B-156932, JUN 16, 1977

B-156932, JUN 16, 1977

1. THE PAROLE COMMISSION AND REORGANIZATION ACT (PAROLE ACT), 18 U.S.C. 4214(A)(2), MAKES APPOINTMENT OF COUNSEL MANDATORY IN PAROLE REVOCATION PROCEEDINGS AND APPEALS THEREFROM FOR INDIGENT PAROLEES, UNLESS WAIVED BY THEM, WITH COMPENSATION TO BE PAID FROM CRIMINAL JUSTICE ACT, 18 U.S.C. 3006A, AT RATES SET BY THAT ACT. THE LEGISLATIVE HISTORY OF THE PAROLE ACT DEMONSTRATES THAT REFERENCE TO CRIMINAL JUSTICE ACT, WHICH LEAVES SUCH APPOINTMENT TO THE COURT'S DISCRETION, DID NOT INTEND TO CONTINUE THAT ACT'S LIMITATION ON THE RIGHT OF COUNSEL BUT TO ONLY PRESCRIBE THE MANNER IN WHICH COUNSEL WAS TO BE SELECTED AND COMPENSATED. 2. THE PAROLE ACT, 18 U.S.C. 4211(C)(11), PROVIDES HEARINGS FOR PAROLEES SEEKING TERMINATION OF PAROLE AFTER 5 YEARS UNDER THE SAME PROCEDURAL SAFEGUARDS ACCORDED PAROLEES FACING PAROLE REVOCATION UNDER 18 U.S.C. 4214(A)(2). THUS PROVISION OF COUNSEL FOR INDIGENT PAROLEES SEEKING PAROLE TERMINATION MUST ALSO BE DEEMED AUTHORIZED FROM CRIMINAL JUSTICE ACT APPROPRIATIONS, EVEN THOUGH THE CRIMINAL JUSTICE ACT ITSELF DOES NOT SPECIFICALLY REFER TO TERMINATION PROCEEDINGS.

PROVISION OF COUNSEL IN PAROLE REVOCATION PROCEEDINGS:

THIS IS IN RESPONSE TO A REQUEST BY THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS (ADMINISTRATIVE OFFICE), FOR A DECISION INTERPRETING SECTIONS OF THE PAROLE COMMISSION AND REORGANIZATION ACT, PUB. L. NO. 94-233, 90 STAT. 219, MARCH 15, 1976, 18 U.S.C. 4201 ET SEQ. (1976) (PAROLE ACT) CONCERNING APPOINTMENT OF COUNSEL IN PAROLE REVOCATION AND RELATED PROCEEDINGS AND THE METHOD OF COMPENSATION FOR SUCH ATTORNEYS. WE WERE SPECIFICALLY ASKED TO RULE ON FIVE ASPECTS OF THIS SUBJECT: (1) WHETHER APPOINTMENT OF COUNSEL IN PAROLE REVOCATION PROCEEDINGS IS NOW MANDATORY FOR INDIGENT PAROLEES, (2) WHETHER COMPENSATION OF SUCH COUNSEL IS TO BE MADE BY THE ADMINISTRATIVE OFFICE FROM CRIMINAL JUSTICE ACT (18 U.S.C. 3006A) APPROPRIATIONS, (3) WHETHER COMPENSATION FOR SUCH APPOINTED COUNSEL IS TO BE MADE AT THE RATES SET BY THAT ACT, (4) WHETHER ENTITLEMENT TO REPRESENTATION OF APPOINTED COUNSEL CONTINUES THROUGH THE ADMINISTRATIVE APPEAL PROCESS FROM A REVOCATION DETERMINATION, AND (5) WHETHER THERE IS AUTHORITY UNDER THE CRIMINAL JUSTICE ACT OF 1970 TO COMPENSATE COUNSEL APPOINTED FOR A PAROLE TERMINATION HEARING.

THE POSITIONS OF THE JUSTICE DEPARTMENT AND THE PAROLE COMMISSION ON THESE ISSUES ARE STATED IN A LETTER SENT TO THIS OFFICE ON JANUARY 19, 1977, FROM THE ACTING ASSISTANT ATTORNEY GENERAL OF THE CRIMINAL DIVISION, RICHARD THORNBURGH AND A MEMORANDUM HE ENCLOSED FROM THE ACTING CHAIRMAN OF THE U.S. PAROLE COMMISSION, CURTIS C. CRAWFORD, DATED DECEMBER 17, 1976. THE POSITION OF THE ADMINISTRATIVE OFFICE WAS STATED IN ITS SUBMISSION.

PRIOR TO ENACTMENT OF THE PAROLE ACT, APPOINTMENT OF COUNSEL IN FEDERAL PAROLE REVOCATION PROCEEDINGS WAS LEFT TO THE DISCRETION OF THE COURT OR MAGISTRATE WITH JURISDICTION OVER THE CASE. THE CRIMINAL JUSTICE ACT OF 1970, 18 U.S.C. 3006A PROVIDES:

"ANY PERSON SUBJECT TO REVOCATION OF PAROLE * * * MAY BE FURNISHED REPRESENTATION PURSUANT TO THE PLAN WHENEVER THE UNITED STATES MAGISTRATE OR THE COURT DETERMINES THAT THE INTERESTS OF JUSTICE SO REQUIRE AND SUCH PERSON IS FINANCIALLY UNABLE TO OBTAIN REPRESENTATION."

