Annotation 17 - Fourteenth Amendment

Rights of Prisoners .--Until relatively recently the view prevailed that a prisoner ''has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is for the time being the slave of the state.'' 139 This view is not now the law, and may never have been wholly correct. 140 In 1948 the Court declared that ''[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights''; 141 ''many,'' indicated less than ''all,'' and it was clear that the due process and equal protection clauses to some extent do apply to prisoners. 142 More direct acknowledgment of constitutional protection came in 1972: ''[f]ederal courts sit not to supervise prisons but to enforce the constitutional rights of all 'persons,' which include prisoners. We are not unmindful that prison officials must be accorded latitude in the administration of prison affairs, and that prisoners necessarily are subject to appropriate rules and regulations. But persons in prison, like other individuals, have the right to petition the Government for redress of grievances. . . .'' 143 However, while the Court affirmed that federal courts have the responsibility to scrutinize prison practices alleged to violate the Constitution, at the same time concerns of federalism and of judicial restraint caused the Court to emphasize the necessity of deference to the judgments of prison officials and others with responsibility for administering such systems. 144  

Save for challenges to conditions of confinement of pretrial detainees, 145 the Court has generally treated challenges to prison conditions as a whole under the cruel and unusual punishments clause of the Eighth Amendment, 146 and challenges to particular incidents and practices under the due process clause 147 as well as under more specific provisions, such as the First Amendment speech and religion clauses. 148 Prior to formulating its current approach, the Court recognized several rights of prisoners. Prisoners have a right to be free of racial segregation in prisons, except for the necessities of prison security and discipline. 149 They have the right to petition for redress of grievances, which includes access to the courts for purposes of presenting their complaints, 150 and to bring actions in federal courts to recover for damages wrongfully done them by prison administrators. 151 And they have a right, circumscribed by legitimate prison administration considerations, to fair and regular treatment during their incarceration.

In Turner v. Safley, 152 the Court announced a general standard for measuring prisoners' claims of deprivation of constitutional rights. ''[W]hen a regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.'' 153 Several considerations, the Court indicated, are appropriate in determining reasonableness of a prison regulation. First, there must be a rational relation to a legitimate, content-neutral objective, such as prison security, broadly defined. Availability of other avenues for exercise of the inmate right suggests reasonableness. A further indicium of reasonableness is present if accommodation would have a negative effect on liberty or safety of guards or other inmates. On the other hand, an alternative to regulation ''that fully accommodated the prisoner's rights at de minimis cost to valid penological interests'' suggests unreasonableness. 154  

Fourth Amendment protection is incompatible with ''the concept of incarceration and the needs and objectives of penal institutions,'' hence a prisoner has no reasonable expectation of privacy in his prison cell protecting him from ''shakedown'' searches designed to root out weapons, drugs, and other contraband. 155 Avenues of redress ''for calculated harassment unrelated to prison needs'' are not totally blocked, the Court indicated; inmates may still seek protection in the Eighth Amendment or in state tort law. 156 Existence of ''a meaningful postdeprivation remedy'' for unauthorized, intentional deprivation of an inmate's property by prison personnel protects the inmate's due process rights. 157 Due process is not impli cated at all by negligent deprivation of life, liberty, or property by prison officials. 158  

In Wolff v. McDonnell, 159 the Court promulgated due process standards to govern the imposition of discipline upon prisoners. Due process applies, but since prison disciplinary proceedings are not part of a criminal prosecution the full panoply of rights of a defendant is not available. Rather, the analysis must proceed on a basis of identifying the interest in ''liberty'' which the clause protects.

Where the state provides for good-time credit or other privileges and further provides for forfeiture of these privileges only for serious misconduct, the interest of the prisoner in this degree of ''liberty'' entitles him to those minimum procedures appropriate under the circumstances. 160 What the minimum procedures consist of is to be determined by balancing the prisoner's interest against the valid interest of the prison in maintaining security and order in the institution, in protecting guards and prisoners against retaliation by other prisoners, and in reducing prison tensions. The Court held in Wolff that the prison must afford the subject of a disciplinary proceeding advance written notice of the claimed violation and a written statement of the factfindings as to the evidence relied upon and the reasons for the action taken; also, the inmate should be allowed to call witnesses and present documentary evidence in defense when permitting him to do so will not hazard the institution's interests. 161 Confrontation and cross-examination of adverse witnesses is not required inasmuch as these would no doubt hazard valid institutional interests. Ordinarily, an inmate has no right to representation by retained or appointed counsel. Finally, only a partial right to an impartial tribunal was recognized, the Court ruling that limitations imposed on the discretion of a committee of prison officials sufficed for this purpose. 162 Revocation of good time credits, the Court later ruled, must be supported by ''some evidence in the record,'' but an amount that ''might be characterized as meager'' is constitutionally sufficient. 163  

