An Overview of the System
ADAM J. MCKEE
Section 6.5: Probation, Parole, and the Law
For most of the history of probation and parole in the United States, offenders were viewed as having received a gift from the state when they were not sent to prison. Because being on probation or parole was viewed as a privilege conferred by the state, most states believed that they were under no obligation to provide probationers and parolees with the elements of due process they were afforded prior to conviction. In today’s legal landscape, the Supreme Court has intervened and now probationers and parolees enjoy some, but not all, of the protections afforded by the Constitution. Note that most of the Supreme Court decisions regarding the rights of probationers and parolees blur the distinction. That is, most of the Court’s rulings on probation issues apply to parole as well, and vice versa.
Revocation of Parole
Implicit in the criminal justice system’s concern with parole violations is the idea that individuals on parole are entitled to retain their liberty as long as they largely abide by the conditions of parole (or probation). When parolees do fail to live up to these standards, their parole can be revoked. The first step in the parole revocation process involves answering a factual question: whether the parolee has in fact acted in violation of one or more conditions of his or her parole. Only if it is determined that the parolee did violate the conditions does the second question arise: should the parolee be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation?
The second question involves the application of expertise by the parole authority in making a prediction as to the ability of the individual to live in society without committing antisocial acts. This part of the decision, too, depends on facts, and therefore it is important for the parole board to know not only that some violation was committed but also to know accurately how many and how serious the violations were. Yet this second step, deciding what to do about the violation once it is identified, is not purely factual but also predictive and discretionary.
Parole revocation is very serious for the offender. If a parolee is returned to prison, he or she usually receives no credit for the time “served” on parole. Thus, the violator may face a potential of substantial imprisonment. Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions. This means that the legal standards for parole revocation are not the same as a finding of guilt in criminal court.
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. Historically, it was common for judges to speak of this problem in terms of whether the parolee’s liberty was a “right” or a “privilege.” By whatever name, the Supreme Court has determined that liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Because of this, the courts have determined that its termination calls for some orderly process, however informal.
In Morrissey v. Brewer (1972), the Supreme Court refused to write a code of procedure for parole revocation hearings; that, they said, is the responsibility of each State. In this case, the court pointed out that most States have set out procedures by legislation. The Supreme Court did establish a list of minimum due process requirements that must be followed in all revocation proceedings. They include (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.
Specifically, then, Morrissey held that a parolee is entitled to two hearings, one a preliminary hearing at the time of his arrest and detention to determine whether there is probable cause to believe that he has committed a violation of his parole, and the other a somewhat more comprehensive hearing prior to the making of the final revocation decision.
In Gagnon v. Scarpelli (1973), the court considered the problem of probation revocation hearings. In Scarpelli, the court stated:
Petitioner does not contend that there is any difference relevant to the guarantee of due process between the revocation of parole and the revocation of probation, nor do we perceive one. Probation revocation, like parole revocation, is not a stage of a criminal prosecution but does result in a loss of liberty. Accordingly, we hold that a probationer, like a parolee, is entitled to a preliminary and a final revocation hearing, under the conditions specified in Morrissey v. Brewer.
In Mempa v. Rhay (1967), the Court held that a probationer is entitled to be represented by appointed counsel at a combined revocation and sentencing hearing. Reasoning that counsel is required “at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.”
The Fourth Amendment
As with due process rights, a person’s Fourth Amendment rights are not nullified just because they are convicted of a crime. What makes probationers and parolees different than the average citizen are their conditions of release. Most states require parolees to give up their right to be free from unreasonable searches as part of their conditions. Because the parolee is giving up Fourth Amendment rights, this element is often referred to as a Fourth waiver. The rules that govern officer conduct vary from state to state. In some states, an officer must have reasonable suspicion before conducting a probation search. In many states, an officer can conduct a suspicionless search at any time, without reason to believe that the offender committed a new crime. Who may search also varies from jurisdiction to jurisdiction. Some jurisdictions only allow probation and parole officers to search without probable cause, and some extend this authority to police officers as well.
Conditions of Probation and Parole
As previously discussed, offenders are only granted probation or parole if they agree to abide by certain, specified conditions. These can be general conditions that apply to all offenders released in a particular jurisdiction, or they can be tailored to the special needs of a particular offender. The intent of these conditions is to help ensure that the dual objectives of control and rehabilitation are met. Because of the fragmented nature of courts in the United States, there is a great deal of variability in the philosophy and practice of imposing these conditions.
The power to impose conditions of probation and parole is most often vested in the courts. Judges have immense discretion when it comes to choosing conditions. Most courts rely on community corrections officers to make suggestions, but the final say us up to the judge. This wide discretion is not, however, without bounds.
Recall the void for vagueness doctrine discussed in the criminal law chapter. The basis of this legal limit on the power of lawmakers is that it is fundamentally unfair when a reasonable person cannot figure out what exactly a law prohibits. The courts have viewed conditions of probation in the same light. In other words, if the offender cannot figure out what exactly is prohibited because the specification of the condition is too vague, then the condition is unconstitutional. In practice, this means that conditions of probation can vary widely in subject, purpose, and scope, but what is prohibited (or mandated) must be specified in such a way that there is no confusion as to what is required. Conditions that are crafted in vague terms such as “must live honorably” will be struck down by the courts.
In the context of probation and parole conditions, the term reasonableness is often synonymous with realistic. The basic requirement is that the conditions set forth by the judge must be such that the offender has the ability to abide by them. If the offender is likely to fail because the conditions cannot possibly be complied with, then the condition will be deemed not reasonable by the courts. It would be unreasonable, for example, to order an indigent offender to pay $10,000 a month in restitution. Addicts have argued that it is unreasonable to expect them to refrain from drug and alcohol use because of the nature of addiction. These claims fail the vast majority of the time. Various courts have reasoned that drug use is illegal, and illegal behavior by probationers and parolees cannot be tolerated.
Related to Protection and Rehabilitation
Since the major goals of probation and parole are to protect society from crime and to rehabilitate the offender, conditions of probation and parole must be reasonably related to one or both of these objectives. If a condition does not relate to these objectives, it will likely be struck down by the courts. In practice, this gives judges very wide latitude in selecting conditions that may be related to these goals. Many courts have struck down conditions of probation that were obviously intended to be “scarlet letter” punishments.
Several courts have nullified conditions that were contrary to constitutionally protected actions. When constitutional rights are at stake, the government will usually have to establish a compelling state interest in violating the right. In other words, the appellate court will balance the interest the state has in curtailing the right with the cost to the offender. Some rights are afforded greater protection by the court than other rights. These special liberties are often referred to as fundamental rights. The freedom of the press, freedom of assembly, freedom of speech, and freedom of religion are among these fundamental rights. For example, courts have struck down conditions that required and offender to attend Sunday school on a regular basis. The court reasoned that forcing someone to participate in a church activity violated the offender’s freedom of religion. As previously discussed, Fourth Amendment rights are not nearly so well protected.
Conditions of Release, Fourth Waiver, Fundamental Rights, Mempa v. Rhay (1967), Morrissey v. Brewer (1972), Parole Revocation
Last Updated: 6/21/2018
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