Excerpted from: Parole, 40 Georgetown Law Journal Annual Review of Criminal Procedure 852 (2011) (45 footnotes Omitted)

Parole Release From Incarceration. Parole is a system of release from prison before the completion of a sentence, on condition that the prisoner abides by certain rules for the balance of the sentence. The purpose of parole is to help imprisoned individuals become constructive members of society, without confinement for their full sentence. Parole may also be used to reduce prison overcrowding.

In 1984, Congress abolished parole for federal prisoners and moved to a system of fixed prison terms. However, federal prisoners whose offenses were committed prior to November 1, 1987, remain eligible for early release.

States are free to create their own parole systems. State prisoners do not have a constitutionally protected interest in receiving parole unless a statute contains mandatory language requiring the parole board to grant parole in certain situations. When such mandatory language exists, a prisoner has a legitimate expectation of parole, or “liberty interest,” that cannot be denied without due process. For example, statutes providing that the parole board “shall” release an inmate if certain conditions are met usually create a protected liberty interest. Conversely, state statutes and regulations that merely state that the parole board “may” release an inmate if certain criteria are met do not create a liberty interest protected by the Due Process Clause of the Fourteenth Amendment.

When a statute gives an inmate a liberty interest in parole, an informal hearing where the inmate has an opportunity to present letters and statements on his behalf satisfies due process. In contrast, other types of hearings, such as disciplinary or parole revocation hearings, require heightened due process protections.

Changes to parole guidelines may violate the Ex Post Facto Clause if prisoners are “unquestionably disadvantaged” by changes that create a “significant risk” of increased incarceration. For example, in Lynce v. Mathis, the Supreme Court held that retroactive cancellation of early release credits having the effect of returning the parolee to prison violated the Ex Post Facto Clause because it “prolonged his imprisonment” and, therefore, “unquestionably disadvantaged” the parolee. But in California Department of Corrections v. Morales, the Supreme Court held that amended parole procedures allowing triennial, instead of annual, parole suitability hearings for a certain class of prisoners did not violate the Ex Post Facto Clause because the statute created only a “speculative [and] attenuated” risk of increasing the prisoner's punishment.

Parole Revocation. Minimal due process protections apply to parole revocation proceedings for both federal and state prisoners. Although parolees are subject to many restrictions, they enjoy a protected liberty interest in conditional freedom. That interest in continued liberty is significant enough to fall within the scope of the Fourteenth Amendment's Due Process Clause. Moreover, parolees rely on an implicit promise that their parole will be revoked only if they violate their parole conditions. Therefore, due process requires that parole be revoked only through a procedure designed to ensure that the finding of a violation is factually correct and that the discretionary decision to recommit the parolee to prison is based on an accurate assessment of the parolee's behavior.

There are two stages in a typical parole revocation proceeding: a preliminary hearing and a revocation hearing. Due process requirements apply to each stage. A preliminary hearing or interview is held to determine whether probable cause exists to believe that the parolee violated parole conditions. A preliminary hearing after a parolee is recaptured on a federal parole commissioner's warrant or summons must be held “without unnecessary delay,” but delay only violates due process when it prejudices a parolee. However, the parolee may choose to postpone the preliminary hearing to obtain counsel. At this preliminary hearing, the parolee is entitled to appear and present evidence and to confront and cross-examine adverse witnesses, unless the hearing officer determines that the witness may be harmed if his or her identity is disclosed. If the hearing officer determines that probable cause exists to hold the parolee pending a final revocation decision, the officer must summarize the proceedings and state the reasons and evidence supporting the probable cause finding, though the summary need not include formal findings of fact or law. If the parolee has been convicted of a crime while on parole, however, no preliminary hearing is required because the conviction itself establishes probable cause to believe that there has been a parole violation. The parolee may also elect to waive the right to a preliminary hearing, which is the functional equivalent of a finding of probable cause.

Once probable cause has been established, the parole authority must hold a revocation hearing within a reasonable time after the parolee has been taken into custody. The revocation authority must give the parolee notice of the alleged parole violation before the actual hearing. The decision to revoke parole must be based upon a retrospective factual inquiry into whether the parolee violated the conditions of his or her release and an assessment of whether the parolee should be recommitted to prison or made subject to additional parole conditions aimed at protecting society and improving rehabilitation. At the hearing, evidence against the parolee must be disclosed, and the parolee must be allowed to present witnesses and documentary evidence. The parolee must also be allowed to cross-examine witnesses unless the hearing officer finds cause for preventing such confrontations. At the revocation hearing, the parolee may show that the violation did not occur, and, if the parole board has discretion whether to revoke parole in a given fact situation, the parolee may also show that mitigating circumstances should preclude revocation. [FN2534] A “neutral and detached” body, which may include the parole board and need not include judges or lawyers, [FN2535] must make the revocation decision and issue a written statement of the evidence and the reasons supporting revocation of parole. [FN2536] Due process does not generally require the appointment of counsel for indigent parolees in revocation hearings, [FN2537] but in federal cases the appointment of counsel is required by statute. [FN2538]