NCJ Number
36172
Journal
Chicago-Kent Law Review Volume: 52 Issue: 3 Dated: (1976) Pages: 716-740
Date Published
1976
Length
25 pages
Annotation
THIS ARTICLE CONSIDERS THE CONSTITUTIONALITY OF DELAY OF THE PAROLE REVOCATION HEARING (AND OF THE RESULTING DETAINER) WHEN THE PAROLEE IS SERVING TIME FOR AN INTERVENING CRIME.
Abstract
THE AUTHOR MAINTAINS THAT THE DIFFERENT WAYS IN WHICH THE COURTS REGARD THE NATURE OF THE PAROLEE'S RIGHT AND THE PURPOSE OF THE HEARING ACCOUNT FOR THEIR CONFLICTING INTERPRETATIONS OF WHAT CONSTITUTES GRIEVOUS LOSS AS APPLIED IN MORRISSEY V. BREWER (1972). THE DELAYAPPROVING COURTS REASON THAT THE PAROLE BOARD NEED NOT GRANT A MORRISSEY TYPE REVOCATION HEARING TO A PAROLEE AT THE COMMENCEMENT OF A SENTENCE FOR A CRIME COMMITTED WHILE ON PAROLE WHERE A PAROLE VIOLATOR WARRANT HAS BEEN ISSUED BUT RETURNED UNEXECUTED PENDING COMPLETION OF THE INTERVENING SENTENCE AND RETURN TO THE CUSTODY OF THE REVOKING AUTHORITY. ON THE OTHER HAND, DELAY-CRITICAL COURTS CONCLUDE THAT THE NATURE OF THE PAROLEE'S INTERESTS AFFECTED BY DELAY ARE WITHIN THE CONTEMPLATION OF THE 'LIBERTY' LANGUAGE OF THE DUE PROCESS CLAUSE SINCE HEARING DELAY CAUSES PREJUDICE IN THE OPPORTUNITY TO DEFEND AGAINST THE VIOLATION CHARGED OR TO DEMONSTRATE MITIGATING EVIDENCE, AND LOSS OF THE CHANCE FOR CONCURRENT SENTENCING CAUSING A LONGER PERIOD OF TOTAL IMPRISONMENT. THE AUTHOR ARGUES THAT THE 'IN CUSTODY' RATIONALE FOR HEARING POSTPONEMENT IS UNACCEPTABLE BECAUSE DELAY DEPRIVES THE PRISONER OF A TIMELY HEARING WHEN TIMING GOES TO THE VERY ESSENCE OF DUE PROCESS IN HOWEVER, THAT THE PROMPT HEARING REQUIREMENT WILL NOT NECESSARILY ELIMINATE THE ADVERSE EFFECTS CAUSED BY THE DETAINER SINCE IT MAY REMAIN INTACT, AFTER THE HEARING, AS A CONSECUTIVE SENTENCE DETAINER WITH THE SAME LIMITING EFFECTS ON THE PAROLEE'S LIBERTY. THE ONLY COMPLETE SOLUTION, IT IS SUGGESTED, IS ONE COMBINING A PROMPT REVOCATION HEARING WITH ELIMINATION OF THE ADVERSE EFFECTS OF THE DETAINER MECHANISM.