MODULE 10: PAROLE AND PROBATION

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Probation & Parole

Conditional Release

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Probation & Parole

Be sure to use the terms properly!!!

Significant variation in state laws about probation & parole.

Fewer court decisions about the rights of probationers & parolees than about incarcerated offenders

Parole laws are especially complex and have gone thru major changes in the last 20 years

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3 major issues

Rights of offenders being considered for parole release

Other constitutional rights of probationers and parolees

Rights of probationers & parolees in revocation process

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Conditions of parole & probation

For parole – conditions on parolees are imposed by parole board. For probationers – depends on the state

Parole board has lots of discretion with imposing conditions

Conditions must be constitutional, reasonable, unambiguous, related to rehabilitation

Conditions of parole & probation

Nonassociation conditions (1st Amendment) not usually successful

Arciniega v. Freeman (1971): prohibition did not include incidental contact

Restrictions on travel usually upheld

Requirements to be in a place at a specific time usually upheld

Conditions on parole & probation

1st Amendment freedom of religion issues – generally cannot restrict church attendance or require it

Can require education & vocational training

Can require therapy/counseling

Can mandate restitution but Bearden v. Georgia (1985)

https://www.tdcj.texas.gov/bpp/policies_directives/policies_directives.html

Parole Release Procedure – what due process rights do offenders have?

Parole is a privilege and not a right – it’s a discretionary decision based on an evaluation of an offender’s future conduct

Greenholtz v. Inmates of Nebraska Penal and Correctional Complex:

The 14th Amendment’s due process clause does not apply to a decision to release an inmate conditionally before the end of a prison term.

If the language of a state’s parole statute creates a liberty interest for prisoners in the parole decision, inmates may have constitutional due process protections as a result of the state law.

An informal process is all that is required.

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Fifth Amendment Rights

Probation/Parole officer does not have to give their client Miranda warnings UNLESS the client has been placed under arrest

Conversations between probationers/ parolees and their officers are not confidential

Fourth Amendment Rights

Griffin v. Wisconsin (1987):

A law allowing warrantless searches of a probationer’s residence by a probation officer and based on “reasonable grounds” is valid and does not violate the probationer’s Fourth Amendment rights.

right to search often in probation/parole contract or in terms of a consent form signed by offender

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Fourth Amendment Rights

United States v. Knights (2001): when a police officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, a warrantless search is constitutional based on the probationer’s diminished expectations of privacy.

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Fourth Amendment Rights

Samson v. California (2006):

A warrantless, suspicionless search conducted by a police officer of a parolee does not violate the Constitution

Fourth Amendment Rights

Pennsylvania Board of Probation and Parole v. Scott (1998)

The exclusionary rule, prohibiting the introduction of evidence seized in violation of the Fourth Amendment's protections against unreasonable search and seizure, does not apply to parole revocation hearings.

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Revocation

Morrissey v. Brewer (1972):

Due process requires that, at a minimum, parole revocation procedures include:

(1) written notice of the claimed parole violation; (2) disclosure to the parolee of the evidence against them

(3) opportunity for the parolee to present evidence and witnesses and be heard

(4) right to confront and examine witnesses

(5) neutral and detached hearing committee

(6) written statement by the parole board of the evidence & reasons for revoking parole.

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Morrissey v. Brewer (1972)

Supreme Court said offender is entitled to

1) preliminary hearing after arrest to determine if there is PC to revoke parole AND

2) final hearing to decide on revocation within a reasonable time (Court commented that a final hearing within 2 mos is reasonable)

Morrissey is a PAROLE revocation case

Court spoke about a revocation as a “grievous loss”

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Revocation continued

Gagnon v. Scarpelli (1973)

requirements for a probation revocation hearing are identical to the requirements for a parole revocation hearing

There is no absolute right to an atty during the probation or parole process: available when charges are contested or when there is mitigating evidence and the reasons are complex or difficult to present.

Practice in many states has become to provide attys

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Rights in the Clemency Process

Connecticut Board of Pardons v. Dumschat (1981): It does not matter that clemency has been granted frequently, it is a discretionary decision and an inmate has no due process protections in the clemency system.