CCJS 100 – Criminal Act Assignment - DUE FRIDAY

Introduction to Criminal Justice

Section 6.1: Jails

Prepared by Adam J. McKee

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Jails The idea of jails has a long history, and the historical roots of American jails are in the "gaols" of feudal England.

Sheriffs operated these early jails, and their primary purpose was to hold accused persons awaiting trial.

This English model was brought over to the Colonies, and the function remained the same.

In the 1800s, jails began to change in response to the penitentiary movement.

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The Evolved Role of Jails Their function was extended to housing those convicted of minor offenses and sentenced to short terms of incarceration .

They were also used for other purposes, such as holding the mentally ill and vagrants.

The advent of a separate juvenile justice system and the development of state hospitals alleviated the burden of taking care of these later categories.

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Today’s Jails Today's jails are critical components of local criminal justice systems.

They are used to address the need for secure detention at various points in the criminal justice process.

Jails typically serve several law enforcement agencies in the community, including local law enforcement, state police, wildlife conservation officers, and federal authorities .

Jailsrespond to many needs in the criminal justice system and play an integral role within every tier of American criminal justice.

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A Dynamic Need These needs are ever changing and influenced by the policies, practices, and philosophies of the many different users of the jail.

Running a jail is a tough business, usually undertaken by a county sheriff .

Often, much of the Sheriff's authority is delegated to a jail administrator .

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Population Diversity Running a jail is such a complicated endeavor partly because jails serve an extremely diverse population .

Unlike prisons where inmate populations are somewhat homogenous, fails hold vastly different individuals.

Jails hold both men and women, and both children and adults. Most state prisoners are serious offenders, whereas jails old both serious offenders as well as minor offenders who may be vulnerable to predatory criminals.

Those suffering from mental illness, alcoholism, and drug addiction often find themselves in jail.

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Major Functions It is in this environment that jail staff must accomplish the two major functions of jails:

1. Intake 2. Custody

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Booking and Intake The booking and intake function of jails serves a vital public safety function by providing a secure environment in which potentially dangerous persons can be assessed,and the risk these individuals pose the public can be determined .

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Custody The second major function of jails is the idea of custody.

That is, people are deprived of their liberty for various reasons.

The two most common of these reasons are

1. pretrial detention 2. punishment

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Pretrial Detention A major use of modern jails is what is often referred to as pretrial detention .

In o th e r wo rd s , ja ils re ce ive a ccu se d p e rs o n s p e n d in g a rra ign m e n t a n d h o ld th e m a wa itin g tria l, co n victio n , o r s e n te n cin g.

Mo re th a n h a lf o f ja il in m a te s a re a ccu se d o f crim e s a n d a re a wa itin g tria l.

Th e a ve ra ge tim e b e twe e n a rre s t a n d s e n te n cin g is a ro u n d s ix m o n th s .

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Other Judicial Hearings Jails also readmit probation and parole violators and absconders, holding them for judicial hearings.

The major purpose of pretrial detention is not to punish offenders, but to protect the public and ensure the appearance of accused persons at trial.

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How Many Jails Are There? According to the Bureau of JusticeStatistics, there are around 3,300 jails currently in operation within the United States.

This large number points to a very important fact: Jails are primarily a local concern .

Jails(and detention centers) are facilities designed to safely and securely hold a variety of criminal offenders, usually for a short period .

The wide variety of offenders comes from the fact that jails have dual roles.

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Jail Size The size of jails can vary widely depending on the jurisdiction the facility serves.

Both geographic and legal jurisdiction must be considered.

The single most important determinant of jail size is population density: The more people a given jurisdiction has, the more jail inmates they are likely to have.

Many rural jails are quite small, but America’s largest population centers tend to have massive jail complexes.

Most counties and many municipalities operate jails, and a few are operated by federal and other non -local agencies. 13

Regional Facilities There has been a trend for small, rural jurisdictions to combine their jails into regional detention facilities.

These consolidated operations can increase efficiency, security, and better ensure prisoners’ rights .

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Judicial Influence A primary function of jails is to house criminal defendants after arrest .

Within a very narrow window of time, the arrestee must appear before a judge.

The judge will consider the charges against the defendant and the defendant’s risk of flight when determining bail.

The judge may decide to remand the defendant to the custody of the jail until trial, but this is rare.

Most often, pretrial release will be granted .

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Jails for Punishment As a criminal sanctioning option, jails provide a method of holding offenders accountable for criminal acts.

Jailshouse offenders that have been sentenced to a jail term for misdemeanor offenses, usually for less than one year.

There are many ways that jail sentences can be served, depending largely on the laws and policies of the particular jurisdiction .

A central goal of incarceration as punishment in the criminal justice system is the philosophical goal of deterrence.

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Other Goals Rehabilitation and reintegration are sometimes considered secondary goals of incarceration .

These goals are not usually deemed amenable to the jail environment, and few programs designed to meet these goals exist.

Many local jails do make a modest effort to provide inmates with opportunities for counseling and change to deter future criminal behavior, but always within the constraints of scant resources.

