408 U.S.

471
92 S.Ct. 2593
33 L.Ed.2d 484

John J. MORRISSEY and G. Donald Booher, Petitioners,

v.
Lou B. BREWER, Warden, et al.
No. 715103.
Argued April 11, 1972.
Decided June 29, 1972.

Syllabus
Petitioners in these habeas corpus proceedings claimed that their paroles
were revoked without a hearing and that they were thereby deprived of
due process. The Court of Appeals, in affirming the District Court's denial
of relief, reasoned that under controlling authorities parole is only 'a
correctional device authorizing service of sentence outside a penitentiary,'
and concluded that a parolee, who is still 'in custody,' is not entitled to a
full adversary hearing such as would be mandated in a criminal
proceeding. Held:
1. Though parole revocation does not call for the full panoply of rights due
a defendant in a criminal proceeding, a parolee's liberty involves
significant values within the protection of the Due Process Clause of the
Fourteenth Amendment, and termination of that liberty requires an
informal hearing to give assurance that the finding of a parole violation is
based on verified facts to support the revocation. Pp. 480482.
2. Due process requires a reasonably prompt informal inquiry conducted
by an impartial hearing officer near the place of the alleged parole
violation or arrest to determine if there is reasonable ground to believe that
the arrested parolee has violated a parole condition. The parolee should
receive prior notice of the inquiry, its purpose, and the alleged violations.
The parolee may present relevant information and (absent security
considerations) question adverse informants. The hearing officer shall
digest the evidence on probable cause and state the reasons for holding
the parolee for the parole board's decision. Pp. 484 487.

3. At the revocation hearing, which must be conducted reasonably soon

after the parolee's arrest, minimum due process requirements are: (a)
written notice of the claimed violations of parole; (b) disclosure to the
parolee of evidence against him; (c) opportunity to be heard in person and
to present witnesses and documentary evidence; (d) the right to confront
and cross-examine adverse witnesses (unless the hearing officer
specifically finds good cause for not allowing confrontation); (e) a 'neutral
and detached' hearing body such as a traditional parole board, members of
which need not be judicial officers or lawyers; and (f) a written statement
by the factfinders as to the evidence relied on and reasons for revoking
parole. Pp. 487490.
443 F.2d 942, reversed and remanded.
W. Don Brittin, Jr., Des Moines, Iowa, for petitioners.
Larry S. Seuferer, Asst. Atty. Gen. of Iowa, Des Moines, Iowa, for
respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.

We granted certiorari in this case to determine whether the Due Process Clause
of the Fourteenth Amendment requires that a State afford an individual some
opportunity to be heard prior to revoking his parole.

Petitioner Morrissey was convicted of false drawing or uttering of checks in

1967 pursuant to his guilty plea, and was sentenced to not more than seven
years' confinement. He was paroled from the Iowa State Penitentiary in June
1968. Seven months later, at the direction of his parole officer, he was arrested
in his home town as a parole violator and incarcerated in the county jail. One
week later, after review of the parole officer's written report, the Iowa Board of
Parole revoked Morrissey's parole, and he was returned to the penitentiary
located about 100 miles from his home. Petitioner asserts he received no
hearing prior to revocation of his parole.

The parole officer's report on which the Board of Parole acted shows that
petitioner's parole was revoked on the basis of information that he had violated
the conditions of parole by buying a car under an assumed name and operating
it without permission, giving false statements to police concerning his address
and insurance company after a minor accident, obtaining credit under an
assumed name, and failing to report his place of residence to his parole officer.
The report states that the officer interviewed Morrissey, and that he could not

explain why he did not contact his parole officer despite his effort to excuse
this on the ground that he had been sick. Further, the report asserts that
Morrissey admitted buying the car and obtaining credit under an assumed
name, and also admitted being involved in the accident. The parole officer
recommended that his parole be revoked because of 'his continual violating of
his parole rules.'
4

The situation as to petitioner Booher is much the name. Pursuant to his guilty
plea, Booher was convicted of forgery in 1966 and sentenced to a maximum
term of 10 years. He was paroled November 14, 1968. In August 1969, at his
parole officer's direction, he was arrested in his home town for a violation of
his parole and confined in the county jail several miles away. On September 13,
1969, on the basis of a written report by his parole officer, the Iowa Board of
Parole revoked Booher's parole and Booher was recommitted to the state
penitentiary, located about 250 miles from his home, to complete service of his
sentence. Petitioner asserts he received no hearing prior to revocation of his
parole.

