BERNIER V. STATE: THE RIGHT TO
COUNSEL IN ENTRUSTMENT
REVOCATION PROCEEDINGS
Theodore Bernier was adjudicated a juvenile offender in September,
1966, and was subsequently committed to the Boys Training Center
(BTC) for the term of his minority.1 In February, 1968, he was released
on entrustment to his parents. 2 Almost a year and a half later, Bernier
was questioned by local police regarding his possible involvement in the
theft of greenstamps from a local store.3 Although he was released without the police taking further action, they notified an aftercare and placement worker4 assigned to the BTC of the questioning. As a result, the
BTC revoked the entrustment, and the police took him into custody for
return to the Center.' He subsequently was returned without a hearing
and the original indefinite commitment was reinstated. To seek relief
Bernier filed an action in state court for post-conviction relief.0
1
The Boys Training Center (BTC) is one of the dispositional alternatives for
the juvenile court judge. ME. REV. STAT. ANN. tit. 15, § 2611(4) (B) (Supp. 1970).
Any male juvenile may be sent to the BTC and kept there at the discretion of
the superintendent until he is 20 years old. ME. REV. STAT. ANN. tit. 15, § 2714
(Supp. 1970).
2 ME. REV. STAT. ANN. tit. 15, § 2716 (Supp. 1970):
At the discretion of the superintendent, any such child, during his or
her commitment, may be kept at said center or, upon prior mutual agreement, may be entrusted without indenture, for a period not exceeding
the term of his or her commitment, to the care of: any suitable person
or persons ...
3 To remain on entrustment Bernier agreed in a "Placement Agreement," signed
by himself, his parents, and the superintendent of the BTC, that he would "at
all times obey and observe all city, county, state and federal laws. . .
."
Viola-
tion of this provision and others could result in revocation according to the "Placement Agreement." The Maine Supreme Judicial Court noted, however, that there
was no evidence of a violation of any terms of the entrustment. Bernier v. State,
265 A.2d 604, 605-06 (Me. 1970).
4 Aftercare and placement workers are analogous to probation and parole officers.
5
ME. REv. STAT. ANN. tit. 15, § 2716 (Supp. 1970):
On being satisfied at any time that the welfare of the child will be
promoted by return to the Center, the superintendent may cancel such
trust and resume charge of such child with the same powers as before
the trust was made.
8
ME. REv. STAT. ANN. tit. 14, § 5502 (1964).
MAINE LAW REVIEW
Bernier contended in his writ that the entrustment revocation without a hearing and in the absence of counsel violated the due process
clause of the fourteenth amendment, and he also complained that because state probationers and parolees received a statutory hearing,7 the
entrustment procedure discriminated against him in violation of the equal
protection clause. Additionally, Bernier argued that the statute from
which the superintendent of the BTC derived his authority to revoke
of the writ,
entrustments was impermissibly vague. Following dismissal
8
appeal was taken to the Maine Supreme Judicial Court.
The court answered the vagueness claim by maintaining that upon
commitment to the BTC, the juvenile's rights were defined by the state
in its role as parens patriae.The lack of specificity of the superintendent's
powers under the statute was considered irrelevant because he properly
possessed unlimited discretion to act for the juvenile's best interest.,
Although the court recognized that Maine statutes required hearings for
probation and parole revocations, it found this right grounded within
the statute rather than the Constitution. Hence, the failure to provide
juveniles with a hearing and counsel at entrustment revocation did not
contravene due process or equal protection because probation and parole
violators also had no right to a hearing and counsel beyond the statutory grant. 10 The court left unresolved defendant's procedural due process argument that the entrustment revocation by the superintendent of
the BTC so as to effectuate indeterminate confinement was unconstitutional because it constituted an imposition of sentence without the
presence of counsel."
I.
