failure for his supervising officer.13 However, we need make no assumptions one way or the other to conclude that there should be an uninvolved person to make this preliminary evaluation of the basis for believing the conditions of parole have been violated. The officer directly involved in making recommendations cannot always have complete objectivity in evaluating them.1 Goldberg v. Kelly found it unnecessary to impugn the motives of the caseworker to find a need for an independent decisionmaker to examine the initial decision.

This independent officer need not be a judicial officer. The granting and revocation of parole are matters traditionally handled by administrative officers. In Goldberg, the Court pointedly did not require that the hearing on termination of benefits be conducted by a judicial officer or even before the traditional "neutral and detached" officer; it required only that the hearing be conducted by some person other than one initially dealing with the case. It will be sufficient, therefore, in the parole revocation context, if an evaluation of whether reasonable cause exists to believe that conditions of parole have been violated is made by someone such as a parole officer other than the one who has made the report of parole violations or has recommended revocation. A State could certainly choose some other independent decisionmaker to perform this preliminary function.

With respect to the preliminary hearing before this officer, the parolee should be given notice that the hear

13 Note, Observations on the Administration of Parole, 79 Yale L. J. 698, 704-706 (1970) (parole officers in Connecticut adopt role model of social worker rather than an adjunct of police, and exhibit a lack of punitive orientation).

14 This is not an issue limited to bad motivation. "Parole agents are human, and it is possible that friction between the agent and parolee may have influenced the agent's judgment." 4 Attorney General's Survey on Release Procedures: Parole 246 (1939).

471

Opinion of the Court

ing will take place and that its purpose is to determine whether there is probable cause to believe he has committed a parole violation. The notice should state what parole violations have been alleged. At the hearing the parolee may appear and speak in his own behalf; he may bring letters, documents, or individuals who can give relevant information to the hearing officer. On request of the parolee, a person who has given adverse information on which parole revocation is to be based is to be made available for questioning in his presence. However, if the hearing officer determines that an informant would be subjected to risk of harm if his identity were disclosed, he need not be subjected to confrontation and cross-examination.

The hearing officer shall have the duty of making a summary, or digest, of what occurs at the hearing in terms of the responses of the parolee and the substance of the documents or evidence given in support of parole revocation and of the parolee's position. Based on the information before him, the officer should determine whether there is probable cause to hold the parolee for the final decision of the parole board on revocation. Such a determination would be sufficient to warrant the parolee's continued detention and return to the state correctional institution pending the final decision. As in Goldberg, "the decision maker should state the reasons for his determination and indicate the evidence he relied on . . ." but it should be remembered that this is not a final determination calling for "formal findings of fact and conclusions of law." 397 U. S., at 271. No interest would be served by formalism in this process; informality will not lessen the utility of this inquiry in reducing the risk of error.

(b) The Revocation Hearing. There must also be an opportunity for a hearing, if it is desired by the parolee, prior to the final decision on revocation by the parole

authority. This hearing must be the basis for more than determining probable cause; it must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation. The parolee must have an opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did, that circumstances in mitigation suggest that the violation does not warrant revocation. The revocation hearing must be tendered within a reasonable time after the parolee is taken into custody. A lapse of two months, as respondents suggest occurs in some cases, would not appear to be unreasonable.

We cannot write a code of procedure; that is the responsibility of each State. Most States have done so by legislation, others by judicial decision usually on due process grounds. Our task is limited to deciding the