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Misc. Functions Jails in some jurisdictions are responsible for transferring and transporting inmates to federal, state, or other authorities .

Jails are also tasked with holding mentally ill persons pending their transfer to suitable mental health facilities where beds are often unavailable.

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Other Government Purposes Jails also hold people for a variety of government purposes ; they hold individuals

● Wanted by the armed forces ● For protective custody (individuals who may not be safe in the community) ● Found in contempt of court ● As witnesses for the courts

Jails often hold state and federal inmates due to overcrowding in prison facilities.

Jails are commonly tasked with community -based sanctions, such as work details engaged in public services.

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Jail Populations Arrestees often arrive at the jail with myriad many problems .

Substance abuse, alcohol abuse, and mental illness often mean that jail inmates are not amenable to complying with the directions of jail staff.

Many have medical problems, psychological problems, and emotional problems .

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Emotional & Behavioral Problems Inmates can display the full gambit of human emotions : fail staff may see fear, anxiety, anger, and depression every day.

Behaviors often mirror emotional state, and at times staff must deal with noncompliant, suicidal, or violent inmates.

While inmates are in custody, the jail is responsible for their health and wellbeing.

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Outside Influences on Jails Jails function in a role as a service provider for the rest of the criminal justice community .

Jailadministrators have very little discretion in who goes to jail and how long they remain in custody.

Law and policy play a big role in dictating who goes to jail, as do the discretionary decisions of probation and parole officers, law enforcement, and judges.

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Juvenile Detention Many jails temporarily detain juveniles pending transfer to juvenile authorities.

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Juvenile Trends The trend in juvenile incarceration is toward lower numbers and a move toward local facilities.

The juvenile offender population dropped 14% from 2010 to 2012, to the lowest number since 1975.

In the March 2015 report, it was noted that for the first time since 2000, more offenders were in local facilities than were in state operated facilities.

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Physical Security The degree of security present in juvenile facilities tends to vary widely between jurisdictions .

An important measure of security used in OJJDPreports is locking youth in "sleeping rooms ."

More than half of all facilities reported that they had one or more confinement features in addition to locking juveniles in their sleeping room (which usually happens at night).

These security features usually consist of locked doors and gates designed to keep juveniles within the facility.

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Types of Juvenile Facilities Unlike adult jails, juvenile detention takes place in a variety of different environments .

According to the OJJDPstudy, the most common type of facility were facilities that considered themselves to be "residential treatment centers," followed by those that considered themselves to be "detention centers."

The classifications of "group home," "training school," "shelter," "wilderness camp," and "diagnostic center" are also used.

Group homes and shelters tended to be privately owned, and detention centers tended to be state run facilities.

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Introduction to Criminal Justice Section 6.2: Prisons

Prepared by Adam J. McKee

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Assessment As inmates enter a prison system after sentencing, they are typically assessed at a classification or reception facility based on

● the nature of their crime ● criminal history ● escape risk ● health needs ● any behavioral issues that must be addressed

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Goals of Assessment The goal of these assessments is to determine the dangerousness of the offender and the viability of various treatment options.

Based on the assessment results, prison personnel will assign the offender to a particular prison facility.

The primary concern when assigning an inmate to a facility is safety, followed by practical concerns about bed space.

The needs of the inmate are also considered in the process.

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Prisoner Choice? Prisoners thus have almost no control of where they are confined.

Some prisons do allow for transfers to facilities closer to family, but these requests are subject to security concerns and bed space.

Often, female inmates are housed far from family because the small number of female facilities often means that there are no options close to family.

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Development of Prisons Prior to the 1800s, common law countries relied heavily on physical punishments.

Influenced by the high ideas of the enlightenment, reformers began to move the criminal justice system away from physical punishments in favor of reforming offenders.

This was a dramatic shift away from the mere infliction of pain that had prevailed for centuries.

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Penitentiaries Among these early reformers was John Howard, who advocated the use of penitentiaries.

Penitentiaries , a s t h e n a m e s u gge s t s , we re p la ce s fo r o ffe n d e rs t o b e p e n it e n t .

Th a t is , t h e y wo u ld e n ga ge in wo rk a n d re fle ct io n o n t h e ir m is d e e d s .

To a ch ie ve t h e a p p ro p ria t e a t m o s p h e re fo r p e n it e n ce , p ris o n e rs we re ke p t in s o lit a ry ce lls wit h m u ch t im e fo r re fle ct io n .

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Pennsylvania System Philadelphia’s Walnut Street Jail wa s a n e a rly e ffo rt t o m o d e l t h e Eu ro p e a n p e n it e n t ia rie s .

Th e s ys t e m u s e d t h e re la t e r b e ca m e kn o wn a s t h e Pennsylvania System .

Un d e r t h is s ys t e m , in m a t e s we re ke p t in s o lit a ry co n fin e m e n t in s m a ll, d a rk ce lls .

A ke y e le m e n t o f t h e Pe n n s ylva n ia Sys t e m is t h a t n o co m m u n ica t io n s wh a t s o e ve r we re a llo we d .

