In The

Supreme Court of the United States




Decided May 20, 1985

Justice O’Connor, For the Court

Topic: Due Process*Court vote: 8–0
Click any Justice for detail
Joining O'Connor opinion: Justice BLACKMUN Justice BLACKMUN Justice BRENNAN Justice BRENNAN Chief Justice BURGER Chief Justice BURGER Justice MARSHALL Justice MARSHALL Justice REHNQUIST Justice REHNQUIST Justice STEVENS Justice STEVENS Justice WHITE Justice WHITE
Citation: 471 U.S. 606 Docket: 84–465Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

Next opinion >< Previous opinion

DISCLAIMER: Only United States Reports are legally valid sources for Supreme Court opinions. The text below is provided for ease of access only. If you need to cite the exact text of this opinion or if you would like to view the opinions of the other Justices in this case, please view the original United States Report at the Library of Congress or Justia. The Sandra Day O'Connor Institute does not in any way represent, warrant, or guarantee that the text below is accurate."


JUSTICE O'CONNOR delivered the opinion of the Court.

In this case, we consider whether the Due Process Clause of the Fourteenth Amendment generally requires a sentencing court to indicate that it has considered alternatives to incarceration before revoking probation. After a hearing, a state judge found that respondent had violated his probation conditions by committing a felony shortly after his original prison sentences were suspended. The judge revoked probation and ordered respondent to begin serving the previously imposed sentences. Nearly six years later, the District Court for the Eastern District of Missouri held that respondent had been denied due process because the record of the revocation hearing did not expressly indicate that the state judge had considered alternatives to imprisonment. The District Court granted a writ of habeas corpus and ordered respondent unconditionally released from custody. 567 F.Supp. 882 (1983). The Court of Appeals for the Eighth Circuit affirmed. 735 F.2d 319 (1984). We granted certiorari, 469 U.S. 1033 (1984), and we now reverse.


On November 15, 1976, respondent Nicholas Romano pleaded guilty in the Circuit Court of Laclede County, State of Missouri, to two counts of transferring and selling a controlled substance. The charges resulted from Romano's attempt to trade 26 pounds of marihuana, which he had harvested, refined, and packaged, for what he thought was opium. App. 15, 27-28, 40. After the Missouri Department of Probation and Parole completed a presentence investigation, the trial judge held a sentencing hearing on April 13, 1977. Romano's attorney urged the court to order probation. He argued that the offenses had not involved any victim, that Romano had no previous felony convictions, and that, except for running a stop sign, he had not violated the law after his arrest on the controlled substance charges. Id. at 31-36. Both the Probation Department and the prosecutor opposed probation. Id. at 33, 36-38. The trial judge nonetheless concluded that probation was appropriate because the underlying charges did not involve an offense against the person. Id. at 43.

The judge imposed concurrent sentences of 20 years on each count, suspended execution of the sentences, and placed Romano on probation for 5 years. Id. at 42-43, 47. The trial judge observed that Romano appeared to "have an uphill run on this probation," id. at 43, given the presentence report and the fact that his "past track record [was] not too good." Ibid. The trial judge warned that, if any of the conditions of probation were violated, he would revoke probation and order Romano imprisoned under the terms of the suspended sentence. Id. at 41, 44. Only two months after being placed on probation, Romano was arrested for leaving the scene of an automobile accident. In an information issued on July 15, 1977, he was charged with violating Mo.Rev.Stat. §§ 564.450, 564.460 (1959), replaced by Mo.Rev.Stat. §§ 577.010, 577.060 (1978), a felony punishable by up to five years' imprisonment. The information alleged that Romano had struck and seriously injured a pedestrian with his automobile and, knowing that such injury had occurred, "unlawfully and feloniously" left the scene without stopping or reporting the accident. 1 Record 50.

