Brief for Respondent — Gagnon v. Scarpelli
Supreme Court brief1973
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ee) NOV 2 1972
| MICHAEL RODAK, JR..CL
al
Supreme Court of the United States
OCTOBER TERM, 1972
No. 71-1225
JOHN R. GAGNON,
Petitioner,
GERALD H. SCARPELLI,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
BRIEF FOR RESPONDENT
WILLIAM M. COFFEY
DENNIS P. COFFEY
152 West Wisconsin Avenue
Milwaukee, Wisconsin 53203
Counsel for Respondent
JOHN F. EBBOTT
_ Freedom Through Equality
- 152 West Wisconsin Avenue
_ Milwaukee, Wisconsin 53203
OF COUNSEL
SPEAR LCE E EAB
Washington. pC..° THIEL PRESS ©. (202) 393.0625
(i)
CONTENTS
Page
STATEMENT OF THE CASE ..<.....222...20.2 1
SUMMARY OF ARGUMENT.................... 5.7
ARGUMENT:
I. As a Consequence of the Expiration of the
Original Probationary Period Imposed Upon the
Respondent and as the Result of the Manner in
Which the Question Presented To This Court Is
Phrased, This Cause Is Moot as to Respondent bea hs we 79
Il. Assuming This Court Decides the Question
Presented by This Case Is Not Moot, the Court
Should Extend and Make Applicable to
Probationers the Hearing Procedure Established
for Parolees by Morrissey v. Brewer—Those
Hearings Being Required by the Due Process
Clause of the Fourteenth Amendment.......... 10-13
Ill. A Probationer Has a Constitutional Right to the
Assistance of Counsel at a Revocation Hear-
Sec 5 cs ks 13-27
A. The Right To Counsel Is Among the Most
Basic Elements of Due Process. ........... 13-16
B. Since This Court’s Decision in Gideon v.
Wainwright, the Right to the Assistance of
Counsel in Criminal Proceedings Has Been
Vastly Expanded Recognizing That This
Assistance is of such a Fundamental Nature
that It Cannot Be Denied. ............... 16-21
C. The Due Process Right to the Assistance of
Counsel Extends to Civil and Administrative
sey ntaieneae gee Pace Bee eo ee tee ae 21-23
D. The Due Process Right to the Assistance of
Counsel Applies to Adjudicatory Adminis-
ws aigtsindaemareeraee, Ee Toe Oe ee ee 23-27
(ii)
IV. The Right to the Assistance of Counsel Is an
Essential Element of Due Process of Law in
Probation Revocation Proceedings. ........... 27-37
A. The Private Interest Affected by Govern-
SU Ib ca Ao abate os eb ess 29
B. The Nature of the Governmental Function
WN Ais od es ns eS rea pS ss 30-35
C. The Burden on Government of Providing the
TUNE WP OIL, sos bat sieaiw we es e's oe 35-37
COMTI 5 sco bv cats vdeenty cult Haws 37
TABLE OF AUTHORITIES
Ahern v.- Board of Education, School District of
Grand Island, 456 F.2d 399 (8th Cir. 1972) ......... 32
Argersinger v. Hamlin, US... . 92.5ft .
EE EPOS cs ca ko 6 uo 59500 0's go 0 19, 20,
Betts v. Brady, 316 US. 455, 62 S.Ct. 1252, 86 L.Ed.
i CM ba sb Ae wwe 8 owe ws 16
Boykin v. Alabama, 395 US. 238, 89 S.Ct. 1709, 23
i EE. <n od pak oo Aan ahoue ° 18
Cafeteria and Restaurant Workers Union v. McElroy,
367 US. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230
CERES a pe nic ade 00-08 0:0 20+ men ein'd ce ons int 11,29
Coleman v. Alabama, 399 US. 1, 90 S.Ct. 1999, 26
L.Ed.2d 387-(1970) ioe ek See be ees 18-19
Dixon v. Alabama State Board of Education, 294
RATIO OMG) 5 8 OR. EE Ee 31
Doherty v. United States, US. ,92S(t.175, |
ek tn A Led | SEI Oy See . 19
Douglas v. California, 372 U'S. 353, 83 S.Ct, 814, 9
L.Ed.2d 811 (1963) ..... a AE EEE EEE PE 18
(til)
Becobedo v. Hlinois, 378 U.S. 478, 84 S.Ct. 1758, 12
EE ane Pg ee Fee 17,18
Gault, Application of, 387 U.S. 1, 89 S.Ct. 1428, 18
I MPEENOE 5. ARUP. Goce ec ek. 21-22
Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011,
*25 L.Ed.2d 287 (1970) ................. 23, 30-31, 35-36
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792,9
Ee ae ee ee 16, 20, 21
Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18
IN 6 bs gic ck coo od ON 53 SERRE. 18
Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3
No cob SeGRGS 18, 31
Gunsolus v. Gagnon, 454 F.2d 416 (7th Cir. 1971) ....... 5,8
Hague v. Committee for Industrial Organization, 307
US. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939) ........ 35
Hahn v. Burke, 430 F.2d 100 (7th Cir. 1970)......... 5,8,9
Hamilton v. Alabama, 368 US. 52, 82 S.Ct. 157, 7
I ret cg et 18
Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4
LEd.2d 1307 (1960) ........... 10-11, 23-24, 25,26,27
Holden v. Hardy, 169 U.S. 366, 18 S.Ct. 383, 42
a aE SRE RS tna reel 14
Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843,
23 L.Ed.2d 404 (1969) Pas ee eae 25, 26, 27
Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21
EN ey ot eS hs 34
Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 7
NEMO a se 15, 34
Joint Anti-Fascist Refugee Committee v. McGrath,
_ 341 US. 123, 71 S.Ct. 624,95 LEd. 817(1951)..._. 27-28
Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045,
a 16 L.Ed.2d 84 (1966) |
@M*eeeseee 8 ee © 6 © oj8.8 @
(iv)
Kirby v. Illinois, US. , 92 St. 1877,
L.Ed.2d COTA) he cewds Se Bs 18
Massiah v. United States, 377 U.S. 201, 84 S.Ct.
1199, 12 LEd.2d 246 (1964) .......8..44.... 16,17
Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19
EMA DESIG(ING7): hos ic ow owe ESI AR Sw. 18, 32
Menechino v. Watden, 27 N.Y. 376,21 NYS2d-449 j
(2970)... cis 6a owe oN lee ea UES ORAS ara 32
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
BeOS (1966) gc en oe eI ES. 17, 18, 30
' Morrissey v. Brewer, US. 49284 =, 33
L.Ed.2d 484 (1972) ....... $,6,10, 11-12, 13,26,28,29,34
Oestrich v. State, 55 Wis.2d 222, 198 N.W.2d 664
I sc Ma ps ee a 36
Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77
L.Ed. 158 (1932) ...... 6, 14-15,16,17,19,20,21 ,23,32,34
Rescue Army v. Municipal Court, 331 U.S.549,67 |
S.Ct. #409, 91 L.Ed. 1666 (1947) .............. 78,9
State ex rel. Bernal v. Hershman, 54 Wis.2d 626, 196
SR ae CREP OI bik 0505 6.u'8 0 5k SF Nia eies oe on os 36
United States v. Wade, 388 U.S. 218, 87 S.Ct. 1951,
a OEE 5 5 o o-s bse ope 9 be 90> 18 -
State ex rel. Johnson v. Cady, 50 Wis.2d 540, 185
N.W.26306. (1970) 9 i.e eins er eec ene 9
United States ex rel. Bey v. Connecticut Board of
Parole, 443 F.2d 1079 (2nd Cir. 1971) ....... 32,33,34,36
Warten v. Michigan Parole Board, 23 Mich. App. 754,
re eT” he ks) Gn anos toa ee 32
White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 16
Ne NE 6. s bp oriccnis MoH este 9 6 orn s as 48
Williams v. Patterson, 389 F.2d 374 (10th Cir. 1968). ... , .*32
Winship, In Re, 397 US. 358, 90 S.Ct. 1068, 25
SE BTU i ona ie bie Soo Seb 0d ape 6 oie e ee 22
(vy)
‘Title 5, United States Code, Section 551. et seq.,
_ Administrative Procedure Act of 1946
Title 8, United States Code, Section 1362
Other Authorities:
American Bar Association Standards Relating
Probation, Commentary, Section 5.4{a\ii)
Annual Report Ohio Adult Parole Authority,
1964/65 at 13-14
1 Gordon and Rosenfield, Immigration Law and
Procedure, Section 1.23
NOTE, Parole: A Critique of Its Legal Foundations
and Conditions, 38 NY Univ. Law Review, —
he iene ORE i
Sklar, Law and Practice in Probation and Parole
Revocation Hearings, 55 J. Crim. L.C. and PS. 174,
175, 194, Note 157 (1964)
Warren, Probation in the Federal System of Criminal
Justice, 19 Fed. Prob. 3 (Sept. 1955)
x
Sereme Court of the United States
No. 71-1225
JOHN R. GAGNON,
Petitioner,
v.
