Petition for Writ of Certiorari — Dion Horton, et al., Petitioners v. Bruce R. Beemer, Administrative Judge, et al.

No. 25IN THE

Supreme Court of the United States

DION HORTON, et al.,

Petitioners,

v.

BRUCE R. BEEMER, ADMINISTRATIVE JUDGE, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ALEC G. KARAKATSANIS DANIEL S. VOLCHOK

LEONARD J. LAURENCEAU Counsel of Record

ANNEKE DUNBAR-GRONKE

KATHERINE HUBBARD

JEREMY W. BRINSTER

CIVIL RIGHTS CORPS

1601 Connecticut Ave. N.W. MEGAN O. GARDNER

WILMER CUTLER PICKERING

Suite 800

HALE AND DORR LLP

Washington, D.C. 20009

2100 Pennsylvania Ave. N.W.

(202) 894-6132

Counsel for all petitioners Washington, D.C. 20037

(202) 663-6000

daniel.volchok@wilmerhale.com

BRET GROTE

DOLLY PRABHU

Counsel for petitioner Dion

Horton

JACLYN KURIN

ABOLITIONIST LAW CENTER

P.O. Box 8654

Pittsburgh, PA 15221

(414) 654-9070

Counsel for all petitioners

QUESTION PRESENTED

Whether the Due Process Clause requires a judicial

finding that depriving a person of physical liberty pending a probation-revocation hearing is necessary to serve

a government interest, or whether that person may be

jailed (even for months or years) based only on the procedures enumerated in Morrissey v. Brewer, 408 U.S.

471 (1972), procedures designed to ensure the accuracy

of the ultimate probation-revocation decision.

(i)

PARTIES TO THE PROCEEDINGS

Petitioners (plaintiffs-appellants below) are Dion

Horton, Damon Jones, Craig Brownlee, Rahdnee OdenPritchett, Tate Stanford, and Elijah Bronaugh, individually and on behalf of a class of others similarly situated.

Respondents (defendants-appellees below) are Administrative Judge Bruce R. Beemer, in his official capacity; Director of Adult Probation and Parole Alan Pelton, in his official capacity; Court of Common Pleas

Judge Kelly Bigley; Probation Hearing Officers Charlene Christmas, Robert O’Brien, Stephen Esswein, and

Renawn Harris, in their official capacities; and Orlando

Harper, in his official capacity (the court of appeals

granted respondents’ motion to substitute Judge

Beemer and Mr. Pelton for their predecessors in office

Jill Rangos and Frank Scherer after it issued its decision).

An additional defendant-appellant below was Court

of Common Pleas Judge Anthony Mariani, in his official

capacity. The court of appeals dismissed the claims

against him as moot upon his retirement.

(ii)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...............................................i

PARTIES TO THE PROCEEDINGS ........................... ii

TABLE OF AUTHORITIES .......................................... v

INTRODUCTION .............................................................. 1

OPINIONS BELOW .......................................................... 5

JURISDICTION ................................................................. 5

CONSTITUTIONAL PROVISION INVOLVED ............ 5

STATEMENT ..................................................................... 5

A. Probation And Protections Against Its

Revocation .............................................................. 5

B. Petitioners’ Arrests And Their Detention Pending Final Revocation Hearings ........... 8

C. Proceedings Below............................................... 11

REASONS FOR GRANTING THE PETITION ......... 14

I.

THE DECISION BELOW IS WRONG ............................ 14

A. Jailing People On Probation Until Their

Revocation Hearing Without A Suitability-For-Release Determination Violates

Due Process .......................................................... 14

B. Morrissey Does Not Govern Here, Or

Foreclose A Due-Process Right To A

Suitability-For-Release Determination

For Detained Probationers ................................ 23

II. THE DECISION BELOW CONFLICTS WITH

OTHER COURTS’ CASES .............................................. 28

(iii)

iv

TABLE OF CONTENTS—Continued

Page

III. THE QUESTION PRESENTED IS IMPORTANT

AND RECURRING ........................................................ 30

CONCLUSION ................................................................. 33

v

TABLE OF AUTHORITIES

CASES

Page(s)

Addington v. Texas, 441 U.S. 418 (1979) ....................... 15

Barker v. Wingo, 407 U.S. 514 (1972) ............................. 31

Bearden v. Georgia, 461 U.S. 660 (1983) .................. 19, 26

Black v. Romano, 471 U.S. 606 (1985)............................ 15

Cleveland Board of Education v. Loudermill,

470 U.S. 532 (1985) ..................................................... 32

Cohens v. Virginia, 19 U.S. 264 (1821) ........................... 28

Faheem-El v. Klincar, 841 F.2d 712 (7th Cir.

1988) (en banc) .................................................. 4, 27-29

Foucha v. Louisiana, 504 U.S. 71 (1992) ..... 15, 17, 26, 30

Gagnon v. Scarpelli, 411 U.S. 778 (1973) ......... 6, 7, 15, 19

Gerstein v. Pugh, 420 U.S. 103 (1975) ....................... 25, 31

Glover v. United States, 531 U.S. 198 (2001) ................. 31

Greenholtz v. Inmates of Nebraska Penal &

Correctional Complex, 442 U.S. 1 (1979) ................ 20

Hewitt v. Helms, 459 U.S. 460 (1983).............................. 20

Illinois v. Gates, 462 U.S. 213 (1983) .............................. 17

Jones v. United States, 463 U.S. 354 (1983) ................... 15

Kansas v. Hendricks, 521 U.S. 346 (1997) ..................... 30

Kell v. United States Parole Commission, 26

F.3d 1016 (10th Cir. 1994) ................................... 29, 30

Kisaengs v. John Wiley & Sons, Inc., 568 U.S.

519 (2013) ..................................................................... 28

Maryland v. King, 569 U.S. 435 (2013) .......................... 25

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Mathews v. Eldridge, 424 U.S. 319 (1976)................ 20, 22

Mills v. Rogers, 457 U.S. 291 (1982) ............................... 15

Morrissey

v.

Brewer,

408

U.S.

471

(1972).....1, 2, 6-8, 12, 14, 15, 17, 18, 20-22, 24, 25, 27, 29, 31

National Pork Producers Council v. Ross, 598

U.S. 356 (2023) ............................................................... 27

O’Connor v. Donaldson, 422 U.S. 563 (1975) .......... 16, 17

Rosales-Mireles v. United States, 585 U.S. 129

(2018) ............................................................................... 31

Schall v. Martin, 467 U.S. 253 (1984) ....................... 16, 26

United States v. Knights, 534 U.S. 112 (2001) ................. 5

United States v. Llantada, 815 F.3d 679 (10th

Cir. 2016) ........................................................................ 6

United States v. Salerno, 481 U.S. 739

(1987) .................................................... 15-17, 19, 22, 26

United States v. Stine, 646 F.2d 839 (3d Cir.

1981) ............................................................................... 6

United States v. Swick, 137 F.4th 336 (5th Cir.

