Constitutional Law of Corrections: Probation, Parole, and Community Corrections

1. Part II Constitutional Law of Corrections

2. Chapter 17 – Probation and Parole, Community Corrections, Fines • Introduction: This chapter examines the constitutional decisions that affect the work of probation and parole officers and some of the other legal implications of their work • Fines and other types of community corrections also are examined

3. Chapter Outline • How Probation and Parole Work • Jones v. Cunningham • Morrissey v. Brewer • Gagnon v. Scarpelli; Mempa v. Rhay • Griffin v. Wisconsin; United States v. Knights; Pennsylvania Board of Probation and Parole v. Scott • Martinez v. California • Greenholtz v. Inmates; Connecticut Board of Pardons v. Dumschat; Board of Pardons v. Allen; Ohio Adult Parole Authority v. Woodard

4. Chapter Outline: cont’d • United States v. Addonizio; California Department of Corrections v. Morales; Garner v. Jones; Lynce v. Mathis • Jago v. Van Curen • Moody v. Daggett • Smith v. Doe; Connecticut Department of Public Safety v. Doe • Community Corrections • Use of Fines • Williams v. Illinois; Tate v. Short • Bearden v. Georgia

5. How Probation and Parole Work • Similarities – probation and parole • Both part of the sentencing phase • Both occur in the community • Both have offenders under supervision by trained officers • Both have offenders legally placed under conditions or restrictions on their release status

6. How Probation and Parole Work: cont’d • Differences – probation and parole • Probation - a judicial function; parole - an administrative function • Probation – occurs instead of confinement; parole – follows a period of confinement • Revocation status – for probation done by court; for parole – done by paroling authority

7. How Probation and Parole Work: cont’d • Probation – imposed by a court • May impose a sentence of jail time or prison, then suspend that sentence, with person being placed on probation – called suspended execution of sentence

8. How Probation and Parole Work: cont’d • May also suspend imposition of sentence and place person on probation • There is no set term of imprisonment – referred to as suspended imposition • If person violates probation, court may impose any sentence that might originally have been imposed

9. How Probation and Parole Work: cont’d • Both types of probation have specified durations • Probationer typically has a supervising officer • Required to regularly report to this person • Degree of supervision can vary – from minimal to intense

10. How Probation and Parole Work: cont’d • Parole – release to the community after serving time in prison • Paroling authority determines release • Ordinarily, person has hearing before authority • The hearing occurs at the prison before either members of the parole authority or its hearing examiners (or parole officers) • When done by hearing examiners, report is prepared and forwarded to the paroling authority for decision

11. How Probation and Parole Work: cont’d • Parole eligibility is determined • By sentencing statutes where the court imposes a sentence within a range specified by the legislature, such as one to five years, with the one year being the eligibility date (the earliest the defendant can be released on parole)

12. How Probation and Parole Work: cont’d • When courts only impose the full term date of the sentence (such as five years) • Parole eligibility is then established by some formula (such as one-third of sentence) set by the parole law • May be indeterminate, where court imposes a single term (such as five years) and the inmate is immediately eligible for parole • Release is at the discretion of the parole authority

13. How Probation and Parole Work: cont’d • For a life sentence, parole eligibility may be set by state statute or may be specified as part of the sentence imposed by the court (for example, 15 years to life) • Legislature may make some offenses nonparolable, or may eliminate parole completely

14. How Probation and Parole Work: cont’d • 16 states had abolished discretionary parole for all inmates by the end of 2000 • Four other states had abolished it for certain violent offenses or other crimes against a person • The federal government also has abolished parole • Abolishment does not mean the end of parole authorities, as parole continues for those sentenced prior to the abolition of parole

15. How Probation and Parole Work: cont’d • Good conduct allowances – subtracted from the full date of the sentence and, in some instances, from the parole eligibility date • If the inmate is not released on parole, release occurs when that good time date is reached

16. How Probation and Parole Work: cont’d • Supervision is the essence of either probation or parole release • To enforce supervision, there is the power of revocation of release status • Occurs when supervising officer makes a negative report, which may recommend revocation

17. How Probation and Parole Work: cont’d • For probation, court reviews the report and decides whether probationer’s actions are serious enough to terminate probation • If yes, the court may impose original sentence or any part of it that was imposed and suspended

18. How Probation and Parole Work: cont’d • Or if the court suspended imposition of any prison term at the original sentencing, and placed the offender on probation, then, upon revocation, the court may impose any length of sentence to prison that could have originally been imposed • If probation is revoked, probationer goes to prison to serve the court specified term

19. How Probation and Parole Work: cont’d • For parole, the negative report goes to the paroling authority, which has the revocation authority • If a decision is made to revoke, person is returned to prison to serve out the balance of the sentence, computed in accordance with the laws of the state