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Criticisms of the Pennsylvania System Critics of this system began to speak out against the practice of solitary confinement early on.

They maintained that the isolated conditions were emotionally damaging to inmates, causing severe distress and even mental breakdowns.

Nevertheless, prisons across the United States began adopting the Pennsylvania model, espousing the value of rehabilitation.

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The New York System The New York system evolved along similar lines, starting with the opening of New York’s Auburn Penitentiary in 1819.

This facility used what came to be known as the congregate system. Under this system, inmates spent their nights in individual cells, but were required to congregate in workshops during the day.

Work was serious business, and inmates were not allowed to talk while on the job or at meals.

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Did It Work? By the middle of the nineteenth century, prospects for the penitentiary movement were grim.

No evidence had been mustered to suggest that penitentiaries had any real impact on rehabilitation and recidivism.

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The Lease System Prisons in the South and West were quite different from those in the Northeast.

In the Deep South, the lease system d e ve lo p e d .

Un d e r t h e le a s e s ys t e m , b u s in e s s e s n e go t ia t e d wit h t h e s t a t e t o e xch a n ge co n vict la b o r fo r t h e ca re o f t h e in m a t e s .

Pris o n e rs we re p rim a rily u s e d fo r h a rd , m a n u a l la b o r, s u ch a s lo ggin g, co t t o n p ickin g, a n d ra ilro a d co n s t ru ct io n .

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Deplorable Conditions Disillusionment with the penitentiary idea, combined with overcrowding and understaffing, led to deplorable prison conditions across the country by the middle of the nineteenth century.

New York’s Sing Sing Prison was a noteworthy example of the brutality and corruption of that time.

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The Reformatory Movement A new wave of reform achieved momentum in 1870 after a meeting of the National Prison Association (which would later become the American Correctional Association).

At this meeting held in Cincinnati, members issued a Declaration of Principles .

Th is d o cu m e n t e xp re s s e d t h e id e a t h a t p ris o n s s h o u ld b e o p e ra t e d a cco rd in g t o a p h ilo s o p h y t h a t p ris o n e rs s h o u ld b e re fo rm e d , a n d t h a t re fo rm s h o u ld b e re wa rd e d wit h re le a s e fro m co n fin e m e n t .

Th is u s h e re d in wh a t h a s b e e n ca lle d t h e Re fo rm a t o ry Mo ve m e n t . 13

The Elmira Reformatory One of the earliest prisons to adopt this philosophy was the Elmira Reformatory , wh ich wa s o p e n e d in 1876 u n d e r t h e le a d e rs h ip o f Zebulon Brockway .

Bro ckwa y ra n t h e re fo rm a t o ry in a cco rd a n ce wit h t h e id e a t h a t e d u ca t io n wa s t h e ke y t o in m a t e re fo rm .

Cle a r ru le s we re a rt icu la t e d , a n d in m a t e s t h a t fo llo we d t h o s e ru le s we re cla s s ifie d a t h igh e r le ve ls o f p rivile ge .

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The Mark System Under this “mark” system, prisoners earned marks (credits) toward release.

The number of marks that an inmate was required to earn in order to be released was established according to the seriousness of the offense.

This was a movement away from the doctrine of proportionality, and toward indeterminate sentences and community corrections.

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The Rehabilitation Model The next major wave of corrections reform was known as the rehabilitation model, which achieved momentum during the 1930s.

This era was marked by public favor with psychology and other social and behavioral sciences.

Ideas of punishment gave way to ideas of treatment, and optimistic reformers began attempts to rectify social and intellectual deficiencies that were the proximate causes of criminal activity.

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The Medical Model This was essentially a medical model in which criminality was a sort of disease that could be cured.

This model held sway until the 1970s when rising crime rates and a changing prison population undermined public confidence.

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The Crime Control Model After the belief that “nothing works” became popular, the crime control model became the dominate paradigm of corrections in the United States.

The model attacked the rehabilitative model as being “soft on crime.”

“Get tough” policies became the norm throughout the 1980s and 1990s, and lengthy prison sentences became common.

The aftermath of this has been a dramatic increase in prison populations and a corresponding increase in corrections expenditures.

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Reform Still Needed Those expenditures have reached the point that many states can no longer sustain their departments of correction.

The pendulum seems to be swinging back toward a rehabilitative model, with an emphasis on community corrections.

While the community model has existed parallel to the crime control model for many years, it seems to be growing in prominence.

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Prison Classifications Prisons in the United States today are usually distinguished by custody levels.

Super -maximum -security prisons (Su p e r Ma x) a re u s e d t o h o u s e t h e m o s t vio le n t a n d m o s t e s ca p e -p ro n e in m a t e s .

Th e s e in s t it u t io n s a re ch a ra ct e rize d b y a lm o s t n o in m a t e m o b ilit y wit h in t h e fa cilit y, a n d fo rt re s s -like s e cu rit y m e a s u re s .

Th is t yp e o f fa cilit y is ve ry e xp e n s ive t o b u ild a n d o p e ra t e .

