Mempa v. Rhay Motion for Leave to File and Brief Amicus Curiae

    I n  T he

Supreme ©mitt nf %  Inttei* BUUb
October T erm , 1967

No. 16 & No. 2 2

JERRY DOUGLAS MEMPA,

v.
Petitioner,

B, J. RH AY, Superintendent, Washington State Penitentiary,
Respondent.

W IL L IA M  EARL W ALKLING,
Petitioner,

v.

B. J. RH AY, Superintendent, Washington State Penitentiary,
Respondent.

On W rits Of Certiorari To The Supreme Court Of Washington

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE  
ON BEHALF OF THE

NATIONAL LEGAL AID AND DEFENDER ASSOCIATION

TOGETHER W IT H  BRIEF AMICUS CURIAE

L E E  S ILVERSTEIN ,
PATR ICK  J. HUGHES, JR.,

1155 East 60th Street,
Chicago, Illinois 60637,

Attorneys for Amicus Curiae 
NATIONAL LEGAL AID AND 

DEFENDER ASSOCIATION.



INDEX

PAGE

Motion for Leave to File Brief Amicus Curiae .........  1

Interest of Amicus Curiae................................................  6

■Statement of the Cases .......    7

Summary of Argument ....................................................  9

Argument:
I.

The Equal Protection Clause Requires That Coun­
sel Be Assigned To An Indigent Defendant In A 
Probation Violation Proceeding I f  A  Defendant Of 
Means Could Employ Private Counsel For Such 
Proceeding ........................................................................ 11

A. The principle expressed in Douglas v. Califor­
nia and related cases, requiring appointment 
of counsel for appeal, applies to appointment
of counsel in a probation violation proceeding .. 11

B. A  significant number of states other than 
Washington permit retained counsel in pro­
bation violation proceedings but deny a right
of assigned counsel ................................................. 15

II.
Apart Prom Equal Protection Requirements, The 

Due Process Clause Requires Assignment Of Coun­
sel .................................................................     17

A. A significant number of states recognize this 
principle by judicial decision, statute or rule 
of court .....................................................................  17



11

B. Most state courts conduct a hearing on the is­
sue of violation of probation, at which the de­
fendant is present and has a right to be heard, 
and at which the state is represented by coun­
sel. The defendant is at an unfair disadvantage
if he does not have the assistance of counsel .... 21

C. Expert opinion favors a right of assigned coun­
sel for probation violation proceedings ...........  24

III.
A  Constitutional Requirement Of Assignment Of

Counsel Would Not Unduly Burden The States .....  32

A. Counsel is already being assigned in approxi­
mately half the state trial courts in the United 
States ........................................................................ 32

B. The total number of probation revocations is
not large .......................    33

C. Counsel can be provided within existing sys­
tems of representation .........    35

D. Providing counsel would not interfere with pro­
bation administration ...........................   36

IV.
For Constitutional Purposes Probation Should

Be Characterized As A Form Of Liberty And Not
A  Mere Privilege Or A  Favor ......    36

Conclusion ...................   39

Appendices:

A—Right to Retained and Assigned Counsel in 
Probation Violation Proceedings in the State 
Courts .................................................................... la

B—Probation and Revocation in Selected Cities .. 15a



T able Of, A uthorities

Cases:
Anders v. California, 386 U.S. 738 (1967) ...........  11,
Betts v. Brady, 316 U.S. 455 (1942) .........................
Blea v. Cox, 75 N.M. 265, 403 P. 2d 701 (1965) .......
Com. ex rel. Remeriez v. Maroney, 415 Pa. 534, 204

A. 2d 451 (1964) ... .................................. ... ...........
Copper Plumbing & Heating Company v. Campbell,

290 F. 2d 368 (D.C. Cir. 1961) ...............................
Douglas v. California, 372 U.S. 353 (1963) .......  11, 16,
Edwardsen v. State, 220 Md. 82,151 A. 2d 132 (1959)
Escoe v. Zerbst, 295 U.S. 490 (1935)...................  20, 22,
Ex Parte Davis, 37 Cal. 2d 872, 236 P. 2d 579 (1951)
Flemming v. Nestor, 363 U.S. 603 (1960) .................
Franklin v. State, 87 Idaho 291, 392 P. 2d 552 (1964) 
Gebhart v. Gladden, 243 Ore. 145, 412 P. 2d 29

(1966) ................... ....................................................  18,
Gideon v. Wainwright, 372 U.S. 335 (1963) ...........  17,
Gilbert v. California, 87 Sup. Ct. 1951 (1967) ...........
Greene v. MeElroy, 360 U.S. 474 (1959) ............. .....
Griffin v. Illinois, 351 U.S. 12 (1956) .......................
Hamilton v. Alabama, 368 U.S. 52 (1961) .................
Hoffman v. State, 404 P. 2d 644 (Alaska 1965) ....

.............................................................................. 12, 13,
In Re Levi, 39 Cal. 2d 41, 244 P. 2d 403 (1952) .....
In Re Perez, 53 Cal. Rep. 414, 418 P. 2d 6 (1966) .... 
Konigsberg v. State Bar of California, 353 U.S. 252

(1957) ............................................................................
Lane v. Brown, 372 U.S. 477 (1963) ...........................
Massengale v. United States, 278 F. 2d 344 (6th Cir.

1960) ....................... ......................................................
Miranda v. Arizona, 384 U.S. 436 (1966) ..................

19
20
18

19

38
19
19
37
20
38
20

19
19
19
38
11
19

30
18
18

37
11

37
19



IV

People v. Hamilton, 26 A.D. 2d 134, 271 N.Y.S. 2d
694 (4th Dept. 1966) ................................................

People v. Price, 24 111. App. 2d 364, 164 N.E. 2d
528 (1960) ............................ ...................................  18,

People v. St. Louis, 3 A.D. 2d 883, 161 N.Y.S. 2d
170 (3rd Dept. 1957) ........... ............... ......... ...........

People v. Wood, 2 Mich. App. 342, 139 N.W. 2d 895
(1966) ............................ ...............................................

Perry v. Williard, 427 P. 2d 1020 (Oregon 1967) ....
......................................................................  13, 14, 18,

Phillips v. State, 165 So. 2d 246 (Fla. App. 2nd
Dist. 1964) .............................................................. 18,

Pointer v. Texas, 380 U.S. 400 (1965) .................... .
Sehware v. Board of Bar Examiners, 335 U.S. 232

(1957) ................................ ...........................................
Shum v. Fogliani, 413 P. 2d 495 (Nev. 1966) .......  15,
Smith v. State, 33 Wis. 2d 695, 148 N.W. 2d 39

(1967) ................................................ ...........................
State v. Small, 386 S.W. 2d 379 (Mo. 1965) ...........
Slochower v. Board of Education, 350 U.S. 551

(1956) ............................ ...............................................
Thomas v. Maxwell, 175 Ohio St. 233, 193 N.E. 2d

150 (1963) ....................................................................
Thomas v. State, 163 So. 2d 328 (Fla. App. 3rd

Dist. 1964) .......................... .......................................
Townsend v. Burke, 334 U.S. 736 (1948) .................
White v. Maryland, 373 U.S. 59 (1963) .....................
Williams v. Commonwealth, 350 Mass. 732, 216 N.E. 

2d 779 (1966) ..............................................................

Other Authorities:
Annotation, “Bight to Notice and Hearing before 

Bevocation of Suspension of Sentence, Parole,

18

36

19

20

19

20
23

37
20

20
20

38

20

20
19
19

18



V

Conditional Pardon or Probation”  29 A.L.R. 2d
1074 (1953) ..................................................................  22

Annual Report of Director of Administrative Office
of United States Courts, 127 (1966) ....................... . 34

Attorney General’s Survey of Release Procedures, 
Volume II, Probation, Department of Justice,
Washington (1939) .....................................-..........  27, 34

Comment, “ Due Process and Revocation of Condi­
tional Liberty,” 12 Wayne L. Rev. 638 (1966) -  22, 30 

Comment, “ Revocation of Conditional Liberty— 
California and the Federal System,” 28 So. Cal.
L. Rev. 158 (1955) ............... .......................................  27

Di Cerbo, “ When Should Probation be Revoked?”
Federal Probation, June 1966, p. 11 .............. ........  30

Hink, “ Application of Constitutional Standards of 
Protection to Probation,” 29 U. Chi. L. Rev. 483
(1962) ............................................................................  30

Kadish, “ The Advocate and the Expert—Counsel in 
the Peno-Correctional Process,” 45 Minn. L. Rev.
803 (1961) ...................................... ...............................  30

Kamisar & Choper, “ The Right to Counsel in Min­
nesota,” 48 Minn. L. Rev. 1 (1963) ......................... 30

Kean, “ Due Process Applied to Hearings for the 
Revocation of Juvenile Probation,”  16 Juv. Ct.
Judges J. 178 (1966) .......................   30

Model Penal Code, Proposed Official Draft, Ameri­
can Law Institute (1962) ........................................  29

Note, “ Legal Aspects of Probation Revocation,” 59
Colum. L. Rev. 311 (1959) ....................... ...........  22, 27

O’Neil, “ Unconstitutional Conditions: Welfare Ben­
efits with Strings Attached,”  54 Calif. L. Rev.
443 (1966) .................................................................... 38



VI

S. Rubin, Criminal Correction (1963) ....................... 28
Silverstein, Defense of the Poor In Criminal Cases 

in American State Courts, American Bar Founda­
tion (1965) ....... ......................................................  31, 33

Sklar, “ Law and Practice in Probation and Parole 
Revocation Proceedings, 55 J. Crim. Law, Crim.
& Pol. Sci. 175 (1964) ....................................  21, 29, 34

Sklar, The Revocation of Parole and Adult Proba­
tion, (1962) Thesis, Northwestern University
School of Law, Chicago, Illinois........... ...............  21, 29

Standards and Guides for Adult Probation, the Na­
tional Council on Crime and Delinquency, (1962) 
.........................................................................1........  28, 36

Standards Relating to Providing Defense Services 
— Tentative draft, American Bar Association 
Project on Minimum Standards For Criminal
Justice, American Bar Association, 1967 ................ 26

Task Force Report: Corrections, (1967) The Presi­
dent’s Commission on Law Enforcement and Ad­
ministration of Justice (1967) ............................... 34

Task Force Report: The Courts, Task Force on Ad­
ministration of Justice, The President’s Commis­
sion on Law Enforcement and Administration of
Justice (1967) .......................................... .................  25

Report of Committee on Legal Aid and Indigent
Defendants, 91 A.B.A. Reports 116 (1966) .......  26

The Challenge of Crime In a Free Society, A Re­
port by the President’s Commission on Law En­
forcement and Administration of Justice (1967) .. 25 

Wiehofen, “ Revoking Parole or Pardon Without a 
Hearing,”  32 J. Crim. L., Crim. & Pol. Sci. 531 
(1942) .................................... ,....................................... 27



I n  T he

(tart uf tty United
October T erm, 1967

No. 16 & No. 2 2

JERRY DOUGLAS MEMPA,

B. J, RH AY, Superintendent, Washington State Penitentiary,
Respondent.

W IL LIA M  EARL W ALKLING,
Petitioner,

Y.