20. Jones v. Cunningham (1963) • Virginia parolee raised the question of whether he could go into federal court and challenge his sentence under the federal habeas corpus statute • The inmate was paroled before his case was decided in the court of appeals • Inmate tried to substitute the parole members as respondents, instead of the penitentiary superintendent

21. Jones v. Cunningham: cont’d • The lower court refused, saying the inmate was no longer in custody, but rather was “at large” • Supreme Court agreed to decide whether a parolee is “in custody” within the meaning of the federal habeas corpus statute and the Constitution

22. Jones v. Cunningham: cont’d • Court held this could occur • Parole conditions significantly restrain the inmate’s liberty to do those things which free men are entitled to do • The conditions significantly confine & restrain his freedoms • This is enough to keep him in custody of the Parole Board within the meaning of the habeas corpus statute

23. Morrissey v. Brewer (1972) • Iowa inmate’s parole was revoked by the parole board, following its review of the parole officer’s report • The board of parole ordered Morrissey to be returned to prison • Inmate challenged the revocation of his parole, using habeas corpus, on the grounds that he was given no hearing

24. Morrissey v. Brewer: cont’d • Supreme Court looked at whether inmate is entitled to due process – that is, some type of hearing – before being returned to prison by revocation of his parole status

25. Morrissey v. Brewer: cont’d • Court held there was a liberty interest, within the meaning of the Fourteenth Amendment • Court held that the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty • Its loss inflicts a “grievous loss” on the parolee and often on others

26. Morrissey v. Brewer: cont’d • Court set forth the minimal requirements needed for parole revocation – first is a preliminary hearing • To determine whether probable cause or reasonable ground exists to believe person’s acts would constitute a violation of parole conditions • Hearing done by impartial party • Advance notice to the parolee of the hearing and the alleged violations

27. Morrissey v. Brewer: cont’d • Parolee must be allowed to appear and speak in own behalf • Opportunity to bring letters, documents, or individuals who can provide the hearing officer with relevant information • At the parolee’s request, the opportunity for questioning of a person who has given adverse information on which the revocation may be based

28. Morrissey v. Brewer: cont’d • Hearing officer must make a summary or digest of hearing • Hearing officer should determine whether there is probable cause to hold parolee for a final decision • Hearing officer should state the reasons for his determination and the relied-upon evidence

29. Morrissey v. Brewer: cont’d • After the preliminary hearing, and within a reasonable time, there must be a final hearing • The final hearing determines whether the facts warrant revocation • Parolee must have an opportunity to be heard and to show, if he can, that he did not violate the conditions, or • If he did, that mitigating circumstances suggest that the violation doesn’t warrant revocation

30. Morrissey v. Brewer: cont’d • Minimum requirements at the final hearing • Written notice of the claimed parole violation(s) • Disclosure to the parolee of evidence against him • Opportunity to be heard in person and to present witnesses and documentary evidence

31. Morrissey v. Brewer: cont’d • The right to confront and cross-examine adverse witnesses (absent a hearing officer finding of good cause not to) • A neutral and detached hearing body such as a paroling authority, and • A written statement by the factfinders as to the evidence relied on and reasons for revoking parole

32. Gagnon v. Scarpelli (1973); Mempa v. Rhay (1967) • Scarpelli pled guilty to armed robbery in Wisconsin • Received 15 year prison term; this was suspended, and he was placed on probation for seven years • He was allowed to go to Illinois to reside • Later arrested in that state for house burglary • His probation was revoked by Wisconsin without any hearing • Sent to a Wisconsin prison to serve the 15-year term that had originally been imposed

33. Gagnon v. Scarpelli; Mempa v. Rhay: cont’d • He challenged the revocation of his probation by petitioning for a writ of habeas corpus • He was paroled prior to the case being decided, but the court held his petition was not moot because he was still under the restraints of his parole

34. Gagnon v. Scarpelli; Mempa v. Rhay: cont’d • Supreme Court in Gagnon v. Scarpelli addressed the question of due process at parole revocation proceedings - the Court relied on two earlier decisions:

35. Gagnon v. Scarpelli; Mempa v. Rhay: cont’d • The first was Mempa v. Rhay (1967) • Mempa had been placed on probation for two years, on condition he spend 30 days in county jail; imposition of further sentence was deferred • Mempa had appointed counsel assisting him • Four months later, Mempa was back into court on charges of burglary • He was not represented by counsel, nor was he asked if he wanted counsel

36. Gagnon v. Scarpelli; Mempa v. Rhay: cont’d • His probation was revoked; he received a 10-year sentence • The court made a recommendation to the parole board that Mempa be paroled after one year • Six years later, Mempa filed for a writ of habeas corpus, claiming a due process violation in the denial of counsel at his sentencing and parole revocation proceeding

