Morrissey v. Brewer

PETITIONER:Morrissey
RESPONDENT:Brewer
LOCATION:Iowa State Penitentiary

DOCKET NO.: 71-5103
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 408 US 471 (1972)
ARGUED: Apr 11, 1972
DECIDED: Jun 29, 1972
GRANTED: Dec 20, 1971

ADVOCATES:
Lawrence S. Seuferer – for respondent
W. Don Brittin, Jr. – for petitioners

Facts of the case

On January 4, 1967, John J. Morrissey entered a guilty plea to an information charging him with false uttering of a check. After serving part of his seven-year sentence, the Iowa Board of Parole granted Morrissey parole, and he was released from Iowa State Penitentiary on June 20, 1968. On January 24, 1969, however, Morrissey was arrested in Cedar Rapids for violating his parole. The Board of Parole entered an order revoking his parole and returning Morrissey to prison. Morrissey filed several habeas corpus actions in Iowa state courts between June 1969 and August 1969, but soon exhausted his state remedies. On September 12, 1969, Morrissey filed a habeas corpus petition in federal district court, which was denied; the court also denied his notice of appeal, considered as an application for certificate of probable cause. The United States Court of Appeals, Eighth Circuit, granted Morrissey’s application and appointed counsel to represent Morrissey on appeal.

On April 29, 1968, G. Donald Booher entered a guilty plea to an information charging him with forgery. On November 14, 1968, the Board of Parole granted his parole, releasing Booher from his ten-year sentence at Iowa State Penitentiary. On August 28, 1969, Booher allegedly violated his parole, and the Board of Parole revoked his parole on September 13. Booher filed several petitions for a writ of habeas corpus in state district court between November 1969 and March 1970; the district court dismissed all of Booher’s petitions. He then filed an application for certificate of probable cause in federal district court on June 16, 1970. The district court denied his application, but the United States Court of Appeals, Eighth Circuit, granted it on appeal, appointing counsel and consolidating the claims of Morrissey and Booher.

Neither Morrissey nor Booher was granted a hearing or other opportunity to question, challenge, or become aware of the facts which formed the basis of each man’s parole violation. Neither man was granted the opportunity to present evidence on his own behalf, or to confront or cross-examine those providing testimony against him. The Eighth Circuit, however, affirmed the denials of the petitions of Morrissey and Booher in a 4-3en banc ruling.

Question

Did the due process clause of the Fourteenth Amendment require the Iowa Board of Parole to give an evidentiary hearing prior to revoking the paroles of Morrissey and Booker?

Warren E. Burger:

We will hear arguments first this morning in Number 71-5103, Morrissey and Booher against Brewer.

Mr. Brittin.

W. Don Brittin, Jr.:

Mr. Chief Justice and may it please the Court.

I’m counsel —

Warren E. Burger:

Before you proceed, counsel, let me mention one other factor that Mr. Justice Marshall is unavoidably absent this morning but he will participate in the cases to be heard today on the basis of the files, records, briefs and the recording of the oral argument.

W. Don Brittin, Jr.:

Thank you, Your Honor.

I was appointed by this Court to represent petitioners in this case which is a — which are habeas corpus cases.

I was likewise appointed by the United States Court of Appeals for the Eighth Circuit to represent petitioners in the — in the cases below.

The opinion of the United States Court of Appeals for the Eighth Circuit which is under review in this case affirmed the orders of Judge Stephenson, at that time, United States District Judge for — for the Southern District of Iowa, denying both the petitions involved in these cases.

Petitioners had both been prisoners in the Iowa State Penitentiary and had both been and — had both received paroles from the Iowa Board of Parole.

Subsequently, each of their respective paroles were revoked by the Iowa Board of Parole such revocations having been accomplished without either of the petitioners having been afforded any type of evidentiary hearing to establish the fact of parole violation.

Both petitioners alleged in their petitions for habeas corpus filed in the District Court that their constitutional rights to due process of law had been violated by the action of the Iowa Board of Parole in revoking their paroles without a hearing, and that such state action constitute — constituted a deprivation of liberty without due process of law.

Judge Stephenson in separate orders denied their respective petitions holding that the applicable — Iowa statutory law did not require such a hearing and that the procedures followed by the Iowa Board of Parole had been held sufficient for federal constitutional purposes.

After granting the certificates of probable cause, the United States Court of Appeals for the Eighth Circuit heard the cases en banc and by a vote of 4-to-3 affirmed the order — orders of Judge Stephenson.

This Court granted a certiorari on December of last year.

The question then presented for review in this case is whether or not the action of the Iowa Board of Parole in revoking petitioners’ respective paroles without providing either of said petitioners a prior evidentiary hearing to establish the fact of parole violation, denied petitioners’ liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States.

At this point, I believe, a brief factual review of the circumstances is appropriate.With respect to petitioner Morrissey first, he entered a plea of guilty to a county — county attorney’s information charging him with false uttering of a check and was sentenced by an Iowa State District Court to the Iowa State Penitentiary for a term of seven years.

After serving approximately one and a half years of his sentence, Morrissey was granted a parole by the Iowa Board of Parole.

After being on parole approximately seven months, he was arrested for a parole violation, confined in the county jail and shortly thereafter, his parole agent filed a written report of violation with the Iowa Board of Parole recommending that his parole be revoked.

Three days later, an order was entered by the Iowa Board of Parole revoking his parole and ordering that he be returned to the penitentiary.

This order was entered by the Iowa Board of Parole solely on the basis of the parole officer’s written report without granting the petitioner a hearing of any kind to determine the fact of parole violation.

William H. Rehnquist:

Mr. Brittin, I — as I understand the record, the parole officer had talked to Morrissey, he — had he not?

W. Don Brittin, Jr.:

I believe you are correct, Your Honor, that he had talked to Morrissey in jail at the time he had been arrested after the — the parole agent got the warrant for his arrest for parole violation.

William H. Rehnquist:

And as I understand respondent’s contention, Morrissey pretty well admitted the charges against him.

W. Don Brittin, Jr.:

You are correct in saying that it is respondent’s contention, if I understand his contention — actually I don’t wish to speak for him but I do believe that he contends that Morrissey admitted at that time that he violated the conditions of this parole.

However, it is our position that he did not unequivocably admit the alleged violations.

He admitted certain acts which may have constituted violations if there were — were no explanations for them.

He did offer explanation for certain of his acts which, I believe, were in mitigation and may tend to establish that he did not in fact violate his parole.

Byron R. White:

How about the automobile?

W. Don Brittin, Jr.:

Excuse me, Your Honor?

Byron R. White:

How about the automobile?

W. Don Brittin, Jr.:

The automobile?

He admitted that he had purchased an automobile under an assumed name.

I might point out here —

Byron R. White:

Was that — was that in violation or not?

W. Don Brittin, Jr.:

I don’t think that the parole agreement specifically required or prohibited him from doing that but I think that — that act was probably in violation of his parole.

Byron R. White:

So he admitted that one act anyway.

W. Don Brittin, Jr.:

He admitted the act, that’s right, Your Honor.

He did not admit that he had violated his parole but he did — you are correct to say and he did admit and (Voice Overlap) —

Byron R. White:

So there’s no dispute about the facts on that particular —

W. Don Brittin, Jr.:

About the automobile?

I think you’re correct, Your Honor.

Byron R. White:

And it was just a question of — of whether or not that should amount to a violation of the parole.

W. Don Brittin, Jr.:

That’s right and whether or not that —

Byron R. White:

But even if — that even if there was a violation of whether the parole should be revoked.

W. Don Brittin, Jr.:

That’s right.

