Procedural Protection Research Paper

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Probation is a form of criminal sanction imposed by a court upon an offender, nearly always after a verdict or a plea of guilty or nolo contendere but without the prior imposition of a term of imprisonment. Probation may be linked to a jail term, known as a split sentence, where the judge sentences the offender to a specified jail term to be followed by a specified period of release on probation. Parole, on the other hand, is the conditional release of a convicted offender from a penal or correctional institution by an administrative agency: the parolee remains in the community within the continued custody of the state during the remainder of his previously imposed prison sentence.

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The differences between probation and parole are not very important in the analysis of the procedural protections afforded probationers and parolees. The procedural issues as to each may be conveniently analyzed within three categories: the decision to grant or deny probation or parole; supervisory issues particularly as they relate to the enforcement of the conditions of release; and the decision to revoke. Except in jurisdictions with legally binding sentencing guidelines, or parole guidelines, the decision to grant or withhold probation or parole is a highly discretionary one, with the candidate possessing few legal rights. While a number of laws will categorically deny probation or parole, usually based on the severity of the underlying offense, no law will require that probation or traditional parole be granted.

Once probation or parole is granted, however, the recipient receives a form of conditional liberty with important legal consequences both as to supervision in the community and to any effort to terminate—or revoke—this conditional freedom. One of the most significant developments in this area is the constitutionalizing of the revocation process and, to a much lesser extent, of the granting and community supervision process. In this connection, decisions of the U.S. Supreme Court and the lower federal courts will be discussed here; to complete the legal picture, statutory law and administrative regulations would have to be examined.

The dichotomy between the legal rights associated with the granting of probation or parole and termination of the grant is a general phenomenon that is pervasive in law. That is, persons who, for example, seek a license, employment, or entry to a university while not without rights, especially those related to antidiscrimination, have fewer rights than those faced with loss of a license, employment, or student status. Granting-type decisions, then, concede far more discretion to official decisionmakers than termination decisions.

Lawyers are fond of problem solving by using analogical reasoning. For example, they note that the revocation of parole requires due process protection while a prison-to-prison transfer requires none. When an inmate is placed in a work release program and allowed to live at home or in a half-way house part of the time, if the release status is to be terminated, courts will ask if the program is more like parole or more like a prison-to-prison transfer. The closer the analogy to parole, the greater the chance for winning procedural safeguards.

Granting Release


In Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1 (1979), a closely divided Court rendered what was then a highly significant decision concerning parole release. The basic issue in Greenholtz was the extent to which the due process clause of the Fourteenth Amendment to the Constitution applied to discretionary parole release decisions in Nebraska. Greenholtz involved a challenge to the procedures employed by the board of parole in the exercise of its discretion to grant or withhold the release of an inmate who had reached the point of statutory eligibility. In Nebraska, as is the common practice, a prisoner’s eligibility for release was established when he had served his minimum term, minus good-time credits.

Inmates were granted two types of hearings. At least once a year, initial review hearings were required regardless of eligibility. If the board determined from the file and from this initial review that the inmate was a likely candidate for release, a final hearing was scheduled. At the final hearing the inmate was permitted to give evidence, call witnesses, and be represented by retained counsel. The inmate, however, could not hear adverse testimony or engage in crossexamination. A tape recording of the entire hearing was made and preserved, and if denied parole, the inmate would receive a written statement of reasons.

In reviewing these procedures, the Supreme Court dealt a serious blow to the further evolution of due process procedures in this area. The majority found a critical distinction between the grant or denial of conditional freedom and the deprivation of such freedom after it is granted, thereby distinguishing Greenholtz from Morrissey v. Brewer, 408 U.S. 471 (1972), discussed below. An eligible inmate seeking parole was said to have no more than a desire for release, whereas the Constitution safeguards only legitimate expectations of liberty. The nature of the releaseor-retain decision was characterized as being dependent on personal observation and prediction, rather than on a given set of facts that add up to a judgment of releasability.

In this analysis, the Court clearly gave constitutional sanction to decision-making either by intuition or expertise and also validated the characteristically vague statutes governing parole. More basically—and this is the crucial factor that divided the four dissenters from the majority—the existence of a parole system itself, despite the fact that at the time the vast majority of prisoners in this country achieved release by parole, was deemed not to create any constitutionally based claims to procedural fairness.