Th e firs t s u ch p ris o n wa s t h e n o t o rio u s fe d e ra l p ris o n Alcatraz , b u ilt b y t h e Fe d e ra l Bu re a u o f Pris o n s in 1934.

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Maximum-security Prisons Maximum -security prisons are fortresses that house the most dangerous prisoners.

Only 20% of the prisons in the United States are labeled as maximum security, but, because of their size, they hold about 33% of the inmates in custody.

Because super -max prisons are relatively rare, maximum -security facilities hold the vast majority of America’s dangerous convicts.

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Maximum Security Characteristics These facilities are characterized by very low levels of inmate mobility, and extensive physical security measures.

Tall walls and fences are common features, usually topped with razor wire.

Watchtowers staffed by officers armed with rifles are common as well.

Security lighting and video cameras are almost universal features.

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Death Row States that use the death penalty usually place death row inside a maximum - security facility.

These areas are usually segregated from the general population, and extra security measures are put in place.

Death row is often regarded as a prison within a prison, often having different staff and procedures than the rest of the facility.

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Medium-security Prisons Medium -security prisons use a series of fences or walls to hold prisoners that, while still considered dangerous, are less of a threat than maximum - security prisoners.

The physical security measures placed in these facilities are often as tight as for maximum -security institutions.

The major difference is that medium -security facilities offer more inmate mobility, which translates into more treatment and work options.

These institutions are most likely to engage inmates in industrial work, such as the printing of license plates for the State.

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Minimum-security Prisons Minimum -security prisons are institutions that usually do not have walls and armed security.

Prisoners housed in minimum -security prisons are considered to be nonviolent and represent a very small escape risk.

Most of these institutions have far more programs for inmates, both inside the prison and outside in the community.

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Minimum Security Differences Part of the difference in inmate rights and privileges stems from the fact that most inmates in minimum -security facilities are “short timers” --they are scheduled for release soon.

The idea is to make the often problematic transition from prison to the community go more smoothly.

Inmates in these facilities may be assigned there initially, or they may have worked their way down from higher security levels through good behavior and an approaching release date.

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Women’s Prisons Women are most often housed in women’s prisons.

These are distinguished along the same lines as male institutions.

These institutions tend to be smaller than their male counterparts are, and there are far fewer of them.

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Gender Differences Women do not tend to be as violent as men are, and this is reflected in what they are incarcerated for.

The majority of female inmates are incarcerated for drug offenses.

Inmate turnover tends to be higher in women’s prisons because they tend to receive shorter sentences.

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Gender Segregation A few states operate coeducational prisons where both male and female inmates live together.

The reason for this is that administrators believe that a more normal social environment will better facilitate the eventual reintegration of both sexes into society.

The fear of predation by adult male offenders keeps most facilities segregated by gender.

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Private Prisons In the recent past, the dramatic growth in prison populations led to the emergence of private prisons.

Priva t e o rga n iza t io n s cla im e d t h a t t h e y co u ld o wn a n d o p e ra t e p ris o n s m o re e fficie n t ly t h a n go ve rn m e n t a ge n cie s ca n .

Th e Corrections Corporation of America is t h e la rge s t co m m e rcia l o p e ra t o r o f ja ils a n d p ris o n s in t h e Un it e d St a t e s .

Th e p o p u la rit y o f t h e id e a h a s wa n e d in re ce n t ye a rs , m o s t ly d u e t o le ga l lia b ilit y is s u e s a n d a fa ilu re t o re a lize t h e h u ge s a vin gs p ro m is e d b y t h e p riva t e co rp o ra t io n s .

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Special Populations A major problem affecting the operation of prisons in the United States is what is known as special populations.

Among these are elderly inmates.

An a gin g p o p u la t io n in ge n e ra l co u p le d wit h m a n d a t o ry s e n t e n cin g la ws h a s ca u s e d a n e xp lo s io n in t h e n u m b e r.

Th is is a n e xp e n s ive p ro p o s it io n fo r t h e Am e rica n co rre ct io n a l s ys t e m .

A s u b s t a n t ia l re a s o n fo r t h is in cre a s e d co s t is t h e in cre a s e d m e d ica l a t t e n t io n p e o p le t e n d t o re q u ire a s t h e y gro w o ld e r.

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Prison Overcrowding While the trend in prison population data is down, prison overpopulation is still a major problem in many states.

Many of those states are under court order to fix overcrowding problems, which are unconstitutional.

Governments have responded with many programs aimed at reducing prison overcrowding.

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Prison Programs Prisons are like small cities in many respects.

All of the requirements of life must be met, and rehabilitative objectives must be facilitated.

Medical services must be rendered, and religious needs must be met. Inmates have a right to some types of recreation.

Many prisons have labor and industry programs.

Rehabilitative programs include job training, addiction treatment, therapy for psychological and emotional problems, and many other programs are common.

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Introduction to Criminal Justice

Section 6.3: Prisoner’s Rights

Prepared by Adam J. McKee

1

Prisoner’s Rights in America American courts were reluctant to get involved in prison affairs during most of the 19th century.

