*1 24, 1971.] Junе No. 13489. Bank. [Crim. Habeas R. TUCKER on Corpus.
In re PRESTON
Counsel *4 Tucker, Redland, Preston R. under pro. per., Dorsey appointment Court, the by for Petitioner. Supreme General, Maier,
Thomas C. Lynch, Doris H. Assistant Attorney Attorney General, Haws, Edsel W. Nelson P. and David Kempsky Cunningham, General, for Deputy Attorneys Respondent.
Opinion BURKE, J. the of his Petitioner challenges parole by He Authorty.1 was paroled from Prison Folsom in January having served a portion sentences in 1949 for the imposed commission of three first degree robberies and an assault with intent to commit murder. On December his parole was canceled and his term sentence maximum, reset at the life aAt imprisonment. 20, 1969,
on February was advised petitioner of the of his conditions which his violated, officers that reported he had namely, left the having of his county residence without prior approval, having a firearm. possessed Petitioner admitted the first but violation refused to admit or deny second. The Adult concluded Authority that he had violated both conditions and revoked his on those grounds.
In his petition habeas that corpus, petitioner the sole alleged evidence before the Adult his his possessing firearm was uncorroborated own duress, confession exacted officers by police through other by contentions raised petitioner rejected by were considered and 1 Various this court in prior petition connection with a by petitioner filed re need not be considered here. Miranda under threats and and without warnings required promises, Arizona, 1602, 10 A.L.R.3d U.S. 436 was Since the claim that his statement People 974]. disputed petitioner’s and other we receive evidence on that involuntary, a referee to appointed Gomez, (See factual raised re 2d questions Cal. pleadings. 33].) 414 P.2d [51 Cal.Rptr.
After found referee that the Adult had relied hearing, exclusively statement that he had a firearm upon petitioner’s possessed However, while on parole. referee also found that statement was free and voluntary. a referee’s are not Although findings binding court, this are upon they entitled to if substantial great weight supported Branch, (In evidence. fn. 1 case, In the instant both testified police officers that petitioner’s duress,
statement was made without threats or kind.2 any promises we Accordingly, referee adopt finding was statement freely voluntarily given by petitioner.
The referee also found that the officers had failed give petitioner Miranda, under since did not warnings required they consider to be case. We need not reach petitioner suspect *5 the whether or not was entitled to these question petitioner warnings, it is now settled that the Adult consider and act Authority properly may a upon voluntary confession or statement obtained from a without Martinez, (In first him of his re apprising rights. constitutional Cal.3d 463 P.2d Cal.Rptr. We have concluded that the Adult considered Authority properly statement in whether his and that deciding to revoke petitioner’s parole, Code, the 3063) statement (Pen. constituted sufficient cause to § justify revocation. parole
Petitioner further contends that he was denied due of law the 20, 1969, Adult on “forced Authority February to petitioner before them without of his appear informing petitioner without rights benefit of counsel. . . .” Petitioner misconceives the nature and purpose revocation hearings before the Adult parole Authority.
It is true that the revocation the Adult parole procedure adopted investigation 2 Petitioner’s of police statement was elicited in the course of an Oakland interrogating initially murder. The officers explained petitioner to that he was not a suspect, police and that the simply pos were trace attempting to the chain of weapon. of the petitioner session sessiоn, admitting had executed the pos statement After agreed one of the officers to parole peti recommend authorities that parole tioner’s not be revoked. The denied that petitioner’s officers statement was upon made agreement. in reliance this or trial criminal to an ordinary features common bears certain Authority are these parolees procedures, adversary proceeding.3 Through other given are nature violations and oppor parole informed the existence good or Since admit them. deny, tunity explain on habeas such corpus, pro be cause to revoke a parole may challenged review but will impart “not needless discourage judicial cedures only Gomez, (In re its dealings the state’s with parolees.” sense of fairness in 2d fn. Cal. However, common to use of and nomenclature certain procedures trial character of criminal does alter fundamental parole are “not As itself these hearings. Authority acknowledges, procedures Statement, 1), rests and revocation law” (Policy p. required Adult out discretion of the its Authority carrying respon- entirely Authority over Under Code parole Penal section sibility matters. notice, “full cancel revoke without is or given suspend, power to order The sole statutory returned prison any prisoner parole.” to revoke is section which upon power restriction provides cause, be or cause that “no shall revoked without suspended must stated in the order revoking or suspending parole.” that the Adult Authority may has held revoke parole
This court Gomez, 591, 594; In re supra, 64 Cal.2d (In notice without 1080]),4 and the McLain, 357 P.2d Cal.2d 84 [9 Code, (Gov. Act Administrative Procedure California provisions proceedings et are inapplicable seq.) § 3 Thus, proceedings, has adopting the criminal nomenclaturе given whereby each prisoner “calendar” advance established *6 give the an for “hearing” prisoner opportunity “personal to be to a of a held notice “adjudicating” a Authority step as in panel a of the Adult final appearance” before Prior, hearing, prisoner to the the is with a parole. of his “served” the termination him; “charges” against thereupon to plea” he is asked to “enter a copy of the made he charges; “guilty,” plea accepted inquiry; that further if pleads these if he is without charge, panel pertaining the “evidence” to each includ pleads ing makes its Resolution No. 279 guilty,” “not the reviews Thereafter, documentary by prisoner. panel the the oral or evidence submitted (See “findings” regarding parole. Authority “order” and enters its Adult 7, 1969]; Authority Policy 22 July Adult Statement No. [rev. 3, 1969].) [June McLain, 78, 85, “The provisions stated in In Cal.2d deter 4 As for redetermining granting, suspending mining not violate revoking parole and for or do sentence requirement due because of the absence of a for notice or hear hearing ing. given given a to required proceedings The notice of was and be in original conviction proceedings which resulted in conviction. Those resulted a fixed, indeterminate, imposition of a was to sentence that and until amounted provided question. re a maximum sentence crime in When the sentence, action, very things, a duces maximum its in the nature of tentative and may changed be for cause." Hyser v. Reed Code, cf. (a), subd. (see Gov. §§ L.Ed. 254], den. cert. D.C. F.2d [115 App. Schoengarih, 66 Moreover, In re 446, 447]). 2d 84 S.Ct. 200], sugges we rejected 425 P.2d
Cal.2d Cal.Rptr. requiring that were in the judicial proceedings tion nature hearings counsel, “The stating proceedings presence nature, administrative are determination agency’s that wholly (See also a act.” of sentence or conditions of is not length judicial Sandel, 806].) In re 412 P.2d Therefore, the Adult internal characteriza Authority’s notwithstanding “adjudication” tion as proceedings involving revocation of cannot be a act. This fact considered process, judicial would seemingly these from the deferred distinguish sentencing proceedings involved Mempa Rhay, procedures 254], relied was Mempa, defendant brought upon petitioner.
before the trial a court for on the of his probation of his imposition which had sentence, been deferred during proba tionary As these period. constituted continu proceedings merely defendant, ation of the original judicial instituted proceedings against United States Court held that had defendant be Supreme right repre counsel, sented in court that stating counsel extends to right “every of a stage criminal where substantial accused proceeding rights criminal (389 be affected.” U.S. at p. court p. stressed that counsel’s assistance would be to influence required “judicial (the discretion” trial court was authorized to make recommendations the Board of Prison Terms and Paroles defendant’s actual regarding prison term) protect defendant’s (such “legal rights” appeal).
(389 U.S. at p. However, L.Ed.2d at 340-341].) it is pp. significant that the court did not suggest counsel would required during subsequent administrative when stage the board itself determines the actual term which defendant must serve.
The California courts recognized to Mempa that prior counsel’s presence was at required judicial all proceedings involving of sentence. imposition Perez, (In re 65 224, Cal.2d 414, 6]; 418 P.2d Cal.Rptr. [53 Klein, In re 197 58 71].) However, Cal.App.2d we have Cal.Rptr. [17 that the acknowledged Mempa case “is to cases of inapplicable termination of conditional release which involve no such such sentencing [citations]” as Marks, parole revocation re (In 31, 47, 2d proceedings. 71 Cal. fn. 11
178 Martin, 524, v. 1 Cal.3d 1, 441]; People St. 453 P.2d see Cal.Rptr. [77 166, 390].)5 538 463 P.2d Cal.Rptr. [83 occur in Mempa,
Unlike the situation in revocation proceedings parole and both of conviction an wherein entirely setting, nonjudicial judgment court, sentence have no further been imposed by judicial proceedings but never revocation is one gratuitously take itself place, Authority Adult offered by pur theless and conducted quite properly accord the to its internal rules its suant own of procedure desire Nor be heard. does revocation to. prisoner opportunity of the any prisoners involve “substantial” or rights “legal” prisoner, are to be returned under legal remain custody subject Villareal, Code, 3056; People v. 262 (Pen. at time. Cal.App. prison § Hernandez, 610]; People v. 438, 2d 447 229 Cal.App.2d Cal.Rptr. [68 100].) matter of considered to be a grace, 149 Parole is [40 Cal.Rptr. to the and not a and is committed entirely discretion privilege right, 295, 300; (In Schoengarth, the Adult Authority. v. 113], People Ray, cert. den. 366 69 Cal.Rptr. Cal.App.2d [5 U.S. 937 L.Ed.2d 81 S.Ct. [6
Thus, a
of the
have
have
courts which
considered
majority
question
that the
Mempa
held
case does
counsel
require
presence
Court,
(See
Pope
Superior
v.
proceedings.