And I might point at this time that both with respect to petitioners, Morrissey and Booher, and this situation was similar with Booher.

He was sentenced and served two and a half years, paroled.

He was out about nine months.

And then he — he was arrested for a parole violation.

The parole agent filed a written report to the board of parole, revoked his parole on the basis of that written report.

The violations with respect to Booher were quite similar to the ones in Morrissey.

He had — he was alleged to have been driving an automobile without the permission of his parole officer and while his license was under suspension.

He was accused of leaving the territorial limits of O’Brien County, Iowa without the parole officer’s permission.

And he was accused of not being able to keep a job.

These things — and I think that he admitted operating the motor vehicle.

It was his — apparently it was his wife’s vehicle, but he did admit operating the motor vehicle without the permission of his chief parole officer.

I might point that these violations, what we’re talking about are — were may be called technical violations.

They are vital X which constitute the — the charge X if proven would constitute technical violations of the parole agreement.

Warren E. Burger:

Do you incurred —

W. Don Brittin, Jr.:

It is not alleged —

Warren E. Burger:

— the automobile purchase in that category, Mr. Brittin?

W. Don Brittin, Jr.:

I don’t believe the — the purchase of an automobile —

Warren E. Burger:

With — in under a false name?

W. Don Brittin, Jr.:

I don’t believe that that would be — that would necessarily constitute a crime, Your Honor.

Warren E. Burger:

Would it —

W. Don Brittin, Jr.:

Certainly deception —

Warren E. Burger:

— would it constitute — I thought you would — indicated to Justice White that that would be a basis for revoking parole.

W. Don Brittin, Jr.:

I — I think I indicated to him that — that if proven, that fact would constitute an act which might form the basis of a revocation of parole.

However, it’s a technical —

Warren E. Burger:

If it’s admitted, if it’s admitted then why do you need proof?

Is — is it — would you say that it would be unreasonable to analogize that to a plea of guilty to a charge?

W. Don Brittin, Jr.:

I think there’s a great difference, Your Honor, because the only evidence in this record and I think the only evidence that there is at all whether inside or outside of the record is with respect to what the statements that the — that the parolee made to his parole agent while he was in custody, and I don’t believe that — that the board of parole or anyone else should rely solely upon those statements when submitted to the board of parole in written form to — as a basis for a parole revocation.

I believe that the parolee should be given a chance to tell the board of parole to admit or deny to the board of parole whether or not he is violating his parole.

And I think he should have an opportunity to appear before the Board and to confront and cross-examine the persons who are making allegations against him be it the parole officer or other persons.

What we’re talking about is a situation in which a parole which is a — we don’t want to call it a right or a privilege, I don’t think it’s correct to call it either.

It’s a status enjoyed by the — the parolee, and we’re talking about the revocation of that based upon a written statement by a parole agent.

I think that the Constitution —

Potter Stewart:

That statement at least with respect to Morrissey appears on page 65 of the appendix, does it not?

W. Don Brittin, Jr.:

I think that is correct, Your Honor.

Potter Stewart:

Is that what you’re talking about?

Is there a copy of the parole agreement?

W. Don Brittin, Jr.:

There is.

It’s at page 100 of the appendix, Your Honor.

Potter Stewart:

Page 100?

And is it a standard parole agreement that —

W. Don Brittin, Jr.:

In fact the —

Potter Stewart:

— both of these petitioners signed?

W. Don Brittin, Jr.:

In fact the one at page 100 is a form of parole agreement —

Potter Stewart:

Right.

W. Don Brittin, Jr.:

— that was submitted to the District Court.

Is not — it was not ever established, and I do — do not know if this is the exact form that was signed by either one of the petitioners herein is that those forms have never been produced in this case.

But this is — my understanding is the standard form of a parole agreement which is used in the State of Iowa.

Potter Stewart:

And this is the — presumably what each one of these petitioners —

W. Don Brittin, Jr.:

Presumably, Your Honor.

Potter Stewart:

— signed and then I suppose with respect to individual parolees that other conditions maybe added that are — been all about.

W. Don Brittin, Jr.:

I’ve — I’ve — you may be correct, Your Honor, except that I do not know that any condition —

Potter Stewart:

Record that he’s talking about.

W. Don Brittin, Jr.:

— (Voice Overlap) conditions were added in either of these cases.

Potter Stewart:

And he —

Byron R. White:

Do you — do you think that the parole officer’s conversation was that these parolees gave — at least established a probable cause to believe that a violation had occurred?

W. Don Brittin, Jr.:

I think that they may well have established probable cause to —

Byron R. White:

Well, then — are you — you don’t object to the fact that if having found out what he found out, the parole officer could arrest them and detain them.

W. Don Brittin, Jr.:

No, I don’t object to that, Your Honor.

Byron R. White:

And so that arrest and detention pending a hearing would be satisfactory as far as you are concerned.

W. Don Brittin, Jr.:

So far as I’m concerned in this case, Your Honor, that would be satisfactory.

What I’m talking about in this case is the — is the revocation of parole and sending a parolee back to serve the remainder of his sentence which is — which could be five —

Byron R. White:

Well let’s just assume —

W. Don Brittin, Jr.:

— years.

Byron R. White:

— I’m not saying this is — this kind of a case, but let’s just assume that there was no need because of the admissions of a series of events, acts and you call them technical violations if you want to.

Let’s assume that there’s no need for an evidentiary hearing as to what the facts were.

And it’s just a question of a judgment as to whether a parole should be revoked.

W. Don Brittin, Jr.:

Assuming that facts have been established and I would maintain that those facts should be established —

Byron R. White:

That’s all right.

W. Don Brittin, Jr.:

— by hearing.

But assuming that they have been established —

Byron R. White:

Well, you wouldn’t if — I suppose if you’ve got a man, a probationer, for example, before a court had — in the court and the judge said, “Did you do these things?”

And he said, “Yes.”

We don’t need —

W. Don Brittin, Jr.:

No, I wouldn’t object to that and I wouldn’t — I don’t think I would object to it if the parole board would call the parolee —

Byron R. White:

Yes.

W. Don Brittin, Jr.:

— and — and give him a hearing what you’re talking about when you’re talking about probation or being before the Court is what I’m talking about a parolee being before the parole board and having a chance to admit or deny the allegations to — to present evidence on his own behalf —

Byron R. White:

But this will be after — after he’d been arrested and —

W. Don Brittin, Jr.:

After he had been —

Byron R. White:

— and incarcerated.

W. Don Brittin, Jr.:

— arrested and — and incarcerated and if that time is a reasonable time that I — is not what I’m talking about in this case.

Byron R. White:

So if the parole board — if he is returned to jail and then the parole board calls him before them and he has an opportunity to say yes or no or to say whatever he wants to, that’s enough.

W. Don Brittin, Jr.:

If he has an opportunity to admit or deny the allegations to confront and cross-examine the witnesses who’ve kept — who may offer evidence in his —

Byron R. White:

That is — that is if he denies them.

W. Don Brittin, Jr.:

If he denies them.

If — if, Your Honor, if he admits the violations to the parole board under circumstances from which it is clear that he does so voluntarily and knowing the consequences of his admission, then I have no objection to a parole revocation in that circumstances without further proceedings.

William H. Rehnquist:

Mr. Brittin, did the parole board hear after your client had been returned to prison, interview him with respect to the alleged parole violation?

W. Don Brittin, Jr.:

I think that they did interview him and that word is very critical, Your Honor.

I think the word is interview.

They did not give him a hearing.

They —

William H. Rehnquist:

How would you distinguish between what was done and what you think ought to have been done in the way of a hearing?

