(concurring specially).
Because Jones has admitted the charge against him, namely, that he was convicted of seven traffic charges and disorderly conduct while on parole, I agree that-the appointment of counsel was not required in this case.
While I concur in the result reached by the court, I regret that I cannot join in the able and thorough opinion of my Brother Boreman. My reservations concern hearings in which there is a dispute-as to the events upon which recommitment of a parolee is sought. Judge Bore-man’s opinion' makes no distinction between such hearings and others, like the' one before us, where the occurrences charged are not challenged. The distinction is important. Judge Haynsworth, who recognizes that there may be cases where the absence of counsel could impair the fairness of revocation proceedings, comes closer to my view; but, as the subject seems to me to require further exposition, I state my views separately. ;
It is unnecessary to enter into an extended theoretical discussion of the resemblances and disparities between the trial of a criminal case in court and a parole revocation proceeding. The subject has been explored by Judge Boreman and by our brethren in the District of Columbia Circuit in the several opinions written in the case of Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225 (1963). Regardless of how such proceedings are to be characterized, each of the nine judges in Hyser concluded that the statutory command of the general parole statute, 18 U.S.C.A. § 4207, that an “opportunity to appear” be given, means that a parole who can pay a lawyer’s fee is entitled to be represented when he is accused of violating the conditions of his parole and stands in danger of losing his restricted freedom outside and being returned to confinement within prison walls.
In light of the more explicit provision found in the D.C.Code, section 24-206, that “At such hearing [parole revocation] he [the alleged parole violator] may be represented by counsel,” the critical question is whether another parolee may be denied counsel only because he is too poor to hire a lawyer, although he is in all other respects in the same situation.
Taking this approach, we are not called upon to decide what distinctions may constitutionally be drawn between revocation hearings and court trials. Even' *876before the District of Columbia parole law made express provision for representation by counsel before the District of Columbia Parole Board, the Court of Appeals for the District of Columbia Circuit, to avoid a possible constitutional problem, likewise interpreted the statutory words “opportunity to appear” to mean an effective appearance, including the right to be represented by counsel. Fleming v. Tate, 81 U.S.App.D.C. 205, 156 F.2d 848 (1946). The Congress codified this ruling by expressly providing that the prisoner may be represented -by counsel. D.C.Code § 24-206 (Act rJuly 17, 1947, 61 Stat. 379, ch. 263, § 5).
[ In this respect the District of Columbia Parole Act, which governs here, is more favorable to the parolee than the parallel statute, 18 U.S.C.A. § 4207, which regulates revocation proceedings before the Federal Board of Parole. Not only in Fleming v. Tate, which anticipated the statutory provision for counsel in District of Columbia Parole Board revocations, but also in a series of cases decided thereafter, the Court of Appeals for the District of Columbia Circuit held that the revocation hearing is to be no perfunctory formality. The right to counsel has repeatedly been declared a necessary safeguard, for personal freedom is involved. Reed v. Butterworth, 111 U.S.App.D.C. 365, 297 F.2d 776 (1961); Glenn v. Reed, 110 U.S.App. D.C. 85, 289 F.2d 462 (1961); Robbins v. Reed, 106 U.S.App.D.C. 51, 269 F.2d 242 (1959).
In unmistakable language the Supreme Court has in other contexts indicated that it will not sanction discrimination between indigents and those who possess the means to protect their rights. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963); Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1961). While the cited cases were criminal prosecu- ¡ tions, there is no reason to attach signifi- - canee to their technical classification as i criminal rather than civil; the underlying feature to be noted is the fact that| the liberty of the individual was involved.
The law does not undertake to redress all imbalances between rich and poor, but it can be said that when it is alleged and denied that the retaken prisoner has violated the conditions of his parole, and representation by retained counsel is permitted, this advantage should not be denied solely because of poverty.
The District of Columbia parole statute which affords an alleged parole violator the opportunity to be represented by retained counsel must be construed against the background of these Supreme Court decisions. Furthermore, as Judges Bazelon and Edgerton pointed out in Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225, 255 (1963), courts should hesitate to adopt a construction attributing to Congress a willingness to sanction discrimination between rich and poor where the issue at stake is the continued freedom of the alleged parole violator.
