Plaintiff asks us to decide that indigent inmates of the Illinois State Penitentiary have a constitutional right to appointed counsel at parole release hearings. He relies on the Sixth Amendment and on the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Prescinding the policy arguments which the General Assembly or the Governor of Illinois may find persuasive, we hold, in agreement with other federal courts,1 that this procedural right is not guaranteed by the United States Constitution.

In every stage of a criminal proceeding at which his substantial rights may be affected, the indigent defendant has a constitutional right to appointed counsel. Mempa v. Rhay, 389 U.S. 128, 134, 88 S. Ct. 254, 19 L. Ed. 2d 336. Sentencing is a critical stage of the judicial proceedings at which that right must be fully protected.

Plaintiff effectively demonstrates that in most cases the actual period of incarceration in the Illinois State Penitentiary is determined by the Parole and Pardon Board rather than the sentencing judge. A practical appraisal of the importance of the parole release hearing, he argues, requires the conclusion that it represents a "critical stage" of the state's processing of criminal offenders. Under the reasoning of Mempa v. Rhay, it is therefore contended that appointed counsel is essential. Even if that be true, the rationale of Mempa v. Rhay is inapplicable unless the parole release hearing is a stage of the criminal prosecution.

The Sixth Amendment entitles every person to counsel in a particular kind of proceeding-a criminal trial. That Amendment is inapplicable to other types of proceedings, even though they may have a critical impact on the destiny of the individual.2 Thus, the Sixth Amendment issue turns not on the importance of the parole release hearing, but rather on whether it is a part of the criminal prosecution.

The prosecution is a judicial proceeding. It does not end until judgment has been entered and sentence imposed. Mempa v. Rhay, 389 U.S. 128, 134, 88 S. Ct. 254, 19 L. Ed. 2d 336. Plaintiff argues that if the sentence is of indeterminate length, the sentencing process includes the proceedings before the Parole Board. Logically, that argument would support a conclusion that "the entire range of correctional process after sentencing is a part of the criminal proceeding"-a conclusion we have already rejected. Gunsolus v. Gagnon, 454 F.2d 416, 422 (7th Cir. 1971), rev'd on other grounds sub nom. Gagnon v. Scarpelli, 411 U.S. 582, 93 S. Ct. 1736, 36 L. Ed. 2d 503 (1973). In our opinion, the Sixth Amendment right to representation by counsel at the sentencing hearing applies only to the judicial hearing at which the sentence is fixed. The Amendment protects the accused during the adversary judicial trial; it does not broadly encompass every proceeding which may result in a deprivation of liberty or property. As the Supreme Court stated in Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484. "Parole arises after the end of the criminal prosecution, including imposition of sentence." See Gagnon v. Scarpelli, 411 U.S. 778, 781, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). A parole release hearing is not part of the criminal prosecution3; the Sixth Amendment is inapplicable.II.

The Supreme Court has recently held that parole revocation hearings may be conducted without the participation of counsel. Gagnon v. Scarpelli, 411 U.S. 778, 783, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (May 14, 1973). Since the arguments favoring the appointment of counsel certainly have no greater force as applied to a parole release hearing than to a parole revocation hearing, this holding requires rejection of plaintiff's due process argument.

Finally, plaintiff argues that since Rule 8 of the Illinois Pardon and Parole Board permits inmates to be represented by counsel at release hearings4, the Equal Protection Clause of the Fourteenth Amendment requires the state to provide such assistance for indigent inmates5. The question presented is whether Rule 8 creates an invidious discrimination between the rich and the poor. If it has that consequence, presumably the state could eliminate the discrimination either by appointing counsel for all indigents, as plaintiffs urge, or by rescinding the rule since, as we have held, the presence of counsel is not constitutionally required.

The briefs of both parties persuasively indicate that even if the presence of counsel may be desirable at parole release hearings, a lawyer is not indispensable to the effective conduct of such hearings. Unlike the actual importance of a transcript on an appeal from a criminal conviction, or the participation of counsel in the appellate process, this rule of the Illinois Parole Board, in the words of Justice Frankfurter, does not "make lack of means an effective bar to the exercise" of the indigent's opportunity to obtain parole. Justice Frankfurter commented on the impact of the unavailability of a transcript on indigent defendants as a class:

"Law addresses itself to actualities. It does not face actuality to suggest that Illinois affords every convicted person, financially competent or not, the opportunity to take an appeal, and that it is not Illinois that is responsible for disparity in material circumstances. Of course, a State need not equalize economic conditions. A man of means may be able to afford the retention of an expensive, able counsel not within reach of a poor man's purse. Those are contingencies of life which are hardly within the power, let alone the duty, of a State to correct or cushion. But when a State deems it wise and just that convictions be susceptible to review by an appellate court, it cannot by force of its exactions draw a line which precludes convicted indigent persons, forsooth erroneously convicted, from securing such a review merely by disabling them from bringing to the notice of an appellate tribunal errors of the trial court which would upset the conviction were practical opportunity for review not foreclosed.

"To sanction such a ruthless consequence, inevitably resulting from a money hurdle erected by a State, would justify a latter-day Anatole France to add one more item to his ironic comments on the 'majestic equality' of the law. 'The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.' (John Cournos, A Modern Plutarch, p. 27.)

"The State is not free to produce such a squalid discrimination. If it has a general policy of allowing criminal appeals, it cannot make lack of means an effective bar to the exercise of this opportunity." Griffin v. Illinois, 351 U.S. 12, 23-24, 76 S. Ct. 585, 592, 593, 100 L. Ed. 891 (Mr. Justice Frankfurter concurring).

That analysis also explains the holding in Douglas v. California that counsel must be appointed to represent the indigent defendant on his first appeal from a criminal conviction, for otherwise "any real chance he may have had of showing that his appeal has hidden merit" is denied to each member of the indigent class. 372 U.S. 353, 356, 83 S. Ct. 814, 816, 9 L. Ed. 2d 811. Speaking for the Court, Mr. Justice Douglas then expressly noted that the holding did not extend to discretionary hearings, or to procedures in which the applicant might have successive opportunities for relief.6 Indeed, even in proceedings in which a person has a constitutional right to representation by a lawyer, the Supreme Court has indicated that there is no parallel requirement that counsel be provided for the indigent.7

We hold the Equal Protection Clause does not require the Illinois Pardon and Parole Board either (1) to repeal its rule permitting inmates to have the assistance of counsel, or (2) to provide such assistance for all inmates at state expense.

The order of the district court denying the motion to vacate its earlier order dismissing the complaint is

Affirmed.