sends out notification to persons entitled to receive notice under Texas law. Many of the recipients then send protests to the Board in varying forms: some are simply form letters indicating opposition to release, some express opinions that the prisoner has not done enough time for the crime, others contain newspaper clippings or first-person narratives describing the original crime. Other letters come from victims and their families describing the effects that the crime has had upon them, while others include information about the prisoner, such as his criminal history, unadjudicated offenses, and family circumstances. Motives for sending letters vary widely from a concern for the safety of the general public, personal dislike of a prisoner, local political considerations, and a desire to obtain an advantage over a prisoner.

In 1995, the Texas Code of Criminal Procedure was amended to allow for victims or their representative to present oral statements to board members. The parole panel is obligated to allow one person to appear before the board members to present a statement of that person's views about the offense, the defendant, and the effect of the offense on the victim.20 The court recognized that Texas law does not create a liberty interest in release on parole. Thus, having no constitutionally protected right, a prisoner cannot state "a claim for either civil rights or habeas relief by his allegation that he was denied due process when seeking parole because he has no constitutionally protected expectancy of release."21 A prisoner may, however, assert an equal protection claim in a civil rights suit.22

The evidence showed that prisoners who received protest letters of any kind are treated differently from those who do not. According to the court, a prisoner's potential for receiving protest letters is unpredictable; this fact, coupled with the unpredictability of the contents of those letters, leads to disparate results among prisoners eligible and being reviewed for parole. A system has been created that is extremely arbitrary and capricious and violates the equal protection rights of the plaintiff and the plaintiff class, no matter how small the number of parole candidates adversely affected by protest letters.

Consequently, the Court determined that the statutory scheme under which the Board can accept statements, whether written or oral, and then prevent knowledge of said statements' existence and prohibit disclosure of their contents and of the writer's or speaker's identity violates the equal protection rights of prisoners because the Board, as a rule, denies parole to prisoners who have received protest statements. The Board's sole function is to determine whether a prisoner should be released on parole; its function is not to effectively retry the case by accepting "testimony" that was inadmissible at trial on evidentiary grounds (or would have been inadmissible had introduction been attempted) or was excluded as part of trial strategy or by entering findings that the actual jury did not find at the prisoner's trial. Evidentiary determinations are made in the trial court. The Board was ordered not to consider unadjudicated offenses or offenses extraneous to the conviction for which the prisoner is currently incarcerated, as the Board must be bound by the conviction that the prisoner received and must apply the statutory requirements regarding the time to be served on parole for that conviction, without adding ad hoc information that results in additional time being served.

Executive clemency consideration is not the same as parole consideration. After a murder conviction and death sentence were affirmed on direct appeal, the Ohio Adult Parole Authority commenced a clemency investigation in accordance with state law. The prisoner was informed that he could have his voluntary interview with Authority members on a particular date and that his clemency hearing would be held one week later. The prisoner filed a civil rights action, alleging that Ohio's clemency process violated his Fourteenth Amendment due process right and his Fifth Amendment right to remain silent.

Noting that Connecticut Board of Pardons v. Dumschat23 had decisively rejected the argument that federal law created any liberty interest in clemency, the Sixth Circuit held that the prisoner failed to establish a life or liberty interest protected by due process. The court also held, however, that the prisoner's "original" pretrial life and liberty interests were protected by a "second strand" of due process analysis, although the amount of process due could be minimal because clemency, while an "integral part" of the adjudicatory system, was far removed from trial. The court remanded the case for the lower court to decide what that process should be. Finally, the Sixth Circuit concluded that Ohio's voluntary interview procedure presented the prisoner with a "Hobson's choice" between asserting his Fifth Amendment privilege against self-incrimination and participating in Ohio's clemency review process, thereby raising the specter of an unconstitutional condition on further appeal. The Supreme Court reversed in Ohio Adult Parole Authority v. Woodard.24

On the Fifth Amendment issue, the Supreme Court unanimously held that giving a prisoner the option of voluntarily participating in an interview as part of the clemency process did not violate any Fifth Amendment rights. Even on assumptions most favorable to the prisoner's claimi.e., that nothing in the clemency procedure granted applicants immunity for what they might say or makes the interview in any way confidential, and that the Authority would draw adverse inferences from a refusal to answer questionsthe testimony at a voluntary interview was not "compelled." A prisoner merely faces a choice similar to those made by a criminal defendant in the course of criminal proceedings, as for example, when a defendant chooses to testify in his or her own defense. He or she abandons the privilege against self-incrimination when the prosecution seeks to cross-examine him or her and may be impeached by proof of prior convictions. In these situations, the undoubted pressures to testify that are generated by the strength of the case do not constitute "compulsion" for Fifth Amendment purposes. Similarly, at the clemency hearing, a prisoner has the choice of providing information to the Authorityat the risk of damaging his or her case for clemency or for postconviction reliefor of remaining silent. The pressure to speak did not make the interview "compelled.

