Under the rules of the Commission, a state is not specifically obligated to provide counsel in circumstances of revocation or retaking. However, particularly with regard to revocation proceedings, a state should provide counsel to an indigent offender if she or he may have difficulty in presenting their version of disputed facts, cross-examining witnesses, or presenting complicated documentary evidence. See Gagnon, supra at 788. Presumptively, counsel should be provided if the indigent probationer or parolee, after being informed of his right, requests counsel based on a timely and plausible claim that he or she has not committed the alleged violation or, if the violation is a matter of public record or uncontested, there are substantial reasons in justification or mitigation that make revocation inappropriate. See generally, Gagnon, supra. Providing counsel for proceedings in the receiving state may be warranted where the sending state intends to use the offender’s violations as a basis for revoking conditional release. In the revocation context, officials in the receiving state are not only evaluating any alleged violations but are also creating a record for possible use in subsequent proceedings in the sending state. See Rule 5.108. The requirement to provide counsel would generally not be required in the context of retaking and the sending state does not intend to revoke conditional release based on violations that occurred in the receiving state. In this latter context, no liberty interest is at stake, because the offender has no right to supervision in another state.

Some courts have read the Morrissey and Gagnon decisions governing revocation hearings and the appointment of counsel to apply only after incarceration of the defendant. See State v Ellefson, 334 N.W.2d 56 (SD 1983). However, the law in this area is unsettled. At least one case provides insight into the Supreme Court’s evolving jurisprudence with regard to the right to counsel in non-traditional criminal sentencing proceedings. See, e.g., Alabama v. Shelton, 535 U.S. 654 (2002) (Sixth Amendment does not permit activation of a suspended sentence upon an indigent defendant’s violation of the terms of his probation where the state did not provide counsel during the prosecution of the offense for which he is imprisoned). In Shelton, the Court opines that once a prison term triggers, the incarceration of the defendant is not for the probation violation, but for the underlying offense. The uncounseled conviction at that point results in imprisonment and ends up in the actual deprivation of a person’s liberty. The Court also notes that Gagnon does not stand for the broad proposition that sequential proceedings must be analyzed separately for Sixth Amendment purposes, with the right to state-appointed counsel triggered only in circumstances where proceedings result in immediate actual imprisonment. The dispositive factor in Gagnon and Nichols v. United States, 511 U.S. 738 (1994), is not whether incarceration occurred immediately or only after some delay. Rather, the critical point is that the defendant had a recognized right to counsel when adjudicated guilty of the felony for which he was imprisoned. Revocation of probation would trigger a prison sentence for a misdemeanor of which Shelton was found guilty without the aid of counsel, not for a felony conviction for which the right to counsel is questioned. Similarly, returning a defendant to a sending state on allegations that he or she violated the terms of their probation and thus are now subject to incarceration may give rise to due process concerns. Because Shelton is limited to actual trial proceedings – distinguished from post-trial proceedings – its direct application to retaking proceedings may be of limited value; however, the decision does provide insight into the gravity the Supreme Court attaches to the opportunity to be heard and the assistance of counsel if liberty interests are at stake.