W. Don Brittin, Jr.:

Very frankly, Your Honor, I was unaware until the respondents filed their brief herein that there was any such interview at all.

And I know nothing more about that hearing —

William H. Rehnquist:

In your brief?

W. Don Brittin, Jr.:

— that is in the respondent’s brief.

So I don’t know what happened at that hearing.

I — I do know there is a — is a thing called a post-revocation interview but I don’t what happens there.

I don’t who’s there.

I don’t whether — of course, this is — occurs at a time after the parolee is already back in prison.

And I don’t — I don’t think that a hearing at that time satisfies the requirements of due process.

Warren E. Burger:

Well, how long after the — the arrest on parole violation was this interview process held?

W. Don Brittin, Jr.:

From —

Warren E. Burger:

Do I correctly —

W. Don Brittin, Jr.:

— respondents —

Warren E. Burger:

— remember that it was about 29 or 30 days something?

W. Don Brittin, Jr.:

From respondent’s brief, I — I know that it was not more than two months after the revocation.

Now, the arrest for violation was another approximately week or two weeks depending on whether we’re talking about Morrissey or Booher prior to the revocation.

I think, Your Honor, that any hearing — the kind of hearing I’m talking about is a hearing prior to the order of revocation.

Once the order of revocation, once the parole is revoked, the prisoner is back in prison, and I don’t think a hearing at that time is sufficient for constitutional purposes.

Warren E. Burger:

So where do you think he should be between the time he is arrested for the parole violation and the time of the hearing?

Would it be inappropriate for him to be back at the prison?

W. Don Brittin, Jr.:

I think if he is — if there’s evidence that his presence in society as any other person that as a parolee would be dangerous to society that he — I do not object to his incarceration.

Byron R. White:

Well, you said if he — you said he — he could be arrested that there’s probable cause to believe that he had violated his parole.

Now, after he — do you mean he — that constitutionally, he could be arrested but then he must be released again?

W. Don Brittin, Jr.:

No, I — I — the point I was trying to make, Your Honor, is that if this person was a dangerous person, I — I think —

Byron R. White:

Well —

W. Don Brittin, Jr.:

— that he should be incarcerated pending the — if there’s probable cause to believe (Voice Overlap) —

Byron R. White:

Unless there’s some finding that he’s dangerous he must be — he has to be released after bail.

W. Don Brittin, Jr.:

No, I don’t — I really don’t think that’s important.

Byron R. White:

Well, he was rather held in the city jail and in some jails —

W. Don Brittin, Jr.:

Well —

Byron R. White:

(Voice Overlap) in prison?

W. Don Brittin, Jr.:

I think that the hearing should be held within a short time.

I’m talking about a week or so and — and I — in — in Iowa only because the penitentiary is way off down one corner of the State.

I think transporting a prisoner back and forth may not be necessary and — and holding him in the county jail for a period of week or so particularly so he can talk to counsel if he has some — so he can make preparations for the hearing would be appropriate to the case, and I don’t think that it would be necessary to return him to prison.

William H. Rehnquist:

You’re not intending here that he’s entitled to counsel at this hearing, are you?

W. Don Brittin, Jr.:

I think that once it is determined that a petitioner is entitled to a hearing, prior to revocation of his parole and considering the — the substantial interest he has in his continued liberty, that there is authority for this Court to hold that he is entitled to counsel at such a hearing.

William H. Rehnquist:

Well, you point in — in this proceeding that he is — he was entitled to counsel as well as to a hearing?

W. Don Brittin, Jr.:

The issues in this case are — are, by the record, limited to the right to hearing and do not include the question of the right to counsel.

However, I do believe that if this Court feels that the Constitution does require a hearing prior to revocation of parole that due to the serious nature of the consequences to a parolee should his parole be revoked without a hearing and in that, in compliance with the Constitution that there is sufficient authority for this Court to also hold that he should be entitled to appoint a counsel should he not?

She — he should be entitled at least to have retained counsel present.

That’s — that, however, goes to the kind of hearing that’s required.

And I think it’s first and most important for the Court to determine whether or not a hearing is required.

And of course, it’s our contention that it is.

W. Don Brittin, Jr.:

And — and in contending that a hearing is required, we rely principally upon that line of cases of — of this Court which have held due process of law requires a hearing and an opportunity to be heard whenever important rights are substantially affected by state action.

And these cases I’m talking about are cases like Goldberg versus Kelly, Bell versus Burson, Groppi versus Leslie and Greene versus McElroy.

These cases all held that a hearing and an opportunity to be heard are required prior to the termination by state action of various types of rights or privileges enjoyed by these individuals.

And the types of rights that were involved in those cases are not being disqualified for unemployment compensation, an individual’s interest in continued welfare benefits, an individual’s interest in not having his name arbitrarily posted on a pubic list of excessive drinkers, an individual’s interest in not being held in contempt of the state legislature and an individual’s interest in uninsured motorist’s interest, in not having his driver’s license suspended after an accident.

William H. Rehnquist:

Mr. Brittin, would you contend that a hearing is also required when the parole board sits to make a determination as to whether parole should be granted or not?

W. Don Brittin, Jr.:

No, I would not, Your Honor.

William H. Rehnquist:

Isn’t that an equally important stage in the criminal proceeding or doesn’t that equally affect the substantial rights of the defendant?

W. Don Brittin, Jr.:

It does — I’m — you’re correct that it does affect his interest.

However, I think that what is most important in that situation is that the board of parole in sitting on determining whether or not to release a person on parole is guided only by considerations in its expertise in — in examining the conduct of the prisoner to determine whether or not they feel that he is a good risk for parole and should be permitted to go outside of the walls of the prison and attempt to — to continue his rehabilitation which they believe is — to some extent at that point on the outside of the prison.

William H. Rehnquist:

The question is —

W. Don Brittin, Jr.:

After —

William H. Rehnquist:

— conduct consists of factual matters, and I suppose it’s conceivable a board might be misinformed, shouldn’t be — shouldn’t he be entitled to cross-examine at least factual witnesses at that stage on his conduct, if you’re right?

W. Don Brittin, Jr.:

I suppose an argument can be made that if the board of parole denies a parole when considering whether or not to — to give a parole, denies it on the basis of allegations of fact concerning his conduct an argument could be made that he should be entitled to appear before the board as a matter of fact — as a matter of practise, most — as I understand, most prisoners at the time they are being considered for parole do appear before a board.

I think an argument could be made that he should be entitled to some hearing at that time but I’m not making that argument and I don’t — I don’t think it’s critical to this case because what we’re talking about is a parolee — a person whom the board of parole has decided is worthy of this conditional liberty of parole and being permitted to go back out and deciding an attempt to make a full community and family life, to contribute to the society, talking about revocation of that status, which has previously been granted by the board of parole.

And I think there is a valid distinction now.

Byron R. White:

Is the parole officers or the board which the revocation is based on page 65, is that — is that the report?

W. Don Brittin, Jr.:

That is the report with respect to petitioner Morrissey and the report with respect to petitioner Booher is at page 106, I believe.

Byron R. White:

All right.

Thank you.

Warren E. Burger:

When he have — had the interview that you’ve described at the institution, does this record show that he then admitted that he had bought the car under a false name?

W. Don Brittin, Jr.:

Now, this record doesn’t even show that there was such a hearing, Your Honor.

Potter Stewart:

All we know about that comes from your brother’s brief on the other side.

There’s nothing in the record about any such (Voice Overlap) —

W. Don Brittin, Jr.:

Nothing in the record in the District Court, the Court of Appeals or in this case concerning that alleged hearing.