B. J. RH AY, Superintendent, Washington State Penitentiary,
Respondent.

On Writs Of Certiorari To The Supreme Court Of Washington

MOTION FOR LEAVE TO FILE  
BRIEF AMICUS CURIAE.

The National Legal Aid and Defender Association here­
by respectfully moves for leave to file a brief amicus 
curiae in these cases in support of petitioners, as pro­
vided in Rule 42 of the Rules of the Court. The consent 
of the attorneys for the petitioners has been obtained.



■2-

The consent of the Attorney General of the State of 
Washington, attorney for the respondents, was requested 
but refused.

The National Legal Aid and Defender Association, here­
inafter called NLADA, is a non-profit corporation whose 
primary purpose is to assist in providing more and bet­
ter legal services for the poor. The NLADA includes 
among its members the great majority of defender of­
fices, coordinated assigned counsel systems, and legal 
aid societies in the United States, many of which are 
providing legal representation to indigent defendants at 
probation violation proceedings. The NLADA also has 
1700 professional members, many of whom are practicing 
attorneys who represent indigent persons in criminal and 
civil matters.

The NLADA and its members believe that it is vital to 
the administration of criminal justice that counsel be pro­
vided for poor persons at every stage in a criminal pro­
ceeding, including a hearing on violation of probation. 
For this reason the NLADA desires to assist the Court 
in giving careful and full consideration to the issues pre­
sented in these two eases.

The brief for the petitioners necessarily and quite prop­
erly views the issues in the two cases primarily from the 
vantage point of Washington law. The NLADA in its 
brief, tendered herewith, attempts to cast light on the 
issues from a national perspective. The brief includes 
material drawn from the statutes and case law of the 
several states, scholarly writings, model legislation, orig­
inal field research conducted by the American Bar Founda­
tion in 1963-64, and questionnaires circulated by NLADA



— 3

in 1967 among its defender members as well as some pros­
ecutors and probation offices. It is believed that the 
NLADA brief includes material supplemental to the peti­
tioners’ brief that should be useful to the Court in its 
consideration of these cases.

In view of the importance of these cases to defender and 
legal aid attorneys serving the poor throughout the coun­
try, the Defender Committee and the executive commit­
tee of NLADA have authorized and instructed the NLADA 
staff attorneys to prepare and file a brief amicus curiae 
in these two cases, if so permitted by the Court.

Wherefore, it is respectfully prayed that this motion 
for leave to file the annexed brief amicus curiae be granted.

/ s /  L ee S ilverstein,

/ s /  P atrick J. H ughes, Jr.,

1155 East 60th Street,
Chicago, Illinois 60637,

Attorneys for Amicus Curiae 
National L egal A id and 
D efender A ssociation.



Isr T he

(Emtrt of tlj£ United States
October T eem , 1967

No. 16 & No. 2 2

JEEEY DOUGLAS ME MPA,

v.
Petitioner,

B. J. EH AY, Superintendent, Washington State Penitentiary,
Respondent.

W IL LIA M  EAEL W ALKLING,

v.
Petitioner,

B, J. EH AY, Superintendent, Washington State Penitentiary,
Respondent.

On W rits Of Certiorari To The Supreme Court Of Washington

BEIEF OF THE
NATIONAL LEGAL AID AND DEFENDEE ASSOCIATION  

AMICUS CUEIAE.



— 6—

INTEREST OF AMICUS CURIAE.

As pointed out in the Motion For Leave To File its 
Brief Amiens Curiae, the National Legal Aid and De­
fender Association, hereinafter referred to as NLADA, 
and its members have a real and vital concern in these 
cases, since an adverse decision would seriously impair 
the ability of the members of NLADA to represent in­
digent clients in such proceedings. NLADA officially 
takes the position that every jurisdiction should have an 
adequate defense system to provide competent legal repre­
sentation for those financially unable to employ counsel. 
Accordingly NLADA has promulgated Minimum Stand­
ards for a Defender System, as adopted by its Assembly 
of Delegates. These standards have been endorsed by the 
Standing Committee on Legal Aid and Indigent Defend­
ants of the American Bar Association and approved by 
its House of Delegates, 91 A.B.A. Reports, 116, 186, 189- 
90 (1966). In their particularly relevant portions these 
standards provide:

Every Defender System should:

1. Provide legal representation for every person who 
is without financial means to secure competent counse] 
when charged with a felony, misdemeanor, or other charge 
where there is a possibility of a jail sentence.

3. Provide representation immediately after the tak­
ing into custody or arrest, at the first and every subse­
quent court appearance and at every stage in the pro­
ceeding, including appeal or other post-conviction pro­
ceedings to remedy error or injustice. The representation 
should extend to parole and probation-violation proceed­



— 7-

ings, extradition proceedings, and proceedings involving 
possible detention or commitment of minors or alleged 
mentally ill persons.

8. Provide effectual notice of the available services to 
all persons whom may be in need thereof. [Emphasis 
added.] (These standards, adopted in 1965, are published 
in the Handbook of Standards for Legal Aid and Defender 
Offices (1965), NLADA, American Bar Center, Chicago, 
111. 60637 and in 24 Legal Aid Brief Case 66-6.7 (1965).)

These minimum standards represent the crystallized 
sentiment of NLADA and its members. The whole legal 
aid and defender movement will be affected by the deter­
mination of these cases, since this will be the first time 
this court will directly rule on the issue of the right 
of an indigent to counsel at a probation revocation pro­
ceeding.

STATEMENT OF THE CASES.

The essential facts in these two cases are similar. In 
each instance the defendant pleaded guilty to a serious 
crime and was placed on probation, the imposition of 
sentence being suspended. (M.R. 10, 20; W.R, 13) Mempa, 
Petitioner in No. 16, was arrested four months after­
wards, while still only 17 years old, and his probation 
was revoked after a brief hearing in which the State was 
represented by counsel but he was not. (M.R. 24-28.) He 
was not told that he had a right to counsel, and apparently



— 8-

no effort was made to contact the attorney who had 
represented him as assigned counsel when he pleaded 
guilty. At the end of the hearing the judge sentenced 
Mempa to the state reformatory for a maximum of ten 
years on the original guilty plea. Six years later, still 
being a prisoner, Mempa filed a habeas corpus petition 
in the Washington Supreme Court, the denial o f which 
formed the basis for grant of certiorari by this Court.

The Walkling case, No. 22, which arose in another 
county, differs in that Walkling wTas older and apparently 
wiser, for he had asked counsel to he present to repre­
sent him at the probation revocation proceeding. (W.E. 
15.) Counsel did not appear, however, and after waiting 
15 minutes the judge proceeded, despite Walkling’s re­
peated request that the judge appoint counsel for him. 
At the end of a brief hearing in which the State was 
represented by counsel but Walkling was not, the judge 
revoked the probation and imposed a maximum sentence 
of 15 years on the original guilty plea. (W.R. 15-16.) 
After two years of imprisonment Walkling also filed a 
habeas corpus petition, with the same results as Mempa. 
Walkling, however, was released on parole in 1967.

For a fuller statement of the cases, we adopt the Peti­
tioners’ statement.



— 9-

SUMMARY OF ARGUMENT.

To permit a defendant of means to employ counsel for 
a probation violation hearing but deny to a poor person 
the right to have counsel appointed is contrary to the 
Equal Protection Clause of the Fourteenth Amendment. 
This Court has previously recognized that the Equal 
Protection clause applies to appointment of counsel for 
appeal in Douglas v. California, 372 U.S. 353 (1963) and 
related cases, and state courts in Alaska and Oregon have 
applied this principle to probation violation proceedings. 
The problem of equal access to counsel occurs in at least 
17 states besides Washington and the number may be as 
high as 31.

Quite apart from the Equal Protection clause, the Due 
Process clause requires that counsel be assigned at proba­
tion violation proceedings. The principle of Gideon v. 
Wainwright, 372 TT.S. 335 (1963) is broad enough to 
cover these proceedings. Further, ten states, by judicial 
decision, statute, or rule of court, now require appoint­
ment of counsel, thereby recognizing that counsel is nec­
essary as a matter of public policy if not constitutional 
law. Most states grant the defendant a right to be heard, 
and the state is represented at the hearing by counsel, 
so that the defendant is at an unfair disadvantage if he 
does not also have counsel. Expert professional opinion, 
such as the President’s Crime Commission and the Ameri­
can Bar Association, have recommended that appointed 
counsel be provided. Scholarly writing on the subject 
shows a growing recognition of the importance of coun­
sel, especially in the present decade.



— 10—

If the Court should require appointment of counsel, 
the state courts would not he unduly burdened because 
about half the courts are already appointing counsel, 
either because state law requires it or because of local 
practice. The total number of revocations per year ap­
pears to be at a level where adequate representation 
could be provided within existing systems for furnishing 
counsel to the poor.

Probation begins with an exercise of judicial discre­
tion or favor, but it does not follow that the status of 
probation may be taken away without certain safeguards. 
Probation is best defined as a form of liberty, but even 
if defined as a privilege, it is entitled to at least the same 
protections as economic privileges, such as the right to 
practice law and the right to work for the federal gov­
ernment.



- 11-

ARGUMENT.

I.

THE EQUAL PROTECTION CLAUSE REQUIRES THAT  
COUNSEL BE ASSIGNED TO AN  INDIGENT DEFENDANT  
IN  A  PROBATION VIOLATION PROCEEDING IF A  DE­
FENDANT OF MEANS COULD EM PLOY PRIVATE COUN­
SEL FOR SUCH PROCEEDING.

A. The principle expressed in Douglas v. California and 
related cases, requiring appointment of counsel for ap­
peal, applies to appointment of counsel in a probation 
violation proceeding.