Until the 1960s, the courts used a hands -off approach to dealing with corrections.

Since, it the court has recognized that “Prison walls do not form a barrier separating prison inmates from the protections of the Constitution” ( Turner v. Safley, 1987).

Pris o n e rs d o give u p ce rt a in righ t s b e ca u s e o f co n vict io n , b u t n o t a ll o f t h e m .

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Hudson v. Palmer(1984) “While prisoners enjoy many protections of the Constitution that are not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration, imprisonment carries with it the circumscription or loss of many rights as being necessary to accommodate the institutional needs and objectives of prison facilities, particularly internal security and safety.”

3

Political Rights The phrase political right is used to refer to rights related to the participation in the democracy of the United States: Chief among these is the right to vote.

The Constitution of the United States allows states to revoke a person’s right to vote upon conviction, but does not require it.

Several states revoke the right to vote while a person is incarcerated but restore the right once the person is released from prison.

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Status and Voting Rights A few states revoke the right to vote for life when a person is convicted of a felony.

The right to vote cannot be denied to those who are pretrial detainees confined to a jail, or someone who is a misdemeanant.

These individuals are usually given the right to vote by absentee ballot.

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Free Speech and Assembly The First Amendment right of prisoners to free speech is curtailed, but not eliminated.

Prison administrators must justify restrictions on free speech rights.

The rights to assemble is generally curtailed.

As a rule, prison administrators can ban any inmate activity that is a risk to the security and safety of the institution.

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Freedom of Religion Generally, prisoners have the right to free exercise of their religious beliefs.

These, however, can be curtailed when the health and safety of the institution are at risk.

To be protected, the particular religious beliefs must be “sincerely held.”

Prison officials may not, however, legally show a preference for one religion over another.

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Policy v. Religion In practice, some religious customs have conflicted with prison policies, such as requiring work on religious holidays that forbid labor.

These types of policies have been upheld by the courts.

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Access to the Courts The First Amendment guarantees the right “to petition the Government for a redress of grievances.”

For prisoners, this has translated to certain types of access to the courts.

The two major categories of petitions that can be filed by prisoners are criminal appeals (often by habeas corpus petitions) and civil rights lawsuits.

The right to petition the courts in these ways is referred to as the right of access to the courts.

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Freedom from Retaliation Inmates who file complaints, grievances, and lawsuits against prison staff have a constitutional right to be free from retaliation.

The Supreme Court based this right on the logic that retaliation by prison staff hampers the exercise of protected constitutional rights.

In practice, this right has been difficult for inmates to assert.

Prison staff can often find legitimate reasons for taking action that was intended as retaliation.

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Disciplinary Proceedings In the landmark case of Wolff v. McDonnell (1974), t h e Su p re m e Co u rt d e fin e d t h e co n t o u rs o f p ris o n e r righ t s d u rin g p ris o n d is cip lin a ry p ro ce e d in gs .

Wh ile n o t a ll d u e p ro ce s s righ t s d u e a crim in a l d e fe n d a n t we re d u e t h e p ris o n e r in a d is cip lin a ry p ro ce e d in g, s o m e righ t s we re p re s e rve d .

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Wolff: Advanced Notice Advance written notice of charges must be given to the disciplinary action inmate, no less than 24 hours before his appearance before the Adjustment Committee.

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Wolff: Record of Evidence There must be a written statement by the factfinders as to the evidence relied on and reasons for the disciplinary action.

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Wolff: Preparing a Defense The inmate should be allowed to call witnesses and present documentary evidence in his defense if permitting him to do so will not jeopardize institutional safety or correctional goals.

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Wolff: Confrontation The inmate has no constitutional right to confrontation and cross -examination in prison disciplinary proceedings, such procedures in the current environment, where prison disruption remains a serious concern, being discretionary with the prison officials.

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Wolff: Appointed Counsel Inmates have no right to retained or appointed counsel.

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Right to Privacy The right to privacy is closely related to the law of search and seizure.

In the landmark case of Hudson v. Palmer (1984), t h e Co u rt d e t e rm in e d t h a t in m a t e s d o n o t h a ve a re a s o n a b le e xp e ct a t io n o f p riva cy in t h e ir livin g q u a rt e rs .

In t h e Co u rt ’s ra t io n a le , t h e n e e d s o f in s t it u t io n a l s e cu rit y o u t we igh t h e in m a t e ’s righ t t o p riva cy.

Th e p o licy im p lica t io n o f t h is d e cis io n is t h a t s h a ke d o wn s m a y b e co n d u ct e d a t t h e d is cre t io n o f p ris o n s t a ff, a n d n o e vid e n ce o f wro n gd o in g is n e ce s s a ry t o ju s t ify t h e s e a rch .

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Cruel and Unusual Punishment The right to be free from cruel and unusual punishment as guaranteed by the Eighth Amendment to the United States Constitution.

The amendment only applies to criminal punishments; it has no bearing on civil cases.

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“Wanton and Unnecessary” Pain Conditions in prison must not involve the “wanton and unnecessary” infliction of pain.

