NCJ Number
56239
Journal
Crime and Delinquency Volume: 25 Issue: 2 Dated: (APRIL 1979) Pages: 219-235
Date Published
1979
Length
17 pages
Annotation
THE CONSTITUTION REQUIRES A MINIMUM DEGREE OF DUE PROCESS IN PAROLE REVOCATION HEARINGS, BUT ADDITIONAL GUIDELINES ARE REQUIRED FOR THE PROPER PROTECTION OF THE PAROLEE AND SOCIETY.
Abstract
ALTHOUGH THE UNITED STATES SUPREME COURT IN MORRISSEY V. BREWER (1972) DETERMINED THAT THE DUE PROCESS CLAUSE OF THE CONSTITUTION IS APPLICABLE TO PAROLE REVOCATION HEARINGS, MANY COLLATERAL ISSUES WERE UNRESOLVED. A PAROLEE SUSPECTED OF A PAROLE VIOLATION CLEARLY IS ENTITLED TO A PRELIMINARY HEARING SOON AFTER HIS ARREST AND TO NOTICE OF AN ALLEGED VIOLATION. THE PAROLEE'S RIGHT TO COUNSEL, HOWEVER, IS LESS CLEAR, WITH APPLICATIONS FOR THE USE OF COUNSEL REVIEWED ON THE BASIS OF THE SPECIFIC FACTS OF EACH REVOCATION. THE SUPREME COURT HAS NOT SAID WHETHER TESTIMONY GIVEN UPON THE PROMISE OF IMMUNITY FROM PROSECUTION COULD BE USED AT A REVOCATION HEARING, EVEN THOUGH SUCH EVIDENCE WOULD BE BARRED FROM USE IN CRIMINAL PROSECUTION. PREVAILING LOWER COURT DECISIONS HOLD THAT THE EXCLUSIONARY RULE OF THE FOURTH AMMENDMENT DOES NOT APPLY TO REVOCATION HEARINGS. IN NEW YORK AND IN ALASKA EVIDENCE OF PAROLE VIOLATIONS MAY BE OBTAINED WITHOUT A SEARCH WARRANT. THE COURTS, HOWEVER, DO INDICATE THAT GUIDELINES FOR PAROLE OFFICERS SHOULD RESTRICT THE CIRCUMSTANCES WHICH JUSTIFY WARRANTLESS SEARCHES. SINCE MORRISSEY, SEVERAL COURTS HAVE APPROVED ALTERNATIVES TO THE PRELIMINARY HEARING FORMAT. THE NINTH CIRCUIT HAS DETERMINED THAT PAROLE REVOCATION HEARINGS ARE REMEDIAL, NOT PUNITIVE, ACTIONS AND THAT THE REVOCATION BOARD MAY CONSIDER EVIDENCE FROM A PAROLEE'S SUBSEQUENT CRIMINAL TRIALS, EVEN THOUGH THE PAROLEE WAS ACQUITTED. ADDITIONAL ISSUES WHICH REQUIRE A FINAL DETERMINATION BY THE SUPREME COURT INCLUDE THE LIABILITY OF PAROLE OFFICERS AND THE APPLICATION OF DUE PROCESS STANDARDS IN PAROLE RECISIONS. FOOTNOTES ARE PROVIDED. (TWK).