The parole officer's report with respect to Booher recommended that his parole
be revoked because he had violated the territorial restrictions of his parole
without consent, had obtained a driver's license under an assumed name,
operated a motor vehicle without permission, and had violated the employment
condition of his parole by failing to keep himself in gailful employment. The
report stated that the officer had interviewed Booher and that he had
acknowledged to the parole officer that he had left the specified territorial limits
and had operated the car and had obtained a license under an assumed name
'knowing that it was wrong.' The report further noted that Booher had stated
that he had not found employment because he could not find work that would
pay him what he wantedhe stated he would not work for $2.25 to $2.75 per
hourand that he had left the area to get work in another city.

After exhausting state remedies, both petitioners filed habeas corpus petitions in
the United States District Court for the Southern District of Iowa alleging that
they had been denied due process because their paroles had been revoked
without a hearing. The State responded by arguing that no hearing was
required. The District Court held on the basis of controlling authority that the
State's failure to accord a hearing prior to parole revocation did not violate due
process. On appeal, the two cases were consolidated.

The Court of Appeals, dividing 4 to 3, held that due process does not require a
hearing. The majority recognized that the traditional view of parole as a
privilege rather than a vested right is no longer dispositive as to whether due

process is applicable; however, on a balancing of the competing interests

involved, it concluded that no hearing is required. The court reasoned that
parole is only 'a correctional device authorizing service of sentence outside the
penitentiary', 443 F.2d 942, 947; the parolee is still 'in custody.' Accordingly,
the Court of Appeals was of the view that prison officials must have large
discretion in making revocation determinations, and that courts should retain
their traditional reluctance to interfere with disciplinary matters properly under
the control of state prison authorities. The majority expressed the view that
'non-legal, non-adversary considerations' were often the determinative factors
in making a parole revocation decision. It expressed concern that if adversary
hearings were required for parole revocation, 'with the full panoply of rights
accorded in criminal proceedings,' the function of the parole board as 'an
administrative body acting in the role of parens patriae would be aborted', id., at
949, and the board would be more reluctant to grant parole in the first instance
an apprehension that would not be without some basis if the choice were
between a full-scale adversary proceeding or no hearing at all. Additionally, the
majority reasoned that the parolee has no statutory right to remain on parole.
Iowa law provides that a parolee may be returned to the institution at any time.
Our holding in Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336
(1967), was distinguished on the ground that it involved deferred sentencing
upon probation revocation, and thus involved a stage of the criminal
proceeding, whereas parole revocation was not a stage in the criminal
proceeding. The Court of Appeals' decision was consistent with many other
decisions on parole revocations.
8

In their brief in this Court, respondents assert for the first time that petitioners
were in fact granted hearings after they were returned to the penitentiary. More
generally, respondents say that within two months after the Board revokes an
individual's parole and orders him returned to the penitentiary, on the basis of
the parole officer's written report it grants the individual a hearing before the
Board. At that time, the Board goes over 'each of the alleged parole violations
with the returnee, and he is given an opportunity to orally present his side of the
story to the Board.' If the returnee denies the report, it is the practice of the
Board to conduct a further investigation before making a final determination
either affirming the initial revocation, modifying it, or reversing it.1
Respondents assert that Morrissey, whose parole was revoked on January 31,
1969, was granted a hearing before the Board on February 12, 1969. Booher's
parole was revoked on September 13, 1969, and he was granted a hearing on
October 14, 1969. At these hearings, respondents tell usin the briefsboth
Morrissey and Booher admitted the violations alleged in the parole violation
reports.

Nothing in the record supplied to this Court indicates that respondent claimed,
either in the District Court or the Court of Appeals, that petitioners had received
hearings promptly after their paroles were revoked, or that in such hearing they
admitted the violations; that information comes to us only in the respondents'
brief here. Further, even the assertions that respondents make here are not
based on any public record but on interviews with two of the members of the
parole board. In the interview relied on to show that petitioners admitted their
violations, the board member did not assert he could remember that both
Morrissey and Booher admitted the parole violations with which they were
charged. He stated only that, according to his memory, in the previous several
years all but three returnees had admitted commission of the parole infractions
agreed and that neither of the petitioners was among the three who denied
them.

10

We must therefore treat this case in the posture and on the record respondents
elected to rely on in the District Court and the Court of Appeals. If the facts are
otherwise, respondents may make a showing in the District Court that
petitioners in fact have admitted the violations charged before a neutral officer.

11

* Before reaching the issue of whether due process applies to the parole system,
it is important to recall the function of parole in the correctional process.