Cal.App.3d
488];
Johnson v. Stucker
203 Kan.
218];
39-40],
P.2d
den.
cert.
deemed essential for the of one accused of a are not inevi crime protection tably to one convicted If the accused has been guaranteed crime. duly tried, defended, fairly sentenced, convicted and and has been afforded rea conviction, sonable his demands of due the essential opportunity appeal been fulfilled. Once has ceased have adjudicative process and the commenced, rehabilitative it becomes the stage responsibility determine, Adult Authority discretion, in its terms and appropriate conditions for the release of the offender to At this due society. stage, only that the Adult requires its Authority discharge responsibilities good faith, neither nor arbitrarily review capriciously, judicial McLain, remains availаble to correct (See abuses of supra, discretion. re 78, 85-87.) Cal.2d Moreover, in determining whether or not a particular procedure violates due we process requirements, should bear in mind the probable costs and involved in consequences excessive casting burdens adminis upon Martinez, trative (In re machinery. supra, 641, 649-650; Hannah Larche, supra, “If, demands, each pris appellant oner is to with counsel we appear that the admin reasonably anticipate istrative burden notice, of advance (including preparation subpoena ing witnesses, cross-examination of of counsel and arguments prepara tion of written decisions) increased, would be enormously accompanied the usual attendant delays Oswald, upon clogged (Menechino calendars.” 403, 410, 430 F.2d in the discussing context problem release hearings.
The transformation of an essentially informal, post-adjudicative, admin- istrative into a procedure judicial proceeding, with all the concomitants of trial, criminal nonjury could lead ultimately to the abandonment of the benevolent practice releasing to the prisoners constructive custody Marks, (In officers. Cal.2d see fn. *9 Court, The 636,
Pope v. Superior Cal.App.3d determining is with the responsibility entrusted grave to, released and returned what should be under circumstances prisoners from, or restriction upon power undue interference with Any parole. inhibit its substantially the Adult to revoke could cases, to the ultimate in future willingness grant privilege the entire detriment of penal system. entitled conclude that was not we
Accordingly, petitioner at of counsel revocation hearing. assistance writ of habeas to show cause and The order is discharged petition is denied. corpus J., Sullivan, J., McComb, Mosk, J., J., concurred. C. and
Wright, MOSK, J. The I concurin Justice Burke’s opinions, opinion. dissenting however, tоme add this impel postscript.
Justice officers are malevolent functionaries Tobriner implies dedicated of normal human existence deprivation by parolees in their Justice in the adhere to a charge. Peters asserts those of us majority fiction “so divorced be fair- from that it cannot tolerated reality by man.” with minded It is two learned their my commendably colleagues, gaze stars, fixed on the who are over reality. tripping servants, officers, faithfully are perform like all public presumed Parole would are reasons do so.1 duties, they there pragmatic why and several their state, First, these times austerity, economy particularly burden of and suffers the conversely, the release of from prisoners, benefits inmates. increasing whenever it must incarcerate numbers prison support in recent use of parole procedures been markedly There expanded has Second, desirous of are understandably demonstrating officers years. works; the is measured those who achieve system merit of that parole Third, numbers revocations. successful adjustment parole, “works evidence that the who is no absolutely there empirical normal law-abiding lives . . family generally with his . pursues job, be indispensable, profession are thus and the should probation 1 Parole and officers numbers, great salary. responsibility Its vastly prestige, elevated in counsel, encouragement, warning, befriending, many greater. By their should offenders, touch, supported are in new life efforts they keep with whom one-time (Dr. Menninger, experienced guides Karl by these skilled and and friends.” Clark, pp. also see Crime in America p. Crime of Punishment 237-238.) *10 violator, mo- and no dissent, 193) is deemed a post, (Tobriner life” p. of an person such for officers return exemplary
tivation seeking admitted Tucker instant case has the petitioner been suggested. prison life. lаw-abiding a indication of normal of dubious gun, possession the due Justice Tobriner’s literate discussion of process requirements heard, notice, of to be is more timely and and an adequate opportunity dissent, and than real of his its academic here. The thrust depar- apposite norm, ture of counsel at from is the insistence presence upon He would counsel for require every indigents proceedings. parolee, obtain at state representation expense. is Justice Burke has demonstrated that counsel not
Although required constitutional, the Adult under case before or statutory existing law, it can be arguendo conceded benefits could accrue from salutary of counsel such at administrative Indeed I would presence proceedings. that as ideal an either be agree skilled member of bar should available for or hire out provided treasury every adult and public every with a juvenile or criminal civil that has of problem slightest potential detention, him to subjecting physical loss moral humiliation. monetary The come when there is day may adequate lawyer population sufficient public to achieve that I sophistication ideal. more regret, perhaps than my dissenting brethren who fail to consider the of problem logistics, that the does day not on the will be yet horizon. Nor it hastened appear fiat. by judicial
A few statistics be may instructive. The California institution penal 28,462 was population 6,200 at of an increase of beginning felons over the The decade.2 annual preceding increase in the number of has inmates ranged from slight as much 13.5 years some to as as percent, as was the case 1958.
Ninety-two all of felons released from are percent prison placed The current parole. 10,764 1,069 consists men population women, increases of 59.1 percent 65.7 over the respectively preceding 10 years. male, Eighteen and 15.3 percent the female percent are found to be parolees violators within the first their very year of parole, some infractions by conditions and some conviction other crimes. After the first year, violation ratio rises Between sharply.
45 and 51 of all have their percent parolees after the parole suspended first and before the second year of the fifth as parole, as year many are determined to be percent violators. 63.9 figures 2 All Corrections, reported by used herein were Department State
California, in its most publication, recent California Prisoners 1968. every For bleak as it seem at first blush.
The quite picture without additional 23 are reinstated suspended, paroles approximately circumstance reported by Department confinement. The most common found, unknown; whose are of Corrections is the parolee whereabouts when he forth- has while will reinstated large, and if he been law-abiding with. here data our are not have relevance to We foregoing problem. Tucker; view
concerned with the of Preston we must difficulties merely *11 4,000 broad of than each year, the more spectrum parole suspensions that and the system and of number of some in out of parole move parolees orderly three as an two or times the difficult to adjustment they attempt society.
Formal the than hearings, with counsel hired or for more provided, of would alone annually undertaking parole suspensions require 4.000 But that if there is a right heroic is For only beginning. proportions.3 counsel at or no in reason parole suspension proceedings, Adult law or can be advanced before the logic why appearing prisoner, his Authority as an to have indeterminate seeking for and applicant parole A determinate, sentence made should not also have legal representation. rule felon for counsel for a of but not facing providing suspension a felon be would constitute invidious discrimination and seeking parole defective. Thus we of the must consider constitutionally practicality of counsel Adult for before the presence every year every appearance á who has his every served minimum sentence prisoner thereof. percentage effect brethren are that my dissenting is in conclusion inescapable
The 32,000 annually: counsel for potential appearances insisting upon 4,000 This monumental revokees. parole applicants4 28.000 stagger would imagination. requirement necessity logistical problem, compound To hearings, but has no state allow counsel at few states 3 A (e.g., has comparable approximately California to California proceedings volume many as and over six than New York times more revocations percent (1966-1967) (The 408)). Michigan, p. which Pennsylvania Book the States year has counsel, or so revocations each “only a of the thousand permits in handful (Radish, The Advocate counsel.” appear elected to at a with the offender Expert-Counsel Process 45 Minn.L.Rev. in Peno-Correctional out, revoca commentary 838.) points “given multitude The same for inordinately impractical may prove expensive it and otherwise proceedings tion (Id. 839.) provide p. counsel.” at the state above, figure slightly prison population. total As indicated 4 This less than the is parole. percent ultimately of all inmates are released prison located several correctional institutions. Not one prison meets state, the nine most counties in the counties populous counsel, number of of the bar members greаter supply practice. is, be.5 the demand limited as it does not exist where would effective, be counsel are should If Hearings, adversary. permitted should be available to defend it would seem that other counsel parolee, where Therein lies still another accusatory evidence. present problem: find the for of cases? Parole will California these thousands prosecutors if officers are and even the skills for nonlawyers, they possessed adequate the United States Board Parole parole proceedings, complained “. . . to of revocation hear- hundreds require [parole officers] appear convened instances at from ings annually, distant areas under many places it their would render them to on their supervision, impossible carry (Sklar, normal duties.” Practice in Law and Probation Revoca- Parole Hearings J.Crim.L., tion C.&P.S. v. Wainwright
Since Gideon
(1963)
478 L.Ed.2d 1758]; 84 [12 S.Ct. Miranda v. (1966) Arizona 384 694, U.S. 436 974]; L.Ed.2d [16 S.Ct. 10 A.L.R.3d Swenson v.
Rosier (1967) 386
996];
U.S. 258
L.Ed.2d
87 S.Ct.
Anders v.
[18
(1967) 386
1396];
U.S. 738
L.Ed.2d
People
[18
87 S.Ct.
California
Feggans (1967)
Mempa Rhay thoughtful
Few
observers
with the
results of the fore
quarrel
salutary
But
decisions.
in these
years
increased demands
going
past eight
upon
a small
legal
of which
skilled in the
profession—only
percentage
is
criminal law—have been
are
overwhelming. Public defenders
inundated with
cases, and
are
counsel
harried. The
of work has
court-appointed
quantity
rendered;
reflected in the not
been
dubious
infrequent
quality
service
courts on
reviewing
grounds
have
petitions
representation
inadequate
2,220
Center,
5 There are
inmates at the California
located at
Conservation
Susan-
ville, 293
metropolitan Bay
County
miles northeast of the
all of
Area.
Lassen
eight
there are
attorney.
members of the
Bar.
State
One of those members
is the district
Cal.
(People v. Ibarra
As a commentator out in connection thoughtful pointed “. . one has what burden this additional decision: . no examined sort of have on of the bar whose resources might members requirement impose been taxed recent The vast already seriously by rulings. expansion Sixth counsel has created burden for Amendment’s an immense bar. Aid and Public Defender while multi- organized Legal programs, with have scratch the great been able to surface rapidity, not plying the need for defense last has of Gideon’s qualified lawyers. The progeny (Read, Lawyers been .” certainly yet Lineups seen. . . 339, 377.) L.Rev.
U.C.L.A.
dilemma.
