27 N.Y.2d 376 | NY | 1971
Lead Opinion
The relator is serving a lengthy term in prison following the revocation of his earlier release on parole. He had appeared before the Board of Parole at a revocation hearing without an attorney, and upon this appeal we are called upon to decide whether parolees.are constitutionally entitled, under the Federal and State Constitutions, to the assistance of counsel in parole revocation hearings.
The relator was convicted in 1947 in the former Court of General Sessions on his plea of guilty to a charge of murder in the second degree and sentenced to prison for an indeterminate term of from 20 years to life. After being imprisoned for 16 years, he was released on parole during the summer of 1963. In December of the following year, he was declared ‘‘delinquent ’ ’ and was taken into custody in March of 1965. A month later, he was brought before a ‘ ‘ parole court ’ ’ for a revocation hearing,
The relator, not represented by a lawyer, agreed to the board’s characterization of his relationship with certain ex-convicts as ‘‘consorting’’ and admitted that he had falsely denied knowing
Some time later, in July, 1968, the relator, asserting that he had constitutional rights both to counsel and to certain other procedural safeguards, brought an article 78 proceeding to redress their deprivation. It is enough to say that that proceeding was dismissed on the ground that it had been commenced beyond the time permitted by statute. (See Matter of Menechino v. Division of Parole, 26 N Y 2d 837, affg. 32 A D 2d 761, revg. 57 Misc 2d 865.)
The reported decisions as to whether a parolee has a right to counsel at a parole revocation hearing are divided. Although most of the courts which have passed upon the matter have held that there is no such right under the Due Process Clause of the Fifth or Fourteenth Amendment (see, e.g., Earnest v. Willingham, 406 F. 2d 681, 682; Rose v. Haskins, 388 F. 2d 91; Hyser v. Reed, 318 F. 2d 225; Johnson v. Stucker, 203 Kan. 253, cert. den. 396 U. S. 904; Robinson v. Cox, 77 N. M. 55; State ex rel. London v. Pardon and Parole Comm., 2 Ohio St. 2d 224; Beal v. Turner, 22 Utah 2d 418), we prefer the contrary view, expressed by a few courts, as well as by the commentators, that the right to the assistance of an attorney at the hearing is constitutionally mandated. (See People ex rel. Combs v. La Vallee, 29 A D 2d 128 [4th Dept.], app. dsmd. 22 N Y 2d 857; Commonwealth v. Tinson, 433 Pa. 328; Warden v. Palumbo, 214 Md. 407; see, also, Menechino v. Oswald, 430 F. 2d 403, 409; Cohen, Sentencing, Probation and the Rehabilitative Ideal: The View from Mempa v. Rhay, 47 Tex. L. Rev. 1; Note, Constitutional Law; Parole Status and the Privilege Concept, 1969 Duke L. J. 139,142; Note, Parole Revocation in the Federal System, 56 Geo. L. J. 705, 740.)
There are, of course, differences between Washington’s deferred sentencing procedure, probation revocation and parole revocation but such differences cannot, and should not, militate against the need for a lawyer where revocation of parole results in the deprivation of liberty. As we read Mempa v. Rhay (389 U. S. 128, supra), we are persuaded—as other courts have been (see, e.g., Hewett v. North Carolina, 415 F. 2d 1316, 1322-1323; Ashworth v. United States, 391 F. 2d 245, 246)—that it may not be limited to its narrow factual content. The principle which underlies the decision in Mempa is sufficiently broad to encompass the revocation of parole as well as of probation. In both, the decision to deprive an individual of his liberty turns on factual determinations, and we would say, as did the Supreme Court in the Mempa case (389 U. S., at p. 135), that “ the necessity for
Once the Board of Parole decides that a prisoner is to be granted parole, he is released on specific conditions (Correction Law, § 215), and he may not again be incarcerated unless the board concludes, after a hearing, that he has violated his parole in one of the respects enumerated in section 216 of the statute. The purpose of the hearing is to afford the parolee ‘ ‘ an opportunity to appear * * * and explain the charges made against him” (Correction Law, § 218; now § 212, subd. 7). It is, in a very real sense, an accusatory proceeding in which the outcome — liberty or imprisonment — is dependent upon the board’s factual determination as to the truth of specific allegations of misconduct. We agree with the Appellate Division in Combs (29 A D 2d, at p. 131, per Bastow, J.) that, “ [w]hen all the legal niceties are laid aside a proceeding to revoke parole involves the right of an individual to continue at liberty or to be imprisoned. It involves a deprivation of liberty just as much as did the original criminal action and * * * falls within the due process provision of section 6 of article I of our State Constitution.” Indeed, the revocation of Menechino’s parole may actually lead to imprisonment for the rest of his life. Can there be, in such a case, any reasonable doubt as to the value of counsel ‘ ‘ in developing and probing factual and legal situations which may determine on which side of the prison walls appellant will be residing? ” (Commonwealth v. Tinson, 433 Pa. 328, 333, supra.)
