Constitutional Rights of Inmates Chapter 12 Parole and Probation Andrew Fulkerson, JD, PhD Southeast Missouri State

2. Parole Procedure where convicted defendant is sentenced to period of imprisonment, Serves final part of sentence outside prison.

3. Parole Person remains under supervision Subject to certain rules Prisoner has served at least part of prison sentence Conditional release from confinement Person is subject to future confinement if rules not followed

4. Probation Probation is sentence served entirely in community Under supervision of probation officer Subject to specific terms and conditions Probationer may be incarcerated if he violates terms and requirements of probationary sentence

5. Purpose of Parole Help reintegrate inmates into society Reduce financial cost to society for continued confinement in prison

6. Methods of Granting Parole Some states parole is automatic after completion of predetermined part of sentence. Other states parole is discretionary action of parole board. Decision is based upon consideration of information about inmate. Parole board makes prediction on inmate’s future good behavior.

7. Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1 (1979)

8. Parole Parole release is not an entitlement that a prisoner can demand Court will require states to follow through on procedures in statutes and regulations Court will not get involved in which prisoners are granted parole.

9. Parole Board Liability US Supreme Court refused to find liability on the part of parole board officials For death of girl who was murdered by a parolee who had history as sex offender Parole board had no knowledge that victim had any more risk of harm from offender than public at large.

10. Parole Eligibility Once eligibility for consideration for parole is met, Board has exclusive discretion to award or deny parole. Inmate is entitled to “effective and meaningful consideration.”

11. Parole Decisions Grasso v. Norton “effective and meaningful consideration” May be satisfied by “file review” Personal hearing not required unless state law provides

12. Parole Decisions Garafola v. Benson File review not “meaningful.” Full institutional hearing required

13. Parole Hearing 4th Circuit held that no constitutional requirement that inmate have personal hearing or access to files or call witnesses

14. Parole Decisions Generally, courts will not interfere with a parole board’s decision regarding parole. No right to parole May be a right to be considered Ultimate decision is within discretion of board

15. Parole Hearing Menechino v. Oswald Format of interview or hearing is within discretion of board Inmate not have due process rights at parole hearing Parole hearing is non-adversary: both parties have same goal of rehabilitation of inmate

16. Parole Hearing Primary function of parole hearing is not fact-finding Parole board is not finding facts Parole board is making determination based on tangible and intangible factors. Prisoner has no present private interest to be protected as is required for due process to be applicable

17. Parole Decision Limits on discretion Inmate must be given written notice of reasons for denial of parole

18. Parole Decision Federal prisoners US Parole Commission and Reorganization Act Prisoner must be given written notice of decision If parole denied, then decision must state reasons Congress has repealed laws granting parole Parole replaced by mandatory sentencing guidelines

19. Parole - Due Process U.S. District Courts ruled inconsistently as to whether parole is a substantial liberty interest to which due process applies.

20. Parole - Due Process Rowe v. Whyte, US District Court in Virginia held that parole release is a substantial liberty interest and procedures must meet due process standards 6th Circuit has held there is no liberty interest and due process no apply

21. Parole - Due Process Franklin v. Shields, US District Court in Virginia again held that due process applies and that minimum standards include: Published standards and criteria for determining parole release Personal hearing

22. Parole - Due Process Franklin v. Shields Access by inmate to information that parole board uses to make decision Some information may be excised to protect identity of authors of reports Informants names may be withheld Access may be denied to information that would compromise institutional security Statement of reasons for denial

23. Parole - Due Process No right to call witnesses or cross examine witnesses No right to counsel. Written reasons for denial are required Provides record for court to determine whether decision of parole board was “arbitrary and capricious”

24. Parole - Due Process Reason given by parole boards that is most often challenged is “release at this time would depreciate the seriousness of the offense.” Denial of parole should not be described in general terms. Board should state the reasons for denial Reasons should address the inmate’s particular situation Specific reasons for denial will protect board from a court finding that they acted in arbitrary and capricious manner.