12

During the past 60 years, the practice of releasing prisoners on parole before
the end of their sentences has become an integral part of the penological
system. Note, Parole Revocation in the Federal System, 56 Geo.L.J. 705
(1968). Rather than being an ad hoc exercise of clemency, parole is an
established variation on imprisonment of convicted criminals. Its purpose is to
help individuals reintegrate into society as constructive individuals as soon as
they are able, without being confined for the full term of the sentence imposed.
It also serves to alleviate the costs to society of keeping an individual in
prison.2 The essence of parole is release from prison, before the completion of
sentence, on the condition that the prisoner abide by certain rules during the
balance of the sentence. Under some systems, parole is granted automatically
after the service of a certain portion of a prison term. Under others, parole is
granted by the discretionary action of a board, which evaluates an array of
information about a prisoner and makes a prediction whether he is ready to
reintegrate into society.

13

To accomplish the purpose of parole, those who are allowed to leave prison
early are subjected to specified conditions for the duration of their terms. These
conditions restrict their activities substantially beyond the ordinary restrictions

imposed by law on an individual citizen. Typically, parolees are forbidden to

use liquor or to have associations or correspondence with certain categories of
undesirable persons. Typically, also they must seek permission from their
parole officers before engaging in specified activities, such as changing
employment or living quarters, marrying, acquiring or operating a motor
vehicle, travling outside the community, and incurring substantial indebtedness.
Additionally, parolees must regularly report to the parole officer to whom they
are assigned and sometimes they must make periodic written reports of their
activities. Arluke, A Summary of Parole RulesThirteen Years Later, 15
Crime & Delin. 267, 272273 (1969).
14

The parole officers are part of the administrative system designed to assist
parolees and to offer them guidance. The conditions of parole serve a dual
purpose; they prohibit, either absolutely or conditionally, behavior that is
deemed dangerous to the restoration of the individual into normal society. And
through the requirement of reporting to the parole officer and seeking guidance
and permission before doing many things, the officer is provided with
information about the parole and an opportunity to advise him. The
combination puts the parole officer into the position in which he can try to
guide the parolee into constructive development.3

15

The enforcement leverage that supports the parole conditions derives from the
authority to return the parolee to prison to serve out the balance of his sentence
if he fails to abide by the rules. In practice, not every violation of parole
conditions automatically leads to revocation. Typically, a parolee will be
counseled to abide by the conditions of parole, and the parole officer ordinarily
does not take steps to have parole revoked unless he thinks that the violations
are serious and continuing so as to indicate that the parolee is not adjusting
properly and cannot be counted on to avoid antisocial activity.4 The broad
discretion accorded the parole officer is also inherent in some of the quite
vague conditions, such as the typical requirement that the parolee avoid
'undesirable' associations or correspondence. Cf. Arciniega v. Freeman, 404
U.S. 4, 92 S.Ct. 22, 30 L.Ed.2d 126 (1971). Yet revocation of parole is not an
unusual phenomenon, affecting only a few parolees. It has been estimated that
35%45% of all parolees are subjected to revocation and return to prison.5
Sometimes revocation occurs when the parolee is accused of another crime; it
is often preferred to a new prosecution because of the procedural ease of
recommitting the individual on the basis of a lesser showing by the State. 6

16

Implicit in the system's concern with parole violations is the notion that the
parolee is entitled to retain his liberty as long as he substantially abides by the
conditions of his parole. The first step in a revocation decision thus involves a

wholly retrospective factual question: whether the parolee has in fact acted in
violation of one or more conditions of his parole. Only if it is determined that
the parolee did violate the conditions does the second question arise: should the
parolee be recommitted to prison or should other steps be taken to protect
society and improve chances of rehabilitation? The first step is relatively
simple; the second is more complex. The second question involves the
application of expertise by the parole authority in making a prediction as to the
ability of the individual to live in society without committing antisocial acts.
This part of the decision, too, depends on facts, and therefore it is important for
the board to know not only that some violation was committed but also to know
accurately how many and how serious the violations were. Yet this second step,
deciding what to do about the violation once it is identified, is not purely
factual but also predictive and discretionary.
17

If a parolee is returned to prison, he usually receives no credit for the time

'served' on parole.7 Thus, the returnee may face a potential of substantial
imprisonment.

II
18

We begin with the proposition that the revocation of parole is not part of a
criminal prosecution and thus the full panoply of rights due a defendant in such
a proceeding does not apply to parole revocations. Cf. Mempa v. Rhay, 389
U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). Parole arises after the end of
the criminal prosecution, including imposition of sentence. Supervision is not
directly by the court buy by an administrative agency, which is sometimes an
arm of the court and sometimes of the executive. Revocation deprives an
individual, not of the absolute liberty to which every citizen is entitled, but only
of the conditional liberty properly dependent on observance of special parole
restrictions.

