Section 6.5: Probation, Parole, and the Law

In the United States, probation and parole have been used as alternatives to incarceration for many years. In the past, individuals who were placed on probation or parole were considered fortunate as they were not sent to prison.

This perception was based on the idea that being on probation or parole was a privilege granted by the government. Due to this belief, some states did not believe that they had to provide individuals on probation or parole with the same rights and protections that they were entitled to before they were found guilty.

However, with the intervention of the Supreme Court, probationers and parolees now have some of the same rights and protections as any other citizen under the Constitution. Although there are still some limitations, probationers and parolees can now benefit from various legal protections. For example, they have the right to due process, which means they can have a fair trial and appeal if they believe their rights have been violated.

It is worth noting that most of the Supreme Court’s rulings on probation and parole issues apply to both types of supervision. The distinction between probation and parole has become blurred in the eyes of the law, and therefore, the same legal protections generally apply to both. Despite this, some differences still exist, and it is important to consult with legal professionals to understand the specific rights and obligations associated with each type of supervision.

Revocation of Parole

In the United States, the criminal justice system is responsible for maintaining law and order. As part of this responsibility, it oversees the parole system, which is a form of community supervision for individuals who have been released from prison before the completion of their sentence. The goal of parole is to provide offenders with the opportunity to serve the remainder of their sentence in the community, subject to certain conditions, such as attending counseling or refraining from drug use.

If a parolee fails to comply with the conditions of their parole, their parole can be revoked. This means that they can be sent back to prison to serve the remainder of their sentence. However, parole revocation is not an automatic process. The decision to revoke parole requires careful consideration and a thorough evaluation of the facts.

The first step in the parole revocation process is determining whether the parolee has violated the terms of their parole. This involves answering factual questions, such as whether the parolee attended counseling or refrained from drug use. If it is determined that the parolee has violated one or more conditions, the next step is deciding what to do about the violation. This is a more complex decision that requires the parole board to apply their expertise in making a prediction about the individual’s ability to live in society without committing antisocial acts.

The decision to revoke parole is not one that is taken lightly. If a parolee is returned to prison, they usually do not receive credit for the time they spent on parole. This means that they may face an extended period of imprisonment. Parole revocation does not take away an individual’s absolute liberty, but only the conditional liberty that is contingent on adhering to specific parole restrictions. Therefore, the legal standards for parole revocation are different from those used to determine guilt in criminal court.

Due Process

The concept of due process is an essential component of the legal system in the United States. It is the principle that individuals have the right to be treated fairly and justly under the law. In the context of parole, due process protections are particularly important because the termination of a parolee’s liberty can have serious consequences, not only for the individual in question but also for society as a whole.

Historically, judges have referred to the issue of whether a parolee’s liberty is a “right” or a “privilege.” However, the Supreme Court has established that liberty is valuable and must be protected under the Fourteenth Amendment. This means that parolees are entitled to some degree of protection under the law, even though their liberty is indeterminate.

In Morrissey v. Brewer (1972), the Supreme Court recognized that the termination of parole calls for an orderly process, even if it is informal. The Court did not create a code of procedure for parole revocation hearings, but it did establish minimum due process requirements that must be followed in all revocation proceedings.

These requirements include written notice of claimed parole violations, disclosure of evidence against the parolee, the right to be heard in person and present evidence, the right to confront adverse witnesses, a neutral hearing body, and a written statement explaining the evidence relied upon and reasons for revoking parole.

It is important to note that Morrissey v. Brewer held that a parolee is entitled to two hearings: a preliminary hearing to determine whether there is probable cause to believe the parolee committed a violation of their parole and a more comprehensive hearing before the final revocation decision. The purpose of the preliminary hearing is to ensure that the parolee’s liberty is not revoked without a fair and impartial hearing. The final revocation hearing must comply with the minimum due process requirements established by the Supreme Court.

