Robert E. JONES, Appellant, v. Hugh F. RIVERS, et al., Donald Clemmer, et al., Appellees.
No. 9158.
United States Court of Appeals Fourth Circuit.
Argued Jan. 23, 1964. Decided Nov. 4, 1964.
338 F.2d 862
MacDougal Rice, Asst. U. S. Atty. (C. V. Spratley, Jr., U. S. Atty., on brief), for appellees.
Before SOBELOFF, Chief Judge, and HAYNSWORTH and BOREMAN, Circuit Judges.
BOREMAN, Circuit Judge.
Appellant, Robert E. Jones, is now confined in the District of Columbia Reformatory at Lorton, Virginia. On June 3, 1955, he was convicted in the United States Court for the District of Columbia of a violation of
On September 30, 1962, Jones was again arrested and was returned to Lorton pursuant to a warrant issued by the District of Columbia Board of Parole charging him with a violation of the conditions of his release. On October 25, 1962, he was given a hearing before the D. C. Board of Parole and on the same day the Board revoked his parole and ordered him to serve the remainder of his original sentence.
Jones instituted this habeas corpus proceeding and we accept his assertion that he “alleged, in substance, that his confinement was unlawful because the ‘hearing’ pursuant to which his parole was revoked did not satisfy the requirements of law—in particular, because appellant [Jones] an indigent, was not furnished the assistance of counsel, nor advised of his right to have counsel appointed to assist him.” He prayed his release from confinement.
The District Court conducted a hearing on June 18, 1963, and found that Jones had not been informed of his right to be represented by his own counsel before the Board, that he had not waived this right and, consequently, he had not had the parole revocation hearing to which he was entitled. From the record it appears that the court orally stated the conclusion that there was no requirement that counsel be appointed to represent Jones at the Board hearing. It was formally ordered that the Board of Parole should, after at least thirty days’ notice, hold a new hearing with respect to parole revocation. The order provided that Jones “be given an opportunity to secure and have available for such hearing counsel of his own choosing and employment, and such witnesses as the petitioner desires” and that the Petition for Writ of Habeas Corpus be denied “with respect to the request for release from imprisonment.”
The Board of Parole then fixed upon July 26, 1963, as the date for a new hearing and gave the required thirty day notices to the interested parties. Jones was advised that he was being given an opportunity to secure and have available for such hearing counsel of his own choosing and employment.
On July 1, 1963, after receipt of notice of the new hearing, Jones filed his notice of appeal. However, we are in-formed that, pursuant to the order of the court below, the District of Columbia Board of Parole proceeded to hold another hearing on the date fixed therefor at which Jones was present without counsel. His parole was again revoked.
Tersely stated, the only question presented on appeal is whether due process requires that an indigent parolee be provided with appointed counsel at parole revocation proceedings before the District of Columbia Board of Parole. Judges Haynsworth and Boreman have concluded that there is no such requirement and the latter has prepared this opinion. Judge Haynsworth has elected to file a separate notation of special concurrence. Chief Judge Sobeloff, concurring specially as to the result in this case, has fully stated his views in a separate opinion filed herewith.
The District of Columbia Board of Parole was created by Congress in 1932 and vested with all the powers and authority of the Federal Parole Board over persons committed to the D. C. penal institutions. However, Congress has seen fit to amend the D. C. parole laws as will be hereinafter shown.
Under the provisions of
We next turn our attention to the more recent decision in Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225 (1963), in which eight separate cases arising from parole revocation proceedings were consolidated for consideration by the court, sitting en banc. Judge Burger wrote the majority opinion in which Judges Miller (Wilbur K.), Washington, Danaher and Bastian concurred. Several issues were presented and considered,6 among them being the question of the right of an indigent parolee to appointment of counsel. Involved there were the provisions of the general federal parole statute,
With reference to appointment of counsel the majority of the court, in Hyser, said:
“Appellants concede that Congress has not authorized the Parole Board to appoint counsel for indigent parolees appearing before it and that Congress has not empowered the federal courts to make such appointments. The decisions of this court which hold that the parolee must be advised of his right to have retained counsel present are based on judicial construction of the words ‘opportunity to appear before the Board’ in
18 U.S.C. § 4207 . [Case citations omitted.] They do not stand for the proposition that the presence of counsel is mandatory whenever a parolee appears before the Board or that parole revocation proceedings were to become adversary proceedings.“* * * No case has yet held that an interested party in an administrative or regulatory proceeding is entitled to be furnished with counsel if he cannot afford one of his own choice.
“We hold due process does not require that indigent parolees be provided with appointed counsel when they appear before the Parole Board in revocation proceedings.” 318 F.2d 225, at 238.
