These cases present important questions :
(1) Whether the Sixth Amendment and the due process clause of the Fourteenth Amendment require the states to appoint counsel for indigents faced with possible revocation of parole.
(2) Whether the due process clause of the Fourteenth Amendment requires that the states grant to a parolee faced with possible revocation reasonable notice of his alleged default and opportunity to rebut the same including opportunity to be heard pro se and to present voluntary witnesses in his own behalf.
We answer the first question with a qualified “no” and the second one “yes”.
I.
Midgett’s case presents the first of the questions previously framed. On November 15, 1949, Midgett was convicted of rape and sentenced to a term of 30 years in the Virginia State Penitentiary. Nearly ten years later he was paroled and remained free under supervision for nearly seven years, until on March 23, 1966, his parole status was revoked and he was returned to custody. At the time of revocation Midgett was not represented by counsel and none was proffered him. Implicit in the state’s brief is the concession that if demand had been made for free counsel it would have been denied. Midgett does not urge upon us that the reason for revocation was inadequate or unlawful or that the parole authority proceeded arbitrarily and capriciously, but, instead, limits his appeal to the first question — whether an indigent has a constitutional right to have counsel furnished by the state when faced with possible revocation of parole.
The answer is to be found in the penumbra of Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). On its face, Mempa is a narrow decision limited to “the question of the extent of the right to counsel at the time of sentencing where the sentencing has been deferred subject to probation.” 389 U.S. at 130, 88 S.Ct. at 254.
In his opinion for the Court, Mr. Justice Marshall reviewed the evolution of the right to counsel in a criminal trial from Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948) (during sentencing), to Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957) (hearing after guilty plea on the degree of the crime), to Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961) (arraignment), and concluded that after Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the decided cases clearly stand for the proposition “that appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” 389 U.S. at 134, 88 S.Ct. at 257. The Court then equated “revocation of probation” with “deferred sentencing” and held that the Constitution required the assistance *1092of counsel at “the deferred sentencing stage of the proceeding.” 389 U.S. at 137, 88 S.Ct. at 258.
Undergirding the unanimous opinion are these expressed reasons for it:
(1) An assumption that counsel appointed for the purpose of trial or guilty plea would not be unduly burdened by following through at the deferred sentencing stage of the proceeding.
(2) Certain legal rights may be lost if not exercised at the time of deferred sentencing, e. g., the right of appeal and the right to withdraw a plea of guilty prior to sentencing.
In determining whether to extend the right of counsel from the deferred sentencing procedure of the original criminal trial to a revocation of parole after every stage of the trial has been completed, we think these expressed reasons advanced by the Court ought to be evaluated in the new context.
It should not lightly be assumed, we think, that counsel appointed to represent an indigent defendant at a criminal trial will not be “unduly burdened” to forever after represent him at any parole revocation hearing that may occur— in Midgett’s case nearly seventeen years after the trial. There are differences of time, place, compensation and subject matter. A deferred sentencing procedure may occur soon or late after the trial,1 but a parole revocation hearing is always late, for it cannot, of course, precede the service of at least a part of the sentence — usually one-fourth or one-third as a minimum. The venue of a deferred sentencing procedure presumably would be that of the original trial, quite probably the home town and place of business of the lawyer involved. The rev-
ocation of parole hearing would not likely be at the place of trial, but is more probably to be laid at the penitentiary or central office of the Board of Paroles. If the state should provide compensation for lawyers who defend indigents in the criminal courts, presumably it would embrace the whole criminal trial including a deferred sentencing procedure. It is not so clear that it would embrace representation before the executive branch of government in a proceeding wholly removed from the judicial process. If it is not an undue burden on a lawyer to be asked to return for a deferred sentencing procedure, it may be in part because that procedure is related to the original criminal trial and is part of it. Conduct that may have triggered the motion of the prosecutor for imposition of sentence is only one aspect of the many factors that enter into the sentencing procedure. In a sentencing procedure the whole criminal trial and all of its manifestations are the subject of discussion in an attempt to determine upon just punishment. Presumably the original trial lawyer will remember the evidence at trial sufficiently to help his representation at sentencing. The issue at parole revocation is quite different. It is no longer important what occurred at the trial, but only what has occurred thereafter with respect to rehabilitation.