In short, to cull from the Supreme Court’s opinion in Powell v. Alabama (287 U. S. 45, 68-69), the right to be heard would be ‘‘of little avail if it did not comprehend the right to be heard by counsel.” (See, also, Goldberg v. Kelly, 397 U. S. 254, 270.)
Certainly, a “ parole court ” or a parole board panel may not be permitted—simply because it is an administrative body rather than a judicial tribunal—to base its determination, having so serious an impact on the lives of the individuals who appear before it, on a possibly mistaken view of the facts owing to the parolee’s inability to make a proper factual presentation. In the present case, for instance, counsel would have been able not only to analyze and question the accuracy of the parole super
It is for reasons such as these that the Supreme Court, rejecting all efforts to limit the right to counsel to the narrow confines of “ criminal prosecutions ” under the Sixth Amendment, has treated such right as an essential element of due process applicable to all proceedings, whether they be classified as civil, criminal or administrative, where individual liberty is at stake. (See Mempa v. Rhay, 389 U. S. 128, supra; Matter of Gault, 387 U1. S. 1; see, also, Specht v. Patterson, 386 U. S. 605; Hewett v. North Carolina, 415 F. 2d 1316, 1323, supra; United States ex rel. Schuster v. Herold, 410 F. 2d 1071; Shone v. State of Maine, 406 F. 2d 844.) No matter how the proceeding be characterized, the demands of due process, under both the United States Constitution and the Constitution of New York State, require that a parolee be represented by a lawyer, and entitled to introduce testimony, if he so elects. The constitutional guarantee demands no less if the search for truth is not to be sacrificed to administrative speed and convenience. (Cf., e.g., Goldberg v. Kelly, 397 U. S. 254, 266, supra; Escalera v. New York City Housing Auth., 425 F. 2d 853, 867, cert. den. 400 U. S. 853.)
It is difficult, if not impossible, to anticipate all the questions that may arise to confront the Board of Parole and the courts — and we shall not even attempt to address ourselves to them. We prefer to have them answered as they are actually presented on a case-by-case basis. This is in the very nature of the judicial process. It is desirable, however, to indicate that the hearings we are directing must not be permitted to unreasonably delay the proceedings. The presence of an attorney, the receipt of testimony offered by the parolee, are required in order to enable the board to ascertain the facts, pro and con, upon which it is to make its determination. In other words, participation by counsel need be no greater than is required to assure, to the board as well as to the parolee, that the board is accurately informed of the facts before it acts, and the permitted presentation of testimony by the parolee need be no greater than is necessary for that same purpose.
Meeting these requirements will not, we hasten to interpolate, occasion the slightest relaxation of supervisory control over
We find completely unpersuasive the contention that, since parole is a mere ‘ ‘ privilege, ’ ’ a matter of grace, and not a “ right,” various constitutional guarantees, including the right to counsel, may properly be denied at a revocation hearing.