Gagnon v. Scarpelli (1973) extended the same due process protections to probation revocation hearings. The court held that a probationer, like a parolee, is entitled to a preliminary and a final revocation hearing, following the conditions specified in Morrissey v. Brewer. This ruling ensured that individuals on probation are also protected by the principle of due process.

Finally, in Mempa v. Rhay (1967), the Court held that a probationer is entitled to appointed counsel at a combined revocation and sentencing hearing. This ruling was based on the idea that counsel is required “at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” Therefore, the Court held that individuals on probation are entitled to legal representation at combined revocation and sentencing hearings, as these hearings may have a significant impact on their liberty and rights.

The Fourth Amendment

In the United States, the Fourth Amendment to the Constitution guarantees individuals the right to be free from unreasonable searches and seizures. This means that law enforcement officers must have probable cause or a warrant before conducting a search of a person, their property, or their residence. However, individuals who are convicted of a crime and placed on probation or parole may be required to give up some of their Fourth Amendment rights as part of their conditions of release.

Probation and parole are forms of community supervision that allow individuals to serve their sentences outside of prison under certain conditions. These conditions can include requirements such as reporting to a probation or parole officer, refraining from drug and alcohol use, and submitting to drug testing. The conditions of release can also include a waiver of Fourth Amendment rights, which means that the individual agrees to be subject to searches and seizures without the need for a warrant or probable cause.

The rules that govern officer conduct during searches of probationers and parolees vary by state and jurisdiction. In some states, officers must have reasonable suspicion before conducting a search, which means that they must have specific and articulable facts that lead them to believe that the individual is engaging in criminal activity. In many states, however, officers can conduct a suspicionless search at any time without any prior cause or suspicion.

Probation and parole officers are typically responsible for supervising and enforcing the conditions of release for probationers and parolees. Police officers may also be authorized to conduct searches of probationers and parolees, depending on the jurisdiction. In some jurisdictions, only probation and parole officers can conduct searches without probable cause, while in others, police officers are also authorized to do so.

By enforcing these rules and protections, the legal system aims to balance the need for effective law enforcement with the need to protect the rights of individuals under community supervision. The waiver of Fourth Amendment rights for probationers and parolees is intended to help ensure compliance with the conditions of release while also allowing for effective supervision and monitoring. However, these searches must still comply with the requirements of due process and the Fourth Amendment, which provides individuals with certain legal protections against unreasonable searches and seizures.

Conditions of Probation and Parole

As previously mentioned, individuals who are granted probation or parole must agree to abide by specific conditions as a condition of their release. These conditions can be general requirements that apply to all offenders in a particular jurisdiction, or they can be tailored to the individual needs of a specific offender. The objective of these conditions is to ensure that the dual goals of control and rehabilitation are met.

The courts most commonly hold the power to impose these conditions. Judges have broad discretion when it comes to selecting the conditions of release for probationers and parolees. While many courts rely on recommendations from community corrections officers to inform their decisions, the ultimate responsibility for choosing the conditions of release lies with the judge.

Despite this wide discretion, there are limitations to the types of conditions that can be imposed. For example, courts must ensure that the conditions are reasonably related to the offender’s rehabilitation and the protection of society. Additionally, the conditions must be specific and understandable so that the offender knows what is required of them. In some cases, courts may also be required to provide a justification for imposing a particular condition.

The philosophy and practice of imposing conditions of release can vary widely across different jurisdictions in the United States. Some jurisdictions may focus more on rehabilitation, while others may prioritize control and public safety. The fragmented nature of the court system in the United States contributes to this variability, as each jurisdiction is able to set its own standards and practices.

Clarity

In the criminal law chapter, we discussed the concept of the void for vagueness doctrine. This legal principle restricts the power of lawmakers by preventing them from enacting laws that a reasonable person cannot understand. This is considered fundamentally unfair, as it can lead to confusion and arbitrary enforcement of the law. The same principle applies to conditions of probation, which are imposed on individuals as a requirement of their release.