The majority did find that the somewhat unusual statutory language employed in Nebraska created an expectancy of release entitled to some constitutional protection. The Nebraska statute employed a ‘‘shall/unless’’ approach to parole release, stating that an eligible offender shall be released on parole unless parole is deferred for any one of four rather general factors; for example, if his release were to depreciate the seriousness of his crime.

The Court then concluded that Nebraska was providing the inmate with even more procedures than the Constitution required. Characterizing the function of legal process as being one of minimizing the risk of erroneous decision, the Court ruled that a full hearing is not necessary and that due process does not require the board of parole to specify the particular evidence relied upon. In conclusion, the Court stated: ‘‘The Nebraska procedure affords an opportunity to be heard, and when parole is denied it informs the inmate in what respects he falls short of qualifying for parole; this affords the process that is due under these circumstances. The Constitution does not require more’’ (p. 16).

It must be stressed that the above-stated procedural minima—an opportunity to be heard, and reasons for denial—were constitutionally required only when a given jurisdiction employed statutory language of the sort used by Nebraska. Where there is no such protected expectation, parole boards presumably need not provide even such minimal safeguards.

Release and Sandin V. Conner

With the decision in Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court may have overruled that aspect of Greenholtz finding a protected liberty interest in the shall/unless–type statutory language used in Nebraska. In Sandin, a federal appeals court found that a Hawaii prison regulation that required substantial evidence to support a finding of guilt to a charge of prison misconduct created a liberty interest in the prisoner. That is, without a finding of guilt by substantial evidence, held the lower federal court, the prison misconduct hearing was void as a denial of due process.

The Supreme Court used Sandin as the vehicle to re-examine a series of the Courts’ decisions, including Greenholtz, where the verbal arrangement in the state law was used to find or reject a state-created liberty interest enforceable in federal court.

The Court stated it was time to shift the focus of the liberty (or protected) interest inquiry from the ‘‘language’’ of a regulation to the ‘‘nature’’ of the deprivation. One reason for doing so is to show deference to the states and further remove the federal courts from review of state correctional processes.

Henceforth, a state-created liberty interest depends on whether the state seeks to impose an ‘‘atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life’’ (Sandin v. Conner, p. 484). Phrased differently, prisoners (including parolees in waiting) must suffer a very significant or grievous loss before they are entitled even to the rudiments of procedural due process. Post-Sandin inmates have been placed in disciplinary segregation for up to a year without even a rudimentary hearing, and the federal courts have found no grievous loss.

The Court describes Greenholtz as one of those decisions practicing the now disfavored ‘‘semantic due process,’’ and while Greenholtz is not explicitly overruled, it is difficult to imagine that it is still breathing. After Sandin, paroling authorities may be constitutionally free to decide these cases simply on the written record.

Parole Rescission

There are occasions when a parole authority may decide to grant parole and, in prison jargon, ‘‘give the inmate a date.’’ Subsequent to the actual physical release the parole authority may come to believe that the inmate misrepresented certain facts or a serious disciplinary infraction may have occurred and the authority decides to rescind the previously extended offer of parole.

While state statutory law or administrative regulation may provide for a hearing, the general rule is that parole rescission may be accomplished unilaterally by the parole authority with no due process protections.

As for the competing analogies, rescission is treated as a part of the granting (no rights) process and not as a part of the revocation (due process rights) process.

Beyond Parole: Other Decisions Affecting Release of Prisoners

In Connecticut Board of Pardons v. Dumschat, 452 U.S. 458 (1981), the Court considered whether the Connecticut Board of Pardons’s record of granting approximately three-fourths of all applications for commutation of life sentences had in fact created a constitutionally protected interest, calling at least for a statement of reasons when a particular application was denied. The Court held that in the absence of a statute or rule imposing such an obligation on the board, and regardless of how frequently clemency had been granted in the past, no such constitutional protection exists.