2025) ............................................................................... 7

Washington v. Harper, 494 U.S. 210 (1990) .....3, 15, 18, 20

Wilkinson v. Austin, 545 U.S. 209 (2005) ................ 20, 21

Zadvydas v. Davis, 533 U.S. 678 (2001) ............15-17, 19, 30

CONSTITUTIONAL PROVISION

U.S. Constitution, Amendment XIV ................................ 5

vii

TABLE OF AUTHORITIES—Continued

Page(s)

STATUTES

28 U.S.C. §1254 .................................................................... 5

1878 Massachusetts Acts, ch. 198 ...................................... 6

18 Pa. Cons. Stat. §106(b) ................................................. 17

OTHER AUTHORITIES

Bamonte, Thomas J. & Thomas M. Peters, The

Parole Revocation Process in Illinois, 24

Loyola Univ. Chi. L.J. 211 (1993) ............................. 29

Collateral Costs: Incarceration’s Effect on Economic Mobility, The Pew Charitable Trusts

(2010), https://www.pew.org/-/media/3975

EB366428437FADA60843AA02C2FC.ashx .......... 32

Correctional Populations in the United States,

U.S. Department of Justice, Bureau of Justice Statistics (Apr. 1995) ............................................ 6

Department of Health and Human Services, Incarceration & Reentry, https://aspe.hhs.gov/

topics/human-services/incarceration-reentry0 (visited Aug. 29, 2025) ............................................. 32

Doherty, Fiona, Obey All Laws and Be Good:

Probation and the Meaning of Recidivism,

104 Georgetown L.J. 291 (2016) ................................. 6

Heaton, Paul, et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711 (2017)............................... 32

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Maruschak, Laura M., et al., Medical Problems

of State and Federal Prisoners and Jail Inmates, 2011-12, Bureau of Justice Statistics

(rev. Oct. 4, 2016), https://bjs.ojp.gov/content/pub/pdf/mpsfpji1112.pdf.................................... 32

Olson, David E., Probation Revocation, Criminology and Criminal Justice (Feb. 25, 2019) ........... 33

Probation and Parole in the United States,

2023, U.S. Department of Justice, Bureau of

Justice Statistics (July 2025) ...................................... 6

Wiseman, Samuel R., Pretrial Detention and the

Right to Be Monitored, 123 Yale L.J. 1334

(2014) ............................................................................ 32

IN THE

Supreme Court of the United States

No. 25DION HORTON, et al.,

Petitioners,

v.

BRUCE R. BEEMER, ADMINISTRATIVE JUDGE, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

INTRODUCTION

A fundamental tenet of any free society is the government cannot jail people, i.e., deprive them of physical

liberty, without justification. This Court has reaffirmed

that principle many times, and in many different contexts. And it holds true for people on probation. Those

individuals, this Court has explained, possess an interest

in freedom from physical restraint that is “valuable and

… within the protection of the Fourteenth Amendment,” qualified only by the conditions of their supervision. Morrissey v. Brewer, 408 U.S. 471, 482 (1972). This

liberty interest thus remains intact unless and until the

government finds, at a probation-revocation hearing,

that a person has in fact violated probation conditions.

2

And so long as this interest remains intact, the government cannot keep a person accused of probation violations in jail for no reason. The Due Process Clause instead requires a judicial finding that the person’s detention pending a probation-revocation hearing is necessary

to serve a government interest.

Petitioners were denied this due-process right.

Each was arrested on new charges while on probation in

Allegheny County, Pennsylvania. Under this Court’s

precedents and the county’s procedures, each was entitled to a probation-revocation hearing at which a judge

would decide if the new charges—of which each petitioner was of course presumed innocent—constituted

probation violations and, if so, whether probation should

be revoked. But the county prejudged the outcomes of

those probation-revocation hearings, detaining each petitioner for months while they waited for the hearings to

take place, i.e., locked each person up for a prolonged period before determining that there was a proper basis to

do so. And it did so despite each petitioner being found

eligible for pretrial release on their new charges. When

their probation-revocation hearings finally arrived,

moreover, four out of six petitioners did not have their

probation revoked. And even when a probation violation

was found to have occurred, some petitioners were released back into the community—having lost months of

freedom languishing in jail without any finding that their

detention had been necessary to serve any government

interest. During those months, petitioners suffered the

“grievous” harm this Court has recognized detention imposes, Morrissey, 408 U.S. at 482. That harm included

the loss of employment and housing; missing the birth of

a child; and enduring squalid, diseased, and violent conditions.

3

Allegheny County’s practice of detaining people for

months without making any determination about

whether their detention is necessary to serve a government interest—any determination, that is, about a person’s suitability for release—violates the Due Process

Clause. But a divided panel of the Third Circuit disagreed here, relying on this Court’s decision in Morrissey

v. Brewer. Morrissey, however, was about probationers’

constitutional right not to be subject to arbitrary probation revocation, not the separate constitutional right at

issue here: not to be subjected to unjustified pre-revocation detention prior to a formal revocation.

In her partial dissent below, Judge Rendell explained the panel’s error. The panel’s holding that Morrissey controlled contravened this Court’s cases recognizing that when “the government detains an individual,

… due process requires a finding that such detention

serves a government interest.” App.23a. Morrissey did

not require that finding—because, again, Morrissey was

not addressing the issue of unjustified detention. Judge

Rendell, recognizing that probationers retain a protected constitutional interest that Morrissey did not address, thus concluded that “due process requires a suitability-for-release determination prior to pre-revocation

detention.” App.21a. She further explained that, separate from the question of “what substantive due process

may require,” a procedural due-process analysis is required to determine the procedures necessary to protect

petitioners’ substantive right to a suitability-for-release

determination. App.23a. As this Court has made clear,

after all, “deciding what procedural protections are necessary to protect [a] right” requires first “identifying the

contours of the substantive right” at issue. Washington

v. Harper, 494 U.S. 210, 220 (1990).

4

The Third Circuit’s rejection of that view, i.e., its

holding that Morrissey short-circuits further analysis of

the procedures required to protect probationers’ substantive rights, places that court in acknowledged conflict with the en banc Seventh Circuit. That court held

that Morrissey has no bearing on probationers’ substantive right to liberty before probation is revoked and thus

does not determine what procedures must be provided

in connection with detention pending a probation-revocation hearing. See App.9a (citing Faheem-El v. Klincar, 841 F.2d 712, 724 (7th Cir. 1988) (en banc)).

This conflict warrants review because the question

presented is both important and recurring. As to the latter, hundreds of people are in the Allegheny County Jail

alone, and hundreds of thousands nationwide every year,

for alleged probation violations. And in Allegheny

County, those people typically sit there for months before receiving a hearing to determine if their probation

conditions have been violated and, if so, whether that violation warrants reincarceration or not, without anyone

ever making a finding that their pre-hearing detention

serves any government interests. Indeed, several petitioners spent over seven months in jail awaiting that

hearing. Moreover, most people incarcerated in this context are on probation for minor offenses, and some end

up spending more time in jail due to the alleged probation violation than they could have been sentenced to for

their underlying offense.

As to the importance of the question presented, the

right to physical liberty that is at issue here is one of the

most fundamental of all rights. And denials of that right

inflict enormous harms—not only on probationers but

also on their families and society as a whole (which,

among other things, must bear the costs of incarceration). Preventing such widespread severe harm, and

5

ensuring uniform protection nationwide of the fundamental right to physical liberty, merits the Court’s review.

OPINIONS BELOW

The Third Circuit’s opinion (App.1a-24a) is published at 136 F.4th 470. The district court’s summaryjudgment opinion (App.25a-34a) is unpublished but

available at 2024 WL 756825. Its preliminary-injunction

opinion (App.37a-67a) is unpublished but available at

2023 WL 8865872.

JURISDICTION

The Third Circuit entered judgment on May 2, 2025.

App.2a. On July 1, Justice Alito extended the time to file

this petition through Saturday, August 30, 2025, making

the deadline Tuesday, September 2, 2025, under this

Court’s Rule 30.1. This Court has jurisdiction under 28

U.S.C. §1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fourteenth Amendment to the U.S. Constitution provides in relevant part that “[n]o State shall …

deprive any person of … liberty … without due process

of law.”