In Hyser the majority rejected the contention that the right to counsel at a revocation hearing springs from the due process requirements of the Fifth Amendment as applied to actions of the Parole Board. In that connection the majority opinion states:
“The Bureau of Prisons and the Parole Board operate from the basic premise that prisoners placed in their custody are to be rehabilitated and restored to useful lives as soon as in the Board‘s judgment that transition can be safely made. This is plainly what Congress intends. Thus there is a genuine identity of interest if not purpose in the prisoner‘s desire to be released and the Board‘s policy to grant release as soon as possible. Here there is not the attitude of adverse, conflicting objectives as between the parolee and the Board inherent between prosecution and defense in a criminal case. Here we do not have pursuer and quarry but a relationship partaking of parens patriae. In a real sense the Parole Board in revoking parole occupies the role of parent withdrawing a privilege from an errant child not as punishment but for misuse of the privilege. ‘Probation workers making reports of their investigations have not been trained to prosecute but to aid offenders.’ Williams v. People of State of New York, 337 U.S. [241] at 249, 69 S.Ct. [1079] at 1084 [93 L.Ed. 1337]. Perhaps the more correct view is that retributive justice is satisfied by the conviction whereas the sentence is a process of treatment. It is important to bear this in mind in determining whether there would be any gain to the parolee or to society in taking steps urged by the dissenting opinions which tend to equate parole processes with criminal prosecutions.” 318 F.2d 225, at 237-238.
In discussing the parole statutes generally, the majority declared that the legal proceeding most comparable to revocation of parole is revocation of probation. The opinion points out that the Supreme Court has considered claims by probationers that they be accorded full-dress hearings by the District Court before revocation of probation and in each instance the court has rejected the claim. At 318 F.2d 236, the majority quoted Mr. Justice Cardozo, who, speaking for the Court in Escoe v. Zerbst,
“‘Clearly the end and aim of an appearance before the court must be to enable an accused probationer to explain away the accusation. * * * This does not mean that he may insist upon a trial in any strict or formal sense. * * * It does mean that there shall be an inquiry so fitted in its range to the needs of the occasion as to justify the conclusion that discretion has not been abused by the failure of the inquisitor to carry the probe deeper.‘”
In discussing this point further, the majority in Hyser said:
“While there are distinguishing factors between probation and parole, the underlying purposes are closely allied. In each the entity which grants is the entity which is empowered to revoke. In each situation the revoking authority is being exercised pursuant to explicit statutory authority. Moreover that power is being exercised by a person or persons experienced in sifting and weighing evidence and evaluating the factors involved in the grant or revocation of conditional freedom. Congress, which is the source of both of these penological devices has given no indication that the revocation of parole should be more difficult or procedurally different than revocation of probation.” 318 F.2d at 236.
Amplifying the view with respect to the status of a parolee, the majority stated:
“From our review of the nature and purposes of parole it can be seen that appellants are neither totally free men who are being proceeded against by the government for commission of a crime, nor are they prisoners being disciplined within the walls of a federal penitentiary. They stand somewhere between these two. A paroled prisoner can hardly be regarded as a ‘free’ man; he has already lost his freedom by due process of law and, while paroled, he is still a convicted prisoner whose tentatively assumed progress towards rehabilitation is in a sense being ‘field tested.’ Thus it is hardly helpful to compare his rights in that posture with his rights before he was duly convicted.” 318 F.2d at 235.
Judge Washington filed a concurring opinion in which he took note of the purport of the earlier decisions of that court. Said he:
“* * *
Section 4207 of Title 18 requires the Board to afford the parolee ‘an opportunity to appear,’ and we have heretofore held that this opportunity to appear, in order to be an effective one and to represent a real protection of the parolee, embodies a right to bring retained counsel, * * *” 318 F.2d at 247.
At page 248 Judge Washington continued:
“* * * I believe that Congress, in providing for an opportunity to appear, sought to give the parolee a suitable forum in which to plead his cause—a meaningful proceeding, to be sure, but still an informal one. In my view, we cannot read into the statute the further requirements that appellants ask us to impose. These would transform revocation proceedings into full-dress adjudicatory hearings, with the Board put to its proof in every case. Congress clearly did not envision these proceedings as prosecutions in the traditional sense, and I do not under-stand it to be the proper role of the courts to work such radical changes unless constitutional considerations of a compelling nature appear. For the reasons given by Judge Burger, I do not find such considerations present here.”