On the clemency issue, the Court was split. Four members of the Court25 concluded that a prisoner does not establish a violation of the Due Process Clause in clemency proceedings where the procedures in question do no more than confirm that such decisions are committed, as is the nation's tradition, to the executive's authority. Pardon and commutation decisions are rarely, if ever, appropriate subjects for judicial review. The argument that there was a continuing life interest in clemency that is broader in scope than the "original" life interest adjudicated at trial and sentencing was barred by Dumschat. The process that the prisoner sought would be inconsistent with the heart of executive clemency, which is to grant clemency as a matter of grace, thus allowing the executive to consider a wide range of factors not comprehended by earlier judicial proceedings and sentencing determinations. Although the prisoner maintained a residual life interest, e.g., in not being summarily executed by prison guards, he could not use that interest to challenge the clemency determination by requiring the procedural protections he sought. The four Justices also rejected any claim that clemency procedures are entitled to due process protection.

Four justices26 in Woodard concluded that because a prisoner under a death sentence has a continuing interest in his or her life, the issue in Woodard was what process was constitutionally necessary to protect that interest, recognizing that due process demands are reduced once society has validly convicted an individual of a crime. According to these four justices, some minimal procedural safeguards apply to clemency proceedings. Judicial intervention might, for example, be warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case in which the state arbitrarily denied a prisoner any access to its clemency process.

The ninth member of the Court27 concurred in part and dissented in part, which emphasized the difficulty in analyzing recent Supreme Court cases for their precedential value. Justice Stevens believed that when a parole board conducts a hearing to determine whether the state shall actually execute one of its death row prisonersin other words, whether the state shall deprive that person of lifeit has an obligation to comply with the due process cause of the Fourteenth Amendment. He specifically dissented from Chief Justice Rehnquist's view that a clemency proceeding could never violate the Due Process Clause. Under the Rehnquist view, according to Justice Stevens, even procedures infected by bribery, personal or political animosity, or the deliberate fabrication of false evidence would be constitutionally acceptable.

Justice Stevens joined in the part of the Court's opinion that concluded that giving a prisoner the option of voluntarily participating in an interview as part of the clemency process did not violate his or her Fifth Amendment rights but thought that this case should be remanded to the district court for a determination of whether Ohio's procedures met the minimum requirements of due process. It thus remains unclear to what extent due process applies to clemency proceedings, if at all.

13.3 Parole Revocation

Three theories have been advanced in the past to justify the unlimited discretion of a parole authority in revoking the parole once it is granted: the privilege theory, the contract theory, and the continuing custody theory. The present judicial treatment of parole revocation modifies these theories by subjecting parole authorities to the requirements of due process in revoking parole.

Most frequently argued is the privilege theory. This theory holds that parole is an act of grace by the state. Because release on parole is granted to the prisoner as a matter of privilege, no right attaches to it even after it is given. The release may be given, conditioned, or terminated, according to the theory, at the whim of the granting authority.

There are weaknesses to the use of this particular theory of parole. The system of parole has been an integral part of the American criminal justice process. Prison administrators use it as a rehabilitative tool as well as a stimulus for good behavior of prisoners. Furthermore, it is relied upon by the prisoners and is frequently the reason prisoners behave properly while incarcerated. To allow parole authorities unlimited control over the parolee would appear, in that light, to be unwise and unjust. Further, courts have expressed their displeasure with the whole concept of "privilege" as opposed to "right." The Supreme Court, in cases concerning students, welfare recipients, and security clearances, has reviewed the privilege theory and has rejected it as improper in these cases. The "privilege" theory of parole was repudiated, however, by the United States Supreme Court in Morrissey v. Brewer.

A second theory used as a reason for allowing unreviewable revocation of parole is the contract theory. It is argued that release by the parole authority is contingent upon the parolee's acceptance of the conditions of such release. The acceptance constitutes a contractual obligation on the part of the prisoner to live up to the conditions specified. If the conditions are violated, there is a "breach of contract" that justifies revocation. An obvious difficulty in the contract theory is that the parolee has no bargaining power in determining the terms of the contract. Furthermore, any "consent" to the terms of his or her contractual release is coerced by virtue of the fact that no alternative means of obtaining release is available.