STATEMENT

A. Probation And Protections Against Its Revocation

1. Probation is a criminal sentence that allows an

offender to remain in the community under a set of

court-determined conditions. United States v. Knights,

534 U.S. 112, 119 (2001). Like parole, probation seeks to

“help individuals reintegrate into society as constructive

6

individuals as soon as they are able,” and “alleviate the

costs to society of keeping an individual in prison.” Morrissey, 408 U.S. at 477 (discussing parole); see also Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (explaining the

similarities between parole and probation). Probation

has a long history in the United States, dating to at least

the nineteenth century. See, e.g., 1878 Mass. Acts ch.

198. All states and the federal government now have

probation statutes. United States v. Stine, 646 F.2d 839,

841 n.2 (3d Cir. 1981).

In recent years, the number of individuals on probation has skyrocketed. In fact, probation is commonly

now the entirety of the sentence imposed for certain offenses. See Doherty, Obey All Laws and Be Good: Probation and the Meaning of Recidivism, 104 Georgetown

L.J. 291, 340 (2016). And nearly 80% of misdemeanor

convictions now result in probationary sentences. Id.

Consequently, more than 3 million people were on probation in 2023, a nearly three-fold increase from the 1.1

million on probation in 1980. Compare Probation and

Parole in the United States, 2023, at 2 tbl. 1, U.S. Department of Justice, Bureau of Justice Statistics (July

2025), with Correctional Populations in the United

States at 2, U.S. Department of Justice, Bureau of Justice Statistics (Apr. 1995).

An individual on probation is subject to “specified

conditions for the duration” of the sentence. Morrissey,

408 U.S. at 478. Common conditions include that the probationer commit no crimes; violate no civil laws; respond

“truthfully” to his probation officer; avoid alcohol, drugs,

firearms, and association with certain “persons engaged

in criminal activity [or] convicted of a felony”; support

his “dependents”; and attend school or hold a job. United

States v. Llantada, 815 F.3d 679, 682 (10th Cir. 2016).

Probation officers closely supervise people on probation

7

to ensure compliance with these conditions. United

States v. Swick, 137 F.4th 336, 344 (5th Cir. 2025), petition for cert. filed, No. 25-5376 (U.S.).

2. This Court has recognized that people on probation have a liberty interest, protected by the Due Process Clause, in retaining their physical liberty. The

Court in Morrissey—addressing the related context of

parole—stated that such a person is “entitled to retain

his liberty as long as he substantially abides by the conditions” of his community supervision. 408 U.S. at 479

(emphasis added). Morrissey recognized this liberty interest’s constitutional protection, holding that the Due

Process Clause both requires states to adhere to certain

procedures before revoking parole, id. at 484-485, and

prohibits the “termination” of parole “without some orderly process,” id. at 482. One year later, the Court held

in Gagnon v. Scarpelli that Morrissey’s due-process

holdings applied equally to people on probation. See 411

U.S. at 782.

Under Morrissey and Gagnon, a person who is arrested for an alleged probation violation is entitled to

two hearings before probation can be revoked. The first

is a preliminary hearing, to “determine whether there is

probable cause or reasonable ground to believe that the

[person] has committed acts that would constitute a violation of [probation] conditions.” Morrissey, 408 U.S. at

485. This hearing must be followed—“within a reasonable time”—by the second hearing, a probation-revocation hearing that determines whether the person “has in

fact acted in violation of one or more conditions of his”

probation. Id. at 480. If a violation is found, the hearing

officer must then determine whether “the [person]

should be recommitted to prison or should other steps be

taken to protect society and improve chances of rehabilitation,” id., taking into account whether “circumstances

8

in mitigation suggest that the violation does not warrant

revocation,” id. at 488. Morrissey explained that these

preliminary and probation-revocation hearings—which

are sometimes described in the probation context as

Gagnon I and Gagnon II hearings, respectively—are intended to ensure that people receive an “appropriate determination that the individual has in fact breached the

conditions of his” probation before probation may be revoked, id. at 483–484—not only because of the probationer’s interest in “continued liberty,” id. at 482, but

also because “[s]ociety has a stake in whatever may be

the chance of restoring him to normal and useful life

within the law,” id. at 484.

B. Petitioners’ Arrests And Their Detention

Pending Final Revocation Hearings

1. Allegheny County, Pennsylvania has a written

policy for determining whether people who are arrested

while on probation will be jailed during the probationrevocation process (in the policy’s words, will “be lodged

in the jail on a detainer”). App.84a. Hearing officers at

probationers’ preliminary (i.e., Gagnon I) hearings are

tasked with applying this policy. App.88a.

Despite determining people’s freedom, Gagnon I

hearings in Allegheny County are short, typically lasting

just a few minutes. C.A.J.A.143. Following those brief

hearings, people are detained nearly two-thirds of the

time (according to the county’s data) or fully four-fifths

of the time (according to petitioners’ data). C.A.J.A.143,

545. These detention rates hold regardless of the nature

of the alleged probation violation. C.A.J.A.545. They

also far exceed the percentage—under 50%—of people

who are reincarcerated after being found (at Gagnon II

hearings) to have actually violated probation. Id. And

typically, this detention lasts for months. App.95a.

9

Probationers accused of committing a new criminal offense must wait, on average, three months between the

resolution of their new case and the probation-revocation hearing in addition to the months or years it typically takes for the new case to resolve. Id.

2. Petitioner Dion Horton was arrested for marijuana, firearm possession, and aggravated assault while on

probation in 2022. C.A.J.A.159. After hearing the evidence on the new charges, a magistrate determined that

the government’s interests did not require pretrial detention and so ordered his release on unsecured bonds.

Id. But because Mr. Horton was a probationer, he was

jailed pending his Gagnon I hearing. C.A.J.A.16-18. At

that hearing, which lasted only a few minutes, the presiding officer, based on the county’s policies, ordered Mr.

Horton jailed pending his Gagnon II hearing,

C.A.J.A.159, without any express consideration of

whether any government interest required the detention. Mr. Horton was ultimately confined for over eight

months awaiting his revocation hearing. During that

time, he missed the birth of his daughter and lost his job.

App.99a.

Petitioner Damon Jones was likewise arrested in

2022, for alleged firearms offenses. App.80a. A magistrate hearing the evidence ordered him released on

$25,000 bail, which Mr. Jones paid to buy his freedom.

Id. But he was then re-arrested just two days later, on

the ground that the new charges violated his probation

conditions. Id. At his Gagnon I hearing, the presiding

officer made no express findings that any government

interest required Mr. Jones’s ongoing pre-revocation detention, but nonetheless declined to order his release.

C.A.J.A.166. When Mr. Jones brought this suit, nearly

eight months after his re-arrest, no revocation hearing

date had yet been set. App.80a. Mr. Jones lost

10

everything while sitting in jail: his housing, all of his possessions, his employment prospects, and even his dog.

C.A.J.A.167. He was forced to rely on family to send him

money while jailed, causing them great financial and

emotional strain. Id.

Petitioner Craig Brownlee was charged with theft

and arrested in 2021. C.A.J.A.171. He was released

from custody on a $10,000 unsecured bond, but re-arrested in 2022 because the charged theft (from 2021) allegedly violated the conditions of his probation. Id. He

then spent seven months in jail awaiting a revocation

hearing. Id. When the hearing finally came, a judge—

considering for the first time whether he needed to be

reincarcerated, seven months after the reincarceration

began—determined that he should be released on time

served for the probation violation. Id. Mr. Brownlee lost

time with his four-year-old son and his elderly mother

(who relies on him to help with shopping for food).