In Ohio Adult Parole Authority v. Woodard, 118 S.Ct. 1244 (1998), a state prisoner challenged Ohio’s clemency process as violating his due process rights. The Court stated:

Clemency proceedings are not part of the trial—or even of the adjudicatory process. They do not determine the guilt or innocence of the defendant, and are not intended primarily to enhance the reliability of the trial process. They are conducted by the Executive Branch, independent of direct appeal and collateral relief proceedings. Greenholtz, 442 U.S. at 7–8. And they are usually discretionary, unlike the more structured and limited scope of judicial proceedings. While traditionally available to capital defendants as a final and alternative avenue of relief, clemency has not traditionally ‘‘been the business of courts.’’ (Connecticut Board of Pardons v. Dumschat, p. 452)

In Meachum v. Fano, 427 U.S. 215 (1976), the court held that there is no right to due process at an inmate’s classification or reclassification (which determine eligibility for prison programs), or when an inmate is transferred from one prison to another.

In Young v. Harper, 520 U.S. 143 (1997), the Supreme Court held that the defendant’s participation in due process was required to terminate Oklahoma’s so-called preparole release program. The Court noted that the releasee kept his own residence; he maintained a job; and was generally free of the incidents of imprisonment.


Except in systems that have adopted legally binding sentencing guidelines, an offender has no legal ‘‘right’’ to receive a sentence of probation. Moreover, sentencing guidelines, mandatory minimum, and other ‘‘determinate’’ sentencing laws often limit the court’s power to grant probation. These laws, as well as the general procedural requirements for sentencing, are covered in other entries and will not be further discussed here.

Assuming that an offender is legally eligible for probation, does he have the right to be fairly considered for probation? In one famous case, it was held to be error for a trial judge to refuse to consider for probation all defendants who stood trial (United States v. Wiley, 267 F.2d 453 (7th Cir. 1959), on remand, 184 F.Supp. 679 (N.D. Ill. 1960)). The sentencing judge in Wiley had stated this policy on the record. If he had remained silent, as is the common practice, the judge’s sentencing discretion based on unarticulated factors would probably have prevailed. But other decisions support the proposition that it is an abuse of discretion, subject to reversal on appeal, for a judge simply to refuse to hear or consider an eligible applicant for probation.

While probation, like parole, is a form of conditional freedom in the community, its precise form has many variations. Probation may consist of little more than an admonition to commit no new offenses and maintain telephone contact with a probation officer, or it may be far more intensive and include spending some part of the day or evening in a residential facility, and/ or specified frequent contacts with the probation officer, drug or alcohol tests, and so on.

An order of probation may also include a fine, restitution to victims, a period of ‘‘shock incarceration’’ (jail), home confinement with or without electronic surveillance, measures designed to shame the offender (‘‘scarlet letter’’ conditions), substance abuse or sex offender treatment, community service, and various limitations on the offender’s freedom of movement, activities, and associations.

For the most part, as long as these conditions do not violate some specific constitutional safeguard, for example, cruel and unusual punishment or First Amendment rights, courts give judges wide latitude in their imposition.

Supervision and Conditions

The most fundamental point to be made regarding the legal status of the probationer and parolee while in the community is that he or she is a person who will have been deprived of certain civil rights by virtue of conviction of a crime. Precisely what rights are lost and for how long as a result of the conviction varies greatly from jurisdiction to jurisdiction.

As noted above, probationers and parolees suffer additional restrictions on their freedom as a result of conditions imposed by the sentencing judge or the parole authority. Once again, the discretion afforded the relevant authorities is enormous, although not without some legal limitations. The traditional view is that conditions will be upheld unless they are illegal, immoral, or impossible of performance (Cohen, 1969, p. 40); however, courts have been somewhat responsive to challenges regarding the breadth or ambiguity of conditions. For example, the probation condition of victim restitution has been frequently and successfully challenged where the judge failed to ascertain the offender’s ability to pay, failed to limit restitution to proven damages, left ascertainment of the actual victim open, or caused the financial destruction of the offender (Higdon v. United States, 627 F.2d 893 (9th Cir. 1980)).

In determining the judge’s or the parole authority’s power with regard to probation or parole conditions, the starting point is the relevant statute. Thus, the federal probation law formerly provided for probation for such period of time and upon such terms and conditions as the court deems best.