COURT DECISIONS HAVE NOT GRANTED PAROLEES RIGHTS BEYOND THIS STATUTE. ALTHOUGH SUPREME COURT DECISIONS SINCE JOHNSON V. ZERBST, 304 U.S. 458 (1938), ON THE FEDERAL LEVEL, AND GIDEON V. WAINWRIGHT, 372 U.S. 335 (1963), ON THE STATE LEVEL, HAVE FOUND THE SIXTH AND FOURTEENTH AMENDMENTS TO REQUIRE THE GOVERNMENT TO APPOINT COUNSEL FOR INDIGENTS ACCUSED OF CRIME AND, UNDER MEMPA V. RAY, 389 U.S. 128 (1967), TO APPOINT COUNSEL FOR INDIGENT, DEFENDANTS AT EVERY STAGE OF A CRIMINAL PROCEEDING AT WHICH SUBSTANTIAL RIGHTS MAY BE AFFECTED, THIS RIGHT HAS NEVER BEEN EXTENDED TO DEFENDANTS AT PAROLE REVOCATION PROCEEDINGS. THE COURT, IN MORRISEY V. BREWER, 408 U.S. 471, 481 (1972), HELD

" * * * THE REVOCATION OF PAROLE IS NOT PART OF A CRIMINAL PROSECUTION AND THUS THE FULL PANOPLY OF RIGHTS DUE A DEFENDANT IN SUCH A PROCEEDING DOES NOT APPLY TO PAROLE REVOCATIONS * * * ." REVOCATION DEPRIVES AN INDIVIDUAL, NOT OF THE ABSOLUTE LIBERTY TO WHICH EVERY CITIZEN IS ENTITLED, BUT ONLY OF THE CONDITIONAL LIBERTY PROPERLY DEPENDENT ON OBSERVANCE OF SPECIAL PAROLE RESTRICTIONS."

THE MORRISEY DECISION SPECIFICALLY REFUSED TO "REACH OR DECIDE THE QUESTION WHETHER THE PAROLEE IS ENTITLED TO THE ASSISTANCE OF RETAINED COUNSEL OR TO APPOINTED COUNSEL IF HE IS INDIGENT." ID. AT 489.

IN A LATER DECISION, GAGNON V. SCARPELLI, 411 U.S. 778 (1973), THE COURT FOUND THAT STATES WERE UNDER NO CONSTITUTIONAL DUTY TO PROVIDE COUNSEL FOR INDIGENTS IN ALL PROBATION OR PAROLE REVOCATION PROCEEDINGS. THE NEED IN PAROLE REVOCATION PROCEEDINGS FOR "INFORMALITY, FLEXIBILITY AND ECONOMY" WAS SEEN AS NEGATING THE NEED FOR COUNSEL IN ALL BUT THE MOST COMPLEX OR DIFFICULT CASES. ID. AT 788.

THE LANGUAGE OF THE PAROLE ACT,ENACTED AFTER THE ABOVE CITED CASES, SPECIFICALLY ENUMERATES COMPREHENSIVE PROCEDURES FOR THE PROTECTION OF PAROLEES' RIGHTS IN PROCEEDINGS TO REVOKE PAROLE, INCLUDING THE RIGHT TO COUNSEL AT PRELIMINARY AND FINAL REVOCATION PROCEEDINGS. THE PAROLE ACT (18 U.S.C. 4214(A)(2), IN SETTING FORTH THE REQUIREMENTS FOR PRELIMINARY AND FINAL REVOCATION HEARINGS, PROVIDES:

"(B) OPPORTUNITY FOR THE PAROLEE TO BE REPRESENTED BY AN ATTORNEY (RETAINED BY THE PAROLEE, OR IF HE IS FINANCIALLY UNABLE TO RETAIN COUNSEL, COUNSEL SHALL BE PROVIDED PURSUANT TO SECTION 3006A OR, IF HE SO CHOOSES, A REPRESENTATIVE AS PROVIDED BY RULES AND REGULATIONS UNLESS THE PAROLEE KNOWINGLY AND INTELLIGENTLY WAIVES SUCH REPRESENTATION."

BECAUSE OF THE REFERENCE TO 18 U.S.C. 3006A OF THE CRIMINAL JUSTICE ACT, UNDER WHICH APPOINTMENT OF COUNSEL WAS DISCRETIONARY, AT LEAST ONE DISTRICT COURT HAS CONCLUDED THAT THE PAROLE ACT PRESERVES THE COURT'S PREVIOUS DISCRETION TO GRANT OR DENY A PETITION FOR APPOINTED COUNSEL IN A PAROLE REVOCATION PROCEEDING. IN AN ORDER DENYING COUNSEL IN APPLICATION OF HOPKINS, NO. 76-165A-C3 (D. KAN., AUG. 10, 1976), THE DISTRICT COURT STATED, IN INTERPRETING SECTION 4214:

"THE TERM 'PURSUANT TO' MEANS 'IN ACCORDANCE WITH.' THE LANGUAGE OF SUBSECTION (G) OF 18 U.S.C.A. 3006A IS CLEAR AND UNAMBIGUOUS IN PROVIDING FOR THE APPOINTMENT OF COUNSEL FOR A PERSON SUBJECT TO REVOCATION 'WHENEVER THE UNITED STATES MAGISTRATE OR THE COURT DETERMINES THAT THE INTERESTS OF JUSTICE SO REQUIRE."