THE
RIGHT TO COUNSEL IN INDETERMINATE SENTENCING
The perimeters of a juvenile's rights can no longer be decided by the
outmoded fiction of parens patriae. The United States Supreme Court
in In re Gault12 deemed this concept irrelevant in the application of due
process principles to juveniles. 13 Although Gault disclaimed any consideration of the post-adjudicative process, 14 the Court emphasized the
§§ 1633, 1675 (Supp. 1970).
8 ME. REV. STAT. ANN. tit. 14, § 5508 (Supp. 1970).
9 Bernier v. State, 265 A.2d 604, 607-08 (Me. 1970).
10 Id. at 606-07. For a recent application of the equal protection argument vis-vis parolees see Warren v. Michigan Parole Board, - Mich. -, 179 N.W.2d
664 (1970).
11 This argument was presented to the Maine Supreme Judicial Court. Brief
for Pine Tree Legal Assistance as Amicus Curiae at 3, Bernier v. State, 265 A.2d
604 (Me. 1970).
12387 U.S. 1 (1967).
13 Id. at 27-28. The development of the concept of parens patriae in the juvenile
court system is traced in Gault. Id. at 16-19.
14 Id. at 31 n.48.
7 ME. REV. STAT. ANN. tit. 34,
ENTRUSTMENT REVOCATION
necessity for procedural due process rights when juveniles are threatened
with potential institutionalization. Specifically, the Court recognized that
the potential for deprivation of liberty required that the juvenile have
the same right to counsel as an adult in the adjudicatory stage. 15 Not
only is counsel present to protect the juvenile against specific charges,
but he is also able to safeguard such procedural rights as self-incrimination, confrontation of adverse witnesses, and cross-examination.1 Moreover, the Court's subsequent decision in Mempa v. Rhay,17 which expanded the right to counsel to the post-conviction stage of sentencing,",
suggests that careful consideration of a juvenile's rights in the post-adjudicative stage should have been dealt with in Bernier.
The Court in Mempa noted that previous decisions had included the
determination of the length of sentence within the scope of "criticalness," 19 and therefore that counsel was required when the judge determined the probation revocation on the basis of facts subsequent to the
original conviction and his findings causally influenced the length of sentence. 20 However, the Bernier court not only allowed the superintendent
arbitrarily to revoke entrustment, 2' but to determine the factual basis
for the revocation and the effect on the length of further institutionalization without the presence of counsel. Thus, the applicability of Mempa
in determining the right to counsel in the post-adjudicatory phase of
the Maine juvenile system as presented in Bernier rests on two integrated
analyses: (1) The similarity of the sentencing role of the judge in Mempa
and Bernier; and (2) the similarity of the combined revocation roles of
the judge and the Board of Prison Terms and Paroles22 in Mempa and
the superintendent of the BTC in Bernier.
The Supreme Court in Mempa recognized that the trial judge, in
15A proceeding where the issue is whether the child will be found to be
"delinquent" and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution. The juvenile needs the
assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to
ascertain whether he has a defense and to prepare and submit it.
rd. at 36.
6Id. at 42-57.
17389 U.S. 128 (1967).
18Id. at 135.
19 See Moore v. Michigan, 355 U.S. 155 (1957); Townsend v. Burke, 334 U.S.
736 (1948). In Mempa, the Court notes that the illustration by Townsend of
"criticalness" at sentencing might be enough by itself to sustain the right to counsel. 389 U.S. at 134.
20 389 U.S. at 135.
21 265 A.2d at 606.
22The Mempa Court notes that "[t]he actual determination of the length of
time to be served is to be made by the Board of Prison Terms and Paroles within
six months after the convicted person is admitted to prison." 389 U.S. at 135.