Chief Judge Bazelon and Judge Edgerton, while concurring in part with the majority, unequivocally expressed their
“Furthermore, were we to construe the statutory grant of the right to counsel as intended only for those who can pay, substantial constitutional questions would arise. Although the Federal Government is not directly limited by an ‘equal protection of the laws’ clause, the Supreme Court has held that ‘discrimination [by the Federal Government] may be so unjustifiable as to be violative of due process.’ The Supreme Court has repeatedly held that in criminal trials, discrimination ‘on account of poverty’ is as unjustifiable as discrimination ‘on account of religion, race, or color,’ because it ‘bears no rational relationship to a defendant‘s guilt or innocence.’ Griffin v. Illinois, 351 U.S. 12, 17-18, 76 S.Ct. 585, 589-590, 100 L.Ed. 891 (1956). Poverty bears no more relationship to the question of parole violation than to the question of guilt. Therefore congressional discrimination against parolees who cannot afford counsel would raise serious problems of due process of law. To avoid such problems we should construe the statute to provide for the appointment of counsel for such parolees. Cf. Lynch v. Overholser, 369 U.S. 705, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962).”
Thus it is apparent that they read into
Judge Fahy, joined by Judge J. Skelly Wright, filed an opinion, concurring in part and dissenting in part. While viewing the revocation proceedings as non-adversary, Judge Fahy stated that personal liberty is involved and such pro-ceedings must conform with due process of law. In the following quotations lifted from his opinion will be found the substance of his conclusions:
“* * * But due process of law varies widely with circumstances. Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960); Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 8 L.Ed. 834 (1944). It is one thing in a prosecution for crime. It is another in administering the parole system. In some aspects of the parole system due process of law is like that applicable to the revocation of probation, the nature of which is explained in Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266 (1932), or to sentencing, reviewed in Williams v. People of State of New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). And see Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935). The Board must obey applicable legislation but otherwise it seems to me the Board is required only to perform its functions fairly under fair procedures. It may not act unreasonably or arbitrarily.” 318 F.2d at 258.
“* * * At the hearing he should have the opportunity to be heard in person and to present witnesses, to bring counsel to assist him, and to have access to, and, on request, confrontation, of the sources of information as to the allegedviolation, with right of cross-examination.” 318 F.2d at 259.
“In all the above the Board, from the very beginning and through each step must act on behalf of the parolee as well as in the public interest. Counsel, though permitted, I think is not in these circumstances the touchstone of due process, either traditionally or rationally. * * *” 318 F.2d at 260.
“The impact of a parole violation is upon a conditional personal liberty. This is not the same as the impact on liberty of a trial for crime. While due process is required, this does not as a rule for parole violation call for a procedure broken down into the right to have counsel appointed, or to have com-pulsory process. If, however, these appear in a particular case to be essential to the reaching of a fair and reasonable result by the Board the Board may not validly act with-out them. Ordinarily this is not the situation. Perhaps it is of some use to add that the action of the Board is subject to judicial review, with counsel appointed for an in-digent if requested, and with com-pulsory process also available.” 318 F.2d at 260.
Judge J. Skelly Wright filed his separate opinion in which he advocated a hearing before any determination as to retaking the parolee is made and before the issuance of a warrant. In his view this hearing should be nonadversary and relatively informal, with the rules of evidence relaxed as indicated in the majority opinion. He advocates the appointment of a probation officer to assist the parolee in his defense if he denies the charges and is not represented by counsel, such appointment to be made pursuant to
“I also concur in most of what is so well stated in the excellent opinion of Judges Bazelon and Edgerton. With me, however, the primary attribute of a good parole system is a liberal parole policy. Requiring a full-dress second trial, even limited to questions of fact, would, in my judgment, militate against such a policy. Rights to assigned counsel and compulsory process in revocation proceedings are obviously desirable, but the price in terms of the number of persons paroled, or, more accurately, not paroled, may be too high. For the time being I would accept the nonadversary hearing with a probation officer assisting the parolee. As stated in the text, I believe that such protection conforms with the current concept of due process and it is possible within the statutory frame-work. Compare Greene v. McElroy, 360 U.S. 474, 507-508, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959).”
Other courts have interpreted the parole statutes and have expressed their views with reference to representation of parolees by counsel. In Hiatt v. Compagna, 178 F.2d 42 (5 Cir. 1949), affirmed by equally divided Court, 340 U.S. 880, 71 S.Ct. 192, 95 L.Ed. 639, reh. den., 340 U.S. 907, 71 S.Ct. 277, 95 L.Ed. 656 (1950), the court stated that parole revocation is informal and discretionary and that
The Third Circuit considered an appeal based upon the sole ground that the habeas corpus petitioner, a prisoner whose parole had been revoked, did not have counsel and was not told that he was entitled to counsel. The court, speaking through Judge Goodrich in Washington v. Hagan, 287 F.2d 332 (3 Cir. 1960), affirmed the judgment of the lower court and held that the parolee was not entitled to counsel at his revocation hearing. At 287 F.2d 333, the court said:
“On the merits of the case there is divided authority. The District of Columbia Circuit decided in a case involving the district only that a parolee was entitled to counsel at his hearing. Fleming v. Tate, 1946, 81 U.S.App.D.C. 205, 156 F.2d 848, 849. That Court interpreted the words ‘opportunity to appear’ to include ‘opportunity to appear with counsel.’ The statute applicable to the district was amended to codify this decision. But later the Court of Appeals for that Circuit decided the question the same way in a case not involving the local statute. Robbins v. Reed, 1959, 106 U.S.App. D.C. 51, 269 F.2d 242. In the mean-time, the revision of
18 U.S.C. had reenacted the provision for a parolee‘s hearing without putting in the clause allowing counsel at the revocation hearing.”