There are three alternatives to
The
this
first is to
unfolding
desirable,
increase our
This is
supply
lawyers.
eminently
obviously
but
recruitment
law schools will not be felt for some
years.
program
is
second
of the law. To a limited extent
permit
practice
unlicensed
this was
United States
Court
Johnson v.
permitted
Supreme
Avery (1969)
(also
see
747]
640]),
In re Harrell
TOBRINER, J., I concurin denial of Concurring and findings writ of habeas in the case. From the evidence corpus present I do not that a revolver of this court’s referee possessed question petitioner while on that he admitted and in orally writing voluntarily parole, Penal that of this in violation of Code section possession weapon the Adult could consider admission Authority properly petitioner’s (In his Cal. revoking parole Martinez 734]), 463 P.2d and that Rptr. was justified because of such revoking firearm. parole possession proscribed I dissent however, from the insofar as it majority suggests opinion, the Adult Authority need not conduct revocation parole proceedings accordance with the minimum of due of law. char- requisites process By acterizing Adult Authority’s as “administrative” and not procedures “judicial” “a matter of considering parole grace, privilege not a right,” majority seek to the Adult unjustifiably remove from the established strictures of our constitutional system. must use of such labels as a substitute for reject conclusory
We careful and reasoned between the analysis relationship purposes revocation and the parole process procedural protections apply those Such an proceedings. indicates that analysis unavoidably parole be conducted must in accordance with the elemental fairness which our tradition of Anglo-Saxon has encased in the justice of due concept process.
1. The present system. commences when officer has reasonable cause to believe that a has violated the conditions of his If the parole. officer believes that the violation is sufficiently serious to revocation,1 constitute cause for he the violation to may report his unit If the supervisor.2 agent and his conclude that supervisor there is “reasonable cause to believe that has violated his pаrolee] [the and his further does not liberty with welfare or comport public safety,”3 parolee is taken into in the custody placed county jail cursory parole supervision capricious. Many parole agents 1 “Even is often cases; one 15-minute interview per per typical. handle more than The girl, month man is life, agents parolee’s marry can also rule a entire forbid even him see or his usually pain reimprisonment—a unappealable by parole all on decision made agents, rarely who thus have effect repeater examined on the rate. To test their *14 Criminologists judgment, Takagi James hypo Robison Paul once submitted ten agents parole-violator Only thetical cases in California. five voted to reimprison men; (The disagreed all half wanted to some ten return men but on which ones.” Prisons, (Jan. 18, 1971) Shame Time Comment, Hearings—Pro Parole Revocation Justicia or 2 See Pro Camera Stellata? 319, 320-321; (1970) Council, 10 Santa Sentencing Clara Law. Judicial Insti (1969) (remarks Superior Judges tute Kerr). Authority for Court of Adult Chairman Authority (1965). 3 Adult Resolution No. 256 Penal Code section 3063 provides parole cause, “No be suspended shall or revoked without which cause must be stated revoking in the suspending parole.” order or arrested, without of bail.4 If the been
facility has possibility already parolee the officer “hold” be released on so that the cannot may place parolee violation, officer’s bail.5 The written alleged parole report parole administrator, with the comments of ihe unit and district together supervisor submitted are then to the Adult for consideration at the Authority weekly of a Parole and meetings (P&CS) Services Community panel.
Two P&CS Adult member and one one panels, composed Authority each and Los hearing meet in both Francisco representative, Friday San consider and to decide whether Angeles officеrs reports should be custody in back on or have their cases set parolees placed for A may hearings panel request Vacaville.6 officer who filed a at the but the P&CS report appear proceedings, considers and the ordinarily only officer’s written com- panel report ments of his receives no notice of the supervisors.7 The parolee proceeding and does not Each between five considers two and panel appear.8 revocation, at each If the finds “cause” it meeting. suspensions panel sets a date for a revocation and orders the transfer hearing, suspends parole, to the Guidance Center at Vacaville.9 parolee Reception Parole revocation are conducted at Vacaville hearings within approx- after imately the P&SC The days receives proceeding.10 parolee specific notice of the him and charges against If he may personally denies appear.11 charges, reads to the representative the facts on is based.12 charge The then written informa- present tion his own oral his case.13 testimony support 4 SeePenal Code sections 3060. 5 Milligan, Hearings Parole System Revocation and the Federal California 18, 20; Corrections, Cal. Western L. Rev. Department Agent Parole Manual (1971). IV-30-IV-36 6 Assembly Procedure, Interim Committee on Criminal Parole Revocation Pro Council, page cedures Judicial Sentencing Institute for Superior Court
Judges (1970) (remarks page Kerr.) Authority of Adult Chairman
7 Id. Dyke, Hearings 8 Van Right Parole Revocation The to Counsel California: 59 Cal.L.Rev. 1220. We are indebted forthcoming to this publication for a thorough study of Adult Authority procedures. 9 Comment, Law., supra, 319, 10 Santa Clara 321. Council, Sentencing Proceedings 10 Judicial of the First Institute for Superior Court (remarks Authority Brewer.)
Judges pages of Adult member (1969). Resolution No. Counsel, Right Hearings Dyke, 12 Van Parole Revocation California: supra, 59 Cal.L.Rev. 1221. 13 Adult Resolution No. 279.
187 basis officer, suspension, The whose forms the report does see often not and hearing, parolee never appears considers.14 and other written material which representative the report not may bring and the witnesses parolee No to support charges, appear him.15 The witnesses against witnesses in his own behalf or cross-examine at the revocation hearing.16 counsel may by represented attend member of the Nor other may parolee’s attorney any public as an observer.17 No record is hearing proceeding.18 kept The revocation 15 hearings run between and 30 ordinarily minutes conducted are two Adult one hearing While representatives.19 a case considers representative the other questions prisoner, repre- sentative himself with case acquaints following reports calendar. The alternate in cases.20 representatives reading one full Although only can devote attention representative particular case, both representatives concur in the to revoke ordinarily decision The decision rest on in the parole. information written reports never at the presented hearing.21 indicates that the only That decision has been found guilty charges him22 against prepon- derance of the evidence23 and does not state the reasons for the decision.24
The California Interim Assembly Committee on Criminal Procedure summarized the in this recently state: 14 Comment, Law., supra, 319, 10 Santa Clara 322-323. 15Id. 16 Assembly Procedure, Interim Committee on Criminal Parole Revocation Pro
cedures, supra, page 4. Dyke, Hearings Counsel, 17 Van Right Parole Revocation The California: 1215,
supra, 59 Cal.L.Rev. 1221.
18 Seefootnote 24 infra. Dyke, Hearings Counsel, 19 Van Parole Right Revocation California: 1215,
supra, 59 Cal.L.Rev. 1221. 20 Assembly Procedure, Interim Committee in Criminal Parole Revocation Pro
cedures, supra, pages 3-4.
21Comment,
Law.,
319,
10
Clara
Santa
323.
22 SeePenal
(1960)
Code section
re
In McLain
55 Cal.2d
86-87 [9 Cal.
Rptr.
P.2d In re Cal.2d In re Smith 33 Cal.2d Payton P.2d In re 197 [169 361]. *16 unit and his this entire from the time the officer “During process, parole violation to the time when first decide to the alleged supervisor report maximum, without formal rights. resets term at is his panel counsel, notice, he has no to Under California law he need not be right given witnesses against witnesses and to cross examine no to no right right present Indeed, some of the most important stages procedure, him. during does have And when he finally does not even have the to be he right present. or cut for a month more to be he has been off right usually present his case. Assuming that he have received in from any help might preparing circumstances in he is innocent there are assuming mitigation or compelling case, he will need to the evidence way his he has no marshalling he will be of miles from his home convince the hundreds panel. Usually will no one he can on to of the violation. There rely the scene alleged evidence, witnesses, or advise him on how to his interview gather present confront, can for himself and he is forced to case. He only speak witnesses, at but sheaves of he has never even looked reports reports themselves are the of a officer who wrote them after he product parole in the initial decision to revoke There is no toway participated parole. observations, check officer’s no to evaluate way reliability parole sources, his аnd no to determine what conscious reliability way he motivations have dictated what or left out of or unconscious put short, He is called before impotent. panel his report. which, hears, of the cases it and his revokes statistically, 98% parole is his own ability only safeguard argue.”25 procedural revocation. process applies parole 2. Due in the of this state have ruled the due clause Courts past does not of the Fourteenth Amendment pro- apply above, the Adult has itself established As described ceedings.26 Procedure, 25 Assembly Criminal Parole Revocation Pro Interim Committee on cedures, supra, pages 4-5. Gomez, (no supra, right hearing 64 Cal.2d to notice or on 26 In re Dorado, revocation); People supra, (no right 359-360 62 Cal.2d notice or McLain, revocation); (no supra, right hearing In re 55 Cal.2d on Smith, revocation); supra, hearing In re 33 Cal.2d 803-805 notice or (no right hearing length to notice or on determination of sentence and revocation); Payton, supra, fully (parolee apprised see In re 28 Cal.2d “was charges against granted hearings prior of all of him and was thereon to the” (9th 1967) parole); revocation of see Sturm v. Cir. California 446, 448; (9th 1967) Williams v. Dunbar 377 F.2d 506. Prior to F.2d Cir. parolee charged parole possessed with a of the terms of violation his statutory produce to notice and to a he could evidence (In re Etie 27 Cal.2d witnesses in his behalf. scheme, present statutory procedural 78, 84-85; The rights. first enacted basic eliminated those 758-759; McLain, (27 pp. Cal.2d at see In re 55 Cal.2d Smith, 797, 803.) In re *17 some minimal revocation which affords by grace pro- process notice, to for the including opportunity cedural parolee, protections tribunal, and the opportunity before decision-making impartial appear basic extremely Yet even these pro- oral and written material. to- presеnt and may presumably “not cedures are supposedly required law,”27 this court of majority at the terminated of the option Authority. the Adult Authority’s rationalize this by characterizing
attempt
position
and not
by considering
as
procedures
“administrative”28
“judicial”29
The invocation
and not a
“a matter of
grace,
privilege
right.”30
however,
than
it does not
labels,
avoid analysis;
provide
of
does no more
of the
constitutional
the basis for careful consideration
threshold
question
hearings.
of
due
whether
process
applies
tribunals,
other
must ob-
like all
administrative
Authority,
The Adult
serve at
the basic
due
The elements
least
elements
procedural
process.31
but there remains
due
with the nature
vary
proceeding,
(1969).
