NCJ Number
14413
Journal
New England Journal on Prison Law Volume: 1 Issue: 1 Dated: (SPRING 1974) Pages: 103-115
Date Published
1974
Length
13 pages
Annotation
DISCUSSION OF THE 1973 SUPREME COURT DECISION AFFORDING A TWO-STAGE HEARING PROCEDURE IN PROBATION REVOCATION BUT LEAVING THE QUESTION OF RIGHT TO COUNSEL TO BE DECIDED ON A CASE-BY-CASE BASIS.
Abstract
THE MAJORITY ADOPTED THE CRITERIA ESTABLISHED IN MORRISSEY, THE PAROLE REVOCATION CASE, AND MADE THEM APPLICABLE TO PROBATION REVOCATION. MORRISSEY HELD THAT DUE PROCESS REQUIRES A TWO-STAGE HEARING PROCEDURE: A PRELIMINARY HEARING AT THE TIME OF ARREST AND A SECOND, MORE COMPREHENSIVE HEARING PRIOR TO FORMAL PAROLE REVOCATION. THESE HEARINGS MAY BE CONDUCTED IN AN INFORMAL ATMOSPHERE SO LONG AS MINIMAL PROCEDURAL SAFEGUARDS ARE AFFORDED THE PAROLEE. THE SCOPE OF THEIR RESPECTIVE INQUIRIES IS, HOWEVER, SOMEWHAT VARIED: THE PRELIMINARY HEARING IS DESIGNED TO FACILITATE A DETERMINATION OF THE EXISTENCE OF PROBABLE CAUSE; THE SUBSEQUENT COMPREHENSIVE HEARING GOES TO A FULL EVALUATION OF THE FACTS IN DISPURE. BASED UPON ALL OF THESE FACTORS, THE JUSTICES CONCLUDED THAT THE ENDS OF PAROLE AND PROBATION WOULD NOT BE SERVED BY ALWAYS IMPOSING COUNSEL UPON THE HEARING PROCEDURE. HOWEVER, THEY WERE COGNIZANT OF THE FACT THAT IN CERTAIN CASES 'FUNDAMENTAL FAIRNESS' REQUIRES COUNSEL. SUCH AN OCCASION MAY ARISE WHEN A PROBATIONER OR PAROLEE MAKES A TIMELY CLAIM THAT HE HAS EITHER NOT COMMITTED THE ALLEGED ACT OR THAT MITIGATING CIRCUMSTANCES EXIST WHICH HE CANNOT EFFECTIVELY PRESENT HIMSELF. THE FACTFINDER IS THEN UNDER A DUTY TO EITHER APPOINT COUNSEL TO REPRESENT HIM OR SPECIFICALLY STATE THE REASONS FOR THE DENIAL IN HIS REPORT. (AUTHOR ABSTRACT)