411 U.S. 778 (1973), 71-1225, Gagnon v. Scarpelli

Docket Nº:No. 71-1225
Citation:411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656
Party Name:Gagnon v. Scarpelli
Case Date:May 14, 1973
Court:United States Supreme Court

Page 778

411 U.S. 778 (1973)

93 S.Ct. 1756, 36 L.Ed.2d 656




No. 71-1225

United States Supreme Court

May 14, 1973

Argued January 9, 1973




Respondent, a felony probationer, was arrested after committing a burglary. He admitted involvement in the crime, but later claimed that the admission was made under duress, and was false. The probation of respondent, who was not represented by an attorney, was revoked without a hearing. After filing a habeas corpus petition, he was paroled. The District Court concluded that revocation of probation without hearing and counsel was a denial of due process. The Court of Appeals affirmed.


1. Due process mandates preliminary and final revocation hearings in the case of a probationer under the same [93 S.Ct. 1758] conditions as are specified in Morrissey v. Brewer, 408 U.S. 471, in the case of a parolee. Pp. 781-782.

2. The body conducting the hearings should decide in each individual case whether due process requires that an indigent probationer or parolee be represented by counsel. Though the State is not constitutionally obliged to provide counsel in all cases, it should do so where the indigent probationer or parolee may have difficulty in presenting his version of disputed facts without the examination or cross-examination of witnesses or the presentation of complicated documentary evidence. Presumptively, counsel should be provided where, after being informed of his right, the probationer or parolee requests counsel, based on a timely and colorable claim that he has not committed the alleged violation or, if the violation is a matter of public record or uncontested, there are substantial reasons in justification or mitigation that make revocation inappropriate. Pp. 783-791.

3 In every case where a request for counsel is refused, the grounds for refusal should be stated succinctly in the record. P. 791.

454 F.2d 416, affirmed in part, reversed in part, and remanded.

POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a statement dissenting in part, post, p. 791.

Page 779

POWELL, J., lead opinion

MR. JUSTICE POWELL delivered the opinion of the Court.

This case presents the related questions whether a previously sentenced probationer is entitled to a hearing when his probation is revoked and, if so, whether he is entitled to be represented by appointed counsel at such a hearing.


Respondent, Gerald Scarpelli, pleaded guilty in July, 1965, to a charge of armed robbery in Wisconsin. The trial judge sentenced him to 15 years' imprisonment, but suspended the sentence and placed him on probation for seven years in the custody of the Wisconsin Department of Public Welfare (the Department).1 At that time, he signed an agreement specifying the terms of his probation and a "Travel Permit and Agreement to Return" allowing him to reside in Illinois, with supervision there under an interstate compact. On August 5, 1965, he was accepted for supervision by the Adult Probation Department of Cook County, Illinois.

On August 6, respondent was apprehended by Illinois police, who had surprised him and one Fred Kleckner,

Page 780

Jr., in the course of the burglary of a house. After being apprised of his constitutional rights, respondent admitted that he and Kleckner had broken into the house for the purpose of stealing merchandise or money, although he now asserts that his statement was made under duress and is false. Probation was revoked by the Wisconsin Department on September 1, without a hearing. The stated grounds for revocation were that:

1. [Scarpelli] has associated with known criminals, in direct violation of his probation regulations and his supervising agent's instructions;

2. [Scarpelli,] while associating with a known criminal, namely Fred Kleckner, Jr., was involved in, and arrested for, a burglary . . . in Deerfield, Illinois.

App. 20. On September 4, 1965, he was incarcerated in the Wisconsin State Reformatory [93 S.Ct. 1759] at Green Bay to begin serving the 15 years to which he had been sentenced by the trial judge. At no time was he afforded a hearing.