Today, in an era of diminished judicial discretion in sentencing, the current federal probation law (18 U.S. Code § 3563) includes a list of ‘‘mandatory’’ conditions of probation, including the following: that the offender not commit further crime or use or possess illegal drugs; that he pay restitution and any fine that was imposed; and, in certain cases, that he enter a rehabilitation program or submit to random drug tests. However, the current law continues to list a wide variety of ‘‘discretionary’’ probation conditions that judges may chose to impose, provided such conditions are ‘‘reasonably related’’ to the offense and offender and to the traditional purposes of punishment, and are ‘‘reasonably necessary’’ to achieve those purposes. Thus, in addition to all of the traditional probation conditions previously mentioned, defendants may be required to support their dependents, ‘‘work conscientiously’’ (or avoid certain types of work), and refrain from ‘‘excessive use of alcohol’’ or the possession of any dangerous weapon.

The American Bar Association’s 1970 Standards Relating to Probation, section 3.2(a), took the position that every sentence of probation should include a condition that the probationer lead a law-abiding life, that no other conditions should be required by statute, and that the sentencing judge should be free to fashion additional conditions to fit the circumstances of each case. This, of course, reflected an earlier view of the propriety of unregulated judicial discretion. (See also The Model Adult Community Corrections Act (American Bar Association, February 1992), which provides general guidance on the propriety, intensity, and content for what are termed community-based sanctions.)

Taking into account the so-called truth-insentencing laws that abolish traditional parole or diminish its availability, where parole in the form of discretionary release exists, the approach to parole conditions is similar to the rules governing probation as set out above. Typically, parole authorities impose certain ‘‘standard conditions’’ as well as ‘‘special conditions’’ related to the particular offense or offender.

Parole conditions are subject to challenge for their overbreadth and vagueness and as interfering with the individual’s basic constitutional rights, or as having no relationship to the underlying offense. An example of a condition that was found to be impermissibly vague is that the individual ‘‘live honorably’’ (Norris v. State, 383 So.2d 691 (Fla. App. 1980)). Conditions that infringe upon First Amendment freedoms are among the most likely to be found void (Cohen, 1969, pp. 42–43). For example, a prior restraint on a parolee’s desire to give a speech was held to be justified only by a showing that the speech entailed a clear and present danger of riot and disorder (Hyland v. Procunier, 311 F.Supp. 749 (N.D. Cal. 1970)).

The courts have also held that banishment from the state as a condition is void, either on constitutional grounds or on the basis of the pragmatic view that states which exile offenders will surely receive the exiles of other states (Cohen, 1969, p. 47). On the other hand, territorial restrictions on the movement of probationers or parolees are uniformly upheld.

Conditions may be imposed that are impossible of performance. For example, ordering a chronic alcoholic or a drug addict to refrain from drinking or drug use likely would be considered unlawful ‘‘impossible’’ conditions (Sweeney v. United States, 353 F.2d 10 (7th Cir. 1965)). However, requiring the individual to obtain or complete treatment, or to submit to reasonable tests in order to determine progress, would be upheld.

In the absence of legislative guidance, appellate courts have begun to construct some principles for assaying conditions challenged as unreasonable but not necessarily unconstitutional. An example would be a court’s granting of probation to a person convicted of forgery and ordering that the probationer forego sexual intercourse with persons other than his wife. The above condition bears no reasonable relationship to the crime; it relates to conduct that is not inevitably criminal; and there is no apparent relationship between the condition and rehabilitation or future criminality. Such a condition would probably be found void (Wiggins v. State, 386 So.2d 46 (Fla. App. 1980)).

Conditions designed to shame offenders, socalled scarlet-letter conditions, are in vogue with some judges. The reported decisions disclose a probationer required to wear a T-shirt announcing he was on probation for theft; post a sign in the yard proclaiming the occupant a sex offender; place a bumper sticker on the car; wear a pink bracelet bearing the words ‘‘DUI CONVICT,’’ or place an advertisement in the local paper with a mug shot and an apology.

Appellate courts continue to be reluctant to review such conditions even when offered proof that the probationer is harmed or put at risk by the condition; that First Amendment issues are created; and that little, if any, positive impact can be shown. Such conditions reflect the idiosyncratic whims of judges and should be reigned in by the legislature or appellate courts. (See Comment (1999) for a review of all these issues and citations to decisions.)

