Restate the question, Answer, Cite Evidence, and Explain in all assignments.

I will also be adding the section of the pages, "Revocation of Probation and/or Parole", that are need to be read to get the answers to the questions.

12 . COMMUNITY SUPERVISION AND THE LAW 170 testify at these hearings does not violate inmates' Fifth Amendment protection against for a exper compelled self-incriminatin S Cur Revocation of Probation and/or Parole guilt that Probation officers alone cannot revoke probation; a formal hearing is needed to yea make such a determination. In Mempa v. Rhay, Jerry Mempa had been placed on a 's probation for a term of two years after pleading guilty to joyriding. During his pro- aft bation period, the county prosecutor moved to revoke Mempa's probation based sta on Mempa's role in a burglary. At the hearing, Mempa was not represented by ha counsel and he was never asked if he wanted counsel present. Mempa pleaded guilty to the charge of burglary. As a result, Mempa had his term of probation revoked and was sentenced to 10 years in prison. However, the Supreme Court ruled unan- imously that the right to counsel guaranteed by the Sixth Amendment extends to any post-trial proceedings for either the revocation of probation or deferred sen- tencing. Thus, to revoke anyone's probation, a court must give a person the op- portunity to procure counsel and the state needed to provide counsel for indigent probationers. As we previously mentioned, probation and parole are different criminal sanctions and forms of supervision. Yet, according to Nahari (1988), the courts and the protections that should be given to probationers and parolees, are essentially the same. Indeed, in Gagnon v. Scarpelli, the Supreme Court stated that these two different sanctions are "constitutionally indistinguishable." Thus, two Supreme Court decisions decided in consecutive years, Morrissey v. Brewer and the aforementioned Gagnon v. Scarpelli, to- gether laid the foundation for the process by which revocation hearings should operate for both probation and parole. In Morrissey v. Brewer, the Supreme Court ruled that due process required that parole revocation procedures should include at a minimum the following: (1) written notice of the claimed violations of parole; (2) disclosure to parolees of any evidence against them; (3) the opportunity to be heard in person and to present evidence and documentary evidence; (4) the right to confront and cross- examine witnesses (unless the hearing officer has a good reason not to allow it); (5) a neutral and detached hearing body, such as a traditional parole board; and (6) a written statement by the fact finder as to the evidence relied on and reasons for revoking parole. The court reasoned that after an inmate is granted parole, to withdraw it is a "grievous loss of freedom," and thus merits due process protection. In the following year, the Supreme Court considered probation hearings in Gagnon v. Scarpelli, and somewhat limited these rights and the previous decision in Mempa v. Rhay. In Gagnon, the Court ruled that the Constitution did not require a probationer be provided "proper repre- sentation." As for whether a court should appoint an attorney, that should be decided on a case-by-case basis. Such a determination ought to be made at the initial hearing, in which it is also determined if a probationer or parolee must be incarcerated while awaiting the final hearing. The Court did not provide any real guidance as to why a person should be denied counsel for a revocation hearing, but did seem to indicate that12 . COMMUNITY SUPERVISION AND THE LAW 171 for a probationer or parolee to receive counsel, there must be some question of fact or expertise needed that would make an attorney necessary to the process. Some decisions do not have to be made at a hearing. In Jago v. Van Curen, Van Curen pleaded guilty to embezzlement and several other related crimes. After his guilty plea, Van Curen was given a sentence of six to 100 years in prison (meaning that the sentence should not be less than six years but not more than 100 years). Two years prior to Van Curen's parole eligibility, the state of Ohio passed what was called a "shock parole" statute, which allowed for the early release of nonviolent offenders after six months of incarceration. Van Curen applied for early parole under the new statute, and it was granted. However, after the parole board learned that Van Curen had made false statements to the parole board and regarding his proposed parole plan, the parole board terminated Van Curen's early parole without a hearing and before Van Curen had been released. He argued that this violated his due process rights guaranteed under the Fourteenth Amendment, but the Supreme Court ruled that no such liberty interest was attached to early parole. However, in a slightly different case, Young v. Harper, the Supreme Court ruled differently on another pre- parole program. In that case, whenever prisons in the state of Oklahoma became overcrowded, a varying number of inmates needed to be released on conditional re- lease. The pardon and parole board of the state established criteria for these decisions, including the requirement that inmates must have served at least 15% of their sentence. Leroy Young was released under such a program