HOW MUCH PROCESS IS 'DUE' - PAROLEES AND PRISONERS

• NCJ Number: 14098
• Journal: Hastings Law Journal Volume: 25 Issue: 4 Dated: (MARCH 1974) Pages: 801-811
• Author(s): M O Tobriner; H Cohen
• Date Published: 1974
• Length: 11 pages
• Corporate Author: University of California
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THE RIGHT TO A HEARING AND THE RIGHT TO COUNSEL FOR PRISONERS AND PAROLEES IS DISCUSSED IN LIGHT OF TWO RECENT SUPREME COURT DECISIONS.

Abstract

THE MAIN THRUST OF THE SUGGESTED ANALYSIS IS THAT IN DETERMINING WHICH PROCEDURAL SAFEGUARDS SHOULD BE AFFORDED IN VARIOUS DUE PROCESS SETTINGS, WE MUST ANALYZE THE FUNCTION OF THE PARTICULAR SAFEGUARD WITH RESPECT TO THE SUBSTANTIVE ISSUE OF THE PARTICULAR HEARING IN QUESTION. THUS, THE 'DUAL HEARINGS' IN 'MORRISSEY' ARE SEEN AS POSSIBLE DILUTERS OF PAROLEES' RIGHTS AND A MORE ACTIVISTIC APPROACH IS PROPOSED. THE RIGHT OF A PAROLEE TO COUNSEL AT A PAROLE REVOCATION PROCEEDING IS COMPARED TO THE NEED OF A PRISONER TO COUNSEL IN A DISCIPLINARY HEARING. SIMILARLY, A CALL FOR FLEXIBILITY IN DEFINING 'BURDEN OF PROOF' IS MADE IN RELATION TO PRISON DISCIPLINARY HEARINGS AND PAROLE REVOCATION HEARINGS. IN BOTH INSTANCES, WHERE THE FACTUAL CLAIMS ARE COMPLEX OR DIFFICULT, COUNSEL SHOULD BE AFFORDED. (AUTHOR ABSTRACT)