Determination whether due process requires a hearing before a prisoner is transferred from one institution to another requires a close analysis of the applicable statutes and regulations as well as a consideration of the particular harm suffered by the transferee. On the one hand, the Court found that no hearing need be held prior to the transfer from one prison to another prison in which the conditions were substantially less favorable. Since the State had not conferred any right to remain in the facility to which the prisoner was first assigned, defeasible upon the commission of acts for which transfer is a punishment, prison officials had unfettered discretion to transfer any prisoner for any reason or for no reason at all; consequently, there was nothing to hold a hearing about. 164 The same principles govern interstate prison transfers. 165 On the other hand, transfer of a prisoner to a mental hospital pursuant to a statute authorizing transfer if the inmate suffers from a ''mental disease or defect'' must be preceded by a hearing for two alternative reasons. First, the statute gave the inmate a liberty interest since it presumed he would not be moved absent a finding he was suffering from a mental disease or defect. Second, unlike transfers from one prison to another, transfer to a mental institution was not within the range of confinement covered by the prisoner's sentence, and, moreover, imposed a stigma constituting a deprivation of a liberty interest. 166  

What kind of a hearing is required before a state may force a mentally ill prisoner to take antipsychotic drugs against his will was at issue in Washington v. Harper. 167 There the Court held that a judicial hearing was not required. Instead, the inmate's substantive liberty interest (derived from the Due Process Clause as well as from state law) was adequately protected by an administrative hearing before independent medical professionals, at which hearing the inmate has the right to a lay advisor but not an attorney.

Probation and Parole .--Sometimes convicted defendants are not sentenced to jail, but instead are placed on probation subject to incarceration upon violation of the conditions which are imposed; others who are jailed may subsequently qualify for release on parole before completing their sentence, and are subject to reincarceration upon violation of imposed conditions. Because both of these dispositions are statutory privileges granted by the govern mental authority, 168 it was long assumed that the administrators of the systems did not have to accord procedural due process either in the granting stage or in the revocation stage. Now, both granting and revocation are subject to due process analysis, although the results tend to be disparate. Thus, in Mempa v. Rhay, 169 the trial judge had deferred sentencing and placed the convicted defendant on probation; when facts subsequently developed which indicated a violation of the conditions of probation, he was summoned and summarily sentenced to prison. The Court held that he had been entitled to counsel at the deferred sentencing hearing.

In Morrissey v. Brewer 170 a unanimous Court held that parole revocations must be accompanied by the usual due process hearing and notice requirements. ''[T]he revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocation . . . [But] the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a 'grievous loss' on the parolee and often on others. It is hardly useful any longer to try to deal with this problem in terms of whether the parolee's liberty is a 'right' or a 'privilege.' By whatever name, the liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal.'' 171 What process is due, then, turned upon the State's interests. Its principal interest was that having once convicted a defendant, imprisoned him, and released him for rehabilitation purposes at some risk, it should ''be able to return the individual to imprisonment without the burden of a new adversary criminal trial if in fact he has failed to abide by the conditions of his parole.'' But the State has no interest in revoking parole without some informal procedural guarantees, inasmuch as this will not interfere with its reasonable interest. 172  

Minimal due process, the Court held, requires that at both stages of the revocation process--the arrest of the parolee and the formal revocation--the parolee is entitled to certain rights. Promptly following arrest of the parolee, there should be an informal hearing to determine whether reasonable grounds exist for revocation of parole; this preliminary hearing should be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available, and should be conducted by someone not directly involved in the case, though he need not be a judicial officer. The parolee should be given adequate notice that the hearing will take place and what violations are alleged, he should be able to appear and speak in his own behalf and produce other evidence, and he should be allowed to examine those who have given adverse evidence against him unless it is determined that the identity of such informant should not be revealed. Also, the hearing officer should prepare a digest of the hearing and base his decision upon the evidence adduced at the hearing. 173  

