In re Tucker

Opinion

Petitioner challenges the revocation of his parole by the Adult Authorty.^[1] He was paroled from Folsom Prison in January 1968, having served a portion of sentences imposed in 1949 for the commission of three first degree robberies and an assault with intent to commit murder. On December 6, 1968, his parole was canceled and his term of sentence reset at the maximum, life imprisonment. At a parole revocation hearing on February 20, 1969, petitioner was advised of the conditions of his parole which his parole officers reported that he had violated, namely, having left the county of his residence without prior approval, and having possessed a firearm. Petitioner admitted the first violation but refused to admit or deny the second. The Adult Authority concluded that he had violated both conditions and revoked his parole on those grounds.

In his petition for habeas corpus, petitioner alleged that the sole evidence before the Adult Authority of his possessing a firearm was his own uncorroborated confession exacted by police officers through duress,

After a hearing, the referee found that the Adult Authority had relied exclusively upon petitioner’s statement that he had possessed a firearm while on parole. However, the referee also found that the statement was free and voluntary. Although a referee’s findings are not binding upon this court, they are entitled to great weight if supported by substantial evidence. (In re Branch, 70 Cal.2d 200 , 203, fn. 1 [ 74 Cal.Rptr. 238 , 449 P.2d 174 ].) In the instant case, both police officers testified that petitioner’s statement was made without duress, threats or promises of any kind.^[2] Accordingly, we adopt the finding of the referee that the statement was freely and voluntarily given by petitioner.

The referee also found that the officers had failed to give petitioner any of the warnings required under Miranda, supra, since they did not consider petitioner to be a suspect in the case. We need not reach the question whether or not petitioner was entitled to these warnings, for it is now settled that the Adult Authority properly may consider and act upon a voluntary confession or statement obtained from a parolee without first apprising him of his constitutional rights. (In re Martinez, 1 Cal.3d 641 , 650 [ 83 Cal.Rptr. 382 , 463 P.2d 734 ].)

We have concluded that the Adult Authority properly considered petitioner’s statement in deciding whether to revoke his parole, and that the statement constituted sufficient cause (Pen. Code, § 3063) to justify parole revocation.

Petitioner further contends that he was denied due process of law in that the Adult Authority on February 20, 1969, “forced petitioner to appear before them without informing petitioner of his rights and without benefit of counsel. . . .” Petitioner misconceives the nature and purpose of parole revocation hearings before the Adult Authority.

It is true that the parole revocation procedure adopted by the Adult

However, the use of certain procedures and nomenclature common to a criminal trial does not alter the fundamental character of parole revocation hearings. As the Authority itself acknowledges, these procedures are “not required by law” (Policy Statement, supra, p. 1), and revocation rests entirely in the discretion of the Adult Authority in carrying out its responsibility over parole matters. Under Penal Code section 3060, the Authority is given “full power to suspend, cancel or revoke any parole without notice, and to order returned to prison any prisoner on parole.” The sole statutory restriction upon the power to revoke parole is section 3063, which provides that “no parole shall be suspended or revoked without cause, which cause must be stated in the order suspending or revoking the parole.”

This court has held that the Adult Authority may revoke parole without notice or hearing (In re Gomez, supra, 64 Cal.2d 591 , 594; In re McLain, 55 Cal.2d 78 , 84 [ 9 Cal.Rptr. 824 , 357 P.2d 1080 ]),^[4] and the provisions of the California Administrative Procedure Act (Gov. Code, § 11370 et seq.) are inapplicable to Adult Authority parole proceedings

Unlike the situation in Mempa, parole revocation proceedings occur in an entirely nonjudicial setting, wherein both judgment of conviction and sentence have been imposed by the court, no further judicial proceedings take place, and the revocation hearing itself is one gratuitously but nevertheless quite properly offered and conducted by the Adult Authority pursuant to its own internal rules of procedure and its desire to accord the prisoner an opportunity to. be heard. Nor does revocation of parole involve any “substantial” or “legal” rights of the prisoner, for prisoners on parole remain under legal custody and are subject to be returned to prison at any time. (Pen. Code, § 3056; People v. Villareal, 262 Cal.App. 2d 438 , 447 [ 68 Cal.Rptr. 610 ]; People v. Hernandez, 229 Cal.App.2d 143 , 149 [ 40 Cal.Rptr. 100 ].) Parole is considered to be a matter of grace, a privilege and not a right, and is committed entirely to the discretion of the Adult Authority. (In re Schoengarth, supra, 66 Cal.2d 295 , 300; People v. Ray, 181 Cal.App.2d 64 , 69 [ 5 Cal.Rptr. 113 ], cert. den. 366 U.S. 937 [ 6 L.Ed.2d 848 , 81 S.Ct. 1662 ].)