25. Ex Post Facto Laws Court have held that laws which require completion of treatment programs before parole eligibility which were passed after an inmate’s sentencing may not be applied to inmates sentenced before the passage of the requirement

26. Ex Post Facto Laws State passed law, which required sex offenders to complete treatment program before being considered for parole Inmates already sentenced could not be required to complete program Unconstitutional ex post facto law

27. Ex Post Facto Laws California Department of Corrections v. Morales, US Supreme Court held that a California law which allowed parole board to apply a new law to old inmates that increased the time between parole hearings was not an ex post facto law.

28. California Department of Corrections v. Morales Inmate was serving 15 years to life for murder of his wife Became eligible for parole in 1990. Found unsuitable for parole at hearing. Law required annual suitability hearings 1981 law amended to allow board to defer suitability hearings for 3 years if inmate was convicted of more than one offense of taking a life and made finding that it was unlikely that he would be favorably considered.

29. California Department of Corrections v. Morales Board found that D had committed crime of murdering his wife while out on parole for an earlier murder, and there no reasonable chance he would be granted parole, so he set off for three years. D filed for writ of habeas corpus claiming this was an ex post facto law and unconstitutional

30. California Department of Corrections v. Morales Court held this not ex post facto law Did not increase his sentence Did not change substantive standards affecting the decision process of the board Only changed method to be followed in setting hearing schedules

31. California Department of Corrections v. Morales Court held this law only affected persons who had been convicted twice of taking a life. This is a group who has extremely low chance for favorable parole consideration.

32. Information Considered by Board Johnson v. Texas Department of Criminal Justice Inmate sued to prevent parole board from considering: Furlough history Writ-writing activities Protest letters

33. Information Considered by Board Johnson v. Texas Department of Criminal Justice Court allowed board to consider furlough history and protest letters Court did not allow board to consider writ-writing activities Related to constitutional right of access to the courts Violated right of due process and equal protection Prison may not retaliate against inmate for exercising right of access to courts

34. Protest Letters Sends notice to persons that inmate is being considered for parole Law requires notice to be sent to victims, prosecutors, presiding judge, county sheriff Allows any of those designated persons to object to parole Protest letters are only one factor that the board considers Court found that inmates who receive protest letters are usually denied parole. This raises equal protection issues.

35. Protest Letters Letters may contain: Newspaper clipping of the crime First person narratives of the crime Information about inmate, including unadjudicated crimes, other information that would have been inadmissible at trial. Texas law allowed victim or representative to present statement to board about views of inmate, offense and impact upon victim.

36. Protest Letters Court stated that there is no liberty interest in parole Inmate may not raise due process claims Can raise equal protection claims Court found that inmates who received protest letters were treated differently than other inmates in parole process

37. Protest Letters Receipt of protest letters was unpredictable Resulted in arbitrary and capricious system for parole violating equal protection clause. Board’s sole function is to determine whether inmate should be released on parole, not to retry the case by accepting testimony that was not considered at trial. Board was ordered not to consider extraneous offenses of inmate, or unadjudicated offenses of inmate.

38. Clemency Decisions Connecticut Board of Pardons v. Dumschat, Prisoner who was denied commutation of life sentence sued claiming that he had liberty interest in commutation Court held that he had no more than a hope for commutation Unilateral hope is not a constitutional right. Clemency is discretionary function of executive branch Court does not traditionally involve itself in matters relating to clemency decisions

39. Clemency Decisions Ohio Adult Parole Authority v. Woodward, US Supreme Court held that: Participation in voluntary clemency interview did not violate 5th Amendment Not result in “compelled” testimony Pressure to speak does not make it compelled Due process does not apply, because there is no “right” to clemency Clemency is an executive decision that is not the subject of a judicial review

40. Parole Revocation Parolee must abide by rules and regulations regarding behavior Violation can result in return to prison

41. Parole Conditions Not associate with known criminals or felons Not use illegal drugs, including pass drugs tests Not use alcohol to excess Not go beyond a stated geographical area without permission Engage in gainful employment or full-time educational program Pay court ordered fines and restitution Report to parole officer at stated intervals Not violate any law