Prison conditions, taken alone or in combination, may deprive inmates of the “minimal civilized measure of life’s necessities.”

If this happens, the Court will judge the conditions of confinement unconstitutional.

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Harsh Limits Conditions that cannot be said to be cruel and unusual under “contemporary standards” are not unconstitutional.

According to the Court, prison conditions that are “restrictive and even harsh,” are part of the penalty that criminal offenders pay for their “offenses against society” (Rhodes v. Chapman, 1981).

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Estelle v. Gamble(1976) In Estelle v. Gamble (1976), the court ruled that

“Deliberate indifference by prison personnel to a prisoner’s serious illness or injury constitutes cruel and unusual punishment contravening the Eighth Amendment .”

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Introduction to Criminal Justice

Section 6.4: Parole, Probation, and Community Sanctions

Prepared by Adam J. McKee

1

Community Corrections Parole and probation, taken together with other forms of non -prison sanctions, are called community corrections .

Th is is b e ca u s e t h e s e o ffe n d e rs re s id e in t h e co m m u n it y ra t h e r t h a n in ja il o r p ris o n .

Th e id e a o f p ro b a t io n a n d p a ro le is t o re in t ro d u ce t h e o ffe n d e r in t o s o cie t y a s a p ro d u ct ive m e m b e r.

Th e o t h e r m a jo r go a l o f p ro b a t io n a n d p a ro le is t o ke e p t h e co m m u n it y s a fe fro m p re d a t io n .

2

Cost vs. Benefit Community -based sanctions are becoming increasingly popular as corrections budgets continue to rise, and overcrowding remains an issue.

It is much cheaper to house an offender in the community than it is to keep them in prison.

It is estimated that community supervision costs less than $1,000 per person supervised, while incarceration costs as much as $30,000 per prisoner.

The push has been to increase prison time for predatory offenders, and to make room for them by finding alternatives to incarceration for nonviolent offenders.

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Parole The practice of releasing prisoners on parole before the end of their sentences has become an integral part of the correctional system in the United States.

Parole is a variation on imprisonment of convicted criminals.

Its purpose is to help individuals reintegrate into society as constructive individuals as soon as they are able, without being confined for the full term of the sentence imposed by the courts.

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Parole Conditions It also serves to lessen the costs to society of keeping an individual in prison.

The essence of parole is release from prison, before the completion of sentence, on the condition that parolees abide by certain rules during the balance of the sentence.

5

Variants Under some systems, parole is granted automatically after the service of a certain portion of a prison term.

Under others, parole is granted by the discretionary action of a board, which evaluates an array of information about a prisoner and makes a prediction whether he is ready to reintegrate into society.

6

Common Conditions To accomplish the purpose of parole, those who are allowed to leave prison early are subjected to specified conditions for the duration of their parole.

These conditions of parole restrict their activities substantially beyond the ordinary restrictions imposed by law on an individual citizen.

Typically, parolees are forbidden to use alcohol and other intoxicants or to have associations or correspondence with certain categories of undesirable persons (such as felons).

7

Permission Required Typically, also they must seek permission from their parole officers before engaging in specified activities, such as changing employment or housing arrangements, marrying, acquiring or operating a motor vehicle, traveling outside the community, and incurring substantial indebtedness.

Additionally, parolees must regularly report to their parole officer.

8

Parole Officers The parole officers are part of the administrative system designed to assist parolees and to offer them guidance.

Through the requirement of reporting to the parole officer and seeking guidance and permission before doing many things, the officer is provided with information about the parolee and an opportunity to advise him.

The combination puts the parole officer into the position in which he can try to guide the parolee into constructive development.

9

Revocation The enforcement advantage that supports the parole conditions derives from the authority to return the parolee to prison to serve out the balance of his sentence if he fails to abide by the rules.

In practice, not every violation of parole conditions automatically leads to revocation.

10

Not Always Typically, a parolee will be counseled to abide by the conditions of parole, and the parole officer ordinarily does not take steps to have parole revoked unless he thinks that the violations are serious and continuing so as to indicate that the parolee is not adjusting properly and cannot be counted on to avoid antisocial activity.

11

How Common? The broad discretion accorded the parole officer is also inherent in some of the quite vague conditions, such as the typical requirement that the parolee avoid “undesirable” associations or correspondence.

Yet revocation of parole is not an unusual phenomenon, affecting only a few parolees.

According to the Supreme Court in Morrissey v. Brewer, 35% – 45% o f a ll p a ro le e s a re s u b je ct e d t o re vo ca t io n a n d re t u rn t o p ris o n .

12

New Crimes Sometimes revocation occurs when the parolee is accused of another crime.

It is often preferred to a new prosecution because of the procedural ease of recommitting the individual on the basis of a lesser showing by the State.

13

Probation Probation is very similar to parole, and many of the legal issues are identical.

Many jurisdictions combine the job of probation and parole officer, and these officers are often employed in departments of community corrections.

The most basic difference between probation and parole is that probationers are sentenced to community sanctions rather than a prison sentence.