Thus, a majority of the courts which have considered the question have held that the Mempa case does not require the presence of counsel at parole revocation proceedings. (See Pope v. Superior Court, 9 Cal.App.3d 644 , 647 [ 88 Cal.Rptr. 488 ]; Johnson v. Stucker (1969) 203 Kan. 253 [ 453 P.2d 35 , 39-40], cert. den. 396 U.S. 904 [ 24 L.Ed.2d 180 , 90 S.Ct. 218 ]; John v. State (N.D. 1968) 160 N.W.2d 37 ; Beal v. Turner (1969) 22 Utah 2d 418 [ 454 P.2d 624 , 625]; Mead v. California Adult Authority (9th Cir. 1969) 415 F.2d 767 , 768; Dunn v. California Department of Corrections (9th Cir. 1968) 401 F.2d 340 , 342; Ernest v. Willingham. (10th Cir. 1969) 406 F.2d 681 ; Rose v. Haskins (6th Cir. 1968) 388 F.2d 91 , cert. den. 392 U.S. 946 [ 20 L.Ed.2d 1408 , 88 S.Ct. 2300 ]; Menechino v. Oswald (2d Cir. 1970) 430 F.2d 403 , 409; but see Commonwealth v. Tinson (1969) 433 Pa. 328 [ 249 A.2d 549 ]; Menechino v. Warden (1971) 27 N.Y.2d 376 [ 318 N.Y.S.2d 449 , 267 N.E.2d 238 ]; Ellhamer v. Wilson (N.D.Cal. 1969) 312 F.Supp. 1245 (app. pending 9th Cir.).^[6] )

It is undeniable, of course, that under certain circumstances counsel could

Accordingly, we conclude that petitioner was not entitled to the assistance of counsel at the parole revocation hearing.

The order to show cause is discharged and the petition for writ of habeas corpus is denied.

Wright, C. J., McComb, J., Mosk, J., and Sullivan, J., concurred.

I concur in Justice Burke’s opinion. The dissenting opinions, however, impel me to add this postscript.

Justice Tobriner implies that parole officers are malevolent functionaries dedicated to the deprivation of normal human existence by the parolees in their charge. Justice Peters asserts those of us in the majority adhere to a fiction “so divorced from reality that it cannot be tolerated by any fair-minded man.” It is my two learned colleagues, with their gaze commendably fixed on the stars, who are tripping over reality.

Parole officers, like all public servants, are presumed to faithfully perform their duties, and there are several pragmatic reasons why they would do so.^[1] First, the economy of the state, particularly in these times of austerity, benefits from the release of prisoners, and conversely, suffers the burden of support whenever it must incarcerate increasing numbers of prison inmates. There has been a markedly expanded use of parole procedures in recent years. Second, parole officers are understandably desirous of demonstrating that parole works; the merit of the system is measured by those who achieve successful adjustment on parole, not by numbers of revocations. Third, there is absolutely no empirical evidence that the parolee who “works at a job, lives with his family . . . and generally pursues a normal law-abiding

Justice Tobriner’s literate discussion of the due process requirements of timely and adequate notice, and an opportunity to be heard, is more academic than apposite here. The real thrust of his dissent, and its departure from the norm, is the insistence upon presence of counsel at parole proceedings. He would require counsel for every parolee, the indigents to obtain representation at state expense.

Although Justice Burke has demonstrated that counsel is not required before the Adult Authority under existing constitutional, statutory or case law, it can be conceded arguendo that salutary benefits could accrue from the presence of counsel at such administrative proceedings. Indeed I would agree that as an ideal a skilled member of the bar should either be available for hire or provided out of the public treasury for every adult and every juvenile with a civil or criminal problem that has the slightest potential of subjecting him to physical detention, monetary loss or moral humiliation. The day may come when there is an adequate lawyer population and sufficient public sophistication to achieve that ideal. I regret, perhaps more than my dissenting brethren who fail to consider the problem of logistics, that the day does not yet appear on the horizon. Nor will it be hastened by judicial fiat.

A few statistics may be instructive. The California penal institution population was 28,462 at the beginning of 1969, an increase of 6,200 felons over the preceding decade.^[2] The annual increase in the number of inmates has ranged from slight in some years as to as much as 13.5 percent, as was the case in 1958.

Ninety-two percent of all felons released from prison are placed on parole. The current parole population consists of 10,764 men and 1,069 women, increases of 59.1 and 65.7 percent respectively over the preceding 10 years. Eighteen percent of the male, and 15.3 percent of the female parolees are found to be violators within the very first year of their parole, some by infractions of parole conditions and some by the conviction of other crimes. After the first year, the violation ratio rises sharply. Between 45 and 51 percent of all parolees have their parole suspended after the first and before the second year of parole, and by the fifth year as many as 63.9 percent are determined to be violators.