WE BELIEVE THAT THIS INTERPRETATION DOES NOT GIVE SUFFICIENT CONSIDERATION TO THE SPECIFIC LANGUAGE IN THE PAROLE ACT AND THE STATED CONGRESSIONAL INTENT TO PROVIDE COUNSEL IN ALL PAROLE REVOCATION PROCEEDINGS UNLESS THE PAROLEE WAIVES THE PRIVILEGE OR CHOOSES TO HAVE SOMEONE OTHER THAN AN ATTORNEY REPRESENT HIM.

THE CONFERENCE COMMITTEE REPORT INDICATES THAT THE PAROLE ACT WAS INTENDED TO GO BEYOND THE PROCEDURAL DUE PROCESS REQUIREMENTS OF THE MORRISON AND GAGNON DECISIONS AND GUARANTEE THE RIGHT OF COUNSEL IN ALL PAROLE REVOCATION PROCEEDINGS IF REQUESTED. THE CONFEREES STATED:

"THE LEGISLATION ALSO REAFFIRMS CASE LAW INSURING A FULL PANOPLY OF DUE PROCESS TO THE INDIVIDUAL THREATENED WITH RETURN TO PRISON FOR VIOLATION OF TECHNICAL CONDITIONS OF HIS PAROLE SUPERVISION * * * . IT GOES BEYOND PRESENT LAW IN INSURING APPOINTMENT OF COUNSEL TO INDIGENTS THREATENED WITH REIMPRISONMENT." H. REPT. 94-838, 94TH CONG., 2D SESS. 21 (1976).

ON PAGE 34 OF THE CONFERENCE REPORT, IN THE SECTION BY SECTION ANALYSIS, THE CONFEREES STATED:

"BOTH THE PRELIMINARY AND REVOCATION HEARING SHALL BE CONDUCTED IN ACCORDANCE WITH THE FOLLOWING PROCEDURES:

"(B) THE RIGHT TO BE REPRESENTED BY RETAINED COUNSEL OR IF HE IS UNABLE TO RETAIN COUNSEL, COUNSEL SHALL BE PROVIDED PURSUANT TO THE CRIMINAL JUSTICE ACT (18 U.S.C. 3006A) OR ANOTHER REPRESENTATIVE AS PROVIDED BY RULES AND REGULATIONS; * * * "

FURTHERMORE, DURING HOUSE DEBATE ON THE CONFERENCE COMMITTEE REPORT, REPRESENTATIVE KASTENMEIER, THE CHAIRMAN OF THE SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES AND THE ADMINISTRATION OF JUSTICE AND SPONSOR OF THE BILL, INDICATED THAT THE SENATE AND HOUSE BILLS HAD DISAGREED AS TO WHETHER COUNSEL SHOULD BE MANDATORY FOR PAROLE REVOCATION PROCEEDINGS, BUT THE COMMITTEE HAD ADOPTED THE HOUSE VERSION REQUIRING THAT THE PAROLEE BE GIVEN THE OPPORTUNITY TO BE REPRESENTED BY COUNSEL. MR. KASTENMEIER TOLD THE HOUSE:

" * * * THE TWO HOUSES WERE IN DISAGREEMENT OVER THE ROLE OF APPOINTED COUNSEL IN REVOCATING (SIC) HEARINGS. THE HOUSE BILL HELD THAT REVOCATION OF PAROLE ENTAILED A SERIOUS POSSIBLE DEPRIVATION OF LIBERTY WHICH REQUIRED THAT THE PAROLEE HAVE THE BENEFIT OF COUNSEL IN ORDER TO BE ABLE TO MARSHAL HIS ARGUMENTS AND ORGANIZE HIS DEFENSE.

"THE SENATE AGREED THAT THIS WAS A REASONABLE POSITION AND THE CONFERENCE DOES PROVIDE FOR COUNSEL AT REVOCATION PROCEEDINGS * * * ." 122 CONG.REC. H1500 (MARCH 3, 1976).

ALSO, THE JUSTICE DEPARTMENT HAS ADVISED US THAT THE AGENDA FOR THE CONFERENCE ON THE PAROLE ACT, WHICH WAS SUPPLIED TO THEM BY THE SENATE SUBCOMMITTEE ON PENITENTIARIES AND WHICH SETS OUT THE MAJOR DIFFERENCES BETWEEN THE SENATE AND HOUSE BILLS, INDICATES THAT THE SENATE VERSION PROVIDED FOR OPTIONAL APPOINTMENT UNDER THE CRIMINAL JUSTICE ACT, BUT THE HOUSE VERSION REQUIRED RETAINED OR APPOINTED COUNSEL, UNLESS WAIVED BY THE PAROLEE. FURTHER, WE NOTE THAT SINCE DISCRETIONARY APPOINTMENT OF COUNSEL HAD ALREADY BEEN PROVIDED UNDER THE CRIMINAL JUSTICE ACT, THERE WOULD APPEAR TO BE LITTLE REASON TO INCLUDE A SECTION REQUIRING COUNSEL IN THE PAROLE ACT WHICH REFERRED TO THE CRIMINAL JUSTICE ACT, UNLESS THERE WAS AN INTENT TO EXPAND THE RIGHT PROVIDED IN THE EARLIER ACT. IN OTHER WORDS, WE FEEL THAT THE SUBJECT PROVISIONS OF THE PAROLE ACT AMEND, BY IMPLICATION, THE PROVISIONS OF THE CRIMINAL JUSTICE ACT TO PROVIDE THAT PERSONS SUBJECT TO PAROLE REVOCATION MUST BE FURNISHED REPRESENTATION UPON REQUEST, SUBJECT TO THE COURT'S PLAN FOR PROVIDING ASSISTANCE TO INDIGENTS.