C.A.J.A.172. He also caught COVID twice while jailed.

App.99a.

Petitioner Rahdnee Oden-Pritchett was arrested for

burglary, criminal trespassing, simple assault, and violation of a protective order while on probation.

C.A.J.A.21. A magistrate ordered him released before

trial and set cash bail on the new charges, but Mr. OdenPritchett could not buy his freedom because a probation

detainer was also lodged against him. Id. At his preliminary hearing, which lasted under five minutes, the hearing officer did not tell him why he was being detained.

Id. After nearly seven months of pre-hearing detention,

C.A.J.A.436-437, a judge determined that Mr. OdenPritchett should not be reincarcerated and he was released after a sentence of time served for the probation

violation, C.A.J.A.21; see also App.14a. While in jail, Mr.

Oden-Pritchett lost an opportunity for housing, was

11

forced to abandon his college plans, missed important

moments with his children, and suffered medical setbacks. C.A.J.A.23.

Petitioner Tate Stanford was arrested for possession

of a firearm and marijuana while on probation. App.44a.

He had a preliminary hearing approximately two weeks

later, where he was told that he would be detained because his underlying case was supervised by a particular

judge. App.44a. While detained, Mr. Stanford lost stable housing as well as access to government assistance,

and experienced worsening mental health and strained

family relationships. App.47a.

Petitioner Elijah Bronaugh was arrested for burglary and unlicensed carrying of a firearm while on probation. C.A.J.A.204. He was given bond that he could

afford, but like Stanford, was held in jail awaiting his

preliminary hearing. C.A.J.A.67. While detained, Mr.

Bronaugh missed out on time with his two-year-old

daughter. C.A.J.A.204.

C. Proceedings Below

1. In 2022, petitioners brought this case against respondents—state and local officials responsible for administering Allegheny County’s probation system—

challenging the procedures by which the county detained petitioners and ultimately revoked their probation. App.78a, 99a-100a. As relevant here, petitioners

alleged that the county’s practice of detaining individuals arrested for probation violations for prolonged periods before giving them revocation hearings denied them

substantive due process because it kept them jailed

without any determination that their detention was necessary to serve a government interest. App.104a-105a.

Petitioners also challenged the preliminary (i.e., Gagnon

I) hearings in Allegheny County as violating procedural

12

due process because they denied petitioners an opportunity to present evidence and confront witnesses before

an independent decisionmaker. App.103a-104a.

Petitioners sought a preliminary injunction,

C.A.J.A.93, which the district court denied on the

ground that petitioners were not “substantially” likely

to succeed on their claims. App.38a. Specifically, the

court held that “no release-suitability determination is

constitutionally necessary” under Morrissey and Gagnon to justify detention of probationers awaiting their

probation-revocation hearings, C.A.J.A.12, that “no federal or state constitutional right … mandates” such a determination, App.62a. The court then sua sponte converted its decision on the preliminary-injunction motion

to a summary judgment in respondents’ favor. App.25a.

The court reaffirmed its prior conclusion that petitioners

had no due-process “right to a release-suitability determination” ahead of prolonged physical confinement

while waiting for their revocation hearings, App.28a,

and separately held that petitioners had not raised a

genuine dispute of material fact as to the constitutionality of the county’s preliminary-hearing procedures,

App.30a-33a.

2. A divided panel of the Third Circuit affirmed in

part and reversed in part. App.2a. The panel affirmed

the district court’s holding that a probable-cause determination is sufficient under Morrissey and Gagnon to

detain probationers—even for many months—between

a preliminary hearing and a probation-revocation hearing. App.5a-7a. The panel relied in particular on Morrissey’s statement that a probable-cause “‘determination would be sufficient to warrant the [probationer’s]

continued detention … pending the final decision’” to revoke his probation. App.5a-6a (quoting Morrissey, 408

U.S. at 487). Indeed, the panel concluded, “[n]o further

13

finding is needed” to effectuate detention because Morrissey “set th[e] bar low.” App.8a.

In so ruling, the panel explicitly broke with the en

banc Seventh Circuit’s holding in Faheem-El v. Klincar

that Morrissey did not reach the question of what process is due to a probationer detained pending the probation-revocation hearing; the panel deemed Morrissey a

“comprehensive opinion” in which “the Court … stated

all the relevant legal rules in the area, even if it could

have rested on just one of them.” App.8a. In the panel’s

view, Morrissey “did not overlook whether to add a necessity requirement; it deliberately chose not to.”

App.9a. The panel also rejected the argument that this

Court’s cases require a finding that detention is necessary to serve a government interest, for example because a probationer “poses a risk of flight or a danger to

the community.” App.9a-10a. While the panel acknowledged that “[s]uch a showing is indeed required” for

“people presumed innocent,” it asserted that “[p]robationers are different” in that because they have “been

adjudged guilty and are still serving their criminal sentences,” “the bar for detaining them is lower.” App.9a10a. The panel remanded petitioners’ separate claim regarding the sufficiency of the county’s preliminary-hearing procedures, ruling that there were material factual

disputes as to whether those procedures afforded petitioners due process. App.12a.

Judge Rendell dissented in part, agreeing with the

panel’s ruling that there were “material factual disputes

over whether the county’s practices comply with due

process” under Morrissey and Gagnon, App.12a-13a, but

disagreeing that Morrissey set forth the only procedures

necessary to guard against probationers’ unjustified detention, App.12a-13a. As to the latter, she argued that

given this Court’s recognition that “probationers

14

possess a liberty interest that ‘includes many of the core

values of unqualified liberty,’” App.21a (quoting Morrissey, 408 U.S. at 482), the Due Process Clause requires

some kind of suitability-for-release determination before

a probationer can be detained for prolonged periods

pending a probation-revocation hearing, App.21a. As

she explained, the passage from Morrissey on which the

panel relied did not control here because it “focuse[d] on

the ultimate revocation determination” rather than the

“interim detention” of probationers prior to their Gagnon II hearings. App.12a. At minimum, she stated, the

court should have remanded so that the district court

could conduct a procedural due-process analysis based

on “further factual finding on the fiscal and administrative burdens stemming from requiring hearing officers

to make suitability-for-release determinations” at the

preliminary hearings. App.23a.

REASONS FOR GRANTING THE PETITION

I.

THE DECISION BELOW IS WRONG

A. Jailing People On Probation Until Their Revocation Hearing Without A Suitability-For-Release Determination Violates Due Process

As this Court has explained, although people on probation are subject to some “restrictions not applicable to

other citizens,” they nonetheless enjoy “many of the core

values of unqualified liberty.” Morrissey, 408 U.S. at

482. Of particular relevance here, a person on probation

enjoys physical liberty and thus “can be gainfully employed and is free to be with family and friends and to

form the other enduring attachments of normal life.” Id.

This liberty, the Court has made clear, remains “valuable and … within the protection of the Fourteenth

Amendment” for people on probation. Id. Termination

15

of probation, therefore, is “a loss of liberty,” Gagnon, 411

U.S. at 782, one that “inflicts a ‘grievous loss’ on the [probationer] and often on others,” Morrissey, 408 U.S. at

482. In light of this “grievous loss,” the Court has further held, “[t]he Due Process Clause … imposes procedural and substantive limits on the revocation of the

conditional liberty created by probation.” Black v. Romano, 471 U.S. 606, 610-611 (1985) (emphasis added).