The foregoing data have relevance to our problem. We are not here concerned merely with the difficulties of Preston Tucker; we must view the broad spectrum of more than 4,000 parole suspensions each year, and of that number of parolees some move in and out of the parole system two or three times as they attempt the difficult adjustment to an orderly society.

Formal hearings, with counsel hired or provided, for the more than 4.000 parole suspensions annually would alone require an undertaking of heroic proportions.^[3] But that is only the beginning. For if there is a right to counsel at parole revocation or suspension proceedings, no reason in law or logic can be advanced why a prisoner, appearing before the Adult Authority as an applicant for parole and seeking to have his indeterminate sentence made determinate, should not also have legal representation. A rule providing counsel for a felon facing suspension of parole but not for a felon seeking parole would constitute invidious discrimination and be constitutionally defective. Thus we must consider the practicality of the presence of counsel every year for every appearance before the Adult Authority of every prisoner who has served his minimum sentence or á percentage thereof.

The conclusion is inescapable that my dissenting brethren are in effect insisting upon counsel for a potential of 32,000 appearances annually: 28.000 parole applicants^[4] and 4,000 parole revokees. This monumental requirement would stagger the imagination.

To compound the logistical problem, the Adult Authority of necessity

Hearings, to be effective, should be adversary. If counsel are permitted to defend the parolee, it would seem that other counsel should be available to present accusatory evidence. Therein lies still another problem: where will California find the prosecutors for these thousands of cases? Parole officers are nonlawyers, and even if they possessed the skills adequate for parole proceedings, the United States Parole Board complained that “. . . to require [parole officers] to appear at hundreds of revocation hearings annually, convened in many instances at places distant from areas under their supervision, would render it impossible for them to carry on their normal duties.” (Sklar, Law and Practice in Probation and Parole Revocation Hearings (1964) 55 J.Crim.L., C.&P.S. 175, 195.)

Since Gideon v. Wainwright (1963) 372 U.S. 335 [ 9 L.Ed.2d 799 , 83 S.Ct. 792 , 93 A.L.R.2d 733 ], the Sixth Amendment right to counsel has been broadly extended. (Douglas v. California (1963) 372 U.S. 353 [ 9 L.Ed.2d 811 , 83 S.Ct. 814 ]; White v. Maryland (1963) 373 U.S. 59 [ 10 L.Ed.2d 193 , 83 S.Ct. 1050 ]; Massiah v. United States (1964) 377 U.S. 201 [ 12 L.Ed.2d 246 , 84 S.Ct. 1199 ]; Escobedo v. Illinois (1964) 378 U.S. 478 [ 12 L.Ed.2d 977 , 84 S.Ct. 1758 ]; Miranda v. Arizona (1966) 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 , 10 A.L.R.3d 974 ]; Swenson v. Rosier (1967) 386 U.S. 258 [ 18 L.Ed.2d 33 , 87 S.Ct. 996 ]; Anders v. California (1967) 386 U.S. 738 [ 18 L.Ed.2d 493 , 87 S.Ct. 1396 ]; People v. Feggans (1967) 67 Cal.2d 444 [ 62 Cal.Rptr. 419 , 432 P.2d 21 ]; Entsminger v. Iowa (1967) 386 U.S. 748 [ 18 L.Ed.2d 501 , 87 S.Ct. 1402 ]; In re Gault (1967) 387 U.S. 1 [ 18 L.Ed.2d 527 , 87 S.Ct. 1428 ]; United States v. Wade (1967) 388 U.S. 218 [ 18 L.Ed.2d 1149 , 87 S.Ct. 1926 ]; Mempa v. Rhay (1967) 389 U.S. 128 [ 19 L.Ed.2d 336 , 88 S.Ct. 254 ].)

Few thoughtful observers quarrel with the salutary results of the foregoing decisions. But in these past eight years the increased demands upon the legal profession—only a small percentage of which is skilled in the criminal law—have been overwhelming. Public defenders are inundated with cases, and court-appointed counsel are harried. The quantity of work has been reflected in the not infrequent dubious quality of service rendered; petitions to reviewing courts on grounds of inadequate representation have

I dissent from the majority opinion, however, insofar as it suggests that the Adult Authority need not conduct parole revocation proceedings in accordance with the minimum requisites of due process of law. By characterizing the Adult Authority’s procedures as “administrative” and not “judicial” and by considering parole as “a matter of grace, a privilege and not a right,” the majority unjustifiably seek to remove the Adult Authority from the established strictures of our constitutional system.

We must reject the use of such conclusory labels as a substitute for careful and reasoned analysis of the relationship between the purposes of parole revocation process and the procedural protections which apply to those proceedings. Such an analysis unavoidably indicates that the parole revocation process must be conducted in accordance with the elemental fairness which our Anglo-Saxon tradition of justice has encased in the concept of due process.