Prior to the final decision on revocation, there should be a more formal revocation hearing at which there would be a final evaluation of any contested relevant facts and consideration whether the facts as determined warrant revocation. The hearing must take place within a reasonable time after the parolee is taken into custody and he must be enabled to controvert the allegations or offer evidence in mitigation. The procedural details of such hearings are for the States to develop but the Court specified minimum requirements of due process. ''They include (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and the reasons for revoking parole.'' 174 Ordinarily the written statement need not indicate that the sentencing court or review board considered alternatives to incarceration, 175 but a sentencing court must consider such alternatives if the probation violation consists of the failure of an indigent probationer, through no fault of his own, to pay a fine or restitution. 176  

The Court has applied a flexible due process standard to the provision of counsel. Counsel is not invariably required in parole or probation revocation proceedings. The State should, however, provide the assistance of counsel where an indigent person may have difficulty in presenting his version of disputed facts without cross-examination of witnesses or presentation of complicated documentary evidence. Presumptively, counsel should be provided where the person requests counsel, based on a timely and colorable claim that he has not committed the alleged violation, or if that issue be uncontested, there are reasons in justification or mitigation that might make revocation inappropriate. 177  

With respect to the granting of parole, the Court's analysis of the due process clause's meaning in Greenholtz v. Nebraska Penal Inmates 178 is much more problematical. Rejected was the theory that the mere establishment of the possibility of parole was sufficient to create a liberty interest entitling any prisoner meeting the general standards of eligibility to a due process protected expectation of being dealt with in any particular way. On the other hand, the Court did recognize in the particular statute before it the creation of some expectancy of release that was entitled to some measure of constitutional protection, while cautioning that only by a case-by-case analysis could it be said whether other parole statutes similarly created such expectancy. 179 In any event, the Court considered the nature of the decisions that parole authorities must make to hold that the full panoply of due process guarantees is not required; procedures designed to elicit specific facts are inappropriate under the circumstances. Rather, minimizing the risk of error is the prime consideration, and that goal was achieved by the board's largely informal methods; the lower court erred, therefore, in imposing requirements of formal hearings, notice, and specification of particular evidence in the record. The inmate was afforded an opportunity to be heard and when parole was denied he was informed in what respects he fell short of qualifying. That afforded the process that was due.

Where, however, government by its statutes and regulations creates no obligation of the pardoning authority and thus creates no legitimate expectancy of release, the prisoner may not by showing the favorable exercise of the authority in the great number of cases demonstrate such a legitimate expectancy. The mere existence of purely discretionary authority and the frequent exercise of it creates no entitlement. 180  

The Problem of the Juvenile Offender .--All of the States of the Union and the District of Columbia make provision for dealing with juvenile offenders outside of the criminal system for adult offenders. 181 These juvenile justice systems apply both to offenses that would be criminal if committed by an adult and to delinquent behavior not recognizable under laws dealing with adults, such as habitual truancy, deportment endangering the morals or health of the juvenile or others, or disobedience making the juvenile uncontrollable by his parents. The reforms of the early part of this century provided not only for segregating juveniles from adult offenders in the adjudication, detention, and correctional facilities, but they also dispensed with the substantive and procedural rules surrounding criminal trials which were mandated by due process. Justification for this abandonment of constitutional guarantees was offered by describing juvenile courts as civil not criminal and as not dispensing criminal punishment, and offering the theory that the state was acting as parens patriae for the juvenile offender and was in no sense his adversary. 182 Disillusionment with the results of juvenile reforms coupled with judicial emphasis on constitutional protection of the accused led in the 1960s to a substantial restriction of these elements of juvenile jurisprudence.