GERALD H. SCARPELLI,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
BRIEF FOR RESPONDENT
STATEMENT OF THE CASE
On July 9, 1965, the Respondent entered a plea of
guilty to a charge of armed robbery in violation of
Section 943.32(1)(b)(2), Wisconsin Statutes, and was
sentenced on that date to an indeterminate term of not
more than fifteen (15) years at the Wisconsin State
Reformatory, Green Bay, Wisconsin by the Honorable
HOWARD J. DU ROCHER, County Judge, Branch 2,
Racine County, Wisconsin. Execution of the sentence was
stayed and Respondent was placed on probation to the
State Department of Public Welfare (now known as the
~ Department of Health and Social Services) for a period of
> seven (7) years.
4
On July 9, 1965, Respondent signed a “Parole
Agreement” and'a “Travel Permit and Agreement to
.Retum.” ‘He . thereupon travelled. to Illinois and on
August 5, 1965, the Adult Probation Department of the
Circuit Court of ‘Cook County, Illinois, accepted
Respondent’s probation supervision pursuant to the
Uniform Act for Out-of-State Parolee. Supervision.
(Section 57.13, Wisconsin Statutes). The ugreement
signed by the Respondent provided that he waive
extradition to the State of Wisconsin from any
jurisdiction in or outside of the United States and that he
could not contest any effort by any jurisdiction to retum
him to the State of Wisconsin. On August 20, 1965,
Respondent’s probation supervisor recommended to the
State Department of Public Welfare that Respondent’s
probation be revoked by reason of his association with
known criminals and his involvement in a burglary. On
the same day, the District Administrator concurred in the
recommendation, and on August 27, 1965, the Chief
Probation and Parole Services made the same recom-
mendation. Pursuant to these recommendations the
Director of the State Department of Public Welfare,
Wilbur ‘J. Schmidt, entered an order revoking the
petitioner's probation on September 1, 1965. The
recommendations for revoking probation were based on
the transcript of the. statement allegedly given by the
Respondent on August 5, 1965, to Mr. Robert J. Smart,
Assistant States Attorney, Cook County, Illinois, and
newspaper clippings from August 6, 1965, edition of the
Chicago Tribune pertaining to the occurrence in
Rrosetialth Lake County, Illinois of a burglary.
‘Pursuant to the revocation order, the Respondent was
picked up ‘in ‘Illinois at his place of ‘employment on
September 3 or’ September 4, 1965, and he was
transported to the Sheriff’s office, Niles, Illinois. On the
_
2
game day, Respondent was transported to the Racine
‘County Jail, Racine, Wisconsin. Respondent was held
overnight in the Racine County Jail and on the following
ay was transported to the Green. Bay Reformatory.
Respondent was received at the reformatory on
_ Respondent was never afforded a hearing, either by the
State Department of Public Welfare or by the sentencing
court prior to the revocation of his probation and
_ transportation to the Green Bay Reformatory. Further,
‘he was never granted a hearing of any kind in Illinois
after he was picked up and prior to the time he was
transported to the Racine County Jail. Respondent was
also denied an opportunity to consult with a lawyer of
his own choosing or appointed counsel prior to the
‘Tevocation of his probation, prior to his removal from the
State of Illinois to the Racine County Jail, and prior to
his transportation to the Green Bay Reformatory.
"On June 4, 1969, Respondent was released from
Ancarceration by the State of Wisconsin and was paroled
‘to a federal detainer. Respondent was previously
‘Wntenced to a term of eight (8) years on a federal
“fonviction. That sentence was to be served concurrently
With the sentence imposed in the State of Wisconsin. At
60
the present time Respondent has been released from the
‘Federal Correctional Institution at Leavenworth, Kansas
nd his status with regard to the State of Wisconsin is
of parolee.
Inasmuch as Respondent was on July 9, 1965, placed
Probation for a period of seven (7) years, that
batio period were the revocation not to have
rceded would have expired on July 9, 1972.
This statement of facts is presented as a result of
r exceptions being taken on the part of the
:
E
Be,
4 x
Respondent to the statement of facts presented in
Petitioner’s brief. Specifically, the Respondent takes
exception to the Petitioner’s relation of the facts
surrounding the alleged involvement of the Respondent
in a burglary occurring in Deerfield, Lake County, Illinois
on Friday, August 6, 1965. The facts recited by the
Petitioner are based entirely upon an account of the
burglary appearing in the August 6, 1965 edition of the
Chicago Tribune and upon a statement made by the
Respondent to Assistant States Attorney Robert J. Smart
in the Cook County Jail. The taking of this statement
commenced at approximately 3:15 p.m. on August 6,
1965. Respondent while admitting the making of the
statement has contended that the statement was made
under duress. The Petitioner’s characterization of the
Respondent’s explanation for the making of this
statement as well as the Petitioner’s characterization of
the Respondent’s explanation for a cut on _ the
Respondent’s hand as improbable explanations is
irrelevant and immaterial to the instant proceeding. The
Respondent was not convicted of the burglary occurring
in Deerfield, Lake County, Illinois, on Friday, August 6,
1965, and charges arising out of the said burglary were
dismissed upon Respondent’s return to the State of
Wisconsin. The Respondent was never convicted of any
involvement in this burglary.
Additionally, the Respondent would point out that
materials referred to by the Petitioner in his Facts
Relating To The Administration Of Law, and appearing
in the Addendum to Petitioner’s brief, are in no way an
exhaustive presentation of materials regarding parole and
probation revocation proceedings, nor is there any
indication, in light of the publication dates of these
materials, ‘that they are in any way representative of
proceedings now conducted in Wisconsin.
"4.5 SUMMARY OF ARGUMENT
| “Respondent would argue that this case should be
dism in that it is moot as to him. It is a
fong-tecognized doctrine of this Court that the decision
of. ‘constitutional questions will be avoided if there is any
other ground on which the issues presented by a
controversy may be decided. In the instant case the Court
"of Appeals for the Seventh Circuit decided that the
holding of Hahn v. Burke, 430 F.2d 100 (7th Cir. 1970)
that a probationer facing revocation had a Due Process
tight to a hearing prior to revocation was applicable to
Respondent.See Gunsolus v. Gagnon, 454 F.2d 416 (7th
‘Cir. 1971) (this case below). The Court of Appeals’
decision that the holding of Hahn is applicable to
Respondent is not challenged in this action. In fact, the
Petitioner concedes that probationers facing revocation
are entitled, on the basis of Morrissey v. Brewer,
US. ,92S.Ct. , 33 LEd.2d 484 (1972), to
such a hearing. Inasmuch as Respondent was denied a
hearing prior to the revocation of his probation, that
‘tevocation was illegal regardless of this Court’s decision
regarding Respondent’s right to the assistance of counsel
at that hearing. Inasmuch as there is no authority in
Wisconsin law providing for the tolling of the
probationary period as a result of an illegal revocation
and inasmuch as the District Court ordered the record of
‘the revocation expunged from Respondent's record, the
seven (7) year probationary period imposed on July 9,
1965, expired as of July 9, 1972 and this case is therefore
‘Moot as to the Respondent.
