Hyser v. Reed

BAZELON, Chief Judge, and EDGERTON, Circuit Judge

(concurring in part and dissenting in part).

Appellants allege that the hearings offered by the Board fall short of statutory and constitutional requirements because they do not include inter alia: (1) an opportunity to confront and cross-examine the witnesses and inspect the documents the Board relies on to establish parole violations; and (2) appointment of counsel for parolees who cannot afford to retain counsel.

Ordinarily, perhaps, our view of these claims should await their disposition by the Board in the newly offered hearings. But the Government asserts that they will be denied. Further delay in the already protracted controversies would therefore impose unnecessary hardship on the Board as well as the appellants. Accordingly our decision of the issues raised by appellants is requested.

I

Before we can decide what procedural safeguards must accompany any proceeding, we must consider the nature of the determinations which are to result from that proceeding. As we read the statutes, at least two distinct determinations must be made before parole is revoked. The first is whether the arrested or retaken parolee has violated a specifically charged condition of his parole. If he has not, he must be permitted to remain at liberty, regardless of any predictive judgment regarding his dangerousness.¹ The second determination is whether, if a violation is found, it warrants modification or revocation of parole.²

The two determinations differ fundamentally in nature. The first is factual and retrospective, involving no discretion or expertise. The second is prospective, involving a high degree of discretion, expertise and even educated guess. Congress recognized this distinction by providing for different methods of making the two determinations. The decision whether a condition was violated may be made by “the Board, a member thereof, or an examiner designated by the Board” after the retaken prisoner has been “given an opportunity to appear * * * ” 18 U.S.C. § 4207. The dispositional decision — what to do about the violation — may be made only by “the Board * * * in its discretion,” and the statute does not seem to contemplate a hearing on this issue.

II

We now describe, in general terms, the procedures pursuant to which we think the different determinations should be made. We do not discuss the procedure to be followed in issuing an administrative arrest warrant. Our discussion assumes that the parolee has been arrested, incarcerated in a local jail, and informed of the violation charged.

A. If the parolee does not deny the violation, or if he has been validly convicted of a crime which constitutes the violation, we think an informal interview should be held to permit him to explain the violation, and to submit any documents or voluntary testimony bearing on his general character and probable future behavior that he wishes the Board to consider in its dispositional determination. Since the occurrence of the violation is not in dispute, the interview does not require safeguards which attend factual determinations. The Government need not introduce evidence, and representation by counsel need not be permitted.

B. If the parolee denies the violation and has not been validly convicted of a crime which constitutes the violation, he must be given a suitable hearing to determine whether the violation occurred. The Government should be required to produce all the evidence relied upon to prove the violation, and the parolee must of course be permitted to produce all his evidence tending to • disprove it. He should also be permitted to introduce any evidence for the Board’s consideration in the dispositional decision which must be made ultimately if the violation is found.

These hearings ³ must be held before “the Board, a member thereof, or an examiner designated by the Board,” and in a location reasonably near the source of the relevant information.⁴

If the Government fails to establish the charged violation, the parolee must be released. If he does not deny, or a valid conviction establishes, or the examiner reasonably finds, that the charged violation occurred, the record of the hearing should be sent to the Parole Board which may consider all the material it deems relevant and must decide, in the exercise of its expert discretion, whether to revoke, modify or leave unchanged the parolee’s limited freedom.

III

We now consider whether the relevant statutes and constitutional provisions guarantee the traditional safeguards of confrontation and cross-examination of the witnesses and inspection of the documents relied on by the Board to establish a violation. The parolees in these cases who have admitted or been convicted of acts constituting the charged violations have, in our opinion, had adequate hearings. No questions have been raised concerning the Board’s dispositional determinations. We therefore discuss only the hearings offered those parolees who have denied and have not been convicted of acts constituting the charged violations, and only that aspect of the hearings which relates to the alleged occurrence of the violation.

In Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959), appellant had been denied security clearance-after an administrative hearing in which he was denied “the traditional procedural safeguards of confrontation and cross-examination.”⁵ Before examining-in detail the nature and purpose of the hearing, the Court considered whether denial of these protections by an administrative agency was of questionable constitutionality. In concluding that it was, the Supreme Court said:

“Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s ease must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots. They find expression in the Sixth Amendment which provides that in all criminal cases the accused shall enjoy the right ‘to be confronted with the witnesses against him.’ This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases [citing cases], but also in all types of cases where administrative and regulatory actions were under scrutiny. [Citing cases.]” ⁶

Having decided that the action of the ■administrative agency raised constitutional questions, the Court said it would not pass on them unless it was “clear that the President or Congress, within their respective constitutional powers, specifically has decided that the imposed procedures are necessary and warranted and has authorized their use.”⁷ The Court required more than implicit “ae■quiescence or nonaction.” ⁸

“[Such decisions] must be made explicitly not only to assure that individuals are not deprived of cherished rights under procedures not actually authorized * * * but also because explicit action, especially in areas of doubtful constitutionality, requires careful and purposeful consideration by those responsible for enacting and implementing our laws. Without explicit action by lawmakers, decisions of great constitutional import and effect would be relegated by default to administrators who, under our system of government, are not endowed with authority to decide them.” ⁹

The Court found that the required specific authorization was lacking. It made clear that this procedure must be followed in all cases of constitutional doubt, “even in areas where it is possible that the Constitution presents no inhibition.” ¹⁰

We must deal with appellants’ constitutional claims in the light of the foregoing principles. The Government argues that the Parole Board’s denial of appellants’ request to confront and cross-examine those who informed the Board of alleged parole violations raises no substantial constitutional question. It cites, inter alia, Fleming v. Tate, 81 U.S.App.D.C. 205, 156 F.2d 848 (1946), where we said that “[n]o constitutional right is involved, as parole is a matter of grace.” Although the doctrine that “matters of grace” can give rise to no constitutional questions may have been supportable under the authorities available in 1946, we think it conflicts with later Supreme Court pronouncements. Some of the most important and far-reaching of the Court’s recent constitutional decisions have involved matters .which would formerly have been considered “of grace.” See, e. g., Greene v. McElroy, supra; Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957); and cases cited in Greene, 360 U.S. at 492, 79 S.Ct. at 1411.

The elements of due process vary with the nature of the proceeding, but there can be no doubt that the requirement of due process applies to every type of Government proceeding. As the Supreme Court recently said:

“ ‘Due process’ is an elusive concept. Its exact boundaries are undefinable, and its content varies according to specific factual contexts. Thus, when governmental agencies adjudicate or make binding determinations which directly affect the legal rights of individuals, it is imperative that those agencies use the procedures which have traditionally been associated with the judicial process. On the other hand, when governmental action does not partake of an adjudication, as for example, when a general fact-finding investigation is being conducted, it is not necessary that the full panoply of judicial procedures be used. Therefore, as a generalization it can be said that due process embodies the differing rules of fair play, which through the years, have become associated with differing types of proceedings. Whether the Constitution requires that a particular right obtain in a specific proceeding depends upon a complexity of factors. The nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding, are all considerations which must be taken into account.” ¹¹

This leaves no doubt in our minds that the Parole Board’s denial of the traditional safeguards of confrontation, cross-examination and inspection raises serious constitutional questions.¹²

A parole revocation seems to us more like a “binding [determination] which directly affect[s] the legal rights of individuals” than “a general fact-finding investigation.” It seems to follow that the traditional safeguards are required. But we need not — indeed we may not— undertake to decide this complex constitutional question until we are certain that Congress has explicitly undertaken to authorize the Parole Board to conduct revocation hearings without the saféguards of confrontation, cross-examination and inspection. No such explicit authorization is claimed. We must therefore conclude that the Parole Board has no authority to conduct parole revocation proceedings without these traditional safeguards.