After tracing in much detail this history of juvenile courts, the Court held in In re Gault 183 that the application of due process to juvenile proceedings would not endanger the good intentions vested in the system nor diminish the features of the system which were deemed desirable--emphasis upon rehabilitation rather than pun ishment, a measure of informality, avoidance of the stigma of criminal conviction, the low visibility of the process--but that the consequences of the absence of due process standards made their application necessary. ''Ultimately, however, we confront the reality of that portion of the juvenile court process with which we deal in this case. A boy is charged with misconduct. The boy is committed to an institution where he may be restrained of liberty for years. It is of no constitutional consequence--and of limited practical meaning--that the institution to which he is committed is called an Industrial School. The fact of the matter is that, however euphemistic the title, a 'receiving home' or an 'industrial school' for juveniles is an institution of confinement in which the child is incarcerated for a greater or lesser time. His world becomes 'a building with whitewashed walls, regimented routine and institutional hours. . . .' Instead of mother and father and sisters and brothers and friends and classmates, his world is peopled by guards, custodians, state employees, and 'delinquents' confined with him for anything from waywardness to rape and homicide. ''In view of this, it would be extraordinary if our Constitution did not require the procedural regularity and the exercise of care implied in the phrase 'due process.' Under our Constitution, the condition of being a boy does not justify a kangaroo court.'' 184  

Thus, the Court in Gault required that notice of charges be given in time for the juvenile to prepare a defense, required a hearing in which the juvenile could be represented by retained or appointed counsel, required observance of the rights of confrontation and cross- examination, and required that the juvenile be protected against self- incrimination. 185 It did not pass upon the right of appeal or the failure to make transcripts of hearings. Earlier, the Court had held that before a juvenile could be ''waived'' to an adult court for trial, there had to be a hearing and findings of reasons, a result based on statutory interpretation but apparently constitutionalized in Gault. 186 Subsequently, it was held that the ''essentials of due process and fair treatment'' required that a juvenile could be adjudged delinquent only on evidence beyond a reasonable doubt when the offense charged would be a crime if com mitted by an adult, 187 but still later the Court held that jury trials were not constitutionally required in juvenile trials. 188  

On a few occasions the Court has considered whether rights accorded to adults during investigation of crime are to be accorded juveniles. In one such case the Court ruled that a juvenile undergoing custodial interrogation by police had not invoked a Miranda right to remain silent by requesting permission to consult with his probation officer, since a probation officer could not be equated with an attorney, but indicated as well that a juvenile's waiver of Miranda rights was to be evaluated under the same totality-of-the-circumstances approach applicable to adults. That approach ''permits--indeed it mandates--inquiry into all the circumstances surrounding the interrogation . . . includ[ing] evaluation of the juvenile's age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him. . . .'' 189 In another case the Court ruled that, while the Fourth Amendment applies to searches of students by public school authorities, neither the warrant requirement nor the probable cause standard is appropriate. 190 Instead, a simple reasonableness standard governs all searches of students' persons and effects by school authorities. 191  

The Court ruled in Schall v. Martin 192 that preventive detention of juveniles does not offend due process when it serves the legitimate state purpose of protecting society and the juvenile from potential consequences of pretrial crime, when the terms of confinement serve those legitimate purposes and are nonpunitive, and when procedures provide sufficient protection against erroneous and unnecessary detentions. A statute authorizing pretrial detention of accused juvenile delinquents on a finding of ''serious risk'' that the juvenile would commit crimes prior to trial, providing for expedited hearings (the maximum possible detention was 17 days), and guaranteeing a formal, adversarial probable cause hearing within that period, was found to satisfy these requirements.

Each state has a procedure by which juveniles may be tried as adults. 193 With the Court having clarified the consitutional requirements for imposition of capital punishment, it was only a matter of time before the Court would have to determine whether states may subject juveniles to capital punishment. In Stanford v. Kentucky, 194 the Court held that the Eighth Amendment does not categorically prohibit imposition of the death penalty for individuals who commit crimes at age 16 or 17; earlier the Court had invalidated a statutory scheme permitting capital punishment for crimes committed before age 16. 195 In weighing validity under the Eighth Amendment, the Court has looked to state practice to determine whether a consensus against execution exists. 196  

Still to be considered by the Court are such questions as the substantive and procedural guarantees to be applied in proceedings when the matter at issue is non-criminal delinquent behavior.

