Amdt14.S1.5.6.3 Probation, Parole, and Procedural Due Process

Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Sometimes convicted defendants are not sentenced to imprisonment, but instead are placed on probation subject to incarceration if they violate the conditions that are imposed; others who are incarcerated may qualify for release on parole before completing their sentence, subject to reincarceration if they violate imposed conditions. The Court has deemed both parole and probation to be statutory privileges granted by the government, and thus early cases assumed that the government did not have to provide procedural due process in granting or revoking either.1 Under modern doctrine, however, both granting and revocation of parole and probation are subject to due process analysis.

In Morrissey v. Brewer, a unanimous Court held that parole revocations must comply with due process hearing and notice requirements.2 The Court explained,

[T]he revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocation . . . [But] 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.3

The Court held that what process is due depended on the state’s interests. The state’s principal interest was that, having once convicted a defendant, imprisoned him, and, at some risk, released him for rehabilitation purposes, it should be “able to return the individual to imprisonment without the burden of a new adversary criminal trial if in fact he has failed to abide by the conditions of his parole. Yet, the state has no interest in revoking parole without some informal procedural guarantees,” inasmuch as such guarantees will not interfere with its reasonable interests.4

The Morrissey Court held that minimal due process dictates that at both stages of the parole revocation process—the arrest of the parolee and the formal revocation—the parolee is entitled to certain rights. Promptly following arrest of the parolee, there should be an informal hearing to determine whether reasonable grounds exist for revocation of parole.5 The parolee should be given adequate notice that the hearing will take place and what violations are alleged; the parolee should be able to appear and speak on his or her own behalf and produce other evidence and should be allowed to examine those who have given adverse evidence against him or her unless it is determined that the identity of such informant should not be revealed. In addition, the hearing officer should prepare a digest of the hearing and base his or her decision upon the evidence adduced at the hearing.6

Prior to the final decision on revocation, there should be a more formal revocation hearing involving a final evaluation of any contested relevant facts and consideration whether the facts as determined warrant revocation. The hearing must take place within a reasonable time after the parolee is taken into custody, and he or she must be enabled to controvert the allegations or offer evidence in mitigation. The procedural details of such hearings are for the states to develop, but the Court specified minimum requirements of due process, including

(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and the reasons for revoking parole.7

Ordinarily, the written statement need not indicate that the sentencing court or review board considered alternatives to incarceration,8 but a sentencing court must consider such alternatives if the probation violation consists of the failure of an indigent probationer, through no fault of his own, to pay a fine or restitution.9

The Court has applied a flexible due process standard to the provision of counsel in parole or probation revocation proceedings. The Court has not always required provision of counsel in such proceedings. However, it has held that the state should provide the assistance of counsel where an indigent person may have difficulty in presenting his or her version of disputed facts without cross-examination of witnesses or presentation of complicated documentary evidence. Presumptively, counsel should be provided where the person requests counsel and makes a timely and colorable claim that he or she has not committed the alleged violation, or if there are reasons in justification or mitigation that might make revocation inappropriate.10 In Mempa v. Rhay, the Court held that a criminal defendant was entitled to counsel at a deferred sentencing hearing conducted after he violated the conditions of his probation.11

The Court analyzed of the Due Process Clause’s requirements with respect to granting parole in Greenholtz v. Nebraska Penal Inmates.12 The Court rejected the theory that the mere possibility of parole was sufficient to create a liberty interest entitling any prisoner meeting the general standards of eligibility to be dealt with in any particular way. On the other hand, the Court recognized that a parole statute could create an expectancy of release entitled to some measure of constitutional protection, although a determination would need to be made on a case-by-case basis,13 and the full panoply of due process guarantees is not required.14 However, when state statutes and regulations impose no obligation on the pardoning authority and thus create no legitimate expectancy of release, the prisoner may not demonstrate such a legitimate expectancy by showing that others have been granted release. The power of the executive to pardon or grant clemency is a matter of grace and is rarely subject to judicial review.15

Ughbanks v. Armstrong, 208 U.S. 481 (1908), held that parole is not a constitutional right but instead is a “present” from government to the prisoner. In Escoe v. Zerbst, 295 U.S. 490 (1935), the Court’s premise was that the parolee was being granted a privilege as a matter of grace and that he should neither expect nor seek due process. Then-Judge Warren Burger in Hyser v. Reed, 318 F.2d 225 (D.C. Cir.), cert. denied, 375 U.S. 957 (1963), reasoned that due process was inapplicable because the parole board’s function was to assist the prisoner’s rehabilitation and restoration to society and that there was no adversary relationship between the board and the parolee. back
408 U.S. 471 (1972). back
408 U.S. at 480, 482. back
408 U.S. at 483. back
The preliminary hearing should 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, and should be conducted by someone not directly involved in the case, though it need not be a judicial officer. 408 U.S. at 485–86. back
408 U.S. at 484–87. back
408 U.S. at 489. back
Black v. Romano, 471 U.S. 606 (1985). back
Bearden v. Georgia, 461 U.S. 660, 672 (1983). back
Gagnon v. Scarpelli, 411 U.S. 778 (1973). back
389 U.S. 128 (1967). back
442 U.S. 1 (1979). back
Following Greenholtz, the Court held in Board of Pardons v. Allen, 482 U.S. 369 (1987), that a liberty interest was created by a Montana statute providing that a prisoner shall be released upon certain findings by a parole board. Accord Swarthout v. Cooke, 562 U.S. 216 (2011) (per curiam). back
The Court in Greenholtz held that procedures designed to elicit specific facts were inappropriate under the circumstances, and minimizing the risk of error should be the prime consideration. That goal may be achieved by the board’s largely informal methods; eschewing formal hearings, notice, and specification of particular evidence in the record. The inmate in this case was afforded an opportunity to be heard, and when parole was denied he was informed in what respects he fell short of qualifying. That afforded the process that was due. Accord Id. back
Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998). The mere existence of purely discretionary authority and the frequent exercise of it creates no entitlement. Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981) (involving commutation of a life sentence, which was necessary to become eligible for parole); Jago v. Van Curen, 454 U.S. 14 (1981). back