42. Parole Discretion of parole authority over the released inmate. Traditional theories: Privilege theory Contract theory Continuing custody theory Modern court decisions applies due process to the exercise of parole discretion

43. Privilege Theory Parole is an act of grace by the state “The state giveth and the state taketh away” Results in unlimited discretion by state to revoke

44. Privilege Theory Fallacy in this theory. Parole is used as rehabilitative tool in prison Also used as a management tool Inmates follow rules and behave to get released on parole Unlimited discretion in revocation decisions would undermine rehabilitative and management utility of parole

45. Privilege Theory Supreme Court has rejected privilege theory in analogous cases. Students Welfare recipients Security clearances Supreme Court also rejected privilege theory in Morrisey v. Brewer

46. Contract Theory Parole release is conditioned upon inmate’s agreeing to conditions of parole Creates a contractual agreement that inmate will abide by rules Contract also includes agreement that he can be returned to prison if rules are violated

47. Contract Theory Problem with this theory is that contract law recognizes that valid agreement is based upon some bargaining, and the inmate has no bargaining power “Contract of adhesion” No real “consent” by inmate because he is coerced into agreement because the only other choice is to remain in prison

48. Continuing Custody Theory Parolee remains in custody of parole granting authority-the dept of correction Parolee is still under restrictions that applied prior to release

49. Continuing Custody Theory Problems with this theory is that the purpose of parole is rehabilitation Parolee is in very different position than inmate Applying same standards to parolee as inmate is irrational

50. Due Process Theory System of criminal justice must operate fairly Arbitrary operation of parole system will result in loss of respect for system. Interest of community in avoiding arbitrary decisions to revoke Reduces recidivism Not return persons to prison without good reason Due process approach was favored in Morrisey v. Brewer

51. Morrisey v. Brewer, 408 U.S. 471 (1972)

52. Parole Revocation When revocation is based upon new conviction the procedural requirements of Morrisey do not apply Purpose of final revocation hearing is to give parolee an opportunity to challenge claim that he has violated terms of parole New conviction establishes that he has violated parole

53. Parole Revocation All parole releases include requirement that he not violate any criminal law New conviction is based upon binding judicial determination that he has committed new crime Nothing for parole board to do other than formally revoke parole release

54. Parole Revocation Due process applies to parole revocation proceedings Before Morrisey, the leading case on revocation procedures was Mempa v. Rhay, which dealt with revocation of probation How much process is due?

55. Parole Revocation Mempa, U.S. Supreme Court held that indigent defendant entitled to counsel at probation revocation hearing Defendant entitled to counsel at every stage of criminal proceeding where “substantial rights of an accused may be affected” Counsel not required at parole revocation Mempa only addressed right to counsel and not other procedural rights

56. Parole - Probation Probation: person not sentenced to prison supervision is provided by the court Parole: person sentenced to prison and released early supervision provided by administrative agency revocation deprives person of conditional liberty

57. Parole - Probation Mempa only addressed right to counsel at probation revocation proceedings Morrisey addressed other procedural rights at parole revocation proceedings Following Morrisey, Supreme Court addressed other procedural issues related to revocation of probation in Gagnon v. Scarpelli

58. Due Process Rehabilitative goal of parole requires that parolee be treated with fairness. This requires hearing process Informal hearing Revocation decision should be based upon verified facts Discretion to revoke should rely on accurate knowledge of parolees behavior Written statement of facts justifying revocation decision should not include pro forma, or “boilerplate” language

59. Arrest and Preliminary Hearing Arrest may result from new criminal charges Or at direction of parole officer for violation of terms Time from arrest to final determination of revocation may be lengthy Geographical distance from site of arrest to prison may be lengthy Morrisey, requires that hearing should be held Close to place of arrest where facts are fresh and sources of information are available

60. Preliminary Hearing Inquiry is whether there is probable cause or reasonable grounds to believe that parolee has violated terms of parole