The Problem of Civil Commitment .--As is the case with juvenile offenders, several other classes of persons are subject to confinement by processes and in courts deemed civil rather than criminal. Within this category of ''protective commitment'' are involuntary commitments for treatment of insanity and other degrees of mental incompetence, retardation, alcoholism, narcotics addiction, sexual psychopathy, and the like. Inasmuch as the deprivation of liberty is as severe as that experienced by juveniles adjudged delinquent, and in addition is accompanied with harm to reputation, it is surprising that the Court has only recently dealt with the issue. 197  

In O'Connor v. Donaldson, 198 bypassing ''the difficult issues of constitutional law'' raised by the lower courts' resolution of the case, 199 the Court held that ''a State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.'' 200 The trial jury had found that Donaldson was not dangerous to himself or to others, and the Court ruled that he had been unconstitutionally confined. 201 Left to resolution another day were such questions as ''when, or by what procedures, a mentally ill person may be confined by the State on any of the grounds which, under contemporary statutes, are generally advanced to justify involuntary confinement of such a person--to prevent injury to the public, to ensure his own survival or safety, or to alleviate or cure his illness'' 202 and the right, if any, to receive treatment for the confined person's illness. To conform to due process requirements, procedures for voluntary admission should recognize the possibility that persons in need of treatment may not be competent to give informed consent; this is not a situation where availability of a meaningful postdeprivation remedy can cure the due process violation. 203  

Procedurally, it is clear that an individual's liberty interest in being free from unjustifiable confinement and from the adverse social consequences of being labeled mentally ill requires government to assume a greater share of the risk of error in proving the exist ence of such illness as a precondition to confinement. Thus, the evidentiary standard of a preponderance, normally used in litigation between private parties, is constitutionally inadequate in commitment proceedings. On the other hand, the criminal standard of beyond a reasonable doubt is not necessary because the state's aim is not punitive and because some or even much of the consequence of an erroneous decision not to commit may fall upon the individual. Moreover, the criminal standard addresses an essentially factual question, whereas interpretative and predictive determinations must also be made in reaching a conclusion on commitment. The Court therefore imposed a standard of ''clear and convincing'' evidence. 204  

Difficult questions of what due process may require in the context of commitment of allegedly mentally ill and mentally retarded children by their parents or by the State when such children are wards of the State were confronted in Parham v. J.R. 205 Under the challenged laws there were no formal preadmission hearings, but psychiatric and social workers did interview parents and children and reached some form of independent determination that commitment was called for. The Court acknowledged the potential for abuse but balanced this against such factors as the responsibility of parents for the care and nurture of their children and the legal presumption that parents usually act in behalf of their children's welfare, the independent role of medical professionals in deciding to accept the children for admission, and the real possibility that the institution of an adversary proceeding would both deter parents from acting in good faith to institutionalize children needing such care and interfere with the ability of parents to assist with the care of institutionalized children. 206 Similarly, the same concerns, reflected in the statutory obligation of the State to care for children in its custody, caused the Court to apply the same standards to involuntary commitment by the Government. 207 Left to future resolution was the question of the due process requirements for postadmission review of the necessity for continued confinement. 208  


[Footnote 139] Ruffin v. Commonwealth, 62 Va. 790, 796 (1871).

[Footnote 140] Cf. In re Bonner, 151 U.S. 242 (1894).

[Footnote 141] Price v. Johnston, 334 U.S. 266, 285 (1948).

[Footnote 142] ''There is no iron curtain drawn between the Constitution and the prisons of this country.'' Wolff v. McDonnell, 418 U.S. 539, 555 -56 (1974).

[Footnote 143] Cruz v. Beto, 405 U.S. 319, 321 (1972). See also Procunier v. Martinez, 416 U.S. 396, 404 -05 (1974) (invalidating state prison mail censorship regulations).

[Footnote 144] Bell v. Wolfish, 441 U.S. 520, 545 -548, 551, 555, 562 (1979) (federal prison); Rhodes v. Chapman, 452 U.S. 337, 347 , 351-352 (1981).

[Footnote 145] Bell v. Wolfish, 441 U.S. 520 (1979). Persons not yet convicted of a crime may be detained by government upon the appropriate determination of probable cause and the detention may be effectuated through subjection of the prisoner to the restrictions and conditions of the detention facility. But a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law. Therefore, unconvicted detainees may not be subjected to conditions and restrictions that amount to punishment. However, the Court limited its concept of punishment to practices intentionally inflicted by prison authorities and to practices which were arbitrary or purposeless and unrelated to legitimate institutional objectives.