Assuming that this Court should find that the
‘onsequences surrounding the revocation of probation are
‘Significant enough to mandate the decision of the
‘Question presented in this case, it is Respondent’s
Rss Se
Ree. A
6
contention that in light of the reasoning of this Court in
its decision, last- term, in Morrissey v. Brewer,
US. ~~, 92 S.Ct. —; 33 L.Ed.2d 484 (1972), the
revocation of any probation should be accomplished only
after the completion of a hearing procedure meeting the
minimal standards expressed in Morrissey. While Morris-
sey dealt, with the revocation of a parole, no significant
difference exists between the status of a parolee and that
of a probationer, and therefore the procedural safeguards
accorded parolees by Morrissey should be extended by
this Court to probationers.
While the Court in Morrissey specifically withheld
judgment as to whether or not the right to a hearing prior
to revocation included the right to the assistance of
counsel at that hearing, Respondent respectfully
contends that the granting of a right to a hearing is, in
large measure, the granting of a right void of significance
unless thgt hearing includes the right of the probationer
facing revocation to the assistance. of counsel. A
probation revocation hearing involves precisely the kinds
of problems which a defendant in a criminal prosecution —
faces. The revocation hearing is an attempt to reconstruct
certain disputed factual situations, the dispute occurring
between the probationer and his supervising agent.
Clearly; the reasoning in Powell v. Alabama, 287 U.S. 45,
53 S.Ct. 55, 77 L.Ed. 158 (1932), which suggests that
there are laymen illiterate and therefore incompetent to
protect themselves in the trial of a matter before a Court
is just as applicable in the case of a probationer facing an
analogous situation in a probation revocation hearing.
This Court very early in its history recognized that the
conduct of a hearing without the assistance of a lawyer,
sd to develop complex defenses, is often ‘not a
fing at all. In recent years this Court has broadened
eo alll
the availability of the assistance of counsel from
courtroom situations to administrative hearings, and
Respondent would contend that the instant case is an
- appropriate one for this Court to hold that the Due
“Process Clause of the Fourteenth Amendment requires,
minimally, that probationers, prior to revocation, be
provided a hearing and as a concomitant right the
assistance of counsel at that hearing.
7
ARGUMENT
I
AS A CONSEQUENCE OF THE EXPIRATION OF
THE ORIGINAL PROBATIONARY PERIOD
IMPOSED UPON THE RESPONDENT AND AS THE
RESULT OF THE MANNER IN WHICH THE
QUESTION PRESENTED TO THIS COURT IS
PHRASED, THIS CAUSE IS MOOT AS TO THE
RESPONDENT.
s Respondent contends that this cause should be
‘dismissed because it is moot as to him. In Rescue Army y.
Municipal Court, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed.
1666 ( 1947), this Court discussed the “doctrine of strict
“Recessity” noting’ that the Court had developed a series of
filles for its own governance under which it avoided
: orm upon most of the constitutional questions raised
_before it. One of the rules there enumerated indicated
‘that if the record of the case presented a non-
‘Constitutional ground upon which the case could be
decided, the constitutional question involved in the case
‘would not be adjudicated. aoe
ay
oa If there is one doctrine more deeply rooted than any
~ other in the process of constitutional adjudication,
it is that we ought not to pass on questions of
~ constitutionality .-.unless such adjudication is
TF,
~
8
unavoidable. Spector Motor Service v. McLaughlin,
323-US. 101, 105, 89 L.Ed. 101, 103,65 S.Ct. 152.
It has-long been the Court’s ‘considered practice not
to. decide abstract, hypothetical or contingent
questions ...or to decide any constitutional ques-
tion in advance of the necessity for its deci-
sion... * * *” 331 U.S. at 570 (Fn. 34) (Emphasis
added)
Respondent was convicted of armed robbery on July
9, 1965 and sentenced to fifteen (15) years imprison-
ment. The sentence was stayed and he was placed on
probation for a period of seven (7) years. On September
1, 1965, after recommendation by the Probation and
Parole Services, his probation was revoked without
hearing by the State Department of Public Welfare (now
known as the Department of Health and Social Services
of the State of Wisconsin). -
In Hahn v. Burke, 430 F.2d 100 (7th Cir. 1970), it was
held that a probationer had a right to a hearing prior to
the revocation of his probation. Gunsolus v. Gagnon, 454
F.2d 416 (7th Cir. 1971) (this case below) made this
right applicable to the Respondent and those proba-
tioners sitnilarly situated. Neither the right to a hearing
prior to the revocation of probation nor the applicability
of the holding in Hahn v. Burke, supra, to Respondent is
in issue before this Court. In fact, Petitioner concedes in
his brief that a probationer is in all likelihood entitled to
a heating prior to revocation of his probation.
(Petitioner’s Brief, p. 18). The Respondent in this cause
was not granted any hearing whatever.
Inasmuch ‘as Respondent was denied his right to a
hearing prior to revocation, the revocation by administra-
tive order on September 1, 1965, was illegal and invalid
regatdless of any decision that this Court might make
a hc ve
een
9
regarding the right of Respondent to the assistance of
counsel at a probation revocation hearing. Since this
Court can decide the issue of counsel adversely to the
- Respondent and still not effect the propriety of the
revocation of his probation, it need not and should not
decide the issue of the right to counsel. Rescue Army v.
Municipal Court, supra.
Moreover, there existing no authority in Wisconsin law
for the proposition that the running of Respondent’s
probationary period was tolled upon the execution of the
improper revocation, and the period of Respondent's
probation having expired on July 9, 1972, this case is
moot. Even assuming that the cause were to be remanded
for a revocation hearing without counsel, Respondent
could not be compelled to appear at such a hearing. He
need only petition the Wisconsin Supreme Court or the
District Court for the Eastern District of Wisconsin for
his unconditional release from his present status as a
parolee of the State of Wisconsin. Substantively this
petition could be made on the basis of Hahn v. Burke,
supra, and the decision of the Wisconsin State Supreme
Court in State ex rel. Johnson v. Cady, 50 Wis.2d 540,
ts 185 N.W.2d 306 (1970), which adopted the holding of
the Court of Appeals for the Seventh Circuit in Hahn v.
' Burke, as the controlling law in the State of Wisconsin
with regard to the issue of a hearing prior to the
" fevocation of probation. Neither of these cases, Hahn nor
‘Johnson, is in issue before this Court. Therefore,
‘6 ‘Respondent respectfully contends this cause should be
a as presenting a moot question in that he is, by
wer court decision, guaranteed the right to a hearing
“puor to revocation, and this Court need not decide the
“question of Respondent’s right to the assistance of
-ounsel at such a hearing.
PROCEDURE ESTABLISHED FOR PAROLEES BY
MORRISSEY V. BREWER, .US
(1972)—-THOSE HEARINGS BEING REQUIRED BY
THE DUE PROCESS CLAUSE OF THE FOUR-
In Morrissey v. Brewer, (1972), this Court held that
state correctional authorities seeking the revocation of a
parolee’s parole were required by the Due Process Clause
of the Fourteenth Amendment to provide the parolee
with certain procedural safeguards. These constitutionally
mandated minima are essentially as follows. The parolee
must be given: .
(a) Wriften 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); (¢)
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 fact finders as to the evidence
relied on and the reasons for revoking parole. __
U.S. 33 L.Ed.2d at 499.