Warren E. Burger:

Assuming now that at that interview, the facts stated at the top of page 68 that he admitted that he bought the 1960 Chevrolet and so forth and registered it under a false name and having in mind that in one of the conditions of his parole as that he would neither own nor operate an automobile and other vehicles without the consent of the chief parole officer, would you think that would be grounds for making the decision without hearing any further from him after his admission?

W. Don Brittin, Jr.:

Well, I think that — that the board of parole should after his admission that he in fact purchased an automobile under assumed name, I think the Court should hear from him his explanation whatever reasons that there may be in mitigation.

I can’t think of what they would be at this point for — why a person would do that except maybe to avoid violation of a specific term of the — of the parole agreement.

But I do think that that conduct constitutes a violation of the spirit of it, if not the technical terms of it.

Lewis F. Powell, Jr.:

Mr. Brittin, in your brief, you point out that a parole hearing has a two-fold function, the first to ascertain whether or not it was a violation and the second to determine what to be done.

As I read your brief, you take the position that the hearing relates to the first aspect of that only.

W. Don Brittin, Jr.:

I think that that — that the hearing relates to that part.

Most importantly, I — I would not concede that — that presence of the parolee at the time the board may be making that second decision may not be of assistance to the board, but I think that, for the purposes of this case, a right to hearing on the determination of the fact of violation is what we’re talking about in this case.

Lewis F. Powell, Jr.:

And the hearing to be terminated at that point under your submission here today.

W. Don Brittin, Jr.:

I believe that’s correct that the hearing could be terminated once the board of parole has heard from the parolee.

He has either admitted or denied the violations.

If he has admitted he may offered some extenuating circumstances or other facts in mitigation.

At that point, I believe it would be proper for the board of parole to adjourn the hearing to consider and deliberate in private with respect to what action should be taken once the facts have been established.

Potter Stewart:

There is — there is an overlap which you suggest, however, is it there, because the — you could show that the — well, for example, one of the conditions of the parole agreement was that these petitioners not leave the county.

W. Don Brittin, Jr.:

That’s right.

Potter Stewart:

And if you can show in a factual hearing, yes, he did leave the county but do — you could further show that he left because his mother was dying, and he tried to reach his parole officer and it was a weekend and he couldn’t reach his parole officer so in that emergency he left and he returned promptly —

W. Don Brittin, Jr.:

I believe that —

Potter Stewart:

— that would show a fact — that would show a violation of the parole but the — it would also show mitigating circumstances that would presumably affect the parole board’s decision upon whether or not to revoke the parole, does it not?

W. Don Brittin, Jr.:

That is correct, Your Honor.

And in fact in this case, the reported violation with respect to petitioner Booher shows that his parole agent was out of the State for — on vacation during the period of time the alleged violations occurred.

So he did not know about them first hand anyway that he was accused of leaving the county to which he was assigned and that the violation shows that — that there are two possible reasons for leaving the county.

One was his wife was — went to Iowa City, Iowa in another county to have a baby.

The other reason was that he was — he was having trouble keeping himself employed and he left the county to work.

Now, one of the conditions of parole is that he keep himself employed and another one is that he not leave the county.

His parole agent was out of the State and he left the county to work.

I believe that circumstances like these could be shown at a hearing.

The parole agent — I — I’m not — I’m not saying here, Your Honor, that parole agents are dirty guys and we shouldn’t believe them but I’m saying that there are circumstances that exist that were biased or prejudiced or even honest misinformation lead to the parole revocations without a hearing, and I believe that due process requires that before a parolee is — has his condition of liberty terminated, he is sent back to the prison for five to seven additional years that he is entitled to a hearing to establish the fact that the parole violation before the board goes any further to determine whether or not his parole should be terminated.

William H. Rehnquist:

And to argue mitigating circumstances?

W. Don Brittin, Jr.:

And to argue mitigating circumstances in the event that he does admit the fact.

Take the situation of Booher leaving the county to find — to — to work.

He is — he’s in the heart of this dilemma.

If he — if he has a job offer outside of the county, he’ll be violating his parole agreement.

If he doesn’t take it, he’ll be violating the parole agreement if he goes out of the county to work.

I think circumstances like these particularly when the — when the revocation is based on what we may call technical violations that parolee is entitled to a hearing to establish the fact of violation.

If the parolee is charged with an act that constitutes a crime of an armed robbery, a burglary or something like that, the criminal process comes into play.

He can be arrested for a violation of that crime and once he is convicted of that crime, he’s going to be in custody probably while that crime is being considered.

W. Don Brittin, Jr.:

Once he’s been convicted of that crime I have no objection to his — to the revocation of his parole —

Warren E. Burger:

You say —

W. Don Brittin, Jr.:

— based upon that conviction.

Warren E. Burger:

— you say he’s going to be in custody while he is waiting for that trial.

Isn’t the contrary more likely to be true that —

W. Don Brittin, Jr.:

Well —

Warren E. Burger:

— could be applied?

W. Don Brittin, Jr.:

— in that — I believe you’re correct, Your Honor.

The — the contrary is probably if he is charged with a — with a separate crime and in the criminal process, he probably will be on bail during that time.

Warren E. Burger:

I understand your arguments that it’s a — perhaps a technical violation to leave the county in order to get a job under the circumstances of Booher’s case, but as to Morrissey where he bought the car under a false name and he entered in the contracts in which he signed the names of other persons to purchase furniture and various things, you wouldn’t really call those technical violations, would you?

W. Don Brittin, Jr.:

They may — they are certainly not —

Warren E. Burger:

One is either fraud or forgery.

W. Don Brittin, Jr.:

I think that’s correct, Your Honor.

And I think that in Booher’s case in this respect is on the facts of the violations is much better than Morrissey’s case.

Harry A. Blackmun:

What is the practice in Iowa when a parole agent is on vacation?

Is — is there only one in the county?

W. Don Brittin, Jr.:

It’s a matter of saying that there’s only one in county.

And actually the parole agreement if you’ll examine, it requires when he — he obtains permission to do something.

The parole agreement says he has to obtain permission from the chief parole officer which is in — they’re more in the capital of the State.

I assume that when the parole agent is on gone from the county that then the chief parole officer in Des Moines is the person that has the immediate supervision of that parolee.

It’s a matter of saying that there’s no other agent in the county which will handle it at time.

There may be in Des Moines and some of the other larger cities of the State more than one parole agent, but in the small county that Booher was from, I’m quite confident, there would be not more than one agent there.

Harry A. Blackmun:

What is the county’s procedure then?

W. Don Brittin, Jr.:

I don’t — I can’t think of it, Your Honor.

It’s O’Brien County except in the northwest part of the State.

I can’t tell you that (Inaudible) right now.

Potter Stewart:

You’re not making any claim in this case that the parole agreement itself is so impossibly vague as to not really said any ascertainable standards, are you?

W. Don Brittin, Jr.:

You know, Your Honor, we have —

Potter Stewart:

Referring to paragraph 6 (Voice Overlap) —

W. Don Brittin, Jr.:

— not made that argument here.

W. Don Brittin, Jr.:

I do think that —

Potter Stewart:

I will avoid questionable associates, keep reasonable hours, avoid all places of questionable reputation, it would be pretty — that’d be rather subjective as to whether or not he violated those provisions or not.

W. Don Brittin, Jr.:

I think that a very good argument could be made that — that this — this type of thing they’re talking about is another reason why a hearing may be — may be critical prior to revocation of this parole.

But we are not making the argument that the parole agreement should held beyond constitutional for vagueness.

Warren E. Burger:

Well, if — even if parts of it were, there’s nothing vague about the majority of the provisions, is there?

W. Don Brittin, Jr.:

No, I — I think that’s correct, Your Honor.