MAINE LAW REVIEW
granting probation, had deferred sentence subject to a violation of the
probation terms.2 If the probationer completed his term of probation
in accordance with its terms, he would never receive a judicial determination as to the length of institutionalization.2A Only upon a judicial
finding of a probation violation would actual sentencing in this sense
occur.2 The judge in the Maine juvenile system also does not determine
the length of time the juvenile is to be custodially institutionalized. He
merely has a number of dispositional alternatives, 28 inclusive of a disposition to the BTC, which defer this consideration. A juvenile who
successfully meets the BTC's rehabilitation standards and subsequently
is discharged is never formally sentenced.2 7 Although the juvenile is
initially institutionalized for an indeterminate period after a finding that
he is a juvenile offender, once he is released on entrustment for a substantial period of time and then returned to the Center, the effectuation
of sentence and its length are administratively determined by the superindent of the BTC.2 Admittedly, there is no express statement at the
revocation proceeding which specifies the actual length of time the juvenile is to be further institutionalized. However, the superintendent's
decision to revoke the entrustment and reinstitutionalize the juvenile involves the same value judgments as to the length of sentence, based upon
his own factual determinations, that are considered by a trial judge
when he imposes sentence pursuant to conviction. Thus, the significant
fact in both Mempa and Bernier is that sentencing considerations which
relate to the length of institutionalization are made after a violation of
the probation or entrustment terms.
The Mempa Court also recognized that after the judge determined
that a probation violation occurred, he still did not formally determine
the length of the offender's confinement. Rather, pursuant to statute,
the offender was automatically turned over to the Board of Prison Terms
and Paroles where the formal determination as to the length of sentence was made. 29 To influence this administrative decision of the board,
the judge made recommendations as to the sentence and its length, along
23
1d. at 130.
REV. CODE ANN. § 9.95.240 (1964).
REv. CODE ANN. § 9.95.220 (1964).
2
6ME. REV. STAT. ANN. tit. 15, § 2611(4) (Supp. 1970).
2WASH.
2
5WASH.
27 ME. REV. STAT. ANN.
tit. 15, §
2501 (1964), makes it clear that disposi-
tions are considered as a means to rehabilitation rather than as a sentence based
on the degree of antisocial behavior or acts. ME. REv. STAT. ANN. tit. 15, § 2718
(Supp. 1970), sets out the power of the superintendent to discharge a juvenile
from the BTC.
28 Bernier v. State, 265 A.2d 604, 608 (Me. 1970). The court makes it clear that
the superintendent's discretion in his role as parens patriae is to be used to determine the length of time the juvenile will spend in the BTC.
29 See note 22 supra.
ENTRUSTMENT REVOCATION
with comments about the probationer and the particular circumstances
of the crime.30 In Bernier, the superintendent of the BTC alone determines whether a violation of the entrustment agreement has in fact occurred in addition to how long the juvenile should be further institutionalized. In contrast to Mempa, where, at the very least, the probation
violator was returned to the court for a factual determination of his alleged violation, 31 in Maine the juvenile is brought directly before the
superintendent who can revoke the entrustment for any reason without
a specific finding that a violation has occurred. Furthermore, in Mempa
the judge's recommendations as to the length of sentence were based on
his evaluation of the facts and findings of the revocation proceeding. In
Maine, the superintendent is the only person who evaluates the juvenile's
progress to determine the length of sentence.3
The Mempa Court found that a deferred sentence in conjunction with
a subsequent revocation proceeding created a nexus between the revocation and the length of sentence. It pointed out that when "the eventual
imposition of sentence . . . is based on the alleged commission of offenses for which the accused is never tried," - the factual determinations which lead to revocation have such an effect on the length of sentence that counsel is required.
This connection between revocation and sentence within the Maine
juvenile system was also considered by the First Circuit in Shone v.
State.35 In that case the superintendent of the BTC attempted to revoke
the juvenile's institutionalization within the BTC and transfer him to the
men's reformatory based on his finding that the juvenile was "incorrigible." 36 Although the Shone court disallowed this procedure largely
80
Mempa v. Rhay, 389 U.S. 128, 135 (1967):
[T]he sentencing judge is required by statute, together with the prosecutor, to furnish the Board with a recommendation as to the length of
time that the person should serve, in addition to supplying it with the
various information about the circumstances of the crime and the character of the individual.