If it should ever be decided that every parolee must have free counsel furnished by the state, it seems to us that the burden should not be thrust wholly upon original trial counsel, who is scarcely better able to function than would new counsel and is likely to be far removed from the venue of the parole revocation hearing. Moreover, we doubt the inherent power of the courts to compel counsel as officers of the judicial branch to perform services without compensation *1093in the executive branch of government. So far as we know, neither South Carolina nor Virginia, nor any of the other states within this circuit, have legislatively authorized the payment of lawyers to represent parolees faced with the possibility of revocation. Thus if the Constitution compels representation by counsel, it will compel lawyers to work in non-judicial business without compensation, at least until such time, if ever, as the legislatures of the several states may appropriate voluntarily or under court order monies for such a purpose.
We hold that the Sixth Amendment and the due process clause of the Fourteenth Amendment do not require the states in every case to afford counsel to indigent parolees. In so holding, we adhere to our former decisions, Boddie v. Weakley, 356 F.2d 242 (4th Cir. 1966); Gaskins v. Kennedy, 350 F.2d 311 (4th Cir. 1962), and are in accord with the Third, Ninth and Tenth Circuits, Washington v. Hagen, 287 F.2d 332 (3rd Cir. 1960); Williams v. Dunbar, 377 F.2d 505 (9th Cir. 1967); Williams v. Patterson, 389 F.2d 374 (10th Cir. 1968), and Idaho, Heath v. State, 482 P.2d 76 (Idaho 1971). Other circuits and state courts have indicated that they would reach a like result, even going so far as to deny or narrowly restrict the right to any hearing of any sort, see Morrissey v. Brewer, 443 F.2d 942 (8th Cir. 1971); Rose v. Haskins, 388 F.2d 91 (6th Cir. 1968); Curtis v. Bennet, 351 F.2d 931 (8th Cir. 1965); Hiatt v. Compagna, 178 F.2d 42 (5th Cir. 1949); Richardson v. Markley, 339 F.2d 967 (7th Cir. 1965); Baxter v. Commonwealth, 468 N.E.2d 670 (Mass.1971), an extreme solution we reject.
The present Chief Justice when a member of the Court of Appeals for the District of Columbia said in Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225 (1968):
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. We hold due process does not require that indigent parolees be provided with appointed counsel when they appear before the Parole Board in revocation proceedings.
318 F.2d at 238.
In rejecting the contention that the due process clause of the Fifth Amendment required the appointment of counsel for indigent parolees the Chief Justice had this to say:
The Bureau of Prisons and the Parole Board operate from the basic premise that prisoners placed in their custody are to be rehabilitatéd and restored to useful lives as soon as in the Board’s judgment that transition can be safely made. This is plainly what Congress intends. Thus there is a genuine identity of interest if not purpose in the prisoner’s desire to be released and the Board’s policy to grant release as soon as possible. Here there is not the attitude of adverse, conflicting objectives as between the parolee and the Board inherent between prosecution and defense in a criminal case. Here we do not have pursuer and quarry but a relationship partaking of parens patriae. 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 misuse of the privilege. “Probation workers making reports of their investigations have not been trained to prosecute but to aid offenders.” Williams v. People of State of New York, 337 U.S. [241] at 249, 69 S.Ct. [1079] at 1084 [93 L.Ed. 1337]. Perhaps the more correct view is that retributive justice is satisfied by the conviction whereas the sentence is a process of treatment. It is important to bear this in mind in determining whether there would be any gain to the parolee or to society in taking steps urged by the dissenting opinions which tend to equate parole processes with criminal prosecutions.