14

Split Sentences Parolees have already served at least some prison time.

Some jurisdictions can sentence an offender to a split sentence.

A split sentence requires the offender to stay in prison for a short time before being released on probation.

15

The Roots of Probation Most criminal justice historians trace the roots of modern probation to John Augustus, who began his professional life as a businessperson and boot maker.

Augustus became known as the father of probation largely due to his strong belief in abstinence from alcohol.

He was an active member in the Washington Total Abstinence Society, an organization that believed criminals motivated by alcohol could be rehabilitated by human kindness and moral teachings rather than incarceration.

16

John Augustus His work began in earnest when, in 1841, he showed up in a Boston police court to bail out a “common drunkard.”

Augustus accompanied the man on his court date three weeks later, and those present were stunned at the change in the man. He was sober and well kempt.

For 18 years, he served in the capacity of a probation officer on a purely voluntary basis.

Shortly after his death in 1859, a probation statute was passed so that his work could continue under the auspices of the state.

17

Models Over Time With the rise of psychology’s influence in the 1920s, probation officers moved from practical help in the field to a more therapeutic model.

The pendulum swung back to a more practical bent in the 1960s when probation officers began to act more as service brokers.

They assisted probationers with such things as obtaining employment, obtaining housing, managing finances, and getting an education.

18

Levels of Supervision Many jurisdictions have several levels of supervision.

The most common distinction between levels of probationers is active supervision and inactive supervision.

Probationers on active supervision are required to report in with a probation officer at regular intervals.

Probationers can be placed on inactive supervision because they committed only minor offenses.

19

“Checking In” The preferred method of checking in depends on the jurisdiction.

Many require in person visits, but some jurisdictions allow phone calls and checking in via mail.

Inactive probationers are not required to check in at all or very infrequently.

Checking in with an officer is a condition of probation.

Other conditions often include participation in treatment programs, paying fines, and not using drugs or alcohol.

20

Violators and Absconders If these conditions are not followed, the the probationer is said to be a violator .

Vio la t o rs a re s u b je ct t o p ro b a t io n re vo ca t io n .

Re vo ca t io n s o ft e n re s u lt in a p ris o n s e n t e n ce , b u t s o m e vio la t o rs a re give n s e co n d ch a n ce s , a n d s o m e a re s e n t e n ce d t o s p e cia l p ro gra m s fo r technical violations .

Ma n y ju ris d ict io n s cla s s ify absconders d iffe re n t ly t h a n o t h e r vio la t o rs .

An absconder is a p ro b a t io n e r (o r p a ro le e ) t h a t s t o p s re p o rt in g a n d “d is a p p e a rs .”

21

“Mass Community Supervision” Following the trend of mass incarceration in the United States over the past several decades has been a similar trend in what has been called “mass community supervision.”

In 1980, about 1.34 million offenders were on probation or parole in the United States. That figure exploded to nearly 5 million by 2012.

22

Shocking Statistics The Bureau of Justice Statistics ( Maruschak & Parks, 2014) provides a look at these numbers from a different vantage point: about 1 in 50 adults in the United States were under community supervision at yearend 2012.

The community supervision population includes adults on probation, parole, or any other post -prison supervision.

23

Officer Roles Many jurisdictions combine the role of probation officer and parole officer into a single job description.

In Gagnon v. Scarpelli (1973), the court had this to say of the duties of the such officers:

“While the parole or probation officer recognizes his double duty to the welfare of his clients and to the safety of the general community, by and large concern for the client dominates his professional attitude. The parole agent ordinarily defines his role as representing his client’s best interests as long as these do not constitute a threat to public safety.”

24

A Familiar Dichotomy This statement suggests a dichotomy in the responsibility of parole (and probation) officers.

These must look out for the best interest of the client as well as looking out for the best interest of the public.

This fact frequently enters into politics.

Liberals tend to focus on the treatment and rehabilitation of the offender, and conservatives focus more on the safety of the public and just deserts for the offender.

25

Many Hats From the perspective of the parole officers, they must perform law enforcement duties that are designed to protect the public safety.

These functions very much resemble the tasks of police officers.

They are also officers of the court, and are responsible for enforcing court orders.

These orders often include such things as drug testing programs, drug treatment programs, alcohol treatment programs, and anger management programs.

26

Powerful Advice Officers are often required to appear in court and give testimony regarding the activities of their clients.

They frequently perform searches and seize evidence of criminal activity or technical violations.

The courts often ask officers to make recommendations when violations do occur.

Officers may recommend that violators be sent to prison, or continue on probation or parole with modified conditions.

27

Intermediate Sanctions Traditionally, a person convicted of an offense was sentenced to probation, or sentenced to prison: There was no middle ground.

The purpose of intermediate sanctions is t o s e e k t h a t m id d le gro u n d b y p ro vid in g a p u n is h m e n t t h a t is m o re s e ve re t h a n p ro b a t io n a lo n e , ye t le s s s e ve re t h a n a p e rio d o f in ca rce ra t io n .