1. The present system.

The parole revocation process commences when a parole officer has reasonable cause to believe that a parolee has violated the conditions of his parole. If the officer believes that the parole violation is sufficiently serious to constitute cause for revocation,^[1] he may report the violation to his unit supervisor.^[2] If the parole agent and his supervisor conclude that there is “reasonable cause to believe that [the parolee] has violated his parole and his further liberty does not comport with public welfare or safety,”^[3] the parolee is taken into custody and placed in the county jail

Two P&CS panels, composed of one Adult Authority member and one hearing representative, meet each Friday in both San Francisco and Los Angeles to consider the reports of parole officers and to decide whether parolees in custody should be placed back on parole or have their cases set for parole revocation hearings in Vacaville.^[6] A panel may request the parole officer who filed a report to appear at the P&CS proceedings, but the panel ordinarily considers only the officer’s written report and the comments of his supervisors.^[7] The parolee receives no notice of the proceeding and does not appear.^[8] Each panel considers between two and five parole suspensions at each meeting. If the panel finds “cause” for revocation, it suspends parole, sets a date for a revocation hearing, and orders the transfer of the parolee to the Reception Guidance Center at Vacaville.^[9]

Parole revocation hearings are conducted at Vacaville within approximately 60 days after the P&SC proceeding.^[10] The parolee receives specific notice of the charges against him and may personally appear.^[11] If he denies the charges, the hearing representative reads to the parolee the facts on which the charge is based.^[12] The parolee may then present written information or his own oral testimony to support his case.^[13]

The revocation hearings ordinarily run between 15 and 30 minutes and are conducted by two Adult Authority hearing representatives.^[19] While one representative considers a case and questions a prisoner, the other representative acquaints himself with the reports of the following case on the calendar. The representatives alternate in reading and hearing cases.^[20] Although only one representative can devote full attention to any particular case, both representatives ordinarily concur in the decision to revoke parole. The decision may rest on information in the written reports which is never presented at the hearing.^[21] That decision only indicates that the parolee has been found guilty of the charges against him^[22] by a preponderance of the evidence^[23] and does not state the reasons for the decision.^[24]

The California Assembly Interim Committee on Criminal Procedure recently summarized the parole revocation process in this state:

2. Due process applies to parole revocation.

Courts of this state have in the past ruled that the due process clause of the Fourteenth Amendment does not apply to parole revocation proceedings.^[26] As described above, the Adult Authority has itself established

The Adult Authority, like all other administrative tribunals, must observe at least the basic elements of procedural due process.^[31] The elements of due process vary with the nature of the proceeding, but there remains

Parole revocation clearly involves specific factual determinations which directly and substantially affect the individual’s ability to remain on parole, rather than “a general fact-finding investigation” or rule-making proceeding.^[33] Hence, we need not rely upon the Adult Authority’s own characterization^[34] of parole revocation as an adjudicative process in order to find that adjudication occurs and to declare that “it is imperative that those agencies use” at least the basic “procedures which have traditionally been associated with the judicial process.” (363 U.S. at p. 442 [4 L.Ed.2d at p. 1321].)

Even though a parolee cannot claim an abstract right conditionally to be released from prison (see In re Schoengarth, supra, 66 Cal.2d 295 , 302;

The United States Supreme Court has established that when governmental action will seriously injure or substantially affect the life of an individual, the government must conduct its adjudicative proceedings in accordance with the basic requisites of procedural due process.^[36] The effects of parole revocation certainly reach far beyond the consequences of the governmental actions for which the Supreme Court has already required the procedures of due process. For example, the courts have required the governmental authorities to follow the mandates of due process when they seek to discharge public employees,^[37] revoke security clear

In Goldberg v. Kelly, supra, 397 U.S. 254 , 261-263 [ 25 L.Ed.2d 287 , 295-296], the United States Supreme Court rejected the distinction between privilege and right in determining the application of due process: “The constitutional challenge cannot be answered by an argument that public assistance benefits are ‘a “privilege” and not a “right.” ’ Shapiro v. Thompson, 394 U.S. 618 , 627, n. 6 (1969). Relevant constitutional restraints apply as much to the withdrawal of public assistance benefits as to disqualification for unemployment compensation, Sherbert v. Verner, 374 U.S. 398 (1963); or to denial of a tax exemption, Speiser v. Randall, 357 U.S. 513 (1958); or to discharge from public employment, Slochower v. Board of Higher Education, 350 U.S. 551 (1956). The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be ‘condemned to suffer grievous loss,’ Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 , 168 (1951) (Frankfurter, J., concurring), and depends upon whether the recipient’s interest in avoiding that loss outweighs the governmental interest in summary adjudication. [See Boddie v. Connecticut (1971) 401 U.S. 371 ( 28 L.Ed.2d 113 , 91 S.Ct. 780 , 785-788).] Accordingly, as we said in Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886 , 895 (1961), ‘consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the gov