Morrissey established, as a minimum, a two stage
proceeding intended to fulfill the needs of the state while
protecting ‘the “right” of the parolee—his conditional
' liberty. This is wholly in keeping with the historical
application by this Court of the Due Process Clause. In
Hannah v, Larche, 363 U.S. 420, 80 S.Ct. 1502, 4
L.Ed.2d 1307 (1960), the Court said:
Bie gk co RN ee aoe
11
“Due process’ is an elusive concept. Its exact
boundaries are unidentifiable, and its content varies
according to specific factual contexts. Thus, when
governmental agencies adjudicate or make binding
_ determinations which directly effect the legal rights
of individuals, it is imperative that those agencies
use the procedures which have traditionally been
associated with the judicial process. 363 U.S. at 441.
Mr.. Justice. Frankfurter, concurring in Hannah, also
discussed the importance. 6f balancing government and
personal interests in arriving at a decision as to what
process was due in.a given case. He said:
_ The precise nature of the interest alleged to be
_ adversely affected or of the freedom of action
claimed to be curtailed, the manner in which this is
to be done and the reasons for doing it, the balance
of individual hurt and the justifying public
good—these and such like are the considerations,
avowed or implicit, that determine the judicial
judgment when appeal is to be made to “Due
Process.” 363 U.S. at 487-488.
“See also Cafeteria and Restaurant Workers Union y.
McElroy , 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230
(1961).
In Morrissey, the Court chose to describe this
balancing process as follows:
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.
128, 168, 95 L.Ed. 817, 852, 71 S.Ct. 624 (1951)
Frankfruter, J. concurring), quoted in Goldberg v.
Kelly, 397 U.S. 254, 263, 25 L.Ed.2d 287, 296, 90
S.Ct. 1011 (1970). The question is not merely the
eight of the individual’s interest, but whether the
ure of the interest is one within the contempla-
12
‘tion of the. ‘liberty or property’ language of the
- Fourteenth Amendment. Fuentes: v. Chevin, 405
U.S..; 32. L.Ed,2d 556, 92 S.Ct. ___. (decided
June 12, 1972).4 — US. at ., 33 L.Ed.2d at 494,
This Court’ in Morrisey found that the nature of a
parolee’s interest in his continuation on parole was of
such a kind as to be one within the contemplation of the
‘liberty or property’ language of the Fourteenth
Amendment,’ and consequently the Court held that
Morrissey had a right to a hearing prior to revocation.
In the instant case, the Governmental interest and
private interests are undistinguishable from the interest
this Court had to balance in due process terms in
Morrissey. The nature of the Respondent’s interest in
maintaining his status as a probationer is, like Morrissey’s,
of a kind such as to be within the contemplation of the
“liberty or property” language of the Fourteenth
Amendment.
This Court in Morrissey said:
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. * * * Though the state properly subjects
him to. many restrictions not applicable to other
citizens, his condition is very different from that of
confinement in prison. * * * 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. aioe U. S. at__, 33 L.Ed.2d at 494-495.
The ‘above passage is as true of probationers as parolets.
i, the very act of placing a man on probation
recognizes that the state, via its judiciary, has determined
13
that future criminal involvement on the part of the
i is unlikely. (See Section 57.01(1), Wisconsin
Statutes: (1967), Petitioner’s Brief, p. 6). Most impor-
tantly, the probationer, like the parolee, relies on at least
- the implicit promise that revocation will result only upon
a violation of the conditions of probation. The
probationer thus has a significant, even if only
conditional, right or interest in his probationary status,
and revocation seriously injures the probationer’s right.
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. Greene v. McElroy, 360 U.S. 474,
496, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959).
The probationer’s interest or right in his status as a
probationer is injured by an attempt on the State’s part
to revoke that probation. Consequently, he, like a
parolee, shoufd be granted the procedural safeguards
insured parolees by the hearing process of Morrissey v.
Brewer, supra.
A PROBATIONER HAS A _ CONSTITUTIONAL
RIGHT TO THE ASSISTANCE OF COUNSEL AT A
REVOCATION HEARING.
A. The Right To Counsel Is Among The Most Basic
o3 Elements of Due Process
~ Respondent respectfully contends that the existence of
£ _ constitutionally guaranteed right to a hearing prior to
i revocation of probation requires as a necessary
‘corollary the right to the assistance of counsel at that
14
hearing. ‘To grant probationers the right to a hearing prior
to’ revocation while denying them the assistance of
counsel would result in the granting of an empty right.
The right to be assisted by counsel in proceedings which
greatly affect an individual’s rights has long been
recognized as one of the rights most fundamental to due
process of law. As this Court stated in Holden v. Hardy,
169 U.S. 366, 18 S.Ct. 383, 42 L.Ed. 780 (1898):
.. . There are certain immutable principles of justice
which inhere in the very idea of free government
which no member of the union may disregard. 169
U.S. at 389.
This language was relied upon by this Court in Powell y.
Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932),
in holding that due process of law requires appointment
of counsel in a capital case. The Court held that the right
to the assistance of counsel:
Is of stich a character that it cannot be denied
without violating those ‘fundamental principles of
liberty and justice which lie at the base of all our
civil and ‘political institutions.’ (Citing Herbert v.
"State of Louisiana, 272 U.S. 312, 316). 287 US.
at 71-72.
Considering the question of what a ‘“thearing” includes !
the Powell Court stated:
Historically and in practice in our own country at
least, it has always included the right to the aid of
counsel when desired and provided by the party
asserting the right. The right to be heard would be in
many cases, of little avail if it did not comprehend |
- the right to be heard by counsel. Even the intelligent
and educated layman has small and sometimes ‘no
skill in the science of law. * * * He lacks both the
skill and knowledge adequately to prepare his
. defense, even though he have a perfect one. eee if
15
iim any case, civil or criminal, a state court were
+ arbitrarily to refuse to hear a party by counsel,
«employed. by and appearing for him, it reasonably
_ May not be doubted that such a refusal would be a
., denial of a hearing and therefore, of due process in
_ the constitutional sense. 287 U.S. at 68, 69.
- (Emphasis supplied).
Noting that the defendant stood in peril of their lives,
the Court in Powell examined the nature of the
governmental function involved. It noted that defendants
were young, ignorant and illiterate. They were being tried
- in an atmosphere of hostility, under close surveillance by
the military, and far away from friends and family.
Furthermore, they were imprisoned and thus unable to
prepare their defense without counsel. A lawyer was
found to be vital for the purposes of consultation,
’ thoroughgoing investigation, and the preparation of a
defense. Powell v. Alabama, 287 U.S. at 57.
Powell was decided, not upon the basis of the Sixth
Amendment guarantee to the assistance of counsel in a
criminal prosecution, but rather upon the due process
clause of the Fourteenth Amendment. This decision,
~ nevertheless, has become a touchstone for both due
process and Sixth Amendment decisions.
_ Since Powell, the right to counsel has been considered
_ essential to a fair trial, and the constitutional availability
_ of counsel has constantly expanded. Johnson v. Zerbst,
(304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 {1938),
- established that the right to counsel was so fundamental
_ that its waiver was required to be clearly determined and
Boted on the record. The Court stated that the right was:
-... Deemed necessary to insure fundamental rights
x a of life and liberty. 304 U.S. at 462.
16
Ten years after Powell, Betts v. Brady, 316 U.S. 455, .
62 S.Ct. 1252, 86 L.Ed. 1595 (1942), was decided by
this Court. Conceding the importance of counsel, it :
nevertheless determined that the right to the assistance of __
counsel was not a fundamental right in all cases, but only __
when counsel was so essential to fairness that
appointment was imperative. 316 U.S. at 471. The Betts
case is important because it severely limited Powell to its
own facts and expressly held that counsel was not a
“natural, inherent, and fundamental” principle of
fairness. 316 U.S. at 464. In 1963, Betts v. Brady was
overruled by Gideon v. Wainwright, 372 U.S. 335, 83
S.Ct. 792, 9 L.Ed.2d 799 (1963). The Court’s opinion in
Gideon made the Sixth Amendment applicable and
obligatory on the states and held that an indigent
defendant in a serious crime in a state court had the right
to haye counsel appointed for him. The basis for this
decision was ‘the fundamental character of the right to
the aid of counsel as set forth in Powell vy. Alabama,
supra, which was no longer limited to its particular facts.