15

15 Very few States provide no hearing at all in parole revocations. Thirty States provide in their statutes that a parolee shall receive some type of hearing. See Ala. Code, Tit. 42, § 12 (1959); Alaska Stat. § 33.15.220 (1962); Ariz. Rev. Stat. Ann. §31-417 (1956); Ark. Stat. Ann. § 43-2810 (Supp. 1971); Del. Code Ann., Tit. 11, § 4352 (Supp. 1970); Fla. Stat. Ann. § 947.23 (1) (Supp. 1972); Ga. Code Ann. § 77-519 (Supp. 1971); Haw. Rev. Stat. § 353-66 (1968); Idaho Code §§ 20-229, 20-229A (Supp. 1971); Ill. Ann. Stat., c. 108, §§ 204 (e), 207 (Supp. 1972); Ind. Ann. Stat. § 13-1611 (Supp. 1972); Kan. Stat. Ann. § 22-3721 (1971); Ky. Rev. Stat. Ann. § 439.330 (1) (e) (1962); La. Rev. Stat. Ann. § 15:574.9 (Supp. 1972); Me. Rev. Stat. Ann., Tit. 34, § 1675 (Supp. 19701971); Md. Ann. Code, Art. 41, § 117 (1971); Mich. Comp. Laws § 791.240a, Mich. Stat. Ann. § 28.2310 (1) (Supp. 1972); Miss. Code Ann. § 4004-13 (1956); Mo. Ann. Stat. § 549.265 (Supp. 1971); Mont. Rev. Codes Ann. §§ 94-9838, 94-9835 (1969); N. H. Rev. Stat. Ann. § 607:46 (1955); N. M. Stat. Ann. § 41-17-28 (1972); N. Y. Correc. Law §212 subd. 7 (Supp. 1971); N. D. Cent. Code § 12-59-15 (Supp. 1971); Pa. Stat. Ann., Tit. 61, § 331.21a (b) (1964); Tenn. Code Ann. § 40-3619 (1955); Tex. Code Crim. Proc., Art. 42.12, § 22 (1966); Vt. Stat. Ann., Tit. 28, § 1081 (b) (1970); Wash. Rev. Code §§ 9.95.120 through 9.95.126 (Supp. 1971); W. Va. Code Ann. § 62-12-19 (1966). Decisions of state and federal courts have re

1

minimum requirements of due process. They include (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 by the factfinders as to the evidence relied on and reasons for revoking parole. We emphasize there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.

We do not reach or decide the question whether the parolee is entitled to the assistance of retained counsel or to appointed counsel if he is indigent.16

quired a number of other States to provide hearings. See Hutchison v. Patterson, 267 F. Supp. 433 (Colo. 1967) (approving parole board regulations); United States ex rel. Bey v. Connecticut State Board of Parole, 443 F. 2d 1079 (CA2 1971) (requiring counsel to be appointed for revocation hearings); State v. Holmes, 109 N. J. Super. 180, 262 A. 2d 725 (1970); Chase v. Page, 456 P. 2d 590 (Okla. Crim. App. 1969); Bearden v. South Carolina, 443 F. 2d 1090 (CA4 1971); Baine v. Beckstead, 10 Utah 2d 4, 347 P. 2d 554 (1959); Goolsby v. Gagnon, 322 F. Supp. 460 (ED Wis. 1971). A number of States are affected by no legal requirement to grant any kind of hearing.

16 The Model Penal Code § 305.15 (1) (Proposed Official Draft 1962) provides that "[t]he institutional parole staff shall render reasonable aid to the parolee in preparation for the hearing and he shall be permitted to advise with his own legal counsel."

BRENNAN, J., concurring in result

408 U.S.

We have no thought to create an inflexible structure for parole revocation procedures. The few basic requirements set out above, which are applicable to future revocations of parole, should not impose a great burden on any State's parole system. Control over the required proceedings by the hearing officers can assure that delaying tactics and other abuses sometimes present in the traditional adversary trial situation do not occur. Obviously a parolee cannot relitigate issues determined against him in other forums, as in the situation presented when the revocation is based on conviction of another crime.

In the peculiar posture of this case, given the absence of an adequate record, we conclude the ends of justice will be best served by remanding the case to the Court of Appeals for its return of the two consolidated cases to the District Court with directions to make findings on the procedures actually followed by the Parole Board in these two revocations. If it is determined that petitioners admitted parole violations to the Parole Board, as respondents contend, and if those violations are found to be reasonable grounds for revoking parole under state standards, that would end the matter. If the procedures followed by the Parole Board are found to meet the standards laid down in this opinion that, too, would dispose of the due process claims for these cases.

We reverse and remand to the Court of Appeals for further proceedings consistent with this opinion.

Reversed and remanded.

MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, concurring in the result.

I agree that a parole may not be revoked, consistently with the Due Process Clause, unless the parolee is afforded, first, a preliminary hearing at the time of arrest to determine whether there is probable cause to believe