NCJ Number
45917
Date Published
1978
Length
13 pages
Annotation
COURT RULINGS WITH REGARD TO DUE PROCESS AND RIGHT TO COUNSEL IN PROBATION AND PAROLE REVOCATION HEARINGS AND IN PRISON DISCIPLINARY PROCEEDINGS ARE DISCUSSED.
Abstract
IN MORRISSEY V. BREWER, THE U.S. SUPREME COURT ESTABLISHED THAT AN ALLEGED PAROLE VIOLATOR HAS MANY CONSTITUTIONAL SAFEGUARDS AVAILABLE TO HIM, INCLUDING THE RIGHT TO BE HEARD. HOWEVER, IN GAGNON V. SCARPELLI, THE COURT REJECTED THE LOGICAL IMPLICATIONS OF THAT DECISION, FINDING THAT THE ALLEGED VIOLATOR'S RIGHT TO COUNSEL AT HIS REVOCATION HEARING SHOULD BE DETERMINED ON A CASE-BY-CASE BASIS. IN WOLFF V. MCDONNELL, THE COURT UPHELD A NUMBER OF PROCEDURAL DUE PROCESS RIGHTS IN PRISON DISCIPLINARY PROCEEDINGS, BUT NOT AN ABSOLUTE RIGHT TO COUNSEL. A NUMBER OF DECISIONS BY OTHER COURTS HAVE SUPPORTED THE RIGHT TO COUNSEL FOR ALLEGED PROBATION AND VIOLATORS. COURT DECISIONS SUBSEQUENT TO WOLFF FINDING HAVE HELD THAT THE PROCESS DUE AN INMATE CHARGED WITH DISCIPLINARY VIOLATIONS IS MORE THAN THAT REQUIRED BY WOLFF. THERE HAS BEEN A RAPID DEVELOPMENT IN STATE AND FEDERAL COURTS OF PROCEDURAL AND EVIDENTIARY SAFEGUARDS DESIGNED TO INSURE FAIR AND JUST REVOCATION HEARINGS FOR PROBATIONERS AND PAROLEES. SUCH SAFEGUARDS RELATE TO HEARSAY EVIDENCE, UNCONSTITUTIONALLY OBTAINED EVIDENCE, DOUBLE JEOPARDY, AND BURDEN OF PROOF. IT IS CONCLUDED THAT TO ABROGATE A CONVICTED PERSON'S STATUS -BE IT PAROLE, PROBATION, OR PRISON YARD PRIVILEGES -- IS SUFFICIENT DIMINUTION OF LIBERTY TO FALL WITHIN THE 14TH AMENDMENT GUARANTEE OF DUE PROCESS. IT IS FURTHER CONCLUDED THAT THE RIGHT TO COUNSEL IS A BASIC SAFEGUARD FOR PROVIDING THIS CONSTITUTIONAL GUARANTEE AND THAT PROCEDURAL DUE PROCESS WITHOUT COUNSEL IS, IN MOST CASES, AN EMPTY PROMISE. (LKM)