B. Since This Court’s Decision In Gideon v.
Wainwright, The Right To The Assistance of
Counsel In Criminal Proceedings Has Been
Vastly Expanded Recognizing That This
Assistance Is Of Such A Fundamental Nature
That It Cannot Be Denied.
After this Court’s opinion in Gideon v. Wainwright,
supra, the right to the assistance of counsel as required by
the Sixth Amendment was extended beyond the bounds
of the.trial of a criminal prosecution itself by this Court’s
decision in Massiah v. United States 377 U.S. 201, 84
S.Ct. 1199, 12.L.Ed.2d 246 (1964), which held a
defendant was entitled to the assistance of counsel dfter
indictment and release on bail. This period of time was
a
17
eienined to be a “critical period of the proceedings”
within the meaning of that term as found in Powell v.
e The Mastin. decision foreshadowed this Court’s
7 in Escobedo y. Illinois, 378 U.S. 478, 84 S.Ct.
1758, 12° L.Ed.2d 977 (1964), wherein the Court held
that the right to counsel applied at a pre-indictment
police interrogation, and that any incriminating state-
ment made during that interrogation, after the suspect
has requested and been denied an opportunity to consult
with his lawyer, is excludable at trial. The Court cited
Powell and Massiah in finding this investigatory process
to be a critical stage in the proceedings, that is, a stage at
which the suspect was most in need of an attorney.
It would exalt form over substance to make the
~ tight to counsel, under these circumstances, depend
‘on whether at the time of the interrogation, the
authorities have served a formal indictment.
_ Petitioner had, for all practical purposes, already
_ been charged with murder. 378 U.S. at 486.
Even though the period between the arrest’ and
indictment of defendant was recognized as the period
during which most confessions were obtained and even
though this ruling would significantly diminish the
number of confessions obtained, the Court held that:
~~ Our Constitution, unlike some others, strikes the
balance in favor of the right of the accused to be
_ advised by his lawyer of his privilege against
_ self-incrimination.
“ Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
-LEd.2d 694 (1966), expanded even further the right to
“@unsel discussed in Escobedo. The Court in Miranda
d that any statements obtained in a_ police
rrogation which were not preceded by a police
18
waming to the suspect regarding the suspect’s constitu-
tional rights with regard to the assistance of counsel
would: be inadmissible as a violation of the Fifth and
Sixth Amendments to the United States Constitution.
Not only did the Court direct that an accused be notified
of his right to counsel, but it also directed that upon any
indication by the accused that he desired to.consult with
counsel prior to speaking, all interrogation had to cease
pending the completion of that consultation.
Kirby vy. Illinois, U8 92: Sct 1677,
L.Ed.2¢ (1972), the Court, in holding there was not
right to counsel at pre-indictment line-ups, distinguished
Escobedo and Miranda and stated that the Sixth and
Fourteenth Amendment right to counsel attached “only
at or after the time that adversary proceedings have been
initiated against the defendant, (citing Powell), and thus
the right did not attach prior to the indictment.” —
U.S. atu.
Although this decision appeared to put a limitation on
the right to counsel after it had been expanded to apply
at arraignment, Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct.
157, 7 L.Ed.2d 114 (1961); on appeal, Douglas v.
California, 372 U.S. 353, 83 S.Ct. 814, 9 L-Ed.2d 811
(1963); at preliminary hearings, White v. Maryland, 373
U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); at
nt line-ups, United States v. Wade, 388 US.
218, 87 S.Ct. 1926, 18 L.Bd.2d 1149 (1967), and Gilbert
y. California; 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d
1178 (1967); at probation revocation proceedings
wherein there was a deferred sentencing, Mempa v. Rhay,
389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967);
prior to the acceptance of a guilty plea, Boykin .
Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274
(1969); at-a non-essential preliminary hearing, Coleman v.
vA ;
iehews. 399 U.S. 1,.90 S.Ct. 1999, 26 L.Ed.2d 387
(1970); and on a petition for writ of certiorari to this
s Court, Doherty v. United States, US. ; 92 S.Ct.
- $75, 30 L.Ed.2d 149 (1971), it did not indicate on the
~ part of this Court a retreat from the Powell analysis of
~ the right to counsel as a fundamental principle of liberty
and justice and as an essential feature of a meaningful
hearing. Rather the Court in Kirby was concerned
primarily with ty the point of commencement
of:
The “criminal prosecutions” to which alone the
explicit guarantees of the Sixth Amendment are
applicable. ca tS, O03
_. This Court has recently further expanded the Sixth
Amendment right to counsel by holding the assistance of
counsel to be essential in any criminal prosecution,
whether petty, misdemeanor, or felony, which might
result in imprisonment. Argersinger v. Hamlin, US.
J, 92 S.Ct.._, 32 L.Ed.2d 530 (1972). In deciding
Argersinger this Court relied upon Powell in describing
the fundamental nature of the right to counsel and found
that lawyers in criminal courts are necessities and not
luxuries. The Court evaluated the interest of the accused
in not being deprived of his liberty, even for a short
period of time, and stated that the prospect of losing
liberty even for a short time would not be viewed by an
“accused as a trivial matter. The Court weighed the
‘accused’s interest in this loss of liberty against the burden
upon the Government of providing counsel. It reasoned
that there were sufficient numbers of lawyers and law
Students available to satisfy the estimated requirement of
$75 to 2300 full time counsel.
_ + Mr, Chief Justice Burger in his concurrence expressed
- €oncern with the burden on the states, but he found the
dividual interest involved and the critical function of
sel at criminal trials to outweigh that burden.
any approach anno allows a for any
the aid of counsel at \trial; any
“Rep apade is a serious matter. The issues
be dealt with in a trial for a petty offense
pope may often be simpler than those
involved in a felony trial, and yet be beyond the
capability of a layman, especially when he is
opposed by a law trained prosecutor ... ——USS. at
——. (Mr. Chief Justice Burger, concurring)
This most recent construction of the Sixth Amendment
by the Court and the resultant greater availability of the
assistance ‘of counsel reaffirms the principle enunciated
by this Court in Powell that the right to counsel is
fundamental to due process of law, under both the Sixth
and Fourteenth Amendments. As the Court in Powell
stated:
The fact that the right involved is of such a
character that it cannot be denied without violating
those ‘fundamental principles of liberty and justice
which lie at the base of all our civil and political
institutions.’ (Herbert v. Louisiana, 272 U.S. 312,
316, 71 L.Ed. 270, 272, 48 ALR 1102, 47 S.Ct.
103) is obviously one of those compelling
considerations which must prevail in determining
whether it is embraced within the due process clause
of the Fourteenth Amendment, although it be
specifically dealt with in another part of the federal
Constitution, 287 U.S. at 67. (Emphasis supplied.)
Thus, the right to counsel is a right provided by the
Due Process Clause of the Fourteenth Amendment,
independent of the express guarantee of the Sixth
Amendment, and counsel was deemed required under
that.clause until Gideon v. Wainwright, supra, hela the
Sixth Amendment applicable to the states. Although the
21
cases subsequent to Gideon have dealt primarily with the
Sixth. Amendment right and have continuously expanded
‘that right, there existed prior to Powell and there exists
— today a Fourteenth Amendment right to counsel in
non-criminal proceedings.
C. The Due Process Right To The Assistance
Of Counsel Extends To Civil And
: Administrative Proceedings.
The right to counsel has been extended, under the Due
Process Clause of the Fourteenth Amendment, to juvenile
court proceedings—proceedings which are civil in nature.
In Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045,
16 L.Ed.2d 84 (1966), this Court held that when
jurisdiction over a juvenile is waived from juvenile to
adult court, the juvenile must be provided a hearing, the
_ effective assistance of counsel, and a statement of reasons
for the waiver. The.Court did not require that the hearing
provide:
All of the requirements of a criminal trial or even of
the usual administrative hearing, but we do hold
that the hearing must measure up to the essentials of
_ due process and fair treatment. 383 U.S. at 562.
It is significant that the right to counsel was considered
one of the “‘essentials of due process.”
The right of counsel was considered fundamental to
another juvenile, civil proceeding—the adjudication of
@elinquency. In Application of Gault, 387 U.S. 1, 87
~ $£t. 1428, 18 L.Ed.2d 527 (1967), this Court found
- that where the threatened loss of liberty is comparable in
- severity to the loss of liberty occasioned by a felony
-_ prosecution, a juvenile requires the assistance of counsel:
*To cope with problems of law, and to make skilled»
“inquiry into the facts, to insist upon regularity of
22
the proceeding, and to ascertain whether he has a
defense and to prepare and submit it. 387 US. at
36 :
The Court re teens that the child and his parents were
to be advised of his right to be represented by retained or
appointed counsel.
Similarly, whoieé child te 'chhiged! with‘an act which
renders him liable to imprisonment for as long as six
years, due process demands that his guilt be proved
beyond a reasonable doubt, just as it requires that he be
granted the assistance of counsel. Jn Re Winship, 397
U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
The right to counsel has long been found necessary in
deportation proceedings which are, despite the severe loss
to the alien imposed by deportation, considered
administrative in nature. The General Counsel for the
Immigration and Naturalization Service has stated that:
The right to be represented by counsel is one of the
most important elements of due process of law. |
Gordon and Rosenfield, Jmmigration Law and
Procedure, Section 1.23.
And the Immigration and Nationality Act of 1952 now
provides the right to counsel in proceedings adjudicating
excludability or deportability.'
The fundamental nature of the right to be represented
23
cae. Administrative Procedure Act of 1946, 5 U.S.C.
Section 551, et seq. This Act, which applies with certain
‘exceptions to all federal agency proceedings, provides
- that each person compelled to appear before any agency
‘is entitled to be represented by counsel. It also provides
such right to any party who appears in an agency
proceeding though not compelled to do so. See 5 US.C.
Section 551 and 5 U.S.C. Section 555(b).
The most recognition of the right to counsel in
administrative proceedings ‘ is Goldberg v. Kelly, 397 US.
954, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), wherein this
Court held the right to exist in state administrative
proceedings terminating welfare benefits. The Court there
quoted Powell v, Alabama, supra, and stated:
We do not say that counsel must be provided at the
pretermination hearing, but only that the recipient
must be allowed to retain an attorney if he so
desires. Counsel can help delineate the issues,
present the factual contentions in an orderly
manner, conduct cross-examination, and generally
safeguard the interests of the recipient. 397 U.S. at
270.
Thus, the due process right to the assistance of counsel
has been recognized to exist in a number of non-criminal
administrative proceedings.
D. The Due Process Right To The Assistance Of
Counsel Applies To Adjudicatory Administra-
tive Proceedings.
” The right to the assistance of counsel is not an essential
7 in all administrative proceedings. The test by which it
P icscrmined whether fundamental due process rights
apply to administrative proceedings was enunciated by
“this Court in Hannah y. Larche, 363 U.S. 420, 80 S.Ct.
~1502, 4 L.Ed.2d 1307 (1960). The Court, noting that
: @ process is an elusive and flexible concept, stated:
24
when governmental agencies adjudicate or
binding determinations which directly affect
the legal rights of individuals, it is imperative that
those. agencies use the procedures which have
traditionally been associated with the judicial
process. On the other hand, when governmental
action does not partake of an adjudication, as for
example, when a general fact finding investigation is
being conducted, it is not necessary that the full
panoply of judicial procedures be used. 363 US. at
The Court found a purely investigative non-adjudicatory
proceeding by the United States Civil Rights Commission
not to require the right of confrontation and
cross-examination or notice of the identity of persons
making complaints to the commission. The function of
the Civil Rights Commission was described as:
Purely, ‘investigative. and fact finding. It does not
adjudicate. It. does not hold trials or determine
anyone’s civil or criminal liability. It does not issue
orders. Nor does it indict, punish, or impose any
legal sanctions. It does not make any determina-
tions, depriving anyone of his life, liberty, or
property. In short, the Commission does not and
cannot take any affirmative action which will affect
an individual’s legal right. The only purpose of its
existence is to find facts which may subsequently be
used as the basis for legislative or executive action.
363 U.S. at 441.
Even though the Commission’s investigation as to
whether voting registrars in the South had practiced racial
discrimination might result in those registrars suffering
approbrium and scorn, the loss of their jobs, and the
threat of criminal prosecution, those consequences were
found to be purely conjectural.
25
_. However, even if such collateral consequences were
to flow from the Commission’s investigations, they
would not be the result of any affirmative
~ determinations made by the Commission, and they
would not affect the legitimacy of the Commission’s
investigative function. 363 U.S. at 443.
In contrast, this Court determined that due process
required the right to confrontation and cross-examination
and the right to present evidence in adjudicative
investigations conducted, ‘by the Louisiana Labor
Management Commission of Inquiry. Jenkins v.
McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404
(1969). Although the Act under which the Commission
operated was drafted with Hannah y. Larche in mind, and
the structure and powers of the Commission were similar
to those of the Civil Rights Commission, the adjudicative
nature of the Louisiana commission compelled the
providing of fundamental due process rights.
Tt is true...that the commission does not
‘adjudicate in the sense that a Court does, nor does
the commission conduct, strictly speaking, a
criminal proceeding. Nevertheless, the Act, when
analyzed in light of the allegations of the complaint,
makes it clear that the commission exercises a
function very much akin to making an official
adjudication of criminal culpability . . . In short, the
commission very clearly exercises an accusatory
function; it is empowered to be used and allegedly is
used to find named individuals guilty of violating
_ the criminal laws of Louisiana and the United States
_and to brand them as criminals in public. 395 U.S.
at 427-428.?
ourt did not decide whether there need by provided
rules of evidence, standards of guilt or innocence, and
assistance of counsel, leaving those issues to the District
wrt on remand. It is noteworthy that there was already a limited
Kright to counsel.
“athe C
26
Consequently, the Court found that the procedures of
‘ the Commission did not meet the minimal requirements
made obligatory on the states by the Due Process Clause
of the Fourteenth Amendment. 395 U.S. at 428.
The functions of a probation and parole board in
probation revocations under the standards set out in
Morrissey v. Brewer, ___ U.S. ___., 92 S.Ct.__, 33
L.Ed.2d 484 (1972), are much more like those in in the
Jenkins case, supra, than those in Hannah v. Larche,
supra. The board is adjudicative in nature. In the case of
Respondent, it makes determinations as to whether he
associated with known criminals and whether he was
involved in a burglary. On the basis of these
determinations, it can remand him to his probationary
status or revoke that status. If it revokes, it takes from
him his conditional liberty, sending him to prison for a
period of fifteen (15) years. The Parole Board, therefore,
makes determinations depriving Scarpelli of liberty. It
issues ordérs. It imposes legal sanctions, and it takes
affirmative action affecting an individual’s legal rights. It
is not. limited to findings of fact “which may
subsequently be used as a basis for legislative or executive
action.”’ Hannah v. Larche, 363 U.S. at 441. The Board
“exercises a function very much akin to making an
official adjudication of criminal culpability,” Jenkins v.
McKeithen, 395 U.S. at 427-428, in that it determines
whether Scarpelli has been involved in a burglary and on
the basis of that determination orders a return to prison.