The court, after noting that it had been the practice for more than fifty years to allow a prisoner a hearing but not representation by counsel, said at page 334:
“* * * We think the practice is right because this matter of whether a prisoner is a good risk for release on parole or has shown himself not to be a good risk, is a disciplinary matter which by its very nature should be left in the hands of those charged with the responsibility for deciding the question. * * *
“The period of contentious litiga-tion is over when a man accused of crime is tried, defended, sentenced and, if he wishes, has gone through the process of appeal. Now the problem becomes one of an attempt at rehabilitation. The progress of that attempt must be measured, not by legal rules, but by the judgment of those who make it their professional business. So long as that judgment is fairly and honestly exer-cised we think there is no place for lawyer representation and lawyer opposition in the matter of revoca-tion of parole.
“We quite realize that this con-clusion is contrary to the one reach-ed by our brethren in the District of Columbia. We are satisfied that the result we reach is the proper one. Nevertheless, the final word must either come from the Congress or the Supreme Court.”
Judge Goodrich rejected the argument that the reenactment of the general fed-eral parole statute without the permis-sive provision for counsel representation shows that it was the intent of Congress not to allow it. In footnote 4, 287 F.2d 334, he cogently observes:
“It is worth noting in this connec-tion that the change in the District of Columbia Code was considered and reported to the Congress by the District of Columbia Committees of the respective Houses while the revi-sion of
Title 18 of U.S.C. came out of the Judiciary Committees.”
In Gibson v. Markley, 205 F.Supp. 742 (D.C.S.D. Ind.1962), the petitioner, a federal prisoner whose parole had been revoked, sought habeas corpus relief be-cause at his “appearance” before a mem-ber of the United States Board of Parole required by
“The court is aware that the Dis-trict of Columbia Circuit Court of Appeals has held that a prisoner must be given the right to have counsel present at such hearings * * *. However, even in that cir-cuit, a district court has held that the prisoner has no right to have counsel appointed, nor to have com-pulsory attendance of witnesses. Martin v. United States Board of Parole, 199 F.Supp. 542 (D.D.C. 1961).” 205 F.Supp. at 743.
In Hock v. Hagan, 190 F.Supp. 749 (D.C.M.D.Pa. 1960), a retaken federal parolee sought habeas corpus relief be-cause he had asked whether he could have counsel present at his revocation hearing and his request was refused by the Pa-role Board representative. The court there attached significance to the fact that Congress had, in 1947, inserted into the District of Columbia parole statute the provision that a parolee “may be represented by counsel” at his revocation hearing and, in 1948, when amending
“* * * A revocation hearing is not a trial, nor indeed is it primarily concerned with the commission of an offense. As a matter of fact, a pris-oner having been granted his condi-tional freedom on parole, the sole question before the Board, the deter-mination of which may be delegated to a single member or even an ex-aminer, is whether the parolee, in the judgment of the Board, is still a good parole risk. That determina-tion presupposes an informal type of conference far removed from the technical ritual of a trial.” 190 F. Supp. at 751.
Involved in Poole v. Stevens, 190 F. Supp. 938 (D.C.E.D.Mich.1960), was the right of a parolee to have counsel present at his revocation hearing under
Martin v. United States Board of Parole was decided by District Judge Holtz-off of the District of Columbia, 199 F. Supp. 542 (1961). It was there held that the parolee is not entitled to have counsel assigned to represent him at his revocation hearing although the Parole Board should not decline to hear either counsel or voluntary witnesses if they appear. We quote from Judge Holtzoff‘s opinion as follows:
“The subject of assignment of counsel is an entirely different mat-ter. The right of counsel under the Sixth Amendment does not apply to parole hearings; it applies only to trials in court. This was recognized by the framers of the Federal Rules of Criminal Procedure because
Rule 44, 18 U.S.C.A. , expressly provides that if the defendant appears in court without counsel, the Court shall advise him of his right to coun-sel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or is able to obtain counsel. The Notes of the Advisory Commit-tee on the Rules of Criminal Proce-dure contain the following statement as to this Rule: “‘The rule is intended to indi-cate that the right of the defend-ant to have counsel assigned by the court relates only to proceed-ings in court.’