318 F.2d at 237-238.
*1094In Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), Mr. Justice Black noted the distinction between a paroled prisoner and one presumptively innocent of crime: “He can be rearrested at any time the board or parole officer believes he has violated a term or condition of his parole, and he might be thrown back in jail to finish serving the allegedly invalid sentence with few, if any, of the procedural safeguards that normally must be and are provided to those charged with crime.” 371 U.S. at 242, 83 S.Ct. at 377 (emphasis added).
In rejecting Midgett’s contention that every parolee faced with the possibility of revocation has an absolute right to the assistance of counsel, we do not reject or undermine our decision in Hewett v. North Carolina, 415 F.2d 1316 (4th Cir. 1969). Hewett fell squarely within the rationale of Mempa v. Rhay— unless that decision was to be read so narrowly that it was without significance except in the context of the singular Washington state procedure with which it dealt. The result in Hewett was, we think, compelled by the very language of Mempa, for, as previously noted; Mr. Justice Marshall’s opinion equates “revocation of probation” with “deferred sentencing”. Mempa means, we think, that there is a constitutional right to counsel at every stage of a criminal proceeding and that one of those stages is revocation of probation. As Judge Winter said in Hewett, “while the right to counsel applies to ‘criminal proceedings,’ we have little doubt that the revocation of probation is a stage of criminal proceedings.” 415 F.2d at 1322.
Quite recently in United States ex rel. Bey v. Connecticut State Board of Parole, 443 F.2d 1079 decided May 17, 1971, the Second Circuit held that all state parolees are entitled to legal representation at parole revocation hearings that result in their reincarceration. Bey was released on parole from the Connecticut State Prison on June 10, 1960, where he had been serving a life term for second degree murder. He was arrested and his parole revoked about six months later and he has been confined under the murder sentence for the past decade. The only “clear violation of a parole condition” was the possession of a hunting knife which the parole officer himself characterized as “in itself not of tremendous import.” What apparently brought about revocation was simply unconventional behavior involving moral concepts and Bey’s penchant for progressively disappointing, annoying, and disturbing his employers, and eventually his parole officer. We are not in disagreement with the Second Circuit that in a case of such factual complexity involving psychiatric evaluation and disputed behavior and its significance, the assistance of counsel would be valuable to the parolee, and probably helpful to the parole board in determining upon which one of its several options might best dispose of Bey’s case. But we are respectfully of the opinion that a hard ease makes a poor vehicle for fashioning a broad rule of entitlement to counsel for all parolees regardless of the degree of certainty and nature of their violations of parole conditions. It would have sufficed, we think, to have simply held Bey entitled to the assistance of counsel.
It remains for us to consider whether an indigent parolee may ever in a given case be entitled to the benefit of free counsel furnished by the state. In Jones v. Rivers, 338 F.2d 862 (4th Cir. 1962), Judge Sobeloff concurred in the decision that there is no absolute constitutional right to counsel for an indigent faced with possible parole revocation, but insisted that the appointment of counsel is required “where the accused parole violator is indigent and denies that he has violated the conditions of his parole.” 338 F.2d at 878. Judge Haynsworth, also concurring, expressed the viewpoint that the assistance of counsel is not essential to fairness in routine revocation hearings. He thought the Constitution required a parole board to furnish free counsel for the parolee only in the extraordinary case when the fairness *1095of the proceeding would be impaired by counsel’s absence.
We presently adopt the empirical rule of Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), fully aware that in adopting a case-by-case approach articulation of where the line should be drawn between those who should have been supplied with counsel and those lawfully refused such assistance is a most difficult undertaking. That Betts proved unworkable after 21 years of experimentation, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), does not mean, we think, that its rationale cannot be reasonably satisfactory in the administrative as opposed to the judicial context. Also, there may be other expedients short of the assistance of legal counsel that may suffice to satisfy fundamental fairness and due process. For example, Judge Wright has suggested assigning a parole or probation officer other than the officer initiating a revocation procedure to the duty of assisting the parolee:
With me, however, the primary attribute of a good parole system is. a liberal parole policy. Requiring a full-dress second trial, even limited to questions of fact, would, in my judgment, militate against such a policy. Right to assigned counsel and compulsory process in revocation proceedings are obviously desirable, but the price in terms of the number of persons paroled, or more accurately, not paroled, may be too high. For the time being I would accept the nonadversary hearing with a probation officer assisting the parolee. As stated in the text, I believe that such protection conforms with the current concept of due process and it is possible within the statutory framework. Compare Greene v. McElroy, 360 U.S. 474, 507-508, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959).
Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225, 261 n. 1. (1963).
II.
Bearden’s case presents the second question. He was sentenced to a term of life imprisonment for murder in November 1938. He was paroled after serving a little more than seven years, and had been free under supervision for more than four years when he was arrested in August 1949 for an alleged violation of the conditions of probation. Imprisoned for another seven years, Bearden was again paroled on September 12, 1957. This parole was revoked on July 24, 1958, and Bearden is presently in custody.
It has been settled federal “practice for more than 50 years * * * to allow a prisoner a hearing but not representation by counsel.” Washington v. Hagan, 287 F.2d 332, 334 (3rd Cir. 1960). Although notice and opportunity to be heard are not constitutional prerequisites to the issuance of a parole violator warrant, Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935), we think due process and fundamental fairness dictate a holding that within a reasonable period after arrest upon such a warrant the parolee is entitled to notice of his alleged default and opportunity to rebut the same, including the right to be heard pro se before someone representing the Board, and to present voluntary witnesses in his own behalf. See Alverez v. Turner, 422 F.2d 214, 220 (10th Cir. 1970); Boddie v. Weakley, 356 F.2d 242 (4th Cir. 1966); Rose v. Haskins, 388 F.2d 91, 97 (6th Cir. 1968) (Celebrezze, J., dissenting); Chase v. Page, 456 P.2d 590 (Okl.Cr. 1969); State ex rel. Murray v. Swenson, 196 Md. 222, 76 A.2d 150, 154 (1950). Cf. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (termination of welfare payments prior to a hearing violates the due process clause).
We do not read South Carolina’s brief to urge a contrary rule. Indeed, the South Carolina Director of the Department of Corrections insists that Bearden has been accorded three parole revocation hearings, the last one, at least, with the assistance of self-employed counsel. Bearden contends that the hearings were unfair, with or without counsel, and that the issue before the *1096parole board was extraordinary enough to require assistance, preferably by counsel, but, at the very least, by assignment of a parole officer to help him. One of the questions sought to be presented arises out of a change in the parole law of South Carolina after Bearden’s first parole and prior to his second one, and the effect, urged to be ex post facto, of a new parole statute assertedly changing conditions of parole unfairly and unconstitutionally.
Because the district judge conducted no hearing, the facts are not at all clear in the record. Indeed, Bearden’s contentions are not even clear, and the best that court-appointed counsel for him in this court could do is to state in the brief “It may be fairly assumed from his factual allegations that he protests the failure to be afforded the opportunity to be heard and the failure of the board to notify him of the charged violations.”
In this state of the record we must remand for an evidentiary hearing. Pri- or to the hearing the District Court should allow Bearden to plead with more particularity his contention that the 1958 revocation was unfair and illegal. The hearing should relate only to the validity of the 1958 revocation for it is clear that Bearden’s release on parole in 1957 mooted questions involving the revocation of his parole in 1949.
No. 14079 — Bearden’s case reversed and remanded.
No. 14197 — Midgett’s case affirmed.
. We may judicially notice that the period of probation is often no more than a year or two. By statute, it cannot exceed:
(1) in Maryland, five years, Md.Ann. Code Art. 27, Section 641A; (2) in North Carolina, five years, N.C.Gen.Stat., Section 15-200; (3) in South Carolina, five years, S.C.Code, Section 55-594;
(4) in Virginia, a “reasonable time, having due regard to the gravity of the offense, without regard to the maximum period for which the prisoner might have been sentenced,” Va.Code, Section 53-272; (5) in West Virginia, five years, W.Va.Code, Section 62-12-11.