This ‘adjudicatory function was acknowledged and
described by the American Bar Association Project on
Standards. for Criminal Justice when it specifically
required representation by retained or appointed counsel
in any probation revocation proceeding. Standards
Relating to Probation, Section 5.4(a){ii). In_ its
Commentary to this section, the Committee report
stated: 3
am
-»: The central task of ascertaining whether the prisoner
has committed the acts alleged, and measuring the
i, gets proven against the standard to which he was
obliged to conform is precisely the business of the
~~ ¢riminal trial itself where the right to the assistance
of counsel has been recognized as one of the
“immutable principles of justice.” Indeed, it may in
“many contested revocation proceedings, the conduct
» charged actually constitutes the commission of a
~ criminal act... [I]t would seem patently at war
with the central concept.of procedural justice to
deny to a person with his liberty at stake the
opportunity to hear and meet the specific charge
him with the benefit of counsel. Commen-
tary, Section 5.4(a)ii), Standards Relating to
Probation, at p. 68.
In view of this function, it is clear that the Due Process
Clause requires that a probationer, compelled to appear
before the Board, be provided with counsel under the
rationale of Hannah v. Larche, supra, and Jenkins v.
McKeithen, supra.
THE RIGHT TO THE ASSISTANCE OF COUNSEL IS
AN ESSENTIAL ELEMENT OF DUE PROCESS OF
LAW IN PROBATION REVOCATION PROCEED-
INGS.
It has frequently been stated that the concept of due
- process is flexible and not a technical conception with a
fixed content.
“Due process is not confined in its scope to the
» particular forms in which rights have heretofore
' been found to have been curtailed for want of
_ ¥procedural fairness. Due process is perhaps the most
__» Majestic concept in our whole constitutional system.
While it contains the garnered wisdom of the past in
28
insuring ‘fundamental justice, it is also a living .
principle, “not confined’ to past instances. Joint .
Anti-Fascist' Refugée Committee v. McGrath, 341 .
US. 123, 173-174, 72%. S.Ct. 624, 95 L.Ed. 817
(1951) (Mr. Justice Frankfurter, concurring.)
In determining a proper application of the Due Process
Clause in a particular situation it is necessary that an
examination be made as to whether or not an individual
will be “condemned to suffer a grievous loss,” Joint
Anti-Fascist Refugee Committee v. McGrath, 341 US. at -
168, as well as an examination of the “precise nature of
the governmental function involved...’ Cafeteria and
Restaurant Workers Union v. McElroy, 376 U.S. at 895,
Having once examined and determined the governmental
function involved as well as the private interest effected it
is necessary to arrive at a proper balancing of those
factors. In Morrissey v. Brewer, supra, this Court found
that a-grieyous loss was present in the loss of a parolee’s
conditiortal liberty. Against this interest of the individual
in retaining his liberty as well as society’s interest
in his rehabilitation and fair treatment, this Court
balanced the State’s: —
..» 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.
_._ US. at__, 33 L.Ed.2d at 495.
Overwhelming as this interest is, the State has no interest
in revoking parole without some informal procedural
‘which will ‘assure 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.” 33 L.Ed.2d°495.
ee
: ng this same rationale to the facts presented by
this case, the necessity for retained or appointed counsel
at probation revocation hearings becomes evident.
A. The Private Interest Affected
a by Governmental Action.
As this Court held in Morrissey v. Brewer, supra, the
termination of parole inflicts a grevious loss on the
parolee and often on others.
The liberty of a parole¢, although indeterminate,
jnchudes many of the core values of unqualified
fiberty and its termination inflicts a ‘grievous loss’
on the parolee and often on others. 33 L.Ed.2d at
495,
As discussed in Section II above, probation is like
parole and frequently a probationer enjoys a freedom
even less restricted than that of a parolee. The revocation
of either status results in grievous loss sufficiently serious
to require minimal procedural safeguards. One of the
most fundamental of these safeguards is the right to the
assistance of counsel.
Under the analysis of Cafeteria and Restaurant
Workers Union v. McElroy, supra, therefore, the
probationer has an interest in not losing his liberty,
however conditional. Society has an interest, as it does
with the parolee, in “restoring him to normal and useful
life within the law” and in preventing revocation
“because of erroneous information or because of an
“qroneous evaluation of the need to revoke (probation)
_ given the breach of (probation) conditions.” Morrissey v.
Brewer, U.S.at __ , 33 L.Ed.2d at 496.
43
joka
30
B. The Nature of the Governmental
_ Function Involved.
Considering the adjudicative nature of the gover.
mental function, it is in enhancing the integrity of the
fact finding process that counsel becomes essential, both
to protect the individual faced with grievous loss and to
protect the interest of society. Miranda v. Arizona, supra,
384 U.S. at 466-470.
It is most difficult to accept Petitioner’s assertion that:
It is a fact of life that no probationer or parolee is
recommended for revocation unless he did the
things alleged against him. This is because the
probation or parole agent is so strongly motivated
against revocation that he does not recommend it
unless he is sure, . . . Petitioner’s Brief, p. 40.
As stated above, seat proceedings are adversary
proceedings in that, at least where contested, a factual
determihation must be made and a determination is best
made where in-put is available from both the agent
recommending revocation and from. the probationer
challenging that recommendation. To rest the contin-
uance of or the denial of a probationer’s freedom solely
on the of a probation agent’s good will or good
intentions is a very dangerous proposition. The danger of
permitting uncontestable administrative action is high-
lighted by this Court’s recitation of a portion of the
District Court opinion in Goldberg v. Kelly, 397 US.
254, 90 S.Ct. 1011, 25 L-Ed.2d 287 (1970). The District
Court said:
{T]he stakes are simply too high for the welfare
t, and the possibility for honest error or
irritable misjudgment too great to allow termingtton
of aid without giving the recipient a chance, if he so
desires, to be fully informed of the case against him
is re cee waa : —
31
Rao ee
go that he may contest its basis and produce
- evidence in rebuttal. 294 F.Supp. at 904-905. 397
US. at 266.
The Court in Goldberg found not only that the hearing
was required to protect recipients from unjust adminis-
jrative action but found the right to the assistance of
retained counsel to be-a right guaranteed recipients facing
termination.
In Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3
LEd.2d 1377 (1959), the Court discussed the need for
confrontation and cross-examination.
The evidence used to prove the Government's
‘case must be disclosed to the individual so that he
Jhas 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,
~ yindictiveness, intolerance, prejudice or jealousy.
360 U.S. at 496.
‘Discussing the actions of a school board in expelling
certain students who had participated in a mass protest
the Fifth Circuit Court of Appeals said:
~ By its nature, a charge of misconduct, as opposed to
“a failure to meet the: scholastic standards of the
gollege, depends upon a collection of facts
~~ concerning the charged misconduct easily colored
me. 8 ap Pont of view of the witnesses. Dixon v.
~~ Alabamha State Board of Education, 294 F.2d 150,
158 Gth Cir. 1961).
Couns *s value then in a probation revocation proceeding.
‘lies in his ability to marshal the facts, introduce evidence
Ot mitigating circumstances and in general aid and assist
Te
32
the probationer to present his case. See Mempa v. Rhay,
389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336: (1967).
Menechino v. Warden, 27 N.Y. 376, 21 N.Y.S.2d 449
(1970); United States ex rel. Bey v. Connecticut State
Board of Parole, 443 F.2d 1079 (2nd Cir. 1971); ABA
Standards. Relating to Probation, Section 5.4(a)(ii),
Commentary; Ahern v. Board of Education, School
District of Grand Island, 456 F.2d 399 (8th Cir. 1972);
Warren v. Michigan Parole Board, 23 Mich. App. 754, 179
N.W.2d 664 (1970) and Williams v. Patterson, 389 F.2d
374 (10th Cir. 1968). -
The reasoning of Mr. Justice Sutherland in Powell y.