As pointed out on page 30 of the Petitioners’ brief, the 
general practice in the State of Washington is to allow 
retained counsel at probation revocation proceedings. In 
unmistakable language, this Court has indicated that where 
the liberty of the individual is involved, it will not sanc­
tion discrimination between indigents and those who pos­
sess the means to protect their rights. In a. series of deci­
sions dealing with discrimination against an indigent 
defendant beginning with Griffin v. Illinois, 351 U.S. 12 
(1956) and including Douglas v. California, 372 U.S. 353 
(1963), Lane v. Brown, 372 U.S. 477 (1963), and Anders 
v. California, 386 U.S. 738 (1967), this court has con­
sistently invalidated procedures wherein the rich man has 
the benefit of counsel at the critical stages in a criminal 
prosecution while the poor man “ is forced to shift for 
himself.’ ’Auders v. California, 386 U.S. at 741. Anders 
held that substantial equality and fairness required by 
the Fourteenth Amendment imposed a duty on California 
to afford an indigent appellant in a criminal case the



•12-

same degree of advocacy that a non-indigent can obtain 
by virtue of his ability to employ counsel. 386 U.S. at 745.

The Supreme Courts of Alaska and Oregon have dis­
cussed the right of an indigent to counsel in probation 
revocation proceedings in the light of the equal protection 
clause and the decisions cited above. In Hoffman v. State, 
404 P. 2d 644 (Alaska 1965), an indigent defendant was 
sentenced to three years imprisonment after pleading 
guilty to burglary and larceny. However, the judge sus­
pended all but five months of that sentence, placing the 
defendant on probation for the remaining time. While he 
was on probation, the state filed a petition with the trial 
court alleging that he had violated his probation. The 
court then held a probation revocation hearing at which 
the defendant, being without funds, was not represented 
by counsel, even though Alaska Statutes § 12.55.110 pro­
vides that a defendant has the right to counsel in such a 
proceeding. Upon the conclusion of the hearing, the court 
revoked probation and imposed the balance of the three- 
year sentence.

On appeal the Supreme Court o f Alaska decided that 
under the statute an indigent probationer had the same 
right to be represented by counsel as a probationer who 
had funds to retain counsel. The Court said:

To construe * * * [the statute] as embodying an 
intended dichotomy between probationers able to af­
ford counsel and others, would, in our opinion, render 
the statute repugnant to the Equal Protection Clauses 
of both the Federal and Alaska Constitutions. Hoff­
man v. State, 404 P. 2d at 646.

The Alaska Court then pointed to this Court’s opinions in 
Lane, Douglas, and Griffm as having struck down the



•13-

distinctions between the indigent and the man of means. 
With respect to these decisions, the Court said:

Admittedly these three decisions involved appeals 
in criminal cases and were not concerned with proba­
tion or parole issues, but as was observed by Judge 
Sobeloff, in reference to these cases in his concurring 
opinion in Jones v. Rivers, 338 F. 2d 862 at 876 (4th 
Cir. 1964): “ [T]here is no reason to attach signifi­
cance to their technical classification as criminal rather 
than civil; the underlying feature to be noted is the 
fact that the liberty of the individual was involved.”

What we do today is to refuse to sanction any dis­
criminatory application between indigent probationers 
and others in the administration of the right to coun­
sel # * *. Hoffman v. State, 404 P. 2d at 646.

In Perry v. Williard, 427 P. 2d 1020 (1967) the Oregon 
Supreme Court was faced with the same issue. The Oregon 
practice with respect to the assistance of counsel at pro­
bation revocation proceedings was similar to the practice 
in the State of Washington in these cases. Those who 
could afford to employ counsel for probation revocation 
hearings did so frequently. Those who were indigent did 
not. The defendant Perry, an indigent, was sentenced 
after his conviction of a felony, but. the sentencing court 
stayed the execution of the sentence and placed him on 
probation. Subsequently, at a hearing held without the 
presence or assistance of counsel, his probation was re­
voked. The Oregon Supreme Court, in reversing the trial 
court, discussed the applicability of the Equal Protection 
clause:

The prisoner argues and the state does not deny 
that it is not unusual for a probationer who can retain 
counsel to have the assistance of counsel at a revoca­
tion hearing. The presence of counsel in some cases



14-

when it is denied in others gives rise to equal protec­
tion problems. See Douglas v. California, 372 U.S. 
353 (1963); Kamisar and Cboper, The Eight to Coun­
sel in Minnesota, Some Field Findings and Legal 
Policy observations, 48 Minn. L. Eev. 1, 94 (1963). 
[427 P. 2d at 1021-22.]

Eecent decisions in our own court as well as the 
United States Supreme Court have been widening and 
deepening our commitment to individual liberty and 
to equality before the law. * * * It would he some­
what surprising now to hold for the first time that a 
wealthy person brought- before the court for revoca­
tion of probation could not have the assistance of 
retained counsel to dispute the alleged grounds for 
revocation. We take judicial notice of the.practice of 
many years standing which allows counsel to he heard 
in such proceedings in various circuit courts of this 
state. We now hold that counsel is not only desirable 
hut is so essential to a fair and trustworthy hearing 
that due process of law when liberty is at stake in­
cludes a right to counsel.

Accordingly, if a probationer with money is entitled 
to retained counsel, an indigent is entitled to ap­
pointed counsel. As observed in another context, dis­
crimination on account of poverty is as unjustifiable 
as discrimination on account of religion, race or color. 
[Citing Griffin v. Illinois] We are aware that a pro­
ceeding to review performance on probation is not a 
criminal trial, but that distinction does not justify 
the denial of equal protection of the laws where liberty 
is concerned. Perry v. Williard, 427 P. 2d at 1022-23 
[emphasis added].

The Oregon Supreme Court returned the case to the trial 
court for a new revocation hearing in which counsel 
should he available unless expressly waived.



— 15-

A  similar argument was made by Judge Hamilton in 
bis dissent in Mempa v. Shay, no. 16, transcript, M.R. 57, 
Mempa v. Shay, 416 P. 2d at 114, but was rejected by tbe 
majority of the Supreme Court of Washington. With re­
spect to the majority’s position, Judge Hamilton stated:

* * * Yet the majority would deny this right to in di­
gents, thereby projecting discrimination between pro­
bationers who can afford counsel and those who can­
not, Due process and equal protection prohibit the 
accident of economic ability from being a criterion 
for right to counsel. * * *

Of the several state court decisions denying a right to 
appointed counsel, to be diseussed below in part II of our 
brief, only one, Slvum v. Fogliam, 413 P. 2d 495 (Nev. 
1966) deals with the issue of equal protection, and even 
there one judge of a three-judge court wrote a strong 
dissent. In Slum, the court relied on the theory that pro­
bation is a matter of grace, which we discuss below in 
part IV  of our brief.

B. A significant number of states other than Washington 
permit retained counsel in probation violation hear­
ings but deny a right of assigned counsel.

We have collected information about the law and prac­
tice in courts located in all the states, utilizing the most 
recent data available from a variety of sources. This ma­
terial appears in Appendix A. As shown in this Appendix, 
according to the practice in 17 states besides Washington, 
a probationer charged with a probation violation is en­
titled to have private retained counsel at the proceedings 
to revoke his probation but is denied a right to have 
counsel appointed if he is poor, except perhaps in one



■16—

or a few counties in the state, or where he makes a request 
for counsel, or depending on the policy of the individual 
judge who happens to hear the case. These states, accord­
ing to the best information available, are Alabama, Ari­
zona, Arkansas, Florida, Kentucky, Idaho, Iowa, Louis­
iana, Maine, Michigan, Nevada, New Hampshire, Ohio, 
South Carolina, Tennessee, Vermont, and Wyoming. The 
problem almost certainly occurs also in 12 other states, 
in certain counties: California, Colorado, Georgia, Indiana, 
Maryland, New Jersey, New York, North Carolina, Okla­
homa, South Dakota, Utah, and Virginia, and probably 
also in Kansas and Nebraska.

Because the problem of lack of equal access to counsel 
seems so widespread among the states, the Court should 
declare that failure to appoint counsel violates the Equal 
Protection Clause. In Douglas v. California, 372 U.S. 353 
(1963), this Court declared that although the Constitution 
does not require that the state provide a right of appeal, 
if it does so, then counsel must be provided for an indi­
gent appellant if he wants one, so that he will still stand 
on the same footing as a defendant of means. Similarly, 
as the issue is framed in the present cases, this Court 
can rule that if the state permits retained counsel in a 
probation violation proceeding, it must also furnish ap­
pointed counsel for the probationer who is indigent.



— 17—

II.

a p a r t  f r o m  e q u a l  p r o t e c t io n  r e q u ir e m e n t s ,
THE DUE PROCESS CLAUSE REQUIRES ASSIGNMENT OF 
COUNSEL.

A. A significant number of states recognize this principle 
by judicial decision, statute, or rule of court.

In the Petitioners’ brief, pages 16-28 and 31-35, they 
set forth their position that the Due Process Clause 
requires that right to counsel at a probation violation 
proceeding be co-extensive with the right to counsel estab­
lished in Gideon v. WainwrigM, 372 U.S. 335 (1963).

As Petitioners point out, the sentencing that follows a 
revocation of probation where the original sentence had 
been deferred is the sentence on the original charge and 
is as much a part of the criminal prosecution as the 
arraignment and trial. Such revocation proceedings are 
therefore unquestionably a “ critical”  stage of the crim­
inal process.

In view of Petitioners’ discussion of these points wre 
will omit discussion of them.

We do wish to point out, however, that ten states have 
recognized the principle that counsel ought to be appointed 
in probation violation proceedings as a matter of funda­
mental fairness to the defendant. A  detailed summary of 
the law in each state appears in the “ assigned counsel”  
portions of Appendix A. The table shows judicial deci­
sions in Illinois, New Mexico, New York (4th Dept.), 
Oregon, Pennsylvania, and Wisconsin. Massachusetts has 
a judicial decision to this effect construing a rule of court. 
Statutes requiring appointment of counsel have been en­
acted in Hawaii, Minnesota, and Texas. Alaska should 
probably be added to the list, since its Supreme Court



-18—

has construed its statute as requiring appointment of 
counsel, albeit on a theory of equal protection. These 
eleven states are located in all sections of the country and 
include four of the ten most populous states and about 
one fourth the total population of the United States, 
according to the 1960 census.

Furthermore, although not required to do so by any 
statute, judicial decision, or statewide rule of court, many 
individual courts are appointing counsel, as shown in 
Appendix A. This is further evidence that the Due Process 
principle is widely recognized and followed in practice.

