Priced Out of Freedom: Fees, Fines, and Representation in Parole & Probation Revocation

Whether someone is appointed counsel in a probation or parole hearing is nuanced and varies widely depending on the jurisdiction in which they’re located. This is especially challenging because a quarter of revocations are due to technical violations, many of which stem from an inability to pay legal financial obligations (LFO). Despite the Supreme Court’s holding in Bearden v. Georgia that probation cannot be revoked for an inability to pay without proof of willful nonpayment and consideration of alternatives, there is no universal right to appointed counsel when revocation is triggered by nonpayment. This memorandum presents research on the governing policies regarding probation and parole revocation hearings in each state, with a deeper analysis of eleven states, focusing on incarceration for unpaid legal financial obligations, the procedures used to impose sanctions, and the application of the right to appointed counsel in these proceedings. The authors classify states into three categories: categorical (automatic right to appointed counsel for indigent individuals), discretionary (judges decide on a case-by-case basis), or qualified (partial or ambiguous right) in granting access to appointed counsel. They conclude that the limited and inconsistent right to counsel in revocation proceedings undermines due process and perpetuates cycles of poverty and incarceration. 

You can read the full text here.  

Key Findings:

• The Supreme Court has recognized limited due process rights in revocation hearings (e.g., Bearden v. Georgia, Morrissey v. Brewer, Gagnon v. Scarpelli), but protections are inconsistently applied.
• Of the eleven states that were analyzed, all  are categorized as categorical for probation; for parole, six states are discretionary, and the remaining five are categorical.
• California eliminated probation supervision fees under A.B. 1869, but fines and restitution remain mandatory.
• New Mexico has preliminary parole revocation hearings that do not guarantee counsel, even for indigent individuals; appointment is left to the parole board’s discretion.
• Preliminary research in 39 states shows similar inconsistencies, underscoring the arbitrariness of protections in revocation hearings nationwide.

Recommendations:

• Expand protections to ensure indigent individuals have appointed representation when their freedom is at stake.