I think an argument while it’ s also not germane to this case, an argument could be made at them.

Parole agreements are unfair in — in extending some conditions that should not be extended but that — that again is not a part of this case.

Warren E. Burger:

Very well.

W. Don Brittin, Jr.:

Thank you.

Warren E. Burger:

Your time is — your time is up, Mr. Brittin.

Mr. Seuferer.

Lawrence S. Seuferer:

Mr. Chief Justice and may it please the Court.

I think I should begin in the light of some of the questions that have brought out a lot of the factual circumstances of this case by making a couple of points concerning the factual aspects of — of the case with regard to the hearings.

We also did not realize that there were hearings in this case when — when I came into it at any rate.

And had this — the posture of the question which is presently before this Court been somewhat different at the District Court level, we undoubtably would have had an evidentiary hearing there where all of the stuff would have been brought out.

As it was, we did not.

There is an indication in the record in the appendix at page 56 that petitioner Morrissey in fact received a hearing before the state board of parole.

It’s in the first paragraph on page 56.

He denies he received a revocation hearing.

In the context of the rest of the petition, I think the — the inference is clear that that was before arrest or before revocation.

And then he suggests that he was denied counsel to represent him at said hearing that was conducted behind closed doors by the state board of parole.

It was this matter that —

Potter Stewart:

But that’s internally inconsistent, isn’t it?

Lawrence S. Seuferer:

It’s — it appears that it is, Your Honor.

And I think this —

Potter Stewart:

Used the word “said” at least.

Lawrence S. Seuferer:

Yes, I — I believe that on its face, it does appear inconsistent.

It’s only at the entire petition which was a petition for writ of habeas corpus filed in Lee County District Court.

If the entire petition is read, it appears that his — he’s saying, “I didn’t receive a revocation hearing before my parole was revoked.

Lawrence S. Seuferer:

And I was denied counsel at the hearing.

I did receive before the state board of parole behind closed doors.”

I think in — in the total context.

It was this that’s caused us to really bring out the matters of — of the other hearing.

Now, it is possible in this regard to submit affidavits of the state board of parole showing that both of these petitioners, in fact, received some sort of hearing after they returned to the penitentiary.

Byron R. White:

Is this a statutory matter?

Lawrence S. Seuferer:

It is not — it is not a statutory requirement that they received, Your Honor.

Byron R. White:

A post-revocation, then it’s not (Voice Overlap) —

Lawrence S. Seuferer:

It is — it is not statutory.

In fact, the statutory provisions which provide for the authority of granting and revoking paroles do not cover the matter of a hearing.

Byron R. White:

What’s the practice?

Lawrence S. Seuferer:

The practice is, as we’ve stated in our brief, is to provide a post-revocation hearing.

In other words, the parole is revoked, they’re sent back to the institution from whence they came.

And within no longer than two months, the board of parole sits at the various institutions around the State and conducts these hearings.

Byron R. White:

What’s the — what’s the practice prior to revocation?

A parole officer’s report in reliance on (Voice Overlap) —

Lawrence S. Seuferer:

I think what happened in this case is substantially the practice.

The parole officer hears of a violation as he did in this case through some method.

He investigates it to some extent.

He confronts the parolee with it as he did in this case and gets whatever he has to say about it.

He writes up his report, submits it along with his recommendations to the board of parole and on the basis of this, they revoke the parole or do not revoke the parole.

Potter Stewart:

But that goes by mail individually to each, the three members —

Lawrence S. Seuferer:

That — that’s correct, Your Honor.

Potter Stewart:

— of the board who live in various parts of the State (Voice Overlap) —

Lawrence S. Seuferer:

That’s correct.

They may —

Potter Stewart:

— they note it together and confer.

Lawrence S. Seuferer:

No, they act individually on this.

It’s my understanding that there are — there may be some instances where they will communicate by telephone on a particular case but the normal circumstances are —

William J. Brennan, Jr.:

Do these post-revocation hearings often result in the parolee again being released on parole?

Lawrence S. Seuferer:

Your Honor —

William J. Brennan, Jr.:

I noticed —

Lawrence S. Seuferer:

— in our —

William J. Brennan, Jr.:

— just in your brief you say something about only two or three in — within the memory of —

Lawrence S. Seuferer:

That’s right, Your Honor.

William J. Brennan, Jr.:

— members of the — ever denied —

Lawrence S. Seuferer:

You’re — you’re right, Your Honor.

The — the attorney member, Mr. Badel of the board of parole was the one I conducted extensive conversations with concerning this matter once it came to my attention.

And he indicated that only three times, since he’s been on the board, has anyone denied the alleged violations.

William J. Brennan, Jr.:

As I gather it must mean that there’d been — not more than three, if not many, who have released again on parole.

Lawrence S. Seuferer:

That’s right.

One of those three was in fact released after further investigation.

The other two, they affirmed the action of revocation —

William J. Brennan, Jr.:

Yes.

Lawrence S. Seuferer:

— according to his — his comments to me.

Potter Stewart:

Now, all of these you’ve learned, what?

Since certiorari was granted in this case?

Lawrence S. Seuferer:

In fact, Your Honor, since the appendix was prepared in this case.

I came up —

Potter Stewart:

In your conversations with Mr. Badel?

Lawrence S. Seuferer:

Yes, I — I came into — came into this case only at the time certiorari was granted.

I was not familiar with it.

And looking through the appendix, when I came across this aspect about Mr. Morrissey, that triggered my talking to this individuals and that’s where this information came to light.

I think it’s unfortunate that an evidentiary hearing was not held at the District Court level because that would undoubtedly have brought these matters out.

It is our — our contention, however, that the question, the posture of the question in this case is that a hearing was not granted prior to revocation.

And in any event the hearing that was granted was most certainly after the initial act of revocation.

There is a reason, a reason that is not unfavorable to the parolee as a matter of fact as to why the initial revocation takes place at the time it does.

Section of the Iowa Code, 247.12, which is — is set out early in petitioner’s brief, indicates that a parolee is not credited with time served while he’s on parole, this is against his original sentence, or while he is away from the institution if his parole his is revoked.

What this means is that if an individual, petitioners in this case, for instance, sat in the county jail or the local jail until such time as the parole board could make arrangements to get there with all the facilities it would be necessary for some sort of hearing, none of that time would count against their original sentence.

What the initial action of the parole board does is it provides that as soon as revocation takes place, they’re returned to the institution and any time they serve subsequent to that but still prior to any hearing, they may be held that the institution is credited against their original sentence.

Lawrence S. Seuferer:

This is —

Byron R. White:

But then it wouldn’t make much difference to — to your procedure if the formality of revocation didn’t take place until he was returned to the institution.

Lawrence S. Seuferer:

Under the — under — the way the procedure actually operates it probably wouldn’t Your Honor.

It makes a difference only in terms of — well, let me — let me back up a statement.

Byron R. White:

It would be — it would be merely a — it’s a question of a label, that instead of calling the — the action the parole board takes when it now revokes a revocation, you could get — it could serve a sort of a preliminary hearing.

Lawrence S. Seuferer:

That’s not entirely correct, Your Honor.

And as far as our position goes, that would be true on the face of it.

However, if the parole was not revoked, the individual would not be sent back to the institution.

Byron R. White:

He has to be — it has to be revoked before he can get back in.

Lawrence S. Seuferer:

Before — before he gets back to the institution.

So what this means is that if we do not revoke the parole, and they should —

Byron R. White:

He has to sit in the jail.

Lawrence S. Seuferer:

He sits in the jail and the hearing that was subsequently conducted would have to be conducted in — all over the State wherever a county jail might be and this would cause a considerable burden on the — the board —

Byron R. White:

Yes.