If a condition of probation is too vague, it can be considered unconstitutional. This is because the offender may not be able to understand what is prohibited or required of them, which can lead to confusion and difficulty in complying with the conditions. In practice, this means that conditions of probation can vary widely in subject, purpose, and scope, but they must be specified in a way that is clear and understandable to the offender.

For example, a condition that requires an offender to “live honorably” is too vague and can be struck down by the courts. This type of condition does not provide any specific guidance on what behavior is required or prohibited, and therefore, it is difficult for the offender to comply with the condition.

Conditions of probation can serve a variety of purposes, including rehabilitation, punishment, and public safety. Some conditions may be tailored to the individual needs of the offender, while others may be general requirements that apply to all offenders in a particular jurisdiction. Regardless of the purpose or scope of the condition, it must be clear and specific enough for the offender to understand what is required of them.

Reasonableness

In the context of probation and parole conditions, the term “reasonableness” is often used interchangeably with “realistic.” This means that the conditions set forth by the judge must be achievable by the offender. If the conditions are impossible to meet, then they will be considered unreasonable by the courts.

For example, if an offender is unable to pay a large amount of restitution due to financial hardship, it would be unreasonable to order them to pay an amount that they simply cannot afford. Similarly, addicts have argued that it is unreasonable to expect them to refrain from drug and alcohol use due to the nature of addiction. While addiction can be a challenging issue to address, courts have generally held that illegal behavior by probationers and parolees cannot be tolerated and that drug use is illegal.

The reasonableness of a condition depends on the individual circumstances of each case. For example, a condition that requires an offender to attend counseling sessions may be reasonable for some offenders but not for others who may live in a remote area with limited access to counseling services. Similarly, a condition that requires an offender to obtain and maintain steady employment may be reasonable for some offenders but not for those who have physical or mental health issues that prevent them from working.

In order to determine whether a condition is reasonable, courts consider a variety of factors, such as the offender’s history, the nature of the offense, and the offender’s ability to comply with the condition. If a condition is found to be unreasonable, it may be modified or struck down by the courts.

Related to Protection and Rehabilitation

Probation and parole are designed to achieve two major goals: to protect society from crime and to rehabilitate offenders. Therefore, the 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 is likely to be considered unconstitutional by the courts.

To ensure that the conditions set forth by the judge serve their intended purposes, they must be reasonably related to the goals of protecting society and rehabilitating offenders. For example, a condition that requires an offender to attend counseling sessions can be considered reasonable, as it may help the offender to address underlying issues that led to their criminal behavior. Similarly, a condition that requires an offender to maintain steady employment may be reasonable, as it can help them to reintegrate into society and avoid returning to a life of crime.

However, if a condition is found to be unrelated to these objectives, it is likely to be struck down by the courts. For example, a condition that requires an offender to wear a sign indicating their status as a convicted criminal can be considered a “scarlet letter” punishment and is not reasonably related to the goals of probation or parole. Such conditions can be considered humiliating and stigmatizing and do not serve any rehabilitative or public safety purpose.

The discretion of judges in selecting conditions of probation and parole is wide but not without limits. Judges must ensure that the conditions imposed are reasonable and that they serve their intended purposes. If a condition is found to be unreasonable or unrelated to the goals of probation or parole, it may be modified or struck down by the courts.

Constitutionality

Courts have nullified probation and parole conditions that conflict with constitutionally protected rights. When a constitutional right is at stake, the government must establish a compelling state interest to justify any violation of that right. In other words, the appellate court will balance the interest the state has in curtailing the right with the cost to the offender.

The Court gives some rights greater protection than others. These rights are known as fundamental rights and include the freedom of the press, freedom of assembly, freedom of speech, and freedom of religion. For example, courts have struck down conditions that require an offender to attend Sunday school regularly, reasoning that forcing someone to participate in a religious activity violates their freedom of religion.

In contrast, Fourth Amendment rights are not as strongly protected as fundamental rights. The Fourth Amendment protects individuals from unreasonable searches and seizures, but this protection can be waived as a condition of probation or parole. Parolees and probationers have a reduced expectation of privacy, and courts have held that suspicionless searches are a reasonable condition of release.