Alabama, supra, is as appropriate and valid in the present
day in a probation revocation setting as it was then, and
truly as it has been since the legal system in this country
was initiated: For just as the right to be heard would have
been of little avail in 1932 in a hostile courtroom in
Alabania without the assistance of counsel, that right is
of little avail in this day in a revocation proceeding unless
the right to counsel is guaranteed. Just as there were
ignorant and illiterate and feeble-minded men in 1932,
there are ignorant, illiterate and feeble-minded men in
1972. It has always been recognized that:
A lawyer’s training particularly suits him to analyze
and organize for the benefit ofan impartial tribunal
evidentiary ‘matter: bearing on the occurrence or
- mon-occurrence, as well as the significance, of past
events, See Specht y. Patterson, 386 U.S. 605, 87
S.Ct. 1209, 18 L-Ed.2d 326 (1967). United States
ex rel. Bey v. Connecticut State Board of Parole,
443 F.2d 1079, 1087 (2nd Cir. 1971).
The Court in Bey discussed the value of a_ trained
ts, case tend ram The Court said:
a
33
A trained lawyer might well have discovered
‘mitigating circumstances and hidden significances
-not revealed or immediately obvious on the face of
_-Mercer’s report. For example, the Board might well
have welcomed the suggestion for a fuller
-jnvestigation of Bey’s alleged announced intent to
~ depart the state or his oblique threat to repeat his
past crimes. Perhaps Bey’s employers could have
supplied useful information as to Bey’s dependa-
-., bility and thoroughness: on the job. A review of
“ Bey’s reported letters to ‘Porter School girl students
“might have revealed different hues and motivation
~ than found their way into Mercer’s report.
. Thus, at the least, a diligent lawyer representing
"Bey before the Parole Board might have investigated
“the decisive events of Bey’s brief period of release
“and in an orderly, disciplined presentation to the
“Board, have attempted to establish facts more
“favorable to Bey than those presented by, Mercer
“and Mcliduff and have suggested their relevance to
“the four alternatives less severe than revocation
- available to the Board in disposing of Bey’s case.
» 443 F.2d at 1088.
Had the Respondent in the instant case been granted
the right to the assistance of counsel at a revocation
“hearing, the lawyer could have analyzed the factual
“gecurrences upon which the recommendation of the
‘Respondent’s supervising agent were based and the
‘lawyer could have marshalled the facts involved and
resented the occurrences in a light more favorable to the
pondent than that found in the recommendation of
pervising agent. Additionally, a lawyer could have
red mitigating circumstances which might have
d heavily in the final decision of the Department
Welfare as to whether to revoke or not. An
is obviously better suited as a result of his
34
training and his daily involvement in contentious matters
to effectively present a case before the supervising
authority than is a probationer overwhelmed by the
administrative agency.
The fact that the Board performs a predictive and
prognostic function does not depreciate the
importance of accurate factual exposition and
evaluation. Bey, 443 F.2d at 1088.
This is especially true if the probationer has little
intelligence or education, Johnson y. Avery, 393 US.
483, 89 S.Ct 747, 21 L.Ed.2d 718 (1969), or is already
incarcerated prior to the final decision upon his
revocation. Such incarceration makes it all but impossible
for the probationer to prepare his defense without the aid
of counsel, and it is a factor which has been raised by this
Court in both Powell vy. Alabama, supra, and Johnson y.
Zerbst, supra, and recognized as compelling the assistance
of counsel The Respondent was incarcerated while the
Department reviewed his probation agent’s recom-
mendation to revoke probation.
Given the adjudicative nature of the governmental
function, counsel is essential to protect the interests of
the probationer against the grievous loss of incarceration
- for a number of years as well as to further the societal
interest of preventing the revocation based upon
erroneous information. Society, as was recognized in
Morrissey v. Brewer, supra, has an interest in treating the
thereby increasing the likelihood of rehabilitation. The
societal interests are of course shared by the state, which
has a further interest in preventing erroneous probation
revocations—the great finaricial cost of keeping a mdn in
prison. Warren, Probation in the Federal System of
Criminal Justice, 19 Fed. Prob. 3 (Sept. 1955); Annual
35
, Ohio Adult Parole Authority, 1964/65 at 13-14;
Note, Parole: A Critique of Its Legal Foundations and
38. N.Y.Univ.. Law Review, 702, 705-707
(1963). (All cited in Morrissey v. Brewer) .
me . C. The Burden On Government of Providing
bese The Right to Counsel.
’ “Against the interests discussed above is balanced the
$tate’s interest in revoking probation and imposing the
prison sentence without a new criminal trial and in
conducting its revocation proceedings with minimal
expense and administrative inconvenience. To suggest, as
the Petitioner does, however, that the question presented
here-can or should be answered on the basis of economic
effect is unjustifiable. The right to be infringed—the loss
of freedom—even if only conditionally granted, cannot be
-walued monetarily. In Hague v. Committee for Industrial
Organization, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423
3 (1939), Mr. Justice Stone, concurring, said:
_ There are many rights and immunities secured by
; the. Constitution, of which freedom of speech and
’ assembly are conspicuous ‘ame which are not
- capable of money valuation. . . . 307 U.S. at 529.
“The right to the assistance of counsel in probation
“gevocation hearings may not be as conspicuous a right,
-but it, like freedom of speech and assembly, cannot be
= leasured in terms of a mill rate, as Petitioner suggests.
| # Court has held that in the welfare context, the
; ‘oven ental interests of expense and administrative
Mconvenience are not overriding when balanced against
adividual right and that the state had the capacity to
¢.costs and administrative burdens.
the interest of the eligible recipient in
errupted receipt of public assistance, coupled
36
| with the state's interest that his payments not be
erroneously terminated, clearly outweighs the stat
compelling concern to. prevent any increase in
fiscal and administrative burdens. Goldberg v. Kelly,
397 US. at 266.
Similarly, the probationer’s interest in retaining his
liberty coupled with the state’s interest that he not be
erroneously. incarcerated, clearly outweigh the state’s
competing interest in minimizing fiscal and administrative
burdens,
It should be noted that the State of Wisconsin has,
since the summer of 1972, provided juveniles in parole
revocation proceedings with the right to counsel, State ex
rel. Bernal v, Hershman, 54 Wis.2d 626, 196 N.W.2d 72
(1972), and the State of Wisconsin has also extended the
right of probation revocation hearings with counsel to
adults. Oestrich v. State, 5S Wis.2d 222, 198 N.W.2d 664
(1972)...
A lawyef’s participation in probation revocation need
not impede the flow of relevant information to the
Board, inasmuch as the reviewing official can control the
proceedings and prohibit dilatory or distracting tactics.
Counsel's proper role is to assist the Board, not to
impede it, and the Board may take appropriate
measures to assure that counsel appreciates his
limited role. and presents his client’s case accord-
ingly. Bey, 443 F.2d at 1089.
- There has never been demonstrated that the provision
of more rights in revocation proceedings, whether
probation or parole, results in fewer paroles being
granted. Sklar, Law and Practice in Probation and Parole
Revocation Hearings, $$ 3.Crim.L.C. and P.S. 174; 175,
194, Note 157 (1964). Nor will the right to cdunsel
introduce friction into the probationer-probation agent
i es : 37
relationship, which is already near an end when the
officer recommends revocation. To suggest that a
jon agent recommending revocation and the
probationer are seeking the same end seems naive at best.
They are adversaries and the probation agent as an
adversary has the whole weight of the supervising agency
behind him. The probationer, on the other hand, is alone
and needs the assistance of counsel to effectively
vindicate his right before that agency.
CONCLUSION
Should this Court determine that the question
presented in this case is not moot, it is respectfully
submitted that the judgment of the Court of Appeals for
the Seventh Circuit should be affirmed.
Dated at Milwaukee, Wisconsin the 26th day of
October, 1972.
Respectfully submitted,
WILLIAM M. COFFEY
DENNIS P. COFFEY
152 West Wisconsin Avenue
Milwaukee, Wisconsin 53203
Attorneys for Respondent
Of Counsel
_ JOHN F. EBBOTT
- Freedom Through Equality
_ 152 West Wisconsin Avenue
_, Milwaukee, Wisconsin 53203
p
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