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What Are One’s Rights in a Parole Revocation Hearing?
Our office has received many calls from family members of a parolee in need of legal representation facing parole violation charges and a parole revocation hearing. The discussion then invariably broadens to an explanation of more fundamental concepts, which this article seeks to set forth in writing for the reader.
A parolee who commits crimes or who otherwise does not comply with the conditions of parole may be subjected to parole violation charges. If a parole violation charge is found to be true, the parolee can be subjected to a variety of sanctions including suspension of parole, reinstatement on parole with additional conditions, or being sent back to custody to serve a parole revocation term. There must be “cause” to justify suspension or revocation of parole. Penal Code § 3063; see also In re Dunham (1976) 16 Cal. 3d 63, 66, 127 Cal. Rptr. 343, 345.
In the past, the Board of Parole Hearings (BPH) held parole violation hearings and decided whether to revoke parole. For many years, California was under a court injunction to remedy due process violations in BPH parole revocation hearings. See Valdivia v. Davis (E.D. Cal. 2002) 206 F. Supp. 2d 1068. However, the injunction was declared moot after the law was changed to transfer parole revocation hearings to the courts. Id. at 1125. Now, local superior courts are responsible for holding parole violation hearings, using similar procedures as for probation and PRCS violation charges.
There must be a prompt pre-revocation hearing “in the nature of a preliminary hearing” at or near the place of the alleged parole violation. If the pre-revocation hearing establishes probable cause that parole has been violated, a formal hearing must be held within a reasonable time to determine whether there is justification to revoke parole. Morrissey v. Brewer (1972) 408 U.S. 471, 92 S. Ct. 2593; 33 L. Ed. 2d 484; People v. DeLeon (2017) 3 Cal. 5th 640, 220 Cal. Rptr. 3d 784; see also In re Valrie (1974) 12 Cal. 3d 139, 144-145, 115 Cal. Rptr. 340 (revocation hearings required even where parole violation based on pending criminal charges).
At both hearings, people on parole are entitled to the following procedural protections:
- Written notice of the violation charges and possible consequences, sufficient to allow the parolee to prepare a defense. Morrissey, supra, at 488-489; Vanes v. United States Parole Commission (9th Cir. 1984) 741 F. 2d 1197 (due process violated by lack of notice of basis for parole violation charge); Rizzo v. Armstrong (9th Cir. 1990) 921 F. 2d 855, 858 (failure to give notice of consequences if parole revoked violated due process).
- Disclosure of the evidence against the parolee and of any exculpatory (favorable) evidence known to the State. Morrissey, supra, at 488-489; see also People v. Moore (1983) 34 Cal. 3d 215, 193 Cal. Rptr. 404 (state has duty to preserve and disclose material physical evidence on which probation revocation charge based). The parolee or his or her attorney should be notified if there is any confidential information that is being withheld; the CDCR must disclose the nature and scope of the confidential information to the extent possible without endangering the informant. Penal Code § 3063.5; In re Love (1974) 11 Cal. 3d 179, 184-185, 113 Cal. Rptr. 89; Goodlow v. Superior Court (1980) 101 Cal. App. 3d 969, 162 Cal. Rptr. 121.
The rule that illegally obtained evidence cannot be used in a criminal case evidence does not apply in parole revocation hearings. Thus, illegally obtained evidence or confessions can be admitted at a parole revocation hearing. Pennsylvania Board of Probation & Parole v. Scott (1998) 524 U.S. 357, 118 S. Ct. 2014; 141 L. Ed. 2d 344; In re Martinez (1970) 1 Cal. 3d 641, 649-652, 83 Cal. Rptr. 382, 387-390; People v. Racklin (2011) 195 Cal. App. 4th 872, 124 Cal. Rptr. 3d 735. Suppression of evidence at a parole revocation hearing is required only where the police conduct is so “egregious” as to “shock the conscience.” People v. Fuller (1983) 148 Cal. App. 3d 257, 262, 210 Cal. Rptr. 1; People v. Washington (1987) 192 Cal. App. 3d 1120, 236 Cal. Rptr. 840.
- Timely hearings on the charges, though there is no set standard on when a probable cause hearing or a final revocation hearing is timely. Morrissey, supra at 485; Deleon, supra. Courts will not overturn a parole violation finding or revocation decision unless the delay was unreasonable and there was actual harm to the person’s defense. In re La Croix (1974) 12 Cal. 3d 146, 156, 115 Cal. Rptr. 344 (reasonableness judged by balancing all relevant circumstances); In re O’Connor (1974) 39 Cal. App. 3d 972, 977-978, 114 Cal. Rptr. 883 (no prejudice from 115-day delay); Meader v. Knowles (9th Cir. 1992) 990 F. 2d 503 (15-month delay not prejudicial where person on federal parole remained at liberty); Validivia v. Brown (2013) 956 F. Supp. 3d 1125 (discussing class action case in which court issued injunction setting timelines for hearings due to unconstitutional systemic delays).
- The right to be heard in person and to present witnesses and documentary evidence, including the right to issue subpoenas demanding the production of evidence or attendance of witnesses. Morrissey, supra, 488-489; In re Carroll (1978) 80 Cal. App. 3d 22, 34, 145 Cal. Rptr. 334.
- The right to confront and cross-examine adverse witnesses. Morrissey, supra, 488-489. However, the evidentiary rules for parole hearings are more relaxed than for criminal cases. Hearsay evidence may be admitted if the state has good cause for failing to produce a witness that outweighs the person’s interest in confronting the witness. Factors to be considered are whether the evidence falls into some hearsay exception making it more likely to be reliable, and the importance of the evidence to the issues in the case. United States v. Comito (9th Cir. 1999) 177 F. 3d 1166; Valdivia v Schwarzenegger, supra, at 989; People v. Arreola (1994) 7 Cal. 4th 1144, 1154, 31 Cal. Rptr. 2d 631; In re Miller (2007) 145 Cal. App. 4th 1228, 1236-1237, 52 Cal. Rptr. 3d 256 (error to admit hearsay where person on parole’s confrontation right outweighed reasons for not presenting witness; People v. Stanphill (2009) 170 Cal. App. 4th 61, 87 Cal. Rptr. 3d 643 (no need for balancing where hearsay meets exception for spontaneous statement); In re Carroll , supra, at 22 (failure to produce the victim so person on parole could confront and cross-examine her was excused, since her disappearance furnished good cause, and since her prior statements were adequately corroborated by police officers who investigated the matter); In re Melendez (1974) 37 Cal. App. 3d 967, 973 112 Cal. Rptr. 755 (no due process violation in admitting hearsay).
We wish to acknowledge the Prison Law Office and their excellent treatise, California Prison and Parole Law Handbook, which this article draws heavily from. Many thanks to the Prison Law Office.
