Respondent, a felony probationer, was arrested after committing
a burglary. He admitted involvement in the crime, but later claimed
that the admission was made under duress, and was false. The
probation of respondent, who was not represented by an attorney,
was revoked without a hearing. After filing a habeas corpus
petition, he was paroled. The District Court concluded that
revocation of probation without hearing and counsel was a denial of
due process. The Court of Appeals affirmed.
Held:
1. Due process mandates preliminary and final revocation
hearings in the case of a probationer under the same conditions as
are specified in
Morrissey v. Brewer, 408 U.
S. 471, in the case of a parolee. Pp.
411 U. S.
781-782.
2. The body conducting the hearings should decide in each
individual case whether due process requires that an indigent
probationer or parolee be represented by counsel. Though the State
is not constitutionally obliged to provide counsel in all cases, it
should do so where the indigent probationer or parolee may have
difficulty in presenting his version of disputed facts without the
examination or cross-examination of witnesses or the presentation
of complicated documentary evidence. Presumptively, counsel should
be provided where, after being informed of his right, the
probationer or parolee requests counsel, based on a timely and
colorable claim that he has not committed the alleged violation or,
if the violation is a matter of public record or uncontested, there
are substantial reasons in justification or mitigation that make
revocation inappropriate. Pp.
411 U. S.
783-791.
3 In every case where a request for counsel is refused, the
grounds for refusal should be stated succinctly in the record. P.
411 U. S.
791.
454 F.2d 416, affirmed in part, reversed in part, and
remanded.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN, and
REHNQUIST, JJ., joined. DOUGLAS, J., filed a statement dissenting
in part,
post, p.
411 U. S. 791.
Page 411 U. S. 779
MR. JUSTICE POWELL delivered the opinion of the Court.
This case presents the related questions whether a previously
sentenced probationer is entitled to a hearing when his probation
is revoked and, if so, whether he is entitled to be represented by
appointed counsel at such a hearing.
I
Respondent, Gerald Scarpelli, pleaded guilty in July, 1965, to a
charge of armed robbery in Wisconsin. The trial judge sentenced him
to 15 years' imprisonment, but suspended the sentence and placed
him on probation for seven years in the custody of the Wisconsin
Department of Public Welfare (the Department). [
Footnote 1] At that time, he signed an agreement
specifying the terms of his probation and a "Travel Permit and
Agreement to Return" allowing him to reside in Illinois, with
supervision there under an interstate compact. On August 5, 1965,
he was accepted for supervision by the Adult Probation Department
of Cook County, Illinois.
On August 6, respondent was apprehended by Illinois police, who
had surprised him and one Fred Kleckner,
Page 411 U. S. 780
Jr., in the course of the burglary of a house. After being
apprised of his constitutional rights, respondent admitted that he
and Kleckner had broken into the house for the purpose of stealing
merchandise or money, although he now asserts that his statement
was made under duress and is false. Probation was revoked by the
Wisconsin Department on September 1, without a hearing. The stated
grounds for revocation were that:
"1. [Scarpelli] has associated with known criminals, in direct
violation of his probation regulations and his supervising agent's
instructions;"
"2. [Scarpelli,] while associating with a known criminal, namely
Fred Kleckner, Jr., was involved in, and arrested for, a burglary .
. . in Deerfield, Illinois."
App. 20. On September 4, 1965, he was incarcerated in the
Wisconsin State Reformatory at Green Bay to begin serving the 15
years to which he had been sentenced by the trial judge. At no time
was he afforded a hearing.
Some three years later, on December 16, 1968, respondent applied
for a writ of habeas corpus. After the petition had been filed, but
before it had been acted upon, the Department placed respondent on
parole. [
Footnote 2] The
District Court found that his status as parolee was sufficient
custody to confer jurisdiction on the court, and that the petition
was not moot, because the revocation carried "collateral
consequences," presumably including the restraints imposed by his
parole. On the merits, the District Court held that revocation
without a hearing and counsel was a denial of due process.
317 F. Supp.
72 (ED Wis. 1970). The Court of Appeals affirmed
sub
Page 411 U. S. 781
nom. Gunsolus v. Gagnon, 454 F.2d 416 (CA7 1971), and
we granted certiorari. 408 U.S. 921 (1972).