Under this Court’s precedent, “the substantive issue is

what factual circumstances must exist before” the government deprives a person of this conditional liberty,

while “the procedural issue is whether the … mechanisms used to determine the facts in a particular case are

sufficient.” Washington, 494 U.S. at 220.

1.a. Substantive due process defines a person’s

“‘protected constitutional interest’” and “‘identif[ies] …

the conditions under which competing state interests

might outweigh it.’” Washington, 494 U.S. at 220 (quoting Mills v. Rogers, 457 U.S. 291, 299 (1982)). As relevant here, it protects individuals’ “fundamental” right to

be free from any confinement that serves no government

interest. United States v. Salerno, 481 U.S. 739, 750

(1987). Indeed, this “[f]reedom from bodily restraint has

always been at the core of the liberty protected by the

Due Process Clause.” Foucha v. Louisiana, 504 U.S. 71,

80 (1992); accord Zadvydas v. Davis, 533 U.S. 678, 690

(2001). Accordingly, “‘commitment for any purpose constitutes a significant deprivation of liberty that requires

due process protection.’” Jones v. United States, 463

U.S. 354, 361 (1983) (quoting Addington v. Texas, 441

U.S. 418, 425 (1979)).

Consistent with these cases, this Court has made

clear that the government must offer some justification

anytime it keeps a person in jail. As the Court put it, an

“individual’s strong interest in liberty” may be

16

“subordinated” only when “the government’s interest is

sufficiently weighty,” Salerno, 481 U.S. at 750-751,

meaning the government has “a constitutionally adequate purpose for the confinement,” O’Connor v. Donaldson, 422 U.S. 563, 574 (1975). An individualized determination ensures that the necessary “factual circumstances … exist” to justify detention, Washington, 494

U.S. at 220.

For example, in United States v. Salerno, the “government’s interest in preventing crime by arrestees”

provided a “legitimate and compelling” justification for

pretrial detention in criminal cases. 481 U.S. at 749. The

statute then required the government to “prove[] by

clear and convincing evidence”—at a proceeding with robust procedural protections—“that an arrestee presents

an identified and articulable threat to an individual or

the community,” id. at 751. Similarly, in Schall v. Martin, 467 U.S. 253 (1984), the Court upheld a scheme for

preventive detention of juvenile arrestees “based on a

finding of a ‘serious risk’ that [the] arrested juvenile may

commit a crime before his return date,” id. at 263. Under

those circumstances, the Court explained, detention

“serve[d] the legitimate state objective … of protecting

both the juvenile and society from the hazards of pretrial

crime.” Id. at 274.

In contrast, this Court struck down the “indefinite

civil detention” scheme challenged in Zadvydas v. Davis

because the government lacked a “sufficiently strong

special justification.” 533 U.S. at 690. The Court similarly invalidated Louisiana’s scheme of detaining “insanity acquittees who are no longer mentally ill” because

the scheme was “not carefully limited” and those detained were “not … entitled to an adversary hearing at

which the State [had to] prove by clear and convincing

17

evidence that [they were] demonstrably dangerous to

the community.” Foucha, 504 U.S. at 81-82.

b. Allegheny County’s practice of jailing people on

probation for months without a suitability-for-release

determination violates the substantive-due-process requirement to ensure that detention serves “a constitutionally adequate purpose,” O’Connor, 422 U.S. at 574.

Upon their arrest and a determination that probable

cause exists to believe they violated their probation

terms—a determination that “requires only a probability or substantial chance of criminal activity, not an actual showing of such activity,” Illinois v. Gates, 462 U.S.

213, 243 n.13 (1983)—people on probation in the county

may be detained for many months (as petitioners were).

This is true even upon a mere finding of probable cause

that a technical violation, such as missing a meeting with

a probation officer, occurred. The county therefore inflicts a protracted and “grievous loss” of physical liberty

on these people, Morrissey, 408 U.S. at 482, before determining that they in fact failed to abide by the conditions of that liberty. Given the undeniably “fundamental” nature of physical liberty, Salerno, 481 U.S. at 750,

that is impermissible. To satisfy substantive due process, the county instead must conduct a suitability-forrelease determination to ensure that continued detention is necessary to serve a “legitimate and compelling”

government interest, id. at 752; Zadvydas, 533 U.S. at

690-691.1

1

The unnecessary detention rampant in the county is particularly egregious given that most probation sentences there (over

80% in 2022) are for misdemeanor or summary offenses,

C.A.J.A.276—for which only short periods of incarceration are authorized, see 18 Pa. Cons. Stat. §106(b). But because the county incarcerates individuals for months or years while they await

18

Morrissey did not create an exception to the constitutional rule against unjustified detention for people accused of probation or parole violations. To the contrary,

Morrissey made clear that although a probationer’s

right to remain free from confinement is “conditional …

on observance of special [probation] conditions,” 408

U.S. at 481, that right remains intact short of “an appropriate determination that the individual has, in fact,

breached the conditions of [probation],” id. at 483-484.

Morrissey certainly did not involve individuals detained

for many months pending a probation-revocation hearing, and thus did not consider what “factual circumstances must exist” to justify such prolonged detention,

Washington, 494 U.S. at 220. Accordingly, Morrissey

did not decide that a probable-cause determination ensures that prolonged detention pending the revocation

hearing serves a government interest. Morrissey instead made clear that, in the constitutionally sufficient

probation-revocation process it outlined, the factual

finding required to justify the deprivation of physical liberty (an “appropriate determination that the individual

has in fact breached the conditions”) does not occur until

the ultimate probation-revocation hearing. 408 U.S. at

483-484. The government’s interest in “being able to return the individual to imprisonment” does not exist before that determination is made—it exists, in Morrissey’s words, only “if in fact he has failed to abide by the

conditions” of probation. Id. at 483 (emphasis added).

People awaiting trial and people awaiting a probation-revocation hearing thus retain a similar right to

freedom from physical restraint—one that is not an “‘act

resolution of an alleged violation, many probationers end up spending more time in jail due to the alleged violation than they legally

could have been detained for their underlying offense.

19

of grace’ that can be revoked absent due process,”

App.13a (quoting Gagnon, 411 U.S. at 782 n.4). It cannot

be retracted without a legitimate government purpose.

Confirming this is the fact that neither Salerno nor

Zadvydas limited the requirement to justify detention

to situations where the detainee has an unconditional

liberty interest. Both cases instead asked whether the

detention at issue served a legitimate “regulatory”

goal—preventing danger to the community or missed

court appearances—rather than an impermissibly punitive purpose. Salerno, 481 U.S. at 746-747; Zadvydas,

533 U.S. at 690. A suitability-for-release determination

ensures that detention of a person on probation who has

not yet been found in violation of his probation terms

similarly serves “a legitimate regulatory goal” rather

than a punitive one, Salerno, 481 U.S. at 747.

Indeed, this Court has squarely held that a person on

probation cannot be imprisoned for inability to pay a fine

unless doing so is necessary to further a legitimate government interest. In the Court’s words, “[o]nly if alternative measures are not adequate to meet the State’s interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide

efforts to pay.” Bearden v. Georgia, 461 U.S. 660, 672

(1983) (emphasis added). This makes clear that people

on parole and probation have essentially the same right

to what everyone else enjoys: a liberty interest in not

being jailed without a good reason that their detention

serves some government purpose.