“ Even if a distinction exists between the components of the right-privilege dichotomy, ’ ’ one Federal Court of Appeals observed in a case involving the revocation of probation (Hewett v. North Carolina, 415 F. 2d 1316, 1322-1323, supra), “ when a state undertakes to institute proceedings for the disposition of those accused of crime it must do so consistently with constitutional privileges, even though the actual institution of the procedure was not constitutionally required.” (See, also, Goldberg v. Kelly, 397 U. S. 254, 262-263, supra; Escalera v. New York City Housing Auth., 425 F. 2d 853, 861, supra; Note, Constitutional Law; Parole Status and the Privilege Concept, 1969 Duke L. J. 139, 142; Cohen, Sentencing, Probation and the Rehabilitative Ideal: The View from Mempa v. Rhay, 47 Tex. L. Rev. 1; Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv. L. Rev. 1439, 1451.)
Nor is there any support for the contention that the appearance of counsel or the calling of witnesses would work to the detriment of the board or the parolee. There is no evidence to
The relator did not request the assistance of a lawyer at his hearing but that omission did not constitute a waiver of his right to counsel—and, indeed, no such point is asserted. It is quite true that, as a general rule, the failure to object at a trial or hearing effects a waiver and prevents a party from urging the matter on appeal but that rule cannot, in the very nature of things, apply in a case such as this. If the relator had a constitutional right to be represented, he should have been advised of that right. In the absence of competent legal assistance, he may not be precluded from arguing that he is entitled to a lawyer because he did not know enough to ask for one. Simply stated, he may not be deemed to have made a knowing or informed waiver of his right to counsel. (See, e.g., Johnson v. Zerbst, 304 U. S. 458, 464-466; People v. Malloy, 22 N Y 2d 559, 566-567.)
In bringing this opinion to a close, we note our agreement with the observation, frequently made, that the parole system is an enlightened effort on the part of society to rehabilitate con
The judgment appealed from should be reversed, without costs, and the matter remitted to the Board of Parole for the purpose of conducting a hearing at which the relator shall be entitled to the assistance of counsel and permitted to call witnesses.
. Section 218 of the Correction Law at the time provided that, when a parolee is returned to custody for violating his parole, the Parole Board “ shall, as soon as practicable, hold a parole court at such prison or institution ”. The section was later amended to delete the reference to a “parole court”, substituting therefor a panel of “three members ” (L. 1968, ch. 203) but no change was made in the nature of the proceeding. Although section 218 was repealed in 1970 (L. 1970, ch. 476, § 44), the repealing statute declared that the provisions of the section “ shall continue to apply in eases where the sentence involved is for an offense committed” before September 1, 1967. Another section — numbered 212 — replaces section 218 for prisoners sentenced after that date.
. The record before the board did not disclose that the relator’s only relationship with the ex-convicts in question was, assertedly, through his job where they were fellow construction workers and that one of the men had allegedly been instrumental in obtaining the job for him.
. The court at Special Term had decided in the relator’s favor, directing the Parole Board to hold a new hearing at which he was to be apprised of the accusations against him, of his right to examine witnesses against him and of his right to be represented by counsel. (Matter of Menechino v. Division of Parole, 57 Misc 2d 865, 870, supra.)
. The relator also instituted — in August of 1969 — an action in the Federal District Court, asserting that he was entitled to notice of the charges against him, confrontation of witnesses and assistance of counsel at his next parole release hearing before the Parole Board. Although his application was denied, the United States Court of Appeals for the Second Circuit, in affirming the judgment before it, wrote that, had parole revocation been at issue rather than
. The Combs case (29 A D 2d 128, supra), decided by the Appellate Division for the Fourth Department, found it unnecessary to invoke the Due Process
. In view of the court’s decision in Mempa v. Rhay (389 U. S. 128, supra), we doubt the continued viability of the right-privilege distinction reflected in Escoe v. Zerbst (295 U. S. 490, 492-493), upon which the respondent places reliance. Although it may well be argued that Mempa has overruled Escoe, we find it necessary merely to point out that the Supreme Court not only did not mention that decision in its opinion in Mempa but has consistently held in recent years that substantial interests, even though denominated “privileges,” may not be taken from an individual by government action in disregard of fundamental constitutional rights. (See, e.g., Cafeteria Workers v. McElroy, 367 U. S. 886, 894; Speiser v. Randall, 357 U. S. 513, 518; Wieman v. Updegraff, 344 U. S. 183, 191-192.)
