The Right to Counsel and Due Process in Probation Revocation Proceedings: Gagnon v. Scarpelli

On May 14, 1973, the worst fear of at least one commentator was borne out by the opinion of the Supreme Court in Gagnon v. Scarpelli. Justice Powell, writing for the Court, recognized certain due process rights of the individual who has been convicted and placed on probation. The Court refused to adopt a per se right to representation by counsel as an element of due process in probation revocation proceedings, however. The opinion has left the meaning and importance of due process in grave doubt, has retarded the progression of penal-correctional reform, and has insured a heavy docket for an already overburdened appellate system by a return to the unworkable rule formulated in Betts v. Brady. This article begins with a general discussion of the sixth amendment and due process, followed briefly by a description of probation and its challenges. Then the Article delves into an analysis of the Supreme Court’s decision in Gagnon v. Scarpelli, detailing its problems. The article ends by offering an alternative perspective for the court’s future decisions, so they may arrive at a more just solution