Black v. Romano

*617Justice Marshall,

with whom Justice Brennan joins, concurring.

I

I agree that revocation of probation need not be accompanied by an express demonstration on the record that alternatives to revocation were considered and found wanting before the decision to revoke was made.1 Because I have argued on several occasions that written explanations for particular decisions are constitutionally required,2 I write separately to explain my view as to why such explanations are not required in this setting.

The Court has not attempted any systematic explanation of when due process requires contemporaneous reasons to be given for final decisions, or for steps in the decisionmaking process, that affect protected liberty or property interests. The Court has stated that the occasions when due process requires an explanation of the reasons for a decision “are the exception rather than the rule.” Harris v. Rivera, 454 U. S. 339, 344 (1981) (per curiam). At the same time, we have recognized several occasions in which such reasons must be provided, such as when public welfare benefits are terminated,3 parole4 or probation5 is revoked, good-time credits *618are taken away from prison inmates,6 or inmates are transferred to mental institutions.7 This requirement is not limited to explanations for substantive decisions on the merits, for record explanations must also be provided at stages of the hearing that are integral to assuring fair and accurate determinations on the merits. For example, counsel cannot be denied at parole or probation revocation hearings without a record explanation.8 Similarly, the right of an inmate to present witnesses and to confront and cross-examine adverse witnesses at hearings involving transfers to mental institutions may be limited only when supported by record findings of good cause.9

In my view, the theme unifying these cases is that whether due process requires written reasons for a decision, or for a particular step in the decisionmaking process, is, like all due process questions, to be analyzed under the three-factor standard set forth in Mathews v. Eldridge, 424 U. S. 319 (1976). When written reasons would contribute significantly to the “fairness and reliability” of the process by which an individual is deprived of liberty or property, id., at 343, reasons must be given in this form unless the balance between the individual interest affected and the burden to the government tilts against the individual. Id., at 335.10 Whether *619written reasons would make such a contribution in any particular case depends on a variety of factors, including the nature of the decisionmaking tribunal,11 the extent to which other procedural protections already assure adequately the fairness and accuracy of the proceedings,12 and the nature of the question being decided.13

Applying these principles here, I believe a factfinder need not on the record run through the litany of alternatives available before choosing incarceration. Most important, Gagnon already requires a written statement of the evidence relied on and the reasons for concluding that revocation of probation is warranted.14 That explanation will allow courts to determine whether revocation is substantively valid, or fundamentally unfair, even in the absence of record consideration of alternatives to revocation.15

In addition, probation revocation bodies, be they judges or boards, are familiar enough with the possibility of alternatives to incarceration that such a requirement is not necessary to call their attention to the standards governing exercise of *620their discretion.16 Indeed, the only constitutional limitation on this discretion is that revocation be a rational response to the violation; revocation need not be the only available response to be permissible. See Part II. The breadth of this discretion significantly attenuates the value that written consideration of alternatives might otherwise play. Finally, a requirement that sentencers go through on the record an almost limitless variety of options other than revocation would signficantly burden revocation hearings, for given the number of options available a statement of reasons rejecting each of them would amount to a lengthy document. On balance, then, due process does not require written reasons for rejecting nonincarceration alternatives to revocation.

rH I — Í

That written reasons are not required for rejection of alternatives to revocation does not suggest that the Constitution allows probation to be revoked for any reason at all or for any probation violation. On the contrary, under Bearden v. Georgia, 461 U. S. 660 (1983), as I read it, the decision to revoke probation must be based on a probation violation that logically undermines the State’s initial determination that probation is the appropriate punishment for the particular defendant. Bearden held that probation cannot be revoked for failure to pay a fine and restitution, in the absence of a finding that the probationer has not made bona fide efforts to pay or that adequate alternative forms of punishment do not exist. If a probationer cannot pay because he is poor, rather than because he has not tried to pay, his failure to make restitution or pay a fine signifies nothing about his continued rehabilitative prospects and cannot form the basis of a valid revocation decision. Revocation under these circumstances, the Court said, would be “fundamentally unfair.” Id., at 666, and n. 7, 673.

*621Although Bearden dealt with only one basis for revocation — failure to pay a fine and restitution — Bearden’s holding can be understood only in light of more general principles about the nature of probation and the valid bases for revocation. First, the State has wide latitude in deciding whether its penological interests will best be served by imprisonment, a fine, probation, or some other alternative. But in choosing probation, the State expresses a conclusion that its interests will be met by allowing an individual the freedom to prove that he can rehabilitate himself and live according to the norms required by life in a community. Bearden then recognizes that, once this decision is made, both the State and the probationer have an interest in assuring that the probationer is not deprived of this opportunity without reason. See also Morrissey v. Brewer, 408 U. S. 471, 484 (1972). To the probationer, who is integrating himself into a community, it is fundamentally unfair to be promised freedom for turning square corners with the State but to have the State retract that promise when nothing he has done legitimately warrants such an about-face.17 Similarly, it is irrational for the State to conclude that its interests are best served by probation, but then to conclude, in the absence of valid cause tracing to the probationer’s conduct, that imprisonment is warranted.