However, even when the Fourth Amendment is at issue, courts will still consider the reasonableness of a condition in light of the interests of both the offender and society. If a condition is not reasonably related to the goals of probation or parole or if it is overly burdensome on the offender’s privacy rights, it may be struck down by the courts.

The constitutional rights of probationers and parolees are an important consideration in the development and enforcement of conditions of release. While some rights, such as the freedom of religion, are given strong protection by the courts, others, such as Fourth Amendment rights, are more limited in the context of probation and parole. Nonetheless, the courts will still consider the reasonableness of any condition that may infringe upon an offender’s constitutional rights.

Summary

Probation and parole have been used as alternatives to incarceration for many years in the United States. Despite the belief that being on probation or parole was a privilege, the Supreme Court intervened to provide probationers and parolees with the same rights and protections as any other citizen under the Constitution. Probationers and parolees now benefit from various legal protections, including the right to due process. However, some limitations still exist, and it is essential to consult legal professionals to understand the specific rights and obligations associated with each type of supervision.

The decision to revoke parole requires careful consideration and a thorough evaluation of the facts. The parole revocation process involves determining whether the parolee has violated the terms of their parole and what to do about the violation. The decision to revoke parole is not taken lightly, as parolees do not receive credit for the time they spent on parole if they are returned to prison.

The principle of due process is an essential component of the legal system in the United States, and due process protections are particularly important in the context of parole. Morrissey v. Brewer established minimum due process requirements that must be followed in all revocation proceedings, including written notice of claimed parole violations, disclosure of evidence against the parolee, the right to be heard in person and present evidence, the right to confront adverse witnesses, a neutral hearing body, and a written statement explaining the evidence relied upon and reasons for revoking parole.

The Fourth Amendment to the Constitution guarantees individuals the right to be free from unreasonable searches and seizures. However, individuals on probation or parole may be required to give up some of their Fourth Amendment rights as part of their conditions of release. The waiver of Fourth Amendment rights for probationers and parolees is intended to help ensure compliance with the conditions of release while also allowing for effective supervision and monitoring. These searches must still comply with the requirements of due process and the Fourth Amendment, which provides individuals with certain legal protections against unreasonable searches and seizures.

Probation and parole are conditional releases granted to offenders, which come with specific conditions that must be met. The conditions are aimed at fulfilling the dual goals of control and rehabilitation. The judges have broad discretion in selecting the conditions. They can be tailored to the individual needs of a specific offender or be general requirements that apply to all offenders in a particular jurisdiction. However, the conditions must be specific, understandable, and reasonably related to the offender’s rehabilitation and the protection of society. If the conditions are too vague or impossible to meet, they can be considered unconstitutional.

The reasonableness of a condition depends on the individual circumstances of each case. The courts consider a variety of factors, such as the offender’s history, the nature of the offense, and the offender’s ability to comply with the condition. The conditions set forth by the judge must be reasonably related to the goals of protecting society and rehabilitating offenders. A condition that is unrelated to these objectives is likely to be considered unconstitutional by the courts. The discretion of judges in selecting conditions of probation and parole is wide but not without limits. Judges must ensure that the conditions imposed are reasonable and serve their intended purposes.

Courts have nullified probation and parole conditions that conflict with constitutionally protected rights. When a constitutional right is at stake, the government must establish a compelling state interest to justify any violation of that right. The court gives some rights greater protection than others, and these are known as fundamental rights. The constitutional rights of probationers and parolees are an important consideration in the development and enforcement of conditions of release. The courts will still consider the reasonableness of any condition that may infringe upon an offender’s constitutional rights.

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Last Updated:  07/13/2023

References

• Gagnon v. Scarpelli, 411 U.S. 778 (1973).
• Mempa v. Rhay, 389 U.S. 128 (1967).
• Morrissey v. Brewer, 408 U.S. 471 (1972).