19

We turn, therefore, to the question whether the requirements of due process in

general apply to parole revocations. As Mr. Justice Blackmun has written
recently, 'this Court now has rejected the concept that constitutional rights turn
upon whether a governmental benefit is characterized as a 'right' or as a
'privilege." Graham v. Richardson, 403 U.S. 365, 374, 91 S.Ct. 1848, 1853, 29
L.Ed.2d 534 (1971). Whether any procedural protections are due depends on
the extent to which an individual will be 'condemned to suffer grievous loss.'
Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct.
624, 646, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring), quoted in Goldberg
v. Kelly, 397 U.S. 254, 263, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287 (1970). The
question is not merely the 'weight' of the individual's interest, but whether the

nature of the interest is one within the contemplation of the 'liberty or property'
language of the Fourteenth Amendment. Fuentes v. Shevin, 407 U.S. 67, 92
S.Ct. 1983, 32 L.Ed.2d 556 (1972). Once it is determined that due process
applies, the question remains what process is due. It has been said so often by
this Court and others as not to require citation of authority that due process is
flexible and calls for such procedural protections as the particular situation
demands. '(C)onsideration 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.' Cafeteria & Restaurant Workers
Union v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230
(1961). To say that the concept of due process is flexible does not mean that
judges are at large to apply it to any and all relationships. Its flexibility is in its
scope once it has been determined that some process is due; it is a recognition
that not all situations calling for procedural safeguards call for the same kind of
procedure.
20

We turn to an examination of the nature of the interest of the parolee in his

continued liberty. The liberty of a parolee enables him to do a wide range of
things open to persons who have never been convicted of any crime. The
parolee has been released from prison based on an evaluation that he shows
reasonable promise of being able to return to society and function as a
responsible, self-reliant person. Subject to the conditions of his parole, he can
be gainfully employed and is free to be with family and friends and to form the
other enduring attachments of normal life. Though the State property subjects
him to many restrictions not applicable to other citizens, his condition is very
different from that of confinement in a prison.8 He may have been on parole for
a number of years and may be living a relatively normal life at the time he is
faced with revocation. 9 The parolee has relied on at least an implicit promise
that parole will be revoked only if he fails to live up to the parole conditions. In
many cases, the parolee faces lengthy incarceration if his parole is revoked.

21

We see, therefore, that the liberty of a parolee, although indeterminate, includes

many of the core values of unqualified liberty and its termination inflicts a
'grievous loss' on the parolee and often on others. It is hardly useful any longer
to try to deal with this problem in terms of whether the parolee's liberty is a
'right' or a 'privilege.' By whatever name, the liberty is valuable and must be
seen as within the protection of the Fourteenth Amendment. Its termination
calls for some orderly process, however informal.

22

Turning to the question what process is due, we find that the State's interests
are several. The State has found the parolee guilty of a crime against the people.

That finding justifies imposing extensive restrictions on the individual's liberty.

Release of the parolee before the end of his prison sentence is made with the
recognition that with many prisoners there is a risk that they will not be able to
live in society without committing additional antisocial acts. Given the previous
conviction and the proper imposition of conditions, the State has an
overwhelming interest in being able to return the individual to imprisonment
without the burden of a new adversary criminal trial if in fact he has failed to
abide by the conditions of his parole.
23

Yet, the State has no interest in revoking parole without some informal
procedural guarantees. Although the parolee is often formally described as
being 'in custody,' the argument cannot even be made here that summary
treatment is necessary as it may be with respect to controlling a large group of
potentially disruptive prisoners in actual custody. Nor are we persuaded by the
argument that revocation is so totally a discretionary matter that some form of
hearing would be administratively intolerable. A simple factual hearing will not
interfere with the exercise of discretion. Serious studies have suggested that fair
treatment on parole revocation will not result in fewer grants of parole.10

24

This discretionary aspect of the revocation decision need not be reached unless
there is first an appropriate determination that the individual has in fact
breached the conditions of parole. The parolee is not the only one who has a
stake in his conditional liberty. Society has a stake in whatever may be the
chance of restoring him to normal and useful life within the law. Society thus
has an interest in not having parole revoked because of erroneous information
or because of an erroneous evaluation of the need to revoke parole, given the
breach of parole conditions. See People ex rel. Menechino v. Warden, 27
N.Y.2d 376, 379, and n. 2, 318 N.Y.S.2d 449, 450, and n. 2, 267 N.E.2d 238,
239, and n. 2 (1971) (parole board had less than full picture of facts). And
society has a further interest in treating the parolee with basic fairness: fair
treatment in parole revocations will enhance the chance of rehabilitation by
avoiding reactions to arbitrariness.11

25

Given these factors, most States have recognized that there is no interest on the
part of the State in revoking parole without any procedural guarantees at all.12
What is needed is an informal hearing structured to assure that the finding of a
parole violation will be based on verified facts and that the exercise of
discretion will be informed by an accurate knowledge of the parolee's behavior.