The state eases deserve careful attention, for they 
show that the Due Process principle has been applied 
both to cases arising from an original suspension of the 
imposition of sentence and cases arising from an original 
suspension of the execution of sentence. The following 
eases applied the principle where the imposition of sen­
tence was suspended:

Gebhart v. Gladden, 243 Ore. 145, 412 P. 2d 29 (1966); 
People v. Price, 24 111. App. 2d 364, 164 N.E. 2d 528 (I960);; 
Smith v. State, 33 Wis. 2d 695, 148 N.W. 2d 39 (1967). 
In Re Levi, 39 Cal. 2d 41, 244 P. 2d 403 (1952); In Re 
Peres, 53 Cal. Rep. 414, 418 P. 2d 6 (1966). In the follow­
ing cases execution of sentence was suspended: People 
v. Hamilton, 26 A.D. 2d 134, 271 N.Y.S. 2d 694 (4th Dept. 
1966); Williams v. Commonwealth, 350 Mass. 732, 216 
N.E. 2d 779 (1966); Blea v. Cox, 75 N.M. 265, 403 P. 2d 
701 (1965); Perry v. Williard, 427 P. 2d 1020 (Ore. 1967). 
None of the three statutes providing a right to assigned 
counsel makes any distinction between the two types of 
revocation, and the Minnesota Statutes, C§ 611.14 subd. (c) 
and 609.14 even refer to both fact situations. Massa­
chusetts Supreme Judicial Court Rule 10 simply applies



19

to any crime “ for which a sentence of imprisonment may 
be imposed.”  Cf. Com. ex rel. Remeriez v. Maroney, 415 
Pa. 534, 204 A. 2d 451 (1964) (type of suspension of 
sentence not shown).

We submit that there is no distinction between the two 
types of sentencing imposed upon revocation of probation. 
The two decisions in Oregon are particularly instructive: 
the Oregon Supreme Court could see no distinction be­
tween a case of .suspension of the imposition of sentence, 
Gebhart v. Gladden, 243 Ore. 145, 412 P. 2d 29 (1966), 
which is like the two cases at bar, and a case of suspension 
of the execution of sentence. Perry v. WUliard, 427 P. 2d 
1020 (Ore. 1967). In either fact situation the liberty of 
one convicted of a serious crime is at stake, and the pro­
ceeding is clearly either a part of the criminal prosecution 
or a closely related matter. The right of counsel must be 
extended to these proceedings if the Court is to be con­
sistent with its previous decisions relating to other stages 
in the criminal process, such as Miranda v. Arizona, 384 
U.S. 436 (1966); Gilbert v. California, 87 Sup. Ct. 1951 
(1967); Hamilton v. Alabama, 368 U.S. 52 (1961); White 
v. Maryland, 373 U.S. 59 (1963); Gideon v. Waimvright, 
372 U.S. 355 (1963); Townsend v. Burke, 334 U.S. 736 
(1948); Douglas v. California, 372 U.S. 353 (1963); Anders 
v. California, 386 U.S. 738 (1967).

A  discussion of the Due Process issue is incomplete 
without reference to the state decisions that deny a right 
to assignment of counsel. Two of these, Edwardsen v. 
State, 220 Md. 82, 151 A. 2d 132, 136 (1959), and People 
v. St. Louis, 3 A.D. 2d 883, 161 N.Y.S. 2d 170 (3d Dept. 
1957) may be discredited as being decided several years 
before the Gideon and related decisions. The language of 
the Maryland case clearly shows that the court’s thinking



— 20—

was dominated by Betts v. Brady, 316 U.S. 455 (1942); 
the New York case barely discusses the question and cites 
no authority. The case of Phillips v. State, 165 So. 2d 246 
(Fla. App. 2d Dist. 1964) denies a right to assigned coun­
sel at a probation revocation hearing but recognizes a 
right at the sentencing that follows upon a revocation. 
Neither Phillips nor Thomas v. State, 163 So. 2d 328 (Fla. 
App. 3d Dist. 1964) affords much discussion of the ques­
tion. Chief reliance is on Florida precedents and a Dis­
trict of Columbia Circuit decision denying appointed coun­
sel in a federal parole revocation proceeding. People v. 
Wood, 2 Mich. App. 342, 139 N.W. 2d 895 (1966) does 
not venture beyond Michigan authorities and a Seventh 
Circuit decision denying a right to appointed counsel in 
federal parole revocation. The Due Process issue is scarcely 
considered. In Thomas v. Maxwell, 175 Ohio St. 233, 193 
N.E. 2d 150, 152 (1963) a right to assigned counsel is 
denied but a right to retained counsel is recognized. The 
court relies entirely on Federal decisions stemming from 
the dictum in Escoe v. Zerbst, 295 U.S. 490 (1935), that 
there is no constitutional but only a statutory right to a 
hearing under the federal probation statute. See Peti­
tioners’ brief p. 26. Another case citing the same type 
of authorities is Sham v. Fogliani, 413 P. 2d 495 (Nev. 
1966), a 2-1 decision. Finally the case of FranJclin v. State, 
87 Idaho 291, 392 P. 2d 552, 555 (1964), also relying on 
federal decisions, seems to deny even a right to retained 
counsel. Additional authority contrary to our position 
may be found in state cases denying a right to a hearing; 
a fortiori, these cases are inconsistent with a right to 
have assigned counsel at such a hearing, e.g., State v. 
Small, 386 S.W. 2d 379 (Mo. 1965); Ex Parte Davis, 37 
Cal. 2d 872, 236 P. 2d 579 (1951) (suspension of execution 
of sentence.)



— 21—

We submit that these decisions are wrong and that the 
state authorities previously discussed present the better 
view for the reasons already mentioned,

B, Most state courts conduct a hearing1 on the issue of 
violation of probation, at which the defendant is pres­
ent and has a right to be heard, and at which the state 
is represented by counsel. The defendant is at an un­
fair disadvantage if he does not have the assistance of 
counsel.

An excellent study of probation and parole revocation 
statutes and practices was made in 1962 by Ronald Sklar. 
The Revocation of Parole and Adult Probation, available 
by interlibrary loan from Northwestern University School 
of Law, Chicago; see condensed version, ‘ ‘ Law and Prac­
tice in Probation and Parole Revocation Proceedings,”  
55 J. Crim. Law, Crim. & Pol. Sci. 175 (1964). Sklar’s 
summary of the statutory provisions is still accurate with 
a few exceptions.**) As updated, Sklar’s summary shows

**> Delaware Code Ann., § 4335(c), enacted in 1964, 
provides for an informal or summary hearing on a viola­
tion of probation. Thus Delaware moves from group I 
to group V  in the Sklar table in 55 J. Crim. L,, Crim. & 
P.S. 176-182. The Indiana statute was amended in 1967 
so as to provide that the probationer “ may be represent­
ed by counsel of his choice.”  This would move Indiana 
from group IV  to group VI. The new Texas Code of 
Criminal Procedure, art. 42.12, § 8 continues the require­
ment of a hearing, and § 3b adds a provision for retained 
or assigned counsel. Thus Texas would also move from 
group IV  to group VI. Minnesota and Hawaii have en­
acted statutes providing for assignment of counsel, al­
though the probation provisions have not been changed. 
See Appendix A. In other states the section numbers 
have been altered by recompilations, reenactments, etc. No 
attempt is made here to report changes in parole statutes 
listed by Sklar.



-22-

the following: Only three states authorize revocation with­
out a hearing (Iowa, Missouri, Oklahoma). Seven states 
and the District of Columbia, have statutes that do not 
indicate whether a hearing is required (Arizona, Arkan­
sas, California, Massachusetts, Nebraska, South Dakota, 
Utah), although as shown in the Appendix, court decisions 
in several of these states require that, a hearing be held. 
The statutes of seven states imply that a hearing is re­
quired, usually by a provision that the probationer is to 
be brought before the court (Alaska, Kentucky, Mississip­
pi, Nevada, Pennsylvania, Rhode Island, Virginia, Wash­
ington, Wisconsin, Wyoming). In most of these states 
the supreme courts have ruled that a hearing is to be 
held. This Court has so construed a similar provision in 
the federal statute. Escoe v. Zerbst, 295 U.S. 490 (1935). 
The statutes of all the remaining states expressly require 
hearings, although some statutes provide that the hearing 
may be summary or informal, or they have other special 
provisions about the hearing. The state court decisions 
are collected in an annotation in 29 A.L.B. 2d 1074-1140 
(1953) and Supplemental Service. Cf. Note, “ Legal As­
pects of Probation Revocation,”  59 Colum. L. Rev. 311 
(1959); Comment, “ Due Process and Revocation of Con­
ditional Liberty,”  12 Wayne L. Rev. 638 (1966).

The longer version of Sklar ’s study has much factual 
data based on answers to questionnaires sent to state pro­
bation offices or, in some instances, offices in the most 
populous counties of a state. The study reveals that it is 
a universal practice to have the probationer present and 
that virtually everywhere he is permitted to make a 
statement and present evidence by witnesses or otherwise. 
One may ask, how can he do this effectively without the



•23-

assistance of counsel? A  right to cross-examine witnesses 
produced by the state is also recognized in most jurisdic­
tions. And how valuable is this right without the aid of 
counsel? See Pointer v. Texas, 380 U.S. 400 (1965). In 
most states a written report is submitted to the court by 
the probation officer, and in some states the probationer 
is allowed to see a copy of it. But how effectively can the 
typical indigent defendant oppose such a report without 
the aid of a lawyer?

The National Legal Aid and Defender Association, as 
a part of its preparation for this case, circulated ques­
tionnaires among its defender members and among prose­
cutors and probation offices located in the same cities as 
the defender members. These were supplemented by 
questionnaires to probation offices in large cities not al­
ready included. Responses were received from 53 defender 
members located in 19 states; from 37 prosecutors in 15 
states; and from 50 probation offices in 23 states, in­
cluding several statewide probation offices.

Responses from the defender members and prosecu­
tors show that the state is regularly represented in pro­
bation violation proceedings in their local courts in 15 
states and the District o f Columbia, The states are Cal­
ifornia, Colorado, Connecticut, Florida, Illinois, Indiana, 
Minnesota, Missouri, Nevada, New York, Ohio, Pennsyl­
vania, Texas, Utah, and Wyoming. Respondents from 
offices in four states report that the state is sometimes 
represented (Arizona, California, New York, Ohio), while 
respondents from six states said the state is not repre­
sented. The fact that some states (Colorado, Kansas, 
Maryland, Missouri, Ohio, Pennsylvania) are listed more 
than once indicates a disparity in practice from one coun­



■24-

ty or judicial circuit to another. These returns, while not 
conclusive, are sufficient to show that in a significant 
number of jurisdictions the state regards the probation 
violation hearing as sufficiently important and complex to 
have its lawyer there either regularly or in some cases. In­
deed, this is just what occurred in the two cases before the 
Court. See the transcript in Mempa v. Ehau (M.P. 24-27), 
and in WalTding v. Bhay (W.R. 15-18).