Thus, while the State can define the rules of punishment initially, choosing probation or imprisonment, the State can*622not change the rules in the middle of the game.18 See Wood v. Georgia, 450 U. S. 261, 286-287 (1981) (White, J., dissenting). A probation violation must therefore be such as to make it logical for the State to conclude that its initial decision to choose probation rather than imprisonment should now be abandoned.

This principle establishes substantive limitations on probation revocation decisions beyond which revocation is fundamentally unfair. Although these limits are not stringent, it is important to note their existence. For example, a minor traffic violation, or other technical probation violation, may well not rationally justify a conclusion that the probationer is no longer a good rehabilitative risk.19 Similarly, certain probation violations that might justify revocation if committed early in the probation term might not justify revocation if the probationer has completed cleanly 14 years, for example, of a *62315-year term.20 No doubt a violation may stir certain biases in judges who believe they have “taken a chance” on a probationer or in probation officers who feel personally at fault, but those biases do not authorize revocations that are solely vindictive or reflexive. Instead, given the nature of the liberty interest at stake, revocation must reflect a “considered judgment” that probation is no longer appropriate to satisfy the State’s legitimate penological interests. Williams v. Illinois, 399 U. S. 235, 265 (1970) (Harlan, J., concurring in result).

To some extent, the rationality of the decision to revoke must be evaluated in light of alternative measures available for responding to the violation. One reason it was arbitrary in Bearden to revoke probation for blameless failure to pay a fine was that the State’s interest could be “served fully by alternative means.” 461 U. S., at 672.21 The Court noted *624that the time for making payments could be extended, the fine reduced, or the probationer ordered to perform some form of labor or public service in lieu of the fine. Ibid. The State need not establish that revocation is the only means of realizing its penological interests once a probation violation has been committed, but alternative sanctions available to the State surely are a relevant consideration in evaluating whether revocation is logically related to the nature of the underlying violation.

The “touchstone of due process is protection of the individual against arbitrary action of government.” Wolff v. McDonnell, 418 U. S. 539, 558 (1974). Probationers, possessed of the conditional liberty interest created by probation, are protected by this standard, and the decision to revoke probation must therefore be rationally justifiable in light of alternative sanctions available and the nature of the underlying violation. This is not a demanding standard given the breadth of reasons that can justify revocation, but it does impose substantive outer boundaries on revocation decisions.

Ill

There can be no doubt that the revocation decision here could have been based on a rational conclusion that respondent’s probation violation demonstrated his unsuitability for continued probation. The probation judge found that respondent had committed the felony of leaving the scene of an accident, an accident in which an individual had been struck.22 Although unrelated to the drug offenses for which respondent was initially sentenced, this violation demonstrates not only that Romano was a reckless driver, but also that he *625either had some reason for seeking to cover up that fact or that he refuses to accept responsibility for his actions. The probation judge might have chosen some option other than revocation, but surely it was not irrational or illogical to conclude that Romano was no longer a good rehabilitative risk. Nor was the probation judge required to go through alternatives to revocation seriatim in the record. I therefore join the Court’s opinion.

Respondent did not propose at the revocation hearing any specific alternatives to revocation and there is therefore no need to address a situation in which the probationer specifically proposes such alternatives. See ante, at 609.

Ponte v. Real, ante, at 508-513 (Marshall, J., dissenting); Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1, 40 (1979) (Marshall, J., dissenting); see also Hewitt v. Helms, 459 U. S. 460, 479 (1983) (Stevens, J., dissenting in part); Connecticut Bd. of Pardons v. Dumschat, 452 U. S. 458, 468 (1981) (Stevens, J., dissenting); cf. Dorszynski v. United States, 418 U. S. 424, 445 (1974) (MARSHALL, J., concurring in judgment) (statutory interpretation).

Goldberg v. Kelly, 397 U. S. 254, 271 (1970).

Morrissey v. Brewer, 408 U. S. 471, 489 (1972).

Gagnon v. Scarpelli, 411 U. S. 778 (1973).

Wolff v. McDonnell, 418 U. S. 539, 563 (1974).

Vitek v. Jones, 445 U. S. 480 (1980).

Gagnon, supra, at 791.

Vitek, supra, at 494-495 (requiring “a finding, not arbitrarily made, of good cause”).

When judicial review is one of the elements relied on to assure that the process as a whole is reliable, written reasons may be required to enable that review to fulfill its role effectively. Cf. Wolff, supra, at 565 (“[T]he provision for a written record helps to insure that administrators, faced with possible scrutiny by state officials and the public, and perhaps even the courts, where fundamental constitutional rights may have been abridged, will act fairly”); Ponte v. Real, ante, at 508-513, (Marshall, J., dissenting) (written explanation required when necessary, inter alia, to facilitate meaningful judicial review); Hewitt, supra, at 495 (Stevens, J., *619dissenting) (“A written statement of reasons would facilitate administrative and judicial review . . .”).