Authority Policy
No. 22
27 Adult
Statement
People
166,
(1970)
524,
Cal.Rptr.
v. Martin
1
28 See
St.
Cal.3d
538
463 P.2d
[83
390];
Schoengarth
295,
600,
200];
(1967)
In
Cal.Rptr.
re
66
304
425 P.2d
[57
Cal.2d
412,
(1966)
462,
806];
In re Sandel
64
Cal.Rptr.
Cal.2d
415-416
412 P.2d
[50
Ray
People
(1960)
64,
v.
181 Cal.App.2d
Cal.Rptr. 113].
68 [5
Martin,
Sandel,
People
538;
29 E.g.,
524,
1
St.
In re
Cal.3d
64
v.
412,
Cal.2d
415.
People
Ray, supra,
64, 69;
v.
Cal.App.2d
(1954)
30 See
181
re McManus
In
123
395,
490,
Cal.App.2d
(1935)
403
Escoe v.
P.2d
Zerbst
295
[266
929].
U.S.
492-493
1566,
observed,
1568-1569,
L.Ed.
accept
[79
55 S.Ct.
“we
petitioner’s
818]
do not
Constitution,
privilege
contention
apart
has a basis in the
from
statute.
suspension
Probation or
grace
of sentence comes as an act of
to one convicted of a
crime,
may be coupled
Congress
with such conditions in
its
respect of
duration as
may impose.” This statement of
Cardozo was dicta
so
applied
Justice
far as it
Escoe,
decision in
court’s
and does not
parole.
even mention
When
United
Mempa
Rhay
Supreme
(1967)
128,
States
L.Ed.2d
Court held
v.
U.S.
134-135
389
[19
336, 340-341,
254],
probationer
that a
had the
to appointed
(see
probation
hearings
Daugherty
(9th
counsel at
1970)
v. Craven
Cir.
6;
(4th
1969)
1316,
422 F.2d Hewett v. State North Carolina
Cir.
415 F.2d
1322-
(1960)
816,
737,
In
Turrieta
Cal.Rptr.
681];
819
356
[8
P.2d
(1968)
143,
20];
re Cleaver
Cal.Rptr.
266 Cal.App.2d
160-161
In re Koebrich
[72
(1967)
Cal.App.2d
355]; Perry
256
1
(1967)
fn.
v.
[64
Williard
1020]),
no doubt
requirement
held,
Court has
As the United States Supreme
adjudicative proceeding.32
“
undefinable,
are
‘Due
an elusive
Its exact boundaries
process’
concept.
Thus, when
content varies
factual contexts.
its
according
specific
or make
determinations
agencies adjudicate
binding
governmental
individuals,
that those
affect
it is
directly
legal rights
imperative
been associated with
use the
which have
agencies
procedures
traditionally
*18
hand,
On
when
action does not
the other
judicial^process.
governmental
a
fact-finding
of an
as for
when
partake
adjudication,
example,
general
conducted,
the full
is
it is not
that
investigation
being
necessary
panoply
Therefore,
can be said
used.
as a
it
judicial
generalization
procedures
that due
embodies the
rules of fair
which
differing
play,
through
associated
have become
with
years,
differing
proceedings.
types
that
Whether
Constitution
a
obtain in a
requires
right
particular
specific
a
of factors. The nature of
proceeding depends upon
complexity
involved, the
nature of the
and
alleged
possible
proceeding,
burden on that
are all
which
into
considerations
must be taken
proceeding,
(Hannah
420,
1307,
v.
(1960)
account.”
Larche
363
442
U.S.
L.Ed.2d
[4
McKeithen,
1321,
1502];
411,
80
supra,
S.Ct.
Jenkins V.
395 U.S.
426
404, 419];
225,
Hyser
L.Ed.2d
v. Reed
318 F.2d
251-252
[23
Bazelon,
J.).)
and dissent
[115
C.
App.D.C.
(concurring
opn.
254]
Parole revocation
involves
factual
which
clearly
determinations
specific
affect
directly
the individual’s
to remain on
substantially
ability
parole,
than “a
rather
or
general
investigation”
faсt-finding
rule-making proceed-
Hence, we need not
the Adult
ing.33
own characteri-
rely upon
Authority’s
zation34 of
in order to find
adjudicative process
that adjudication occurs and to declare that “it is
that those
imperative
agencies use” at least the basic
been
have traditionally
“procedures
associated with the
(
Even though parolee 302; 295, (see Schoengarth, supra, 66 Cal.2d In re from released prison 247, 673, 254 Commission 65 Cal.2d [53 Sokol v. Public Utilities 368, 265]; 358, Winship, supra, 377-385 L.Ed.2d cf. In re 397 U.S. Black, J.). (dissenting opn. of 382-387] McElroy (1961) 367 894-895 Workers v. 32 See Cafeteria 1743]; 1230, 1235-1236, McElroy (1959) v. 507-508 Greene 360 U.S. 1396-1397, Davis, Law Treatise 79 S.Ct. Administrative 7.01-7.20, pp. § § 407-512. Reed, Hyser supra, dissenting (concurring 33 See v. 318 F.2d Bazelon, J.). opn. of C. 34 Adult Resolution No. 279. Smith, 33 Cal.2d 87; McLain, In re Cal.2d re mat as “a be characterized itself
803-805), might even though parole the Adult follow that does not not a it right,” grace, privilege ter of without regard shall be revoked decide whether can due due The essence process.35 procedural fundamental requisites (Ohio action.” individual against arbitrary “the protection 292, (1937) Com. v. Public Utilities Telephone Co. Bell Education Board 724]; see Slochower L.Ed. 637].) We 692, 700-701, 76 S.Ct. L.Ed.
(1956) 350 U.S. not act arbitrarily the Adult Authority may have long recognized McLain, supra, (In “whim, or rumor” in revoking parole. caprice, upon (9th Corrections Cir. 87; Department Dunn California 1968) F.2d 340, 342; (9th v. Dickson Cir. Eason 1968) 401 F.2d D.C. 4; v. Reed 289 F.2d App. Glenn fn. Fleenor v. 1954) F.2d Looney (10th Cir. 85]; Freedman v. *19 982, due may 1941) Procedural (6th process Cir. 116 F.2d
Hammond Adult exercise of the the arbitrary well afford the means for only preventing to revoke Authority’s parole. power when Court established that govern-
The United States
has
Supreme
an in-
the life of
will
or
affect
injure
substantially
mental action
seriously
dividual,
conduct
its
in
must
adjudicative proceedings
government
due
with the basic
of
The
accordance
process.36
requisites
procedural
reach far
certainly
beyond
effects of
consequences
which the
Court has
actions for
already required
Supreme
governmental
For
the courts have
of due
example,
required
process.
procedures
to follow
mandates of due
when
governmental
authorities
seek to
revoke
clear-
discharge
security
they
employees,37
public
Authority, supra,
(concurring
35 Sturm v.
F.2d
450
opn.
395
California
Browning, J.).
Appeals,
(1926)
v.
36 See “Goldsmith
United States Board
Tax
270
117
U.S.
(right
public
practice
of a certified
accountant
to
before the Board of Tax Appeals);
Allen,
Hornsby
(C.A.
1964)
(right
v.
liquor
295-296], the United States
Court
the distinction between
rejected
Supreme
due
“The con
privilege
determining
application
process:
stitutional
cannot
argument
be answered
challenge
assist
public
’
ance benefits
‘a
not a
v.
Shapiro
Thompson,
are
“privilege”
“right.”
(1969).
394 U.S.
n. 6
Relevant constitutional restraints apply
as much to the withdrawal of
assistance benefits
public
disqualification
Verner,
Shеrbert v.
(1963);
When his and he is returned to is revoked parole prison, limited, He loses his job ability his albeit freedom.41 his precious, As revocation he may lead a normal life. a result relatively are sufficiently the rest of his life These spend prison. consequences (See Hester to invoke the basic of due severe at least requisites process. case, 1256, 1261-1265.) In 1971) 322 (C.D.Cal.
