Morrissey v. Brewer/Dissent Douglas

by William J. Brennan

[p491] MR. JUSTICE DOUGLAS, dissenting in part.

Each petitioner was sentenced for a term in an Iowa penitentiary for forgery. Somewhat over a year later each was released on parole. About six months later, each was arrested for a parole violation and confined in a local jail. In about a week, the Iowa Board of Parole revoked their [p492] paroles and each was returned to the penitentiary. At no time during any of the proceedings which led to the parole revocations were they granted a hearing or the opportunity to know, question, or challenge any of the facts which formed the basis of their alleged parole violations. Nor were they given an opportunity to present evidence on their own behalf or to confront and cross-examine those on whose testimony their paroles were revoked.

Each challenged the revocation in the state courts and, obtaining no relief, filed the present petitions in the Federal District Court, which denied relief. Their appeals were consolidated in the Court of Appeals which, sitting en banc, in each case affirmed the District Court by a four-to-three vote, 443 F. 2d 942. The cases are here on a petition for a writ of certiorari, 404 U.S. 999, which we granted because there is a conflict between the decision below and Hahn v. Burke, 430 F. 2d 100, decided by the Court of Appeals for the Seventh Circuit.

Iowa has a board of parole^[1] which determines who shall be paroled. Once paroled, a person is under the supervision of the director of the division of corrections of the Department of Social Services, who, in turn, supervises parole agents. Parole agents do not revoke the parole of any person but only recommend that the board of parole revoke it. The Iowa Act provides that each parolee "shall be subject, at any time, to be taken into custody and returned to the institution" from which he [p493] was paroled.^[2] Thus, Iowa requires no notice or hearing to put a parolee back in prison, Curtis v. Bennett, 256 Iowa 1164, 131 N.W. 2d 1; and it is urged that since parole, like probation, is only a privilege it may be summarily revoked.^[3] See Escoe v. Zerbst, 295 U.S. 490, 492-493; Ughbanks v. Armstrong, 208 U.S. 481. But we have long discarded the right-privilege distinction. See, e.g., Graham v. Richardson, 403 U.S. 365, 539; Pickering v. Board of Education, 391 U.S. 563, 568; cf. Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv. L. Rev. 1439 (1968).

The Court said in United States v. Wilson, 7 Pet. 150, 161, that a "pardon is a deed." The same can be said of a parole, which when conferred gives the parolee a degree of liberty which is often associated with property interests.

[p494] We held in Goldberg v. Kelly, 397 U.S. 254, that the termination by a State of public assistance payments to a recipient without a prior evidentiary hearing denies him procedural due process in violation of the Fourteenth Amendment. Speaking of the termination of welfare benefits we said:

"Their termination involves state action that adjudicates important rights. The constitutional challenge cannot be answered by an argument that public assistance benefits are 'a "privilege" and not a "right."' Shapiro v. Thompson, 394 U.S. 618, 627 n. 6 (1969). Relevant constitutional restraints apply as much to the withdrawal of public assistance benefits as to disqualification for unemployment compensation, Sherbert v. Verner, 374 U.S. 398 (1963); or to denial of a tax exemption, Speiser v. Randall, 357 U.S. 513 (1958); or to discharge from public employment, Slochower v. Board of Higher Education, 350 U.S. 551 (1956). The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be 'condemned to suffer grievous loss,' Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring), and depends upon whether the recipient's interest in avoiding that loss outweighs the governmental interest in summary adjudication. Accordingly, as we said in Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895 (1961), 'consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.' See also Hannah v. Larche, 363 U.S. 420, 440, 442 (1960)." 397 U.S., at 262-263.