The revocation of parole certainly condemns the parolee to suffer far more grievous loss than the other matters for which procedural due process has been constitutionally compelled. (See Wisconsin v. Constantineau (1971) 400 U.S. 433 , 436-437 [ 27 L.Ed.2d 515 , 518-519, 91 S.Ct. 507 ].) The parolee is not merely a prisoner. (See In re Marzec (1945) 25 Cal.2d 794 , 797 [ 154 P.2d 873 ].) He works at a job, lives with his family, reads books and newspapers of his choosing, enjoys a limited right to travel, makes friends, and generally pursues a normal law-abiding life within the conditions of his parole. (See Note (1971) 84 Harv. L.Rev. 1727 .) When his parole is revoked and he is returned to prison, the parolee loses his precious, albeit limited, freedom.^[41] He loses his job and his ability to lead a relatively normal life. As a result of the parole revocation he may spend the rest of his life in prison. These consequences are sufficiently severe to invoke at least the basic requisites of due process. (See Hester v. Craven (C.D.Cal. 1971) 322 F.Supp. 1256 , 1261-1265.) In any case, we are not seeking to protect the “grace”^[42] or “right” of parole; we are attempting to express and vindicate the right to a fair determination, of the facts upon which the state would deprive a person of parole and his concurrent liberty.

Finally, we must confront an argument which apparently underlies the majority’s position:

To grant procedures which comport with due process every time parole is suspended would purportedly impose an excessive burden on the administration of the parole system that would far outweigh any speculative benefit. We recognize that parole constitutes a major tool in achiev

No one argues, however, that the Adult Authority’s present procedures impose a substantial handicap upon the machinery of the parole system.^[47] Hence, to rule that due process applies to parole revocation and requires only those procedural elements which are already incorporated in the present proceedings obviously could not impose any additional or grievous burden on the Adult Authority. A large number of states, as well as the federal government, grant to parolees far more extensive procedural safeguards than does California, and these protections are afforded without any apparent breakdown in their parole systems.^[48] For example, parolees in the

We proceed to discuss the elements of due process which we believe must be observed in a parole revocation proceeding.^[50] Our discussion follows the analytical approach this court suggested in Sokol v. Public Utilities Commission (1965) 65 Cal.2d 247 , 254 [ 53 Cal.Rptr. 673 , 418 P.2d 265 ], “What is due process depends on circumstances. It varies with the subject matter and the necessities of the situation. (Holmes, J., in Moyer v. Peabody (1909) 212 U.S. 78 , 84 [ 53 L.Ed. 410 , 416, 29 S.Ct. 235 ].) Its content is a function of many variables, including the nature of the right affected, the degree of danger caused by the proscribed condition or activity, and the availability of prompt remedial measures.” (See Richardson v. Perales (1971) 402 U.S. 389 , 399-406 [ 28 L.Ed.2d 842 , 852-855, 91 S.Ct. 1420 ]; Hannah v. Larche, supra, 363 U.S. 420 , 442 [ 4 L.Ed. 2d 1307 , 1321]; People v. Moore (1968) 69 Cal.2d 674 , 681 [ 72 Cal.Rptr. 800 , 446 P.2d 800 ]; Newman, The Process of Prescribing “Due Process” (1961) 49 Cal.L.Rev. 215 .)

We need not choose between affording the parolee all rights or according

3. Due process requires that the parolee receive timely and adequate notice in parole revocation proceedings.

A cornerstone of the structure of due process of law is that the adjudication of a significant right must be “preceded by notice and opportunity for hearing appropriate to the nature of the case.” (Mullane v. Central Hanover Bank & Tr. Co. (1950) 339 U.S. 306 , 313 [ 94 L.Ed. 865 , 873, 70 S.Ct. 652 ].) Accordingly, the courts have held that due process affords to the affected individual a right to timely and adequate notice in criminal proceedings (e.g., In re Oliver (1948) 333 U.S. 257 , 273 [ 92 L.Ed. 682 , 694, 68 S.Ct. 499 ]; Cole v. Arkansas (1948) 333 U.S 196 , 201 [ 92 L.Ed. 644 , 647-648, 68 S.Ct. 514 ]), in civil proceedings (e.g., Armstrong v. Manzo, 380 U.S. 545 , 550-551 [ 14 L.Ed.2d 62 , 65-66, 85 S.Ct. 1187 ]; Anderson Nat. Bank v. Luckett (1944) 321 U.S. 233 , 246 [ 88 L.Ed. 692 , 704-705, 64 S.Ct. 599 , 151 A.L.R. 824 ]), in juvenile proceedings (e.g., In re Gault (1967) 387 U.S. 1 , 33-34 [ 18 L.Ed.2d 527 , 549-550, 87 S.Ct. 1428 ]) and in administrative proceedings (e.g., Willner v. Committee on Character, supra, 373 U.S. 96 , 105 [ 10 L.Ed.2d 224 , 230-231]; Goldsmith v. United States Board of Tax Appeals, supra, 270 U.S. 117 , 123.)