THE QUESTION AS TO WHETHER PROVISION OF COUNSEL IS MANDATORY IS DEBATABLE, AS IS EVIDENT FROM THE COURT'S HOLDING IN THE HOPKINS CASE, SUPRA. THE JUSTICE DEPARTMENT, TOO, IN A MEMORANDUM DATED SEPTEMBER 17, 1976, SUPPORTED A COMMISSION MEMORANDUM OF SEPTEMBER 7, 1976, CONCLUDING THAT THE PAROLE ACT REQUIRED DISCRETIONARY APPOINTMENTS OF COUNSEL IN ACCORDANCE WITH THE TERMS OF THE CRIMINAL JUSTICE ACT. HOWEVER, IN RESPONSE TO OUR REQUEST FOR ITS VIEWS ON THE QUESTION, SUPRA, THE JUSTICE DEPARTMENT CHANGED ITS POSITION. IT NOW BELIEVES, AS DOES THE ADMINISTRATIVE OFFICE, THAT THE "REFERENCE TO SECTION 3006A SHOULD BE READ ONLY AS A CITATION TO THE AUTHORITY UNDER WHICH A COURT APPOINTS AN ATTORNEY, WITHOUT INCORPORATING THE DISCRETIONARY FEATURE OF THAT STATUTE." THE PAROLE COMMISSION, IN A DECEMBER 17, 1976 MEMORANDUM, STATED THAT "ALTHOUGH IT MIGHT BE BETTER ARGUED THAT THE STATUTE IS PLAIN ENOUGH ON ITS FACE TO PREVENT RESORT TO LEGISLATIVE HISTORY, IT CAN ALSO BE AGREED THAT AMBIGUITIES CAN BE FOUND IN THE UNFORTUNATE PHRASING USED BY THE CONGRESSIONAL DRAFTORS OF THIS LEGISLATION." IT CONCLUDED THAT LANGUAGE COULD BE FOUND IN THE LEGISLATIVE HISTORY SUPPORTING THE DEPARTMENT POSITION. THERE IS THUS NO SUBSTANTIAL DISAGREEMENT AMONG THE AGENCIES CONCERNED WITH OUR VIEW THAT THE PAROLE ACT REQUIRES COUNSEL IN PAROLE REVOCATION PROCEEDINGS, RATHER THAN PRESERVING THE DISCRETIONARY APPOINTMENT PROVISION OF THE CRIMINAL JUSTICE ACT.

WITH REGARD TO FUNDING APPOINTED COUNSEL, SINCE THE PAROLE ACT REFERS BACK TO THE CRIMINAL JUSTICE ACT, 18 U.S.C. 3006A, AS THE LAW PROVIDING THE MANNER IN WHICH AN ATTORNEY IS TO BE PROVIDED, THE JUSTICE DEPARTMENT, THE ADMINISTRATIVE OFFICE AND THE PAROLE COMMISSION ALL AGREE THAT COMPENSATION FOR ATTORNEYS APPOINTED FOR REVOCATION HEARINGS SHOULD BE PAID FROM CRIMINAL JUSTICE ACT APPROPRIATIONS. THE REFERENCE TO THE CRIMINAL JUSTICE ACT INDICATES AN INTENT TO CONTINUE THE PRIOR PRACTICE OF COMPENSATING COUNSEL FOR REVOCATION PROCEEDINGS FROM THESE FUNDS. THE REFERENCE TO THIS ACT ALSO ESTABLISHES THE RATE AT WHICH COUNSEL APPOINTED FOR REVOCATION HEARINGS SHOULD BE COMPENSATED. THE LANGUAGE AND LEGISLATIVE HISTORY OF THE PAROLE ACT CONTAIN NO INDICATION THAT THE MAXIMUM RATE AUTHORIZED BY 18 U.S.C. 3006AD)(2) OF $250, UNLESS MORE IS APPROVED BY THE CHIEF JUDGE OF THE APPROPRIATE COURT OF APPEALS, IS TO BE MODIFIED IN ANY WAY. REPRESENTATIVE KASTENMEIER SUPPORTED THIS VIEW BY STATING, WHEN DISCUSSING THE CONFERENCE COMMITTEE REPORT, " * * * THE CONFERENCE DOES PROVIDE FOR COUNSEL AT REVOCATION PROCEEDINGS WHO ARE TO BE PAID AT A RATE CONSISTENT WITH PRESENT POLICY." 122 CONG.REC. H1500 (MARCH 3, 1976).

