The U.S. Supreme Court has recognized that supervised individuals subject to probation or parole have some liberty interests, but that they need not be afforded the “full panoply of rights” enjoyed by defendants in a pretrial status, because the presumption of innocence has evaporated. Morrissey v. Brewer, 408 U.S. 471 (1972); Gagnon v. Scarpelli, 411 U.S. 778 (1973). Carchman v. Nash, 473 U.S. 716 (1985). Due process requirements apply equally to parole and probation revocation. Morrissey involved a parolee and Gagnon involved a probationer.
In Morrissey, the Supreme Court concluded that due process requires a prompt probable cause hearing at or reasonably near the place of the alleged violation. Morrissey, 408 U.S. at 485. In addition, the hearing procedure requires “(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.” Id. at 489.
In Gagnon, 411 U.S. at 790–91, the Supreme Court concluded that a supervised individual may be entitled to counsel in some circumstances. The Supreme Court further noted, “Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on 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.”