31
WASH. REv. CODE ANN. § 9.95.220 (1964).
2
3 Bernier v. State, 265 A.2d 604 (Me. 1970). "What does it matter whether
the child was or was not guilty of a particular offense? His acts may or may not
be the evidence that weighs in the mind of the Superintendent." Id. at 607. This
comment is consistent with the court's interpretation of ME. REv. STAT. ANN.
tit. 15, § 2716 (Supp. 1970), granting a wide degree of discretion to the superintendent in entrustment revocation.
33 Bernier v. State, 265 A.2d 604 (Me. 1970). "The Superintendent by statute
has all the power of a guardian to his ward, and of parents over their child. It is
his discretion that governs entrustment beyond the Center." Id. at 606.
4 Mempa v. Rhay, 389 U.S. 128, 137 (1970).
35406 F.2d 844 (1st Cir. 1969).
36This designation has been dropped from the Maine statutes as a direct re-
MAINE
LAW REVIEW
on grounds of equal protection, 37 it noted that the revocation decision
was connected directly with the length of sentence that the juvenile would
serve in the men's reformatory.3 The superintendent of the reformatory was given the power to return the juvenile to the BTC after a determination that the juvenile had benefitted from his new environment and
was ready to be returned to the BTC.39 However, this decision to return
the juvenile would be influenced by the superintendent of the BTC's report to the superintendent of the reformatory as to the degree of progress
required before a return would be justified. Since the recommendations
embodied in this report directly affected the length of time that the juvenile would spend in the men's reformatory, the initial transfer proceeding to the reformatory was held to require the presence of coun40
sel.
Unfortunately, the Bernier court did not consider this implicit rationale of Shone. It held that the protections of Shone applied only when
there was an administrative transfer to a functionally distinct institution. 41 However, the essence of Mempa, and to a degree Shone, is that
whenever there is an administrative revocation or transfer, the considerations which led to those decisions create a reference point from which
determinations are made which substantially affect the length of institutionalization in the subsequent place of confinement, and that therefore counsel is required at these proceedings.42
It may be argued that a revocation of entrustment is analogous to a
revocation of parole where the original definite sentence is reinstated
upon revocation. However, the important distinction is that the entrustment violator is initially given a deferred sentence so that there has been
sult of Shone. The amended transfer procedure is found in ME. R.v. STAT. ANN.
tit. 15, § 2611(5) (Supp. 1970).
37406 F.2d 844, 847-49 (1st Cir. 1969). Note particularly the court's reliance
on Baxstrom v. Herold, 383 U.S. 107 (1966), where there was a transfer as in
Shone to a functionally distinct institution.
3sThe State reformatory has been renamed The Men's Correctional Center
(MCC). It is an institution where young men between 17-26 may be imprisoned.
ME. REv. STAT. ANN. tit. 34, § 801 (Supp. 1970) describes the function of the
MCC.
-3 ME. REv. STAT. ANm. tit. 15, § 2717 (1964). This section has been repealed
since Shone. See note 36 supra.
40406 F.2d 844, 848 n.13 (1st Cir. 1969).
41
265 A.2d 604, 607 (Me. 1970).
See Specht v. Patterson, 386 U.S. 605 (1967). The Court held that the postverdict finding by the trial judge that Specht was "sexually dangerous" under the
Colorado Sex Offender Act without an opportunity to be heard and a chance to
confront witnesses, was contrary to the due process requirements of the fourteenth
amendment. The finding was "critical" not only because it related to Specht's sentence, but also it created assumptions that had not been questioned in the adjudicative process. Id. at 610.
