Mempa v. Rhay, No. 38470

CourtUnited States State Supreme Court of Washington
Writing for the CourtFINLEY; However, probation, or the acquisition of probation status, must be kept in proper perspective. It is not a matter of constitutional right. It is a matter of privilege or Grace; ROSELLINI; HAMILTON
Decision Date23 June 1966
PartiesIn the Matter of an Application for a Writ of Habeas Corpus of Jerry Douglas MEMPA, Petitioner, v. B. J. RHAY, Superintendent, Washington State Penitentiary, Respondent.
Docket NumberNo. 38470

Page 882

68 Wn.2d 882
416 P.2d 104
In the Matter of an Application for a Writ of Habeas Corpus
of Jerry Douglas MEMPA, Petitioner,
v.
B. J. RHAY, Superintendent, Washington State Penitentiary, Respondent.
No. 38470.
Supreme Court of Washington, En Banc.
June 23, 1966.

Jerry Mempa, pro se.

John J. O'Connell, Atty. Gen., Lee D. Rickabaugh, Asst. Atty. Gen., Olympia, for respondent.

FINLEY, Judge.

This matter involves a petition for a writ of habeas corpus. The salient facts are: Petitioner, Jerry

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D. Mempa, was charged in the Superior Court for Spokane County with 'joy-riding,' as defined and prohibited by RCW 9.54.020. At his arraignment in that court, the petitioner was represented by court-appointed counsel, Willard S. Roe, then a prominent member of the Spokane Bar, and now a judge of the Spokane County Superior Court. Mempa, with the advice of counsel, entered a plea of guilty to the charge of 'joy-riding.' He was granted the privilege of probation status, and the imposition of the sentence was deferred pursuant to the provisions of RCW 9.95.200 and 9.95.210. Thereafter (approximately two months later), the Spokane County Prosecutor's Office moved to have Mempa's probation status revoked for violation of the terms and conditions under which it had been granted. At a hearing in the Spokane County Superior Court, the petitioner's probation was revoked. Sentence (the statutory maximum term of imprisonment of ten years, subject, of course, to subsequent parole board action determining the actual period of institutional confinement or custody) was then imposed and, promptly thereafter, judgment, sentence, and an order of commitment were entered accordingly.

The basis of this petition for a writ of habeas corpus may be concisely described as follows: Jerry D. Mempa was not represented by counsel at the peremptory hearing [416 P.2d 105] in the Spokane Superior Court when (a) his probation status was revoked, (b) the deferral of sentence was vacated, and (c) its imposition took effect forthwith. 1 Thus, the problem presented to us for decision is whether probationer Mempa was entitled to counsel as a matter of constitutional right in relation to any one or all of the foregoing aspects of administration of the state probation system.

At this juncture some observations regarding the nature of probation--what it is and is not--may be helpful to an understanding of our decision herein denying Jerry D.

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Mempa's petition for a writ of habeas corpus. It should first be noted that probation is a very useful and flexible tool or technique of modern penal administration. In fact, few well-informed people would disagree respecting the desirability of the objectives of probation and its constructive potential as a modern penal device for the rehabilitation of criminal offenders. Probation permits special handling of carefully selected criminal offenders who have pleaded guilty, or have been convicted of committing an offense against society. Perhaps in one sense the significant characteristic of the probation device is that the person who is fortunate enough to qualify and to have been granted probation status is allowed to be at liberty in the community. However, the probationer's ostensible 'liberty' is somewhat misleading in that he is actually under probation supervision. Thus, while the probationer is not confined to a penal institution, he remains in 'semi-custody.' The purpose or theory of such an arrangement is that probation status, with attendant supervision and its emphasis upon law-abiding, responsible conduct on the part of the probationer, can be most conducive to the rehabilitation of criminal offenders as useful members of society.

However, probation, or the acquisition of probation status, must be kept in proper perspective. It is not a matter of constitutional right. It is a matter of privilege or Grace, authorized by the state legislature to be granted or initially implemented solely through an exercise of judicial discretion by the Superior Court judges of the state. State ex rel. Schock v. Barnett, 42 Wash.2d 929, 259 P.2d 404 (1953).

