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In a deal struck during a class action two years ago, California promised to appoint a lawyer for any adult parolee facing a revocation hearing. San Francisco Public Defender Jeff Adachi wants the state to do the same for juvenile parolees � who are currently allowed to bring a lawyer to the hearings only under limited circumstances. “That distinction, I think, is outrageous � that you would give more protections to an adult parolee than you would to a juvenile parolee, in basically the same circumstances,” Adachi said Monday. Earlier this month, the state turned down his request to help a pro bono client, William Roy, at his revocation hearing. But Adachi has since managed to get the attention of the San Francisco Superior Court, where Roy’s run-in with the system began as a minor. On Friday, Judge Mary Morgan stayed the revocation hearing, which had been set for today, and ordered the state to defend its decision to deny Roy counsel. The parties are supposed to report to her courtroom Wednesday to schedule briefings on the question. “This court preliminarily finds that juvenile and adult parolees are similarly situated,” so the state will have to make a case for treating them differently, Morgan wrote in her order to show cause. Roy was committed to the California Youth Authority in 1997, when he was 16 years old, and released on parole about two years ago. (Adachi would not say what his client was originally incarcerated for, citing the confidentiality of juvenile cases.) Now the 24-year-old could be locked up until his 25th birthday, about 10 months from now. His alleged parole violations include using marijuana, skipping Narcotics Anonymous meetings, not surrendering to his parole officer, and engaging in an in-custody altercation, according to the petition for writ of habeas corpus that Morgan considered before issuing her order. If Roy had committed his original crime later in life, he would be entitled to state-appointed counsel under a 2003 settlement in Valdivia v. Schwarzenegger, a class action in the U.S. District Court for the Eastern District of California that challenged several aspects of the adult parole system. But the settlement didn’t apply to the juvenile parole system, said Donald Specter, director of the Prison Law Office and co-counsel for the class. “I’m really not surprised that they haven’t followed the Valdivia requirements in the juvenile system, because, at least in corrections, the state does nothing unless it’s forced to do so by court order,” Specter said. Across the board, Adachi argues, there’s an equal protection problem with treating adult and juvenile parolees differently. And even if that weren’t a problem, he contends that Roy’s due process rights are being violated under two U.S. Supreme Court cases. In Morrissey v. Brewer, 408 U.S. 471, and Gagnon v. Scarpelli, 411 U.S. 778, the high court found no absolute right to counsel in probation or parole revocation hearings. And the Gagnon court left “considerable discretion” to parole agencies to decide when to allow it. But at the same time, Gagnon made clear that counsel should be provided in some cases, such as when a parolee’s case would be “difficult to develop or present.” Adachi says Roy’s case fits that bill. The parolee isn’t denying using marijuana, but plans to argue that his cannabis use was legal under California law because he has had a medical marijuana card. That should deflate the other accusations against Roy, Adachi told Judge Morgan in the recent petition, because “he cannot be compelled to attend drug counseling and testing for a drug he is entitled to use.” So far, though, state parole officials haven’t found Roy’s case too complicated. Before turning to the court, Adachi had asked the state’s Board of Parole Hearings to let him help Roy at his hearing. The board’s acting chief deputy commissioner, John Monday, refused. “Frankly, the pending parole violation allegations in this case are simple and forthright, so it does not appear a Gagnon v. Scarpelli exception due to case complexity is warranted,” he wrote in an Oct. 14 letter. The Department of Corrections and Rehabilitation has asked the attorney general to represent it in the matter, according to AG spokesman Nathan Barankin. But the department’s juvenile justice division had no comment on Roy’s case by Monday afternoon. Information Officer Sarah Ludeman added that it was too soon to say whether the state would continue to oppose Roy’s request.

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