42
ENTRUSTMENT REVOCATION
no prior determination as to the length of sentence before the revocation
proceeding. In contrast to the parole violator who is reincarcerated to
complete the serving of a definite time period which he had begun serving
before parole was granted, 43 the entrustment violator is reincarcerated
to serve for a "new" period of time which is determined at the revocation proceeding.
The appearance that the original juvenile's commitment is reinstated
does not withstand analysis under Specht v. Patterson." In that case the
petitioner was convicted of a crime but not sentenced for it. Rather, the
trial judge made a post-verdict finding that Specht was "sexually dangerous" under the Colorado Sex Offender Act and invoked the sentencing
features of that Act, an indeterminate commitment. 45 The Supreme Court
held that since invocation of the Act hinged on the judge's post-adjudicative determinations of fact, due process required that the individual be
present with counsel." The finding of "sexual dangerousness" was a
critical new fact; "critical" because it served as the touchstone for invoking the Act, and "new" because it had not been established at the
trial that determined Specht's guilt of the substantive crime. 47 In Bernier,
the finding of the need for reinstitutionalization is a critical new fact
made by the superintendent of the BTC as opposed to the judge in Specht;
critical because the superintendent's findings affect the subsequent length
of institutionfalization, and new because it is based on facts occurring
subsequent to the original juvenile offense.
In short, Specht forbids the unfairness of making determinations which
affect the length of sentence ex parte where the individual has no rights
simply because he previously was convicted of another crime. Similarly,
the fact of previously being found a juvenile offender should not give the
state unlimited discretion to have subsequent proceedings which causally
influence the length of his sentence without the presence of counsel. The
analogy between Specht and Bernier is not compelling when a juvenile
is sent home on entrustment to his parents for a brief period of time,
43 See Eason v. Dickson, 390 F.2d 585 (9th Cir. 1968), where a parole violator
unsuccessfully argued that the revocation of parole on a sentence that ran five
years to life constituted a redetermination of his sentence and as such he had a
right to counsel and a hearing under the Mempa ruling. Although his sentence
was not definite in the traditional sense, it is distinguishable from facts in Bernier
in that the original indefinite sentence was based on punitive rather than rehabilitative grounds. This distinction is highly artificial and it is submitted: Whenever an
indeterminate or possible maximum sentence is substantially disproportionate to
the criminality of the act, the offender has never had a chance to argue facts and
policies which will affect how long he will be incarcerated.
4386 U.S. 605 (1967).
4COL.
REV. STAT. ANN. §§ 39-19-1 to -10 (1963)
day to life).
46 386 U.S. 605, 610 (1967).
47 Id. at 608-09.
(sentence ranging from one
MAINE LAW REVIEW
such as a weekend. But when the juvenile has been home for a year and
a half, it is unfair to confine the juvenile for possibly the remainder of
his minority without a thorough and meaningful adjudication of the facts
and policies which show the need for "new" rehabilitation. 48 The original
judicial finding that he is a juvenile offender and the disposition to the
BTC was based on the juvenile's particular rehabilitative needs at that
time 49 and is too attenuated a basis to support a subsequent reinstitutionalization based on new facts determined ex parte by an administrator. After the juvenile has spent a year and a half at home, especially
during the formative years of adolescence where he has undergone
changes of personality, behavior, and environment, he cannot be considered the same person, with the same rehabilitative needs, who initially
was deemed a juvenile offender.
Additionally, it is unacceptable for the state to justify subsequent confinement, even towards the end of rehabilitation, as a continuation of the
original finding that the boy was a juvenile offender. Where there is a
new and different reason for confinement, only an adjudicatory factfinding proceeding with the presence of counsel can protect the juvenile's
interests. Not only does the juvenile have at stake whether confinement
will necessarily further any rehabilitative goals, but also whether an objective evaluation of the facts and policies leading to revocation has been
presented to the superintendent so that he may determine the length of
the resulting sentence in light of the juvenile's rehabilitative needs.50
Mempa presents another need for counsel at probation revocation:
The chance that "certain legal rights may be lost if not exercised at this
stage." 51In Mempa, the Court spoke specifically of the right to appeal
a plea of guilty and the right to withdraw it at any time prior to the imposition of sentence.5 2 In Bernier,there is also a possibility that the denial
of counsel at entrustment revocation deprives the juvenile of legal rights
which exist within Maine's juvenile court system.