II
Two prior decisions set the bounds of our present inquiry. In
Mempa v. Rhay, 389 U. S. 128
(1967), the Court held that a probationer is entitled to be
represented by appointed counsel at a combined revocation and
sentencing hearing. Reasoning that counsel is required "at every
stage of a criminal proceeding where substantial rights of a
criminal accused may be affected,"
id. at
389 U. S. 134,
and that sentencing is one such stage, the Court concluded that
counsel must be provided an indigent at sentencing even when it is
accomplished as part of a subsequent probation revocation
proceeding. But this line of reasoning does not require a hearing
or counsel at the time of probation revocation in a case such as
the present one, where the probationer was sentenced at the time of
trial.
Of greater relevance is our decision last Term in
Morrissey
v. Brewer, 408 U. S. 471
(1972). There we held that the revocation of parole is not a part
of a criminal prosecution.
"Parole arises after the end of the criminal prosecution,
including imposition of sentence. . . . Revocation deprives an
individual not of the absolute liberty to which every citizen is
entitled, but only of the conditional liberty properly dependent on
observance of special parole restrictions."
Id. at
408 U. S.
480.
Even though the revocation of parole is not a part of the
criminal prosecution, we held that the loss of liberty entailed is
a serious deprivation requiring that the parolee be accorded due
process. Specifically, we held that a parolee is entitled to two
hearings, one a
Page 411 U. S. 782
preliminary hearing at the time of his arrest and detention to
determine whether there is probable cause to believe that he has
committed a violation of his parole, and the other a somewhat more
comprehensive hearing prior to the making of the final revocation
decision. Petitioner does not contend that there is any difference
relevant to the guarantee of due process between the revocation of
parole and the revocation of probation, nor do we perceive one.
[
Footnote 3] Probation
revocation, like parole revocation, is not a stage of a criminal
prosecution, but does result in a loss of liberty. [
Footnote 4] Accordingly, we hold that a
probationer, like a parolee, is entitled to a preliminary and a
final revocation hearing under the conditions specified in
Morrissey v. Brewer, supra. [
Footnote 5]
Page 411 U. S. 783
III
The second, and more difficult, question posed by this case is
whether an indigent probationer or parolee has a due process right
to be represented by appointed counsel at these hearings. [
Footnote 6] In answering that question,
we draw heavily on the opinion in
Morrissey. Our first
point of reference is the character of probation or parole. As
noted in
Morrissey regarding parole, the "purpose is to
help individuals reintegrate into society as constructive
individuals as soon as they are able. . . ." 408 U.S. at
408 U. S. 477.
The duty and attitude of the probation or parole officer reflect
this purpose:
"While the parole or probation officer recognizes his double
duty to the welfare of his clients and to the safety of the general
community, by and large, concern for the client dominates his
professional attitude.
Page 411 U. S. 784
The parole agent ordinarily defines his role as representing his
client's best interests as long as these do not constitute a threat
to public safety. [
Footnote
7]"
Because the probation or parole officer's function is not so
much to compel conformance to a strict code of behavior as to
supervise a course of rehabilitation, he has been entrusted
traditionally with broad discretion to judge the progress of
rehabilitation in individual cases, and has been armed with the
power to recommend or even to declare revocation.
In
Morrissey, we recognized that the revocation
decision has two analytically distinct components:
"The first step in a revocation decision thus involves a wholly
retrospective factual question: whether the parolee has in fact,
acted in violation of one or more conditions of his parole. Only if
it is determined that the parolee did violate the conditions does
the second question arise: should the parolee be recommitted to
prison, or should other steps be taken to protect society and
improve chances of rehabilitation?"
408 U.S. at
408 U. S.
479-480. [
Footnote
8]
Page 411 U. S. 785
The parole officer's attitude toward these decisions reflects
the rehabilitative, rather than punitive, focus of the
probation/parole system:
"Revocation . . . is, if anything, commonly treated as a failure
of supervision. While presumably it would be inappropriate for a
field agent never to revoke, the whole thrust of the
probation-parole movement is to keep men in the community, working
with adjustment problems there, and using revocation only as a last
resort when treatment has failed or is about to fail. [
Footnote 9]"
But an exclusive focus on the benevolent attitudes of those who
administer the probation/parole system when it is working
successfully obscures the modification in attitude which is likely
to take place once the officer has decided to recommend revocation.
Even though the officer is not by this recommendation converted
into a prosecutor committed to convict, his role as counselor to
the probationer or parolee is then surely compromised.