“It must be borne in mind in this connection that there is no constitu-tional right to a hearing before the Parole Board on the question of rev-ocation of parole. The only reason such a right exists is because it is prescribed by statute. The Supreme Court, in an opinion by Mr. Justice Cardozo, many years ago, in the Escoe case [Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566], held that the hearing prescribed by statute in connection with a revoca-tion of probation, need not be a for-mal trial. It may be just a summary hearing, merely an opportunity to the defendant to make such explana-tion as he desires to present; and that has also been construed as meaning that he can be accompanied by counsel of his own choice and by witnesses.” 199 F.Supp. at 543.
A report of the Attorney General‘s Committee on Poverty and the Adminis-tration of Federal Criminal Justice7 in-dicates grave concern over the problem of providing counsel for indigent persons involved in parole and mandatory release revocation proceedings before the United States Board of Parole. One thing is certain, however, and that is in its discussion the Committee recognized that present decisions do not require that counsel be appointed.8
As an aside we offer the comment that perhaps the time is rapidly approaching when some consideration should be shown for the members of the legal profession also and their rights to provide for their dependent loved ones and to build some
Certainly, a Board of Parole is not a judicial body. It has no right, statutory or otherwise, to appoint an at-torney to represent a parolee at a revoca-tion hearing and we reject the thought or suggestion that the Board should ever be clothed with any such power or au-thority. Nor should any court be em-powered to require one of its attorney officers to undertake such representation before this administrative agency. Con-gress controls the federal purse and if it should conclude that it is desirable to provide counsel representation in every parole revocation proceeding, it might explore the possibility of placing at the disposal of the parole board sufficient funds to permit the employment of coun-sel to assist those who are financially un-able to retain counsel. We do not, how-ever, want to be understood as urging the adoption of such procedure or as in-dicating any opinion as to its legality.
Congress, in its wisdom and, in our opinion, motivated solely by the de-sire to respectfully follow the decision of the Court of Appeals of the District of Columbia in Fleming v. Tate, supra, (156 F.2d 848), amended the D.C.Code so that a district parolee may be represent-ed by counsel before the Board. But it appears from the cases that the federal courts generally have determined that the decisions of Parole Boards are subject to judicial review in habeas corpus pro-ceedings as well as in actions for de-claratory and injunctive relief. In such proceedings courts may, and do, call upon their attorney officers to represent indi-gent petitioners and protect them against arbitrary and unreasonable parole revo-cation orders.
We have indulged in a lengthy discus-sion of the decisions of a number of fed-eral courts in order to present a cross section of the reasoning advanced by those courts which have interpreted the parole statutes and considered the rights of parolees to counsel representation at revocation hearings. It is apparent that the views of individual judges are not free of conflict. It does seem, however, that almost every conceivable concept has been presented. Of course, we are here particularly concerned only with
We are not unmindful of the fact, a fact urged as compelling here, that the spread of the due process umbrella is rapidly being enlarged to provide cover and protection for individual rights which, only a few short years ago, had little or no recognition. Our attention is directed to the decisions of the Su-
Jones contends before us that he was financially unable to retain counsel at his revocation hearing and that whether, in this context, a distinction can be drawn between affluent and indigent parolees is a question not only of policy and logic but also, and in fact, a question of con-stitutional dimensions. In responding to this contention, we shall state our posi-tion on the one question before us, a position which we believe is in accord with the better and the majority view of the courts which have considered this particular problem.
Due process of law varies wide-ly with circumstances. It is one thing in a prosecution for crime, it is another in administering the parole system. The Board of Parole must obey applicable legislation but otherwise it is only re-quired to perform its functions fairly, under fair procedures; it may not act unreasonably, capriciously or arbitrarily. Freedom, on parole from confinement in a penal institution prior to serving all of an imposed sentence, is a matter of legis-lative grace—it is neither a constitu-tionally guaranteed nor a God-given right. Parolees are neither totally free men against whom the government is proceeding for commission of a crime, nor are they prisoners being disciplined within the walls of a federal penitentiary—they stand somewhere between the two.
Reasonable conditions may be imposed upon the parolee and he may in-sure his continued liberty by strict ob-servance thereof. The impact of a parole violation is upon a conditional personal liberty as distinguished from the impact of a criminal trial upon the liberty of one who may be deprived thereof only after full compliance with the constitutional requirements of due process. When a person accused of crime has been tried, defended, sentenced and, if he wishes, has exhausted his rights of appeal, the period of contentious litiga-tion is over. The problem then becomes one of an at-tempt at rehabilitation and the progress of that attempt should be measured, not by legal rules, but by the considered judgment of those who make it their pro-fessional business. So long as that judg-ment is fairly and honestly exercised, a judgment which is subject to judicial re-view, we think there is no place for re-quired counsel representation in the mat-ter of parole revocation. In short, it is illogical to equate parole processes with criminal prosecutions and we conclude that due process does not require that indigent parolees be provided with coun-sel when they appear before the Parole Board, a member thereof, or an examiner designated by the Board.