The majority makes several arguments against the right of confrontation, cross-examination and inspection at parole violation hearings. It argues first that these rights should not apply because they do not apply in probation revocation the most “comparable” legal proceeding. But no specific violation of a condition need be found in order to revoke probation. See, e. g., Kaplan v. United States, 234 F.2d 345 (8th Cir. 1956). Probation may be revoked solely on the basis of predictive judgments about likely future behavior. See, e. g., Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266 (1932). Such judgments do not require the same safeguards as determinations of specific past acts. That certain rights do not apply to probation revocation may have some relevance to the question of what rights apply to the second parole revocation determination, i. e., the disposition that should be made of the parole violator, but has no relevance to the determination whether the parolee violated a specific condition of his parole.

The same may be said of the majority’s second argument that because a state judge may use “out-of-court information to assist him in the exercise” of his discretion in sentencing, Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), the traditional safeguards do not apply to parole violation hearings. A sentencing judge does not have to find specific facts on which to rest the sentence.¹³ The facts which authorize him to impose sentence have already been found in a trial at which the accused is fully protected. The trial judge has only to make a dispositional determination, a decision similar to that which the Parole Board makes after it is determined that a parolee has violated his parole. As the Supreme Court said in Williams: for a trial judge before verdict the issue is whether a defendant is guilty of “having engaged in certain criminal conduct of which he has been specifically accused. * * * A sentencing judge, however, is not confined to the narrow issue of guilt. His task * * * is to determine the type and extent of punishment after the issue of guilt has been determined.” 337 U.S. at 246-247, 69 S.Ct. at 1082-1083.¹⁴ Williams v. New York therefore militates in favor of, rather than against, the parolee’s right to confrontation, cross-examination and inspection of the sources relied upon to establish the “conduct of which he has been specifically accused.”

The majority also argues that protections required in an “adversary” process should not be required in a parole revoeation proceeding, which is not “an adversary proceeding in the usual sense,” because there is “a genuine identity of interest if not purpose” between the parolee and the Board. “In a real sense the Parole Board in revoking parole occupies the role of parent withdrawing a privilege from an errant child not as punishment but for the misuse of the privilege.” But whatever general philosophy underlies parole revocation, when the Board tells a parolee that he has done a specific act for which his parole may be revoked, and he denies it, there are “adverse, conflicting objectives,” not “genuine identity of interest,” at least in regard to the specific issue in dispute. Our consideration of the way to resolve this dispute cannot end with an assertion that it does not exist.

We would hold that unless the parolee does not deny the violation charged or has been validly convicted of a crime constituting the charged violation, he must be given an opportunity to confront and cross-examine all witnesses and inspect all documents on which the Government relies to prove the violation.

IV

We turn next to the question whether, because parolees who can afford to hire counsel may be represented at parole revocation hearings, parolees unable to afford counsel have a right to appointed counsel at such hearings. Here again we are considering only the hearing at which it is sought to establish an alleged violation.

In 1946 we construed the District of Columbia Code provision that parolees “shall be given an opportunity to appear before [the Parole] Board” as requiring “an effective appearance” which “necessarily means the presence of counsel.”¹⁵ Congress soon amended the Code to provide specifically that a parolee “may be represented by counsel.” ¹⁶ In 1957¹⁷ we reversed a determination by the Board that a parolee who had not been advised of his right to representation waived it by failing to ask for counsel. In holding that the right could not be waived except by “ ‘intentional relinquishment or abandonment’ of that ‘known right or privilege,’ ”¹⁸ we pointed out why representation by counsel is imperative and approved the statement of the trial court in the Tate case, supra, note 15, that “the right of counsel is no less important in an administrative hearing on a revocation of parole, than it is in a judicial proceeding.”¹⁹ In 1959 we upheld a parolee’s right to counsel under the Federal statute whose language, “an opportunity to appear,” was almost identical with the language of the D.C.Code when we construed it in 1946.²⁰

The present case is the first in which, we are called upon to decide whether the right to be represented at a parole revocation hearing applies to a parolee who cannot, as well as to one who can, afford to hire counsel. In the recent case of Reed v. Butterworth²¹ we declined to “express an opinion” on whether the right is “limited to counsel retained or otherwise secured by [parolee],” because this was “not in issue” in that appeal.²² Some earlier opinions contain statements to the effect that appointment of counsel for indigents is not required. But since all of those cases involved parolees who, as far as appears, were able to retain counsel, the statements are dicta and not controlling here. Therefore we must now decide whether the reasons which convinced us that Congress, in requiring a hearing, intended representation for a parolee who can afford to retain counsel, apply also to one who cannot.