We will not belabor the point that the defendant is 
at a serious disadvantage in a proceeding where the state 
has counsel but he has none, and where he has a right to 
a hearing but cannot have counsel to assist him. This 
point is thoroughly covered in Petitioners’ brief at pages 
22-25. We would, however, point out to the Court that 
this problem exists not only in Washington but in several 
other states as well. As shown in Appendix A, in ten 
states where there is no right to assigned counsel, the 
responses indicate that the state has counsel regularly or 
at least “ sometimes.”  The states where this one-sided 
arrangement prevails, at least in some counties, are Ari­
zona, California, Colorado, Florida, Indiana, Missouri, 
Nevada, Ohio, Utah, and Wyoming. It is probably safe 
to say that the same situation can be found in most if 
not all the other states where a right to assigned counsel 
is denied.

C. Expert opinion favors a right of assigned counsel for 
probation violation proceedings.

The overwhelming weight of informed expert opinion 
supports the position that assigned counsel should be pro­
vided for a probation violation proceeding. The recent 
report of the President’s Commission on Crime and the



Administration of Justice takes this position. The Com­
mission reported:

The criminal trial process is not the only one in 
which a person may be deprived of his liberty. The 
revocation of probation and parole presents an equal 
threat, and though the legal issues in such proceed­
ings are seldom complicated, the factual issues may 
be . . .  .

The Commission recommends:
Legal assistance should be provided in parole and 

probation revocation proceedings—The Challenge of 
Crime in a Free Society, A  Report by the President’s 
Commission on Law Enforcement and Administra­
tion of Justice, p. 150 (1967).

In its supporting task force report the Commission 
made the same point in greater detail:

Probation and parole revocation hearings may in­
volve both disputed issues of fact and difficult ques­
tions of judicial or administrative judgment. These 
hearings lack some of the evidentiary and other tech­
nical complexities of trials, but where the facts are 
disputed, the same process of investigating, mar­
shaling, and exhibiting facts is often demanded as at 
trial. A  lawyer for the defense is needed in these 
proceedings because of the range of facts which will 
support revocation, the breadth of discretion in the 
court or agency to refuse revocation even though a 
violation of the conditions of release is found, and 
the absence of other procedural safeguards which, 
surround the trial of guilt. Task Force Report: The 
Courts, Task Force on Administration of Justice, 
President’s Commission on Law Enforcement and 
Administration of Justice, p. 54 (1967).

The American Bar Association, on the recommendation 
o f its Standing Committee on Legal Aid and Indigent

— 25-



Defendants, Las approved the Minimum Standards for a 
Defender System as originally promulgated by the Na­
tional Legal Aid and Defender Association, See 91 A.B.A. 
Deports 116, 186, 189-90 (1966). The standards provide in 
part as follows:

Every defender system should:
1. Provide legal representation for every person 

who is without financial means to secure competent 
counsel when charged with a felony, misdemeanor, 
or other charge where there is a possibility of a jail 
sentence.

3. Provide representation immediately after the 
taking into custody or arrest, at the first and every 
subsequent court appearance and at every stage in 
the proceeding, including appeal or other post-con­
viction proceedings to remedy error or injustice. The 
representation should extend to parole and probation- 
violation proceedings, extradition, proceedings, and 
proceedings involving possible detention or commit­
ment of minors or alleged mentally ill persons.

8. Provide effectual notice of the available serv­
ices to all persons who may be in need thereof. [Em­
phasis added.]

The American Bar Association Project on Minimum 
Standards for Criminal Justice, under the general chair­
manship of Chief Judge J. Edward Lumbard of the Sec­
ond Circuit, has recently reported a tentative draft of 
Standards Relating to Providing Defense Services (Amer­
ican Bar Association, Chicago, 1967). The standards were 
developed by the Advisory Committee on the Prosecution 
and Defense Functions, headed by Judge Warren E. Bur­
ger of the District of Columbia Circuit. The recommended 
standard on collateral proceedings, at page 40, provides 
as follows:



-—27-

4.2 Collateral proceedings.
Counsel should be provided in all proceedings aris­

ing from the initiation of a criminal action against 
the accused, including extradition, mental competency, 
post-conviction and other proceedings which are ad­
versary in nature, regardless of the designation of 
the court in which they occur or classification of the 
proceedings as civil in nature.

The commentary following this standard, at page 43, 
indicates that the committee intended the standard to 
apply to any probation revocation proceeding that is 
adversary in nature.

The most useful way to view the scholarly writing and 
model legislation in this field is to line it up in chrono­
logical order. The first important study was the Attorney 
General’s Survey of Release Procedures, .Department of 
Justice, Washington, 1939, which included a 479-page re­
port on Probation (Volume II). Provisions for notice and 
hearing are discussed at pages 328-33, but scarcely any­
thing is said about a right to counsel, either retained or 
assigned. Wiehofen, writing in 1942, also directed his 
attention to the hearing, or the need for one. “ Revoking 
Probation, Parole or Pardon Without a Hearing,”  32 J. 
Crim. L., Grim, db Pol. Sci. 531. Two student notes pub­
lished in the 1950’s also concentrate on Due Process 
rights connected with the hearing, but they include the 
right to counsel. 28 So. Cal. L. Rev. 158 (1955); 59 Colum. 
L. Rev. 311 (1959). The Columbia note urges that a right 
to retained counsel be recognized, but hesitates as to the 
right of assigned counsel.

Also in this period the National Probation and Parole 
Association (now the National Council on Crime and De­



— 28—

linquency) published a revised edition of its Standard 
Probation and Parole Act in 1955. Section 17 of the Act 
requires that a hearing be held when a violation of pro­
bation is charged, although the hearing may be “ informal 
or summary.”

In 1962, the National Council on Crime and Delinquen­
cy published Standards and Guides for Adult Probation. 
This book says at page 55:

Every alleged violation need not result in a hearing 
by the judge. Many times the probation officer and 
judge in informal conversation can reach a decision 
without a hearing. The probationer should be in­
formed of the specific violation and should be al­
lowed representation by counsel at the hearing. The 
hearing should be informal.

The next pronouncement from the National Council on 
Crime and Delinquency was in a book written by its staff 
counsel and published in 1963:

Most of the rulings and probably the better prac­
tice require that the court conduct a hearing on the 
alleged violation, that the hearing be preceded by 
notice of the charge, that the probationer have a 
right to be represented by counsel and to rebut the 
charges, and that charges must be established by sub­
stantial evidence. . . Bubin, Criminal Correction 207 
(1963).

The manuscript having been prepared before the Gideon 
and related decisions, the author did not consider their 
implications. These three publications show a growing 
recognition of the importance of counsel. The Standard 
Act requires only that a hearing be held. The 1962 man­
ual says that counsel should be allowed if there is a 
hearing, and implies that a hearing should be held if



-29—

there is an issue of fact. The 1963 treatise says that the 
“ better practice”  requires a hearing with a right to be 
represented by counsel.

Sklar, writing in 1962, asserted that the principal ele­
ments of fairness in the hearing are reasonable notice, 
a right of cross examination, and a right to offer evidence. 
He recognized that counsel can be helpful but was then 
satisfied not to recommend any extension of the rights 
to retained and assigned counsel beyond the law as then 
established by rulings of this Court. Sklar, Revocation of 
Parole and Adult Probation 251-60, 266 (1962), available 
by interlibrary loan from Northwestern University School 
o f Law, Chicago; a shorter version is in 55 J. Crim. L., 
Crim. £  Pol. Sci. 175 (1964).

The American Law Institute’s Model Penal Code, Pro­
posed Official Draft, 1962, submitted a year before the 
Gideon and Douglas decisions, has the following provision:

Section 301.4. Notice and Hearing on Revocation 
or Modification of Conditions of Suspension or 
Probation

The Court shall not revoke a suspension or proba­
tion or increase the requirements imposed thereby on 
the defendant except after a hearing upon written 
notice to the defendant of the grounds on which such 
action is proposed. The defendant shall have the right 
to hear and controvert the evidence against him, to 
offer evidence in his defense and to be represented 
by counsel.

The provision indicates that the ALI recognized the im­
portance of the right to be represented by counsel at a 
probation violation hearing, although the language does 
not specifically provide for appointment o f counsel for a



-30-

defendant who is indigent. Thus the model provision is 
similar to the Alaska statute construed in State v. Hoff­
man, 404 P. 2d 644 (1967), as requiring appointment of 
counsel for an indigent defendant on equal-protection 
grounds.

Beginning with the article by Professor Kadish, “ The 
Advocate and the Expert— Counsel in the Peno-Correc­
tional Process,”  45 Minn. L. Rev. 803 (1961), a different 
theme is sounded. The importance of counsel, including 
assigned counsel, is recognized and advocated. See pas­
sage quoted in Petitioners’ brief at pages 23-24. Other 
recent publications follow the same theme. Kamisar & 
Choper, “ The Bight to Counsel in Minnesota,”  48 Minn. L. 
Rev. 1, 96 (1963); Kean, “ Due Process Applied to Hear­
ings for the Revocation of Juvenile Probation,”  16 Juv. 
Ct. Judges J. 178 (1966); Hink, “ Application of Constitu­
tional Standards of Protection to Probation,”  29 U. CM. 
L. Rev. 483, 494 (1962); Comment, 12 Wayne L. Rev. 638, 
650-54, 656 (author recognizes need for assigned counsel 
at least in any formal adversary proceeding). Even a 
chief federal probation officer in Philadelphia says:

With the recent decisions of the Supreme Court 
that a defendant be represented by counsel at every 
step of due process, it would seem that the proba­
tioner’s attorney should be present at the hearing. 
. . . DiCerbo, “ When Should Probation Be Revoked?”  
Federal Probation, June, 1966, pp. 11, 15.

This observation is quite significant because it indicates 
that even in the federal system, where the question of 
right to counsel has not been decided by this Court, a 
chief probation officer recommends that assigned counsel 
be provided.



— 31-

As a part of the American Bar Foundation survey of 
defense of indigent persons in 1963-64, judges and prose­
cutors in each state were asked whether they thought coun­
sel should he provided for indigent persons in probation 
revocation proceedings under an ideal system, also whether 
they thought it would be unfair if counsel were not pro­
vided. Responses showed that in 16 states a majority of 
both judges and prosecutors said that counsel should be 
provided; that in 10 additional states prosecutors alone 
took this position, and that in 3 states judges alone did so. 
1 Silverstein, Defense of the Poor 143-44 (1965); details 
for each state appear in the state reports, vols. 2 and 3.

As part of its preparation for these cases, N LADA, cir­
culated questionnaires to prosecutors located in the same 
cities as its defender members. The questionnaire in­
cluded these questions, quite similar to those asked by the 
American Bar Foundation:

Under an ideal system, assuming the state is rep­
resented by counsel, should an indigent defendant be 
provided with counsel at probation revocation pro­
ceedings ?