THE CRIMINAL JUSTICE ACT, 18 U.S.C. 3006AC) PROVIDES THAT THE PERSON FOR WHOM COUNSEL IS APPOINTED OR RETAINED IS TO REPRESENT HIS CLIENT "AT EVERY STAGE OF THE PROCEEDINGS FROM HIS INITIAL APPEARANCE * * * THROUGH APPEAL." SINCE THIS ACT ESTABLISHES THE MANNER IN WHICH COUNSEL IS TO BE SELECTED FOR THE INDIGENT PAROLEE, AND ANCILLARY MATTERS SUCH AS THE RATE OF HIS COMPENSATION, WE AGREE WITH THE ADMINISTRATIVE OFFICE, THE JUSTICE DEPARTMENT AND THE PAROLE COMMISSION THAT THE CONGRESSIONAL OBJECTIVE OF PROVIDING THE "FULL PANOPLY OF DUE PROCESS" TO THE PAROLEE FACING REVOCATION OF HIS PAROLE WOULD BE THWARTED IF LEGAL COUNSEL WERE NOT ALSO AVAILABLE FROM THE PRELIMINARY REVOCATION HEARING THROUGH APPEALS FOLLOWING REVOCATION.

AS NOTED ABOVE, THE JUSTICE DEPARTMENT AND THE ADMINISTRATIVE OFFICE ARE IN AGREEMENT THAT 18 U.S.C. 4214(A)(2) SHOULD BE INTERPRETED TO REQUIRE APPOINTMENT OF COUNSEL IN PAROLE REVOCATION PROCEEDINGS, WHERE THE PAROLEE IS UNABLE TO AFFORD TO RETAIN COUNSEL AND HAS NOT WAIVED THIS RIGHT. THEY DISAGREE, HOWEVER, ON THE QUESTION OF WHETHER PROVISION FOR COUNSEL FOR PAROLE TERMINATION PROCEEDINGS IS MANDATORY.

THE PAROLE ACT PROVIDES FOR THE TERMINATION OF PAROLE SUPERVISION AFTER 5 YEARS UNLESS THE PAROLE COMMISSION DETERMINES THAT THERE IS A LIKELIHOOD THAT THE PAROLEE WILL ENGAGE IN CONDUCT VIOLATING ANY CRIMINAL LAW. PAROLE SUPERVISION IS NOT TERMINATED AT THAT TIME, THE PAROLEE MAY REQUEST TERMINATION HEARINGS ANNUALLY AND THEY MUST BE HELD AT LEAST BIENNIALLY AND BE "CONDUCTED IN ACCORDANCE WITH THE PROCEDURES PRESCRIBED IN SECTION 4214(A)(2)," RELATING TO PAROLE REVOCATION. AS DISCUSSED PREVIOUSLY, THE LATTER SECTION CONTAINS A REQUIREMENT THAT THE PAROLEE BE GIVEN THE OPPORTUNITY "TO BE REPRESENTED BY AN ATTORNEY (RETAINED BY THE PAROLEE, OR IF HE IS FINANCIALLY UNABLE TO RETAIN COUNSEL, COUNSEL SHALL BE PROVIDED PURSUANT TO SECTION 3006A) * * * ." THE JUSTICE DEPARTMENT POINTS OUT THAT UNDER 18 U.S.C. 4211(C)(1) PAROLE HEARINGS ARE TO BE "CONDUCTED IN ACCORDANCE WITH THE PROCEDURES PRESCRIBED IN SECTION 4214(A)(2)(B)," AND THAT SECTION REQUIRES THAT THERE BE AN " * * * OPPORTUNITY FOR THE PAROLEE TO BE REPRESENTED BY AN ATTORNEY (RETAINED BY THE PAROLEE OR IF HE IS FINANCIALLY UNABLE TO RETAIN COUNSEL, COUNSEL SHALL BE PROVIDED PURSUANT TO SECTION 3006A * * * ." IT CONTENDS THE TWO SECTIONS SHOULD BE READ TOGETHER TO "EXPAND THE AVAILABILITY OF COUNSEL UNDER SEC. 3006A TO INCLUDE PAROLE TERMINATION HEARINGS." THE DEPARTMENT BELIEVES THAT NO DISTINCTION SHOULD BE MADE BETWEEN PAROLE REVOCATION AND PAROLE TERMINATION PROCEEDINGS AS FAR AS APPOINTMENT OF COJNSEL IS CONCERNED ALTHOUGH IT NOTES THAT THE CONSEQUENCES OF PAROLE TERMINATION PROCEEDINGS ARE LESS SEVERE; THAT IS, AN ADVERSE HOLDING WOULD NOT RESULT IN THE RETURN OF THE PAROLEE TO PRISON BUT MERELY THE CONTINUATION OF HIS PAROLE SUPERVISION.

THE DEPARTMENT FURTHER BELIEVES THAT ATTORNEYS APPOINTED FOR PAROLE TERMINATION PROCEEDINGS SHOULD BE COMPENSATED FROM CRIMINAL JUSTICE ACT APPROPRIATIONS AND SELECTED BY THE METHOD PROVIDED UNDER 18 U.S.C. 3006A IN THE SAME MANNER AS IN PAROLE REVOCATION PROCEEDINGS.