III
26

We now turn to the nature of the process that is due, bearing in mind that the

interest of both State and parolee will be furthered by an effective but informal
hearing. In analyzing what is due, we see two important stages in the typical
process of parole revocation.
27

(a) Arrest of Parolee and Preliminary Hearing. The first stage occurs when the
parolee is arrested and detained, usually at the direction of his parole officer.
The second occurs when parole is formally revoked. There is typically a
substantial time lag between the arrest and the eventual determination by the
parole board whether parole should be revoked. Additionally, it may be that the
parolee is arrested at a place distant from the state institution, to which he may
be returned before the final decision is made concerning revocation. Given
these factors, due process would seem to require that some minimal inquiry be
conducted at or reasonably near the place of the alleged parole violation or
arrest and as promptly as convenient after arrest while information is fresh and
sources are available. Cf. Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225
(1963). Such an inquiry should be seen as in the nature of a 'preliminary
hearing' to determine whether there is probable cause or reasonable ground to
believe that the arrested parolee has committed acts that would constitute a
violation of parole conditions. Cf. Goldberg v. Kelly, 397 U.S., at 267271,
90 S.Ct. at 10201022, 25 L.Ed.2d 287.

28

In our view, due process requires that after the arrest, the determination that
reasonable ground exists for revocation of parole should be made by someone
not directly involved in the case. It would be unfair to assume that the
supervising parole officer does not conduct an interview with the parolee to
confront him with the reasons for revocation before he recommends an arrest. It
would also be unfair to assume that the parole officer bears hostility against the
parolee that destroys his neutrality; realistically the failure of the parolee is in a
sense a failure for his supervising officer.13 However, we need make no
assumptions one way or the other to conclude that there should be an
uninvolved person to make this preliminary evaluation of the basis for
believing the conditions of parole have been violated. The officer directly
involved in making recommendations cannot always have complete objectivity
in evaluating them.14 Goldberg v. Kelly found it unnecessary to impugn the
motives of the case-worker to find a need for an independent decisionmaker to
examine the initial decision.

29

This independent officer need not be a judicial officer. The granting and
revocation of parole are matters traditionally handled by administrative officers.
In Goldberg, the Court pointedly did not require that the hearing on termination
of benefits be conducted by a judicial officer or even before the traditional
'neutral and detached' officer; it required only that the hearing be conducted by

some person other than one initially dealing with the case. It will be sufficient,
therefore, in the parole revocation context, if an evaluation of whether
reasonable cause exists to believe that conditions of parole have been violated
is made by someone such as a parole officer other than the one who has made
the report of parole violations or has recommended revocation. A State could
certainly choose some other independent decisionmaker to perform this
preliminary function.
30

With respect to the preliminary hearing before this officer, the parolee should
be given notice that the hearing will take place and that its purpose is to
determine whether there is probable cause to believe he has committed a parole
violation. The notice should state what parole violations have been alleged. At
the hearing the parolee may appear and speak in his own behalf; he may bring
letters, documents, or individuals who can give relevant information to the
hearing officer. On request of the parolee, person who has given adverse
information on which parole revocation is to be based is to be made available
for questioning in his presence. However, if the hearing officer determines that
an informant would be subjected to risk of harm if his identity were disclosed,
he need not be subjected to confrontation and cross-examination.

31

The hearing officer shall have the duty of making a summary, or digest, of what
occurs at the hearing in terms of the responses of the parolee and the substance
of the documents or evidence given in support of parole revocation and of the
parolee's position. Based on the information before him, the officer should
determine whether there is probable cause to hold the parolee for the final
decision of the parole board on revocation. Such a determination would be
sufficient to warrant the parolee's continued detention and return to the state
correctional institution pending the final decision. As in Goldberg, 'the decision
maker should state the reasons for his determination and indicate the evidence
he relied on . . .' but it should be remembered that this is not a final
determination calling for 'formal findings of fact and conclusions of law.' 397
U.S., at 271, 90 S.Ct., at 1022. No interest would be served by formalism in
this process; informality will not lessen the utility of this inquiry in reducing the
risk of error.