On July 18, 1977, the judge who had sentenced Romano on the controlled substance charges held a probation revocation hearing. Several witnesses gave testimony indicating that Romano had run over a pedestrian in front of a tavern and then had driven away. Romano offered no explanation of his involvement in the accident. Instead, his counsel challenged the credibility of the witnesses, argued that the evidence did not justify a finding that Romano had violated his probation conditions, and requested the court to continue the defendant's probation. App. 99-102. Neither Romano nor his two lawyers otherwise proposed or requested alternatives to incarceration. The judge found that Romano had violated his probation conditions by leaving the scene of an accident, revoked probation, and ordered execution of the previously imposed sentence. Id. at 103. Although the judge prepared a memorandum of his findings, id. at 107-110, he did not expressly indicate that he had considered alternatives to revoking probation. On October 12, 1977, the State filed an amended information reducing the charges arising from the automobile accident to the misdemeanor of reckless and careless driving. 1 Record 52. Romano was convicted on the reduced charges and ordered to pay a $100 fine. Id. at 53.

Romano was incarcerated in state prison following the revocation of his probation. After unsuccessfully seeking postconviction relief in state court, he filed a petition for a writ of habeas corpus in Federal District Court. The habeas petition, filed in November, 1982, alleged that the state judge had violated the requirements of due process by revoking respondent's probation without considering alternatives to incarceration. The District Court agreed, and held that, under the circumstances,

alternatives to incarceration should have been considered, on the record, and if [the trial judge] decided still to send Romano to jail, he should have given the reasons why the alternatives were inappropriate.

567 F.Supp. at 886. Because Romano had been imprisoned for more than five years and had been paroled after he filed his federal habeas petition, the District Court concluded that the proper relief was to order him released from the custody of the Missouri Department of Probation and Parole. Id. at 887. The Court of Appeals agreed that due process required the trial judge to consider alternatives to incarceration in the probation revocation proceeding and to indicate on the record that he had done so. See 735 F.2d at 322, 323.


The Due Process Clause of the Fourteenth Amendment imposes procedural and substantive limits on the revocation of the conditional liberty created by probation. Bearden v. Georgia, 461 U. S. 660, 461 U. S. 666, and n. 7 (1983). Both types of limits are implicated in this case. The opinions of the District Court and the Court of Appeals not only require consideration of alternatives to incarceration before probation is revoked, which is properly characterized as a substantive limitation, but also impose a procedural requirement that the sentencing court explain its reasons for rejecting such alternatives. These requirements, the courts below held, follow from Morrissey v. Brewer, 408 U. S. 471 (1972), and Gagnon v. Scarpelli, 411 U. S. 778 (1973). We disagree. Nothing in these decisions requires a sentencing court to state explicitly why it has rejected alternatives to incarceration. Moreover, although Morrissey and Gagnon outline the minimum procedural safeguards required by due process, neither decision purports to restrict the substantive grounds for revoking probation or parole. Bearden v. Georgia recognized substantive limits on the automatic revocation of probation where an indigent defendant is unable to pay a fine or restitution. We have no occasion in the present case, however, to decide whether concerns for fundamental fairness prohibit the automatic revocation of probation in any other context.


In identifying the procedural requirements of due process, we have observed that the decision to revoke probation typically involves two distinct components: (1) a retrospective factual question whether the probationer has violated a condition of probation; and (2) a discretionary determination by the sentencing authority whether violation of a condition warrants revocation of probation. See Gagnon, supra, at 411 U. S. 784 ; cf. Morrissey, supra, at 408 U. S. 479 -480 (parole revocation). Probationers have an obvious interest in retaining their conditional liberty, and the State also has an interest in assuring that revocation proceedings are based on accurate findings of fact and, where appropriate, the informed exercise of discretion. Gagnon, supra, at 411 U. S. 785. Our previous cases have sought to accommodate these interests while avoiding the imposition of rigid requirements that would threaten the informal nature of probation revocation proceedings or interfere with exercise of discretion by the sentencing authority.