Craven F.Supp. we are “right” parole; we are not seeking “grace”42 protect determination, of the and vindicate the to a fair express attempting con which and his facts the state would person upon deprive current liberty. an underlies we must confront which
Finally, argument apparently majority’s position: with due time every
To procedures grant comport burden on would excessive suspended impose purportedly that would far system outweigh any administration of the specu- We constitutes a tool in achiev- major lative benefit. recognize *21 41 supra, 446, Authority, (concurring opn. 395 449 Adult F.2d Sturm California 3, J.): July Browning, Authority Adult entered its order of of “When the California 1962, refixing substantially it appellant’s years, at and one-half extended sentence ten challenge required Appellant’s appellant term which would be to serve. prison nothing constitutionality by pretending to of that order cannot be answered occurred, earlier, court, years five had order really fixing merely because a State entered an (N.D.Cal. 1969) (See at appellant’s term life.” Ellhamer v. Wilson maximum 1245, 1255, 5.) F.Supp. 312 fn. observed, ideas Holmes “It is one of misfortunes of law that 42 Justice once long encysted provoke and thеreafter for a cease further phrases become time 1135, (Hyde (1912) analysis.” v. United States 391 L.Ed. Holmes, J.).) (dissenting opn. 32 of 793] those the rehabilitation of convicted of criminal ing pa- offenses.43 rolee is to live to a reasonable conduct required code of which according is intended to assist normal adjustment his and useful life.44 Parole revocation is the Adult most severe Authority’s sanction for the parolee’s refusal to follow the conditions of his If this court were to raise parole.45 trials, criminal full dress into we deter the hearings might Adult from release for fear that it granting would be unable to revoke when the circumstances that the parole indicated conditional release had not been We also so might significantly impede successful.46 that some who would be parolees appear dangerous society per- mitted to remain at large. however, one
No that the Adult argues, Authority’s procedures present a substantial of the impose handicap upon machinery system.47 Hence, to rule that due revocation and process applies requires those elements are in the only procedural already incorporated could not present proceedings obviously additional impose any grievous states, burden on the Adult number Authority. A of as well as large federal government, far more grant parolees extensive safe- procedural California, than does and guards these are afforded without protections breakdown in their For apparent example, parolees systems.48 Note, (1951) Parole 43 See Revocation Procedures 65 Harv.L.Rev. 309. 3053; (1970) 44 SeePenal Code section In re Bushman 1 Cal.3d 776-777 Cal.Rptr. 375, Schoengarth, supra, 295, 300-301; Comment, Law., compare 10 Santa Clara 6 with Model fn. Penal (Tent. 1956) (1968) § Code 305.17 Draft No. 102-106 and pp. Comment
Iowa L.J. 498. 45 “Certainly purpose no circumstance could parolees] further that of [rehabilitation greater part to a extent than a firm belief of impartial, such in the offenders unhurried, objective, thorough (Fleming processes machinery of the law.” (1946) 205]; Note, v. Tate F.2d App.D.C. Constitutional Law: Privilege 139, 144; Concept, supra, and the Parole Status 1969 Duke L.J. Recent Developments (1970) 46 Wash.L.Rev. 181. Dunbar, supra, 506; Reed, Hyser Williams v. 46 See 377 F.2d Note J.); (opn. Wright, 617, 621; F.2d of Colo.L.Rev. but see (6th 1968) Celebrezze, (dissenting Rose v. Haskins L); Comment, Cir. F.2d opn. Liberty—California System Revocation Conditional and the Federal 28 So.Cal.L.Rev. 158 & fn. cf. President’s Commission on Law Justice, Report: Enforcement Administration Force Task Corrections 194.) 47 In 1968 with its 9 members and 11 representatives 4,404 cases, 6,135 suspended granted cases, disposed of a 15,675 Corrections, total of (Department matters. California Prisoners way By comparison, County Superior Contra Costa Court with its 9 10,773 judges disposed during year cases the fiscal San Bernardino 14,630 County Superior (Judicial period. judges Court with its 11 disposed during matters the same California, *22 (1970) 134-135.) Report Council of Annual example, 48 For 25 states the District of expressly impliedly Columbia or provide right statutory hearing (Sklar, revocation. Law and Practice
195 notice, convenient hearing, a geographically have the right federal system witnesses, counsel, of favorable production retained production and, indeed, states, most the federal system, material.49 If documentary of due elements these are capable utilizing procedural quite revocation, be able to do so. should California certainly which we believe elements of due to discuss the We proceed Our discussion fol in a proceeding.50 must be observed revocation Utili Sokol v. Public this court suggested lows the analytical approach 247, 254 418 P.2d (1965) ties Commission Cal.Rptr. [53 It with the 265], “What on circumstances. varies is due process depends J., (Holmes, Moyer and the necessities of the situаtion. subject matter 235].) Its (1909) v. 212 84 L.Ed. 29 S.Ct. Peabody variables, function the nature of the many content is a including right affected, caused condition or ac degree danger proscribed (See Richardson and the remedial measures.” availability tivity, prompt 852-855, (1971) v. Perales 402 U.S. che, L.Ed. 1420]; supra, v. Lar 442 2d Hannah
1307, 1321]; Cal.2d 681 People (1968) v. Moore 69 800]; Newman, Prescribing The Process “Due Process” 446 P.2d Cal.L.Rev. 49 We need not choose between all rights according affording Hearings (1964) 55 & S. in Probation and Parole Revocation J. Crim. L. C. P. 175, 179-182.) Judicial decisions have declared the Haskins, 91, 97, 98, hearing (See supra, other Rose v. 388 F.2d some states. fn. Celebrezze, (dissenting J.).) opn. of At and the District of least states Columbia (See infra.) hearings. permit appear counsel to fn. 67 permit production A number of state witnesses and other statutes favorable (See Sklar, rights. procedural Law and Practice in Probation and Parole Revocation Hearings, 175, 181-182.) supra, J. Crim. L. C. & S.P. 2.40; (1969); Weakley (4th 1966) 49 18 v. § § U.S.C.A. 4207 28 C.F.R. Boddie Cir. 242, 244; 535; Markley (7th 1965) 343 356 F.2d Starnes v. Cir. F.2d Glass v. Markley 973; 1964) (7th 1965) (4th Jones v. Rivers Cir. 339 F.2d Cir. F.2d Reed, 862, 873-875; Hyser 225, 240-246; v. Reed v. supra, F.2d Butterworth Reed, 365]; App.D.C. F.2d Glenn 289 F.2d Tate, Fleming v. Reed App.D.C. Robbins supra, and the Federal 269 F.2d 848, 849-850; Milligan, Hearings 156 F.2d Parole Revocation in California System, 26-28; L.Rev. The Ninth Circuit Cal.Western Hastings
Review LJ. 1027. part 50 ThePresident’s Commission on Law Enforcement concluded in that “The hearing offender threatened with ... be entitled to a comparable revocation should importance being to the nature and of the issue decided. Where there is dispute some release, as to whether he violated of his the conditions should contain the basic elements of due process—those designed are accurate elements which to ensure (President’s finding. fact tion of ...” Commission on Law Enforcement and Administra Justice, Corrections, supra, 88.) Task Report: Force *23 none.51 him We do not and cannot with the investitures clothe the of a criminal defendant in a but we submit that he should prosecution, least be entitled to these basic and minimal of due protections process: notice, and counsel. representation hearing, process requires timely adequate
3. Due receive that the notice in proceedings.
A cornerstone of the structure of due of law is that the adjudica process tion aof must be notice and significant right “preceded by opportunity Han (Mullane the nature of v. Central hearing the case.” appropriate 306, 873, over Bank & (1950) 865, Tr. Co. 339 U.S. L.Ed. S.Ct. 652].) the courts have held that affords to Accordingly, due process affected individual a right to notice in criminal timely adequate 682, re (1948) 257, In Oliver proceedings 333 U.S. (e.g., L.Ed. 694, 499]; 196, 68 S.Ct. Cole v. (1948) Arkansas L.Ed. U.S 201 [92 644, 647-648, 514]), Armstrong in civil (e.g., proceedings Manzo, 545, 62, 65-66, 1187]; 380 U.S. 550-551 L.Ed.2d 85 S.Ct. Anderson Nat. Bank v. Luckett L.Ed. 321 U.S. 246 [88 692, 704-705, 824]), 151 A.L.R. in juvenile proceedings 549-550, re Gault (e.g., 387 U.S. L.Ed.2d S.Ct. 1428]) and in administrative Willner v. Committee proceedings (e.g., Character, supra, 224, 230-231]; 373 U.S. Gold 105 [10 123.) smith v. United Board supra, States Tax Appeals, 270 U.S. The United States Court “has made Supreme consistently plain notice adequate is the of due timely fulcrum whatever See, purposes of the v. Holly, Roller 176 U.S. proceeding. e.g., Works, Coe v. Armour 424. 237 U.S. Notice is ordinarily Fertilizer to-effective assertion prerequisite constitutional or other rights; it, without vindication of those must fortuitous. So rights essentially fundamental a can neither be protection here nor left the ‘favor spared or grace’ of state authorities. Central Georgia Ry. v. Wright, 207 127, 138; Gault, Works, Coe supra, v. Armour (In at 425.” Fertilizer supra, 387 U.S. 73 [18 and dissent (concurring 571-572] J.); Harlan, ing Jacob v. Roberts opn. 51 Several held that due require courts have and fundamental fairness (Alverez (10th notice and proceedings. v. Turner 1970) 214, 220; (10th 1969) Cir. 422 F.2d Cotner v. States 409 567, United Cir. F.2d 853, 856; Shelton v. United States Board Parole 388 F.2d Rivers, App.D.C. 873-875; Jones v. 338 F.2d Fleenor Hammond, 982, 986; Morrisey (8th 1971) 116 F.2d but see v. Brewer Cir. cases, however, grant 443 F.2d rights The above do the parolee of con frontation, cross-examination, subpoena, many procedural other incidents of the criminal trial. *24 211 U.S. Jersey (1908) Twining v. New 32 S.Ct.
L.Ed. to be con 14].) In order 97, 110-111, L.Ed. 110-111 calculated, “reasonably notice must be and timely, adequate stitutionally of of the circumstances, interested pendency under the parties all apprise their objections.” to present action and afford them opportunity the Co., 306, supra, Bank & Tr. (Mullane v. Central Hanover Gault, fn. 53 33-34 and 865, 873]; U.S. see In re L.Ed. York 549-550]; New City Schroeder 255, 258, A.L.R.2d 211 [9 obviously notice is revocation proceedings, pre- In the context of parole cause constitute reasons that might the of the to inform parolee requisite As a matter of practice, Code section 3063.52 under Penal for revocation which inform the does now Authority parolee the by grace, least violated. At to have conditions of he is alleged condition or parole officer’s be shown some hearing, may parole parolees, prior to consideration the Adult Authority’s which serves as the basis for report, at the If denies his hearing, representative his case.53 the parolee guilt basic elements of reads to the of the Adult parolee Authority answer. must then or officer’s which report, parolee explain the. notice must be viewed in light The timeliness and of this adequacy revocation. Often of the incidents of parole surrounding procedural violated a that he is suspected having particular is informed only parolee so as to afford vague of those conditions are condition Some parole. case. For example, assistance to the
little parolee’s preparation violated a condition of his be informed that he has might parolee times, reads, at all conduct as a citizen “You are to yourself good this by and attitude must justify opportunity granted behavior your con- he has violated another be told that Or parolee might parole.”54 Services Community with the Parole and dition not “cooperating” The parolee might the Adult or his agent.55 Division of alco- because he has consumed is in informed that his jeopardy “with individuals of that he has associated “to excess” or holic beverages informed, such a also be way might bad The reputation.”56 part “The Adult provides pertinent 3060 which Penal Code section 52 But see any parole or revoke without Authority notice, suspend, have full cancel power shall any prisoner upon parole.” prison order returned Counsel, Right Hearings Dyke, Parole Revocation 53 Van California: (Interview representative with Adult 59 Cal.L.Rev. 1970). September 54 Comment, Law., supra, 10 Santa Clara fn. 6. Dunbar, 55 Id.; supra, 377 F.2d 506. see Williams v. Law., supra, 56 Comment, 10 fn. 6. Santa Clara rebuttal, little to afford that he is opportunity transgression suspected conditions, more of the use one of the such as the specific prohibition where, Yet of narcotic is often not told possession drugs. when, or whom he is condition. suspected violating *25 however, detailed charge, readily
This more information the regarding the available Adult the which forms Authority parole agent’s report, the the basis for revocation. Since some are shown this proposed parolees its at and most hear substance read aloud the revocation report, parolees cannot conceive a substantive for we of reason a hearing, refusing parolee the to know its contents before the To merely hearing. permit opportunity the the at itself the is to reason- reading report hearing deny parolee able notice for of a defense. timely Certainly, adequate preparation notification of the to the requirement would pre-hearing report parolee Adult an procedures extra burden since subject has been for the use the P&CS report already prepared proceeding and the representative. hearing
Under the at present parоlee the revocation faces practice hearing read; a sheaf of which he neither seen he has nor has no papers opportunity documents; to refute allegations these he has posited no chance to cross-examine the who individuals informed the Adult his. violations; claimed he has no witnesses opportunity subpoena against him. consider data Finally, hearing which is not representative so much as at the and material of which the has presented hearing no knowledge.