32

(b) The Revocation Hearing. There must also be an opportunity for a hearing, if
it is desired by the parolee, prior to the final decision on revocation by the
parole authority. This hearing must be the basis for more than determining
probable cause; it must lead to a final evaluation of any contested relevant facts
and consideration of whether the facts as determined warrant revocation. The
parolee must have an opportunity to be heard and to show, if he can, that he did
not violate the conditions, or, if he did, that circumstances in mitigation suggest

that the violation does not warrant revocation. The revocation hearing must be
tendered within a reasonable time after the parolee is taken into custody. A
lapse of two months, as respondents suggest occurs in some cases, would not
appear to be unreasonable.
33

We cannot write a code of procedure; that is the responsibility of each State.

Most States have done so by legislation, others by judicial decision usually on
due process grounds.15 Our task is limited to deciding the minimum
requirements of due process. They include (a) written notice of the claimed
violations of parole; (b) disclosure to the parolee of evidence against him; (c)
opportunity to be heard in person and to present witnesses and documentary
evidence; (d) the right to confront and cross-examine adverse witnesses (unless
the hearing officer specifically finds good cause for not allowing
confrontation); (e) a 'neutral and detached' hearing body such as a traditional
parole board, members of which need not be judicial officers or lawyers; and (f)
a written statement by the factfinders as to the evidence relied on and reasons
for revoking parole. We emphasize there is no thought to equate this second
stage of parole revocation to a criminal prosecution in any sense. It is a narrow
inquiry; the process should be flexible enough to consider evidence including
letters, affidavits, and other material that would not be admissible in an
adversary criminal trial.

34

We do not reach or decide the question whether the parolee is entitled to the
assistance of retained counsel or to appointed counsel if he is indigent.16

35

We have no thought to create an inflexible structure for parole revocation

procedures. The few basic requirements set out above, which are applicable to
future revocations of parole, should not impose a great burden on any State's
parole system. Control over the required proceedings by the hearing officers
can assure that delaying tactics and other abuses sometimes present in the
traditional adversary trial situation do not occur. Obviously a parolee cannot
relitigate issues determined against him in other forums, as in the situation
presented when the revocation is based on conviction of another crime.

36

In the peculiar posture of this case, given the absence of an adequate record, we
conclude the ends of justice will be best served by remanding the case to the
Court of Appeals for its return of the two consolidated cases to the District
Court with directions to make findings on the procedures actually followed by
the Parole Board in these two revocations. If it is determined that petitioners
admitted parole violations to the Parole Board, as respondents contend, and if
those violations are found to be reasonable grounds for revoking parole under
state standards, that would end the matter. If the procedures followed by the

Parole Board are found to meet the standards laid down in this opinion that, too,
would dispose of the due process claims for these cases.
37

We reverse and remand to the Court of Appeals for further proceedings

consistent with this opinion.

38

Reversed and remanded.

39

Mr. Justice BRENNAN, concurring in the result.

40

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 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 corss-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.

41

The Court, however, states that it does not now decide whether the parolee is
also entitled at each hearing to the assistance of retained counsel or of
appointed counsel if he is indigent. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct.
1011, 25 L.Ed.2d 287 (1970), nonetheless plainly dictates that he at least 'must
be allowed to retain an attorney if he so desires.' Id., at 270, 90 S.Ct., at 1022.
As the Court said there, 'Counsel can help delineate the issues, present the
factual contentions in an orderly manner, conduct cross-examination, and
generally safeguard the interests of' his client. Id., at 270271, 90 S.Ct., at
1021 1022. The only question open under our precedents is whether counsel
must be furnished the parolee if he is indigent.

42

Mr. Justice DOUGLAS, dissenting in part.

43

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 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.
44

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, 92 S.Ct. 568,
30 L.Ed.2d 552, 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.

45

Iowa has a board of parole1 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 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, 492493, 55
S.Ct. 818, 819, 79 L.Ed. 1566; Ughbanks v. Armstrong, 208 U.S. 481, 28 S.Ct.
372, 52 L.Ed. 582. But we have long discarded the right-privilege distinction.
See, e.g., Graham v. Richardson, 403 U.S. 365, 374, 91 S.Ct. 1848, 1853, 29
L.Ed.2d 534; Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 1589, 29
L.Ed.2d 90; Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731,
1734, 20 L.Ed.2d 811; cf. Van Alstyne, The Demise of the Right-Privilege
Distinction in Constitutional Law, 81 Harv.L.Rev. 1439 (1968).

46

The Court said in United States v. Wilson, 32 U.S. 150, 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.

47

We held in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287,

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:
48

'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, 89 S.Ct. 1322, 1327, (22 L.Ed.2d 600) (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, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); or to denial of a
tax exemption, Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d
1460 (1958); or to discharge from public employment, Slochower v. Board of
Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (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, 71
S.Ct. 624, 647, 95 L.Ed. 817 (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, 81 S.Ct.
1743, 17481749, 6 L.Ed.2d 1230 (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, 80 S.Ct. 1502, 1513, 1514,
4 L.Ed.2d 1307 (1960).' 397 U.S., at 262263, 90 S.Ct., at 10171018.

