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Revocation of Conditional Pardon or Parole

Revocation is a continuing consequence of the original conviction from which parole was granted[i].  The revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations[ii].  Parole arises after the end of the criminal prosecution, including imposition of sentence.

Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.

Revocation of parole is remedial rather than punitive, since it seeks to protect the welfare of parolees and the safety of society[iii].  The termination of parole results in a deprivation of liberty and thus is a grievous loss to the parolee.  But the harshness of parole revocation does not alter its remedial nature.

Revocation does not require a judicial hearing.  The rules of evidence need not be strictly adhered to and the privilege against self-incrimination does not prevent consideration of inculpatory statements or a parolee’s refusal to answer questions.

There must 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 s/he can, that s/he did not violate the conditions, or, if s/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 would not appear to be unreasonable.

A parole revocation hearing is not part of a criminal proceeding and is instead an administrative procedure to determine whether a parolee should be deprived of his/her conditional liberty for failure to observe special parole conditions[iv].

The minimum requirements of due process for revocation of parole include[v]:

  • written notice of the claimed violations of parole;
  • disclosure to the parolee of evidence against him;
  • opportunity to be heard in person and to present witnesses and documentary evidence;
  • the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation);
  • a neutral and detached hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and
  • a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.

The ultimate question in revocation proceedings is whether the parolee remains a good risk, that is, whether his/her rehabilitation can be successfully achieved outside prison walls or will be furthered by returning him to a closed society[vi].

[i] State ex rel. Flowers v. Department of Health & Social Services, 81 Wis. 2d 376 (Wis. 1978).

[ii] Morrissey v. Brewer, 408 U.S. 471 (U.S. 1972).

[iii] Standlee v. Rhay, 557 F.2d 1303 (9th Cir. Wash. 1977).

[iv] Taylor v. United States Parole Com., 734 F.2d 1152 (6th Cir. Ky. 1984).

[v] Morrissey v. Brewer, 408 U.S. 471 (U.S. 1972).

[vi] State ex rel. Flowers v. Department of Health & Social Services, 81 Wis. 2d 376 (Wis. 1978).

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