[Footnote 146] Supra, pp. 1497-99.

[Footnote 147] E.g., Wolff v. McDonnell, 418 U.S. 539 (1974); Baxter v. Palmigiano, 425 U.S. 308 (1976); Vitek v. Jones, 445 U.S. 480 (1980); Washington v. Harper, 494 U.S. 210 (1990) (prison inmate has liberty interest in avoiding the unwanted administration of antipsychotic drugs).

[Footnote 148] E.g., Procunier v. Martinez, 416 U.S. 396 (1974); Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119 (1977). On religious practices and ceremonies, see Cooper v. Pate, 378 U.S. 546 (1964); Cruz v. Beto, 405 U.S. 319 (1972).

[Footnote 149] Lee v. Washington, 390 U.S. 333 (1968).

[Footnote 150] Ex parte Hull, 312 U.S. 546 (1941); White v. Ragen, 324 U.S. 760 (1945). Prisoners must have reasonable access to a law library or to persons trained in the law. Younger v. Gilmore, 404 U.S. 15 (1971); Bounds v. Smith, 430 U.S. 817 (1978). Establishing a right of access to law materials, however, requires an individualized demonstration of an inmate having been hindered in efforts to pursue a legal claim. See Lewis v. Casey, 116 S. Ct. 2174 (1996) (no requirement that the State ''enable [a] prisoner to discover grievances, and to litigate effectively'').

[Footnote 151] Haines v. Kerner, 404 U.S. 519 (1972); Preiser v. Rodriguez, 411 U.S. 475 (1973).

[Footnote 152]   482 U.S. 78 (1987) (upholding a Missouri rule barring inmate-to-inmate correspondence, but striking down a prohibition on inmate marriages absent compelling reason such as pregnancy or birth of a child).

[Footnote 153]   482 U.S. at 89 .

[Footnote 154] Id. at 91.

[Footnote 155] Hudson v. Palmer, 468 U.S. 517, 526 (1984); Block v. Rutherford, 468 U.S. 576 (1984) (holding also that prison security needs support a rule prohibiting pretrial detainees contact visits with spouses, children, relatives, and friends).

[Footnote 156] Hudson v. Palmer, 468 U.S. 517, 530 (1984).

[Footnote 157] Hudson v. Palmer, 468 U.S. 517, 533 (1984) (holding that state tort law provided adequate postdeprivation remedies). But see Zinermon v. Burch, 494 U.S. 113 (1990) (availability of postdeprivation remedy is inadequate when deprivation is foreseeable, predeprivation process was possible, and official conduct was not ''unauthorized'').

[Footnote 158] Daniels v. Williams, 474 U.S. 327 (1986); Davidson v. Cannon, 474 U.S. 344 (1986).

[Footnote 159]   418 U.S. 539 (1974).

[Footnote 160] Id. at 557. This analysis, of course tracks the interest analysis discussed supra, pp. 1723-32.

[Footnote 161] However, the Court later ruled, reasons for denying an inmate's request to call witnesses need not be disclosed until the issue is raised in court. Ponte v. Real, 471 U.S. 491 (1985).

[Footnote 162] Id. at 418 U.S., 561-72. The Court continues to adhere to its refusal to require appointment of counsel. Vitek v. Jones, 445 U.S. 480, 496 -97 (1980), and id. at 497-500 (Justice Powell concurring); Baxter v. Palmigiano, 425 U.S. 308 (1976).

[Footnote 163] Superintendent v. Hill, 472 U.S. 445, 454 , 457 (1985).

[Footnote 164] Meacham v. Fano, 427 U.S. 215 (1976); Montanye v. Haymes, 427 U.S. 236 (1976).

[Footnote 165] Olim v. Wakinekona, 461 U.S. 238 (1983).

[Footnote 166] Vitek v. Jones, 445 U.S. 480 (1980).

[Footnote 167]   494 U.S. 210 (1990).