We deal here with no general investigation conducted for legislative purposes, as conceived in Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960), but the possible loss of the restricted liberty enjoyed by the parolee. While one on parole is not completely free, being theoretically in legal custody, there is still a vast difference between a state of such restricted freedom and actual imprisonment. See Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963).
At the revocation hearing, where the contested violation of parole may itself be a crime and result in loss of liberty, it is no less important to the prisoner to have counsel than it was in the original trial. It seems to me an insufficient answer to say that in extreme cases of arbitrariness or abuse there may be judicial review in which counsel will be appointed. After the administrative - hearing is over, it may be too late for/ *877counsel to overleap the handicap of an inadequate record.
It has been pointed out that the Parole Board and its agents have the duty of functioning in the interest of the individual in an advisory capacity and it is suggested that therefore they may be relied upon to see to it that the hearing will be conducted fairly and impartially. It is surely no reflection on these officials to recognize, what is commonly accepted in our system of jurisprudence, that there is inherent danger in combining the functions of judge and advocate. Judges and prosecutors are likewise under a duty to be fair to the accused and in most instances they strive conscientiously to give him every right that is-due. Nevertheless, we do not rest content with this. We reason that the accused is still entitled to the benefit of counsel in the investigation and presentation of the defendant’s version of disputed facts. We permit the defendant legal representation if he can afford to pay, and if he cannot we appoint a lawyer for him. At stake in a revocation hearing, when the parolee denies the violation, are issues no less momentous than in the original trial. The need for counsel cannot be assumed to be less, and we cannot avoid the-Supreme Court’s teaching that the right to this assistance should not “depend on the amount of money he has.” Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 591, 100 L.Ed. 891 (1956).
Nor is our problem resolved by the euphemistic characterization of revocation proceedings as “parental.” When the parole officer is engaged in an effort to prove that the parolee should be returned to prison for violating the conditions of his parole and the parolee denies the charge, it is incongruous to describe the proceedings as “non-adversary,” particularly as under the statute the finding of a violation mandatorily results in extending the parolee’s sentence.1 The consequence of recommitment is not softened, for the parolee by the use of benign words.
Judge Boreman’s opinion follows closely the reasoning of the court in Hyser v. Reed. Judge Burger for the majority in Hyser lays down what I consider valuable standards for the protection of the parolee at various stages of the revocation proceedings. All of his colleagues welcomed these as important steps forward; three judges who concurred separately gave their own emphasis to the right of the alleged parole violator to be accorded confrontation of the witnesses against him, access to the sources of information as to the alleged violation and the right of cross-examination. As a practical matter, however, these carefully enumerated rights often cannot be availed of except with legal assistance. The judges who dissented took the view that, since the right to the presence of counsel is accorded in order to assure these safeguards, the need for this protection is the same for all.
If the Parole Board were to adopt a plan like that suggested by Judge Wright, providing a special type of assistance to the parolee in establishing his defense — a probation officer trained and independent but not necessarily a lawyer ■ — -we would have a different situation. Conceivably, the substance of the required protection to the parolee’s interests might be attained; but no such provision has been made and the question is not before us.
There is much force in the comment on the great economic burden that members of the bar have been called upon to shoulder in the uncompensated representation of indigents. It is, as has been said, greatly to the credit of the profession that its members have, almost without exception, accepted this burden willingly and often even eagerly. At long *878last Congress has enacted legislation to remunerate lawyers for such services rendered in federal criminal trials. The states, since Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), are doing likewise.