Furthermore, the fact must not be overlooked that probationers, as a class, are criminal offenders, both in a legal and social or community sense. And, once again it should be remembered that each such person who is afforded the privilege of probation status by a judge of the superior courts of this state has either (a) pleaded guilty, or (b) has been convicted of an offense prohibited by the criminal laws of the state of Washington. No inference is intended that, once having broken the law, such individuals are forever branded as criminals and forever afterward are to be

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treated as such. But the plain emotionally unvarnished facts are that probationers have broken the law. They have a criminal record; and as a result society has a substantial interest in guiding or conforming their future conduct--if not in terms of atonement or punishment, then clearly in terms of the possibility of their rehabilitation as productive members of society.

While those having probation status are accorded considerable freedom and liberty, their status and rights in this respect, and the matter of their liberty and freedom as well as limitations and termination thereof, are not to be placed in the same category with the quantum of rights the average law-abiding citizen possesses with respect to civil liberty and freedom. Stated another way, probationers are not average, consistently deserving law-abiding citizens. They have exhibited in the past a tendency (at [416 P.2d 106] least in one instance) to engage in legally disapproved antisocial conduct.

Considering probationers as a class of criminal offenders, there is a close analogy between their status and the status of others who have pleaded guilty--or have been convicted--and have been committed to institutional custody, supervision and discipline rather than being granted probation. The administration and control of the activities and conduct of the latter group is of course performed by the prison authorities. It would seem farfetched to suggest that the courts should invade this particular sphere of administration prerogative and, by judicial fiat, exercise some sort of supervisory authority over existing prison administration, standards and practices.

In terms of further insight into the nature of probation and the administration of the probation system, similar reference and analogy could also be made to the functions of the State Board of Prison Terms and Paroles. The Board fixes the period of confinement and the terms and conditions of parole of those criminal offenders who have been committed to state institutional custody. In addition, the Board has the authority and the responsibility for administration of the state probation system. Judicial scrutiny, review,

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and control over the everyday matters of prison administration and/or parole administration is not only Not feasible; it is Inadvisable in the light of the particular expertise and training necessary to provide effective institutional custody and parole supervision. Judicial invasion of prison administration inevitably would be most disruptive of prison programing, supervision, and discipline. The courts cannot and should not be expected to go into the prisons and decide which prisoners should be treated as 'trustees.' The point is obvious: prison officials must have effective control and authority in order to maintain an effective prison program. The same can be said of probation programing and administration.

Administrative and field probation officers, as well as prison officials, work diligently to establish workable programs for effective guidance of criminal offenders under their supervision and in their semicustody. Easy access to the courts by probationers to re-evaluate, or challenge, varied aspects of probation programing could well be disastrous in terms of the operation of the Washington state probation system. We are convinced that effective supervision of the probation vehicle by probation officers is a sensitive area, and one not particularly suited to detailed, over-all, or even general judicial supervision.

It may seem somewhat more appealing and persuasive to contemplate according full due process rights and privileges to probationers with respect to the termination of their liberty to be at large in their communities than would be the case with respect to the termination of the privileges of prison inmates. However, we are convinced that, while there are some differences in the status and the potential for rehabilitation as between probationers, inmates, and parolees, the problems of administration and the objectives are basically similar in all three areas. To reiterate: there are no constitutional rights respecting the acquisition of probation status. Logically and rationally, there should be correlatively few, if any, constitutional rights and standards controlling the revocation of probation and matters of administration

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and supervision of those who have been granted that status.

The above outlined judicial views about the general nature of probation are reenforced by the following language of RCW 9.95.220, which sets out certain legislative policy determinations made with respect to the operation of our probation system. This legislation provides as follows:

Whenever the state parole officer or other officer under whose supervision the probationer has been placed shall have reason to believe such probationer is violating the terms of his probation, or engaging in criminal practices, or is abandoned to improper associates, or living[416 P.2d 107] a vicious life, he shall cause the probationer to be brought before the court wherein the probation was granted. For this purpose any peace officer or state parole officer May rearrest any such person without warrant or other process....

