Robert E. Jones v. Hugh F. Rivers, Donald Clemmer

"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.

"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 theconvictionwhereas thesentenceis 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.

"`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.'"

"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.

"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.

"* * * 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.

"* * * 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 understand 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."

"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)."

"* * * 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. 660,88 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 allegedPage 869violation, 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 compulsory 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 without 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 indigent if requested, and with compulsory process also available."318 F.2d at 260.

"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 framework. Compare Greene v. McElroy,360 U.S. 474,507-508,79 S.Ct. 1400,3 L.Ed.2d 1377(1959)."

"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 meantime, 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."

"* * * 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 litigation 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 exercised we think there is no place for lawyer representation and lawyer opposition in the matter of revocation of parole.

"We quite realize that this conclusion is contrary to the one reached 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."

"It is worth noting in this connection 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 revision of Title 18 of U.S.C. came out of the Judiciary Committees."

"The court is aware that the District 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 circuit, a district court has held that the prisoner has no right to have counsel appointed, nor to have compulsory attendance of witnesses. Martin v. United States Board of Parole,199 F. Supp. 542(D.D.C. 1961)."205 F. Supp. at 743.

"* * * 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 prisoner having been granted his conditional freedom on parole, the sole question before the Board, the determination of which may be delegated to a single member or even an examiner, is whether the parolee, in the judgment of the Board, is still a good parole risk. That determination presupposes an informal type of conference far removed from the technical ritual of a trial."190 F. Supp. at 751.

"The subject of assignment of counsel is an entirely different matter. 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 counsel 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 CommitteePage 872on the Rules of Criminal Procedure contain the following statement as to this Rule:

"`The rule is intended to indicate that the right of the defendant to have counsel assigned by the court relates only to proceedings in court.'

"It must be borne in mind in this connection that there is no constitutional right to a hearing before the Parole Board on the question of revocation 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 revocation of probation, need not be a formal trial. It may be just a summary hearing, merely an opportunity to the defendant to make such explanation 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.