[Footnote 168] Ughbanks v. Armstrong, 208 U.S. 481 (1908), held that parole is not a constitutional right but instead is a ''present'' from government to the prisoner. In Escoe v. Zerbst, 295 U.S. 490 (1935), the Court's premise was that as a matter of grace the parolee was being granted a privilege and that he should neither expect nor seek due process. Then-Judge Burger in Hyser v. Reed, 318 F. 2d 225 (D.C. Cir.), cert. denied, 375 U.S. 957 (1963), reasoned that due process was inapplicable because the parole board's function was to assist the prisoner's rehabilitation and restoration to society and that there was no adversary relationship between the board and the parolee.

[Footnote 169]   389 U.S. 128 (1967).

[Footnote 170]   408 U.S. 471 (1972).

[Footnote 171] Id. at 480, 482.

[Footnote 172] Id. at 483-84.

[Footnote 173] Id. at 484-87.

[Footnote 174] Id. at 487-89.

[Footnote 175] Black v. Romano, 471 U.S. 606 (1985).

[Footnote 176] Bearden v. Georgia, 461 U.S. 660, 672 (1983).

[Footnote 177] Gagnon v. Scarpelli, 411 U.S. 778 (1973).

[Footnote 178]   442 U.S. 1 (1979). Justice Powell thought that creation of a parole system did create a legitimate expectancy of fair procedure protected by due process, but, save in one respect, he agreed with the Court that the procedure followed was adequate. Id. at 18. Justices Marshall, Brennan, and Stevens argued in dissent that the Court's analysis of the liberty interest was faulty and that due process required more than the board provided. Id. at 22.

[Footnote 179] Following Greenholtz, the Court held in Board of Pardons v. Allen, 482 U.S. 369 (1987), that a liberty interest was created by a Montana statute providing that a prisoner ''shall'' be released upon certain findings by a parole board.

[Footnote 180] Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981); Jago v. Van Curen, 454 U.S. 14 (1981). The former case involved not parole but commutation of a life sentence, commutation being mecessary to become eligible for parole. The statute gave the Board total discretion to commute, but in at least 75% of the cases prisoner received a favorable action and virtually all of the prisoners who had their sentences commuted were promptly paroled. In Van Curen, the Court made express what had been implicit in Dumschat; the ''mutually explicit understandings'' concept under which some property interests are found protected does not apply to liberty interests. Van Curen is also interesting because there the parole board had granted the petition for parole but within days revoked it before the prisoner was released, upon being told that he had lied at the hearing before the board.

[Footnote 181] For analysis of the state laws as well as application of constitutional principles to juveniles, see Samuel M. Davis, Rights of Juveniles: The Juvenile Justice System (2d ed. 1989).

[Footnote 182] In re Gault, 387 U.S. 1, 12 -29 (1967).

[Footnote 183]   387 U.S. 1 (1967).

[Footnote 184] Id. at 27-28.

[Footnote 185] Id. at 31-35. Justice Harlan concurred in part and dissented in part, id. at 65, agreeing on the applicability of due process but disagreeing with the standards of the Court. Justice Stewart dissented wholly, arguing that the application of procedures developed for adversary criminal proceedings to juvenile proceedings would endanger their objectives and contending that the decision was a backward step toward undoing the reforms instituted in the past. Id. at 78.

[Footnote 186] Kent v. United States, 383 U.S. 541 (1966), noted on this point in In re Gault, 387 U.S. 1, 30 -31 (1967).

[Footnote 187] In re Winship, 397 U.S. 358 (1970). Chief Justice Burger and Justice Stewart dissented, following essentially the Stewart reasoning in Gault. ''The Court's opinion today rests entirely on the assumption that all juvenile proceedings are 'criminal prosecutions,' hence subject to constitutional limitation. . . . What the juvenile court systems need is not more but less of the trappings of legal procedure and judicial formalism; the juvenile system requires breathing room and flexibility in order to survive, if it can survive the repeated assaults from this Court.'' Id. at 375, 376. Justice Black dissented because he did not think the reasonable doubt standard a constitutional requirement at all. Id. at 377.