61. Preliminary Hearing Promptness of revocation hearing Some states have set time limit by statute Some states have had limit set by courts Morrisey held 60 days was not unreasonable time for entire revocation process (including final hearing)

62. Arrest on New Charges Preliminary hearing on new charge may also be the preliminary hearing on revocation Parolee must be notified in advance of consolidation of hearings If parolee is convicted of new offense, there is no need for preliminary and final revocation hearing

63. Acquittal on New Charges Courts are split Some courts hold parole board is “collaterally estopped” from revoking parole on basis of same facts that parolee was acquitted on in the trial of the new charges Other courts hold that parole board can still pursue revocation based on same facts

64. Acquittal on New Charges Lower burden of proof in revocation cases than trial on merits of charge Revocation can be based on technical violations that are not applicable at trial of new charge Even with these differences between revocation and new criminal charges, some courts hold that acquittal on new charges prohibits revocation

65. Preliminary Hearing If parolee is not in custody, at least one court has held there is no need for preliminary hearing

66. Preliminary Hearing Preliminary hearing determination of probable cause should be made by someone other than the parole officer involved in the case Reviewing officer not required to be a judge or lawyer Administrative matter

67. Preliminary Hearing Prior to hearing, parolee must be given notice of: Time and place of hearing Facts alleged to constitute the violation

68. Preliminary Hearing At preliminary hearing, parolee is entitled to: Appear and speak in his own behalf Present documents, letters, witnesses Confront and cross-examine adverse witnesses unless hearing officer determines that it would risk harm to the witness

69. Preliminary Hearing Hearing officer must make written summary of proceedings Response of parolee Substance of documents Finding of whether or not there is probable cause for the revocation If probable cause is found, parolee may continue to be detained until final determination

70. Revocation Hearing Morrisey requires final hearing if the parolee requests Final hearing includes evaluation of contested facts Determines whether facts justify revocation of parole

71. Revocation Hearing Due process requires that parolee have opportunity to be heard Parolee may introduce evidence that he did not violate parole Offer mitigating facts and circumstances that may show facts do not warrant revocation

72. Revocation Hearing Final hearing must be held within two months of arrest Morrisey held two months not unreasonable

73. Revocation Hearing - Procedural Due Process Requirements Written notice of alleged violations of parole Evidence against parolee must be disclosed to parolee Parolee has opportunity to be heard in person, and present documentary evidence and witnesses. Parolee has right to confront and cross-examine witnesses against him.(however, this right may be suspended if parole board determines that there is a risk of harm to the witness if disclosed)

74. Revocation Hearing - Procedural Due Process The hearing body must be neutral and detached (similar to the parole board); but do not have to be judicial officers or lawyers Parole board must provide written statement as to the evidence relied upon and the reasons for revocation of parole

75. Revocation Hearing - Procedural Due Process Morrisey specifically held revocation hearing was not equivalent to criminal prosecution Process was intended to be flexible May consider evidence that would not be admissible at criminal trial, such as letters and affidavits Board has power to prevent delays that occur in criminal trials Parolee may not re-litigate issues that have been tried in other proceedings (as when the revocation is based on conviction of another crime)

76. Revocation Hearing - Right to Counsel Morrisey did not address the issue of right to counsel in parole revocation hearings

77. Gagnon v. Scarpelli, 411 U.S. 778 (1973)

78. Right to Counsel Court did not rule there was absolute right to counsel in revocation hearings. Courts should determine this on a case-by-case basis Consider complexities of case Whether person has ability to present case without assistance Court also did not provide guidance as to when counsel should be appointed. C. Lower courts have not been helped by Scarpelli

79. Appointment of Counsel When revocation results in re-sentencing, then appointment of counsel is mandatory under Mempa v. Rhay. Otherwise, courts are to determine issue of appointment of counsel on case-by-case basis

80. Appointment of Counsel Scarpelli makes right to counsel presumptive. State may overcome this presumption If counsel not permitted, then parole board must make findings as to why not Presumptive right applies to both preliminary and final hearings