Some three years later, on December 16, 1968, respondent applied for a writ of habeas corpus. After the petition had been filed, but before it had been acted upon, the Department placed respondent on parole.2 The District Court found that his status as parolee was sufficient custody to confer jurisdiction on the court, and that the petition was not moot, because the revocation carried "collateral consequences," presumably including the restraints imposed by his parole. On the merits, the District Court held that revocation without a hearing and counsel was a denial of due process. 317 F.Supp. 72 (ED Wis. 1970). The Court of Appeals affirmed sub

Page 781

nom. Gunsolus v. Gagnon, 454 F.2d 416 (CA7 1971), and we granted certiorari. 408 U.S. 921 (1972).


Two prior decisions set the bounds of our present inquiry. In Mempa v. Rhay, 389 U.S. 128 (1967), the Court held that a probationer is entitled to be represented by appointed counsel at a combined revocation and sentencing hearing. Reasoning that counsel is required "at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected," id. at 134, and that sentencing is one such stage, the Court concluded that counsel must be provided an indigent at sentencing even when it is accomplished as part of a subsequent probation revocation proceeding. But this line of reasoning does not require a hearing or counsel at the time of probation revocation in a case such as the present one, where the probationer was sentenced at the time of trial.

Of greater relevance is our decision last Term in Morrissey v. Brewer, 408 U.S. 471 (1972). There we held that the revocation of parole is not a part of a criminal prosecution.

Parole arises after the end of the criminal prosecution, including imposition of sentence. . . . Revocation deprives an individual not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.

Id. at 480.

Even though the revocation of parole is not a part of the criminal prosecution, we held that the loss of liberty entailed is a serious deprivation requiring that the parolee be accorded due process. Specifically, we held that a parolee is entitled to two hearings, one a

Page 782

preliminary hearing at the time of his arrest and detention to determine whether there is probable cause to believe that he has committed a violation of his parole, and the other a somewhat more comprehensive hearing prior to the making of the final revocation decision. Petitioner does not contend that there is any difference relevant to the guarantee of due process between the revocation of parole and the revocation of probation, nor do we perceive one.3 Probation revocation, like parole revocation, is not a stage of a criminal [93 S.Ct. 1760] prosecution, but does result in a loss of liberty.4 Accordingly, we hold that a probationer, like a parolee, is entitled to a preliminary and a final revocation hearing under the conditions specified in Morrissey v. Brewer, supra.5

Page 783


The second, and more difficult, question posed by this case is whether an indigent probationer or parolee has a due process right to be represented by appointed counsel at these hearings.6 In answering that question, we draw heavily on the opinion in Morrissey. Our first point of reference is the character of probation or parole. As noted in Morrissey regarding parole, the "purpose is to help individuals reintegrate into society as constructive individuals as soon as they are able. . . ." 408 U.S. at 477. The duty and attitude of the probation or parole officer reflect this purpose:

While the parole or probation officer recognizes his double duty to the welfare of his clients and to the safety of the general community, by and large, concern for the client dominates his professional attitude.

Page 784

The parole agent ordinarily defines his role as representing his client's best interests as long as these do not constitute a threat to public safety.7

Because the probation or parole officer's function is not so much to compel conformance to a strict code of behavior as to supervise a course of rehabilitation, he has been entrusted traditionally with broad discretion to judge the progress of rehabilitation in individual cases, and has been armed with the power to recommend or even to declare revocation.

In Morrissey, we recognized that the revocation decision has two analytically distinct components:

The first step in a revocation decision thus involves a wholly retrospective [93 S.Ct. 1761] factual question: whether the parolee has in fact, acted in violation of one or more conditions of his parole. Only if it is determined that the parolee did violate the conditions does the second question arise: should the parolee be recommitted to prison, or should other steps be taken to protect society and improve chances of rehabilitation?

408 U.S. at 479-480.8

Page 785

The parole officer's attitude toward these decisions reflects the rehabilitative, rather than punitive, focus of the probation/parole system:

Revocation . . . is, if anything, commonly treated as a failure of supervision. While presumably it would be inappropriate for a field agent never to revoke, the whole thrust of the probation-parole movement is to keep men in the community, working with adjustment problems there, and using revocation only as a last resort when treatment has failed or is about to fail.9

But an exclusive focus on the benevolent attitudes of those who administer the probation/parole...

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