Convicted sex offenders are increasingly subjected to a number of intrusive conditions of supervised release. For example, such offenders are required to submit blood and saliva samples to a DNA bank, upheld in Boling v. Romer, 101 F.3d 1336 (10th Cir. 1996). In Ohio, eligibility for parole requires successful completion of a sex offender program while in prison, and that has been upheld. (See Scott v. Ghee, 68 F.3d 475 (6th Cir. 1995); Schaffer v. Moore, 46 F.3d 43 (8th Cir. 1995)). Indeed, where mandated sex offender treatment could not be obtained because the offender could not find a way to pay for it, one court upheld revocation of probation, (State v. Morrow, 492 N.W. 2d 539 (Minn. App. 1992)).

The Fourth Amendment: Searches and Seizures

An extraordinary array of conditions limit the freedom of probationers and parolees. As noted, almost all of those conditions are upheld by the courts. The Constitution itself is viewed as not being fully applicable to probationers and parolees whose constitutional identity is less than the ordinary citizen but more than that of a prisoner.

In Griffin v. Wisconsin, 483 U.S. 868 (1987), a probationer’s home was searched by probation officers, accompanied by police, without consent, without a warrant, and without the semblance of probable cause. A handgun was found and introduced in evidence over objection at Griffin’s felony trial.

The Supreme Court upheld the search as ‘‘reasonable’’ under the Fourth Amendment, stressing that the search was conducted under a state regulation authorizing probation officers to search a probationer’s home when there were ‘‘reasonable grounds’’ to believe there was contraband in the home.

Plainly this search and seizure would have been illegal if Griffin had not been on probation or parole. The Supreme Court, without actually expressing this, had to choose between affording the probationer’s home the traditional privacy protections extended the home or opting for the total lack of privacy protection afforded a prisoner’s cell. (See Hudson v. Palmer, 468 U.S. 517 (1984)). The Court opted for the latter and in so doing diluted the privacy of other occupants of the home and also invited baseless searches.

In Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357 (1998), the Pennsylvania Supreme Court had found that a search of a parolee’s home without the owner’s consent and not authorized by any state statutory or regulatory framework violated the Fourth Amendment and the evidence seized should not have been admitted at a revocation hearing. The U.S. Supreme Court reversed, in a 5–4 decision, holding that parole boards are not required by federal law to exclude evidence obtained in violation of the Fourth Amendment. The exclusionary rule was said to threaten the traditionally informal process of parole revocation and any marginal gains in deterrence would be offset by the significant restraints on the parole process.

The Court did not rule on the question of whether the actual search was unreasonable, noting that the case could be decided by ruling only on whether any such evidence must be excluded by a parole board. Thus, an open question from Griffin remains open: must there be reasonable suspicion to search a parolee’s home where the parolee consents in advance as a condition of parole?


Morrissey and Gagnon

The term revocation at times refers to the act of imprisonment or reimprisonment, and at other times to the process of establishing a violation. Revocation is perhaps best viewed as a process resembling a cameo trial at which facts are alleged and proven to show a violation; that is, that the supervisee was at ‘‘fault’’ by committing a new crime or violating a condition of his release. After a violation is established, the judge or parole authority must then make a sentencing-like decision since a violation need not invariably result in incarceration.

Until the decision in Morrissey v. Brener, 408 U.S. 471 (1972), due process protections had often been denied at revocation by characterizing probation and parole as a privilege (an act of grace); as governed by contract (whereby the supervisee simply agreed to initial incarceration at the discretion of the court); or, in the case of parole, as a matter of continuing custody with reimprisonment argued to be simply the reassertion of full custody. Morrissey laid those arguments to rest by holding that the conditional liberty enjoyed by a parolee was within the compass of the liberty interests protected by the due process clauses of the Fourteenth and Fifth Amendments. In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Court applied the same analysis and reached the same result with regard to probation revocation. Morrissey held that procedural due process required that a parolee be accorded a hearing with an opportunity to be heard on the charge and the possible disposition, as well as to present evidence. Sandin v. Conner discussed earlier should not affect these decisions because the liberty interest at stake derives from the Constitution itself and not from any statutory formula employed by a state.