That Congress did not specifically provide for appointment of counsel should not lead us to conclude that such appointment was not intended. In the absence of an explicit statement either way, we should not impute to Congress an intent to discriminate between parolees unable to afford counsel and others in similar danger of losing their freedom. If, as we have repeatedly held, the serious consequences of parole revocation make the right to counsel so critical that Congress must be deemed to have intended it as part of a required hearing, Congress must be deemed to have intended it for all.²³

Furthermore, were we to construe the statutory grant of the right to counsel as intended only for those who can pay, substantial constitutional questions would arise.²⁴ Although the Federal Government is not directly limited by an “equal protection of the laws” clause, the Supreme Court has held that “discrimination [by the Federal Government] may be so unjustifiable as to be violative of due process.”²⁵ ’The Supreme Court has repeatedly held that in criminal trials, discrimination “on account of poverty” is as unjustifiable as discrimination “on account of religion, race, or color,” because it “bears no rational relationship to a defendant’s guilt or innocence.” Griffin v. Illinois, 351 U.S. 12, 17-18, 76 S.Ct. 585, 589-590, 100 L.Ed. 891 (1956). Poverty bears no-more relationship to the question of parole violation than to the question of guilt. Therefore congressional discrimination against parolees who cannot afford counsel would raise serious problems of due process of law. To avoid such problems we should construe the statute to provide for the appointment of counsel for such parolees. Cf. Lynch v. Overholser, 369 U.S. 705, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962).²⁶

V

Appellants also argue that so long as the Board maintains that compulsory process is unavailable, it must, at least, either hold the hearing in a district reasonably calculated to facilitate the voluntary appearance of parolees’ witnesses, or else defray the reasonable costs of securing such witnesses where the parolee is unable to pay for their appearance. Since the majority agrees that a hearing must be held in a district reasonably calculated to facilitate the voluntary appearance of parolees’ witnesses, we do not discuss this issue.

VI

Briefly, the gist of our position in these cases upon the foregoing matters is as follows:

I. Parole may not be revoked unless it is established, by failure to deny, conviction or administrative determination, that a specific charged condition of the parole has been violated.

A. If a retaken parolee denies the charged violation and has not been validly convicted of an offense constituting the violation, an issue of fact arises which must be resolved pursuant to administrative hearing.

1. At this hearing the parolee must have an opportunity to cross-examine all witnesses and examine all documents relied on by the Board to establish the violation.

2. He must also be permitted to introduce whatever voluntary evidence relating to his general character and likely future behavior he wishes the Board to consider when it makes its dispositional decision in the event that the violation is established.

3. The hearing must be held within a reasonable time after the retaking of the parolee and at a location reasonably near the source of most relevant information.

4. Since retained counsel is permitted at such a hearing, counsel must be assigned to represent those who cannot afford to retain counsel and who request such aid.

B. If a retaken parolee does not deny the charged violation or has been validly convicted of an offense constituting the violation, an informal interview should be held.

1. At this interview the Parole Board need introduce no evidence for cross-examination or inspection, but the parolee may introduce whatever voluntary evidence relating to his general character or likely future behavior he wishes the Board to consider when it makes its dispositional decision.

2. The interview must be held reasonably near the source of most relevant information.

3. Counsel need not be permitted at this interview.

II. Once it is established, either by failure to deny, conviction or administrative determination, that a violation has occurred, the Board itself must decide whether to revoke the parole, modify its conditions, or leave the situation unchanged. If it decides to revoke, it must decide how much of his remaining sentence the parolee should be required to serve. The Board has wide discretion in deciding what disposition to make of a parole violator, and may generally rely on whatever information it deems relevant without disclosing its nature or source to the parolee.