A third theory used in conjunction with parole is that of "continuing custody." It is argued that because parolees remain in the custody of the granting authority, they are still subject to the same restrictions they were prior to their release on parole. However, the avowed purpose of the parole system is rehabilitation. A prisoner is released so that he or she may readjust to the conditions of society, under supervision. It cannot be denied that his or her situation is substantially distinct from that of a prisoner. This theory contends that attempting to apply the standards used in dealing with a prisoner to a parolee is inherently irrational.

The present approach to parole revocation modifiesif not rejectsthese three theories. This approach recognizes that one of the chief goals of the correctional system is to impress upon those within the system the belief that the criminal justice process operates fairly for the protection of all society. It is recognized that the arbitrary operation of the parole system can only result in the parolees' loss of respect for a system that claims to encourage responsible action in accordance with established law. Furthermore, it is acknowledged that the interests of the people are best served by proper treatment of the parolee in order to prevent recidivism. If revocation is accomplished through an arbitrary procedure, respect for society will be further diminished. Finally, although it cannot be asserted that the parolee maintains the same rights as a free person, it is recognized that basic constitutionally protected rights apply to the parolee. Consequently, the requirements of due process should apply to parole revocation.

In Morrissey v. Brewer,29 the United States Supreme Court held that due process applies to parole revocation proceedings. Prior to Morrissey, the leading case dealing with revocation proceeding rights was Mempa v. Rhay.30 However, Mempa v. Rhay dealt with probation revocation. In Mempa, two defendants had each been convicted of felonies and had been placed on probation. Both had violated the conditions of their probation and consequently were given the maximum sentence at a revocation hearing. The petitioners had not been represented by counsel at these proceedings, nor were they offered court-appointed counsel. The Supreme Court held that the "right to counsel is not a right confined to representation during the trial on the merits."31 On the contrary, "appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of an accused may be affected."32 For this reason, the Court found that the failure to provide representation at the probation revocation hearing was reversible error.

As noted, the decision rendered in Mempa specifically dealt with probation rather than parole. Furthermore, it was limited to the right to counsel rather than to the full panoply of procedural due process rights. In Morrissey, the Supreme Court distinguished parole from probation. Unlike probation, parole only arises at the end of a criminal prosecution, including the imposition of sentence. Further, in parole, supervision is not directed by the courts but by an administrative agency. Most significantly, parole revocation deprives an individual not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty that depends on compliance with special parole restrictions.

Nevertheless, the requirements of due process apply to parole revocations. The Supreme Court completely rejected the theory that constitutional rights turn upon whether the government benefit is characterized as a "right" or a "privilege." Rather, the crucial issue is the extent to which the individual will be condemned to suffer "grievous loss."

In Morrissey, the Supreme Court held that revocation of parole was a "grievous loss" to the parolee.

The liberty of a parolee enables him to do a wide range of things open to persons who have never been convicted of any crime. The parolee has been released from prison based on an evaluation that he shows reasonable promise of being able to return to society and function as a responsible, self-reliant person. Subject to the conditions of his parole, he can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life. Though the state properly subjects him to many restrictions not applicable to other citizens, his conditions are very different from that of confinement in a prison. He may have been on parole for a number of years and may be living a relatively normal life at the time he is faced with revocation. The parolee has relied on at least an implicit promise that parole will be revoked only if he fails to live up to the parole conditions. In many cases, the parolee faces lengthy incarceration if his parole is revoked.

We see, therefore, that the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a "grievous loss" on the parolee and often on others. It is hardly useful any longer to try to deal with this problem in terms of whether the parolee's liberty is a "right" or a "privilege." By whatever name, the liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal.33

The remaining issue is the extent of the "orderly process." The Supreme Court in Morrissey recognized that, given the previous criminal conviction and the proper imposition of parole conditions, the state has an interest in being able to return the parolee to imprisonment without the burden of a new criminal trial on the merits if, in fact, the parolee has failed to live up to the conditions of his or her parole. However, the summary treatment that may be necessary in controlling a large group of potentially disruptive prisoners in actual custody, as well as the argument that revocation is so totally a discretionary matter that some form of hearing would be administratively intolerable, was rejected.

The parolee is not the only one who has a stake in his conditional liberty. Society has a stake in whatever may be the chance of restoring him or her to normal and useful life within the law. Society thus has an interest in not having parole revoked because of erroneous information or because of an erroneous evaluation of the need to revoke parole, given the breach of parole conditions. And society has a further interest in treating the parolee with basic fairness: Fair treatment in parole revocations will enhance the chance of rehabilitation by avoiding reactions to arbitrariness.34

Therefore, what the Supreme Court believed was needed was an informal hearing structured to assure that the findings of a parole violation would be based on verified facts and that the exercise of discretion would be based on accurate knowledge of the parolee's behavior. The Morrissey Court outlined six due process procedures that must be followed before parole may be revoked (see 13.4.3).