37. Gagnon v. Scarpelli; Mempa v. Rhay: cont’d • Supreme Court in Mempa held that the “deferred sentencing” procedure in the state of Washington was so important as to require the presence of counsel

38. Gagnon v. Scarpelli; Mempa v. Rhay: cont’d • In Mempa, the Court said there is a constitutional right to counsel in felony cases “at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected” • At his sentencing, although deferred, Mempa was entitled to the appointment of counsel because his rights (his liberty interest) were so substantially affected

39. Gagnon v. Scarpelli; Mempa v. Rhay: cont’d • The second decision heavily relied on by the Court in Gagnon was Morrissey v. Brewer where the Court held that the loss of liberty is a serious deprivation requiring due process • Using these decisions, the Court in Gagnon held that a probationer, like a parolee is entitled to a preliminary and a final revocation hearing, under the conditions specified in Morrissey v. Brewer

40. Gagnon v. Scarpelli; Mempa v. Rhay: cont’d • The Court in Gagnon held that at the preliminary hearing for probation revocation, there must be • Advance notice of the alleged violations • An opportunity to appear and present evidence • A conditional right to confront adverse witnesses • An independent decision maker, and • A written report of the hearing

41. Gagnon v. Scarpelli; Mempa v. Rhay: cont’d • Minimum requirements at a final hearing are very similar • The one additional requirement, besides those for the preliminary hearing, is that the person be advised of what evidence there is against him

42. Gagnon v. Scarpelli; Mempa v. Rhay: cont’d • Gagnon Court then decided issue of the right to counsel (retained or, for indigents, appointed) at revocation hearings • The Court held there was a right to counsel in limited circumstances • When the charges are contested or • There are substantial mitigating reasons for his violative conduct and those reasons are complex or difficult to present

43. Gagnon v. Scarpelli; Mempa v. Rhay: cont’d • Court did not see right to counsel when person is convicted of another crime, or admitted to crime • Probationer or parolee may want to provide mitigating reasons why revocation is not appropriate; these reasons, said the Court, ordinarily are not so complex as to require counsel • In practice, as a matter of reasonable precaution, courts at most probation revocation proceedings, and parole boards at most parole revocation proceedings typically allow counsel to appear

44. Griffin v. Wisconsin (1987); United States v. Knights (2001); Pennsylvania Board of Probation and Parole v. Scott (1998) • Probationers’ and parolees’ constitutional rights are limited • In Griffin v. Wisconsin, probation officers searched Griffin’s apartment without a warrant • Search followed police advising that Griffin may have guns at that location • A gun was found • Griffin was convicted of possession of a firearm by a convicted felon

45. Griffin v. Wisconsin; United States v. Knights; Pennsylvania Board of Probation and Parole v. Scott: cont’d • Griffin sued and the Supreme Court held that the warrantless search of the probationer’s home did not violate the probationer’s constitutional rights • Probationer’s situation as a person under close supervision by his probation officer overrides the offender’s personal protections

46. Griffin v. Wisconsin; United States v. Knights; Pennsylvania Board of Probation and Parole v. Scott: cont’d • Probation agency “must be able to act based upon a lesser degree of certainty than the Fourth Amendment would otherwise require in order to intervene (by conducting a search) before a probationer does damage to himself or society” • In Griffin, the right to search was granted to probation officers by state regulation – could do a search when there were “reasonable grounds” to believe something illegal or impermissible was in the home

47. Griffin v. Wisconsin; United States v. Knights; Pennsylvania Board of Probation and Parole v. Scott: cont’d • In United States v. Knights, probationer Knights was suspected of being involved in criminal activity • As a condition of his probation, a California’s court order provided that • Knights’ person, property, vehicle, residence, and personal effects would be subject to search at anytime • With or without a search warrant, warrant of arrest or reasonable cause • By any probation officer or law enforcement officer

48. Griffin v. Wisconsin; United States v. Knights; Pennsylvania Board of Probation and Parole v. Scott: cont’d • Knights signed the order • Based on the previously mentioned suspicion, police searched Knights’ apartment, finding a detonation cord, ammunition, and liquid chemicals • Knights was indicted, and moved to suppress the evidence • Lower courts held that the search was impermissible, that the search condition in the probation order was limited to probation searches, and not for investigation purposes

49. Griffin v. Wisconsin; United States v. Knights; Pennsylvania Board of Probation and Parole v. Scott: cont’d • The Supreme Court reversed, holding for the government • Fourth Amendment didn’t limit searches pursuant to this probation condition to those with a probationary purpose • When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the person’s significantly diminished privacy interests is reasonable

50. Griffin v. Wisconsin; United States v. Knights; Pennsylvania Board of Probation and Parole v. Scott: cont’d • Griffin and Knights concerned probationers, but similar rules apply to persons released on parole and generally to the authority of supervising parole officers • Parolees also are clearly under the sanction of a sentence