81. Appointment of Counsel Some states have enacted statutes that address this right to counsel. Some follow Scarpelli and the case-by-case analysis Some appoint counsel for final hearing Some appoint counsel at all hearings

82. Evidence Preliminary hearing Parolee may appear and speak on his own behalf May present documents and witnesses Hearing officer not required to state findings of fact because it not the final determination

83. Evidence Final hearing Parolee may appear and testify Parolee may present documents and witnesses Final hearing is not required to follow formal rules of evidence and procedure May consider evidence inadmissible at criminal trial Letters, affidavits, etc. Hearsay evidence

84. Evidence Hearsay is a statement made outside the hearing by a person who is not at the hearing that is offered to prove the things said in the statement Hearsay may be statement, conduct or writings Criticism of hearsay is that the person making the statement is not available for cross-examination Courts allow hearsay under certain circumstances that assure truthfulness of the statement under 23 exceptions to the rule against hearsay

85. Evidence Courts have allowed hearsay evidence at revocation hearings Morrisey stated that the hearing should allow letters and affidavits- these are classic examples of hearsay found in documentary evidence Courts have not allowed hearsay as the sole evidence supporting revocation.

86. Exclusionary Rule U.S. Supreme Court held that the exclusionary rule does not bar evidence seized in violation of 4th Amendment prohibition of unreasonable searches and seizures from use in revocation hearing. (Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357 (1998).

87. Exclusionary Rule Supreme Court has only applied exclusionary rule in criminal prosecutions Exclusionary rule is not constitutionally mandated Purpose of exclusionary rule is to deter illegal searches by police

88. Exclusionary Rule Application of exclusionary rule to revocation hearings would be inconsistent with the flexible, non-adversarial administrative proceedings that make up revocation hearings

89. Record and Use of Evidence Critical element of revocation process. Record should show what evidence was relied upon in the decision. Indicate who testified What hearsay evidence was used, and why it was used instead of the live witness What documents were used For all evidence indicate what relevant facts were derived from the evidence.

90. Evidence Admissions of parolee may be used 5th and 14th Amendment do not prohibit use of admissions No duty to give Miranda warnings unless the parolee is in custody Meetings with parole officer are part of the parole process Parole officer does not have to give warnings Parolee is not in custody during these meetings

91. Evidence Parolee may claim privilege. Rights can be waived, but the right must be known Record should indicate what rights have been waived and that it was voluntary waiver of a known right

92. Evidence Application of right against self-incrimination Applies only to criminal acts Not apply to technical parole violations Residence issues-parolee must not relocate residence without parole officer’s permission Questions about this are not subject to this privilege because it not apply to any criminal act.

93. Evidence Questions related to new criminal act: Privilege does apply and parolee cannot be compelled to testify at revocation hearing without being given use immunity This would require his testimony at the revocation hearing but would not allow the use of his testimony in revocation hearing at the criminal trial

94. Rescission of Parole Inmate who has been given a future parole date, and has the date delayed or withdrawn Procedures for this action?

95. Rescission of Parole Alternatives: Treat it as a revocation and apply standards of Morrisey Treat it as a disciplinary action and apply Wolff v. McDonnell Consider it a denial of parole and apply the standards used in parole hearings

96. Rescission of Parole Jackson v. Wise, analogized rescission to disciplinary action and followed Wolff v. McDonnell advance written notice of charge written statement of evidence relied on and reasons for rescission right of prisoner to be present right to present witnesses and documentary evidence right to attorney-substitute if inmate is illiterate or incompetent to handle matter alone determination of charges by impartial panel

97. Rescission of Parole Williams v. U.S. Board of Parole, court required full procedural requirements of Morrisey and Scarpelli Some courts have followed prior rule and allowed rescission without notice or hearing Until prisoner has been released from custody, there is no due process right to protect

98. Ex Post Facto Application of Parole Release Laws 1983 Florida enacted laws granting early release credits that were used to release prisoners to reduce overcrowding. 1986 inmate received 22 year sentence for attempted murder. 1992 he was released after given early release credits Soon after release a Florida A.G. opinion said that a 1992 law retroactively cancelled early release credits for persons convicted of murder or attempted murder. Former inmate was then re-arrested and taken back to prison. U.S. Supreme Court held this was unconstitutional ex post facto law. (Lynce v. Mathis, 519 U.S. 433 (1997)