The first step in the parole revocation process is the arrest of the parolee. This can occur either by arrest on new criminal charges or at the direction of a parole officer for a breach of the terms of parole. There is usually a substantial period between arrest and the eventual determination by the parole authority that parole should be revoked. Further, the parolee is often arrested at a place far distant from the prison to which he or she may be returned prior to the formal action of the parole authority.

Given these circumstances, the Supreme Court held in Morrissey v. Brewer that:

[D]ue process would seem to require that some minimal inquiry be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available.35

The inquiry required is in the nature of a "preliminary hearing," in which it must be determined that there is probable cause or reasonable grounds to believe that the arrested parolee has committed acts that would constitute a violation of the conditions of parole. Therefore, Morrissey deals with both the "place" and the "promptness" of the initial inquiry. Of these two, the promptness issue has triggered considerable litigation. In addition, questions have arisen as to what proceedings may serve as a "substitute" for the Morrissey preliminary hearing. "Promptness" has been determined by statute in some jurisdictions.36 Other parole authorities have had "promptness" defined for them by the courts.37

Nevertheless, the entire revocation process should ideally be completed within two months because Morrissey stated that this was not an unreasonable period.

Another problem that has arisen concerning the timing of both the preliminary and the final Morrissey revocation hearing occurs when a parolee is held in a different jurisdiction for criminal acts committed while on parole and the paroling authority has issued a detainer against the parolee. The issue is whether the issuance of the detainer triggers the requirement for a "prompt" revocation hearing. Moody v. Daggett38 solved the dilemma by holding that there is no requirement for an immediate hearing in this circumstance. The loss of liberty stems from the new conviction, and thus the detainer has no immediate effect. Parole authorities may therefore hold the warrant for either execution or dismissal at the completion of the term of the new sentence. It is at that time that the Morrissey standard applies.39

Some courts have determined that preliminary hearings on new criminal charges may serve as the Morrissey preliminary hearing.40 The parolee must, however, receive prior notification that the criminal hearing will serve as a substitute. Other situations have been held sufficient to substitute for the Morrissey preliminary hearing. Foremost among these is when the parolee is convicted of a new crime. In United States v. Tucker,41 the court stated that when a probationer was incarcerated pursuant to a final conviction at the time of the attempted probation revocation, there was no requirement that there be a preliminary as well as a final probation revocation hearing. This has been held to apply even though the conviction is under appeal. However, if the conviction is reversed, logic would suggest that a prompt hearing be held at that time.

Where a parole board has relied on criminal proceedings as a substitute for the Morrissey preliminary hearing, and the parolee was acquitted of the charge, at least one court42 has held that the parole board was "collaterally estopped" from revoking parole based on the same set of facts. The court held that such a revocation violated the doctrine of collateral estoppel as contained in the double jeopardy clause of the Fifth Amendment.43 The court rejected the state's argument that the lesser burden of proof (preponderance of evidence) at the revocation hearing permitted the parole board to revoke parole based on the same facts presented at the criminal trial, in which the burden of proof was "beyond a reasonable doubt."

In contrast, In re Coughlin44 held that a court, at a probation revocation hearing, or the Adult Authority, at a parole revocation hearing, may properly consider evidence indicating that a probationer or parolee has committed another criminal offense during the period of his or her probation or parole, despite the fact that he or she was acquitted of the criminal charge at trial.45 Further, in Standlee v. Rhay,46 the court of appeals held that the doctrine of collateral estoppel did not prohibit the parole board from finding the parolee guilty of a parole violation even after the accused had been acquitted in a criminal trial on the same charges. Parole revocation proceedings require a lower standard of proof than criminal adjudicatory proceedings. This may result in the revocation of parole even though the accused is found not guilty of the charges at the trial level.

The split in opinion centers on the different burden of proof requirements for a criminal trial and a revocation proceeding and on the nature of the proceeding itself. It has been stated that proof beyond a reasonable doubt of the violation of a condition of probation is not required by statute or the Constitution in a revocation proceeding.47 In spite of this recognized difference in the burden of proof, some courts have imposed the criminal acquittal as a final decision for the parole board. This appears to be too broad, because a technical violation of parole that occurred in the same factual setting as the criminal charge would be precluded from consideration by the parole board in the revocation hearing. In addition, the Supreme Court suggested in Baxter v. Palmigiano48 that a prison disciplinary hearing was not a criminal proceeding but a civil proceeding and authorized a prison court to hold a disciplinary hearing while state criminal charges were pending, both of which involved the same facts. Although the law is not clear, it can be argued that the revocation of parole is not a criminal proceeding, that the civil standards for burden of proof (preponderance of the evidence) should apply at the revocation hearing, and that the doctrine of double jeopardy should not apply.