There is another reason for affirmance which appears to us to be persuasively compelling here. The Court of Appeals for our sister Circuit, namely, for the District of Columbia, has just considered en banc in Hyser v. Reed, supra, what appears to be the precise question now before us even though arising under the general federal parole statute. It has decided that there is no constitutional right to assigned counsel in parole revocation hearings and it has construed the general parole statute as embodying the provision concerning permissive counsel represen-tation inserted by Congress in the Dis-trict of Columbia Code. The District of Columbia Parole Board must be expected to follow the directions of the Court of
We affirm the District Court‘s order denying Jones’ petition for release from confinement and requiring the D. C. Board of Parole to grant Jones a new hearing after notice and after informing him of his right to be represented by counsel of his own choice and employ-ment. According to our information, such a hearing has actually been held at which Jones waived his right to such representation. However, those proceed-ings are not properly before us on this appeal. Therefore, we remand the case to the District Court in order that it may determine Board compliance with the order of rehearing if so requested within a reasonable period of time.
Affirmed and remanded for further proceedings.
SOBELOFF, Chief Judge (concurring specially).
Because Jones has admitted the charge against him, namely, that he was con-victed of seven traffic charges and dis-orderly conduct while on parole, I agree that the appointment of counsel was not required in this case.
While I concur in the result reached by the court, I regret that I cannot join in the able and thorough opinion of my Brother Boreman. My reservations con-cern hearings in which there is a dispute as to the events upon which recommit-ment of a parolee is sought. Judge Bore-man‘s opinion makes no distinction be-tween such hearings and others, like the one before us, where the occurrences charged are not challenged. The distinc-tion is important. Judge Haynsworth, who recognizes that there may be cases where the absence of counsel could im-pair the fairness of revocation proceed-ings, comes closer to my view; but, as the subject seems to me to require further exposition, I state my views separately.
It is unnecessary to enter into an ex-tended theoretical discussion of the re-semblances and disparities between the trial of a criminal case in court and a parole revocation proceeding. The sub-ject has been explored by Judge Boreman and by our brethren in the District of Columbia Circuit in the several opinions written in the case of Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225 (1963). Regardless of how such proceedings are to be characterized, each of the nine judges in Hyser concluded that the statu-tory command of the general parole stat-ute,
In light of the more explicit provision found in the
Taking this approach, we are not called upon to decide what distinctions may con-stitutionally be drawn between revoca-tion hearings and court trials. Even
In this respect the District of Colum-bia Parole Act, which governs here, is more favorable to the parolee than the parallel statute,
In unmistakable language the Supreme Court has in other contexts indicated that it will not sanction discrimination between indigents and those who possess the means to protect their rights. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Gideon v. Wain-wright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Douglas v. Califor-nia, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963); Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1961). While the cited cases were criminal prosecu-tions, there is no reason to attach signifi-cance to their technical classification as criminal rather than civil; the underly-ing feature to be noted is the fact that the liberty of the individual was involved.
The law does not undertake to redress all imbalances between rich and poor, but it can be said that when it is alleged and denied that the retaken prisoner has violated the conditions of his parole, and representation by retained counsel is per-mitted, this advantage should not be de-nied solely because of poverty.
The District of Columbia parole stat-ute which affords an alleged parole viola-tor the opportunity to be represented by retained counsel must be construed against the background of these Supreme Court decisions. Furthermore, as Judg-es Bazelon and Edgerton pointed out in Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225, 255 (1963), courts should hesitate to adopt a construction attribut-ing to Congress a willingness to sanction discrimination between rich and poor where the issue at stake is the continued freedom of the alleged parole violator.
We deal here with no general investi-gation conducted for legislative purposes, as conceived in Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960), but the possible loss of the re-stricted liberty enjoyed by the parolee. While one on parole is not completely free, being theoretically in legal custody, there is still a vast difference between a state of such restricted freedom and actual imprisonment. See Jones v. Cun-ningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963).