THE U.S. PAROLE COMMISSION ADVISES THAT IT "HAS NO FUNDAMENTAL OBJECTIONS TO APPOINTMENTS OF COUNSEL IN THE SITUATIONS MENTIONED IN THE STATUTE, SAVE FOR THE FACT THAT THERE MAY BE A CONSIDERABLE NUMBER OF INSTANCES IN WHICH SUCH APPOINTMENTS ARE UNNECESSARY AND WASTEFUL." IT CONCLUDES THAT THERE IS LANGUAGE IN THE LEGISLATIVE HISTORY THAT SUPPORTS THE JUSTICE DEPARTMENT'S CONCLUSION THAT APPOINTMENT OF COUNSEL FOR INDIGENTS IS MANDATORY IN BOTH PAROLE REVOCATION AND PAROLE TERMINATION HEARINGS WITH COMPENSATION FOR COUNSEL IN BOTH SITUATIONS TO BE MADE FROM CRIMINAL JUSTICE FUNDS BY THE ADMINISTRATIVE OFFICE. HOWEVER, THE COMMISSION FEELS THAT THE LEGISLATIVE HISTORY IS UNCLEAR. IT URGES THAT IF THE ADMINISTRATIVE OFFICE ADVISES JUDGES THAT APPOINTMENTS OF COUNSEL UNDER THE PAROLE ACT ARE MANDATORY FOR TERMINATION OR REVOCATION HEARINGS, OR BOTH,

"IT SHOULD STATE IN ITS OPINION THAT THE STATUTE IS NOT COMPLETELY CLEAR ON ITS FACE AND SHOULD DISCUSS THE VARIOUS ELEMENTS OF THE LEGISLATIVE HISTORY IN SUPPORT OF WHAT WE AGREE WAS THE ACTUAL INTENTION OF THE CONFEREES IN PRODUCING A COMPROMISE BILL. OTHERWISE WE EXPECT THAT SOME DISTRICT COURTS MAY WELL DECIDE THAT THE ACT DOES NOT PROVIDE FOR MANDATORY COUNSEL AS DID THE DISTRICT COURT IN KANSAS."

THE ADMINISTRATIVE OFFICE, IN DISCUSSING PAROLE TERMINATION PROCEEDINGS OBSERVES:

"THERE IS NO PRECEDENT FOR APPOINTMENT OF COUNSEL UNDER THE CRIMINAL JUSTICE ACT FOR THIS TYPE OF PROCEEDING. IN ADDITION, THERE IS NO PROVISION IN EITHER THE PAROLE ACT OR THE CRIMINAL JUSTICE ACT FOR PAYMENT OF COMPENSATION TO APPOINTED COUNSEL FOR SUCH A PROCEEDING. AS A CONSEQUENCE, IT COULD BE CONCLUDED THAT THE PAROLE ACT REQUIRES THAT COUNSEL FOR ELIGIBLE PAROLEES FACING A TERMINATION OF PAROLE SUPERVISION HEARING SHOULD BE APPOINTED UNDER THE CRIMINAL JUSTICE ACT BUT THAT SUCH COUNSEL MUST SERVE WITHOUT COMPENSATION.

"IT COULD BE CONTENDED, ON THE OTHER HAND, THAT SECTION 4211(C) DOES NOT NECESSARILY INVOKE THE CRIMINAL JUSTICE ACT PROVISIONS, WHEN IT ADOPTS THE PROCEDURES IN SECTION 4214(A)(2) OF THE PAROLE ACT. AN EXTENSION OF THE CRIMINAL JUSTICE ACT BY INFERENCE SHOULD NOT BE PRESUMED LIGHTLY IN VIEW OF THE FACT THAT NO AUTHORITY EXISTS FOR COMPENSATING APPOINTED COUNSEL. FURTHERMORE, CONGRESS COULD HAVE MADE SUCH AUTHORITY EXPLICIT HAD IT INTENDED SUCH AN INCORPORATION BY REFERENCE. AS A CONSEQUENCE, IT MAY BE THAT COUNSEL FOR ELIGIBLE PAROLEES FACING A TERMINATION OF PAROLE SUPERVISION PROCEEDING MAY NEITHER BE APPOINTED NOR COMPENSATED UNDER THE CRIMINAL JUSTICE ACT BUT ARE TO BE APPOINTED AND COMPENSATED BY SOME OTHER SOURCE SUCH AS THE PAROLE COMMISSION.

"IN VIEW OF THE FOREGOING, THE ADMINISTRATIVE OFFICE HAS CONCLUDED THAT WHEN COUNSEL IS APPOINTED TO REPRESENT A PAROLEE IN A PAROLE TERMINATION PROCEEDING UNDER THE PROVISIONS OF SECTION 4211(C), THERE IS NO AUTHORITY UNDER THE CRIMINAL JUSTICE ACT TO PAY COMPENSATION FOR SERVICES RENDERED."

