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MORRISSEY ET AL. v. BREWER, WARDEN, ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 71-5103. Argued April 11, 1972—Decided June 29, 1972

Petitioners in these habeas corpus proceedings claimed that their

paroles were revoked without a hearing and that they were thereby deprived of due process. The Court of Appeals, in affirming the District Court's denial of relief, reasoned that under controlling authorities parole is only “a correctional device authorizing service of sentence outside a penitentiary,” and concluded that a parolee, who is still "in custody," is not entitled to a full adversary hearing such as would be mandated in a criminal proceeding. Held:

1. Though parole revocation does not call for the full panoply of rights due a defendant in a criminal proceeding, a parolee's liberty involves significant values within the protection of the Due Process Clause of the Fourteenth Amendment, and termination of that liberty requires an informal hearing to give assurance that the finding of a parole violation is based on verified facts to support the revocation. Pp. 480–482.

2. Due process requires a reasonably prompt informal inquiry conducted by an impartial hearing officer near the place of the alleged parole violation or arrest to determine if there is reasonable ground to believe that the arrested parolee has violated a parole condition. The parolee should receive prior notice of the inquiry, its purpose, and the alleged violations. The parolee may present relevant information and (absent security considerations) question adverse informants. The hearing officer shall digest the evidence on probable cause and state the reasons for holding the parolee for the parole board's decision. Pp. 484–487.

3. At the revocation hearing, which must be conducted reasonably soon after the parolee's arrest, minimum due process requirements are: (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a "neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement

Opinion of the Court

408 U.S.

by the factfinders as to the evidence relied on and reasons for

revoking parole. Pp. 487–490. 443 F. 2d 942, reversed and remanded.

BURGER, C. J., delivered the opinion of the Court, in which STEWART, WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. BRENNAN, J., filed an opinion concurring in the result, in which MARSHALL, J., joined, post, p. 490. DOUGLAS, J., filed an opinion dissenting in part, post, p. 491.

W. Don Brittin, Jr., by appointment of the Court, 404 U. S. 1036, argued the cause and filed briefs for petitioners.

Lawrence S. Seuferer, Assistant Attorney General of Iowa, argued the cause for respondents. With him on the brief was Richard C. Turner, Attorney General.

Briefs of amici curiae urging reversal were filed by William W. Falsgraf and Robert J. Kutak for the American Bar Association; by Melvin L. Wulf, Herman Schwartz, and Robert Plotkin for the American Civil Liberties Union; and by Craig Eldon Pinkus for James H. Russell.

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

We granted certiorari in this case to determine whether the Due Process Clause of the Fourteenth Amendment requires that a State afford an individual some opportunity to be heard prior to revoking his parole.

Petitioner Morrissey was convicted of false drawing or uttering of checks in 1967 pursuant to his guilty plea, and was sentenced to not more than seven years' confinement. He was paroled from the Iowa State Penitentiary in June 1968. Seven months later, at the direction of his parole officer, he was arrested in his home town as a parole violator and incarcerated in the county jail. One week later, after review of the parole officer's written report, the Iowa Board of Parole revoked Mor

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rissey's parole, and he was returned to the penitentiary located about 100 miles from his home. Petitioner asserts he received no hearing prior to revocation of his parole.

The parole officer's report on which the Board of Parole acted shows that petitioner's parole was revoked on the basis of information that he had violated the conditions of parole by buying a car under an assumed name and operating it without permission, giving false statements to police concerning his address and insurance company after a minor accident, obtaining credit under an assumed name, and failing to report his place of residence to his parole officer. The report states that the officer interviewed Morrissey, and that he could not explain why he did not contact his parole officer despite his effort to excuse this on the ground that he had been sick. Further, the report asserts that Morrissey admitted buying the car and obtaining credit under an assumed name, and also admitted being involved in the accident. The parole officer recommended that his parole be revoked because of "his continual violating of his parole rules.” The situation as to petitioner Booher is much the

Pursuant to his guilty plea, Booher was convicted of forgery in 1966 and sentenced to a maximum term of 10 years. He was paroled November 14, 1968. In August 1969, at his parole officer's direction, he was arrested in his home town for a violation of his parole and confined in the county jail several miles away. On September 13, 1969, on the basis of a written report by his parole officer, the Iowa Board of Parole revoked Booher's parole and Booher was recommitted to the state penitentiary, located about 250 miles from his home, to complete service of his sentence. Petitioner asserts he received no hearing prior to revocation of his parole.

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The parole officer's report with respect to Booher recommended that his parole be revoked because he had violated the territorial restrictions of his parole without consent, had obtained a driver's license under an assumed name, operated a motor vehicle without permission, and had violated the employment condition of his parole by failing to keep himself in gainful employment. The report stated that the officer had interviewed Booher and that he had acknowledged to the parole officer that he had left the specified territorial limits and had operated the car and had obtained a license under an assumed name “knowing that it was wrong.” The report further noted that Booher had stated that he had not found employment because he could not find work that would pay him what he wanted—he stated he would not work for $2.25 to $2.75 per hour—and that he had left the area to get work in another city.

After exhausting state remedies, both petitioners filed habeas corpus petitions in the United States District Court for the Southern District of Iowa alleging that they had been denied due process because their paroles had been revoked without a hearing. The State responded by arguing that no hearing was required. The District Court held on the basis of controlling authority that the State's failure to accord a hearing prior to parole revocation did not violate due process. On appeal, the two cases were consolidated.

The Court of Appeals, dividing 4 to 3, held that due process does not require a hearing. The majority recognized that the traditional view of parole as a privilege rather than a vested right is no longer dispositive as to whether due process is applicable; however, on a balancing of the competing interests involved, it concluded that no hearing is required. The court reasoned that parole is only "a correctional device authorizing service of sentence outside the penitentiary,” 443 F. 2d

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942, 947; the parolee is still “in custody.” Accordingly, the Court of Appeals was of the view that prison officials must have large discretion in making revocation determinations, and that courts should retain their traditional reluctance to interfere with disciplinary matters properly under the control of state prison authorities. The majority expressed the view that “non-legal, non-adversary considerations" were often the determinative factors in making a parole revocation decision. It expressed concern that if adversary hearings were required for parole revocation, "with the full panoply of rights accorded in criminal proceedings,” the function of the parole board as "an administrative body acting in the role of parens patriae would be aborted,id., at 949, and the board would be more reluctant to grant parole in the first instance—an apprehension that would not be without some basis if the choice were between a full-scale adversary proceeding or no hearing at all. Additionally, the majority reasoned that the parolee has no statutory right to remain on parole. Iowa law provides that a parolee may be returned to the institution at any time. Our holding in Mempa v. Rhay, 389 U. S. 128 (1967), was distinguished on the ground that it involved deferred sentencing upon probation revocation, and thus involved a stage of the criminal proceeding, whereas parole revocation was not a stage in the criminal proceeding. The Court of Appeals' decision was consistent with many other decisions on parole revocations.

In their brief in this Court, respondents assert for the first time that petitioners were in fact granted hearings after they were returned to the penitentiary. More generally, respondents say that within two months after the Board revokes an individual's parole and orders him returned to the penitentiary, on the basis of the parole officer's written report it grants the individual a hearing before the Board. At that time, the Board goes over "each of

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