That Congress has not provided the means for the Parole Board to appoint counsel in revocation hearings should not deter us from our duty to declare the parolee’s rights under the statute.2 When the courts make such a declaration, Congress may be expected to provide the means to implement it, as illustrated by the Criminal Justice Act of 1964, P.L. 88-455, 88th Congress, S. 1057, approved Aug. 20, 1964. In the interval it is not beyond the resourcefulness of the Parole Board and the Department of Justice to make temporary provision for appointed counsel. That the Department would be hospitable to the idea is shown by the Report of the Attorney General’s Commission on Poverty and the Administration of Criminal Justice, 1963, which, in discussing revocation hearings, has stated:
“[A]s a matter of equity, counsel should be supplied the prisoner who is financially unable to obtain representation. The Board’s rules recognize that the prisoner with adequate means or who is otherwise capable of ‘arranging’ representation, is entitled to make use of the services of counsel at the hearing. We strongly feel that this advantage 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.” At p. 49.
These comments emphasize that where the issue is a factual one, i. e., whether the parolee has violated the conditions of his parole; the parolee, be he affluent or indigent, requires the assistance of counsel. Such assistance is needed to insure that, in the determination of the factual issues before the Parole Board, the accused parolee is afforded all of the procedural safeguards to which he is entitled. Thus the appointment of counsel is required where the accused parole violator is indigent and denies that he has violated the conditions of his parole.
As recognized in the opening paragraph of this opinion, the situation is different in this case, since the parolee concedes that he has violated the conditions of his parole. Here the Parole Board is merely exercising its discretion as to whether, in light of the admitted violation, parole should be revoked. I agree that, usually in such situations, the purpose of the hearing is unlike that of an adjudicatory proceeding, and there is no requirement for the appointment of counsel.
HAYNSWORTH, Circuit Judge(concurring specially).
If I were to accept the premise that representation by counsel is essential to a meaningful appearance by a parolee before a parole board, I would have great difficulty in finding justification for a scheme which made provision for such an appearance by those who could afford it without providing for such an appearance by those who could not afford it. I do not accept the premise, however. I think Judge Fahy was correct in pointing out in his opinion in Hyser v. Reed, 318 F.2d 225, 257, that, while representation by counsel may be essential to a meaningful appearance in some extraordinary parole proceedings, it is not essential in the kind of routine revoea*879tion hearing with which we are concerned. The differences between such proceedings and criminal trials are so great that procedural requirements quite appropriate to. trials ought not to be mechanically imposed in absolute terms upon parole boards. The process should be selective. The present requirement of fairness, I would suppose, would require the parole board to arrange counsel for the parolee in the extraordinary case in which fairness could not be had without it. In the routine case, however, if fairness is not impaired by the absence of counsel, then a parole board’s failure to supply counsel is not a deprivation of any meaningful right available to a wealthy parolee.
A possible extension to parole revocation proceedings of a universal requirement of counsel at every hearing ought not to be undertaken without regard to the impact of the requirement upon the parole process. Judge Wright in his opinion in Hyser v. Reed, 318 F.2d 225, 261, wisely points up the considerations. A rigid imposition of a procedural requirement for all cases, which serves no useful purpose in most but which unduly burdens the entire process, would be a long step backward, not forward, in the protection of personal liberties.
In this case, therefore, in which there is no contention of actual unfairness, I readily join my Brother Boreman in his opinion, in which he demonstrates, I think, that the Constitution does not require a parole board to furnish appointed counsel in a routine revocation hearing when the fairness of the proceeding will not be impaired by the absence of counsel.
Had I any doubt about the matter, however, and I confess none, I would be constrained in the circumstances of this case to defer to the decision of our Sister Circuit for the reasons stated by Judge Boreman.
. The District of Columbia Code, § 24-206, provides: “The time a prisoner was on parole shall not he talcen into account to diminish the time for which he was sentenced.” (Emphasis supplied). Thus the result of the Board’s decision in this case was the extension of the expiration of Jones’ sentence from June 2, 1964, to July 31, 1965.
. Cf. Powell v. Alabama, 287 U.S. 45, 60, 53 S.Ct. 55, 77 L.Ed. 158 (1932), where the Supreme Court concluded that its lack of power to appoint counsel in the Alabama courts did not affect “The question * * * which it is our duty, and within onr power, to decide * * * whether the denial of the assistance of counsel contravenes the due process clause * * *."