A. Felony (as defined above) revocation?
Yes......... No.........

B. Misdemeanor (as defined above) revocation?
Yes.........  No.........

Assuming the state is represented by counsel, is it 
unfair to an indigent defendant if he does not have 
counsel at:

A. Felony (as defined above) revocation?
Yes.........  No.........

B. Misdemeanor (as defined above) revocation?
Yes....... No.........



■32-

NLADA received responses from 37 prosecutors in 15 
states. Thirty-four answered the felony part of first ques­
tion “yes,”  two said “no,” and one said “ sometimes.”  Even 
on the misdemeanor part of the first question the vote 
was 26 to 11 in favor of providing counsel. On the second 
question, for felonies, 26 said “ yes,”  8 said “ no,”  and two 
said “ not necessarily.”  For misdemeanors the vote was 
21 “yes,” 13 “ no,” and 3 “not necessarily”  or “ depends 
on which judge is sitting.”

These responses to the American Bar Foundation and 
NLADA questionnaires seem especially persuasive since 
they are from people intimately involved in the criminal 
process—trial judges and prosecuting attorneys. I f  such 
a large number of prosecutors—fhe majority of prose­
cutors responding in 26 states in the Bar Foundation 
survey and a strong majority in the NLADA canvass— 
feel that counsel should be provided, the Court must give 
the matter careful consideration, for these are officials 
whose primary function is to represent the interest of 
the state.

III.

A  CONSTITUTIONAL REQUIREMENT OF ASSIGNMENT  
OF COUNSEL W OULD NOT UNDULY BURDEN THE  
STATES.

A. Counsel is already being assigned in approximately 
half the state trial courts in the United States.

As we have pointed out in part II A of our brief, 11 
states require appointment of counsel: Alaska, Hawaii, 
Illinois, Massachusetts, Minnesota, New Mexico, New York 
(part of the state), Oregon, Pennsylvania, Texas, and 
Wisconsin. Moreover, counsel is in fact being appointed



—33

to some extent in at least 24 other states, according to 
data gathered by Sklar in 1962, by the American Bar 
Foundation in 1963-64, and by ourselves in 1967, all as 
set forth in Appendix A. These states are Alabama, Ar­
kansas, California, Colorado, Florida, Georgia, Indiana, 
Iowa, Kansas, Kentucky, Louisiana, Maryland, Mississip­
pi, Nebraska, New Hampshire, New Jersey, North Caro­
lina, North Dakota, Oklahoma, Rhode Island, South Da­
kota, Utah, Virginia, and West Virginia. The 11 states in 
the first group, together with a significant number of 
counties in the states in the second group, comprise 
roughly half of the population of the United States, and 
probably more than half of the criminal prosecutions, since 
many urban states and counties are included.

Among defender offices representation in probation 
violation proceedings is quite common. The American Bar 
Foundation reported that most of the defenders inter­
viewed were handling such cases. 1 Silverstein, Defense 
of the Poor 143 (1965). Of 50 defender offices replying 
to the questionnaire we circulated in July, 1967, in con­
nection with these cases, 36 offices located in 14 states 
reported that they handle such cases, while 14 offices lo­
cated in 9 states said they do not, usually because under 
local practice no appointment is made. For example, in 
1966 the Philadelphia Defender Association reported 490 
cases. Other examples are Syracuse, 30; Fort Lauderdale, 
27; Chicago, 211; Brighton, Colorado, 36; Salt Lake City, 
25; San Francisco, 374; Santa Clara, 119 (1965 figure).

B. The total number of probation revocations is not large.
The President’s Commission on Law Enforcement and 

the Administration of Justice reported 144,000 persons



34—

•were placed on adult probation in 1965 in the state courts, 
and for that year the average daily population of persons 
on probation was 230,000. Task Force Report: Correc­
tions 202 (1967). Apparently these figures refer to felonies 
since a separate figure is given for misdemeanors.

Figures on the number and percentage of defendants 
placed on probation in representative counties can be 
found in the docket studies in the American Bar Founda­
tion state reports. 2 & 3 Silverstein, Defense of the Poor, 
passim (1965).

What proportion of the defendants on probation have it 
revoked? Figures for representative cities for the years 
1965 and 1966, as collected by the amicus from probation 
offices, are given in Appendix B. The first two columns 
list the number of defendants placed on probation; the 
last two show the number of revocations. Adding all the 
figures together, we find that for 1965 revocations were 
29% of the number of defendants placed on probation, 
and for 1966 the figure was 24%. The Attorney General’s 
study reported 19% revocations. Attorney General’s Sur­
vey of Release Procedures, vol. II, Probation, 335-42 
(1939). This study also reported total violations of about 
40% of those placed on probation. In the federal system 
18% of those on probation in 1965 were removed from 
probation because of a violation. Annual Report of Di­
rector of Administrative Office of United States Courts 
127 (1966). The National Council on Crime and Delin­
quency has informed us by letter that in North Carolina 
in 1965 the number of probation cases terminated by revo­
cation was 20% of the number received on probation, and 
for Connecticut the corresponding figure was less than



-35

10%. For Nevada and Utah the figure was also about 
10%, as reported to NLADA.

These statistics tend to show that the number of revo­
cations is roughly 20% of the number of cases placed 
on probation; the number of defendants charged with 
violations would be somewhat higher, of course, since 
some violations do not result in revocation. Using this 
figure of 20%, and the figure of 144,000 persons placed on 
probation, we find that the number of revocations for all 
state courts is about 29,000 per year, or even if the 20% 
ratio is applied to the total caseload of 230,000, the num­
ber of cases is no more than 46,000.

C. Counsel can be provided within existing systems of 
representation.

We have shown that counsel is already being provided 
in about half the state trial courts, and that in any event 
the number of cases is not large. Moreover, some defend­
ants can retain private counsel. To meet its present obli­
gations to provide representation to poor persons at the 
arraignment and trial stage of the prosecution, every trial 
court has either a defender system or an assigned counsel 
system. It would be a simple matter to extend this sys­
tem to probation revocation proceedings. The same law­
yer originally assigned could simply be called back to 
court for this later stage of the case. He would already 
know the defendant and have a file on the ease. Since 
the proceeding usually takes only a short time, the burden 
on the lawyer should be minimal.



— 36

D. Providing counsel would not interfere with probation 
administration.

It is sometimes argued that the probation system, would 
suffer if burdened with a system of hearings with attor­
neys present. The answer to this contention is found in 
the very large number of probation systems now op­
erating with the presence of retained counsel or assigned 
counsel or both. Moreover, the National Council on Crime 
and Delinquency’s authoritative handbook, Standards and 
Guides for Adult Probation (1962) does not even men­
tion this as a possible problem, nor is it readily found in 
other recent literature on probation.

IV.

FOR CONSTITUTIONAL PURPOSES PROBATION SHOULD 
BE CHARACTERIZED AS A  FORM OF LIBERTY AND NOT 
A MERE PRIVILEGE OR FAVOR.

The terms “ privilege,” “ favor,”  or “ grace” properly 
refer to a sentencing court’s discretion in granting pro­
bation to a. convicted defendant, but not to the status of 
probation itself. It is submitted, however, that these 
labels do not permit a court unbridled power to revoke 
probation once it has been granted. Nor, indeed, is it 
necessary to characterize probation as a privilege. The 
Illinois Appellate Court put it this way:

Our courts have never taken the view that it is a 
mere matter of favor or grace to admit a defendant 
to probation. When an order to that effect is en­
tered by a court, the court has satisfied itself that 
the defendant is not likely to again engage in an of­
fensive or criminal course of conduct and that the 
public good does not require that the defendant shall 
suffer the penalty provided by law. * * * The fact



-3 7 -

tliat a person has been adjudged guilty of a criminal 
offense and subsequently granted probation should 
not deprive him of a fair, orderly hearing according 
to accepted judicial principles and recognized stand­
ards of procedure when it is sought to terminate that 
order. When an order granting probation has been 
entered and the court has imposed the conditions 
upon which defendant may be at liberty, the defend­
ant has a right to rely thereon and as long as he com­
plies with those conditions his liberty of action or 
freedom should not be restricted. # * * People v. 
Price, 24 111. App. 2d 364, 377, 164 N.E. 2d 528, 534 
(1960).

We submit that this characterization of probation is 
today more accurate than the dictum in Escoe v. Zerbst, 
295 U.S. 490, 492 (1935): “ Probation or suspension of 
sentence comes as an act of grace to one convicted of a 
crime. * * *” This dictum has been widely quoted in the 
state courts as a justification for denying a right of as­
signed counsel and other Due Process rights.

Even if probation is characterized as a privilege or 
act of grace, it is entitled to considerable protection. This 
Court and other courts have extended protection to other 
“ privileges”  that do not involve a person’s liberty, e.g. 
the right to practice law7 cannot be denied without a fair 
hearing that establishes reasonable cause. Schware v. 
Board of Bar Examiners, 353 U.S. 232 (1957); Konigsberg 
v. State Bar of California, 353 U.S. 252 (1957). Further­
more, once the right to practice has been granted, revoca­
tion of the right raises entirely different and more sub­
stantial problems than are involved in determining wheth­
er the privilege should be granted initially. See Massen- 
gale v. United States, 278 F. 2d 344 (6th Cir. 1960). 
Public employment is also generally categorized as a



— 38—

“ privilege” and not a “ right,” but it too is a privilege 
that cannot he arbitrarily revoked. Greene v. McElroy, 
360 U.S. 474 (1959). The receipt of Social Security bene­
fits, doing business with the government, and obtaining 
a radio operator’s license have all been characterized as 
privileges, not rights, yet they cannot be denied without a 
fair procedure. Flemming v. Nestor, 363 U.S. 603, 611 
(1960); Copper Plumbing & Heating Company v. Camp­
bell, 290 F. 2d 368 (D.C. Cir. 1961). See also Slochower v. 
Board of Education, 350 U.S. 551 (1956).

It is submitted there is no distinction between “ rights” 
and “ privileges”  that would compel absolute protection 
for the former yet justify arbitrary invasion and denial 
of the latter. There are simply different degrees of pro­
tection.