[p495] Under modern concepts of penology, paroling prisoners is part of the rehabilitative aim of the correctional philosophy. The objective is to return a prisoner to a full family and community life. See generally Note, Parole Revocation in the Federal System, 56 Geo L.J. 705 (1968); Note, Parole: A Critique of Its Legal Foundations and Conditions, 38 N.Y.U L. Rev. 702 (1963); Commend, 72 Yale L.J. 368 (1962); and see Baine v. Beckstead, 10 Utah 2d 4, 347 P. 2d 554 (1959). The status he enjoys as a parolee is as important a right as those we reviewed in Goldberg v. Kelly. That status is conditioned upon not engaging in certain activities and perhaps in not leaving a certain area or locality. Violations of conditions of parole may be technical, they may be done unknowingly, they may be fleeting and of no consequence.^[4] See, e.g., Arciniega v. Freeman, 404 U.S. 4, Cohen, Due Process, Equal Protection and State Parole Revocation Proceedings, 42 U. Colo. L. Rev. 197, 229 (1970). The parolee should, in the concept of fairness implicit in due process, have a chance to explain. Rather, under Iowa's rule revocation proceeds on the ipse dixit of the parole agent; and on his word alone each of these petitioners has already served three additional years in prison.^[5] The charges may or may not be true. Words of explanation may be adequate to transform into trivia what looms large in the mind of the parole officer.

"[T]here is no place in our system of law for reaching [p496] a result of such tremendous consequences without ceremony—without hearing, without effective assistance of counsel, without a statement of reasons." Kent v. United States, 383 U.S. 541, 554 (1966).

Parole,^[6] while originally conceived as a judicial function, has become largely an administrative matter. The parole boards have broad discretion in formulating and imposing parole conditions. "Often vague and moralistic, parole conditions may seem oppressive and unfair to the parolee." R. Dawson, Sentencing 306 (1969). They are drawn "to cover any contingency that might occur," id., at 307, and are designed to maximize "control over the parolee by his parole officer." Ibid.

Parole is commonly revoked on mere suspicion that the parolee may have committed a crime. Id., at 366-367. Such great control over the parolee vests in a parole officer a broad discretion in revoking parole and also in counseling the parolee—referring him for psychiatric treatment or obtaining the use of specialized therapy for narcotic addicts or alcoholics. Id., at 321. Treatment of the parolee, rather than revocation of his parole, is a common course. Id., at 322-323. Counseling may include extending help to a parolee in finding a job. Id., at 324 et seq.

A parolee, like a prisoner, is a person entitled to constitutional protection, including procedural due process.^[7] At the federal level, the construction of regulations of the Federal Parole Board presents federal questions of [p497] which we have taken cognizance. See Arciniega v. Freeman, 404 U.S. 4. At the state level, the construction of parole statutes and regulations is for the States alone, save as they implicate the Federal Constitution in which event the Supremacy Clause controls.

It is only procedural due process, required by the Fourteenth Amendment, that concerns us in the present cases. Procedural due process requires the following.

If a violation of a condition of parole is involved, rather than the commission of a new offense, there should not be an arrest of the parolee and his return to the prison or to a local jail.^[8] Rather, notice of the alleged violation should be given to the parolee and a time set for hearing.^[9] The [p498] hearing should not be before the parole officer, as he is the one who is making the charge and "there is inherent danger in combining the functions of judge and advocate." Jones v. Rivers, 338 F. 2d 862, 877 (CA4 1964) (Sobeloff, J., concurring). Moreover, the parolee should be entitled to counsel.^[10] See Hewett v. North Carolina, 415 F. 2d 1316, 1322-1325 (CA4 1969); People ex rel. Combs v. LaVallee, 29 App. Div. 2d 128, 286 N.Y.S. 2d 600 (1968); Perry v. Willard, 247 Ore. 145, 427 P. 2d 1020 (1967). As the Supreme Court of Oregon said in Perry v. Willard, "A hearing in which counsel is absent or is present only on behalf of one side is inherently unsatisfactory if not unfair. Counsel can see that relevant facts are brought out, vague and insubstantial allegations discounted, and irrelevancies eliminated." Id., at 148, [p499] 427 P. 2d, at 1022. Cf. Mempa v. Rhay, 389 U.S. 128, 135.