. The following are some of the jurisdictions in which the defendant is entitled to counsel: Alabama (Ala. Code, tit. 42, § 12); Delaware (Del. Code Ann., tit. 11, § 4352, subd. [d]); District of Columbia (D. C. Code, § 24-206); Florida (Fla. Stats. Ann., § 947.23, subd. [1] [1963 Supp.]); Maryland (Warden v. Palumbo, 214 Md. 407, supra); Michigan (Mich. Stats. Ann., § 28.2310, subd. [1]); Montana (Mont. Rev. Code, §§ 94-9838, 94-9835 [1963 Supp.]); Pennsylvania (Commonwealth v. Tinson, 433 Pa. 328, supra).
It is of more than passing significance that the Model Penal Code provides that the parolee shall, in preparing for a parole revocation hearing, “be permitted to advise with his own legal counsel ” and at the hearing “may admit, deny, or explain the violation charged, and * * * present proof, including affidavits and other evidence, in support of his contention ” (Model Penal Code, Proposed Official Draft [1962], § 305.15).
. It is to be noted that, in Mempa v. Rhay (389 U. S. 128, 131, supra), the petitioner’s failure to request a lawyer at the hearing was not regarded as a waiver of his right to be represented by counsel at that hearing. (See, also, Walkling v. Washington Bd. of Prison Terms [decided with Mempa], 389 U. S., at p. 132.)
Dissenting Opinion
I dissent and vote to affirm, for as I read the Constitution, there is no right to counsel at parole revocation hearings.
Today’s decision equates the revocation of parole with proceedings which directly curtail the freedom of an individual. It is argued that parole revocation results in a loss of liberty which is qualitatively no different than that which results when a person is found guilty of a crime or subjected to civil or administrative deprivations of liberty (see, e.g., Matter of Gault, 387 U. S. 1; Specht v. Patterson, 386 U. S. 605; Gideon v. Wainwright, 372 U. S. 335; cf. Goldberg v. Kelly, 397 U. S. 254). I find no compelling reason in either logic or in constitutional law which justifies such a conclusion. The majority in all candor, admits that the result which it reaches is contrary to the view expressed in the majority of jurisdictions which have considered the problem (see, e.g., Earnest v. Willingham, 406 F. 2d 681; Williams v. Patterson, 389 F. 2d 374; Rose v. Haskins, 388 F. 2d 91, cert. den. 392 U. S. 946; Hodge v. Markley, 339 F. 2d 973, cert. den. 381 U. S. 927; Jones v. Rivers, 338 F. 2d 862; Hyser v. Reed, 318 F. 2d 225, cert. den. sub nom. Thompson v. United States Bd. of Parole, 375 U. S. 957; Washington v. Hagan, 287 F. 2d 332, cert. den. 366 U. S. 970; Johnson v. Stucker, 203 Kan. 253, cert. den. 396 U. S. 904; Beal v. Turner, 22 Utah 2d 418; Robinson v. Cox, 77 N. M. 55; State ex rel. London v. Pardon and Parole Comm., 2 Ohio St. 2d 224; Wingo v. Lyons, 432 S. W. 2d 821 [Ky. Ct. App.]; John v. State, 160 N. W. 2d 37 [Sup.