[Footnote 188] McKeiver v. Pennsylvania, 403 U.S. 528 (1971). No opinion was concurred in by a majority of the Justices. Justice Blackmun's opinion of the Court, which was joined by Chief Justice Burger and Justices Stewart and White, reasoned that a juvenile proceeding was not ''a criminal prosecution'' within the terms of the Sixth Amendment, so that jury trials were not automatically required; instead, the prior cases had proceeded on a ''fundamental fairness'' approach and in that regard a jury was not a necessary component of fair factfinding and its use would have serious repercussions on the rehabilitative and protection functions of the juvenile court. Justice White also submitted a brief concurrence emphasizing the differences between adult criminal trials and juvenile adjudications. Id. at 551. Justice Brennan concurred in one case and dissented in another because in his view open proceedings would operate to protect juveniles from oppression in much the same way as a jury would. Id. at 553. Justice Harlan concurred because he did not believe jury trials were constitutionally mandated in state courts. Id. at 557. Justices Douglas, Black, and Marshall dissented. Id. at 557.

[Footnote 189] Fare v. Michael C., 442 U.S. 707, 725 (1979).

[Footnote 190] New Jersey v. T.L.O., 469 U.S. 325 (1985) (upholding the search of a student's purse to determine whether the student possessed cigarettes in violation of schoool rule; evidence of drug activity held admissible in a prosecution under the juvenile laws).

[Footnote 191] This single rule, the Court explained, will permit school authorities ''to regulate their conduct according to the dictates of reason and common sense.'' 469 U.S. at 343 . Rejecting the suggestion of dissenting Justice Stevens, the Court was ''unwilling to adopt a standard under which the legality of a search is dependent upon a judge's evaluation of the relative importance of various school rules.'' Id. at n.9.

[Footnote 192]   467 U.S. 253 (1984).

[Footnote 193] See Samuel M. Davis, Rights of Juveniles: The Juvenile Justice System, ch. 4, ''Waiver of Jurisdiction'' (2d ed. 1989).

[Footnote 194]   492 U.S. 361 (1989).

[Footnote 195] Thompson v. Oklahoma, 487 U.S. 815 (1988).

[Footnote 196] See analysis of Eighth Amendment principles, supra pp. 1491-92.

[Footnote 197] Only in Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270 (1940), did the Court earlier approach consideration of the problem. Other cases reflected the Court's concern with the rights of convicted criminal defendants and generally required due process procedures or that the commitment of convicted criminal defendants follow the procedures required for civil commitments. Specht v. Patterson, 386 U.S. 605 (1967); Baxstrom v. Herold, 383 U.S. 107 (1966); Lynch v. Overholser, 369 U.S. 705 (1962); Humphrey v. Cady, 405 U.S. 504 (1972); Jackson v. Indiana, 406 U.S. 715 (1972); McNeil v. Director, 407 U.S. 245 (1972). Cf. Murel v. Baltimore City Criminal Court, 407 U.S. 355 (1972).

[Footnote 198]   422 U.S. 563 (1975).

[Footnote 199] That is, the right to treatment of the involuntarily committed. Supra, pp. 1690-92.

[Footnote 200]   422 U.S. at 576 .

[Footnote 201] Id. at 576-77. The Court remanded to allow the trial court to determine whether Donaldson should recover personally from his doctors and others for his confinement, under standards formulated under 42 U.S.C. Sec. 1983. See Wood v. Strickland, 420 U.S. 308 (1975); Scheuer v. Rhodes, 416 U.S. 232 (1974).

[Footnote 202] O'Connor v. Donaldson, 422 U.S. 563, 573 (1975).

[Footnote 203] Zinermon v. Burch, 494 U.S. 113 (1990).

[Footnote 204] Addington v. Texas, 441 U.S. 418 (1979). See also Vitek v. Jones, 445 U.S. 480 (1980) (transfer of prison inmate to mental hospital).

[Footnote 205]   442 U.S. 584 (1979). See also Secretary of Public Welfare v. Institutionalized Juveniles, 442 U.S. 640 (1979).

[Footnote 206]   442 U.S. at 598 -617. The dissenters agreed on this point. Id. at 626-37.

[Footnote 207] Id. at 617-20. The dissenters would have required a preconfinement hearing. Id. at 637-38.

[Footnote 208] Id. at 617. The dissent would have mandated a formal postadmission hearing. Id. at 625-26.

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