Lawrence S. Seuferer:

— of parole and its administrative facility.

William J. Brennan, Jr.:

And what — what about the credit for the time in jail on (Voice Overlap) —

Lawrence S. Seuferer:

The credit would not count, Your Honor, until that parole is revoked according to the statute in effect in the State.

Potter Stewart:

How many prisons are there in the State?

Lawrence S. Seuferer:

Do you mean —

Potter Stewart:

Prisons.

Lawrence S. Seuferer:

Your Honor, I — most counties have a prison.

Potter Stewart:

Well, they have jails.

I’m talking about —

Lawrence S. Seuferer:

They have jails.

Prisons, there are only three institutions.

Potter Stewart:

Three.

Lawrence S. Seuferer:

Yes.

Potter Stewart:

That was my question.

Lawrence S. Seuferer:

There is a reformatory — well, three where the board of parole sits.

And —

Potter Stewart:

Three where the board of parole visits.

Lawrence S. Seuferer:

But normally — the normal situation is there’s one.

The State Penitentiary for Madison is the — the one that most of the cases fall within because that’s where the — the most serious offenders are sentenced and that’s naturally where the parole from.

Potter Stewart:

And then there is, as you say, a jail in each county or almost in every county.

Lawrence S. Seuferer:

Almost in every county.

There’s about number for county —

Potter Stewart:

How many counties are there?

Lawrence S. Seuferer:

99.

Potter Stewart:

99.

Byron R. White:

99.

Lawrence S. Seuferer:

So it’s a — it’s an administrative thing too as well as —

Byron R. White:

Are these matters raised in the Court of Appeals?

Lawrence S. Seuferer:

No, Your Honor.

None of these things were — were covered in terms of —

Potter Stewart:

Even exposed.

Lawrence S. Seuferer:

Again, the problem of this — the problem of this —

Byron R. White:

I know it’s in the —

Lawrence S. Seuferer:

— of this case —

Byron R. White:

— record but I thought they might have briefed and mixed — referred in oral argument of —

Lawrence S. Seuferer:

I — I can not speak for oral argument.

I wasn’t there.

But as far as the briefs, the briefs that were filed, I don’t think any of these matters were — were covered.

Potter Stewart:

As far as you know, they weren’t known to counsel —

Lawrence S. Seuferer:

I don’t think they were, Your Honor, because they certainly– the counsel that — that handled this case at the Court of Appeals level certainly never gave me any indication of it.

So I presumed it had known.

Byron R. White:

Is the — is the order the District Court requesting the documents from the penitentiary in the record?

Lawrence S. Seuferer:

Not to my knowledge, Your Honor.

I — I don’t — I guess —

Byron R. White:

I know it’s —

Lawrence S. Seuferer:

— it could well be.

Lawrence S. Seuferer:

I — I’m not — not sure whether it is or not.

Byron R. White:

Because they called for certain records from the penitentiary, didn’t they, with respect to —

Lawrence S. Seuferer:

This is the — the federal court in —

Byron R. White:

Yes.

Lawrence S. Seuferer:

— in the Southern District.

Byron R. White:

Report’s order of March 25.

Well, never mind.

Lawrence S. Seuferer:

I’ll tell you what might be indicated —

Byron R. White:

Never mind, that’s all right.

Lawrence S. Seuferer:

Okay.

The — the record that would indicate a hearing was held in this case would be a record held by the parole board.

At any rate in its central office in Des Moines may not — may well not be a part of the — of the total prison records.

Additionally, we feel that the — the question in this case being a prior hearing that there are — there are several reasons why a hearing prior to revocation are not — is not — not necessary and not advantageous.

One of the things is the aspect of detriment to the parolee we do not feel is there.

Obviously, if he’s taken away from a job, if he’s deprived of — of living at home with his family and so forth, these deprivations are going to be there whether we have a prior hearing or not under the system as it works and almost all the cases because the — the parole violations, even though they may only be allegations at one point, in most cases, are sufficient to justify the issuing of a warrant and picking him up and holding — holding him in a county jail.

So whether he really sits in the county jail or the penitentiary seems relatively immaterial in terms of his interest in remaining on his conditional liberty.

Potter Stewart:

But isn’t there — isn’t there a great deal of difference including a psychological difference and — when alone and perhaps a burden of proof difference as to whether or not the hearing is held prior to the decision of the parole board to revoke parole as contrasted with the hearing after that fate, I call plea, after the board has decided to revoke parole, then there’s a very great burden, is there not, on the parolee to — to convince the board to undo what it’s done?

I’m thinking of cases like Armstrong against Manzo.

You may be familiar with.

And there are many others that emphasize the importance of a prior hearing before the decision is made.

Lawrence S. Seuferer:

Your Honor, I think if the situation was one where the parolee steadfastly denied the allegations alleged that that psychological difference might come — might come into practice.

Potter Stewart:

And how about burden of proof?

I suppose they had no formal principles that have been worked out in parole revocation as to burden of proof, has — has there been?

Lawrence S. Seuferer:

No, Your Honor.

It’s — as a — as a practical matter, I guess it has really proved necessary too because there are so few cases where — where anything changes or so few cases where there is a denial of the offense.

And in fact, in these two cases here not only do the — the reports of violation which admittedly the comments in there are the comments of the parole officer as taken from the individual parolee.

But in both of those instances, if they — if they are carefully read, the — the rules that he alleges were violated, the petitioners admit the violation of those rules.

And I think the significant thing about it is nowhere in all of the proceedings of this case including at this level have they ever denied commission of those offenses.

Have they ever said, “We didn’t do what they said we did.”

Nowhere —

William J. Brennan, Jr.:

But one — one in the Booher case though of — the counsel suggest that at — in Booher’s instance, he left the county, all right, but he — he did because his wife was having a baby in some other county and/or because he had a job offer.

Lawrence S. Seuferer:

Your Honor, I think that’s —

William J. Brennan, Jr.:

Might that not — there may be violations, but might they not be weighed that — by the hearing and as — as not justifying in the circumstances of revocation?

Lawrence S. Seuferer:

I think, Your Honor, that there’s a point to be made in that respect.

However, I think there’s a point that weighs against that too.

And that you’ll notice I think in — in both of these cases and in the majority of the cases a parole is not revoked on the basis of one alleged violation.

In other words, there are three in both of these instances.

And usually, I think also that the report of violations indicates there’s some past problem.

Normally, the people we’re talking here, the parole officers and the board of parole, are interested in a rehabilitative process.

It’s — it’s an expensive proposition to — to maintain a prisoner, and it’s not as expensive to maintain a parolee.

They’re interested in working with these people and —

Byron R. White:

In a violation, it means failure.

Lawrence S. Seuferer:

A violation means it’s an admission of failure, really, to people that are trained to help.

And I think that the — I think there is something to be said for the mitigating circumstances but I believe this is a discretionary question that has to be weighed by the board along with this guy’s entire past history, including the psychiatry reports they have from the institution when he was there, his performance there, everything else.

And I think in the — in the sum total of things that this decision, the second decision, if you will, as to whether or not the parole should be revoked, once the fact of violation is established, is such a discretionary matter and such involves so many non-legal, non-technical type considerations that it would serve no useful purpose to have a factual proof on some of these things.

If they were brought to the attention of the board of parole at any rate, in other words, they knew about —

William J. Brennan, Jr.:

But in the Booher’s case, I gather, the only other violation was that he was driving a car with that car registered in his wife’s name and without the consent of the parole officer, is that it?

Lawrence S. Seuferer:

That’s correct, Your Honor.