At the preliminary hearing, the parolee must be given notice that the hearing will take place and that its purpose is to determine whether there is probable cause to believe that he has committed a parole violation. The parole conditions alleged to have been violated must be stated in the notice. At the hearing, the parolee has the right to appear and to speak in his or her own behalf. Further, he or she may bring letters, documents, or witnesses who are able to give relevant information to the hearing officer. If the parolee asks to question in his or her presence persons who have given adverse information upon which the revocation is to be based, the request must be granted, unless the hearing officer determines that the adverse witness or informant would risk harm if his or her identity were disclosed.

Finally, the hearing officer must make a summary of the proceedings, including the responses of the parolee, the substance of the documents or evidence given in support of revocation, and the parolee's position. Based upon such information, the hearing officer must then determine whether there is probable cause to hold the parolee for the parole authority's final decision on revocation. Thereafter, the parolee may lawfully be continued in detention and returned to prison pending the final decision of the parole authority.

13.4.2 The Revocation Hearing

The Morrissey holding requires that the parolee be given the opportunity for a hearing, if he or she so desires, prior to the final decision or revocation by the parole authority. The revocation hearing must lead to a final evaluation of any contested relevant facts and must consider whether the facts, as determined, warrant parole revocation.

Minimum due process at the parole revocation hearing now requires that the parolee be given an opportunity to be heard and to show, if he or she is able, that he or she did not violate the conditions of the parole, or, if he or she did, the mitigating circumstances that might suggest that the violation does not warrant revocation.

13.4.3 Procedural Due Process at the Revocation Hearing

The Morrissey Court held that, to conform to the requirements of due process, the following procedure must be followed in a parole revocation hearing:

There must be written notice of the claimed violations of parole.

The evidence against the parolee must be disclosed to him or her.

The parolee must be given the opportunity to be heard in person and to present witnesses and documentary evidence.

The parolee has the right to confront and cross-examine adverse witnesses, unless the parole authority specifically finds good cause for not allowing confrontation, such as a risk of harm to the informant if his or her identity were disclosed.

The hearing body, such as a traditional parole board, must be neutral and detached but need not be judicial officers or lawyers.

The parole authority must compose a written statement as to the evidence it relied on and the reasons for revoking the parole.49

There was no intent by the Supreme Court to equate the revocation hearing to a formal criminal prosecution. Further, a process flexible enough to consider material that would be inadmissible in an adversary criminal trial, such as letters and affidavits, was sanctioned. Also, the power of the parole authorities over the proceedings was authorized to assure that the delaying tactics and other abuses often present in traditional criminal trials do not occur. In any case, a parolee cannot use the revocation hearing to relitigate issues decided against him or her in other forums, such as when the revocation is based on conviction of another crime.

In Morrissey, the Supreme Court stated: "We do not reach or decide the question whether the parolee is entitled to the assistance of retained counsel or to appointed counsel if he is indigent."50 The Supreme Court answered that question in Gagnon v. Scarpelli.51

In Scarpelli, the Court dealt with the question of whether a previously sentenced probationer was entitled to be represented by state-appointed counsel at a probation revocation hearing. As to parole revocation, the Court relied heavily on Morrissey v. Brewer, and stated that it could not perceive any relevant difference between the revocation of parole and the revocation of probation.

The court recognized that, despite the informal nature of the proceedings and the absence of technical rules of procedure or evidence, an unskilled or uneducated probationer or parolee might have difficulty presenting his or her version of a disputed set of facts without the aid of a lawyer. This was recognized to be particularly true in cases in which the proceedings required the examining or cross-examining of witnesses or the offering or dissecting of complex documentary evidence. However, the Court did not mandate that counsel be appointed for every parolee in every case but held that "the need for counsel must be made on a case-by-case basis in the exercise of a sound discretion by the state authority charged with responsibility for administering the probation and parole system."52

The Court set no firm guidelines as to when counsel must be provided but said that the state should do so where the indigent probationer or parolee may have difficulty presenting his or her version of disputed facts or, if the violation is not disputed, there are substantial reasons in justification or mitigation that make revocation inappropriate. The Court did hold that "in every case in which a request for counsel at a preliminary or final hearing is refused, the grounds for refusal should be stated succinctly in the record."53

Courts dealing with the issue of counsel at revocation proceedings have not found Scarpelli helpful. The Supreme Court of Indiana, in Russell v. Douthitt,54 stated that the suggestion that appointment of counsel be made on a case-by-case basis serves to "delude and only becloud the issue and create uncertainty as to what the law is."55 The court finally threw up its hands and held:

Related to the issue of the right to counsel is the right to appointed counsel for the parolee if he or she cannot afford to hire one with private funds. It is arguable that counsel must be provided in all cases in which retained counsel is permitted. In other words, if the state permits counsel to participate at parole revocation hearings for those who can afford it, it should provide counsel at state expense for those who cannot afford representation.