We that the of the traditional recognize implementation cross- rights confrontation, examination, and a decision based the evi- subpoena, upon dence adduced entail might that could hearing expense delay obstruct the efficient conduct of the we realize parole hearing. Although that the courts have often held that these traditional serve as im- rights to the of the portant safeguards integrity process, are not they fact-finding necessarily required by due to the instant fac- application tual situation. We have that due does not consist of explained rights of fixed but package is a that accords its dynamic concept protec- tions relative to the of the individual’s and the depth counter- deprivation interest. vailing We believe that a due public minimum process protection that can be here accordingly is the that the applied requirement Authority, to the furnish the reasonably prior hearing, with a copy of the report which the revocation agent upon rests.
Such a in an situation procedure has obtained the analogus approval the United States Court. Williams v. Oklahoma Supreme 516, 521-522, 421], U.S. S.Ct. Williams 1341-1345, L.Ed. New York information 1079], use of extra-record court a judge’s the high upheld of cross- denial sentence, trial court’s discretionary sustained the in imposing the defendant confrоntation, possessed but suggested examination and an explain the information relied opportunity to know upon McElroy, supra, Green v. observed in it. Court or rebut As Supreme 1377, 1390-1391], “Certain principles 496-497 One these in our remained immutable relatively jurisprudence. have individual, and the where action seriously injures is that governmental evidence used findings, on fact of the action depends reasonableness so that to the must disclosed individual the Government’s case to prove Turner, (But cf. that it is untrue.” he has an to show Alverez opportunity Davis, Law in his Administrative F.2d Professor *26 in for notice Treatise, affording such a has procedure also just proposed be dis which may in cross-examination revocation proceedings, parole (1965 Davis, Law Treatise (1 unavailable. Administrative or cretionary 174-181; v. United States Part) 7.16, at see Simmons Pocket pp. § 458-460, 348 U.S. L.Ed. Gonzales 467, 472-474, L.Ed. v. United States 348 U.S. 413-416 [99 be that the hearing to requirement reasonably parolee pro- prior a revocation may vided with which upon copy parole agent’s report defense, not to his will exact will enable the be prepare predicated parolee fact, in expedite an administrative burden of the Adult Authority may, revocation revocation In the context hearings. parole parole particular timely such due that receive process requires parolee proceedings, notice of him. adequate against charges opportunity an requires parolee
4. Due that the be accorded process heard parole proceedings. to be revocation to due ‘the be
“A fundamental process requirement opportunity Ordean, Grannis It is an which heard.’ 234 US 394. opportunity (Arm- be must at a time in a manner.” granted meaningful meaningful Manzo, strong 66].) In the a context of revocation we shall out that the due point re- process calls hearing be conducted in a manner” “meaningful quirement rather as a as matter than matter of procedural protections are now accorded Due grace, they Authority. process likewise to witnesses in calls for the his parolee’s right present voluntary behalf, a now denied the Adult As to the due procedure Authority. time,” of a held at we shall requirement “meaningful that the be an
explain must afforded to be heard parolee prior opportunity those the Adult cases suspension parole, except has cause to believe that the while probable has in criminal conduct. engaged
Under its the Adult present procedures by grace permits at the offer both personally appear hearing, written behalf, material and his own oral in his oral testimony present his arguments revoked, should why not be and to receive decision from the Adult who hear the facts of his Authority representatives actually case and have who in the previously against participated proceedings however, him.57 These procedural should not be subject protections, repeal in whole or in suspension individual cases in the uncon- part are, trolled indeed, discretion of the Adult basic re- Authority; they aof quirements constitutionally adequate hearing. Court, moreover,
The United States held has that in Supreme adjudi cative such as that of proceeding revocation “due of law that, at some requires before the stage proceedings, [governmental fixed, becomes irrevocably action] shall have an [affected individual] heard, to be of which he must opportunity have notice .... re Many essential in quirements strictly judicial with proceedings dispensed *27 essence, of this nature. But even here a proceedings very its hearing, demands he who that is entitled to shall have it the to his right support brief; allegations and, be, however argument, if need however by proof, Denver, (Londoner City informal.” 373, supra, 210 U.S. 385-386 of 1103, 1112]; 448, L.Ed. Oyler v. Boles (1962) see 368 452 [52 U.S. [7 450, 446, Indeed, 82 S.Ct. a hearing complies with due must the permit parolee appear personally (see Lewis v. hearing (1892) United States 146 370 U.S. [36 1011, 136]), L.Ed. 13 S.Ct. both offer written material Yakus v. (see (1944) 414, 834, United States 854-855, 321 U.S. 436 64 L.Ed [88 660]) and own (see his oral behalf Goldsmith v. United testimony his 117, Tax supra, 494, States Board Appeals, 270 U.S. 123 L.Ed. [70 of 497], to oral (see his should not be revoked present arguments why Authority 57 Adult provides part, No. 279 in pertinent Resolution Purpose. purpose “A. a provide whereby revocation calendar a is to means charges specified by each of the hearing may Division P&CS or causes for the revocation personal panel be reviewed with the man at a a appearance before Authority step adjudicating the Adult as a final of a . . parole. termination . Requirement B. for Requires Revocation of Parole. ... 3. that man given opportunity personal an for a a appearance panel before purpose entering for the guilt a He or plea. either admit his set guilt forth his orally reasons denial of and/or documentation or all charges specified." violation
201 1353, 274-276, L.Ed. [93 U.S. (1949) v. WJR FCC Central 1097]; Utah Idaho Shields v. 1359-1361, 1365, 1356, 69 S.Ct. 115-116, 59 S.Ct. L.Ed. Co. U.S.
Railroad the facts hear actually who 160]) a decision from the officials to receive States, 468, 481-482 U.S. Morgan supra, case v. United (see of his impartial In Murchison re (see 1288, 1295-1296]) are L.Ed. who 946-947, 75 S.Ct. 136-137 L.Ed. U.S. McGrath, L.Ed. Wong Yang Sung v.
625-626]). accord to op-
Not the Adult fail to parolee does only consti- a matter of to be heard at the revocation portunity proceedings one significant aspect tutional but also in it denies right practice a witness to present a of such constitutionally protected hearing: observed that United Court has proce- in his behalf. The States Supreme hearing due that requires subject governmental dural “ behalf, his either by and call witnessеs in ‘have chance to other testify ” (In Green 369 U.S. defense way explanation.’ Oliver, 1114]; In re Cal. 695]; In re Lambert L.Ed. 275 [92 851].)58 P. should
Although that of the Adult Authority we recognize representatives discretion conduct the as to forbid retain wide so repetitive, irrelevant, for an we see no unduly testimony, justification prolonged behalf of absolute of a witness in testimony parolee.59 oral prohibition Moreover, note federal we hearings permit behalf; seem his this witnesses on does produce procedure (See 28 C.F.R. have the conduct of proceedings. unduly hampered *28 684; 681, Rich 2.40; (10th 1969) 406 F.2d Willingham Earnest v. Cir. § 969; 967, Butter- 1965) Reed v. Markley (7th ardson v. 339 F.2d Cir. Tate, 365]; Fleming v.