Notwithstanding this considerable and prevailing body of authority, it opts for the rule that the due process clause of the Fifth and Fourteenth Amendments to the Federal Constitution requires the presence of counsel at parole revocation hearings. This overlooks the special nature of parole which this court recently emphasized in Matter of Briguglio v. New York State Bd. of Parole (24 N Y 2d 21) where we unanimously held that there was no constitutional right to counsel at parole release hearings. Although it is true that in Briguglio we did not consider the question of counsel at parole revocation hearings (see 24 N Y 2d, at p. 26, n.), our discussion of the nature of the parole system is relevant to the case at bar. As we wrote (24 N Y 2d 26-28)
‘ ‘ As part of a general program to rehabilitate State prisoners, the Legislature has adopted a comprehensive system of parole. A Board of Parole in the Division of Parole of the Executive Department is charged with the duty of determining what prisoners serving indeterminate sentences in State prisons and other specified reformatories ‘ may be released on parole and when and under what conditions ’ (Correction Law, § 210). Members of the Board of Parole must 'personally study the prisoners confined in the prisons and reformatories of the state * * * so as to determine their ultimate fitness to be paroled ’ (Correction Law, § 210). As each prisoner sentenced under an indeterminate sentence is received in the State institution, the Board of Parole must obtain and file 'information as complete as may be obtainable at that time with regard to each such prisoner ’ (Correction Law, § 211). Section 211 further provides: ‘ Such information shall include a complete statement of the crime for which he is then sentenced, the circumstances of such crime, the nature of his sentence, the court in which he was sentenced, the name of the judge and district
“ In addition, the Board of Parole is entitled to the benefit of reports and information from the warden of each prison in which the prospective parolee has been confined (Correction Law, § 214) and from ‘ all officers and employees * * * of the department of correction and all other public officials [who] shall at all times cooperate with the board of parole, and shall furnish to such board, its officers and employees such information as may be necessary to enable it to perform its functions ’ (Correction Law, § 222; emphasis added). No prisoner may be released on parole upon his own application, ‘ but solely upon the initiative of the board of parole ’ (Correction Law, § 214). Before a prisoner is initially released on parole, the Board of Parole must have before it a report from the warden or superintendent of the institution in which the inmate has been confined (Correction Law, § 214). That report details the inmate’s conduct in prison and the extent to which the inmate responded to efforts made in the institution to improve his mental and moral condition (Correction Law, § 214). The board must also have a statement of the prisoner’s attitude toward society and toward authority generally and specifically of his attitude toward those who arrested, prosecuted and sentenced him. The
The Parole Board makes, what is basically a discretionary determination, that the prisoner is a person suitable for the privilege of parole, and the prisoner is allowed to leave the jailhouse. He is not, however, a free man. The parolee remains under active administrative supervision of parole officials. Thus, when the relator herein was initially placed on parole he was not at liberty to engage in any course of conduct which he saw fit. He was granted conditional liberty as a matter of grace and not as of right (Mottram v. State of Maine, supra) and he retained his status as a convict (see Escoe v. Zerbst, 295 U. S. 490). In this regard it is significant that he has already been arrested, tried and convicted in accordance with the constitution. As a result of this conviction, he has been sentenced to punishment by imprisonment. True, he was thereafter paroled but parole is not an unconditional discharge. It is merely an administrative declaration that if the conditions are satisfied, the parolee may serve ‘ ‘ the remainder of his sentence by having his liberty restrained in a manner analogous to that employed in the ‘ trusty ’ or 'honor’ system of prison discipline ” (Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, 588). As the Supreme Court said in Anderson v. Corall (263 U. S. 193, 196): "The parole authorized by the statute does not suspend service or operate to shorten the term. While on parole the convict is bound to remain in the legal custody and under the control of the warden until the expiration of the term * * * While
It would appear that the conclusion reached by the majority has been strongly motivated by cases such as Mempa v. Rhay (389 U. S. 128) where the Supreme Court held that there was a constitutional right to counsel where probation was revoked and the defendant was then resentenced. Any view that probation and parole are to be governed by the same rules is, I suggest, unfounded. As we explicitly recognized in Matter of Briguglio v. Board of Parole, (supra, at pp. 25-26):
“ That Mempa is purely a sentencing case and, therefore, is of little value in defining the rights of one who has already been sentenced is made manifest by the Supreme Court’s decision in McConnell v. Rhay (393 U. S. 2, 3-4).
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‘ ‘ Indeed, in several cases decided within the past year, the Federal courts have held that Mempa v. Rhay (supra), being a sentencing case, sheds no light on the problem of whether a parolee is entitled to counsel at a revocation hearing (see Eason v. Dickson, 390 F. 2d 585; Williams v. Patterson, 389 F. 2d 374; Rose v. Haskins, 388 F. 2d 91; Holder v. United States, 285 F. Supp. 380). Each of the cited cases held that a revocation hearing is not a trial requiring an adversary proceeding with representation by counsel.”