I think his — I believe his —

William J. Brennan, Jr.:

He — that one of his conditions was that he would neither own nor operate an airplane, automobile this sort of —

Lawrence S. Seuferer:

That’s correct, Your Honor.

William J. Brennan, Jr.:

— without the written consent of the chief parole officer.

Lawrence S. Seuferer:

And the — and of course the — the employment aspect too.

Booher had several problems remaining employed apparently due to —

William J. Brennan, Jr.:

Temper.

Lawrence S. Seuferer:

— to temper.

And — so there were — the really — the only — the mitigating circumstances go primarily to the leaving of the county or the place.

William J. Brennan, Jr.:

But actually a loss of his liberty depends, doesn’t it, on — on the parole officer when he comes up with the report like this, automatically he’s picked up at —

Lawrence S. Seuferer:

The — the parole officer —

William J. Brennan, Jr.:

— on the —

Lawrence S. Seuferer:

— is — is the one who — who initiates the —

William J. Brennan, Jr.:

That’s it.

Lawrence S. Seuferer:

— warrant for arrest.

William J. Brennan, Jr.:

So automatically then he’s picked up on that and —

Lawrence S. Seuferer:

He’s not — I don’t think the pick-up is automatic.

I think in the case of — in fact, the petitioner Morrissey, the parole officer submitted his report of violation on, I believe, January 28, 1969.

The parole was revoked and Morrissey was in fact incarcerated in the local jail on the arrest warrant on the 31st of January which would indicate that in that instance —

William J. Brennan, Jr.:

Well — now, tell me what the process is.

The report’s filed with whom?

Lawrence S. Seuferer:

With the board of parole and with the — there are actually about five copies of it.

One goes to each of the three members of the board of parole and —

William J. Brennan, Jr.:

And —

Lawrence S. Seuferer:

— the state office.

William J. Brennan, Jr.:

— and then what’s — what’s the procedure then which leads to an order of revocation?

Lawrence S. Seuferer:

The procedure then is that the board of parole on just really on the basis of the information contained therein and on any past records of the individual vote individually — usually —

William J. Brennan, Jr.:

Wouldn’t they be by telephone or mail?

Lawrence S. Seuferer:

Normally, it’s by mail.

They vote by mail to the chief parole officer who is located in the — in Des Moines in the capital.

And two votes out of the three trigger the issuance of a revocation order.

William J. Brennan, Jr.:

And until that procedure has been completed, the parolee is not picked up.

Lawrence S. Seuferer:

Well, he may be in jail.

No —

William J. Brennan, Jr.:

Well, that’s what —

Lawrence S. Seuferer:

— if — what I’m saying is in Morrissey’s case, he was not.

In Booher’s case, he was in jail —

William J. Brennan, Jr.:

Well, how — well, that’s — that’s what I’m trying to get at.

How does that come about?

Lawrence S. Seuferer:

Him being in jail?

William J. Brennan, Jr.:

Yes.

Lawrence S. Seuferer:

Once the parole officer —

William J. Brennan, Jr.:

Yes.

Lawrence S. Seuferer:

— parole supervisor has information of alleged violations, he may have a warrant issued for the man’s arrest and hold him in the local —

William J. Brennan, Jr.:

And where — where does he get a warrant?

Lawrence S. Seuferer:

That comes through the local authorities.

It’s approved —

William J. Brennan, Jr.:

(Voice Overlap) —

Lawrence S. Seuferer:

— by the state — by the state parole officer though.

In other words, it’s a —

William J. Brennan, Jr.:

Well, I — I’m still puzzled.[Laughs]

Booher had a parole officer to whom he had to report.

Lawrence S. Seuferer:

That is correct.

William J. Brennan, Jr.:

And who supervised him.

Lawrence S. Seuferer:

That is correct.

William J. Brennan, Jr.:

Now, that parole officer decided he’d committed violations.

Lawrence S. Seuferer:

That’s correct, Your Honor.

William J. Brennan, Jr.:

Now, then how — what was the procedure which led up to Booher’s going to the county jail?

Lawrence S. Seuferer:

The parole officer, with — usually it’s a matter of informing the chief parole officer in Des Moines who supervises the whole operation of the information available to him and that he wished a warrant issued to pick up petitioner Booher because he was in the process of filing a reported violation on him —

William J. Brennan, Jr.:

Now — now, the warrant is an administrative warrant?

Lawrence S. Seuferer:

It’s a — it’s a — well, no, Your Honor, it’s — it’s a warrant issued by the local authorities but —

William J. Brennan, Jr.:

By local authorities, you mean the local magistrate and a local judge?

Lawrence S. Seuferer:

Yes, yes, which picks up or arrests petitioner Booher and incarcerates him in a local jail.

Then —

William J. Brennan, Jr.:

Then they start the process —

Lawrence S. Seuferer:

Then this process —

William J. Brennan, Jr.:

— they’re going to call —

Lawrence S. Seuferer:

That’s correct.

William J. Brennan, Jr.:

— members —

Lawrence S. Seuferer:

That’s correct.

William J. Brennan, Jr.:

— parole.

Warren E. Burger:

Let me take you to the setting in which the parole officer has received some information that — that violations may have occurred but — before he has completed his investigation and made his report to the state parole board, now, in that setting, does he contact the prisoner as a matter of practise the parolee and confront him with the suggestion of violations and give him an opportunity to explain them or answer —

Lawrence S. Seuferer:

As was —

Warren E. Burger:

(Voice Overlap) case.

Lawrence S. Seuferer:

— done in these cases —

Warren E. Burger:

Yes.

Lawrence S. Seuferer:

— yes, that is —

Warren E. Burger:

Now, did they do that always?

Lawrence S. Seuferer:

Your Honor, I — I hesitate —

Warren E. Burger:

(Voice Overlap) practise.

Lawrence S. Seuferer:

— to say always but the — the normal practice is that’s what they do unless the parolee is — is — they’re unable to pick him up because in some cases he, of course, is gone from the State and in that case, he does not.

Byron R. White:

But the parole board isn’t about — revoke a parole without a report from the parole officers to what he’s found out.

Lawrence S. Seuferer:

No, they do not.

As a matter — they just do not —

Byron R. White:

And they may say “He’s gone.

I can’t find him,” that’s all he know.

Lawrence S. Seuferer:

Well, it depends on —

Byron R. White:

At least that’s what the parole officer says to the parole board.

Lawrence S. Seuferer:

Yes.

Well, if that’s –without some verification that — that he in fact is gone, I really don’t know what the parole — parole board would do.

It’s unlikely they would revoke —

William J. Brennan, Jr.:

But there’s a —

Lawrence S. Seuferer:

(Voice Overlap) —

William J. Brennan, Jr.:

(Voice Overlap) — does — what has the parole board to act on except the report of the parole officer?

Lawrence S. Seuferer:

In essence that’s — that what they had —

William J. Brennan, Jr.:

And — and so —

Lawrence S. Seuferer:

— aside from whatever past records they have with them.

They of course have files on all of these people.

William J. Brennan, Jr.:

Yes, but — but ordinarily, if — if there’s a recommendation by the parole officer that the parole be revoked I take it that’s what the parole board does, doesn’t it?

Lawrence S. Seuferer:

That’s not correct, Your Honor.

As a matter of — again we’re talking about — we’re talking about things on which — I don’t have the exact statistics on it, but in the discussions with Mr. Badel, it was his indication that they reject one of these, in other words, turn them out lose depending upon their judgment call in terms of — of whether he’s still a good risk to remain on parole.

In this kind of situation where you have three alleged violations all admitted, I would say almost always they’re going to buy that recommendation.