after serving 15 years out of a life sentence. However, five months after Young was released, the governor denied Young's parole and he was ordered back to prison. Unlike the decision in Jago, in Young v. Harper, the Supreme Court sided with Young ruling that the pre-parole program was sufficiently like a parole program, and thus, an offender facing parole revocation was entitled to the same protections as anyone else applying for normal parole. In addition to the process of revocation, the Supreme Court has also had to de- termine for what periods of time probationers could serve in prison or jail after having their probation revoked. In United States v. Granderson, Granderson had been con- victed of mail destruction. Under the United States Sentencing Guidelines, a defendant convicted of this crime could face an imprisonment period of zero to six months. However, instead of being incarcerated, Granderson was given a sentence of five years of probation. While on probation, Granderson tested positive for cocaine. According to the United States Penal Code, if anyone serving probation is found in possession of illegal drugs, probation shall be revoked and that person must be incarcerated for not less than one third of their sentence. The district court hearing Granderson's case sentenced Granderson to one third of the five years of probation (a total of 20 months), rather than one third of the zero-to-six months of incarceration term in the sentencing guidelines, which would have only been two months. Granderson ap- Pealed his sentence to the Eleventh Circuit of Appeals, which ruled that the period of incarceration should be controlling, rather than the period of probation, so Granderson should have been sentenced to two months instead of 20. The Supreme Court agreed with the Eleventh Circuit and affirmed its judgment.12 . COMMUNITY SUPERVISION AND THE LAW 172 The Supreme Court has also ruled on what ought to be considered when revoking probation. In Black v. Romano, Nicholas Romano pleaded guilty in a Missouri state court to several drug offenses. He was given a suspended prison sentence and placed on probation. Two months afterward, Romano was charged with leaving the scene of an automobile accident, which in Missouri is a felony. At a revocation hearing, a judge revoked Romano's probation and sentenced him to the originally suspended prison sentence. After Romano exhausted his state court remedies, he filed a habeas corpus petition and argued that rather than sentence him to prison, the judge in the case should have considered other alternatives to incarceration. Romano argued that this failure constituted a violation of his due process rights. The district court hearing Romano's habeas corpus petition agreed and ordered Romano released from prison. Furthermore, the Eighth Circuit Court of Appeals affirmed the decision of the district court. However, the Supreme Court ultimately reversed the decision and ordered Romano back to prison. The Court ruled that although the sentencing judge could consider other alternatives to incarceration when hearing a probation violation, no judge is under any obligation to make such a consideration. Another way in which probation and parole revocation hearings are different from criminal trials is in regards to the exclusionary rule. For defendants in a criminal trial, if evidence is illegally obtained, it cannot be introduced at trial. Yet in Pennsyl vania Board of Probation and Parole v. Scott, the Supreme Court ruled that illegally obtained evidence could be used during probation and/or parole hearings. In that case, both a state court and the Pennsylvania Supreme Court ruled that evidence used against Keith Scott had been illegally obtained. However, the Supreme Court of the United States ruled that the exclusionary rule was a judicially created remedy and did not come directly from the United States Constitution. According to the Court, state probation and parole authorities must have greater latitude to search probationers and parolees. Thus, evidence illegally obtained could still be introduced at these hearings. One issue the courts have considered is when a probationer or parolee can challenge a conviction with a federal habeas corpus petition. In Jones v. Cunningham, Claude Jones had been convicted in 1953 for his third crime, which resulted in his being sen- tenced to 10 years in prison. Eight years later, Jones filed a habeas corpus petition for a 1946 conviction (which had played a part in his aforementioned 10-year sen- tence). The petition alleged that he had been deprived of counsel. As Jones' case was being processed, he was paroled and still under the court's supervision. Jones wanted to continue his lawsuit, but the state objected because it believed that because Jones was no longer incarcerated, he was no longer in the custody of correctional authorities. To them, the whole purpose of a habeas corpus petition was for them to explain why they held Jones. Therefore, the state believed the case was moot. However, the Supreme Court ruled that any time a person is under the correctional authority of the state, whether in a jail or prison or on probation or on parole, that person is still within corpus petition. the custody of the state. Thus, any of these offenders should be allowed to file a habeas