When the officer's view of the probationer's or parolee's
conduct differs in this fundamental way from the latter's own view,
due process requires that the difference be resolved before
revocation becomes final. Both the probationer or parolee and the
State have interests in the accurate finding of fact and the
informed use of discretion -- the probationer or parolee to insure
that his liberty is not unjustifiably taken away, and the State to
make certain that it is neither unnecessarily interrupting a
successful effort at rehabilitation nor imprudently prejudicing the
safety of the community.
Page 411 U. S. 786
It was to serve all of these interests that
Morrissey
mandated preliminary and final revocation hearings. At the
preliminary hearing, a probationer or parolee is entitled to notice
of the alleged violations of probation or parole, an opportunity to
appear and to present evidence in his own behalf, a conditional
right to confront adverse witnesses, an independent decisionmaker,
and a written report of the hearing. 408 U.S. at
408 U. S. 487.
The final hearing is a less summary one, because the decision under
consideration is the ultimate decision to revoke, rather than a
mere determination of probable cause, but the "minimum requirements
of due process" include very similar elements:
"(a) written notice of the claimed violations of [probation or]
parole; (b) disclosure to the [probationer or] 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 reasons for revoking [probation or] parole."
Morrissey v. Brewer, supra, at
408 U. S.
489.
These requirements in themselves serve as substantial protection
against ill-considered revocation, and petitioner argues that
counsel need never be supplied. What this argument overlooks is
that the effectiveness of the rights guaranteed by
Morrissey may, in some circumstances, depend on the use of
skills which the probationer or parolee is unlikely to possess.
Despite the informal nature of the proceedings and the absence of
technical
Page 411 U. S. 787
rules of procedure or evidence, the unskilled or uneducated
probationer or parolee may well have difficulty in presenting his
version of a disputed set of facts where the presentation requires
the examining or cross-examining of witnesses or the offering or
dissecting of complex documentary evidence.
By the same token, we think that the Court of Appeals erred in
accepting respondent's contention that the State is under a
constitutional duty to provide counsel for indigents in all
probation or parole revocation cases. While such a rule has the
appeal of simplicity, it would impose direct costs and serious
collateral disadvantages without regard to the need or the
likelihood in a particular case for a constructive contribution by
counsel. In most cases, the probationer or parolee has been
convicted of committing another crime or has admitted the charges
against him. [
Footnote 10]
And while in some cases he may have a justifiable excuse for the
violation or a convincing reason why revocation is not the
appropriate disposition, mitigating evidence of this kind is often
not susceptible of proof or is so simple as not to require either
investigation or exposition by counsel.
The introduction of counsel into a revocation proceeding will
alter significantly the nature of the proceeding. If counsel is
provided for the probationer or parolee, the State, in turn, will
normally provide its own counsel; lawyers, by training and
disposition, are advocates, and bound by professional duty to
present all available evidence and arguments in support of their
clients' positions and to contest with vigor all adverse evidence
and views. The role of the hearing body itself, aptly described in
Morrissey as being "predictive and discretionary" as well
as factfinding, may become more akin to that of a judge at a trial,
and less attuned to the
Page 411 U. S. 788
rehabilitative needs of the individual probationer or parolee.
In the greater self-consciousness of its
quasi-judicial
role, the hearing body may be less tolerant of marginal deviant
behavior and feel more pressure to reincarcerate than to continue
nonpunitive rehabilitation. Certainly, the decisionmaking process
will be prolonged, and the financial cost to the State for
appointed counsel, counsel for the State, a longer record, and the
possibility of judicial review -- will not be insubstantial.
[
Footnote 11]
In some cases, these modifications in the nature of the
revocation hearing must be endured and the costs borne because, as
we have indicated above, the probationer's or parolee's version of
a disputed issue can fairly be represented only by a trained
advocate. But due process is not so rigid as to require that the
significant interests in informality, flexibility, and economy must
always be sacrificed.
In so concluding, we are, of course, aware that the case-by-case
approach to the right to counsel in felony prosecutions adopted in
Betts v. Brady, 316 U. S. 455
(1942), was later rejected in favor of a
per se rule in
Gideon v. Wainwright, 372 U. S. 335
(1963).
See also Argersinger v. Hamlin, 407 U. S.
25 (1972). We do not, however, draw from
Gideon
and
Argersinger the conclusion that a case-by-case
approach to furnishing counsel is necessarily inadequate to protect
constitutional rights asserted in varying types of proceedings:
there are critical differences between criminal trials and
probation or parole revocation
Page 411 U. S. 789
hearings, and both society and the probationer or parolee have
stakes in preserving these differences.