To break out of the right-privilege circle, it would 
be more useful to speak of a single category of “ bene­
fits” . This category runs the gamut from the most 
securely protected activities sanctioned or underwrit­
ten by government (such as the practice of the basic 
professions under government license), to the most 
ephemeral government gratuities (bonus payments or 
rewards for valor, for example). Thus no distinction 
need be drawn at any arbitrary point between ‘rights’ 
and ‘privileges’ ; it need only be recognized that in 
terms of the interests both of the donor and of the 
recipient, some forms of government benefits are 
more valuable than others, and should be more fully 
safeguarded. But the withdrawal or conditioning of 
all types of benefits should be analysed according to 
the same constitutional principles. O’Neil, “ Uncon­
stitutional Conditions: Welfare Benefits With Strings 
Attached,” 54 Calif. L. Rev. 443, 445-46 (1966).

What form of “benefit,” “ privilege,” or “grace”  is more 
valuable to an individual probationer than his liberty and



— 39-

freedom from incarceration? And Ms rigM to return to 
his community, his family and his job, albeit it subject 
to certain conditional restrictions? The label of “ privi­
lege,”  “ favor,”  or “ grace” should not be used to deprive 
a defendant of these vitally important benefits without 
full procedural safeguards consistent with our concepts of 
basic fairness, including the right to counsel. To do so 
relegates such proceedings to a status having less con­
stitutional and procedural protection than the right to prac­
tice law, obtain public employment, or Social Security, 
or other economic “benefits” referred to above. This, we 
submit, is intolerable in a proceeding so vital to the lib­
erty and other interests of a defendant, as well as the 
interests of our society in rehabilitation and not punish­
ment.

CONCLUSION.

For the reasons stated we respectfully submit that the 
judgments of the Supreme Court of Aemma, in these two 
cases should be reversed, and that the cases should be 
remanded with directions to issue the writs of habeas 
corpus and for further proceedings in accordance with 
the opinion of the Court.

Eespectfully submitted,
/ S /  LEE SlLVERSTEIN,

/ s /  P atrick J. H ughes, J r.,
1155 East 60th Street,
CMcago, Illinois 60637,

Attorneys for Amicus Curiae 
National L egal A id and 
D efender A ssociation.

August 23, 1967



—la-

APPENDIX A

RIGHT TO RETAINED AND ASSIGNED COUNSEL 
IN PROBATION VIOLATION PROCEEDINGS 

IN THE STATE COURTS!*)

Alabama

Retained counsel: right recognized. Source: state proba­
tion office, Birmingham (1967).

Assigned counsel: not appointed except in Mobile County. 
Sources: probation office, Birmingham (1967); 2 Silver- 
stein, Defense of the Poor 3 (1965).

(*) Some of the information in this Appendix was col­
lected from questionnaires sent by the National Legal Aid 
and Defender Association to defender members and pro­
bation offices in July, 1967. The responses are indicated 
in the Appendix by naming the office and its location.

References to Sklar, e.g., under Arizona, are to a mas­
ter’s thesis, Revocation of Parole and Adult Probation 
(1962), available by inter library loan from Northwestern 
University School of Law, 357 E. Chicago Ave., Chicago, 
111. 60611. He obtained his information from the state 
probation and parole offices, or, in some instances, the 
probation office in the most populous county.

References to the American Bar Foundation field re­
ports are to the original data gathered by official report­
ers in each state in a total of 300 sample counties. Re­
search procedure is described in 1 Silverstein, Defense 
of the Poor 171-81 (1965); the sample counties are listed 
at pp. 155-69. Data in this Appendix are from Form I, 
question 8d, as reprinted at p. 191. Further information 
about the survey can be obtained from the American Bar 
Foundation, 1155 E. 60th St., Chicago, 111. 60637.



-2a—

Alaska

Retained counsel: right recognized. Source: Statutes 
§ 12.55.110.

Assigned counsel: right recognized. Source: State v. 
Hoffman, 404 P.2d 644 (1967).

Arizona

Retained counsel: right recognized. Sources: State v. 
Maxwell, 97 Ariz. 162, 398 P.2d 548 (1965) (facts illus­
trate use of retained counsel); Sklar, p. 161 (1962) (Mari­
copa County [Phoenix]).

Assigned counsel: right not recognized. Source: Amer­
ican Bar Foundation field reports (1963).

Arkansas

Retained counsel: right recognized. Sources: Gerard 
v. State, 235 Ark. 1015, 363 S.W.2d 916 (1963) (facts illus­
trate use of retained counsel); Sklar, p. 161 (1962).

Assigned counsel: appointed in some counties but not 
in others. Sources: American Bar Foundation field re­
ports (1963); Sldar, p. 161 (1962).

California

Retained counsel: right depends on whether judge holds 
a hearing; practice varies with different judges and dif­
ferent counties. Source: various public defenders and 
probation offices in the state (1967).

Assigned counsel: right apparently recognized in some 
courts and not others; practice varies with different judges

(Appendix A)



3a-

and different counties. See In Re Davis, 37 Cal. 2d 872, 
236 P.2d 579 (1951). Source: various public defenders and 
probation offices in the state (1967).

Colorado

Retained counsel: right recognized, at least in some 
counties. Source: public defender, Brighton (1967).

Assigned counsel: recognition of right varies according 
to practice of different judges and in different counties. 
Source: American Bar Foundation field reports (1963).

Connecticut

Retained counsel: right recognized. Sources: probation 
office, Hartford; various public defenders (1967).

Assigned counsel: right recognized. Sources: probation 
office, Hartford, and various public defenders (1967); 
American Bar Foundation field reports (1963).

Delaware

Retained counsel: right recognized. Source: Sklar, p. 
167 (1962) (New Castle County [Wilmington]).

Assigned counsel: right recognized, at least in some 
cases. Sources: Report of Public Defender (1966); Sklar, 
p. 157 (1962).

District of Columbia

Retained counsel: right recognized. Source: Legal Aid 
Agency, Washington (1967).

Assigned counsel: right recognized, but counsel not 
always appointed. Source: Legal Aid Agency (1967).

(Appendix A)



— 4a—

Florida

Retained counsel: right recognized. Source: Stats. Ann. 
§ 948.06.

Assigned counsel: right not recognized except in a few 
counties. Sources: Thomas v. State, 163 So.2d 328 (Ct. 
App. 3d Dist. 1964); Phillips v. State, 165 So.2d 246 (Ct. 
App. 2d Dist. 1964); various public defenders (1967); 
American Bar Foundation field reports (1963).

Georgia

Retained counsel: right recognized. Source: Code § 
27-2713.

Assigned counsel: appointed in some counties, hut not 
in others; in Atlanta (Fulton County) counsel is appointed 
on request. Sources: probation offices, Atlanta and Sa­
vannah (1967); Legal Aid and Defender Society, Athens 
(1967); American Bar Foundation field reports (1963).

Hawaii

Retained counsel: right recognized. Source: probation 
office, Honolulu (1967).

Assigned counsel: right recognized. Sources: Rev. Laws 
§ 253-5, as amended in 1967 by Act 179; American Bar 
Foundation field report showed appointments being made 
in 1964.

Idaho

Retained counsel: right apparently denied, although in 
practice retained counsel may be permitted. Source: Frank­

‘Appendix A )



— 5a-—

lin v. State, 87 Idaho 291, 392 P.2d 552 (1964). Cf. State 
v. Edelblute, 424 P.2d 739 (1967) (facts illustrate use of 
retained counsel).

Assigned counsel: right not recognized. Source: Frank­
lin v. State, supra.

(Appendix A)

Illinois

Eetained counsel: right recognized. Source: People v. 
Price, 24 111. App. 2d 364, 377, 164 N.E.2d 523, 534 (1960).

Assigned counsel: right recognized. Sources: People v. 
Price, supra; various public defenders in the state (1967); 
American Bar Foundation field reports (1963).

Indiana

Retained counsel: right recognized. Source: Rev. Stats. 
(Burns § 9-2211, as amended 1967, ch. 204 of Acts.

Assigned counsel: recognition of right varies with dif­
ferent judges and in different counties. Sources: public 
defenders in two counties (1967); 2 Silver stein, Defense 
of the Poor 218-19 (1965).

Iowa

Retained counsel: recognition of right apparently varies 
depending on whether judge holds a hearing. Source: see 
Curtis v. Bermett, 256 Iowa 1164, 131 N.W.2d 1 (1964), 
cert, denied, 380 U,S. 958 (1965).

Assigned counsel: practice varies in different counties, 
but right is generally not recognized. Source: American 
Bar Foundation field reports (1963).



-6a-

Kansas

Retained counsel: right is probably recognized. Source: 
see State v, Nelson, 196 Kan. 592, 412 P.2d 1018 (1966).

Assigned counsel: practice varies in different counties 
as to appointment. Source: American Bar Foundation field 
reports (1963).

Kentucky

Retained counsel: right recognized. Sources: Sklar, p. 
168 (1962); see Wright v. Commonwealth, 391 S.W.2d 685 
(1965).

Assigned counsel: right recognized in Louisville (Jef­
ferson County) hut not in other counties. Sources: Jeffer­
son Circuit Clerk (1967); American Bar Foundation field 
reports (1963).

Louisiana

Retained counsel: right recognized. Source: Sklar, p. 
182 (1962).

Assigned counsel: not appointed except sometimes in 
New Orleans (Orleans Parish) and on request in other 
parishes. Sources: American Bar Foundation field reports 
(1964); Sklar, p. 182 (1962).

Maine

Retained counsel: right recognized. Source: Sklar, p. 
174 (1962) (Cumberland County [Portland]). Rev. Stats., 
ch. 27-A, § 8 requires a hearing.

Assigned counsel: right not recognized. Source: Amer­
ican Bar Foundation field reports (1963).

(Appendix A)



— 7 a-

Maryland

Retained counsel: right recognized. Source: Edwardsen 
v. State, 220 Md. 82, 151 A.2d 132, 136 (1959).

Assigned counsel: right denied, hut counsel are usually 
assigned in Baltimore City. Sources: Edwardsen v. State, 
supra; Baltimore City probation office (1967).

Massachusetts

Retained counsel: right recognized. Source: may be in­
ferred from Williams v. Commonwealth, 350 Mass. 732, 
216 N.E.2d 779 (1966).

Assigned counsel: right recognized. Source: Supreme 
Judicial Court Rule 10, as construed in Williams v. Com­
monwealth, supra.

(Appendix A)

Michigan

Retained counsel: right recognized. Sources: Re McLeod, 
348 Mich. 434, 83 N.W.2d 340 (1957) (facts illustrate use 
of retained counsel); People v. Wood, 2 Mich. App. 342, 
139 N.W.2d 895 (1966).

Assigned counsel: right denied. Source: People v. Wood, 
supra.

Minnesota

Retained counsel: right recognized. Source: Stats. §
609.14, subd. 2.

Assigned counsel: right recognized. Source: Stats. §
611.14, subd. (c).