Gagnon concluded that the procedures outlined in Morrissey for parole revocation should also apply to probation proceedings. 411 U.S. at 411 U. S. 782. Thus the final revocation of probation must be preceded by a hearing, although the fact-finding body need not be composed of judges or lawyers. The probationer is entitled to written notice of the claimed violations of his probation; disclosure of the evidence against him; an opportunity to be heard in person and to present witnesses and documentary evidence; a neutral hearing body; and a written statement by the factfinder as to the evidence relied on and the reasons for revoking probation. Id. at 411 U. S. 786. The probationer is also entitled to cross-examine adverse witnesses, unless the hearing body specifically finds good cause for not allowing confrontation. Finally, the probationer has a right to the assistance of counsel in some circumstances. Id. at 411 U. S. 790. One point relevant to the present case is immediately evident from a review of the minimum procedures set forth in some detail in Gagnon and Morrissey: the specified procedures do not include an express statement by the factfinder that alternatives to incarceration were considered and rejected.

Neither Gagnon nor Morrissey considered a revocation proceeding in which the factfinder was required by law to order incarceration upon finding that the defendant had violated a condition of probation or parole. Instead, those cases involved administrative proceedings in which revocation was at the discretion of the relevant decisionmaker. See Morrissey, 408 U.S. at 408 U. S. 475 ; id. at 408 U. S. 492 -493 (Douglas, J., dissenting in part); Wis.Stat.Ann. § 57.03 (1957) (statute involved in Gagnon ). Thus, the Court's discussion of the importance of the informed exercise of discretion did not amount to a holding that the factfinder in a revocation proceeding must, as a matter of due process, be granted discretion to continue probation or parole. Where such discretion exists, however, the parolee or probationer is entitled to an opportunity to show not only that he did not violate the conditions, but also that there was a justifiable excuse for any violation or that revocation is not the appropriate disposition. Gagnon, supra, at 411 U. S. 789 ; Morrissey, supra, at 411 U. S. 488. This Court has not held that a defendant who is afforded these opportunities is also entitled to an explicit statement by the factfinder explaining why alternatives to incarceration were not selected.

We do not question the desirability of considering possible alternatives to imprisonment before probation is revoked. See, e.g., ABA Standards for Criminal Justice 18-7.3, and Commentary (2d ed.1980); National Advisory Commission on Criminal Justice Standards and Goals, Corrections, Standard 5.4, p. 158 (1973). Nonetheless, incarceration for violation of a probation condition is not constitutionally limited to circumstances where that sanction represents the only means of promoting the State's interest in punishment and deterrence. The decision to revoke probation is generally predictive and subjective in nature, Gagnon, 411 U.S. at 411 U. S. 787, and the fairness guaranteed by due process does not require a reviewing court to second-guess the factfinder's discretionary decision as to the appropriate sanction. Accordingly, our precedents have sought to preserve the flexible, informal nature of the revocation hearing, which does not require the full panoply of procedural safeguards associated with a criminal trial. Id. at 411 U. S. 787 -790; Morrissey, supra, at 408 U. S. 489 -490. We believe that a general requirement that the factfinder elaborate upon the reasons for a course not taken would unduly burden the revocation proceeding without significantly advancing the interests of the probationer. Cf. Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1, 442 U. S. 13 -16 (1979) (discussing procedures where parole release decision implicated liberty interest).

The procedures already afforded by Gagnon and Morrissey protect the defendant against revocation of probation in a constitutionally unfair manner. As we observed in another context in Harris v. Rivera, 454 U. S. 339, 454 U. S. 344 -345, n. 11 (1981) (per curiam),

when other procedural safeguards have minimized the risk of unfairness, there is a diminished justification for requiring a judge to explain his rulings.

The written statement required by Gagnon and Morrissey helps to insure accurate factfinding with respect to any alleged violation and provides an adequate basis for review to determine if the decision rests on permissible grounds supported by the evidence. Cf. Douglas v. Buder, 412 U. S. 430 (1973) (per curiam) (revocation invalid under Due Process Clause where there was no evidentiary support for finding that probation conditions were violated). Moreover, where the factfinder has discretion to continue probation, the procedures required by Gagnon and Morrissey assure the probationer an opportunity to present mitigating evidence and to argue that alternatives to imprisonment are appropriate. That opportunity, combined with the requirement that the factfinder state the reason for its decision and the evidence relied upon, accommodates the interests involved in a manner that satisfies procedural due process.