The same range of dispositional alternatives that existed at adjudication is statutorily given to Maine's juvenile courts when "a juvenile is
returned to a juvenile court from the Boys Training Center. . ...
4
3
The
8 The functionally distinct institutions rationale in Shone v. State, 406 F.2d 844
(lst Cir. 1969) is appropriate here where after a year and a half at home a return to the BTC practically, if not theoretically, operates as a transfer from a home
to an institutional environment. See In re Gault, 387 U.S. 1, 27 (1967).
49
See note 27 supra.
50 Mempa v. Rhay, 387 U.S. 128 (1967) sees the role of counsel at the revocation proceeding as "marshalling the facts, introducing evidence of mitigating circumstances and in general aiding and assisting the defendant to present his case
as to sentence.
Id. at 135.
51 Id.
52
1d. at 135-36.
mME.REV. STAT. ANN. tit. 15, § 2611(5)
(Supp. 1970).
ENTRUSTMENT REVOCATION
statute provides, in effect, a chance for the juvenile court system to reconsider its rehabilitative aims in relation to a juvenile's particular needs.
The court may feel that the juvenile's rehabilitative progress could be
accelerated by a disposition other than the BTC.4 Significantly, however, no mention is made in the statute of the triggering mechanism which
brings the juvenile back to the juvenile court for plenary reconsideration
of the dispositional process. It should not be assumed that the sole mechanism for redisposition is the BTC.
In transfer cases such as Shone, it is clear that the juvenile has a right
not only to have the grounds for the potential transfer reviewed by the
juvenile court, but also whether other dispositional alternatives would
be more appropriate. 55 When the superintendent of the BTC attempts
to transfer the juvenile to the men's reformatory, he has determined that
rehabilitation will progress more quickly within the reformatory. 3 When
he grants entrustment to the juvenile's parents, he has decided that rehabilitation will progress more quickly outside the BTC. The transfer
to the reformatory requires counsel who can introduce a full array of
facts to the court for a different dispositional alternative. Like the transfer, the revocation of entrustment is an important moment for the juvenile to be returned to the control of the juvenile court for plenary reconsideration of his case. Hence, included within the rehabilitative goals
of the juvenile court system are valuable statutory procedural rights, providing for alternative dispositions, which should not be exercised without the benefit of counsel.
Gault recognized that the proffered justification for the denial of due
process was primarily based on the rehabilitative goals that supposedly
the informal procedures of the juvenile court system could grant.57 While
not disputing these goals, the Court pointed to the deprivation of liberty that ensued after the juvenile was adjudicated an offenders which
required that certain procedural rights be granted. However, the effect
of the decision is diluted if it does not relate to realities as pervasive as
the type and length of a juvenile's institutionalization, and the right to
have his interests reviewed within the entire spectrum of rehabilitative
alternatives when his sentence is based on a set of facts which will not be
determined by the adjudicative process.
54
ME. REv. STAT. ANN. tit. 15, § 2611(4) (Supp. 1970), provides such alternatives as putting the juvenile in custody of the Department of Health and Welfare, the State Probation and Parole Board, a family, and court-supervised probation.
5
5See note 53 supra.
56
See text accompanying note 38 supra. It is clear that the reformatory (MCC)
is more than a punitive institution. Its purpose is to rehabilitate although by different means than the BTC.
57387 U.S. 1, 21-22 (1967).
5s Id. at 27.
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II.