(See, also, Johnson v. Stucker, supra, at p. 256.) Therefore, I am unable to agree with the majority’s assertion that the Mempa rationale encompasses hearings for the revocation of parole. Though it is true that both revocation of parole and revocation of probation involve factual determinations, the basis of the right to counsel at proceedings to revoke probation
The Legislature has declared that counsel is unnecessary at such a proceeding and I am not persuaded that this provision is violative of either the State or Federal Constitutions. In this regard, the majority has taken the view that parole revocation hearings conducted without the presence of counsel are offensive to a concept of fair play under notions of procedural due process. This is an unwarranted extention of the due process clause. As Mr. Justice Black wisely cautioned in his dissenting opinion in In re Winship (397 U. S. 358, 384-385):
‘ ‘ The many decisions of this Court that have found in [the due process clause] a blanket authority to govern the country according to the views of five members of this institution have ignored the essential meaning of the very words they invoke. When this Court assumes for itself the power to declare any law—state or federal—unconstitutional because it offends the majority’s own views of what is fundamental and decent in our society, our Nation ceases to be governed according to the ‘ law of the land ’ and instead becomes one governed ultimately by the ‘ law of the judges. ’
‘‘ It can be, and has been, argued that when this Court strikes down a legislative act because it offends the idea of ‘ fundamental fairness,’ it furthers the basic thrust of our Bill of Rights by protecting individual freedom. But that argument ignores the effect of such decisions on perhaps the most fundamental individual liberty of our people—the right of each man to participate in the self-government of his society.
* * *
‘‘And the States, to the extent they are not restrained by the provisions in that document, were to be left free to govern themselves in accordance with their own views of fairness and
Accordingly, the judgment appealed from should be affirmed.
. It is noted that in the time which has elapsed since our decision in Briguglio, there have been several amendments and additions to the statutes discussed therein (see L. 1969, ch. 270; L. 1970, ch. 476; Correction Law, § 212). These amendments have not altered the underlying concept of the parole system of this State and as the majority observes, at footnote 1, p. 378 of its opinion, they have no effect on the instant case.
. This, of course, is not to say relator will never again be eligible for parole (see Correction Law, § 212, subd. 7).
Dissenting Opinion
I dissent and vote to affirm, but for reasons not altogether the same as those expressed by Judge Scileppi.
Although revocation of parole is not the same as revocation of probation, they share, as pointed out by Chief Judge Fuld in his opinion for the majority, many things in common. It is for this reason one may believe, as a matter of policy, that there should be the right to counsel in parole revocation. At the same time every desirable policy, even if based on fairness, does not necessarily attain constitutional dimension warranting judicial mandate. In the case of the right to counsel it is a policy that requires the flexibility that only legislation may provide, namely, a code of procedure, preparation, implementation by facilities, personnel, and, above all, funds.
The gap-bridging reasoning which advances from probation revocation to parole revocation is, recognizably, the result of an erosive process which progressively treats each small distinction in a series as being of no account. Of course, as steps are taken in any novel direction it frequently becomes increasingly difficult to mark the instant gap before the next step, only
Vagaries in constitutional adventures often have a deeper cause. They stem from the unperceived or dimly perceived assumption that all that is fair, good, or desirable must be constitutional and, the converse, that all that is unfair, evil, and undesirable must be unconstitutional. If this were true, however, then apart from budget-making, areas of private law, and the like, there would be little left for legislative action. All important public law questions affecting individuals would then become issues of constitutional dimension and the province of the courts. Because declared constitutional the judicial pronouncement becomes supreme.
The point of these comments, applied to the matter at hand, is that, although I am convinced that it is fair, good, and desirable that parolees have the right to counsel in parole revocation, this is a policy view which does not rise to a constitutional 'principle and it is not desirable for the courts to impose this policy view on an overburdened correctional and criminal justice system. The ultimate truth is that more than the resources of the law library are required to solve the root problems in bettering the correctional and parole systems. Conceived and developed as humane ameliorations of a harsh prison system, they have undoubtedly fallen behind humane and just standards currently held.
The majority opinion sensitively recognizes that the new procedure will threaten to dam the already sluggish movement in the criminal justice system. Hence, the a priori limitation on the role of counsel and the hearing at which he will represent his client. But like unloosed quicksilver, the procedure will hardly remain confined. Testimony, we are told, may be adduced but only ‘ ‘ that the board is accurately informed of the facts before it acts ’ ’. It is difficult to think of any other proof which is properly admissible before a full-fledged tribunal and which would not be admissible, therefore, before the parole board.
