Morrissey v. Brewer/Concurrence Brennan
[p490] MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, concurring in the result.
I agree that a parole may not be revoked, consistently with the Due Process Clause, unless the parolee is afforded, first, a preliminary hearing at the time of arrest to determine whether there is probable cause to believe [p491] that he has violated his parole conditions and, second, a final hearing within a reasonable time to determine whether he has, in fact, violated those conditions and whether his parole should be revoked. For each hearing the parolee is entitled to notice of the violations alleged and the evidence against him, opportunity to be heard in person and to present witnesses and documentary evidence, and the right to confront and cross-examine adverse witnesses, unless it is specifically found that a witness would thereby be exposed to a significant risk of harm. Moreover, in each case the decisionmaker must be impartial, there must be some record of the proceedings, and the decisionmaker's conclusions must be set forth in written form indicating both the evidence and the reasons relied upon. Because the Due Process Clause requires these procedures, I agree that the case must be remanded as the Court orders.
The Court, however, states that it does not now decide whether the parolee is also entitled at each haring to the assistance of retained counsel or of appointed counsel if he is indigent. Goldberg v. Kelly, 397 U.S. 254 (1970), nonetheless plainly dictates that he at least "must be allowed to retain an attorney if he so desires." Id., at 270. As the Court said there, "Counsel can help delineate the issues, present the factual contentions in an orderly manner, conduct cross-examinations, and generally safeguard the interests of" his client. Id., at 270-271. The only question open under our precedents is whether counsel must be furnished the parolee if he is indigent.