IMPOSSIBLE DREAM - DUE PROCESS GUARANTEES FOR CALIFORNIA PAROLEES AND PROBATIONERS

• NCJ Number: 14983
• Journal: Hastings Law Journal Volume: 25 Issue: 3 Dated: (FEBRUARY 1974) Pages: 602-635
• Author(s): V E ARMSTRONG
• Date Published: 1974
• Length: 34 pages
• Corporate Author: University of California
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

REVIEW OF CALIFORNIA AND U.S. SUPREME COURT DECISIONS WHICH REFLECT A TREND TOWARD A RECOGNITION OF CONSTITUTION MANDATED DUE PROCESS RIGHTS FOR PERSONS PREVIOUSLY ADJUDGED GUILTY BY THE COURTS.

Abstract

THIS NOTE FIRST EXAMINES THE DISTINCTION BETWEEN PAROLE AND PROBATION AND THE POSITION OF PAROLEES AND PROBATIONERS IN THE FEDERAL COURT SYSTEM. DISCUSSED ARE THE RATIONALES UPON WHICH THE COURTS HAD PREVIOUSLY BASED ITS REFUSAL TO EXTEND DUE PROCESS RIGHTS INTO THE POST-CONVICTION AREA - THE RIGHT-PRIVILEGE THEORY, THE CONTRACT THEORY, THE PAREN PATRIAE THEORY, AND THE CONSTRUCTIVE CUSTODY THEORY - AND THE EVENTUAL REJECTION OF THESE THEORIES IN FAVOR OF A SET OF FEDERAL DUE PROCESS GUIDELINES. THE HISTORY OF PROBATION-PAROLE DUE PROCESS RIGHTS IN CALIFORNIA IS ALSO TRACED, INCLUDING THE RECENT EXTENSIONS OF THESE RIGHTS IN PEOPLE V. VICKERS, PEOPLE V. NELSON, AND IN RE PREWITT. THESE 1972 DECISIONS HELD THAT PROBATIONERS WERE TO BE REPRESENTED BY COUNSEL AT REVOCATION PROCEEDINGS, GRANTED PAROLE AND PROBATION REVOCATIONS EQUAL STATUS IN APPLYING DUE PROCESS REQUIREMENTS, AND EXTENDED THE PROTECTIONS OF DUE PROCESS TO PAROLE RECISION. ALSO CONSIDERED ARE THE UNRESOLVED ISSUES OF THE 'CONSTITUTIONAL' RIGHT TO COUNSEL AND THE APPLICATION OF DUE PROCESS RIGHTS TO DISCIPLINARY PROCEEDINGS AND ELIGIBILITY HEARINGS. POSSIBLE ARGUMENTS IN FAVOR OF EXTENDING THE DUE PROCESS GUARANTEES TO PAROLEES, PROBATIONERS, AND PRISONERS ARE SUGGESTED AND EVALUATED. THE AUTHOR CONCLUDES THAT THE PRESENT TREND APPEARS TO BE TOWARD A MORE GRADUAL DEFINITION OF DUE PROCESS GUARANTEES AS REFLECTED BY THE U.S. SUPREME COURT DECISION IN GAGNON V. SCARPELLI AND THE CALIFORNIA SUPREME COURT RULING IN IN RE LAW. IN GAGNON THE COURT HELD THAT A CONSTITUTIONAL RIGHT FOR PAROLEES AND PROBATIONERS EXISTED ONLY IN A LIMITED TYPE OF REVOCATION HEARING AND WAS TO BE DECIDED ON A CASE-BY-CASE BASIS. IN LAW THE COURT RULED THAT DETENTION OF A PAROLEE WITHOUT BAIL WAS PERMISSIBLE AND DID NOT VIOLATE DUE PROCESS REQUIREMENTS. (AUTHOR ABSTRACT MODIFIED)