The Court further determined that there must be two hearings; a prompt preliminary hearing (conducted near the place of alleged violation or arrest) to determine probable cause that a violation occurred; and a final revocation hearing (which in fact most often takes place in a prison setting, for a parolee) to resolve contested relevant facts and determine whether those facts warrant imprisonment.

The minimum requirements of the preliminary hearing are as follows:

  1. The hearing is to be conducted by an individual who is not involved in commencing the revocation proceedings. The state need not create a special hearing officer for these proceedings, and a parole officer other than the officer who recommended the revocation proceedings is considered sufficiently neutral.
  2. Prior to the hearing the parolee is to receive notice of the facts upon which revocation is based.
  3. The parolee is to be present at the hearing.
  4. The parolee is entitled to be heard on his own behalf.
  5. There is to be a written summary of the evidence and arguments presented.
  6. The hearing officer shall make a written statement of his decision and reasoning, stating the facts upon which he relied.
  7. During this hearing, the parolee is entitled to cross-examine any persons giving adverse information upon which revocation could be based, unless the hearing officer finds that revealing the identity of an informant may subject him to an unreasonable risk.

The final hearing is to be conducted by a neutral body or individual, and the parole board itself was held to qualify as such a body. This aspect of the decision has evoked strong criticism on the ground that parole officials tend to confirm the decision-making of their colleagues. In addition, Morrissey requires:

  1. The hearing is to be held reasonably promptly; the Court found a period of two months to be reasonable.
  2. Written notice is to be given the parolee of the claimed violations of parole.
  3. The evidence against the parolee must be disclosed to him.
  4. The parolee is to be afforded an opportunity to be heard on his own behalf, to present evidence, and to call witnesses.
  5. The parolee is to be permitted to crossexamine adverse witnesses unless the hearing officer specifically finds good cause to deny cross-examination.
  6. There is to be a written decision setting forth the facts and the reasoning upon which it is based.

In Gagnon the Court held that at a probation or parole revocation proceeding the alleged violator also has a qualified right to appointed counsel. The right exists if there is a substantial issue regarding whether the alleged violation occurred or, even if the violation is a matter of public record or is uncontested, there are substantial reasons—complex or difficult to develop—that justified or mitigated the violation and that make revocation inappropriate.

In the process of deciding the counsel-atrevocation issue, Gagnon also made clear that there is an absolute right to counsel at judicial sentencing, but only a qualified right at revocation. Thus, where a judge suspends the imposition of sentence (as in Mempa v. Rhay, 389 U.S. 128 (1967)) and grants probation, a subsequent revocation proceeding is also a sentencing proceeding for the purposes of right to counsel.

However, where the judge imposes a sentence (as in Gagnon) and suspends its execution, then the prison term is already fixed, the accused has been previously sentenced, and any right to counsel is governed by the above-noted Gagnon formula.

Other Issues

Later cases have addressed several procedural questions left open in Morrissey and Gagnon.

In Moody v. Daggett, 429 U.S. 78 (1976), the Supreme Court held that a parolee has no right to an initial preliminary hearing before being confined to prison for a suspected parole violation when the parolee-inmate already has been convicted of the crime upon which parole revocation is based. The conviction, based on proof beyond a reasonable doubt, provides the requisite probable cause to believe there has been a violation. In addition, the Court clarified what it meant by a ‘‘reasonable time’’ for the final revocation hearing. Here, the parolee-inmate understandably wanted to serve his parole violation and new crime sentence concurrently. Thus, he argued for a speedy revocation hearing. The Court rebuffed this, finding that the right to a parole revocation hearing begins only when the parolee is taken into custody for the parole violation.

It is clear that Morrissey envisioned that, as the accuser, the government is obliged to present persuasive evidence of violation. In the face of almost total legislative and rule-making neglect, the courts have concluded that a violation need not be proved beyond a reasonable doubt, but only by a preponderance of the evidence (State ex rel. Flowers v. Dep’t of Health and Social Serv., 81 Wis. 2d 376, 260 N.W. 2d 727 (1978)), or an even lower standard of proof. (See Relation v. Vermont Parole Board, 660 A.2d 318, 320-21 (Vt. 1995)). This leads to the further conclusion that an acquittal on criminal charges will not bar a revocation of probation or parole based on the same grounds as the earlier acquittal.