49

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 Penal Foundations and Conditions, 38 N.Y.U.L.Rev. 702 (1963);
Comment, 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, 92 S.Ct. 22, 30 L.Ed.2d 126; 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.
50

'(T)here is no place in our system of law for reaching 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, 86 S.Ct. 1045, 1053, 16 L.Ed.2d 84 (1966).

51

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.

52

Parole is commonly revoked on mere suspicion that the parolee may have
committed a crime. Id., at 366367. Such great control over the parolee vests
in a parole officer a broad discretion in revoking parole and also in counseling
the paroleereferring 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.

53

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 which we
have taken cognizance. See Arciniega v. Freeman, 404 U.S. 4, 92 S.Ct. 22, 30
L.Ed.2d 126. 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.

54

It is only procedural due process, required by the Fourteenth Amendment, that

concerns us in the present cases. Procedural due process requires the following.

55

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 a hearing.9 The 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, 13221325 (CA4 1969); People ex rel. Combs v. LaVallee, 29
App.Div.2d 128, 286 N.Y.S.2d 600 (1968); Perry v. Williard, 247 Or. 145, 427
P.2d 1020 (1967). As the Supreme Court of Oregon said in Perry v. Williard, '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, 427 P.2d, at 1022. Cf. Mempa v. Rhay, 389 U.S. 128,
135, 88 S.Ct. 254, 257, 19 L.Ed.2d 336.
56

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, 77 S.Ct. 623, 1 L.Ed.2d 639, 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 agencyfor final action, as would cases which
involved voluntary admission of violations.

57

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, 91 S.Ct. 780, 786, 28
L.Ed.2d 113, 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

58

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

59

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

60

(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

61

(3) the parolee is entitled to the freedom granted a parolee until the results of
the hearing are known and the parole boardor other authorized state agency
acts.13

62

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

The hearing required by due process, as defined herein, must be accorded

before the effective decision. See Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct.
1187, 14 L.Ed.2d 62 (1965). Petitioners assert here that only one of the 540
revocations ordered most recently by the Iowa Parole Board was reversed after
hearing, Petitioners' Reply Brief 7, suggesting that the hearing may not
objectively evaluate the revocation decision.

See Warren, Probation in the Federal System of Criminal Justice, 19 Fed.Prob.

3 (Sept. 1955); Annual Report, Ohio Adult Parole Authority 1964/65, pp. 13
14; Note, Parole: A Critique of Its Legal Foundations and Conditions, 38
N.Y.U.L.Rev. 702, 705707 (1963).

Note, Observations on the Administration of Parole, 79 Yale L.J. 698, 699

700 (1970).

Ibid.

President's Commission on Law Enforcement and Administration of Justice,

Task Force Report: Corrections 62 (1967). The substantial revocation rate
indicates that parole administrators often deliberately err on the side of granting
parole in borderline cases.

See Morrissey v. Brewer, 443 F.2d 942, at 956954, n. 5 (CA8 1971) (Lay, J.,
dissenting); Rose v. Haskins, 388 F.2d 91, 104 (CA6 1968) (Celebrezze, J.,
dissenting).

Arluke, A Summary of Parole RulesThirteen Years Later, 15 Crime and

Delinquency 267, 271 (1969); Note, Parole Revocation in the Federal System,
56 Geo.L.J. 705, 733 (1968).

'It is not sophistic to attach greater importance to a person's justifiable reliance

in maintaining his conditional freedom so long as he abides by the conditions of
his release, than to his mere anticipation or hope of freedom.' United States ex
rel. Bey v. Connecticut Board of Parole, 443 F.2d 1079, 1086 (CA2 1971).

See, e.g., Murray v. Page, 429 F.2d 1359 (CA10 1970) (parole revoked after
eight years; 15 years remaining on original term).

10

Sklar, Law and Practice in Probation and Parole Revocation Hearings, 55

J.Crim.L.C. & P.S. 175, 194 (1964) (no decrease in Michigan, which grants
extensive rights); Rose v. Haskins, 388 F.2d 91, 102 n. 16 (CA6 1968)
(Celebrezze, J., dissenting) (cost of imprisonment so much greater than parole
system that procedural requirements will not change economic motivation).

11

See President's Commission on Law Enforcement and Administration of

Justice, Task Force Report: Corrections 83, 88 (1967).