The Court's decision in Bearden v. Georgia recognized that, in certain circumstances, fundamental fairness requires consideration of alternatives to incarceration prior to the revocation of probation. Where a fine or restitution is imposed as a condition of probation, and

the probationer has made all reasonable efforts to pay... yet cannot do so through no fault of his own, it is fundamentally unfair to revoke probation automatically without considering whether adequate alternative methods of punishing the defendant are available.

461 U.S. at 461 U. S. 668 -669 (footnote omitted). This conclusion did not rest on the view that Gagnon and Morrissey generally compel consideration of alternatives to incarceration in probation revocation proceedings. Indeed, by indicating that such consideration is required only if the defendant has violated a condition of probation through no fault of his own, Bearden suggests the absence of a more general requirement. See 461 U.S. at 461 U. S. 672. Bearden acknowledged this Court's sensitivity to the treatment of indigents in our criminal justice system and, after considering the penological interests of the State, concluded that "depriv[ing] the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine" would be "contrary to the fundamental fairness required by the Fourteenth Amendment." Id. at 461 U. S. 673 (footnote omitted).

We need not decide today whether concerns for fundamental fairness would preclude the automatic revocation of probation in circumstances other than those involved in Bearden. The state judge was not required by Missouri law to order incarceration upon finding that Romano had violated a condition of his probation. The statute in effect at the time declared that the court "may in its discretion" revoke probation and order the commencement of a previously imposed sentence in response to a violation of probation conditions. Mo.Rev.Stat. § 549.101.1 (Supp.1965), repealed and replaced by Mo.Rev.Stat. § 559.036 (1978). But the statute also expressly provided that "[t]he court may in its discretion order the continuance of the probation... upon such conditions as the court may prescribe." Mo.Rev.Stat. § 549.101.1 (Supp.1965). Under Missouri law, the determination to revoke probation was at the discretion of the trial judge, who was obligated to make independent findings and conclusions apart from any recommendation of the probation officer. Moore v. Stamps, 507 S.W.2d 939, 948-949 (Mo.App.1974) (en banc). We must presume that the state judge followed Missouri law and, without expressly so declaring, recognized his discretionary power to either revoke or continue probation. Cf. Townsend v. Sain, 372 U. S. 293, 372 U. S. 314 -315 (1963).


The decision to revoke Romano's probation satisfied the requirements of due process. In conformance with Gagnon and Morrissey, the State afforded respondent a final revocation hearing. The courts below concluded, and we agree, that there was sufficient evidence to support the state court's finding that Romano had violated the conditions of his probation. 735 F.2d at 321; 567 F.Supp. at 885. The memorandum prepared by the sentencing court and the transcript of the hearing provided the necessary written statement explaining the evidence relied upon and the reason for the decision to revoke probation. Romano does not dispute that he had a full opportunity to present mitigating factors to the sentencing judge and to propose alternatives to incarceration. The procedures required by the Due Process Clause of the Fourteenth Amendment were afforded in this case, even though the state judge did not explain on the record his consideration and rejection of alternatives to incarceration.

As a substantive ground for challenging the action of the state court, Romano argues that, because the offense of leaving the scene of an accident was unrelated to his prior conviction for the controlled substance offenses, revocation of his probation was arbitrary and contrary to due process. This argument also lacks merit. The revocation of probation did not rest on a relatively innocuous violation of the terms and conditions of probation, but instead resulted from a finding that Romano had committed a felony involving injury to another person only two months after receiving his suspended sentence. The Fourteenth Amendment assuredly does not bar a State from revoking probation merely because the new offense is unrelated to the original offense. Nor is our conclusion in this regard affected by the fact that, after the revocation proceeding, the charges arising from the automobile accident were reduced to reckless and careless driving.

Given our disposition of the merits, we need not address the propriety of the relief ordered by the District Court and affirmed by the Court of Appeals. The judgment of the Court of Appeals is reversed.

It s so ordered.

JUSTICE POWELL took no part in the consideration or decision of this case.

Supreme Court icon marking end of opinion

Header photo: United States Supreme Court. Credit: Patrick McKay / Flickr - CC.