Due Process Requirements Under Morrissey v. Brewer
Parole revocation in Georgia, governed by O.C.G.A. Sections 42-9-42 through 42-9-51, must comply with the due process requirements established by the U.S. Supreme Court in Morrissey v. Brewer, 408 U.S. 471 (1972). Morrissey requires a two-stage revocation process: a preliminary hearing promptly after arrest to determine whether probable cause exists to believe a violation occurred, followed by a final revocation hearing before the Board or its designee. At both stages, the parolee is entitled to written notice of the alleged violations, disclosure of the evidence against the parolee, the opportunity to be heard in person and present evidence including witnesses and documentary evidence, the right to confront and cross-examine adverse witnesses unless the hearing body specifically finds good cause for limiting confrontation, and a written statement of the evidence relied upon and the reasons for the revocation decision.
Preliminary Hearing and Probable Cause
The preliminary hearing is conducted promptly after the parolee’s arrest on a parole violation warrant. A hearing officer designated by the Board determines whether there is probable cause to believe that the parolee violated one or more conditions of parole. The probable cause standard at the preliminary hearing requires only a reasonable basis for believing a violation occurred, a lower threshold than the preponderance standard at the final hearing. If probable cause is not found, the parolee must be released from the violation hold and returned to parole supervision. If probable cause is found, the parolee may be held in custody pending the final revocation hearing, though the parolee may request bond consideration.
Final Revocation Hearing
The final revocation hearing is conducted by the Board of Pardons and Paroles or a designated hearing examiner. ThHere, the state presents evidence of the alleged violations through testimony from the parole officer, law enforcement witnesses, and documentary evidence. The parolee has the opportunity to respond by presenting testimony, calling witnesses, and introducing evidence. The standard of proof is preponderance of the evidence. If the Board finds that a violation occurred, it determines the appropriate response, which may range from modification of parole conditions, to imposition of a period of incarceration with subsequent re-release, to full revocation and return to prison for the remainder of the sentence.
Right to Counsel at Revocation
Parolees facing revocation have a conditional right to counsel. Under Gagnon v. Scarpelli, 411 U.S. 778 (1973), the due process right to counsel at revocation proceedings is determined on a case-by-case basis, considering the complexity of the issues, the parolee’s ability to present the defense, and whether the parolee makes a timely claim of innocence or presents substantial reasons in justification or mitigation that are complex or otherwise difficult to develop. Georgia provides counsel to indigent parolees in many revocation cases. Your attorney can be involved from the preliminary hearing stage and should investigate the alleged violations, interview witnesses, obtain relevant records, prepare mitigation evidence, and develop a comprehensive defense strategy.
New Criminal Conduct and Dual Proceedings
A new arrest or conviction is the most common basis for parole revocation. The Board may revoke parole based on new criminal conduct even before the new charges are resolved in court, because the revocation standard is preponderance of the evidence while the criminal standard is proof beyond a reasonable doubt. Acquittal on the new charges does not preclude revocation when the Board finds by a preponderance that the criminal conduct occurred. Your lawyer needs to coordinate strategy across both the new criminal case and the revocation proceeding, recognizing that testimony or admissions at the revocation hearing may affect the pending criminal case.
Consequences of Revocation and Credit
Upon revocation, the parolee returns to prison to serve the remainder of the original sentence. ThA parolee receives credit for time served in prison before parole release and for time served in custody on the parole violation warrant. The Board has discretion regarding how much time served on parole to credit against the remaining sentence. The parolee may become eligible for parole consideration again after serving additional time, depending on the nature of the violation and the Board’s policies. At this stage, the focus shifts to calculate the client’s remaining sentence exposure, including credit for time served, before advising on revocation hearing strategy.
Defending Against Parole Revocation
Your defense attorney should challenge the factual basis of the alleged violations by cross-examining witnesses, presenting contradictory evidence, and highlighting weaknesses in the state’s proof; present evidence of compliance with other parole conditions to demonstrate overall commitment to supervision; argue mitigating circumstances that explain the violation; propose alternative sanctions such as modified conditions, increased supervision, or substance abuse treatment; and present evidence supporting continued parole supervision rather than revocation, including the parolee’s employment, family ties, treatment progress, and community support.