28

Intensive Supervision Probation (ISP) Offenders given to this sort of intermediate sanction are assigned to an officer with a reduced caseload.

Caseloads are reduced in order to provide the officer with more time to supervise each individual probationer.

Frequent surveillance and frequent drug testing characterize most ISP programs.

Offenders are usually chosen for these programs because they have been judged to be at a high risk for reoffending.

29

Work Release Programs Work release programs are designed to maintain environmental control over offenders while allowing them to remain in the workforce.

Most often, offenders sentenced to a work -release program reside in a work release center, which can be operated by a county jail, or be part of the state prison system.

Either way, work -release center residents are allowed to leave confinement for work -related purposes. Otherwise, they are locked in a secure facility.

30

Boot Camps Correctional boot camps are facilities run along similar lines to military boot camps.

Military -style discipline and structure along with rigorous physical training are the hallmarks of these programs.

Usually, relatively young and nonviolent offenders are sentenced to terms ranging from three to six months in boot camps.

Research has found that convicts view boot camps as more punitive than prison, and would prefer prison sentence to being sent to boot camp.

31

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6.5: Probation, Parole, and the Law

Criminal Justice | Section 6.5: Probation, Parole, and the Law

Section 6.5: Probation, Parole, and the Law

For most of the history of probation and parole in the United States, o�enders 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 a�orded

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

a�orded 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

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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 �rst 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 identi�ed, is not purely factual but also predictive and discretionary.

Parole revocation is very serious for the o�ender. 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 �nding of guilt in criminal court.

D U E P R O C E S S

The liberty of a parolee, although indeterminate, includes many of the core values

of unquali�ed liberty and its termination in�icts 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

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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 o�cer speci�cally �nds 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 o�cers or

lawyers; and (f) a written statement by the fact�nders as to the evidence relied on

and reasons for revoking parole.

Speci�cally, 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

�nal 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 di�erence 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

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 �nal revocation

hearing, under the conditions speci�ed 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 a�ected.”

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The Fourth Amendment

As with due process rights, a person’s Fourth Amendment rights are not nulli�ed

just because they are convicted of a crime. What makes probationers and parolees

di�erent 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 o�cer

conduct vary from state to state. In some states, an o�cer must have reasonable

suspicion before conducting a probation search. In many states, an o�cer can

conduct a suspicionless search at any time, without reason to believe that the

o�ender committed a new crime. Who may search also varies from jurisdiction to

jurisdiction. Some jurisdictions only allow probation and parole o�cers to search

without probable cause, and some extend this authority to police o�cers as well.

Conditions of Probation and Parole

As previously discussed, o�enders are only granted probation or parole if they

agree to abide by certain, speci�ed conditions. These can be general conditions that

apply to all o�enders released in a particular jurisdiction, or they can be tailored to

the special needs of a particular o�ender. 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 o�cers to make suggestions, but the �nal

say is up to the judge. This wide discretion is not, however, without bounds.

C L A R I T Y

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 �gure out what exactly a law prohibits. The courts have

viewed conditions of probation in the same light. In other words, if the o�ender

cannot �gure out what exactly is prohibited because the speci�cation of the

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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 speci�ed 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.

R E A S O N A B L E N E S S

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 o�ender has the ability to abide by them. If the

o�ender 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 o�ender 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 o�ender, 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 a

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.

C O N S T I T U T I O N A L I T Y

Several courts have nulli�ed 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

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words, the appellate court will balance the interest the state has in curtailing the

right with the cost to the o�ender. Some rights are a�orded 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 an o�ender to attend Sunday

school on a regular basis. The court reasoned that forcing someone to participate in

a church activity violated the o�ender’s freedom of religion. As previously

discussed, Fourth Amendment rights are not nearly so well protected.

Key Terms

Conditions of Release, Fourth Waiver, Fundamental Rights, Mempa v.

Rhay (1967), Morrissey v. Brewer (1972), Parole Revocation

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Last Updated:  06/04/2021

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This study guide is designed to help students learn the terms and definitions used in Criminal Justice: An Overview of the System, an Open Educational Resource (OER) developed by Adam J. McKee. As an OER, this document may be copied and distributed freely for educational purposes.

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Criminal Justice: An Overview of the System

Module 6: Prisons, Jails, and Community Corrections

Section 6.5: Probation, Parole, and the Law

Conditions of Release: Rules that person released on bail must follow in order to stay out of jail, such as not leaving the jurisdiction of the court. Fourth Waiver: A common condition of probation and parole whereby probationers and parolees waive their right to be free from unreasonable government searches and seizures. Fundamental Rights: A category of rights that the SCOTUS has set aside as deserving special protection from infringement by the government. Mempa v. Rhay (1967): A landmark SCOTUS decision in which the Court decided that a probationer has the right to counsel in a hearing where a suspended prison sentence may be imposed. Morrissey v. Brewer (1972): A landmark SCOTUS decision in which the court determined that a revocation hearing must be held to determine the factual basis of a probation revocation. Parole Revocation: The process of sending an offender back to prison for violating the conditions of parole.