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
with the orientation described above; 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.
The need for counsel at revocation hearings derives not from the
invariable attributes of those hearings, but rather from the
peculiarities of particular cases.
The differences between a criminal trial and a revocation
hearing do not dispose altogether of the argument that, under a
case-by-case approach, there may be cases in which a lawyer would
be useful but in which none would be appointed because an arguable
defense would be uncovered only by a lawyer. Without denying that
there is some force in this argument, we think it a sufficient
answer that we deal here not with the right of an accused to
counsel in a criminal prosecution, but with the more limited due
process right of one who is a probationer or parolee only because
he has been convicted of a crime. [
Footnote 12]
Page 411 U. S. 790
We thus find no justification for a new inflexible
constitutional rule with respect to the requirement of counsel. We
think, rather, that the decision as to 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. Although the
presence and participation of counsel will probably be both
undesirable and constitutionally unnecessary in most revocation
hearings, there will remain certain cases in which fundamental
fairness -- the touchstone of due process -- will require that the
State provide at its expense counsel for indigent probationers or
parolees.
It is neither possible nor prudent to attempt to formulate a
precise and detailed set of guidelines to be followed in
determining when the providing of counsel is necessary to meet the
applicable due process requirements. The facts and circumstances in
preliminary and final hearings are susceptible of almost infinite
variation, and a considerable discretion must be allowed the
responsible agency in making the decision. Presumptively, it may be
said that counsel should be provided in cases where, after being
informed of his right to request counsel, the probationer or
parolee makes such a request based on a timely and colorable claim
(i) that he has not committed the alleged violation of the
conditions upon which he is at liberty; or (ii) that, even if the
violation is a matter of public record or is uncontested, there are
substantial reasons which justified or mitigated the violation and
make revocation inappropriate, and that the reasons are complex or
otherwise difficult to develop or present. In passing on a request
for the appointment of counsel, the responsible agency also should
consider,
Page 411 U. S. 791
especially in doubtful cases, whether the probationer appears to
be capable of speaking effectively for himself. 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.
IV
We return to the facts of the present case. Because respondent
was not afforded either a preliminary hearing or a final hearing,
the revocation of his probation did not meet the standards of due
process prescribed in
Morrissey, which we have here held
applicable to probation revocations. Accordingly, respondent was
entitled to a writ of habeas corpus. On remand, the District Court
should allow the State an opportunity to conduct such a hearing. As
to whether the State must provide counsel, respondent's admission
to having committed another serious crime creates the very sort of
situation in which counsel need not ordinarily be provided. But
because of respondent's subsequent assertions regarding that
admission,
see supra at
411 U. S. 780,
we conclude that the failure of the Department to provide
respondent with the assistance of counsel should be reexamined in
light of this opinion. The general guidelines outlined above should
be applied in the first instance by those charged with conducting
the revocation hearing.
Affirmed in part, reversed in part, and remanded.
[
Footnote 1]
The Court's order placing respondent on probation provided,
among other things, that, "[i]n the event of his failure to meet
the conditions of his probation, he will stand committed under the
sentence all ready [
sic] imposed." App. 10. The agreement
specifying the conditions of the probation, duly executed by
respondent, obligated him to "make a sincere attempt to avoid all
acts which are forbidden by law. . . ." App. 12.
[
Footnote 2]
Respondent was initially paroled to a federal detainer to serve
a previously imposed federal sentence arising from another
conviction. He was subsequently released from federal custody, but
remains a parolee under the supervision of the Department.
[
Footnote 3]
Despite the undoubted minor differences between probation and
parole, the commentators have agreed that revocation of probation
where sentence has been imposed previously is constitutionally
indistinguishable from the revocation of parole.
See,
e.g., Van Dyke, Parole Revocation Hearings in California: The
Right to Counsel 59 Calif.L.Rev. 1215, 1241-1243 (1971); Sklar, Law
and Practice in Probation and Parole Revocation Hearings, 55
J.Crim.L.C. & P.S. 175, 198 n. 182 (1964).
[
Footnote 4]
It is clear, at least after
Morrissey v. Brewer,
408 U. S. 471
(1972), that a probationer can no longer be denied due process, in
reliance on the dictum in
Escoe v. Zerbst, 295 U.
S. 490,
295 U. S. 492
(1935), that probation is an "act of grace."
