concurring:
I concur in Judge Fernandez’s opinion for the court because I am constrained to do so by this court’s recent decision in United States v. Daniel, 209 F.3d 1091 (9th Cir.), amended by 216 F.3d 1201 (9th Cir.2000). I write separately, however, to express my concern about the lawless state of the law in our circuit concerning the necessity of findings in probation revocation proceedings, and to suggest that en banc consideration of this question is warranted in view of our disregard of controlling Supreme Court precedent.
*862In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the Supreme Court first held that revocation of parole must comport with procedural due process. Although the Court declared its unwillingness “to write a code of procedure,” it identified a “few basic requirements” that must accompany any future revocation. Morrissey, 408 U.S. at 488, 490, 92 S.Ct. 2593. Among those requirements is “a written statement by the fact-finders as to the evidence relied on and the reasons for revoking parole.” Id. at 489, 92 S.Ct. 2593. The Court subsequently made clear that due process protections apply to the revocation of probation “under the same conditions specified in Morrissey v. Brewer ....” Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Nevertheless, we have just completed the burial service for the Mor-rissey-Gagnon written statement requirement in the Ninth Circuit.
The rationale for imposing procedural restraints upon the government’s revocation of a discretionary grant of freedom is that “the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a ‘grievous loss’ on the parolee and often on others.” Morrissey, 408 U.S. at 482, 92 S.Ct. 2593. Moreover, the “parolee is not the only one who has a stake in his conditional liberty.” Id. at 484, 92 S.Ct. 2593. Society has an interest in “treating the parolee with basic fairness: fair treatment in parole revocations will enhance the chance of rehabilitation by avoiding reactions to arbitrariness.” Id. The written statement requirement provides a particular benefit in that it “helps to insure accurate factfinding with respect to any alleged violation and provides an adequate basis for review to determine if the decision rests on permissible grounds supported by the evidence.” Black v. Romano, 471 U.S. 606, 613-14, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985).
In United States v. Rilliet, 595 F.2d 1138 (9th Cir.1979), we rejected the appellant’s argument that his probation revocation should be reversed on the ground that “the district court did not make written findings.” Id. at 1140. We upheld the revocation because the judge had “orally stated his reasons [for revocation] on the record.” Id. We thus deemed the written findings requirement satisfied by a written transcript of oral proceedings that contained the necessary findings and reasons. Thereafter, for over twenty years — until Daniel — we followed the rule requiring a statement of findings and reasons on the record. See, e.g., United States v. Garcia, 771 F.2d 1369, 1371 n. 2 (9th Cir.1985).
In Daniel, we commenced our opinion rather mundanely by reaffirming our well-established rule. We expressly acknowledged the requirements of Morrissey and Gagnon and then explicitly held that “oral findings made on the record by a district court in a revocation proceeding comport with due process.” Daniel, 209 F.3d at 1093. However, several paragraphs later, without any discussion or explanation, we appear to have completely changed course and to have abandoned our rule and the Supreme Court’s mandate. Following our initial accurate statement of the law, we summarily and inexplicably stated that all that is required is that “the record establishes” that the probationer’s actions support revocation and that the district judge is satisfied that a violation occurred. Id. Under that regime, no statement of findings or reasons by the court need appear on the record. So Judge Fernandez’s opinion reads Daniel, and I cannot disagree; and it is Daniel that now binds this panel.
The effect of Daniel, unfortunately, was to dispense altogether with the long-standing requirement that a revocation of probation be accompanied by findings that set forth the evidence supporting the court’s action and the court’s reasons for its decision. In doing so, we abandoned a critical procedural protection deemed essential by the Supreme Court. Moreover, the requirement as “redefined” in Daniel adds *863nothing to the law as it otherwise stands. In no case would a district court revoke probation unless it were satisfied that “the record establishes” that revocation is warranted and that a violation occurred. Perhaps as important, at least from a jurisprudential standpoint, Daniel, and now our opinion in this case, directly conflict with the law as propounded by the Supreme Court. See Morrissey, 408 U.S. at 489, 92 S.Ct. 2593; Gagnon, 411 U.S. at 782, 93 S.Ct. 1756; Black, 471 U.S. at 613-14, 105 S.Ct. 2254. Not even a glimmer is left of the written statement requirement expressly set forth in those Supreme Court cases.
Finally, the case before us exemplifies the difficulties that reviewing courts will face when district judges, under the authority of Daniel, revoke probation without findings or explanation. Here, the government alleged eight separate violations in its revocation petition, and the transcript does not clearly identify “the evidence relied on and the reasons for revoking” probation. Morrissey, 408 U.S. at 489, 92 S.Ct. 2593. In fact, there is a strong indication that the district judge may have impermissibly relied upon evidence outside the record in reaching her determination; she pointedly referred to Sesma-Hernandez’s “prior history” of “problems” unrelated to the government’s petition and expressed her view that “under the rules that govern this, I can consider the intervening conduct of the — of the probationer and of the basis of the original offense.” Absent findings that specify what evidence in particular the court found adequate and why that evidence justified revocation, this court’s task becomes all the more onerous. Moreover, probationers will understandably feel deprived of the “basic fairness” that the Supreme Court requires and that it envisioned would forestall “reactions to arbitrariness.” Morrissey, 408 U.S. at 484, 92 S.Ct. 2593.
District courts presiding over revocation hearings in this circuit will surely have difficulty ascertaining what the law now demands of them. Should they abide by the Supreme Court’s directives or are they free to follow our contrary case law? It would seem to be our obligation to invoke the en banc process so as to reaffirm our prior rule that, at a minimum, due process requires that the record contain the court’s findings regarding the evidence it relied on and the reasons underlying its revocation of probation.