worth 297 F.2d App.D.C. 849-850; Federal Note, in the Parole Revocation supra, 156 F.2d 705, 716-717.) System (1968) 56 Geo.L.J. hearing produce parolee witnesses 58 Until 1941 the in a could Etie, 753, 758.) (In supra, 27 his behalf. Cal.2d is, right course, hearing required fair present 59 “The to evidence of essential to the See, e.g., Morgan [(1938)
by the Due v. 304 U.S. 1] Process Clause. United States States, 349, 368-369, (1936). & Ohio R. . . Baltimore Co. v. United . say We do not to restrictions impose mean that the reasonable Commission only testimony; we hold on the number of and on the substance their witnesses right person’s present that a discretion to his case should not be left to the unfettered (Jenkins McKeithen, supra, the v. L.Ed.2d 395 U.S. 429 [23 Commission.” 404, 421].) We that must conclude to be heard” “opportunity comprehends oral “however brief” and informal” of “however present testimony witnesses behalf who attend revoca parolee, voluntarily 385-386; Denver, (Londoner City tion v. supra, 210 U.S. hearings. Weakley, 244.) supra, v. 356 F.2d Boddie
We believe that the Adult does not afford parolees to be heard” Instead, at a time.” it holds revo- “opportunity “meaningful cation hearings all cases been have taken into cus- parolees after Due tody. that the affected process generally requires government give individual a and not he is “condemned hearing to suffer griev- beforе after (See ous loss.” Refugee Joint Anti-Fascist v. Committee McGrath 341 U.S. L.Ed 71 S.Ct. (concurring opn. 624] J.); Constantineau, Frankfurter, v. supra, Wisconsin 400 U.S. 436- 515, 518-519]; L.Ed.2d v. Claims Court Small Mendoza 9].) 49 Cal.2d
The United States Supreme Court held that due very recently of welfare requires “be afforded ah recipient hearing evidentiary (Goldberg Kelly, the termination of benefits.” 397 U.S. before (Italics in original.) Similarly, pro cedural due process notice and before requires a creditor can garnish (Sniadach Family Corp. (1969) of his debtor Finance wages 349, 352-353, 1820]) or a land lord may (Mendoza of leased Claims regain possession v. Small premises. Court, In these cases the risk of imme diate and irremediable did harm to not outweigh public greater benefits, the individual damage welfare terminating life-supporting wages, or a tenant of shelter. garnishing depriving due to the problem of when applying determining parolee revocation, is entitled to we must between the distinguish hearing prior kinds of conduct of which the is accused. If the alleged transgres- nature, sion is not criminal in and therefore entails no danger society, we believe due process requires hearing drastic prior imposition sanction of For if the imprisonment. example, having suspected failed “to conduct as a at all citizen times” or good having [himself] formed an “association with of bad individuals suffers no reputation,” society *29 comparable danger to the case in which the Adult has Authority probable cause to believe that the has in criminal conduct while parolee engaged on If the before parole. parolee obtains a he is incarcerated for sus- violation, 6f some technical he well be able to picion might prove conduct, or, circumstances, that he was such innocent of in some that the the did commission of minor not revocation. alleged peccadillo support his innocencе does prove If under the procedures the parolee present he then restored pa- incarceration and is the after two charges months inflicted. The parolee been role, will nevertheless have damage irreparable com- in the his status will have lost his his family, job, ability support the limited he liberty enjoyed and the other benefits of munity, rumor, motivated viciously If the knows that parolee vaguest parole. informer, accusation, or the slightest of the faceless the unknown charge to succeed his will lose the incentive mistake could cause return to he prison, his sum, if feels that in rehabilitation process. painstaking and discretion future lie within complete freedom and entirely grace himself must his and effort to rehabilitate Adult motivation Authority, suffer.60 inevitably case, criminal how
If as in the conduct engages present ever, to notice and the immediate suspension hearing prevents prior and that he risk of the danger harm to grievous by minimizing public In re (See will will into Marks commit further offenses or go hiding. 441].)61 has
71 Cal.2d P.2d Since the parolee [77 Cal.Rptr. lost the been convicted sentenced to he has already felony prison, (See In re Scaggs bail. innocence and presumption like that situation 47 Cal.2d Clearly, case, which had the instant the Adult presented probable Authority cause while on felony to believe Tucker had committed a parole, demands the incarceration society security prompt parolee.62 harm The United States has that where Court long “recognized Supreme threatened, to the is infringed reasonably interest private public take action deemed be of less can summary official importance, body fn. (Goldberg Kelly, supra, a later pending hearing.” 287, 296-297], A. Holman & Co. from R. quoting F.2d Exchange Commission Securities stock registration from exemption require App.D.C. (suspension 43] Hence, the ment); (1965) 140-144.) State Administrative Law Cooper, Tucker, Tucker; thus Adult was a hold on fully justified placing could been of a weapon, who had arrested for proscribed already possession revocation proceedings. not released the later pending (Winter 1969) 50-51. 12 Colum. Forum Gaylin, War Resisters in Prison 60 See pre problems procedures special particular do here consider the 61 We proceedings. sented the revocation of conditional release in narcotics commitment ' Marks, (In 31, 47-49.) arrest to the from the parole violations submitted result 62 Most Rights (Comment, Results: Versus parolees parole. of Quo for criminal conduct while on Vadis Due Process Parolees Pacific L.J.
204
We conclude that due to be process requires parolee’s “opportunity' heard” held “at a meaningful (Gold- time and manner” meaningful berg Kelly, supra, 254, v. 287, 298-299]; U.S. 397 L.Ed.2d Arm- 267 [25 Manzo, strong supra, 545, 62, v. 380 66-67]); 552 thus revocation should occur to hearing prior the incarceration of who is with technical violations not charged constituting conduct. criminal process right Due requires
5. to counsel in pro- ceedings. due to a includes the right to counsel.63 process hearing right appear by (Ch Fretag 4, 9-10, v. 348 U.S. L.Ed. 8-9 75 andler 1];
S.Ct. Small Claims Court 673 49 Cal.2d Mendoza v. Steen v. Board Civil Service 26 Commrs. Cal.2d P.2d 816].) 727 In its consideration to right hearing counsel under the due clause in Powell v. Alabama (1932) 287 U.S. process 158, 170-171, 527], L.Ed. A.L.R. United observed, then, States Supreme “What, Court does a include? His least, and in torically in our practice, own it has included country always the right to the aid of counsel when desired and by party provided cases, be, the right. The to be heard would asserting right little many did avail if it be heard If counsel. ... comprehend right to case, criminal, civil or a state or court were to refuse arbitrarily federal counsel, him, to hear a it reason party by appearing employed not be of a ably doubted that such a would be а denial refusal hearing, and, therefore, of due in the constitutional sense.” have held that the
Courts of due protection includes the right retained in an attorney wide appear by extremely of civil and variety administrative to terminate proceedings, including welfare proceedings (Goldberg Kelly, v. supra, benefits 300]); (Steen v. Board Civil discharge government Service employee
Commrs., supra, 716, 727); revoke a (see license liquor Martin, People supra, v. St. Cal.3d open question 63 In this court left right applies only whether the to the revocation of but held parole, counsel right proceedings (See there is no counsel at Adult to determine whether Schoengarth, sentence be fixed at In re should less than maximum. (“no right appointment to the counsel proceedings Cal.2d of the Adult Authority to prisoner determine whether and under what conditions a should be granted People Ray, (no parole”); Cal.App.2d right to counsel length grant parole); on determination of of sentence and Comment 497.) Iowa L.Rev. This court has expressly never decided whether a has a (But represented by to be proceedings. counsel in see Mead (9th 1969) F.2d Cir. California
205 818]); 601, P.2d 606-607 (1956) [302 Molina v. Munro 145 Cal.App.2d v. (Staley compensation for unemployment determine eligibility 675, 678 6 App. (1970) Bd. Unemployment Ins. Cal.App.3d California Code, (1967); 294]; 555(b) Gov. 5 U.S.C.A. § see also Cal.Rptr. [86 (Cont. 11509; Ed. Bar Practice Agency California Administrative § Announcement, U.S.L.Week. 2364 1.30, 26); cf., 39 1970) FTC at § p.
(1970)).
indigents
to counsel is the
corrollary
right
right
logical
(see Gideon
cases
of counsel at state
criminal
appointment
expense
799, 805]) and in
Wainwright,
335,
372
L.Ed.2d
supra,
U.S.
*344 [9
v.
otherwise,
civil
which assume
formality
administrative or
proceedings,
analogous
but
such an
indigent
consequences
proceedings
expose
(1967)
v. Patterson
386 U.S.
(See,
Specht
to a criminal conviction.
e.g.,
326, 329-331,
605,
(civil commit
L.Ed.2d
Most
the United- States
has established the
recently,
Court
Supreme
both
right to
retained and
hear
counsel
appointed
probation
336,
(Mempa
Rhay,
ings.
supra,
v.
137
L.Ed.2d
[19
340, 341-342].)
declared
individual is entitled to coun
The court
that the
sel “at
of a criminal
where substantial
every
rights
stage
proceeding
(389
134
L.Ed.2d at
criminal accused
affected.”
U.S.
p.
p.
[19
Mempa Court has not
extended
yet
Although
Supreme
revocation,64
a number of
courts have now held
distinguished
indigent
have
counsel
parolees
proceed
appointed
1971)
Bey
(2d
Bd. Parole
443 F.2d
(See
v. Connecticut St.
Cir.
ings.
466, 468-469;
Moseley (10th
Earnest v.
Menechino
1970)
Cir.
426 F.2d
238];
v.
Warden
376
N.Y.S.2d
267 N.E.2d
27 N.Y.2d
[318
Warren v.
754
N.W.2d
Michigan Parole Bd.
23 Mich.App.
[179
549];
664];
Commonwealth v.
433
328
A.2d
Tinson
Pa.
[249
(9th
1968)
392
91,
64 Eason v. Dickson
certiorari denied
U.S. 914
Cir.
390 F.2d
Haskins,
2076];
supra,
Rose
388
certiorari
L.Ed.2d
88 S.Ct.
v.
F.2d
Dunbar,
2300];
392
denied
U.S. 946
Williams v.
L.Ed.2d
88 S.Ct.
131];
Hyser v.
377 F.2d
certiorari denied
U.S.
L.Ed.2d
88 S.Ct.
389
866 [19
Reed,
318 F.2d
certiorari denied 375 U.S.
S.Ct.
L.Ed.2d
Washington
447];
Hagan
(3d
1960)
F.2d
certiorari denied
Cir.
Johnson v. Stucker
Kan.