2. Procedural due process requires that the government employ procedures sufficient to ensure that the

relevant substantive right is not erroneously violated,

i.e., that the factual circumstances under which the government’s interests outweigh a person’s liberty interest

20

are present “in a particular case.” Washington, 494 U.S.

at 220. What procedures suffice varies from case to case,

as “due process is flexible and calls for such procedural

protections as the particular situation demands.” Morrissey, 408 U.S. at 481. The goal of the procedural-dueprocess inquiry is “to minimize the risk of erroneous decisions.” Greenholtz v. Inmates of Nebraska Penal &

Correctional Complex, 442 U.S. 1, 13 (1979). In conducting this analysis, “[t]he factors that guide [the Court] are

well established.” Washington, 494 U.S. at 229. In particular, courts “consider the private interests at stake in

a governmental decision, the governmental interests involved, and the value of procedural requirements.” Id.

(citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).

This Court has applied these principles in cases involving deprivations of physical liberty. For example, in

Wilkinson v. Austin, 545 U.S. 209 (2005), the Court held

that people in Ohio’s prison system had a protected liberty interest in avoiding assignment to its supermax

penitentiary, id. at 224. Ohio’s assignment procedures,

the Court held, satisfied due process in part because

they provided a “fair opportunity” to rebut the state’s

determination that the person met the criteria for supermax placement. Id. at 225-226. And in Hewitt v. Helms,

459 U.S. 460 (1983), the Court similarly concluded that

Pennsylvania’s procedures were constitutionally adequate to place a person in administrative segregation

pending a misconduct investigation, observing that they

provided the person an opportunity to argue that he did

not “represent[] a security threat,” id. at 476.2

2

Although the Court later “abrogated Greenholtz’s and

Hewitt’s methodology for establishing the liberty interest, these

21

Allegheny County’s procedures, by contrast, fail to

ensure that erroneous deprivations of the substantive

right at issue here do not occur. The procedures do not,

that is, ensure that people on probation are kept in jail

only if their detention is necessary to serve a government interest. Lasting no more than a few minutes on

average, see supra p.8, the county’s preliminary hearings do not require a hearing officer to find that detention pending the probation-revocation hearing is required to protect public safety, prevent flight, facilitate

the probationer’s rehabilitation, or further any other legitimate government interest. See App.39a-44a. The officer may make recommendations as to whether a person arrested while on probation should be released pending the probation-revocation hearing, based on factors

such as “the nature of the charges.” App.42a. But the

preliminary-hearing procedures do not ensure that the

person accused of a probation violation can introduce evidence that his detention would serve no government interest or require a finding as to whether the person is

suitable for release. The county’s procedures are therefore insufficient to establish that the person needs to be

detained while he awaits the ultimate decision as to

whether he “should … be recommitted to prison” or if

“other steps [should] be taken to protect society and improve chances of rehabilitation,” Morrissey, 408 U.S. at

479-480.

Applying the familiar Mathews balancing test confirms that the county’s procedures are inadequate.

The private interest of people detained awaiting a

probation-revocation hearing warrants significant

cases remain instructive for their discussion of the appropriate level

of procedural safeguards.” Wilkinson, 545 U.S. at 229.

22

weight because, as discussed, such individuals retain a

liberty interest in freedom from unjustified restraint—

one that is “fundamental,” Salerno, 481 U.S. at 750, and

“includes many of the core values of unqualified liberty,”

such that its deprivation inflicts a “grievous loss,” Morrissey, 408 U.S. at 482; see supra pp.9-11.

By contrast, the public interest in avoiding the “administrative burden and other societal costs” of additional procedures, Mathews, 424 U.S. at 347, carries little

weight here. The administrative burden of adding procedures that ensure the accuracy of a suitability-for-release determination to the preliminary hearing is minimal. No separate hearing is needed—avoiding the costs

that weighed against additional procedures in Mathews,

id.—and hearing officers are already permitted to make

recommendations as to detention pending the probationrevocation hearing, App.42a. And because society pays

the price “of keeping an individual in prison,” Morrissey,

408 U.S. at 477, incorporating a suitability-for-release

finding into the preliminary hearing will ensure that “societal costs” are borne only when detention is justified

by government interests.

The “risk of an erroneous deprivation” of liberty

“through the procedures used” by the county, and “the

probable value … of additional or substitute procedural

safeguards,” Mathews, 424 U.S. at 335, militates in petitioners’ favor as well. The county’s existing procedures

do not require any finding that detention is justified.

The result is that people are regularly detained pending

their probation-revocation hearings under circumstances indicating that prolonged detention serves no

government interest: Even people accused of violations

like “unpaid restitution,” C.A.J.A.152, whose detention

is highly unlikely to be necessary to serve a government

interest such as protecting public safety or reducing

23

missed court appearances, are detained 70% of the time,

C.A.J.A.146. The county’s own data stated that only

39% of people detained between hearings “actually had

their probation revoked” at the revocation hearing,

while 50% were ordered released and 11% never had a

revocation hearing because the alleged violation resolved in their favor prior to the hearing. C.A.J.A.545.

That suggests that over 60% of people detained for probation violations pre-revocation (50% plus 11%) were either detained longer than necessary or never should

have been detained in the first place. A suitability-forrelease finding would be of substantial value in preventing such erroneous deprivation of physical liberty because it would ensure an opportunity to show that no justification for detention exists.

B. Morrissey Does Not Govern Here, Or Foreclose

A Due-Process Right To A Suitability-For-Release Determination For Detained Probationers

The Third Circuit held here that, under Morrissey, a

probationer’s “conditional liberty” does not demand protection against unjustified detention through a suitability-for-release determination. In its view, Morrissey establishes that the Constitution never requires states to

provide people jailed for alleged probation violations

with such a determination—or any procedural protections beyond a probable-cause determination that a violation occurred. App.7a-8a. That is because, according

to the panel, Morrissey “stated all the relevant legal

rules in the area,” id., and thus “deliberately chose not

to” protect probationers charged with probation violations from unnecessary—and very often prolonged—

confinement, App.9a. The Third Circuit could therefore

conclude that people accused of violating probation conditions could be detained pending their probation-

24

revocation hearing based solely on a probable-cause

finding, with no individualized determination that they

pose a danger to the community, are at risk of missed

court appearances, would be better rehabilitated if detained, or that detention was otherwise necessary to

serve a government interest.

App.10a.

This

overreading of Morrissey contravenes this Court’s

cases, which guarantee due process against unjustified

detention and thus require procedural safeguards that

ensure any detention pending a probation-revocation

hearing serves a government interest.

1. Contrary to the Third Circuit’s view, Morrissey

did not “la[y] out all the constitutional rules in the area,”

App.9a, and thereby foreclose the possibility that probationers facing revocation might have substantive rights

that warrant due-process protection. Morrissey set

forth what the Constitution requires to ensure that probation revocation does not deny a probationer’s “conditional liberty” to serve his criminal sentence outside of

jail. 408 U.S. at 480-481. It left unanswered the question

of what process is due to protect a probationer’s separate (and fundamental) right to remain free of unjustified detention pending a revocation hearing. Only by

eliding the distinction between these two rights could

the Third Circuit hold that no procedures beyond those

described in Morrissey were necessary to protect the

latter interest.

Morrissey’s discussion of probable cause reflects that

the Court’s intent was to set forth procedures sufficient

to protect a probationer’s right to a non-arbitrary probation-revocation decision, not his or her right to be free

from unjustified pre-revocation detention. Morrissey

explained that due process guarantees probationers “an

appropriate determination that the individual has in fact

breached the conditions of [probation]” before probation

25

is revoked. 408 U.S. at 483-484. And to ensure the accuracy of that determination, Morrissey required that the

government make a finding, at the preliminary hearing

held shortly after the probationer’s arrest, of “probable

cause or reasonable ground to believe that the arrested

[probationer] has committed acts that would constitute

a violation of [probation] conditions.” Id. at 485.