The United States Supreme Court “has consistently made plain that adequate and timely notice is the fulcrum of due process whatever the purposes of the proceeding. See, e.g., Roller v. Holly, 176 U.S. 398 , 409; Coe v. Armour Fertilizer Works, 237 U.S. 413 , 424. Notice is ordinarily the prerequisite to-effective assertion of any constitutional or other rights; without it, vindication of those rights must be essentially fortuitous. So fundamental a protection can neither be spared here nor left to the ‘favor or grace’ of state authorities. Central of Georgia Ry. v. Wright, 207 U.S. 127 , 138; Coe v. Armour Fertilizer Works, supra, at 425 .” (In re Gault, supra, 387 U.S. 1 , 73 [ 18 L.Ed.2d 527 , 571-572] (concurring and dissenting opn. of Harlan, J.); Jacob v. Roberts (1912) 223 U.S. 261 , 265 [ 56

In the context of parole revocation proceedings, notice is obviously prerequisite to inform the parolee of the reasons that might constitute cause for revocation under Penal Code section 3063.^[52] As a matter of practice, and by grace, the Adult Authority does now inform the parolee which condition or conditions of parole he is alleged to have violated. At least some parolees, prior to the hearing, may be shown the parole officer’s report, which serves as the basis for the Adult Authority’s consideration of his case.^[53] If the parolee denies his guilt at the hearing, the representative of the Adult Authority reads to the parolee the basic elements of the parole officer’s report, which the. parolee must then explain or answer.

The timeliness and adequacy of this notice must be viewed in the light of the surrounding procedural incidents of parole revocation. Often the parolee is informed only that he is suspected of having violated a particular condition of parole. Some of those conditions are so vague as to afford little assistance to the preparation of the parolee’s case. For example, a parolee might be informed that he has violated a condition of his parole which reads, “You are to conduct yourself as a good citizen at all times, and your behavior and attitude must justify the opportunity granted by this parole.”^[54] Or the parolee might be told that he has violated another condition by not “cooperating” with the Parole and Community Services Division of the Adult Authority or his parole agent.^[55] The parolee might be informed that his parole is in jeopardy because he has consumed alcoholic beverages “to excess” or that he has associated “with individuals of bad reputation.”^[56] The parolee might also be informed, in such a way as

Under its present procedures the Adult Authority by grace permits the parolee to appear personally at the parole revocation hearing, to offer both written material and his own oral testimony in his behalf, to present oral arguments why his parole should not be revoked, and to receive a decision from the Adult Authority representatives who actually hear the facts of his case and who have not previously participated in the proceedings against him.^[57] These procedural protections, however, should not be subject to repeal in whole or in part or suspension in individual cases in the uncontrolled discretion of the Adult Authority; they are, indeed, the basic requirements of a constitutionally adequate revocation hearing.

The United States Supreme Court, moreover, has held that in an adjudicative proceeding such as that of parole revocation “due process of law requires that, at some stage of the proceedings, before the [governmental action] becomes irrevocably fixed, the [affected individual] shall have an opportunity to be heard, of which he must have notice .... Many requirements essential in strictly judicial proceedings may be dispensed with in proceedings of this nature. But even here a hearing, in its very essence, demands that he who is entitled to it shall have the right to support his allegations by argument, however brief; and, if need be, by proof, however informal.” (Londoner v. City of Denver, supra, 210 U.S. 373 , 385-386 [ 52 L.Ed. 1103 , 1112]; see Oyler v. Boles (1962) 368 U.S. 448 , 452 [ 7 L.Ed.2d 446 , 450, 82 S.Ct. 501 ].) Indeed, a hearing which complies with due process must permit the parolee to appear personally at the parole revocation hearing (see Lewis v. United States (1892) 146 U.S. 370 [ 36 L.Ed. 1011 , 13 S.Ct. 136 ]), to offer both written material (see Yakus v. United States (1944) 321 U.S. 414 , 436 [ 88 L.Ed 834 , 854-855, 64 S.Ct. 660 ]) and his own oral testimony in his behalf (see Goldsmith v. United States Board of Tax Appeals, supra, 270 U.S. 117 , 123 [ 70 L.Ed. 494 , 497], to present oral arguments why his parole should not be revoked (see