VII

We would resolve the specific cases before us in the following manner:

Appellants Thompson' (No. 16873), Neiswenter (No. 17041), and Fitzpatrick (No. 17042) have admitted or been convicted of acts constituting the charged violations. Since they do not challenge the dispositional determination, no relief would be appropriate under our view.

Appellant Jamison (No. 17059) denies each of the violations with which he is charged. Had he not been arrested on these charges, he would now be out of the custody of the Attorney General since his original sentence would have expired on July 21, 1960. We would therefore order his immediate release. See Glenn v. Reed, 110 U.S.App.D.C. 85, 289 F.2d 462 (1961).

Appellant Jatoft (No. 16806) and Williamson (No. 17043), in effect, deny the violations with which they were charged but would still be in the custody of the Attorney General, even if they had not been arrested on parole violators warrants. We would require therefore that they immediately be afforded the hearings we have described.

The records are unclear as to appellants Hyser (No. 16716) and Whitling (No. 16811). Hyser would be out of the custody of the Attorney General but for his alleged parole violation. The record, however, does not show whether he admitted or was convicted of an act constituting a charged violation. Whitling was not convicted of an act constituting a charged violation. The record, however, does not show whether he would still be in the custody of the Attorney General but for his alleged violation. Nor does it show whether his “admission” of the violation was coerced as he claims, or freely made, as the Board claims. We would therefore remand these two cases to the District Court for determination of those issues and dispositions in accordance with the principles we have set forth.

1 . The majority agrees that parole cannot be revoked unless there is a determination that the parolee has violated a specifically charged condition of his parole. (See, e. g., pp. C34, 240, 243.)

The Government seems to argue that, although the Board, as a matter of policy, will not revoke parole absent a violation, the statute and the Constitution leave it free to do so. We disagree. The l-elevant statutes clearly seem to contemplate violation of a specifically charged condition of parole as requisite to revocation. See 18 U.S.C. § 4205.

Moreover, as the Government states in its brief in Neiswenter (p. 33): “Under the parole statutes a retaken parolee suffers a penalty for his violation. While, in the absence of a violation, the time he is out on parole is credited towards liis sentence, a violation tolls the running of the sentence . . . and the warrant, if timely and validly issued, may be executed after the original expiration date of the sentence.” Thus if parole is revoked, the parolee’s sentence — the period of time during which he is in the custody of the Attorney General — is actually increased. The Supreme Court has recently said that “[w]hile [parole] is an amelioration of punishment, it is in legal effect imprisonment.” Anderson v. Corall, 263 U.S. 193, 196, 44 S.Ct. 43, 44, 68 L.Ed. 247 (1923); quoted in Jones v. Cunningham, 371 U.S. 236, 242 note 17, 83 S.Ct. 373, 376, 9 L.Ed.2d 285 (1963).

The Constitution would not permit an increase in a parolee’s sentence without a determination that he has committed some new wrong against which he had been specifically warned. See Ex Parte Lange, 18 Wall. 163, 85 U.S. 163, 172, 21 L.Ed. 872 (1873). Cf. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). It follows that a violation must be established before the Board may revoke parole and bring this penalty provision into operation. And there is no indication that Congress did not intend this. See Note, 72 Yale L.J. 368, 378 (1962); Wright v. Settle, 293 F.2d 317 (8th Cir. 1961) (“The basis under which the statutes allow the Board to act is the existence of a violation of the conditional release or parole.” Id. at 318.)

2 . If the Board decides to revoke, it must also determine how much of his remaining sentence the parolee should be required to serve.

3 . In providing that a retaken parolee “shall be given an opportunity to appear,” the statute does not explicitly provide for different types of hearings depending on whether the occurrence of the violation is in dispute. But it is reasonable to assume that Congress intended the hearings to be suited to the nature of the inquiry.

4 . If the violation is in dispute, the hearing should be reasonably near the place of the alleged violation; whereas if the violation is not in dispute, the hearing should be reasonably near the parolee’s parole district, which would usually be the source of most relevant information about his general character and likely future behavior.