Probable cause that a probation violation was committed does not, however, shed light on the government’s interest in detaining an individual for months

awaiting the probation-revocation hearing. As a “necessary accommodation between the individual’s right to

liberty and the State’s duty to control crime,” probable

cause describes the “standard for arrest” that “derive[s]

from the Fourth Amendment and its common-law antecedents.” Gerstein v. Pugh, 420 U.S. 103, 111-112 (1975).

A probable-cause finding thus permits detention only for

the time necessary “to take the administrative steps incident to arrest.” Maryland v. King, 569 U.S. 435, 449

(2013). As the partial dissent below observed, therefore,

“probable cause alone is not enough to justify prolonged

deprivation of an individual’s liberty interest.” App.21a.

Instead, “[i]n every other scenario in which the government detains an individual” for prolonged periods,

“courts have concluded that due process requires a finding that such detention serves a governmental interest.”

App.23a.

This Court’s precedents confirm that probable cause

alone does not establish a government interest in prolonged detention. In Salerno, for example, which was

decided after Gerstein, the Court upheld the federal pretrial-detention scheme that applied “after an adversary

hearing,” noting that the government not only had to

“demonstrate probable cause to believe that the charged

crime ha[d] been committed by the arrestee,” but also

26

had to prove by “clear and convincing evidence that [the]

arrestee present[ed] an identified and articulable threat

to an individual or the community.” 481 U.S. at 750-751.

The Court approved of the scheme (in part) because it

was not “a scattershot attempt to incapacitate those who

[were] merely suspected” of committing a crime, as

shown by the fact that “probable cause” alone was “not

enough” to justify detention under the statute. Id. at

750. The detention scheme in Schall was similarly

deemed sufficient because detention there was preceded

by both a probable-cause determination (at a “formal,

adversarial probable-cause hearing”) and a determination of “whether continued detention is necessary” based

on a “finding that there is a ‘serious risk’ that the juvenile, if released, would commit a crime prior to his next

court appearance.” 467 U.S. at 277-278. In contrast, the

civil-detention scheme in Foucha v. Louisiana was

struck down because the state “need[ed] [to] prove nothing to justify continued detention” as “the statute

place[d] the burden on the detainee to prove that he

[was] not dangerous.” 504 U.S. at 81-82. And in Bearden

v. Georgia, the Court held that detention of any duration

can be imposed for inability to pay a fine, even on someone already convicted of a crime, “[o]nly if the … court

determines that alternatives to imprisonment are not

adequate in a particular situation to meet the State’s interest in punishment and deterrence.” 461 U.S. at 672

(emphasis added).

2. Equally unfounded is the Third Circuit’s claim

that Morrissey “deliberately chose not to” require a suitability-for-release determination for people awaiting a

probation-revocation hearing. App.9a. This Court

granted review in Morrissey only “to determine

whether the Due Process Clause … requires a state to

afford an individual some opportunity to be heard prior

27

to revoking his parole.” 408 U.S. at 472 (emphasis

added). To answer this question, the Court reasoned

that a parolee—and, following Gagnon, a probationer—

retains a substantive liberty interest in serving his criminal sentence out of jail so long as he has not violated his

conditions. Id. at 481-482. The Court then described the

process due prior to infringing this liberty interest by

revoking probation. Id. at 484. But “the issue of detention pending the final revocation hearing was not at issue in Morrissey.” App.19a (emphasis added). In fact,

the petitioners in Morrissey expressly conceded that

“whether [a parolee] should be imprisoned pending a determination of the fact of parole violation” implicated a

distinct substantive “interest,” one not “important to the

case.” App.18a & n.6 (citing the briefing and oral-argument transcript in Morrissey). The Third Circuit thus

admitted needing to read Morrissey to have gone “well

beyond” the question presented, App.9a, and therefore

well beyond the “particular situation” at issue, Morrissey, 408 U.S. at 481.

The single sentence from Morrissey that the Third

Circuit cited for this reading (“a [probable-cause] determination would be sufficient to warrant the [probationer’s] continued detention … pending the final decision,” 408 U.S. at 487) did not address—let alone conclusively resolve—“what process, if any, is required to protect a [probationer’s] liberty interest during the time between the preliminary revocation hearing and the final

revocation hearing,” Faheem-El, 841 F.2d at 724. As

this Court has cautioned, because its “opinions dispose

of discrete cases and controversies and … must be read

with a careful eye to context,” “the language of an opinion is not always to be parsed as though [it] were dealing

with the language of a statute.” National Pork Producers Council v. Ross, 598 U.S. 356, 373-374 (2023)

28

(quotation marks omitted). Morrissey’s description of

the process due before probation is revoked has the force

of precedent because “[t]he question actually before the

Court is investigated with care, and considered in its full

extent.” Cohens v. Virginia, 19 U.S. 264, 399-400 (1821).

But Morrissey’s language about detention “go[es] beyond the case” and therefore “ought not to control the

judgment in a subsequent suit when the very point is

presented for decision.” Id. at 399. Or as this Court put

the point more recently, dicta should not control future

cases “should more complete argument demonstrate

that the dicta is not correct.” Kisaengs v. John Wiley &

Sons, Inc., 568 U.S. 519, 548 (2013).

II. THE DECISION BELOW CONFLICTS WITH OTHER

COURTS’ CASES

The Third Circuit’s holding that Morrissey forecloses a due-process right to a suitability-for-release determination prior to a probation-revocation hearing conflicts with decisions of other courts, including the en

banc Seventh Circuit. As those courts recognize, Morrissey sets forth the minimum due-process protections

that a state must afford before it revokes probation, but

does not resolve what process is due when the state commits a further deprivation of a probationer’s protected

liberty, such as keeping the probationer in jail for a prolonged period as he awaits his revocation hearing.

For example, in Faheem-El, the en banc Seventh

Circuit explained that Morrissey did not resolve “what

process, if any, is required” to protect the liberty interest that parolees retain “during the time between the

preliminary revocation hearing and the final revocation

hearing.” 841 F.2d at 724. The Seventh Circuit determined that this question was not answered by Morrissey’s statement that the probable-cause determination

29

at a parolee’s preliminary hearing “‘would be sufficient

to warrant [his] continued detention’” pending the probation-revocation hearing. Id. at 725 (quoting Morrissey, 408 U.S. at 487). That language, the court explicated, was not “a dispositive statement of what process

is required” to protect a person’s liberty interest before

their probation-revocation hearing because this “specific

issue was not before the Court in Morrissey.” Id. The

Seventh Circuit accordingly held that courts “must employ the familiar formula set forth in Mathews” to determine “if the procedures provided” to parolees detained

pending their probation-revocation hearing “are sufficient to satisfy due process.” Id. at 725. The Seventh

Circuit thus remanded the parolees’ claims for the district court to apply Mathews. Id. at 727-728. On remand,

the district court entered a consent decree that guaranteed parolees a suitability-for-release hearing. Bamonte

& Peters, The Parole Revocation Process in Illinois, 24

Loyola Univ. Chi. L.J. 211, 227 (1993); see also id. at 251.

The decision below explicitly rejected Faheem-El’s

holding, insisting that Morrissey precludes an analysis

of whether a suitability-for-release determination is required because Morrissey is “comprehensive” and in fact

“went well beyond” the question presented to this

Court. App.8a-9a.