The majority of cases still find that the question of whether a revocation proceeding involving a particular parolee is one that requires counsel is to be determined in the first instance by the paroling authority. The decision is to be made on a case-by-case basis in the exercise of sound discretion and on the guidelines set forth in Scarpelli.57 In contrast, when a revocation proceeding amounts to a resentencing, appointment of counsel for an indigent person is required under Mempa v. Rhay and not under the discretionary standards of Scarpelli.58

When the facts show that counsel is required, it has been held that lack of authority or funds by a state parole commission to appoint counsel is not a legally sufficient reason for refusing to appoint counsel for a parolee.59 Some states have provided for counsel under the guidelines of Scarpelli by regulation or statute. The right to counsel at the preliminary hearing in New York is the same test as Scarpelli, a case-by-case approach, but the New York rule on final revocation proceedings guarantees the right to counsel.60 In Indiana, the Supreme Court has declared that counsel is required in all cases.61

Scarpelli states that access to counsel is a presumptive right only, but Preston v. Piggman62 held that the burden is on the paroling authority to overcome that presumption. A silent record containing no reasons for denying counsel or not providing counsel would open the possibility for a reversal of the proceedings. It would appear that the presumptive right to counsel could be overcome when the parolee is made aware of the charges against him or her, and the record shows that he or she understands the nature of the proceedings and is capable of adequately expressing him- or herself and explaining the circumstances. Under Scarpelli, it is also clear that the presumptive right to counsel applies to both preliminary and final revocation hearings.

Morrissey provides that at the preliminary hearing, "a parolee may appear and speak in his own behalf; he may bring letters, documents, or individuals who can give relevant information to the hearing officer." The court pointed out that the hearing officer should state the reasons for his or her decision and the evidence upon which he or she relied. Because the preliminary hearing is not a final determination, there is no requirement of "formal findings of fact and conclusions of law" at that stage.

As to the final hearing, Morrissey states that the inquiry involved is a narrow one. "The process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial."63

In Scarpelli, the court makes a distinction between a criminal trial and the revocation hearing.

In a criminal trial, the State is represented by a prosecutor; formal rules of evidence are in force; a defendant enjoys a number of procedural rights which may be lost if not timely raised; and, in a jury trial, a defendant must make a presentation understandable to untrained jurors. In short, a criminal trial under our system is an adversary proceeding with its own unique characteristics. In a revocation hearing, on the other hand, the State is represented not by a prosecutor, but by a parole officer...; formal procedures and rules of evidence are not employed; and the members of the hearing body are familiar with the problems and practice of probation or parole.64

The references in Morrissey and Scarpelli to a revocation hearing as a proceeding not subject to the formal rules of evidence applicable to a criminal trial have raised the question of whether hearsay evidence will be permitted in evidence at the revocation hearing. In simple terms, hearsay is a statement made by someone outside of the hearing, offered at the hearing to prove the truth of the statement. Hearsay may be a statement, conduct, or a writing. The main objection to hearsay is that the person who made the original statement is not available at the hearing to be questioned or cross-examined. Therefore, hearsay evidence cannot be tested for its truthfulness. However, the courts have recognized that hearsay can be admitted under circumstances that assure truthfulness. There are, therefore, many exceptions to the hearsay rule.65 Although courts have permitted hearsay to be considered at revocation hearings,66 there is judicial reluctance to accept hearsay at revocation hearings67 as the sole basis of the final decision.

The United States Supreme Court in Pennsylvania Board of Probation and Parole v. Scott held in a 5-4 decision that the federal exclusionary rule does not bar the introduction of evidence seized in violation of parolees' Fourth Amendment rights at parole revocation hearings.68 The State's use of such evidence did not violate the Constitution.