WE AGREE WITH ALL CONCERNED THAT THIS IS AN EXTREMELY CLOSE QUESTION. UNLIKE THE COMMISSION, WE WERE UNABLE TO FIND ANY REFERENCE TO PAROLE TERMINATION HEARINGS IN THE LEGISLATIVE HISTORY OF THE PAROLE ACT, THAT SHEDS ANY LIGHT AT ALL ON CONGRESSIONAL INTENT WITH RESPECT TO PROVISION OF COUNSEL AT SUCH HEARINGS. WE MUST RELY, THEREFORE, ON THE LANGUAGE OF THE STATUTE ITSELF WHICH, THOUGH ADMITTEDLY AMBIGUOUS, MUST BE GIVEN EFFECT IF POSSIBLE TO DO SO WITHOUT REACHING AN ANOMALOUS RESULT. SEE 2A SUTHERLAND, STATUTES AND STATUTORY CONSTRUCTION, 46.06, 46.07.

AT THE OUTSET, WE MUST POINT OUT THAT THE ONLY TERMINATION HEARINGS WITH WHICH WE ARE CONCERNED ARE THOSE CONDUCTED AT THE END OF A 5 YEAR PERIOD OF PAROLE SUPERVISION PURSUANT TO 18 U.S.C. 4211(C)(1) AND (2). NORMALLY, PAROLE SUPERVISION TERMINATES AUTOMATICALLY AFTER A PERIOD OF 5 YEARS,BUT THERE MAY BE OCCASIONS IN WHICH THE COMMISSION FEELS THAT PAROLE SUPERVISION SHOULD BE EXTENDED BECAUSE IT IS LIKELY THAT THE PAROLEE WILL ENGAGE IN CONDUCT WITH VIOLATES A CRIMINAL LAW. BEFORE A DETERMINATION THAT SUPERVISION SHOULD BE EXTENDED CAN BE MADE, THE STATUTE REQUIRES THAT A HEARING BE HELD "IN ACCORDANCE WITH THE PROCEDJRES PRESCRIBED IN SECTION 4214(A)(2)." IN ADDITION, IF PAROLE SUPERVISION IS EXTENDED, THE PAROLEE MAY REQUEST ANOTHER HEARING ANNUALLY, AND MUST BE GRANTED SUCH A HEARING, IN ACCORDANCE WITH THE SAME PROCEDURES, "NOT LESS FREQUENTLY THAN BIENNIALLY." OTHER SUBSECTIONS OF 18 U.S.C. 4211 REFER TO COMMISSION REVIEW OF THE PAROLEE'S STATUS PRIOR TO THE EXPIRATION OF THE 5 YEAR PERIOD TO DETERMINE THE ADVISABILITY OF EARLY TERMINATION OF PAROLE SUPERVISION. THESE "REVIEWS," HOWEVER, ARE NOT DESIGNATED AS "HEARINGS," AND THERE IS NO MANDATE TO FOLLOW ANY PRESCRIBED PROCEDURES.

THE PROBLEM ARISES BECAUSE 18 U.S.C. 4211(C)(1) STATES THAT TERMINATION HEARINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE PROCEDURES PRESCRIBED IN SECTION 4214(A)(2), RELATING TO PAROLE REVOCATION HEARINGS. THAT SECTION, IN TURN, REFERS TO THE PROCEDURES IN THE CRIMINAL JUSTICE ACT, 18 U.S.C. 3006A. HOWEVER, UNLIKE THE PAROLE REVOCATION SITUATION, THE CRIMINAL JUSTICE ACT ITSELF CONTAINS NO SPECIFIC AUTHORITY-- MANDATORY OR DISCRETIONARY-- TO APPOINT AND COMPENSATE COUNSEL FOR INDIGENTS IN TERMINATION HEARINGS. THE ADMINISTRATIVE OFFICE FEELS THAT "AN EXTENSION OF THE CRIMINAL JUSTICE ACT BY INFERENCE SHOULD NOT BE PRESUMED LIGHTLY IN VIEW OF THE FACT THAT NO AUTHORITY EXISTS FOR COMPENSATING APPOINTED COUNSEL." IT ARGUES FURTHER THAT "CONGRESS COULD HAVE MADE SUCH AUTHORITY EXPLICIT HAD IT INTENDED SUCH AN INCORPORATION BY REFERENCE." FINALLY, THE ADMINISTRATIVE OFFICE SPECULATES ABOUT THE POSSIBILITY THAT THE PAROLE ACT DID INTEND THAT COUNSEL IN TERMINATION PROCEEDINGS BE APPOINTED AND COMPENSATED BUT NOT UNDER THE CRIMINAL JUSTICE ACT. IT SUGGESTS COMPENSATION FROM ANOTHER SOURCE, SUCH AS THE PAROLE COMMISSION.

THE JUSTICE DEPARTMENT DISAGREES WITH THE ADMINISTRATIVE OFFICE'S REASONING. IT FEELS THAT 18 U.S.C. 4211(C), PERTAINING TO PAROLE TERMINATION HEARINGS, AND 18 U.S.C. 4214(A)(2), PERTAINING TO PAROLE REVOCATION HEARINGS, MUST BE READ TOGETHER. IT THEN CONCLUDES THAT THE AVAILABILITY OF COUNSEL UNDER THE CRIMINAL JUSTICE ACT FOR REVOCATION PROCEEDINGS IS EXPANDED TO INCLUDE TERMINATION HEARINGS AS WELL.