At the revocation hearing, where the contested violation of parole may itself be a crime and result in loss of liberty, it is no less important to the prisoner to have counsel than it was in the orig-inal trial. It seems to me an insufficient answer to say that in extreme cases of arbitrariness or abuse there may be judicial review in which counsel will be appointed. After the administrative hearing is over, it may be too late for
It has been pointed out that the Pa-role Board and its agents have the duty of functioning in the interest of the individual in an advisory capacity and it is suggested that therefore they may be relied upon to see to it that the hear-ing will be conducted fairly and impar-tially. It is surely no reflection on these officials to recognize, what is commonly accepted in our system of jurisprudence, that there is inherent danger in combin-ing the functions of judge and advocate. Judges and prosecutors are likewise un-der a duty to be fair to the accused and in most instances they strive conscien-tiously to give him every right that is due. Nevertheless, we do not rest con-tent with this. We reason that the ac-cused is still entitled to the benefit of counsel in the investigation and presen-tation of the defendant‘s version of dis-puted facts. We permit the defendant legal representation if he can afford to pay, and if he cannot we appoint a lawyer for him. At stake in a revocation hear-ing, when the parolee denies the viola-tion, are issues no less momentous than in the original trial. The need for coun-sel cannot be assumed to be less, and we cannot avoid the Supreme Court‘s teach-ing that the right to this assistance should not “depend on the amount of money he has.” Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 591, 100 L.Ed. 891 (1956).
Nor is our problem resolved by the euphemistic characterization of revoca-tion proceedings as “parental.” When the parole officer is engaged in an effort to prove that the parolee should be re-turned to prison for violating the con-ditions of his parole and the parolee de-nies the charge, it is incongruous to describe the proceedings as “non-adver-sary,” particularly as under the statute the finding of a violation mandatorily results in extending the parolee‘s sen-tence.1 The consequence of recommit-ment is not softened for the parolee by the use of benign words.
Judge Boreman‘s opinion follows close-ly the reasoning of the court in Hyser v. Reed. Judge Burger for the majority in Hyser lays down what I consider valu-able standards for the protection of the parolee at various stages of the revoca-tion proceedings. All of his colleagues welcomed these as important steps for-ward; three judges who concurred sepa-rately gave their own emphasis to the right of the alleged parole violator to be accorded confrontation of the witnesses against him, access to the sources of in-formation as to the alleged violation and the right of cross-examination. As a practical matter, however, these care-fully enumerated rights often cannot be availed of except with legal assistance. The judges who dissented took the view that, since the right to the presence of counsel is accorded in order to assure these safeguards, the need for this pro-tection is the same for all.
If the Parole Board were to adopt a plan like that suggested by Judge Wright, providing a special type of as-sistance to the parolee in establishing his defense—a probation officer trained and independent but not necessarily a lawyer—we would have a different situation. Conceivably, the substance of the requir-ed protection to the parolee‘s interests might be attained; but no such provision has been made and the question is not before us.
There is much force in the comment on the great economic burden that mem-bers of the bar have been called upon to shoulder in the uncompensated represen-tation of indigents. It is, as has been said, greatly to the credit of the profes-sion that its members have, almost with-out exception, accepted this burden will-ingly and often even eagerly. At long
That Congress has not provided the means for the Parole Board to appoint counsel in revocation hearings should not deter us from our duty to declare the parolee‘s rights under the statute.2 When the courts make such a declara-tion, Congress may be expected to pro-vide the means to implement it, as illus-trated by the
“[A]s a matter of equity, counsel should be supplied the prisoner who is financially unable to obtain repre-sentation. The Board‘s rules recog-nize that the prisoner with adequate means or who is otherwise capable of ‘arranging’ representation, is en-titled to make use of the services of counsel at the hearing. We strongly feel that this advantage cannot fairly be confined to those financially able to purchase it and that the situation as it has now developed gives rise to serious in-equity.” At p. 49.
These comments emphasize that where the issue is a factual one, i. e., whether the parolee has violated the conditions
of his parole, the parolee, be he affluent or indigent, requires the assistance of counsel. Such assistance is needed to insure that, in the determination of the factual issues before the Parole Board, the accused parolee is afforded all of the procedural safeguards to which he is en-titled. Thus the appointment of counsel is required where the accused parole violator is indigent and denies that he has violated the conditions of his parole.
As recognized in the opening para-graph of this opinion, the situation is different in this case, since the parolee concedes that he has violated the condi-tions of his parole. Here the Parole Board is merely exercising its discretion as to whether, in light of the admitted violation, parole should be revoked. I agree that, usually in such situations, the purpose of the hearing is unlike that of an adjudicatory proceeding, and there is no requirement for the appointment of counsel.
HAYNSWORTH, Circuit Judge (con-curring specially).
If I were to accept the premise that representation by counsel is essential to a meaningful appearance by a parolee before a parole board, I would have great difficulty in finding justification for a scheme which made provision for such an appearance by those who could afford it without providing for such an appear-ance by those who could not afford it. I do not accept the premise, however. I think Judge Fahy was correct in point-ing out in his opinion in Hyser v. Reed, 318 F.2d 225, 257, that, while representa-tion by counsel may be essential to a meaningful appearance in some extraor-dinary parole proceedings, it is not es-sential in the kind of routine revoca-
A possible extension to parole revoca-tion proceedings of a universal require-ment of counsel at every hearing ought not to be undertaken without regard to the impact of the requirement upon the parole process. Judge Wright in his opinion in Hyser v. Reed, 318 F.2d 225, 261, wisely points up the considerations. A rigid imposition of a procedural re-quirement for all cases, which serves no useful purpose in most but which unduly burdens the entire process, would be a long step backward, not forward, in the protection of personal liberties.
