K. Memorandum Regarding Due Process Rights During Parole Revocation Hearings

Memorandum Regarding Due Process Rights During Parole Revocation Hearings Prepared by Commission

September 2011


TO: Julie Biehl

FROM: Steve Bychowski

RE: Juvenile Right to Counsel During Parole Revocation Hearings

DATE: 09/11/2011


This memorandum discusses juveniles' right to counsel during parole revocation proceedings in Illinois. It provides an analysis of the constitutional right to counsel as established by the Supreme Court in Gagnon v. Scarpelli and as subsequently applied by the courts. This memorandum then discusses juveniles' categorical right to counsel at revocation proceedings based on the criteria set forth in Gagnon and factors applied by federal courts. It should be noted that several states already statutorily provide juveniles with the right to counsel at revocation proceedings.

In Illinois, all parolees have the statutory right to retain their own counsel at preliminary and revocation hearings.F01 Neither the federal District Court for the Northern District of Illinois, nor the federal Seventh Circuit Court of Appeals has ruled on the issue of whether due process requires that all juveniles be provided with counsel in preliminary or revocation hearings.


The United States Supreme Court has held that some parolees have a right to counsel at revocation hearings.F02 However,

the Court has refused to provide a bright line rule, adopting instead a case-by-case approach.F03 The Court stated that a

parolee has a right to counsel in cases where the parolee has made "a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present."F04 The Court also stated that "the responsible agency . . . should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself."F05 The Court noted that most parolees do not have a right to counsel.F06 However, "there will remain certain cases in which fundamental fairness-the touchstone of due process-will require that the State provide at its expense counsel for indigent probationers or parolees."F07

The Court's test and its subsequent application by lower courts indicate that courts should consider four factors when determining whether a parolee has a right to counsel:

  1. the strength of the parolee's claim that he did not violate the conditions of parole;
  2. the strength of any mitigating factors;
  3. the complexity of the parolee's defense; and
  4. the parolee's ability of represent himself.

Whether a particular court finds that a parolee has a right to counsel depends on the facts of the case and the weight the judge gives to each factor. While some courts give each factor equal consideration, the Seventh Circuit will only consider the third and fourth factors if the parolee provides a compelling argument that either the first or second factor weighs in his/her favor.F08

In L.H. v. Schwarzenegger, the U.S. District Court for Eastern California held that all juveniles have a right to counsel at revocation hearings.F09 The court focused entirely on the fourth factor. The court concluded that juvenile parolees inherently lack the ability to adequately represent themselves.F10 The court stated, "Put plainly, a parolee's lack of skills and education... is inherent to a juvenile... In addition to juveniles' lack of education, maturity, and skills

as a function of their age, there are significant allegations that members of the plaintiff class possess additional difficulties that would impede their ability to argue on their own behalf at parole revocation proceedings. . . . [L]earning disabilities, substance abuse, difficulties in speaking and understanding English are alleged to abound among the class members."F11 In Dean v. Children's Services Division Juvenile Corrections Program, the State of Oregon denied a juvenile's request for counsel at a revocation hearing.F12 The juvenile filed suit in both federal and state court.F13 The federal court only considered the third and fourth factors and held that the parolee did not have a right to counsel.F14 The court reviewed the revocation file and interviewed the parolee.F15 The court concluded that (1) "the alleged violation and the surrounding context in which it was placed were not of the complex variety" and (2) "it cannot be fairly said [that the parolee] was unable to speak for himself so as to trigger the requirement of appointed counsel."F16 The state court held that the parolee was precluded from raising a right to counsel claim because the federal court already decided the issue.F17 All juveniles have a right to counsel at parole revocation hearings based on the factors considered by courts. The first factor-the strength of the parolee's claim that he did not violate a condition of parole-is inherently case specific and therefore cannot be used to make an argument about all juveniles. The second factor-the strength of mitigating factors-supports providing all juveniles a right to counsel. Being a juvenile is, in and of itself, a significant mitigating factor. As the Supreme Court stated in Roper v. Simmons, juveniles are "categorically less culpable than the average criminal... The susceptibility of juveniles to immature and irresponsible behavior means their irresponsible conduct is not as morally reprehensible as that of an adult. Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment... [C]ulpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity."F18 In Graham v. Florida, the Supreme Court stated that the diminished culpability of juveniles is re-enforced by recent "developments in psychology and brain science."F19 The strength of the above argument is particularly important if a federal case is brought in the Seventh Circuit because the court will not consider the third and fourth factors unless first or second factor supports a right to counsel.