Like the en banc Seventh Circuit, the Tenth Circuit

has held that parolees and probationers facing circumstances that were not actually at issue in Morrissey may

be entitled to additional procedures beyond those Morrissey enumerated. In Kell v. U.S. Parole Commission,

26 F.3d 1016 (10th Cir. 1994) (subsequent history omitted), the court observed that under Morrissey, “due process requires ‘disclosure to the parolee of evidence

against him,’” id. at 1022. But “[t]o determine specifically whether due process requires the Commission to

30

notify a parolee in advance of a revocation hearing of the

evidence it may deem an aggravating circumstance” justifying a departure from the parole guidelines, the Tenth

Circuit had to look beyond Morrissey and “apply the

three-part inquiry from Mathews.” Id.

In short, the decision below creates an acknowledged circuit conflict over whether Morrissey forecloses

recognition of a due-process right that would require the

government to provide additional procedures at a probationer’s preliminary hearing.

III. THE QUESTION PRESENTED IS IMPORTANT AND RECURRING

This Court’s resolution of the question presented is

critical because the right at stake—to be free of unjustified physical restraint—is among the most fundamental

liberties the Constitution protects, Zadvydas, 533 U.S.

at 690. And a surge in the number of people on probation

over the past several decades means that state and local

officials are almost constantly deciding whether individuals accused of violating probation can be held in jail, for

months, based solely on a probable-cause determination.

The division among lower courts results in unequal justice, denying (for example) a probationer in Harrisburg,

Pennsylvania his right to live in free society while safeguarding the same liberty in South Bend, Indiana.

A. Whether people on probation can be detained

for months or years based only on a probable-cause finding that they violated probation is of paramount importance. Physical liberty is among the oldest and most

precious of rights, lying at the “‘core of the liberty protected by the Due Process Clause.’” Kansas v. Hendricks, 521 U.S. 346, 356 (1997) (quoting Foucha, 504

U.S. at 80). And as this Court has recognized, the deprivation of that liberty through “[a]ny amount of actual jail

31

time” imposes “‘exceptionally severe consequences for

the incarcerated individual.’” Rosales-Mireles v. United

States, 585 U.S. 129, 139 (2018) (quoting Glover v. United

States, 531 U.S. 198, 203 (2001)). For example, detention

often means “loss of a job” and “disrupt[ion to] family

life” for detainees. Barker v. Wingo, 407 U.S. 514, 532

(1972); accord Gerstein, 420 U.S. at 114. Detention,

moreover, burdens not only those detained and their

friends and families but also “society[,] which bears the

direct and indirect costs of incarceration.” RosalesMireles, 585 U.S. at 139. Morrissey itself recognized

this, referring to the “costs to society of keeping an individual in prison.” 408 U.S. at 477.

Petitioners experienced these harms firsthand. As

discussed, see supra pp.9-11, Mr. Horton lost his job, Mr.

Jones lost his housing and employment prospects, Mr.

Oden-Pritchett had to abandon his college plans, and

Messrs. Brownlee and Oden-Pritchett experienced significant health problems from being in jail. Mr. Stanford’s

housing situation became uncertain, he lost his government assistance, and was unable to see his mother, who

was suffering from brain cancer. App.47a. Petitioners also

missed out on important life moments with their parents,

significant others, and children. And their loved ones suffered too: Mr. Brownlee’s elderly mother had relied on him

to help with life’s everyday essential tasks (like food shopping), Mr. Jones’s family had to support him financially

during his detention, and Mr. Bronaugh’s daughter did not

receive the child support she needed—and that Mr. Bronaugh otherwise would have provided, C.A.J.A.204.

Empirical research confirms the prevalence of these

harms. For instance, according to one study of hundreds

of thousands of misdemeanor cases resolved in Harris

County, Texas, an arrestee “detained for even a few days

may lose her job, housing, or custody of her children.”

32

Heaton et al., The Downstream Consequences of

Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711, 713

(2017). “Many detainees lose their jobs even if jailed for a

short time.” Wiseman, Pretrial Detention and the Right to

Be Monitored, 123 Yale L.J. 1334, 1356-1357 (2014). And

such a loss of employment, this Court has explained, has

cascading effects: “While a fired worker may find

employment elsewhere, doing so will take some time and

is likely to be burdened by the questionable circumstances

under which he left his previous job.” Cleveland Board of

Education v. Loudermill, 470 U.S. 532, 543 (1985). In the

meantime, “[w]ithout income, the defendant and his family

… may … lose housing, transportation, and other basic

necessities.” Wiseman, 123 Yale L.J. at 1356-1357. Indeed,

the Department of Health and Human Services reports

that without incarceration, “it is estimated that 5 million

fewer Americans would have been poor between 1980 and

2014.” Department of Health and Human Services,

Incarceration & Reentry, https://aspe.hhs.gov/topics/

human-services/incarceration-reentry-0 (visited Aug. 29,

2025).

The Justice Department has similarly documented

the often-irreparable harms detention inflicts, finding

that jailed individuals suffer every major type of chronic

condition and infectious disease at higher rates than others. Maruschak et al., Medical Problems of State and

Federal Prisoners and Jail Inmates, 2011-12, at 2-3, Bureau of Justice Statistics (rev. Oct. 4, 2016). Even after

they are freed, moreover, individuals who have ever

been incarcerated (for any period of time) earn 40% less

on average than others, even controlling for variance in

years previously worked. Collateral Costs: Incarceration’s Effect on Economic Mobility 11, The Pew Charitable Trusts (2010).

33

B. The question presented is unquestionably recurring. Allegheny County alone had hundreds of individuals jailed for alleged probation violations in 2021.

C.A.J.A.139. As of 2021, nearly 3 million individuals

were on probation in the United States. Collateral

Costs, supra. Given that each year, roughly 250,000 of

those individuals have their probation revoked, it is clear

that hundreds of thousands of individuals each year will

be subject to revocation hearings. See Olson, Probation

Revocation, Criminology and Criminal Justice (Feb. 25,

2019). Many of them will (depending on which part of

the country they live in) face the threat of prolonged detention pending their revocation hearing without a

demonstration by the government that the deprivation

of liberty serves a government interest.

It has been over fifty years since Morrissey was decided, and as discussed, courts have split since then on

what this Court’s precedent requires regarding the process probationers who are detained awaiting their probation-revocation hearings are due. Now, under the decision below, there is no bulwark ensuring that the government must justify jailing people on probation while

they await a hearing to determine whether they actually

violated the conditions of their supervision. Yet such

protection would cost the government little, as preliminary hearings are already occurring. See supra p.22.

Given the importance of this issue, along with the circuit

conflict that the decision below creates, the Court’s review is warranted.

CONCLUSION

The petition for a writ of certiorari should be

granted.

34

Respectfully submitted.

ALEC G. KARAKATSANIS DANIEL S. VOLCHOK

Counsel of Record

KATHERINE HUBBARD

NNEKE

DUNBAR-GRONKE

A

LEONARD J. LAURENCEAU

JEREMY W. BRINSTER

CIVIL RIGHTS CORPS

1601 Connecticut Ave. N.W. MEGAN O. GARDNER

WILMER CUTLER PICKERING

Suite 800

HALE AND DORR LLP

Washington, D.C. 20009

2100 Pennsylvania Ave. N.W.

(202) 894-6132

Counsel for all petitioners Washington, D.C. 20037

(202) 663-6000

daniel.volchok@wilmerhale.com

BRET GROTE

DOLLY PRABHU

Counsel for petitioner Dion

Horton

JACLYN KURIN

ABOLITIONIST LAW CENTER

P.O. Box 8654

Pittsburgh, PA 15221

(414) 654-9070

Counsel for all petitioners

SEPTEMBER 2025