Not only does the Adult Authority fail to accord to the parolee an opportunity to be heard at the revocation proceedings as a matter of constitutional right but also in practice it denies the parolee one significant aspect of such a constitutionally protected hearing: the right to present a witness in his behalf. The United States Supreme Court has observed that procedural due process requires that the subject of a governmental hearing “ ‘have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation.’ ” (In re Green (1962) 369 U.S. 689 , 692 [ 8 L.Ed.2d 198 , 201, 82 S.Ct. 1114 ]; In re Oliver, supra, 333 U.S. 257 , 275 [ 92 L.Ed. 682 , 695]; In re Lambert (1901) 134 Cal. 626 , 633 [ 66 P. 851 ].)^[58]

Although we recognize that representatives of the Adult Authority should retain a wide discretion to conduct the hearing so as to forbid repetitive, irrelevant, and unduly prolonged testimony, we see no justification for an absolute prohibition of oral testimony of a witness in behalf of the parolee.^[59] Moreover, we note that federal parole revocation hearings permit the parolee to produce witnesses on his behalf; this procedure does not seem to have unduly hampered the conduct of proceedings. (See 28 C.F.R. § 2.40 ; Earnest v. Willingham (10th Cir. 1969) 406 F.2d 681 , 684; Richardson v. Markley (7th Cir. 1965) 339 F.2d 967 , 969; Reed v. Butter-worth (1961) 297 F.2d 776 , 778 [ 111 App.D.C. 365 ]; Fleming v. Tate, supra, 156 F.2d 848 , 849-850; Note, Parole Revocation in the Federal System (1968) 56 Geo.L.J. 705 , 716-717.)

If the parolee engages in criminal conduct as in the present case, however, parole suspension prior to notice and hearing prevents the immediate and grievous risk of harm to the public by minimizing the danger that he will commit further offenses or will go into hiding. (See In re Marks (1969) 71 Cal.2d 31 , 48 [ 77 Cal.Rptr. 1 , 453 P.2d 441 ].)^[61] Since the parolee has already been convicted of a felony and sentenced to prison, he has lost the presumption of innocence and the right to bail. (See In re Scaggs (1956) 47 Cal.2d 416 , 418 [ 303 P.2d 1009 ].) Clearly, in a situation like that presented by the instant case, in which the Adult Authority had probable cause to believe that Tucker had committed a felony while on parole, the security of society demands the prompt incarceration of the parolee.^[62]

The United States Supreme Court has long “recognized that where harm to the public is threatened, and the private interest infringed is reasonably deemed to be of less importance, an official body can take summary action pending a later hearing.” (Goldberg v. Kelly, supra, 397 U.S. 254 , 263, fn. 10 [ 25 L.Ed.2d 287 , 296-297], quoting from R. A. Holman & Co. v. Securities and Exchange Commission (1962) 299 F.2d 127 , 131 [ 112 App.D.C. 43 ] (suspension of exemption from stock registration requirement); 1 Cooper, State Administrative Law (1965) 140-144.) Hence, the Adult Authority was fully justified in placing a hold on Tucker; thus Tucker, who had already been arrested for possession of a proscribed weapon, could not be released pending the later parole revocation proceedings.

5. Due process requires the right to counsel in parole revocation proceedings.

The due process right to a hearing includes the right to appear by counsel.^[63] (Ch andler v. Fretag (1954) 348 U.S. 3 , 8-9 [ 99 L.Ed. 4 , 9-10, 75 S.Ct. 1 ]; Mendoza v. Small Claims Court (1958) 49 Cal.2d 668 , 673 [ 321 P.2d 9 ]; Steen v. Board of Civil Service Commrs. (1945) 26 Cal.2d 716 , 727 [ 160 P.2d 816 ].) In its consideration of the right to hearing and counsel under the due process clause in Powell v. Alabama (1932) 287 U.S. 45 , 68-69 [ 77 L.Ed. 158 , 170-171, 53 S.Ct. 55 , 84 A.L.R. 527 ], the United States Supreme Court observed, “What, then, does a hearing include? Historically and in practice, in our own country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. ... If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.”

Courts have held that the protection of due process includes the right to appear by retained attorney in an extremely wide variety of civil and administrative proceedings, including proceedings to terminate welfare benefits (Goldberg v. Kelly, supra, 397 U.S. 254 , 270 [ 25 L.Ed.2d 287 , 300]); to discharge a government employee (Steen v. Board of Civil Service Commrs., supra, 26 Cal.2d 716 , 727); to revoke a liquor license (see

