October 19, 1978

Mr. Edmund J. Baer 
Office of Correctional Services 
Joe Foss Building 
Pierre, South Dakota 57501

Official Opinion No. 78-43

Certain aspects of parole revocation proceedings

Dear Mr. Baer:

You have requested an official opinion based on the following questions:

QUESTION: 

1.  When a preliminary hearing is held on a parole revocation for an indigent parolee, is the Office of Correctional Services obligated to pay for counsel for the indigent parolee?  If so, can the cost of counsel be charged to the county that committed the parolee to the penitentiary? 
    
2.  During a Preliminary Revocation Hearing on a parolee, our Hearing Officers administer oaths to the witnesses who appear.  Do our Hearing Officers have this right?  If not, what remedy do you suggest? 
    
3.  Does a parolee have a right to post bond if he is held by Detainer lodged by another jurisdiction?

IN RE QUESTION NO. 1:

An indigent parolee is not automatically entitled to have counsel appointed to assist him in a parole revocation proceeding. Recent United States Supreme Court decisions have defined the rights to which a parolee is entitled in a parole revocation.  Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484; Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656.

Because one who has been convicted of a crime and is a parolee has a more limited due process right than the right of an accused to counsel in a criminal prosecution, it is not always necessary for the state to provide counsel for indigents in all probation or parole revocation cases.

In hearings involving the revocation of parole, the decision as to an indigent's need for appointed counsel must be made on a case-by-case basis in the exercise of sound discretion by the state authority charged with the responsibility for administering the probation and parole system.  The United States Supreme Court cases indicated that counsel should be provided where, after being informed of his right to request counsel, the parolee makes such a request based on a colorable claim: 
    
1.  That he has not committed the alleged violations of the conditions upon which he is at liberty; or 
    
2.  That, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present.

Counsel is required at “deferred sentencing” revocation proceedings in all cases.  Mempa v. Rhay, 389 U.S. 128, 19 L.Ed.2d 336, 88 S.Ct. 254.

Therefore, the answer to your first question is that you are not obligated in every instance to provide counsel for an indigent parolee.  Our statutes provide, however, that when counsel is provided, the costs shall be paid by the county in which such action is brought (SDCL 23-2-2).

IN RE QUESTION NO. 2:

Secondly, you asked whether, during a preliminary revocation hearing, your hearing officers have the right to administer oaths to witnesses.

Under SDCL 1-26-19.1, each agency and the officers thereof charged with the duty to administer the laws of this state and the rules of the agency shall have the power to administer oaths. Therefore, during a preliminary revocation hearing, your hearing officers have the power to administer oaths to witnesses.

IN RE QUESTION NO. 3:

Thirdly, you asked whether a parolee has the right to post bond if he is held on a detainer lodged by another jurisdiction.  South Dakota, in cooperation with several states, has enacted a uniform law regarding detainers called the Interstate Agreement on Detainers (SDCL 23-24A).  These laws set out cooperative procedures to be used in the expeditious and orderly disposition of detainers based on untried indictments, informations and complaints from other jurisdictions.

Nowhere in the Uniform Interstate Agreement on Detainers Act is a parolee's right to bail mentioned, nor does the South Dakota Constitution grant a parolee the right to bail.  There has not been any case directly on point decided by the South Dakota Supreme Court.

All jurisdictions basically agree that there is no “per se” constitutional right to bail for a parolee under the federal Constitution. The justification for not allowing bail to a parolee while an accused person would automatically receive it, is that a person at large on parole has already been convicted of a crime and therefore remains in constructive custody to some degree. United States ex rel. Napoli v. State of New York, 379 F. Supp. 603.

However, some jurisdictions allow bail within the discretion of the trial court when the termination of parole may inflict a grievous loss upon the parolee, People ex rel. Tucker v. Kostos, 356 N.E.2d 798; or when the detainer lodged against a parolee is one of no apparent merit, United States ex rel. Napoli v. State of New York, supra.

Therefore, the answer to your question based on case law from various jurisdictions is that a parolee does not have a “per se” constitutional right to bail under either the federal or state constitutions.

Respectfully submitted,

William J. Janklow
Attorney General

WJJ:LS:in