BEYOND SENTENCING
It should be emphasized that the above analysis has employed the
narrowest possible interpretation of Mempa. 9 The broad interpretation
of Mempa, rather than restricting the application of that case to its
particular facts, attempts to balance the control of administrative discretion with the concept that a grant of probation or parole is a grant
of conditional liberty. 0° As a New York court said in People ex rel.
Coombs v. LaValle,61 "[w]hen all legal niceties are laid aside a proceeding
to revoke parole involves the right of an individual to continue at liberty
or to be imprisoned. It involves a deprivation of liberty just as much as
did the original criminal action .... ," 02 There is no ostensible reason
why the revocation of entrustment should be treated differently than
parole or probation revocations. While the dispositional alternatives and
rehabilitative potential may be greater within the juvenile system, the
return to an institution involves the same deprivation of conditional
liberty.
The most cogent elucidation of this position came from Judge Cele3
breeze in his dissenting opinion in Rose v. Haskins.6
It follows, he reasoned, that if a grant of parole or probation has been granted, a "status"
has been created for the parolee or probationer considerably more desirable than confinement in prison. The petitioner has a direct interest
in maintaining this "status" and, although it is conditional, a deprivation
of that interest is a deprivation of his liberty.r
Moreover, the narrow interpretation of Mempa, with its concomitant
right-privilege analysis of probation and parole, 5 has a more serious
59
See Eason v. Dickson, 390 F.2d 585 (9th Cir. 1968); Rose v. Haskins, 388
F.2d 91 (6th Cir. 1968); Knight v. State, 7 Md. App. 313, 255 A.2d 441 (1969)
(holding Mempa applies only in cases of deferred sentences).
60
See In re Menechino, 57 Misc. 2d 865, 293 N.Y.S.2d 741 (1968); Commonwealth v. Tinson, 433 Pa. 328, 249 A.2d 549 (1969).
61 29 App. Div. 2d 128, 286 N.Y.S.2d 600 (1968).
62 Id. at 131, 286 N.Y.S.2d at 603.
W388 F.2d 91, 97 (6th Cir. 1968).
64
Id.
at 99.
65 The idea that probation and parole are no more than statutory privileges
comes from what has been termed "a most pernicious dictum" in Escoe v. Zerbst,
295 U.S. 490 (1935). In that case the Court ruled the federal probation statute
had been disobeyed and that the probationer was entitled to a hearing, but went
on to say, "[p]robation or suspension of sentence comes as an act of grace to one
convicted of a crime, and may be coupled with such conditions in respect of its
duration as Congress may impose." Id. at 492-93. The great majority of cases have
not found Escoe affected in any way by Mempa; in part this may be attributed to
Mempa's failure to mention Escoe. For a good discussion of the distorting effect
Escoe has had on a broad application of Mempa see Cohen, Sentencing, Probation,
and the Rehabilitation Ideal: The View From Mempa v. Rhay, 47 T xAs L. Rv.
1, 33-35 (1968).
ENTRUSTMENT REVOCATION
consequence. Not only is parole revocation exempt from due process
standards because sentence has already been conferred, but probation
hearings, which occur subsequent to the trial judge's imposition of a
formal sentence immediately pursuant to conviction, also are not considered to require due process standards. 6 The temptation for an overworked judicial system to relinquish control over an individual after adjudication is enormous. Thus, the narrow interpretation of Mempa has
a tendency to atrophize the role of counsel and the entire judicial process
by encouraging courts to sentence immediately after adjudication. 7 That
the Mempa Court did not intend such a result is clear: "In sum, we do
not question the authority of the State of Washington to provide for a
deferred sentencing procedure coupled with its probation provisions.
Indeed, it appears to be an enlightened step forward." " The effect of
sentencing immediately after adjudication, however, could well rob the
juvenile court system of one of its true rehabilitative goals.
The right to counsel has steadily expanded with the Supreme Court's
recognition that certain administrative action falls within the "critical"
areas where constitutional protections must be imposed.69 In Miranda v.