[
Footnote 5]
Petitioner argues, in addition, that the
Morrissey
hearing requirements impose serious practical problems in cases,
such as the present one, in which a probationer or parolee is
allowed to leave the convicting State for supervision in another
State. Such arrangements are made pursuant to an interstate compact
adopted by all of the States, including Wisconsin. Wis.Stat.Ann. ยง
57.13 (1957). Petitioner's brief asserts that, as of June 30, 1972,
Wisconsin had a total of 642 parolees and probationers under
supervision in other States, and that incomplete statistics as of
June 30, 1971, indicated a national total of 24,693 persons under
out-of-state supervision. Brief for Petitioner 21-22. Some amount
of disruption inevitably attends any new constitutional ruling. We
are confident, however, that modification of the interstate compact
can remove without undue strain the more serious technical hurdles
to compliance with
Morrissey. An additional comment is
warranted with respect to the rights to present witnesses and to
confront and cross-examine adverse witnesses. Petitioner's greatest
concern is with the difficulty and expense of procuring witnesses
from perhaps thousands of miles away. While in some cases there is
simply no adequate alternative to live testimony, we emphasize that
we did not, in
Morrissey, intend to prohibit use where
appropriate of the conventional substitutes for live testimony,
including affidavits, depositions, and documentary evidence. Nor
did we intend to foreclose the States from holding both the
preliminary and the final hearings at the place of violation, or
from developing other creative solutions to the practical
difficulties of the
Morrissey requirements.
[
Footnote 6]
In
Morrissey v. Brewer, we left open the question
"whether the parolee is entitled to the assistance of retained
counsel or to appointed counsel if he is indigent." 408 U.S. at
408 U. S. 489.
Since respondent did not attempt to retain counsel, but asked only
for appointed counsel, we have no occasion to decide in this case
whether a probationer or parolee has a right to be represented at a
revocation hearing by retained counsel in situations other than
those where the State would be obliged to furnish counsel for an
indigent.
[
Footnote 7]
F. Remington, D. Newman, E. Kimball, M. Melli & H.
Goldstein, Criminal Justice Administration, Materials and Cases
910-911 (1969).
[
Footnote 8]
The factors entering into these decisions relate in major part
to a professional evaluation, by trained probation or parole
officers, as to the overall social readjustment of the offender in
the community, and include consideration of such variables as the
offender's relationship toward his family, his attitude toward the
fulfillment of financial obligations, the extent of his cooperation
with the probation or parole officer assigned to his case, his
personal associations, and -- of course -- whether there have been
specific and significant violations of the conditions of the
probation or parole. The importance of these considerations, some
factual and others entirely judgmental, is illustrated by a
Wisconsin empirical study which disclosed that, in the sample
studied, probation or parole was revoked in only 34.5% of the cases
in which the probationer or parolee violated the terms of his
release. S. Hunt, The Revocation Decision: A Study of Probation and
Parole Agents' Discretion 10 (unpublished thesis on file at the
library of the University of Wisconsin) (1964), cited in Brief for
Petitioner, Addendum 106.
[
Footnote 9]
Remington, Newman, Kimball, Melli & Goldstein,
supra, n 7, at
910.
[
Footnote 10]
See Sklar,
supra, n 3, at 192 (parole), 193 (probation).
[
Footnote 11]
The scope of the practical problem which would be occasioned by
a requirement of counsel in all revocation cases is suggested by
the fact that, in the mid-1960's, there was an estimated average of
20,000 adult felony parole revocations and 108,000 adult probation
revocations each year. President's Commission on Law Enforcement
and Administration of Justice, Task Force Report: The Courts 56 n.
28 (1967).
[
Footnote 12]
Cf. In re Gault, 387 U. S. 1 (1967),
establishing a juvenile's right to appointed counsel in a
delinquency proceeding which, while denominated civil, was
functionally akin to a criminal trial. A juvenile charged with
violation of a generally applicable statute is differently situated
from an already-convicted probationer or parolee, and is entitled
to a higher degree of protection.
See In re Winship,
397 U. S. 358
(1970) (the standard of proof in a juvenile delinquency proceeding
must be "proof beyond a reasonable doubt").
MR. JUSTICE DOUGLAS, dissenting in part.
I believe that due process requires the appointment of counsel
in this case because of the claim that respondent's confession of
the burglary was made under duress.
See Morrissey v.
Brewer, 408 U. S. 471,
408 U. S. 498
(opinion of DOUGLAS, J.).