The third factor-the complexity of the parolee's defense-supports providing all juveniles a right to counsel. In order to successfully argue that youth is a mitigating factor, the parolee must discuss the significant psychological and physiological differences between youth and adults. These topics are inherently complex and would likely require legal research and expert testimony. The Supreme Court recognizes that decision makers cannot be expected to automatically treat youth as a mitigating factor or to give the factor the importance it deserves. Instead, youth are required to present both the evidence and case law demonstrating that youth is a significant mitigating factor. The Court stated in Roper v. Simmons, "An unacceptable likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender's objective immaturity, vulnerability, and lack of true depravity should require a [less severe sentence]. In some cases a defendant's youth may even be counted against him. In this very case... the prosecutor argued Simmons' youth was aggravating rather than mitigating."F20 Moreover, the level of complexity required by the third factor should be lowered for juveniles. Youth are less capable of understanding the purpose and procedural elements of revocation hearings. Youth are also often unable to understand the legal and factual issues that arise during revocation hearings. As the Supreme Court stated in Graham, "Juveniles... have limited understandings of the criminal justice system and the roles of the institutional actors within it."F21

The fourth factor-the parolee's ability of represent himself weighs -- heavily in favor of providing all youth a right to counsel. Youth's diminished development, education, and experience significantly impede their ability to effectively communicate. Youth are also mistrustful of adults and less likely to cooperate during criminal proceedings.F22 Moreover, juvenile parolees are more likely than other youth to have learning disabilities, substance abuse problems, and difficulties speaking and understanding English.F23 Consequently, paroled youth encounter significant difficulties representing themselves.

In addition to California, which provides counsel to juveniles at revocation hearings as a result of L.H.,F24 several states provide counsel to juveniles at revocation procedures. These include: Alaska,F25 Mississippi,F26 Nevada,F27 North Carolina,F28 Texas,F29 and Utah.F30


  1. 20 IL ADC 1610.140(c)

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  2. Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973)

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  3. Id. at 788.

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  4. Id. at 790.

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  5. Id.

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  6. Id.

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  7. Id.

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  8. United States v. Eskridge, 445 F.3d 930, 932 (7th Cir. 2006); United States v. Shannon, 08-3037, 2009 WL 773870 (7th Cir. Mar. 25, 2009).

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  9. CIV.S-06-2042LKKGGH, 2008 WL 268983 at *7 (E.D. Cal. Jan. 29, 2008).

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  10. Id.

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  11. Id.

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  12. 645 P.2d 581, 583-85 (Or. App. 1982).

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  13. Id.

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  14. Id. at 584.

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  15. Id.

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  16. Id. at 584 fn. 5.

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  17. Id. at 588.

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  18. 543 U.S. 551, 567-71 (2005).

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  19. 130 S.Ct. 2011, 2026 (2010).

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  20. 543 U.S. 551 at 573.

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  21. 130 S.Ct. at 2032.

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  22. Id.

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  23. L.H. v. Schwarzenegger, CIV.S-06-2042LKKGGH, 2008 WL 268983 at *7 (E.D. Cal. Jan. 29, 2008).

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  24. L.H. v. Schwarzenegger, CIV S-06-2042, 2010 WL 2943580 (E.D. Cal. July 23, 2010) (describing the process of compliance with the stipulated injunction requiring provision of counsel at revocation proceedings).

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  25. AK R DELINQ RULES Rule 24

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  26. Miss. Code. Ann. § 43-21-201

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  27. Nevada Revised Statute 62D.030

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  28. N.C. Gen. Stat. Ann. § 7B-2516 (a)(2); N.C. Gen. Stat. Ann. § 7A-450.3

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  29. 37 TAC § 95.51 (c)(9)

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  30. Utah Code Ann. § 62A-7-504 (3)

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