Arizona 0 and United States v. Wade, 71 the Court took cognizance of
the potential prejudicial effect interrogations and lineups created for an
objective analysis of the defendant's guilt in the subsequent trial. The
need for counsel, however, did more than protect individuals on an ad
hoc basis. It forced the police to create definite standards to conform to
constitutional standards. Counsel assumed the vital role of protecting
the efficacy of the criminal process at the stage before the formal judicial role could intervene. 72 Otherwise, as the Miranda Court pointed
out, the constitutional protections could easily become formalisms in
66See Knight v. State, 7 Md. App. 313, 255 A.2d 441 (1969); John v. State,
160 N.W.2d 37 (N.D. 1968).
67
For a full discussion of deferred sentencing see ABA PROJECT ON MINIium
STANDARDS
FOR CRIMINAL JUSTICE-SENTENCING
ALTERNATIVES
AND
PROCEDURES
(Tent Draft, 1967).
68389 U.S. 128, 137 (1967).
69See In re Winship, 397 U.S. 358 (1970); Kent v. United States, 383 U.S. 541
(1966), for due process protections the Court imposed on the juvenile court sys-
tem other than those enumerated inGault. See also Baxstrom v.Herold, 383 U.S.
107 (1966), where the Court found an ex parte transfer from a civil to a crim-
inal hospital could not be done without the same constitutional protections
granted to an individual who was sent to the criminal hospital after full judicial
adjudication.
70 384 U.S. 436 (1966).
71388 U.S. 218 (1967).
721n Miranda v. Arizona, 384 U.S. 436, 466 (1966), the Supreme Court said,
"[that counsel ispresent when statements are taken from an individual during
interrogation obviously enhances the integrity of the fact-finding processes in
court
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the hands of skillful administrators."3 The Court broadly intimated that
the administrative process contains an inherent flaw which the right to
counsel has to correct; administrative discretion incorporates the accusatorial, adjudicative, and even sentencing process without any of the
counterweights that the formal structure of the criminal process requires.
Moreover, many administrative actions might dilute the protections afforded during the formal judicial process.7 4 While the prejudicial effect
of such administrative actions may seem clear in pre-adjudicative police
action, courts were reluctant until Mempa to curtail the broad range of
administrative discretion after formal adjudication.
The inherent inability of the administrative process to protect the individual's interests in proceedings which led to the deprivation of the defendant's liberty was paramount in Gault2'5 In denying the right to counsel, the Arizona Supreme Court pointed to the probation officer's role of
70
looking after the interests of juveniles within the juvenile court system.
The United States Supreme Court, however, recognized that the probation officer's role as counsel for the juvenile was hopelessly compromised
by his other duties of serving as an arresting officer and witness against
the child.7 7 The result of a finding of delinquency was too serious to
leave to the discretionary protections of the administrative process.
The challenge to the courts, and specifically to the Supreme Court, is
to expand the Miranda, Wade, Gault, and Mempa rationale to a finding
of "criticalness" beyond the formal imposition of sentence. The symmetry
of the relationship of "criticalness" to liberty has broken down once
sentence has been imposed. However, the criticalness of the deprivation
of liberty in any stage in the criminal process is not abated for an individual because of theoretical distinctions.
73Id. at 449-55.
74 The real danger that unbridled administrative discretion creates is that it
may make the formal judicial mechanism meaningless. See note 60 supra.
75 387 U.S. 1 (1967). "It is claimed that juveniles obtain benefits from the special procedures applicable to them which more than offset the disadvantages of
denial of the substance of normal due process." Id. at 21. In response the Court
noted, "[f]ailure to observe the fundamental requirements of due process has resulted in instances, which might have been avoided, of unfairness to individuals
and inadequate or inaccurate findings of fact and unfortunate prescriptions of
remedy." Id. at 19-20.
7
6 ld.
7
at 35.
d.at 36.