In the opposite situation, where an unsuccessful revocation proceeding occurs before a criminal proceeding, some would argue that the government is estopped from going ahead with the criminal case. That is, if the facts underlying the alleged violation could not be convincingly shown to meet a preponderance (or lower) standard, then obviously they cannot meet the beyond-the-reasonable-doubt standard. But in Commonwealth v. Cosgrove, 629 A.2d 1007, 1011 (Pa. Super. 1993), the court held that the informality of a revocation proceeding should not estop a subsequent criminal proceeding.


  1. American Bar Association, Advisory Committee on Sentencing and Review. Standards Relating to Probation: Tentative Draft. Chicago: ABA, 1970.
  2. American Bar Association. Model Adult Community Corrections Act. Approved, February 1992. BRANHAM, LYNN, and KRANTZ, SHELDON. Cases and Materials on the Law of Sentencing, Corrections, and Prisoners’ Rights, In a Nutshell, 5th ed. St. Paul, Minn.: West Publishing, 1997.
  3. BRANHAM, LYNN The Law of Sentencing, Corrections, and Prisoners’ Rights, 5th ed. St. Paul, Minn.: West Publishing, 1998.
  4. COHEN, FRED. The Legal Challenge to Corrections: Implications for Manpower and Training. Washington, D.C.: Joint Commission on Correctional Manpower and Training, 1969.
  5. COHEN, FRED. ‘‘Sentencing Probation, and the Rehabilitative Ideal: The View from Mempa v. Rhay.’’ Texas Law Review 47 (1968): 1–59.
  6. COHEN, FRED. ‘‘Legal Issues and ‘Treatment’ in Community Corrections.’’ Community Corrections Report I (1994): 1–27.
  7. COHEN, NEIL The Law of Probation and Parole, 2d ed. New York: West Group, 1999.
  8. ‘‘The Ideology of Shame: An Analysis of First Amendment and Eighth Amendment Challenges to Scarlett-Letter Probation Conditions.’’ North Carolina Law Review 77 (1999): 783–864.
  9. Community Corrections Report: On Law and Corrections Practice I, no. 1 (1993). A bimonthly newsletter published by Civic Research Institute of Kingston, N.J., that summarizes leading cases on probation and parole. 1993–.
  10. HOFFMAN, PETER ‘‘History of the Federal Parole System: Part I (1910–1972).’’ Federal Probation 61 (1997): 23–31.
  11. HOFFMAN, PETER ‘‘History of the Federal Parole System: Part 2 (1973–1997).’’ Federal Probation 61 (1997): 49–56. These articles describe the gradual phase-out of the Federal Parole Commission along with some innovative programs on revocation, video hearings, and so on.
  12. KILLINGER, GEORGE; KERPER, HAZEL B.; and CROMWELL, PAUL F., JR. Probation and Parole in the Criminal Justice System. St. Paul, Minn.: West Publishing, 1976.
  13. MAUER, MARC. Race to Incarcerate. New York: New Press, 1999. For an overall perspective of the racial, political, and economic implications of increased imprisonment and the mechanisms of mandatory sentencing.
  14. MERRITT, FRANK ‘‘Parole Revocation: A Primer.’’ University of Toledo Law Review 11 (1980): 893–938.
  15. PARISI, NICOLETTE. ‘‘Combining Incarceration and Probation.’’ Federal Probation 44 (June 1980): 3–12.
  16. President’s Commission on Law Enforcement and Administration of Justice, Task Force on Corrections. Task Force Report: Corrections. Washington, D.C.: The Commission, 1967.
  17. ROTHMAN, DAVID Conscience and Convenience: The Asylum and Its Alternatives in Progressive America. Boston: Little, Brown, 1980.
  18. TRAVIS, LAWERENCE, III, and O’LEARY, VINCE. Changes in Sentencing and Parole Decisionmaking: 1976–1978. Washington, D.C.: U.S. Department of Justice, Bureau of Prisons, 19.
  19. S. Department of Justice. The Attorney General’s Survey of Release Procedures, 5 vols. Washington, D.C.: The Department, 1939–1940.
  20. S. Department of Justice. Law Enforcement Assistance Administration, National Advisory Commission on Criminal Justice Standards and Goals. Corrections. Washington, D.C.: The Commission, 1973.
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