There are or will be other practical problems.
Are the hearings to be recorded? Where will they be held? Who is to assign counsel for indigent parolees? Who will examine witnesses for the board? Will the board act as prose
And what if, in the view of counsel or the parolee, the board has applied the ‘ ‘ limitations ’ ’ on the hearing beyond the intention of the Constitution as now extrapolated? The Constitution, law, and “fundamental fairness” must allow judicial review of an alleged constitutional violation, and then there must be standards for reviewing the ' ‘ record ’ ’ made before the board, at least for gross unreasonableness of its action, if not on more probing standards. Moreover, where a new criminal offense is charged as the breach of parole, and a return to prison for many years may be entailed, it will be difficult, if fairness and equal protection of the laws are argued, to deny a reasonable doubt standard, or, in some future imagination, even a trial by jury.
The end is not yet. There must be postrevocation proceedings for constitutional violations, unbarrable by time limitations or laches. As in this very case, habeas corpus relief may not be denied, even after a long time lapse and without there ever hairing been a demand for counsel. Since the remedy created today affects, and it is justified only because it affects, the integrity of the fact-finding process, it should be applied retroactively, if ‘ ‘ fairness ’ ’ and ‘ ‘ fundamental constitutional rights ”, however newly discovered, are to be honored and a demeaning surrender to pragmatic considerations spurned. Moreover, as Judge Scileppi points out incisively, it is a thin line which separates parole release from parole revocation. This case shows that stare decisis will not suffice to maintain so thin a line very long. Lemmings, instinctively committed to their own self-destruction, could hardly be more assiduous.
None of this is to say that there is not a serious criminological problem. Parole revocation as it presently obtains does not satisfy modern standards. It is for this reason that the Presi
As it is now, parole board members travel continually from prison to prison to handle calendars that overwhelm them and on which they allot minutes for personal appearances by prisoners seeking to be paroled.
Probation revocation is a different matter. Courts revoke probation, not the parole board. Probation revocation is a function of the sentencing court in the courthouse in the county of venue.
To be sure a few States have provided the right to counsel on parole revocations. But none, with perhaps the exception of Pennsylvania, has the population, urbanization, and crime rate of this State, let alone the beleaguered system which currently attracts notoriety for purported denial of expedition in the handling of the individual caught in its mesh. The Federal system provides the right to counsel by administrative rule, the most flexible and controllable of methods.
Accordingly, agreeing that fairness would suggest a change in parole revocation procedure, but rejecting, emphatically, that an issue of constitutional dimension arises, exposed at long last by a bare majority of the court, which mandates the first of what will inevitably be a progression of judicial extensions, I dissent and vote to affirm the judgment dismissing the proceeding.
Judges Burke, Bergan and Gibson concur with Chief Judge Fuld; Judge Scileppi dissents and votes to affirm in an opinion in which Judge Breitel concurs in a separate opinion, and in both of which opinions Judge Jasen concurs.
Judgment reversed, without costs, and matter remitted to Supreme Court, Dutchess County, for further proceedings in accordance with the opinion herein.
In 1969 the 12-man Board of Parole, required by statute to sit as panels of three members each, held 18,381 “hearings”, of which 3,213 were first hearings following parole violations (Correction Law, § 6, subd. 1; id., former § 218, now § 212, subd. 7; Fortieth Annual Report of the Division of Parole of the Executive Department [N. Y. Legis. Doc., 1970, No. 98], pp. 4-5,13, and Tables 1 and II). Of 4,274 parolees declared delinquent in that year, 969 had committed “ technical violations ” of the terms of parole (id., Tables 22 and VIII). The board in 1951 contained only five members but the number was progressively increased to its present size (Executive Law, § 241 prior to repeal by L. 1970, ch. 475; see L. 1960, ch. 351; L. 1962, ch. 549; L. 1963, ch. 207; L. 1967, ch. 324, § 2). The effect of the rule in this case on parole revocations arising from convictions for misdemeanors, particularly in New York City, is indeterminate.