In this case, therefore, in which there is no contention of actual unfairness, I readily join my Brother Boreman in his opinion, in which he demonstrates, I think, that the Constitution does not re-quire a parole board to furnish appointed counsel in a routine revocation hearing when the fairness of the proceeding will not be impaired by the absence of coun-sel.
Had I any doubt about the matter, however, and I confess none, I would be constrained in the circumstances of this case to defer to the decision of our Sister Circuit for the reasons stated by Judge Boreman.
Notes
“In the event a prisoner is confined in, or as a parolee is returned to a penal or correctional institution other than a penal or correctional institution of the District of Columbia, the Board of Parole created by * * * ( * * * ; 18 U.S.C. § 723a), shall have and exercise the same power and authority as the Board of Parole of the District of Columbia had the prisoner been confined in or returned to a penal or correctional institution of the District of Columbia.” (July 15, 1932, 47 Stat. 698, ch. 492, § 6; June 6, 1940, 54 Stat. 242, ch. 254, § 5; July 17, 1947, 61 Stat. 379, ch. 263, § 5.) (Emphasis added.)
Thus the result of the Board‘s decision in this case was the extension of the expiration of Jones’ sentence from June 2, 1964, to July 31, 1965.
“Revocation upon retaking parolee
“A prisoner retaken upon a warrant issued by the Board of Parole, shall be given an opportunity to appear before the Board, a member thereof, or an examiner designated by the Board.
“The Board may then, or at any time in its discretion, revoke the order of parole and terminate such parole or modify the terms and conditions thereof.
“If such order of parole shall be revoked and the parole so terminated, the said prisoner may be required to serve all or any part of the remainder of the term for which he was sentenced.”
It will be noted that § 24-206 provides that the time a prisoner was on parole shall not be taken into account to diminish the time for which he was sentenced, and upon revocation of parole the remainder of the sentence originally imposed is to be considered as a new sentence. By
Reed v. Butterworth, 111 U.S.App.D.C. 365, 297 F.2d 776 (1961). Action for declaratory and injunctive relief. Held: Alleged parole violator was entitled to counsel and to present voluntary witnesses at hearing before a member of Parole Board.
Barnes v. Reed, 112 U.S.App.D.C. 192, 301 F.2d 516 (1962). Action for declaratory and injunctive relief. Held: Alleged parole violator was entitled to representation by counsel of his own choice, to testify in his own behalf and to present testimony of voluntary witnesses at hearing before an examiner for the Parole Board.
“The Committee believes that it is neither feasible nor proper for it at this time to submit detailed recom-mendations relating to parole revoca-tion procedures. We shall, however, make some general comments. First, it seems apparent that however the is-sues raised in the pending legislation are resolved, the Department [of Jus-tice] is called upon to give careful consideration to the devising of new legislative and administrative proposals in this area. Should the courts decide that the Board is required by existing statutes or as a matter of constitutional law to provide representation for pris-oners financially unable to retain coun-sel, compulsory process, rights of cross-examination, confrontation, and the like, substantial modification of existing procedures will have to be effected. But even if these changes are not com-pelled by judicial decision, the Committee believes that the Department will still be called upon to give careful consid-eration to these problems. We believe that the government‘s obligations will be met only when the procedures before the Board reflect the standards of sound policy and scrupulous fairness and that this goal should be pursued however the constitutional minima may be de-fined by the courts.
“Second, we believe that certain gen-eral propositions can be advanced for the solution of these problems. It is apparent that a proposal like that of supplying counsel to the prisoner without adequate means presents problems both of principle and prac-tice. As a practical matter, it has been doubted that the Board has or can properly be given author-ity to require attorneys to pro-vide representation in these cases and it has been questioned whether the courts possess authority to appoint counsel to serve in administrative hearings, like the parole revocation proceedings. * * *” (Emphasis supplied.)
The Committee observed that Congress might properly authorize the federal pub-lic defender to assume the obligations of such representation in those districts that elect the public defender system but stated its conclusion that the De-partment needs to give further consid-eration, not only to the problem of sup-plying counsel, but to the other ele-ments of “fair hearing in the revocation proceeding.”
Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), holding that in state prosecutions involving serious crimes counsel must be appointed to represent defendants who are unable to retain their own counsel.
Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).
Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963).