The logical corrollary of the right to counsel is the right of indigents to the appointment of counsel at state expense in criminal cases (see Gideon v. Wainwright, supra, 372 U.S. 335 , *344 [ 9 L.Ed.2d 799 , 805]) and in proceedings, administrative or otherwise, which assume the formality of civil proceedings but which expose such an indigent to consequences analogous to a criminal conviction. (See, e.g., Specht v. Patterson (1967) 386 U.S. 605 , 608-610 [ 18 L.Ed.2d 326 , 329-331, 87 S.Ct. 1209 ] (civil commitment of sex offender); In re Gault, supra, 387 U.S. 1 , 41 [ 18 L.Ed.2d 527 , 553-554] (juvenile proceedings); In re Harris (1968) 69 Cal.2d 486 , 491 [ 72 Cal.Rptr. 340 , 446 P.2d 148 ] (mesne process of civil arrest); People v. Shipman (1965) 62 Cal.2d 226 , 232 [ 42 Cal.Rptr. 1 , 397 P.2d 993 ] (coram nobis); In re Raner (1963) 59 Cal.2d 635 , 642 [ 30 Cal.Rptr. 814 , 381 P.2d 638 ] (commitment for narcotics addiction).)

Most recently, the United- States Supreme Court has established the right to both retained and appointed counsel in probation revocation hearings. (Mempa v. Rhay, supra, 389 U.S. 128 , 134, 137 [ 19 L.Ed.2d 336 , 340, 341-342].) The court declared that the individual is entitled to counsel “at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” (389 U.S. at p. 134 [19 L.Ed.2d at p. 340].) Although the Supreme Court has not yet extended Mempa to parole revocation,^[64] a number of distinguished courts have now held that indigent parolees have the right to appointed counsel in parole revocation proceedings. (See Bey v. Connecticut St. Bd. of Parole (2d Cir. 1971) 443 F.2d 1079 ; Earnest v. Moseley (10th Cir. 1970) 426 F.2d 466 , 468-469; Menechino v. Warden (1971) 27 N.Y.2d 376 [ 318 N.Y.S.2d 449 , 267 N.E.2d 238 ]; Warren v. Michigan Parole Bd. (1970) 23 Mich.App. 754 [ 179 N.W.2d 664 ]; Commonwealth v. Tinson (1969) 433 Pa. 328 [ 249 A.2d 549 ];

No meaningful distinction can be drawn between the probation revocation hearing involved in Mempa and parole revocation proceedings involved here. In hearings both as to revocation of probation and parole the basic question becomes whether the individual has violated the terms of his release. In both situations revocation will result in commitment to prison. In Mempa the judge imposed a prison sentence and recommended the length of term the probationer should serve in prison. The Adult Authority not only returns the parolee to prison, but determines, rather than recommends, the length of time which the prisoner will serve. Hence, even more “substantial rights” are “affected” in parole revocation than in probation revocation. Certainly, the assistance of counsel is indispensable and invaluable in both situations.

“Counsel can help delineate the issues, present the factual contentions in an orderly manner, . . . generally safeguard the interests of the” parolee (see Goldberg v. Kelly, supra, 397 U.S. 254 , 270-271 [ 25 L.Ed.2d 287 , 300]), submit mitigating circumstances, and assist the hearing representative in reaching the appropriate decision. (See Mempa v. Rhay, supra, 389 U.S. 128 , 135 [ 19 L.Ed.2d 336 , 340-341]; Radish, The Advocate and Jhe Expert-Counsel in the Peno-Correctional Process (1961) 45 Minn.L.Rev. 803 , 830-833.) Furthermore, the Adult Authority may only revoke parole “for cause”; a legal question may arise as to what constitutes “cause” under a particular set of circumstances^[65] —an issue which calls for the skill of the lawyer. Basically, the present system requires the parolee to become his own advocate. His lack of skill and training must not only lead to a feeling of frustration that he cannot properly present his case but to a conviction of injustice in being placed in such a predicament. This situation of disparity is incompatible with the basic concept of due process.

Obviously, the length, format, and conduct of the revocation hearing will remain in the sound discretion of the hearing representative. “We do not anticipate that [the assistance of counsel] will unduly prolong or other

California does not even permit the parolee to be represented by his own retained counsel at the parole revocation hearing—much less by counsel appointed for the indigent parolees. The federal parole system^[66] and many state parole boards^[67] have for many years permitted retained attorneys to participate in such hearings. We find no indication that this practice has impaired the parole system. The majority’s anachronistic position that any due process right of the parolee to retained counsel dissolves in the impracticability of effectuating it, succumbs to the successful practice of permitting such representation by many states and by the federal government. Furthermore, the cost of appointing counsel in parole revocation hearings would impose an insignificant economic burden as compared with the present cost of providing appointed counsel in felony and misdemeanor cases.^[68]

In summary, Chief Justice Warren E. Burger recently declared in his State of the Federal Judiciary, “The system of criminal justice must be viewed as a process embracing every phase from crime prevention through the correctional system. We can no longer limit our responsibility to providing defense services for the judicial process, yet continue to be miserly with the needs of correctional institutions and probation and parole services.” The first step in the recognition of this newly understood responsibility would be to provide for representation of counsel for a parolee