— 8a—

Mississippi

Retained counsel: right recognized. Source: Sklar, p. 
168 (1962). Code Ann. § 4004-25 requires that defendant 
be brought before the court, which implies a right of 
hearing.

Assigned counsel: right not recognized, except in Pas­
cagoula (Jackson County) and possibly a few other coun­
ties. Sources: public defender, Pascagoula (1967); Amer­
ican Bar Foundation field reports (1963); Sklar, p. 168 
(1962).

Missouri

Retained counsel: right not recognized, since there is no 
right to a hearing. Source: State v. Small, 382 S.W. 2d 379 
(1965).

Assigned counsel: right not recognized. Source: State 
v. Small, supra.

Montana

Retained counsel: right uncertain. Rev. Code § 94-9831 
provides that hearing may he informal or summary.

Assigned counsel: right not recognized. Sources: Elison, 
“ Assigned Counsel in Montana,’ ' 26 Mont. L. Rev. 1, 17-18 
(1964); American Bar Foundation field reports (1963).

Nebraska

Retained counsel: right probably recognized. Phoenix 
v. State, 162 Neb. 669, 77 N.W.2d 237 (1956) requires a 
fair hearing.

(Appendix A)



■9a—

Assigned counsel: appointed in some counties but not in 
others. Source: American Bar Foundation field reports 
(1963).

Nevada

Retained counsel: right recognized. Sources: Sklar, p. 
169 (1963); Las Vegas public defender (1967).

Assigned counsel: right denied. Source: Shwn v. Fogli- 
ani, 413 P.2d 495 (1966). But Las Vegas public defender 
reports that he appears at hearings on violations.

New Hampshire

Retained counsel: right recognized. Source: Sklar, p. 
183. Rev. Stats. Ann. §504:4 provides for summary hear­
ing.

Assigned counsel: right not recognized, unless requested. 
Source: American Bar Foundation field reports (1963); 
Sklar, p. 183 (1962) (unqualified “no” ).

New Jersey

Retained counsel: right recognized. Source: State v. 
Moretti, 50 N.J. Super. 223, 141 A..2d 810 (1958) (facts 
illustrate use of retained counsel).

Assigned counsel: appointed in some counties but not 
in others, or only on request. Source: American Bar 
Foundation field reports (1963).

New Mexico

Retained counsel: right recognized. Sources: Sklar, p. 
163 (1962) (1st D ist.); Blea v. Cox, 75 N.M. 265, 403 P.2d 
201 (1965).

(Appendix A )



— 10a—

(Appendix A )

Assigned counsel: right recognized. Source: Blea v. Cox,
supra.

New York

Retained counsel: right recognized in some parts of the 
state, including New York City and 4th Appellate Depart­
ment. Sources: various defender, legal aid, and probation 
offices in the state (1967); Sklar, p. 175 (1962). Code 
Crim. Pro. § 935 requires a hearing.

Assigned counsel: right recognized by decision in 4th 
Appellate Department and practice in New York City and 
some other counties. Old decision in 3d Department is 
contra. Sources: various defender, legal aid, and probation 
offices (1967); People v. Hamilton, 26 A.D. 2d 134, 271 
N.Y.S. 2d 694 (4th Dept, 1966); People v. St. Louis, 3 A.D. 
2d 883, 161 N.Y.'S. 2d 170 (3d Dept. 1957); American Bar 
Foundation field reports (1963); Note, 59 Colum. L. Rev. 
311, 329 (1959).

North Carolina

Retained counsel: right recognized. Source: Sklar, p. 
176 (1962). See State v. Haddock, 241 N.C. 182, 82 S.E.2d 
548 (1954) (hearing required).

Assigned counsel: appointed in some counties, but not 
in others. Source: American Bar Foundation field reports 
(1963).

North Dakota

Retained counsel: right probably recognized. Source: 
American Bar Foundation field reports (1963).

Assigned counsel: right recognized. Source: American 
Bar Foundation field reports (1963).



— 11a—

(Appendix A )

Ohio

Retained counsel: right recognized. Source: Thomas v. 
Maxwell, 175 Ohio St, 233, 193 N.E.2d 150, 152 (1963).

Assigned counsel: right denied. Source: Thomas v. Max­
well, supra. However, Toledo Legal Aid Society reports 
feeing appointed in some cases.

Oklahoma

Retained counsel: right recognized. Sources: probation 
office, Tulsa (1967); Sklar, p. 158 (1962) (Tulsa and Okla­
homa Counties).

Assigned counsel: appointed in some counties but not 
in others. Source: American Bar Foundation field reports 
(1963). Cf. Ex Parte Boyd, 73 Okla. Crim. 441, 122 P.2d 
162 (1942), syllabus point 6 (not discussed in opinion).

Oregon

Retained counsel: right recognized. Source: Gebhart v. 
Gladden, 243 Ore. 145, 412 P.2d 29 (1966); Perry v. Wil- 
liard, 427 P.2d 1020 (1967).

Assigned counsel: right recognized. Gebhart v. Gladden, 
Perry v. Williard, supra.

Pennsylvania

Retained counsel: right recognized only if the practice 
of the local judge is to hold a hearing. Hearings are held 
in Philadelphia and other populous counties. Stats. Ann., 
tit. 19, § 1084 does not require a hearing. Source: de­
fender offices in several counties of the state (1967).



-12a—

Assigned counsel: right recognized if a hearing is held. 
Source: Com. ex rel. Remeries v. Maroney, 415 Pa. 534, 
204 A.2d 450 (1964).

(Appendix A)

Rhode Island

Retained counsel: right recognized. Sources: Harris v. 
Langlois, 202 A.2d 288 (1964), cert, denied, 379 U.S. 866 
(1965) (facts illustrate use of retained counsel); Sklar, 
p. 169 (1962).

Assigned counsel: right recognized. Source: 3 Silver- 
stein, Defense of the Poor 657 (1965).

South Carolina

Retained counsel: right recognized. Source: State v. 
Clough, 220 S.C. 390, 68 S.E.2d 329 (1951) (facts illus­
trate use of retained counsel; fair hearing required).

Assigned counsel: right not recognized. Source: Amer­
ican Bar Foundation field reports (1963).

South Dakota

Retained counsel: right uncertain. Sources: Sklar, p. 164 
says “no”  (1962); cf. Application of Jerrel, 77 S.D. 487, 
93 N.W.2d 614 (1958) (fair hearing required).

Assigned counsel: appointed in some counties but not in 
others. Source: American Bar Foundation field reports 
(1963).

Tennessee

Retained counsel: right recognized. Source: Code § 
40-2907.



13a-

Assigned counsel: right not recognized. Source: Amer­
ican Bar Foundation field reports (1963).

Texas

Retained counsel: right recognized. Sources: Code of 
Crim. Pro. art. 42.12, § 3b; probation office, Dallas (1967); 
defender offices, Houston, Edinburg (1967).

Assigned counsel: right recognized. Source: Code of 
Crim. Pro. art. 42.12, § 3b, at least when probation is 
recommended by a jury and probably in all cases.

Utah

Retained counsel: right recognized. Source: defender 
office, Salt Lake City (1967).

Assigned counsel: appointed by some judges but not 
others. Source: Mazor, “ The Right to be Provided Coun­
sel,” 9 Utah L. Rev. 50, 74 (1964).

Vermont

Retained counsel: right recognized. Source: Sklar, p. 
184 (1962). Stats. Ann., tit. 28, § 1015 provides that judge 
“may inquire summarily.”

Assigned counsel: right not recognized. Source: Amer­
ican Bar Foundation field reports (1964); Sklar, p. 184 
(1962).

Virginia

Retained counsel: right probably recognized. Source: 
Griffin v. Cwmingham, 205 Va. 349, 136 S.E.2d 840 (1964) 
(fair hearing required).

(Appendix A )



(Appendix A )

Assigned counsel: appointed in some cities and counties, 
but not in others. Source: American Bar Foundation field 
reports (1963).

— 14a—

West Virginia

Retained counsel: right uncertain. Code § 62-12-10 pro­
vides for summary hearing. Local practice apparently per­
mits counsel in at least some counties. Source: SHar, pp. 
1, 184 (1962) (Kanawha County [Charleston]).

Assigned counsel: appointed in some counties, but not in 
others. Source: American Bar Foundation field reports 
(1963).

Wisconsin

Retained counsel: right recognized. Source: Smith v. 
State, 33 Wis.2d 695, 148 N.W.2d 39 (1967).

Assigned counsel: right recognized. Source: Smith v. 
State, supra.

Wyoming

Retained counsel: right recognized. Source: Defender 
Aid Program, University of Wyoming (1967).

Assigned counsel: right not recognized. Sources: De­
fender Aid Program, University of Wyoming (1967); 
American Bar Foundation field reports (1963).



-15a-

APPENDIX B

PROBATION AND REVOCATION  
IN SELECTED CITIES (*)

New Probation Cases Revocations
City 1965 1966 1965 1966

Atlanta 1,245 1,292 240 334
Baltimore 972 764 153 173
Boulder, Colo. 96 116 9 16
Cleveland 733 699 135 88
Columbus 239 79
Crown Pt., Ind. 663 572 33 21
Dallas 957 1,220 135 119
Denver, Colo. 133 133 8 6
Edinburg, Texas 28 54 6 4
Gainesville, Fla. 93 73 2 2
Hartford 2,153 2,120 646 320
Houston, Texas 679 729 121 111
Honolulu 249 231 24 33
Joliet, 111. 25 30 3 4
Kansas City, Kan. 57 44 2 1
Kansas City, Mo. 15 4 4 13
Los Angeles 5,862 5,653 2,607 4,027
Martinez, Cal. 292 339 74 58
Mayville, N. Y. 120 101 10 13

(*) Source: Information from local probation offices 
sent to National Legal Aid and Defender Association in 
1967. The city usually includes cases for the surrounding 
county.



16a—

(Appendix B)
New Probation Cases Revocations

City 1965 1966 1965 1966

Mineola, N. Y. 755 693 27 18
New London 36 46 25 9
New Haven 101 106 8 11
Oakland 878 762 256 268
Philadelphia 3,691 4,233 350 249
Sacramento 309 310 129 123
St. Lords City 1,404 693 85 139
St. Louis County 199 216 58 64
St. Paul 92 74 12 21
San Diego 880 1,041 262 248
Santa Ana, Cal. 523 540 214 196
Santa Clara, Cal. 419 450 81 123
Savannah 68 87 4 6
Scranton 58 37 50
Syracuse 14 18 2 3
Tulsa 65 40 22 33
Utica, N. Y. 84 52 8 1
Visalia, Cal. 163 145 27 19
Williamsport, Pa. 20 40 2 3

Total 24,364 23,747 5,913 6,877