See, e. g., Hewitt, swpra, at 493 (Stevens, J., dissenting); Greenholtz, supra, at 40 (Marshall, J., dissenting in part); Connecticut Bd. of Pardons, supra, at 472 (Stevens, J., dissenting).

See, e. g., Harris v. Rivera, 454 U. S. 339, 344-345, n. 11 (1981) (per curiam); Connecticut Bd. of Pardons, supra, at 472 (Stevens, J., dissenting).

See, e. g., Dorszynski, supra, at 457-459 (Marshall, J., concurring in judgment) (written reasons required when sentencing judge commanded by statute to give priority to particular factors in sentencing).

Gagnon incorporates for probation the due process requirements for parole revocation laid out in Morrissey, supra, which include “a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.” 408 U. S., at 489.

Cf. Ponte, ante, at 508-513 (Marshall, J., dissenting) (written reasons required when necessary to assure meaningful judicial review); Hewitt, 459 U. S., at 495 (Stevens, J., dissenting) (same).

Cf. n. 18, supra.

This principle underlies Douglas v. Buder, 412 U. S. 430 (1973) (per curiam), where a probationer had been probated on the condition, inter alia, that he report to his probation officer “all arrests” for any reason and without delay. Although he was involved in a traffic accident and was cited for driving too fast, Douglas did not report either the incident or the citation for 11 days. His probation was revoked. We reversed, one prong of our holding being that defining these occurrences as an arrest would constitute so unforeseeable and surprising an interpretation of the special probation condition as to violate due process. See Bouie v. City of Columbia, 378 U. S. 347 (1964).

This norm of regularity in governmental conduct informs numerous doctrines. See, e. g., United States ex rel. Accardi v. Shaughnessy, 347 U. S. 260 (1954) (Government bound by its own regulations); Vitek v. Jones, 445 U. S., at 489 (due process interest created by “ ‘objective expectation, firmly fixed in state law and official Penal Complex practice’”); Connecticut Bd. of Pardons v. Dumschat, 452 U. S., at 467 (Brennan, J., concurring) (liberty interests arise from “statute, regulation, administrative practice, contractual arrangement or other mutual understanding [that establish] that particularized standards or criteria guide the State’s decisionmakers”); Motor Vehicle Manufacturers Assn. v. State Farm Mutual Autombile Insurance Co., 463 U. S. 29, 42 (1983) (reasoned explanation required for agency revocation of validly promulgated rule); Atchison, T. & S. F. R. Co. v. Wichita Bd. of Trade, 412 U. S. 800, 807-808 (1973) (“There is, then, at least a presumption that [previously chosen] policies will be carried out best if the settled rule is adhered to”).

See generally Prellwitz v. Berg, 578 F. 2d 190, 193, n. 3 (CA7 1978) (“[T]he due process clause may require more than just proving a breach of a condition of supervision to justify revoking probation; a subjective determination of whether the violation warrants revocation is also contemplated”); United States v. Reed, 573 F. 2d 1020, 1024 (CA8 1978) (“The decision to revoke probation should not merely be a reflexive reaction to an accumulation of technical violations of the conditions imposed upon the offender”).

See, e. g., Cottle v. Wainwright, 493 F. 2d 397 (CA5 1974) (describing revocation and imposition of 7-year sentence for two incidents of alleged public drunkenness occurring 2 months before énd of 7-year parole term).

That a violation is “willful” in the sense that the probationer had notice of the condition violated and could have adhered to it does not automatically make revocation constitutional. Probation typically is conditioned on a general obligation to obey all state and local laws, but all citizens live under similar obligations. Nonetheless, we recognize some violations of the law as minor, such as certain traffic offenses. Such violations should be treated as no more major when committed by a probationer; they do not generally justify revocation. That remains true notwithstanding the State’s inclusion of a probation condition generally requiring conformity to all state laws. The minimum requirements of fair process, both substantively and procedurally, are defined by the Due Process Clause, not by state law. See Cleveland Bd. of Education v. Loudermill, 470 U. S. 532 (1985). Statutes authorizing revocation “for any cause” deemed sufficient by the court may, as applied to particular cases, violate these principles. See, e. g., Va. Code § 19.2-306 (1983).

It may be that violation of any special condition of probation, as opposed to violation of the general obligation to obey all laws, would justify revocation if the probationer has advance notice of this possibility. If a probationer is given a short fist of reasonable commands he is obligated to follow, willful refusal to abide by these specific conditions may indicate that the *624probationer is simply incapable of complying with authority. Such a conclusion would justify revocation. A similar conclusion might logically follow from minor violations of a general-obligation clause if those violations are repeated or flagrant.

This finding of historical fact is subject to the rule of Sumner v. Mata, 455 U. S. 591 (1982).