5 . 360 U.S. at 493, 79 S.Ct. at 1411.

6 . 360 U.S. at 496-497, 79 S.Ct. at 1413.

7 . 360 U.S. at 507, 79 S.Ct. at 1419.

8 . Ibid.

9 . Ibid.

10 . Id. 360 U.S. at 508, 79 S.Ct. at 1419. In the Greene case the Court found no explicit authorization of the questioned denials of safeguards and therefore reversed appellant’s security revocation.

In Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960), the Court followed the same procedure, finding there that Congress had explicitly authorized the questioned denials of confrontation and cross-examination in fact-finding hearings before the Commission on Civil Rights, and holding that because of the exclusively investigatory nature of the Commission, the due process clause did not require those procedural safeguards. And in Cafeteria Workers v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961), the Court also followed this procedure, finding explicit authorization for the commanding officer summarily to withdraw a cook’s permission “to work at one isolated and specific military installation,” and holding that, since the action “would in [no] way impair [her] employment opportunities anywhere else” and since it was not based on any specific finding of fact, the due process clause did not require a hearing.

11 . Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1514, 4 L.Ed.2d 1307 (1960).

12 . See Fleenor v. Hammond, 116 F.2d 982, 132 A.L.R. 1241 (6th Cir. 1941); Weihofen, Revoking Probation, Parole or Pardon without a Hearing, 32 J. of Crim. L. & Criminology 531 (1941).

13 . Moreover, the Court pointed out that “The accuracy of the statements made by the judge as to appellant’s background and past practices was not challenged by appellant or his counsel, nor was the judge asked to disregard any of them or to afford appellant a chance to refute or discredit any of them by cross-oxamination or otherwise.” 337 U.S. 244, 69 S.Ct. at 1081. Here we are concerned with parolees who do challenge the accuracy of factual determinations and do seek a chance to refute or discredit them.

14 . The majority say that we equate parole processes with criminal prosecution, disregarding the philosophy of parole revocation and the question whether the rights of confrontation, cross-examination and inspection would result in “gain to the parolee or to society.” The majority appears to assume that because the question, whether or not the “protections” of confrontation, cross-examination and inspection are appropriate in parole violation hearings, involves such broad considerations of policy, the question should first be decided by Congress, after full and careful evaluation of empirical data and competing values. We agree with this assumption. Because Congress has not given the matter such consideration, or explicitly decided that the procedural safeguards should be withheld, we think the Board should not withhold them. See Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed. 2d 1307 (1960). If Congress decided that they should be withheld, the decision would of course carry great weight. But precisely because decisions affecting the traditional safeguards are so crucial and involve such broad policy considerations, they should not “be relegated by default to administrators who, under our system of government, are not endowed with authority to decide them.” Greene v. McElroy, 360 U.S. 474, 507, 79 S.Ct. 1400, 1419, 3 L.Ed.2d 1377 (1959). This is what the majority decision does. It sustains administrative practices of doubtful constitutionality without contending that Congress has explicitly undertaken to authorize them. Cf. Comment, Deportation and Exclusion: A Continuing Dialogue Between Congress and the Courts, 71 Yale L.J. 760 (1962); Biekel & Wellington, Legislative Purpose and the Judicial Process: The Lincoln Mills Case, 71 Harv.L.Kev. 1 (1957); Borrow v. Federal Communications Comm., 109 U.S.App.D.C. 224, 228, 285 F.2d 666, 670 (dissenting opinion of Judge Washington), cert. denied, 364 U.S. 892, 81 S.Ct. 223, 5 L.Ed.2d 188 (1960).

15 . Fleming v. Tate, 81 U.S.App.D.C. 205, 206, 156 F.2d 848, 849 (1946). We also held that “an effective appearance * * * necessarily means * * * the receipt of testimony if [the parolee] has testimony to present.” Ibid.

16 . See D.C.Code, § 24-206.

17 . Moore v. Reid, 100 U.S.App.D.C. 373, 376, 246 F.2d 654 (1957).

18 . We were here quoting from Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), which held that “The Sixth Amendment with holds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel.” 304 U.S. at 463, 58 S.Ct. at 1022.