In Scott, an offender was released on parole on the condition that he could not own or possess any weapons. Suspecting a violation, parole officers entered his home and found firearms, a bow, and arrows. After a hearing, the parolee was recommitted to prison, even though the parole officers obtained the evidence against him from an alleged unlawful search under the Fourth Amendment. The Supreme Court ruled that it would not apply the exclusionary rule even though the search violated the Fourth Amendment. Taking a restricted view toward the exclusionary rule, the Court held that a violation of the Fourth Amendment is "fully accomplished" by the illegal search or seizure and no exclusion of evidence can cure the invasion of rights a person has already suffered. The exclusionary rule is a judicially created means of deterring illegal searches and seizures. There is no provision in the Constitution prohibiting the introduction of illegally seized evidence in all proceedings or against all persons but applies only in contexts in which its remedial objectives are thought to be most efficiently served. The rule is prudential rather than constitutionally mandated. It applies only when its deterrence benefits outweigh the substantial social costs inherent in precluding consideration of reliable, probative evidence. Consequently, the Supreme Court has repeatedly declined to extend the exclusionary rule to proceedings other than criminal trials.

The Court commented that the social costs of allowing convicted criminals who violate their parole to remain at large are particularly high and are compounded by the fact that parolees (particularly those who have already committed parole violations) are more likely to commit future crimes than are average citizens. Application of the exclusionary rule would be incompatible with the traditionally flexible, nonadversarial, administrative procedures of parole revocation in that it would require extensive litigation to determine whether particular evidence must be excluded. The exclusionary rule would provide only minimal deterrence benefits in this context. Its application in criminal trials already provides significant deterrence of unconstitutional searches. The Supreme Court has never suggested that the exclusionary rule must apply in every circumstance in which it might provide marginal deterrence. Such a piecemeal approach would add an additional layer of collateral litigation regarding an officer's knowledge of the parolee's status. In any event, any additional deterrence would be minimal, whether the person conducting the search was a police officer or a parole officer.

"Rescission" of parole raises the question of the due process rights of a prisoner who has been given a "future parole date" but subsequently has that date changed or withdrawn. There would appear to be three alternatives. (1) Consider the "loss" as a revocation and apply the standards of Morrissey and Scarpelli. (2) Equate the "loss" to a prison disciplinary finding and apply the standards of Wolff v. McDonnell.69 (3) Treat the "loss" as a denial of parole and apply the same standards as those applicable to parole hearings in general.

At one time, the grant of parole could be summarily rescinded without notice or a hearing prior to final physical release, unless a statute or regulation provided otherwise. The courts, however, have recognized that although the loss of liberty is more grievous to a parolee out on the street, taking away a future parole date clearly seems to be a grievous loss subject to some minimal due process protections.70

In Jackson v. Wise,71 the court compared the rescission of parole to a prison hearing subject to the requirements of Wolff v. McDonnell and determined that the following were the minimum due process requirements for rescission:

Advance written notice of the charge;

Written statement by fact finders of the evidence relied on and the reasons for their decision;

Right of prisoner to be present;

Right of prisoner to present witnesses and documentary evidence on his behalf, if so doing would not be unduly hazardous to institutional safety or correctional goals;

The right, if the prisoner is found to be illiterate or otherwise incompetent to protect his own interests, to have an attorney-substitute; and

Adjudication of the charges by a panel sufficiently impartial to satisfy due process requirements. Other decisions have also found that minimum due process must accompany the rescission of parole.72

However, in Williams v. United States Board of Parole,73 the court required the full procedural requirements of Morrissey and Scarpelli. There are also decisions that follow the earlier view that a future date of parole may be rescinded summarily without notice or a hearing, until the time that the prisoner has been physically released from custody of the institution.74 Also, where a prisoner had escaped and was not returned until after his parole release date, a state court held that he was not entitled to a full-scale hearing.75

Beginning in 1983, the Florida legislature enacted a series of statutes authorizing the award of early release credits to prisoners when the state prison population exceeded predetermined levels. In 1986, a prisoner received a 22-year prison sentence on a charge of attempted murder. In 1992, he was released, based on the determination that he had accumulated five different types of early release credits totaling 5,668 days, including 1,860 days of "provisional credits" awarded as a result of prison overcrowding. Shortly thereafter, the state attorney general issued an opinion interpreting a 1992 statute as having retroactively canceled all provisional credits awarded to prisoners convicted of murder and attempted murder. The prisoner was therefore rearrested and returned to custody. He filed a habeas corpus petition alleging that the retroactive cancellation of provisional credits violated the ex post facto clause of the United States Constitution. The United States Supreme Court held that the 1992 statute canceling provisional release credits violated the ex post facto clause.76

To fall within the ex post facto prohibition, a law must be retrospective and disadvantage the offender affected by, among other things, increasing the punishment for the crime. The operation of the 1992 statute was clearly retrospective, and it obviously disadvantaged the prisoner by increasing his punishment.