35],
certiorari denied
No distinction can drawn meaningful be between the revoca- probation tion Mempa involved in hearing and in- parole proceedings volved here. In both as to revocation of the hearings probation parole basic becomes whether the has terms of his individual violated the question release. In both situations revocation will in In prison. result commitment Mempa the judge a sentence and recommended the imposed prison length of term the should in serve The Adult not probationer prison. recommends, determines, returns the only but than parolee rather prison, Hence, the of time which the will serve. length prisoner even more “sub- stantial in are “affected” rights” revocation than revo- probation cation. the assistanсe of Certainly, counsel is and invaluable indispensable in both situations. issues, can
“Counsel delineate the the factual contentions in help present manner, . . . orderly interests of the” generally safeguard parolee 287, (see Goldberg Kelly, 254, v. supra, 397 U.S. 270-271 L.Ed.2d [25 300]), circumstances, submit mitigating assist the hearing representa tive in (See Rhay, v. reaching Mempa supra, decision. appropriate 128, 336, 340-341]; Radish, 135 Advocate The Expert-Counsel in the (1961) Peno-Correctional Process 45 Jhe 803, Furthermore, Minn.L.Rev. 830-833.) the Adult may only cause”; revoke “for arise to what constitutes legal question “cause” under a set of particular circumstances65—an issue which calls for the skill Basically, lawyer. present system requires become his own advocate. lack His of skill and must not lead training only ato feeling frustration that he cannot his case but to present properly conviction injustice being such This situa placed predicament. tion of with basic of due disparity incompatible concept process. format,
Obviously, length, and conduct of the revocation hearing will remain the sound discretion “We do representative. that assistance of will unduly anticipate [the other- prolong counsel] Martinez, supra, 641, 117, 65 In re 1 Cal.3d In re Bennett 71 Cal.2d 33]; 120 Cal.Rptr. 454 P.2d In re Brown 67 Cal.2d 342 [62 630]; Cal.Rptr. Gomez, 594-595; 431 P.2d In re 64 Cal.2d In re Hall 389]; Cal.2d Cal.Rptr. P.2d State Black 1971) (Minn.Sup.Ct. legal might Cr.L.Rep. questions As to 2415. other arise Fluery (1967) see also In re 986]; 67 Cal.2d Cal.Rptr. p.2d Sandel, supra, 412, 413, 417; In 64 Cal.2d In re Shull Beasley (1967) 540], In re Cal.App.2d 723 [64 Kelly, (Goldberg wise encumber the hearing.” event, tactics obstructive danger
cannot constitute a reason for all from revocation hear- barring attorneys ings.
California does not his own even permit represented retained counsel at less counsel hearing—much the indigent for appointed many federal system66 parolees. boards67 have
state retained many years permitted attorneys *33 in such find im- hearings. We no indication that this has participate practice paired the The anachronistic due parole system. majority’s any position to retained process right counsel dissolves in the parolee imprac- it, of to of ticability succumbs the successful effectuating practice permitting such states and representation by the federal Further- many government. by more, the cost of in counsel revocation would appointing hearings parole an economic burden as with the cost impose insignificant compared present of counsel in and providing appointed misdemeanor cases.68 felony Chief Justice in summary, Warren E. declared his Burger recently State of the Federal “The of be criminal must Judiciary, system justice viewed as a process embracing from crime every phase prevention the correctional We can no through system. limit our longer responsibility to defense services for the providing continue to be judicial process, yet with the needs correctional miserly of institutions and probation services.” The first in the recognition newly of this understood re- step would be to counsel for sponsibility for of provide representation parolee 2.40; States, supra, 853, 855-856; 66 28 v. § C.F.R. Cotner United Boddie 409 F.2d Weakley, 243-244; supra, supra, Markley, v. 537; 356 F.2d Starnes v. 343 F.2d Rivers, 971-972; Markley, supra, Glass v. supra, F.2d Kennedy Jones v. 862, 865-875; 526, 527, (1964) F.2d v. F.2d 528 [117 Stubblefield 225]; Hyser Reed, 245; App.D.C. supra, v. 318 F.2d Barnes Reed Butterworth, 192]; supra, 301 778; App.D.C. F.2d Reed v. 297 F.2d Reed, supra, Reed, Glenn v. supra, 289 F.2d Robbins v. 269 F.2d 242, 243-244; Tate, Fleming 156 F.2d 849. jurisdictions 67 In 1956 at least 23 permitted the to parolee advise with counsel in preparation hearing. .states—Alabama, Arizona, for his Fourteen of these District of Columbia, Florida, Illinois, Louisiana, Georgia, Carolina, Idaho,, Pennsylvania, South Utah, West Virginia—permit appear counsel at hearings. revocation (See Code, (Tentative 5, 1956), § Model 305.21 Pen. Draft p. No. at Comment Michigan, Montana, Nevada, Washington* Since 1956 have allowеd retained hearings. (See Michigan counsel in Saunders v. Board Parole 278]; Ann., Mich.App. 94-9835, N.W.2d § § Mont. Rev. Code (1967 Supp.); Smith v. Warden Nev. W.Va. Ann., (1966).) § Code 62-12-19 Counsel, Hearings Dyke, Right 68 SeeVan Parole Revocation in California: 1215, 1252; 59 Cal.L.Rev. cf. Comment 56 Cal.L.Rev. 1469- 1472. of due require The basic process in revocation proceedings. principles such that a be afforded the counsel at proceedings. parolee At a time in the of the law when improvement post- development has become a conviction rehabilitation offenders procedures lawof and when the of due matter first protections importance content and broadened strengthened application, been both have federal and most other jurisdictions California behind the courts lags states as New For such major treatment example, the judicial parolees. of counsel York now Pennsylvania require appointment state, however, denies to the This parolee revocation proceedings. law; him not even the rudiments of due it accords protection law to the notice of parolee charges due it does not render by process; afford it does not law opportunity proceedings; does not be at the revocation it permit heard proceedings; counsel the hearing. represented time, from have, at individual safeguarded The courts the same of due his him the *34 wages protection process. of by affording garnishment be taken off the cannot The courts have held that welfare recipient due of have extended protection rolls without a The courts hearing. and of to other situations the loss involving employment property. process forbids the that it Can due of law be so bifurcated California process a but not hearing a without state’s property garnishment parolee’s be subject Granted that the must super- seizure of his person? parolee is as vision, freedom from that freedom been his prison; he has accorded of that freedom other person; to him as it is any deprivation precious A fundamental it is to other as action as arbitrary person. is subject the chance to be heard is the individual of due law to give process purpose and state unjust will prevent arbitrary the ascertainment of truth so that chance to be heard? be denied this action. should Why parolee Peters, J., concurred. a is entitled to the
PETERS, J. I dissent.I think parolee protection Arizona, 1602], Miranda S.Ct. revo to counsel at a the constitutional right that possesses (Mempa v. Rhay, cation U.S. 128 254]). that are entitled The reasons for conclusion my parolees the Miranda are forth in set protections fully my dissenting opinion In re Martinez 734], and need not be restated here. revocation,
On the issue of counsel at I right join Tobriner’s and well reasoned dissent. Justice scholarly A revocation constitutes a denial freedom in its most funda- mental sense. It little matters to the how or label we characterize which his life is so so altered his freedom process greatly him, radically curtailed. For at stake on his interest and the effect life home, is the same. He faces the exchange and normal job, family life for the four walls aof penal institution. Few have could proceedings a greater on his impact rights. legal afforded procedural safeguards must, him under the due clause, reflect this process fact. inescapable So curtailment of freedom cannot be aside on the great theory swept that the while is restraints and thus has parole, subject to prisoner, no freedom to lose. in the search for and order Although there simplicity fictions, is room in the for some this fiction is so divorced from law that it reality cannot be tolerated fair-minded man. by any Nor can the fundamental denial of freedom be on the ignored theory Grace, is matter of grace. however desirable in absolute monarchs and deities, omnipotent is to a singularly system inappropriate of government ruled laws. The discretion in officials should reposed so is only exercised, it upheld long arbitrarily the procedural safeguards against exercise arbitrary should be power commensurate to the importance seriousness the individual at stake. rights
The administrative character of the likewise furnishes no proceedings basis for the denial of due I cannot believe that the ma- rights. to hold that there is no
jority willing constitutional to counsel or other due rights in administrative such as those proceedings *35 before the Commission, Public Utilities or taxing agencies, licensing authorities. To recognize constitutional to due right in such but proceedings to it in deny revocation is to lose proceedings of the fact that sight the Fourteenth Amendment its terms express to of applies deprivations as well as liberty property. I cannot of
Accordingly, accept majority reasoning opinion the older cases that the denial fundamental of freedom inherent in parole revocation of a that ignored basis fiction has lose, no freedom on the basis of an archaic and foreign concept or on the basis grace, of a false assertion counsel rejecting right in administrative proceedings. I
Although agree with Justice Mosk that cost is a factor to be con- sidered in a rational us, answer seeking to the problems confronting I cannot with his agree assessment that formal with counsel hearings 4,000 for the approximately in his colorful suspensions, language, “would alone of heroic require undertaking proportions.” Although burden formidable at first 4,000 glance, one sеems a figure 4,000 cases is not great in for counsel permit
undertaking provide our state size of in of the great viewed when perspective the fiscal year court For example, during of our system. experience 220,000 courts 1968-1969, by municipal there were over dispositions cases, municipal and the intoxication other than traffic and misdemeanors 4,000 such misdemeanors. in more than courts Fresno alone disposed were 189-190.) There six municipal Judicial Council (1971 Report, pp. course, who, 208), were (id., in required that Fresno year p. judges cases, also civil with these misdemeanors but only preliminary to deal not offenses, cases, and numerous in traffic and intoxication hearings felony I this there were ordinarily other matters. am informed that during period misdemeanors, three defenders in Fresno with all dealing including public effort, time, and the traffic intoxication. The and skill counsel effort, time, dissimilar from are not judge sentencing proceedings and skill and this required experience proceedings, indicates that a reasonable to be heard with counsel does providing right not Moreover, involve an or even California burden. overwhelming great courts have revo- long with counsel permitted appearance probation and, cation proceedings, such occur with substantial although proceedings state, I am frequency throughout our unaware claim that of any recognition of the right to counsel in them has a burden of “heroic placed proportions” upon bench and bar. view, would with counsel burden hearings great
In my impose it state, and more than offset when is remembered on the burden is has stake. Justice Tobriner liberty the fundamental right states, and a number of government out that the federal including pointed York, and New have accorded the ones like large Pennsylvania counsel that due safeguards proceedings undue on the state. do not involve an burden I writ. would issue the