Lawrence S. Seuferer:

If you have one allegation, it was Mr. Badel’s opinion that normally if it’s — is strictly a technical one.

Now, in other words, he left the county or something —

William J. Brennan, Jr.:

That’s the example — before they had was Booher going to pick up a job —

Lawrence S. Seuferer:

Yes.

William J. Brennan, Jr.:

— in some other county.

Lawrence S. Seuferer:

Yes.

Now, that — that’s the type of thing.

If that was the only violation, the probabilities are would not —

Potter Stewart:

The probabilities are there wouldn’t be a recommendation —

Lawrence S. Seuferer:

That’s right.

Potter Stewart:

— (Voice Overlap) probably told us.

Lawrence S. Seuferer:

The probabilities are there would —

Potter Stewart:

We’re — we’re now however talking about situation where there is a recommendation by the parole officer.

Lawrence S. Seuferer:

Well, as — it’s my understanding that in many of these cases, in many cases, I know many is — I — I realize I — I can’t pin this down statistically.

I’m sure we could more closely from the members of the board of parole.

But in many cases, they don’t accept the recommendation to answer your specific question.

I could only speculate as to what cases —

Potter Stewart:

Is that what Mr. Badel told you?

Lawrence S. Seuferer:

Yes, that’s what he told me.

That was — that was verified by the chief parole officer who — who was right next door to me and I wasn’t able to talk to him anyway in a daily basis.

But it’s my understanding they do not accept the recommendation in every case.

Potter Stewart:

I — I glanced through this appendix to one of the amicus briefs here that indicates about 30 out of the 50 States had some form of hearings.

Is that — have I counted correctly?

Lawrence S. Seuferer:

I think — I think there might even be more than that, Your Honor, that have some sort of hearing, not necessarily provided by statute or by case decisions in the State but by practice says.

It’s a situation in Iowa.

Byron R. White:

Nor necessarily before revocation.

Lawrence S. Seuferer:

That’s correct, Your Honor, nor necessarily before —

Potter Stewart:

But do you know how many happened before revocation?

Lawrence S. Seuferer:

I do not have that figure available, Your Honor.

In — in respect to the — what you’ve mentioned, the statistics you’ve mentioned there — there is a publication that will — I understand be published this summer by the National Counsel of Crime and Delinquency which is called the “Organization of Parole Systems” and is prepared by the National Parole Institute.

Lawrence S. Seuferer:

And they’ve studied or not studied but set out the procedures of parole operation, both granting and revocation in all the States, all or attempted to in all 50 States.

There’s a section in there on the State of Iowa which indicates — I looked at some of these — the drafts of some of these and they’re not terribly specific but it does indicate that there is a revocation hearing subsequent to the parole revocation that there’s a hearing subsequent to revocation I should say.

Potter Stewart:

And in your State in Iowa.

Lawrence S. Seuferer:

In our State, yes.

That’s — the Iowa Section —

Potter Stewart:

Bearing out what you’ve learned in — in your brief.

Lawrence S. Seuferer:

Yes, bearing out the general procedure not that these two individuals specifically had one.

Warren E. Burger:

Mr. Seuferer, I’m looking at page 67 of the appendix now.

At the bottom of the page is — under Roman numeral III, parolee’s version of the offenses and that is followed by a summary of the effort on the part of the parole officer to get a response.

And —

Lawrence S. Seuferer:

That’s correct, Your Honor.

Warren E. Burger:

— that’s followed in turn by a recital of previous violations and his parole history.

Is this report, if you know, typical of the types of reports which the parole agents make to the board in connection with the proposed revocation?

Lawrence S. Seuferer:

I think it’s — it’s substantially typical in terms of — of what they’ve covered.

It’s not necessarily in terms of form, and in a lot of cases, we may not know of some of the previous violations and that sort of information.

But in terms of — of setting out the rules violated, setting some sort of summary of — of how they were — they were violated, setting out something about the parolee’s version of these offenses and our conclusion and recommendation.

That, I think, is substantially what the bulk of them cover.

As far as this information about previous violations and parole history if they know it, if they’re aware of it, have been his parole officer all the time, they generally will include something about that if they don’t which we may not, they don’t.

Warren E. Burger:

Now, you’ve said in response to some questions from the bench that before the warrant, the violation, parole violation warrant is served in the arrest made, there is some local magistrate or officer, a neutral officer who issues that magistrate, just who is that?

Lawrence S. Seuferer:

Your Honor that’s —

Warren E. Burger:

The municipal judge or what kind of an officer?

Lawrence S. Seuferer:

No, I — I’m not — Your Honor, I’m not really sure who issues that warrant.

It’s a — maybe — I’m sure it’s not, in most instances, a judge.

Some sort —

Warren E. Burger:

But it’s a local — it’s a person in the locality where the agent and the —

Lawrence S. Seuferer:

I think —

Warren E. Burger:

— violator.

Lawrence S. Seuferer:

— that is usually the situation.

But it’s — it’s on the basis of — I think I should make this clear, it’s on the basis of the approval really by the state chief parole officer in Des Moines.

In other words, the — the local judge or the local magistrate is not in nine times — I’m not — in nine times out a hundred are going to refuse to issue a warrant.

Byron R. White:

This is just, in all practice —

Lawrence S. Seuferer:

It’s a procedure thing.

Byron R. White:

— for — for all intents and purposes it’s a case of a parole desk police officer determining that the facts of such, that there’s probable cause to arrest and arresting.

Lawrence S. Seuferer:

In essence that’s correct, Your Honor.

I thought it’s —

Potter Stewart:

And I thought it’s down under 247.9 of your code which makes a parolee subject to anytime to be taken into custody.

Lawrence S. Seuferer:

That’s correct, Your Honor.

Warren E. Burger:

Would it administratively be feasible if the process that’s covered in this report of the parole officer be presented to that local magistrate or whatever other officer may be involved on the warrant and have him at least make a preliminary determination and give the parolee an opportunity to answer to the specific charges before the revocation — before the arrest was made?

Lawrence S. Seuferer:

If your question is would that be administratively possible —

Warren E. Burger:

Yes.

Lawrence S. Seuferer:

— I think it probably would, Your Honor, as to what —

Warren E. Burger:

Remember in Hyser against Reed that was what was ordered with respect to the federal system that within —

Lawrence S. Seuferer:

That’s correct.

Warren E. Burger:

— within a reasonable time, after the determination of a probable violation, the parolee must be given an opportunity to be heard to show why he should not be arrested and returned to the federal institution.

Lawrence S. Seuferer:

That’s correct, Your Honor.

And I — the only problem that comes to mind on that kind of process is the — the local magistrate, if you will, is the — is going to be considering certainly only the facts that he has before him.

This is — all these would be seem in — in the case of where there’s no question or where the individual is admitted the violations, this would seem unnecessary, unless there’s some question of voluntariness of that admission.

And at least insofar as the cases of petitioners, there’s never been any allegation that they were in anyway coerced into — in anything they did.

Administratively possible, I think, yes, Your Honor, that it would be.

We would then in — in summary — our contention is that petitioners Morrissey and Booher both admitted the fact to parole violation, have never in any manner denied that admission.

And in light of these facts, we would submit that regardless of what may be nice or better maybe in a — in a general proposition, the two petitioners here got all the process they would do, and we respectfully request that this Court affirm the lower court decision.

Thank you.

Warren E. Burger:

Very well.

Mr. Seuferer, your time is up.

Mr. Brittin, did — I want to express the Court’s appreciation for your accepting the appointment in this case and for your assistance to your clients and to the Court.

W. Don Brittin, Jr.:

Thank you, Your Honor.