19 . 100 U.S.App.D.C. at 374, 246 F.2d at 655.

20 . Robbins v. Reed, 106 U.S.App.D.C. 51, 269 F.2d 242 (1959). We there noted that the “amendment * * * enacted subsequent to Fleming v. Tate * * * does not militate against our construction of the federal statute which, has not been made explicit in this respect, for in Fleming v. Tate we construed the local statute to permit representation by counsel before the amendment, when in all essential respects the District of Columbia Code was worded as the federal statute is now worded.” 106 U.S.App.D.C. at 53 n. 2, 269 F.2d at 244 n. 2. The Government in this case correctly assumes “that the federal and District of Columbia statutes are to be construed identically with respect to the right of counsel.” Appellees’ brief in Hyser v. Reed, p. 18, n. 12.

21 . 111 U.S.App.D.C. 365, 297 F.2d 776 (1961).

22 . 111 U.S.App.D.C. at 366 n. 1, 297 F.2d at 777 n. 1.

23 . Cf. Address by Attorney General Kennedy, American Bar Association, Aug. 6, 1962 (Department of Justice Press Release) at pp. 4-7, concerning representation of indigents.

24 . The majority makes two arguments against the proposition that the appointment of counsel may now be constitutionally required in parole revocation hearings. It claims that “In Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962), the Supreme Court did not place an indigent’s right to counsel * * * in judicial proceedings on any command of the Constitution, but more narrowly on its interpretation of a statute, 28 U.S.C. § 1915.” But the Supreme Court said in that case that “we have been impelled by considerations beyond the corners of 28 U.S.C. § 1915, considerations that it is our duty to assure to the greatest degree possible, within the statutory framework * * *, equal treatment for every litigant before the bar.” Id. 369 U.S. at 446-447, 82 S.Ct. at 921-922, emphasis supplied.

The majority points out that “No case has yet held that an interested party in an administrative or regulatory proceeding is entitled to be furnished with counsel if he cannot afford one of his own choice.” The majority does not point out that there has never been an authoritative pronouncement that one unable to afford counsel is not entitled to assigned counsel at such proceedings. That there is a paucity of cases raising this issue probably results from the fact that in immigration proceedings, which form the bulk of administrative actions affecting the poor, there are voluntary organizations which stand ready to represent any party in danger of serious deprivation. It is not .a valid argument against the existence of the right.

25 . Bolling v. Sharp, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954).

26 . It may not be within the judicial province to appoint counsel in administrative hearings. But this does not affect our duty to decide whether the right to appointed counsel is created either by statute or by the Constitution. See e. g., Powell v. Alabama, 287 U.S. 45, 60, 53 S.Ct. 55, 60, 77 L.Ed. 158 (1932), where the Supreme Court apparently recognized that it was powerless to appoint counsel to appear in Alabama state courts, but concluded that this docs not affect “[t]he question * * * which it is our duty, and within our power, to decide * * * whether the denial of the assistance of counsel contravenes the due process clause * *

See also Report of the Attorney General’s Committee on Poverty and the Administration of Justice (Feb. 25, 1963), 120, 115, where the distinguished Committee urged “strongly that the right to counsel at parole revocation hearings” cannot fairly be confined to those financially able to purchase it and that the “situation as it has now developed gives rise to serious inequity * * * ” and said:

“As a practical matter, it has been doubted that the Board has or can properly be given authority to require attorneys to provide representation in these cases and it has been questioned whether the courts possess authority to appoint counsel to serve in administrative hearings, like the parole revocation proceedings. Without attempting to resolve these issues, the Committee points out that the adoption of a plan of adequate representation in the federal courts * * * would make a significant contribution to the problem of representation before the Board. There can at least be no doubt that Congress might properly authorize the federal public defender to assume the obligations of such representation in those districts that elect the public defender system. It is clear, however, that the Department needs to give further consideration, not only to the problem of supplying counsel, but to the other elements of fair hearing in the revocation proceedings.” [Id. at 116-17.]