12

See n. 15, infra. As one state court has written, 'Before such a determination or
finding can be made it appears that the principles of fundamental justice and
fairness would afford the parolee a reasonable opportunity to explain away the
accusation of a parole violation. (The parolee) . . . is entitled to a conditional
liberty and possessed of a right which can be forfeited only by reason of a
breach of the conditions of the grant.' Chase v. Page, 456 P.2d 590, 594
(Okl.Crim.App.1969).

13

Note, Observations on the Administration of Parole, 79 Yale L.J. 698, 704

706 (1970) (parole officers in Connecticut adopt role model of social worker
rather than an adjunct of police, and exhibit a lack of punitive orientation).

14

This is not an issue limited to bad motivation. 'Parole agents are human, and it
is possible that friction between the agent and parolee may have influenced the
agent's judgment.' 4 Attorney General's Survey on Release Procedures: Parole
246 (1939).

15

Very few States provide no hearing at all in parole revocations. Thirty States
provide in their statutes that a parolee shall receive some type of hearing. See
Ala.Code, Tit. 42, 12 (1959); Alaska Stat. 33.15.220 (1962);
Ariz.Rev.Stat.Ann. 31417 (1956); Ark.Stat.Ann. 432810 (Supp.1971);
Del.Code Ann., Tit. 11, 4352 (Supp.1970); Fla.Stat.Ann. 947.23(1)
(Supp.1972); Ga.Code Ann. 77519 (Supp.1971); Haw.Rev.Stat. 35366
(1968); Idaho Code 20229, 20229A (Supp.1971); Ill.Ann.Stat., c. 108,
204(e), 207 (Supp.1972); Ind.Ann.Stat. 131611 (Supp.1972), IC 1971,
111111; Kan.Stat.Ann. 223721 (1971); Ky.Rev.Stat.Ann
439.330(1)(e) (1962); La.Rev.Stat.Ann. 15:574.9 (Supp.1972);

Me.Rev.Stat.Ann., Tit. 34, 1675 (Supp.1970 1971); Md.Ann.Code, Art. 41,

117 (1971); Mich.Comp.Laws 791.240a, Mich.Stat.Ann. 28.2310(1)
(Supp.1972); Miss.Code Ann. 400413 (1956); Mo.Ann.Stat. 549.265
(Supp.1971); Mont.Rev.Codes Ann. 949838, 949835 (1969);
N.H.Rev.Stat.Ann. 607:46 (1955); N.M.Stat.Ann. 411728 (1972);
N.Y.Correction Law, McKinney's Consol.Laws, c. 43, 212, subd. 7
(Supp.1971); N.D.Cent.Code 125915 (Supp.1971); Pa.Stat.Ann., Tit. 61,
331.21a(b) (1964); Tenn.Code Ann. 403619 (1955); Vernon's
Ann.Tex.Code Crim.Proc., Art. 42.12, 22 (1966); Vt.Stat.Ann., Tit. 28,
1081(b) (1970); Wash.Rev.Code 9.95.120 through 9.95.126 (Supp.1971);
W.Va.Code Ann. 621219 (1966.) Decisions of state and federal courts
have required a number of other States to provide hearings. See Hutchison v.
Patterson, 267 F.Supp. 433 (Colo.1967) (approving parole board regulations);
United States ex rel. Bey v. Connecticut State Board of Parole, 443 F.2d 1079
(CA2 1971) (requiring counsel to be appointed for revocation hearings); State
v. Holmes, 109 N.J.Super. 180, 262 A.2d 725 (1970); Chase v. Page, 456 P.2d
590 (Okl.Crim.App.1969); Bearden v. South Carolina, 443 F.2d 1090 (CA4
1971); Baine v. Beckstead, 10 Utah 2d 4, 347 P.2d 554 (1959); Goolsby v.
Gagnon, 322 F.Supp. 460 (ED Wis. 1971). A number of States are affected by
no legal requirement to grant any kind of hearing.
16

The Model Penal Code 305.15(1) (Proposed Official Draft 1962) provides
that '(t)he institutional parole staff shall render reasonable aid to the parolee in
preparation for the hearing and he shall be permitted to advise with his own
legal counsel.'

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.'

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.'

'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, 311312 (1971). As to
conditions limiting constitutional rights see id., at 313324, 326339.

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 121126 (1969).

'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.

See President's Commission on Law Enforcement and Administration of

Justice, Task Force Report: Corrections 83, 84 (1967); 120 U.Pa.L.Rev. 282,
348358 (1971).

As Judge Skelly Wright said in Hyser v. Reed, 115 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, 95 Cal.Rptr. 761, 780,

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, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377:
'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.'