Gagnon v. Scarpelli

The Court treated probation revocation as constitutionally indistinguishable from parole revocation for this purpose. Neither proceeding is part of the original criminal prosecution, but each can deprive a person of conditional liberty and return that person to prison. That serious loss of liberty triggers the protections of due process.

Morrissey required two stages of process for parole revocation, and those requirements apply equally to probation. The preliminary hearing determines whether probable cause exists to believe a violation occurred; the final hearing determines whether a violation occurred and whether revocation is the appropriate response.

At the final hearing, due process includes written notice of the alleged violations, disclosure of adverse evidence, an opportunity to appear and present evidence, conditional confrontation and cross-examination of adverse witnesses, a neutral and detached decisionmaker, and a written statement of the evidence relied on and reasons for revocation. Scarpelli received no hearing at all, so his revocation was constitutionally deficient.

The Court distinguished revocation hearings from criminal trials. Revocation occurs after conviction and sentencing; it is ordinarily informal, does not use formal rules of evidence, and is conducted by officials whose task includes rehabilitation and discretionary judgment rather than purely adversarial prosecution. Those features mean that Gideon's automatic right-to-counsel rule for felony trials does not govern every revocation hearing.

Morrissey's hearing protections will often adequately protect a probationer who admits the violation or can easily explain mitigating circumstances without a lawyer. A universal counsel requirement, the Court reasoned, could make revocation proceedings more adversarial, formal, expensive, and less responsive to their rehabilitative purpose.

Counsel should ordinarily be provided when the probationer or parolee timely requests it and presents a colorable claim either that he did not commit the alleged violation or that substantial reasons justified or mitigated an admitted violation and make revocation inappropriate. Appointment is especially appropriate when the factual or mitigating issues are complex or difficult to investigate or present.

Officials should also consider whether the person can speak effectively for himself. If they deny a request for counsel, they must state the reasons for that denial succinctly in the record. This procedure permits later review of whether the denial comported with due process.

Because Wisconsin afforded Scarpelli neither a preliminary hearing nor a final revocation hearing, the revocation violated the due-process standards the Court extended from Morrissey. The State was to receive an opportunity on remand to conduct a constitutionally adequate revocation hearing.

Scarpelli's admission to participating in another serious crime ordinarily would weigh against a need for appointed counsel. But his later claim that the admission was coerced and false could create a disputed factual issue that counsel might be needed to develop. The Court therefore left the counsel decision for reconsideration under its case-specific framework.