The hearing required is not a grant of the full panoply of rights applicable to a criminal trial. But confrontation with the informer may, as Roviaro v. United States, 353 U.S. 53, illustrates, be necessary for a fair hearing and the ascertainment of the truth. The hearing is to determine the fact of parole violation. The results of the hearing would go to the parole board—or other authorized state agency—for final action, as would cases which involved voluntary admission of violations.

The rule of law is important in the stability of society. Arbitrary actions in the revocation of paroles can only impede and impair the rehabilitative aspects of modern penology. "Notice and opportunity for hearing appropriate to the nature of the case," Boddie v. Connecticut, 401 U.S. 371, 378, are the rudiments of due process which restore faith that our society is run for the many, not the few, and that fair dealing rather than caprice will govern the affairs of men.^[11]

I would not prescribe the precise formula for the management of the parole problems. We do not sit as an ombudsman, telling the States the precise procedures they must follow. I would hold that so far as the due process requirements of parole revocation are concerned:^[12]

(1) the parole officer—whatever may be his duties under various state statutes—in Iowa appears to be an agent having some of the functions of a prosecutor and [p500] of the police; the parole officer is therefore not qualified as a hearing officer;

(2) the parolee is entitled to a due process notice and a due process hearing of the alleged parole violations including, for example, the opportunity to be confronted by his accusers and to present evidence and argument on his own behalf; and

(3) the parolee is entitled to the freedom granted a parolee until the results of the hearing are known as the parole board—or other authorized state agency—acts.^[13]

I would reverse the judgments and remand for further consideration in light of this opinion.

Notes

1. Iowa Code § 247.5 (1971) provides in part:

   "The board of parole shall determine which of the inmates of the state penal institutions qualify and thereafter shall be placed upon parole. Once an inmate is placed on parole he shall be under the supervision of the director of the division of corrections of the department of social services. There shall be a sufficient number of parole agents to insure proper supervision of all persons placed on parole. Parole agents shall not revoke the parole of any person but may recommend that the board of parole revoke such parole."

2. Id., § 247.9 provides in part:

   "All paroled prisoners shall remain, while on parole, in the legal custody of the warden or superintendent and under the control of the chief parole officer, and shall be subject, at any time, to be taken into custody and returned to the institution from which they were paroled."

3. "A fundamental problem with [the right-privilege] theory is that probation is now the most frequent penal disposition just as release on parole is the most frequent form of release from an institution. They bear little resemblance to episodic acts of mercy by a forgiving sovereign. A more accurate view of supervised release is that it is now an integral part of the criminal justice process and shows every sign of increasing popularity. Seen in this light; the question becomes whether legal safeguards should be provided for hundreds of thousands of individuals who daily are processed and regulated by governmental agencies. The system has come to depend on probation and parole as much as do those who are enmeshed in the system. Thus, in dealing with claims raised by offenders, we should make decisions based not on an outworn cliche but on the basis of present-day realities." F. Cohen, The Legal Challenge to Corrections: Implications for Manpower and Training 32 (Joint Commission on Correctional Manpower and Training 1969).
4. The violations alleged in these cases on which revocation was based are listed by the Court of Appeals, 443 F. 2d 942, 943-944, nn. 1 and 2.

   For a discussion of the British system that dispenses with precise conditions usually employed here see 120 U. Pa. L. Rev. 282, 311- 312 (1971). As to conditions limiting constitutional rights see id., at 313-324, 326-339.