The Supreme Court also rejected an argument that the prisoner was not entitled to relief because his provisional overcrowding credits were awarded pursuant to statutes enacted after the date of his offense rather than pursuant to the 1983 statute. Although the overcrowding statute in effect at the time of his crime was slightly modified in subsequent years, its basic elements remained the same, and the changes did not affect his core ex post facto claim.

13.5 Probation

Probation is a fundamentally different concept from parole, though in practice they are often indistinguishable. In general, probation is controlled by the court either at the time of sentencing or postsentencing while the court still has jurisdiction over the offender. Revocation of probation is controlled by the court, whereas revocation of parole is controlled by an administrative agency that is part of the executive branch of government. As indicated by the preceding cases, most procedural safeguards that apply to parole revocation also apply to probation revocation.

In federal practice, probation is controlled by statute under the Sentencing Guidelines. The guidelines have caused the federal judiciary much difficulty in their interpretation and application. One example is United States v. Granderson.77 A mail carrier was sentenced to five years' probation and a fine. However, after he tested positive for cocaine, the court resentenced him under 18 U.S.C. 3565(a), which provides that if a person serving a sentence of probation possesses illegal drugs, the court shall revoke the sentence of probation and sentence the defendant to not less than one-third of the original sentence. Accepting the government's reading of the statute, a district court concluded that the phrase "original sentence" referred to the term of probation actually imposed (60 months) rather than the zero to six-month imprisonment range authorized by the Sentencing Guidelines.

The Supreme Court held that the minimum revocation sentence under 3565(a)'s drug possession proviso is one-third the maximum of the originally applicable guidelines range of imprisonment and that the maximum revocation sentence is the guidelines' maximum. The proviso mandates imprisonment, not renewed probation, as the required type of punishment. The contrast in 3565(a) (1) and (2) between "continuing" and "revoking" probation as the alternative punishments for a defendant who violates a probation condition suggests that a revocation sentence must be a sentence of imprisonment, not a continuation of probation. Moreover, the court believed that it would be absurd to punish drug-possessing probationers by revoking their probation and imposing a new term of probation no longer than the original. The "original sentence" that sets the duration of the revocation sentence is the applicable Guidelines sentence of imprisonment, not the revoked term of probation.

One of the more difficult issues regarding the legal status of probationers and parolees is what rights the individual has while supervised in the community. The conditions attached to the issuance of probation and parolereferred to hereafter as community supervisionfrequently conflict with the retained constitutional rights of the offender.

The "contract" rationale is frequently used as a justification for revocation of community supervision after a violation of a particular condition. The acceptance of certain conditions of supervision is said to prevent the offender from later claiming that one of the conditions imposed was invalid. This contract theory may be discredited, however, because the consent is coerced. However, most challenges to the legality of conditions continue to be dismissed by the courts by virtue of the contract theory.

It would appear that the only conditions that courts are likely to invalidate are those that require illegal, immoral, or impossible actions by the offender. For example, if the pathological nature of one's alcoholism made it impossible to abstain from alcohol completely, a condition requiring complete abstention from alcohol would be invalidated as unreasonable.78 Another condition that would usually be invalidated as unreasonable, even though possible of performance, is a condition of banishment.79 A number of cases have addressed various conditions of probation and parole:

Requiring participation in psychological counseling as a condition of probation does not violate privacy rights.80

Due process is violated by the automatic revocation of probation because of an indigent probationer's failure to meet a condition of probation requiring him or her to pay a fine or make restitution. Absent findings that the probationer willfully refused to make bona fide efforts to pay or that alternate forms of punishment, other than imprisonment, are inadequate to meet the state's interests in punishment and deterrence, imprisonment violates the Fourteenth Amendment.81

A California statute requires every prisoner eligible for release on state parole to agree in writing to be subject to search or seizure by a parole officer or other peace officer with or without a search warrant and with or without cause. This policy was approved in Samson v. California.82 The Fourth Amendment does not prohibit a police officer from conducting a random, suspicionless search of a parolee.

Banning a probationer on supervised release conditions who was convicted of sexually preying on minors from gaining access to the Internet is constitutional.83

A supervised release condition that required a convicted mail thief to spend eight hours standing outside a post office wearing a signboard stating, "I stole mail. This is my punishment." did not equate to an Eighth Amendment violation.84

A convicted sex offender violated a condition of probation mandating that he have "no contact" with minors under the age of 16 when he attended a weekly gathering of antique car aficionados at which a number of children were present.85

An allegation that conditioning eligibility for parole on signing an agreement to take allegedly inappropriate medication was not frivolous under 28 U.S.C.S. 1915A. The prisoner had a liberty interest in avoiding an unwanted administration of antipsychotic drugs.86

Probation was properly revoked for leaving the jurisdiction without permission.

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