WE AGREE WITH THE DEPARTMENT OF JUSTICE'S POSITION. THERE IS NO DOJBT THAT THE "PROCEDURES" APPLICABLE TO PAROLE TERMINATION HEARINGS ARE TO BE THE SAME AS THE PROCEDURES PRESCRIBED FOR PAROLE REVOCATION HEARINGS UNDER 18 U.S.C. 4214(A)(2). ONE OF THE ENUMERATED "PROCEDURES" IS AN "OPPORTUNITY FOR THE PAROLEE TO BE REPRESENTED BY AN ATTORNEY (RETAINED BY THE PAROLEE, OR IF HE IS FINANCIALLY UNABLE TO RETAIN COUNSEL, COUNSEL SHALL BE PROVIDED PURSUANT TO SECTION 3006A) * * * ." IF WE THEN HOLD THAT THERE IS NO AUTHORITY UNDER SECTION 3006A TO PROVIDE COUNSEL UNDER THESE CIRCUMSTANCES, WE WOULD BE RENDERING THE STATUTORY DIRECTIVE TO ACCORD THE PAROLEE THE SAME PROCEDURAL SAFEGUARDS AS HE WOULD HAVE IF HIS HEARING INVOLVED PAROLE REVOCATION, NULL AND OF NO EFFECT, AT LEAST WITH RESPECT TO THE PROVISION OF COUNSEL. SUCH AN INTERPRETATION WOULD BE CONTRARY TO AN ELEMENTARY CANON OF STATUTORY CONSTRUCTION. AS SUTHERLAND PUTS IT, "A STATUTE IS A SOLEMN ENACTMENT OF THE STATE ACTING THROUGH ITS LEGISLATURE AND IT MUST BE ASSUMED THAT THIS PROCESS ACHIEVES AN EFFECTIVE AND OPERATIVE RESULT. IT CANNOT BE PRESUMED THAT THE LEGISLATURE WOULD DO A FUTILE THING." 2A SUTHERLAND, STATUTORY CONSTRUCTION 45.12.

THE BETTER VIEW, WE BELIEVE, IS TO CONSTRUE THE TWO SECTIONS OF THE PAROLE ACT CONSISTENTLY. HAVING CONCLUDED THAT CRIMINAL JUSTICE ACT APPROPRIATIONS ARE AVAILABLE TO COMPENSATE COUNSEL FOR INDIGENT PAROLEES FACING PAROLE REVOCATION, WE MUST ALSO FIND THAT SUCH APPROPRIATIONS ARE AVAILABLE TO COMPENSATE COUNSEL FOR INDIGENT PAROLEES FACING PAROLE TERMINATION. NO CONSIDERATIONS OF ADMINISTRATIVE CONVENIENCE OR TRADITION CAN JUSTIFY THE CREATION OF AN EXCEPTION TO AN ENTITLEMENT WHERE NO SUCH EXCEPTION IS PRESENT IN THE STATUTE.

THIS CONCLUSION IS NOT SOLELY DEPENDENT ON OUR INTERPRETATION OF THE PAROLE REVOCATION AUTHORITY. WE NOTE THAT CLAUSE (4) OF 18 U.S.C. 3006AA) INCLUDES, AMONG THE SITUATIONS IN WHICH A PLAN MUST BE DEVISED FOR ADEQUATE REPRESENTATION OF AN INDIGENT DEFENDANT, " * * * IN A CASE IN WHICH HE FACES LOSS OF LIBERTY, ANY FEDERAL LAW REQUIRES THE APPOINTMENT OF COUNSEL." IT APPEARS TO US THAT 18 U.S.C. 4211(C) IS SUCH A FEDERAL LAW. IT COULD BE ARGUED THAT THE PAROLEE, IN THE TERMINATION SITUATION, IS NOT REALLY FACING A LOSS OF LIBERTY SINCE THERE IS NO QUESTION OF FURTHER INCARCERATION. WE SUGGEST THAT THE CONDITIONS IMPOSED ON A PAROLEE'S FREEDOM OF ACTION ARE OFTEN ONEROUS AND EXTENSION OF THOSE CONDITIONS BEYOND THE 5 YEAR PERIOD MIGHT JUSTIFIABLY BE REGARDED AS CONSTITUTING AT LEAST A PARTIAL LOSS OF LIBERTY. AT ANY RATE, EXTENSION OF THE PROTESTIONS OF THE CRIMINAL JUSTICE ACT IN THESE CIRCUMSTANCES DOES NOT APPEAR TO BE SO UNREASONABLE AS TO JUSTIFY A FINDING THAT THE CONGRESS COULD NOT HAVE INTENDED THIS RESULT.

IN VIEW OF OUR CONCLUSION THAT CRIMINAL JUSTICE ACT APPROPRIATIONS ARE AVAILABLE FOR COMPENSATING COUNSEL IN PAROLE TERMINATION PROCEEDINGS, IT IS NOT NECESSARY FOR US TO CONSIDER WHETHER ANY OTHER APPROPRIATED FUNDS COULD BE USED FOR THIS PURPOSE. WE OBSERVE, HOWEVER, THAT THERE DOES NOT APPEAR TO BE ANY AUTHORITY FOR THE PAROLE COMMISSION TO USE ITS OWN APPROPRIATIONS FOR THIS PURPOSE, AS THE ADMINISTRATIVE OFFICE SUGGESTS.