5. As to summary deprivations of individual liberty in Communist nations, see, e. g., Shao-chuan Leng, Justice In Communist China 34 (1967); 1 P. Tang, Communist China Today 271 (2d ed. 1961); J. Hazard, Communists and Their Law 121-126 (1969).
6. "Parole is used after a sentence has been imposed while probation is usually granted in lieu of a prison term." R. Clegg, Probation and Parole 22 (1964). See Baine v. Beckstead, 10 Utah 2d 4, 9, 347 P. 2d 554, 558; People ex rel. Combs v. LaVallee, 29 App. Div. 2d 128, 131, 286 N.Y.S. 2d 600, 603.
7. See President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Corrections 83, 84 (1967); 120 U. Pa. L. Rev. 282, 348-358 (1971).
8. As Judge Skelly Wright said in Hyser v. Reed, 1, 15 U.S. App. D.C. 254, 291, 318 F. 2d 225, 262 (1963) (concurring in part and dissenting in part):

   "Where serious violations of parole have been committed, the parolee will have been arrested by local or federal authorities on charges stemming from those violations. Where the violation of parole is not serious, no reason appears why he should be incarcerated before hearing. If, of course, the parolee willfully fails to appear for his hearing, this in itself would justify issuance of the warrant." Accord, In re Tucker, 5 Cal. 3d 171, 199-200, 486 P. 2d 657, 676 (1971) (Tobriner, J., concurring and dissenting).

9. As we said in another connection in Greene v. McElroy, 360 U.S. 474, 496-497:

   "Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important, in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots. They find expression in the Sixth Amendment which provides that in all criminal cases the accused shall enjoy the right to be confronted with the witnesses against him. This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, but also in all types of cases where administrative and regulatory actions were under scrutiny." (Citations omitted.)

10. American Bar Association Project on Standards for Criminal Justice, Providing Defense Services 43 (Approved Draft 1968); Model Penal Code § 301.4, § 305.15 (1) (Proposed Official Draft 1962); R. Dawson, Sentencing (1969). For the experience of Michigan in giving hearings to parolees see id., at 355. In Michigan, it is estimated that only one out of six parole violators retains counsel. One who cannot afford counsel is said to be protected by the hearing members of the board. Id., at 354. The number who ask for public hearings are typically five or six a year, the largest in a single year being 10. Michigan has had this law since 1937. Id., at 355. But the Michigan experience may not be typical, for a parole violator is picked up and returned at once to the institution from which he was paroled. Id., at 352-353.

    By way of contrast, parole revocation hearings in California are secretive affairs conducted behind closed doors and with no written record of the proceedings and in which the parolee is denied the assistance of counsel and the opportunity to present witnesses on his behalf. Van Dyke, Parole Revocation Hearings in California: The Right to Counsel, 59 Calif. L. Rev. 1215 (1971). See also Note, 56 Geo. L. J. 705 (1968) (federal parole revocation procedures).

11. The Brief of the American Civil Liberties Union, amicus curiae, contains in Appendix A the States that by statute or decision require some form of hearing before parole is revoked and those that do not. All but nine States now hold hearings on revocation of probation and parole, some with trial-type rights including representation by counsel.
12. We except of course the commission of another offense which from the initial step to the end is governed by the normal rules of criminal procedure.
13. The American Correctional Association states in its Manual of Correctional Standards 279 (3d ed. 1966) that:

    "To an even greater extent than in the case of imprisonment, probation and parole practice is determined, by an administrative discretion that is largely uncontrolled by legal standards, protections, or remedies. Until statutory and case law are more fully developed, it is vitally important within all of the correctional fields that there should be established and maintained reasonable norms and remedies against the sorts of abuses that are likely to develop where men have great power over their fellows and where relationships may become both mechanical and arbitrary."

    And it provides for parole revocation hearings:

    "As soon as practicable after causing an alleged violator [to be] taken into custody on the basis of a parole board warrant, the prisoner should be given an opportunity to appear before the board or its representative. The prisoner should be made fully aware of the reasons for the warrant, and given ample opportunity to refute the charges placed against him or to comment as to extenuating circumstances. The hearing should be the basis for consideration of possible reinstatement to parole supervision on the basis of the findings of fact or of reparole where it appears that further incarceration would serve no useful purpose." Id., at 130.

    The American Bar Association states at p. 10 of its brief amicus in the present cases that it is "in full agreement with the American Correctional Association in this instance. The position that a hearing is to be afforded on parole revocation is consistent with several sets of criminal justice standards formally approved by the Association through its House of Delegates."