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19 practice notes
  • Morrissey v. Brewer, No. 20328
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 21, 1971
    ...can best be accomplished by fair, consistent, and straightforward treatment of the individual." Mempa v. Rhay, 68 Wash. 2d 882, 416 P.2d 104, 114 (1966) (Hamilton, J. See also Note, "Re-Arrest of Parolees: Constitutional Considerations," 46 Wash. L.Rev. 175, 179 (1970); Comment, "Due Proces......
  • State v. Conaway, 99592-3
    • United States
    • United States State Supreme Court of Washington
    • June 30, 2022
    ...State v. Shannon , 60 Wash.2d 883, 888, 376 P.2d 646 (1962), overruled in part on other grounds by Mempa v. Rhay , 68 Wash.2d 882, 888-89, 416 P.2d 104 (1966), rev'd by 389 U.S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336 (1967) ; accord Woods , 68 Wash.2d at 605, 414 P.2d 601 (guilty plea has "th......
  • State v. Haggard, No. 97375-0
    • United States
    • United States State Supreme Court of Washington
    • April 23, 2020
    ...v. Farmer , 39 Wash.2d 675, 679, 237 P.2d 734 (1951) ), overruled in part on other grounds by Mempa v. Rhay , 68 Wash.2d 882, 888-89, 416 P.2d 104 (1966), rev’d by 389 U.S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336 (1967). Thus, only a small subset of "deserving" misdemeanants receive the benefi......
  • State v. Conaway, 99592-3
    • United States
    • United States State Supreme Court of Washington
    • June 30, 2022
    ...from which an appeal lies." State v. Shannon, 60 Wn.2d 883, 888, 376 P.2d 646 (1962), overruled in part on other grounds by Mempa v. Rhay, 68 Wn.2d 882, 888-89, 416 P.2d 104 (1966), rev'd by 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); accord Woods, 68 Wn.2d at 605 (guilty plea has "t......
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18 cases
  • Morrissey v. Brewer, No. 20328
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 21, 1971
    ...can best be accomplished by fair, consistent, and straightforward treatment of the individual." Mempa v. Rhay, 68 Wash. 2d 882, 416 P.2d 104, 114 (1966) (Hamilton, J. See also Note, "Re-Arrest of Parolees: Constitutional Considerations," 46 Wash. L.Rev. 175, 179 (1970); Comment, "Due Proces......
  • State v. Haggard, No. 97375-0
    • United States
    • United States State Supreme Court of Washington
    • April 23, 2020
    ...v. Farmer , 39 Wash.2d 675, 679, 237 P.2d 734 (1951) ), overruled in part on other grounds by Mempa v. Rhay , 68 Wash.2d 882, 888-89, 416 P.2d 104 (1966), rev’d by 389 U.S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336 (1967). Thus, only a small subset of "deserving" misdemeanants receive the benefi......
  • State v. Conaway, 99592-3
    • United States
    • United States State Supreme Court of Washington
    • June 30, 2022
    ...from which an appeal lies." State v. Shannon, 60 Wn.2d 883, 888, 376 P.2d 646 (1962), overruled in part on other grounds by Mempa v. Rhay, 68 Wn.2d 882, 888-89, 416 P.2d 104 (1966), rev'd by 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); accord Woods, 68 Wn.2d at 605 (guilty plea has "t......
  • State v. M.N.H., 37207-3-III
    • United States
    • Court of Appeals of Washington
    • September 21, 2021
    ...376 P.2d 646 (1962) (citing In re Jaime v. Rhay, 59 Wn.2d 58, 365 P.2d 772 (1961)), overruled in part on other grounds by Mempa v. Rhay, 68 Wn.2d 882, 416 P.2d 104 (1966), rev'd, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). At a probation revocation hearing, the court need not be furn......
  • Request a trial to view additional results

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