99. Ex Post Facto Law Retroactively applied Disadvantage a person, by increasing punishment (and other things)

100. Conditions of Release Contract theory of probation and parole is used to justify certain conditions attached to parole and probation Accepting conditions of parole or probation by the offender is often used by courts to deny challenges to conditions of release Argument against contract theory is that contract is coerced

101. Conditions of Release Impossibility of performance may invalidate conditions Alcoholic who is pathologically incapable of totally abstaining from use of alcohol successfully challenged a condition that he not use any alcohol Condition that person not drive a car between midnight and 5:30 am was upheld

102. Conditions of Release Banishment It is possible but sometimes invalidated as being unreasonable Prostitute told to stay out of the French Quarter-upheld by La. Sp. Ct. “Sundown parole”

103. Conditions of Release Requiring psychological treatment not violation of right of privacy. Suspending sentence on condition that person inform on others-valid Payment of fines and restitution. Must be finding that person willfully failed and refused to pay Automatic revocation of probation for failing to pay fines violated due process when offender was indigent

104. Free Speech and Conditions First Amendment freedom One of most respected personal rights With regard to prisoners, it has less risk of harm to others Courts subject 1st Amendment restrictions to intense review

105. Free Speech and Conditions Hyland v. Procunier, (N.D. Cal. 1970) – Parolee was required to get permission before making any public speech Court held this invalid because it would constitute an unwarranted “chill” of his right to freedom of expression

106. Free Speech and Conditions Sobell v. Reed, (S.D.N.Y. 1971) parolee not allowed to give anti-war speech Court held this was beyond authority of parole officer Restriction would be valid only if necessary to prevent specific and highly likely danger of misconduct by parolee

107. Free Speech and Conditions In re Mammino (California, 1971) parolee not allowed to speak at public demonstration Upheld because he was convicted of kicking cop at such an event Also, because he had extremely bad temper Restriction on writing and distributing political material was invalid

108. Free Speech and Conditions Commonwealth v. Power, (Mass. 1995)-condition of probation was that she not profit from sale of her story to media D argued this was unconstitutional prior restraint on content-based speech. Condition allowed D to speak or write about her crimes and her experience as fugitive Condition only prevented her from making money from her speech Court found that because of financial disincentive, it did have 1st Amendment implications Purpose of condition to prevent persons from profiting from crime Court found it was reasonable attempt to deter persons from criminal behavior by eliminating this element of a profit motive. Found it promoted the rehabilitative goal.

109. Restriction on Pregnancy Illinois had condition of probation for women that they not engage in activity with reasonable potential of causing pregnancy Court challenge on 1st Amendment basis Court held probationer had reduced expectation of privacy Pregnancy test every two months only slight physical intrusion Court found condition was reasonable and affirmed revocation

110. Payment of Court Ordered Attorney Fees Circuits divided on whether payment of public defender fees are valid condition of probation Courts have ruled payment of such fees are within discretion of court Held it bears reasonable relationship to rehabilitation of D 5th & 9th Circuits hold not authorized because not listed among conditions of probation in 18 USC § 3651

111. Bearden v. Georgia, 461 U.S. 660 (1983)

112. Search as Condition 4th Amendment prohibits unreasonable searches and seizures Generally requires warrant for searches and seizures Exceptions to warrant requirement Incident to lawful arrest Consent Probable cause and exigent circumstances Others

113. Search as Condition Parolee arguably consented to search as condition of parole Court has focused on “reasonableness” of parolee searches Parolees not have same 4th Amendment protections Parole officer needs only reasonable suspicion specific, articulable facts together with rational inferences that parolee has violated terms of parole Other police need probable cause or warrant to search parolee

114. Search as Condition People v. Hernandez, Calif. 1964 Search by parole officer of person, residence and effects of parolee without warrant, consent, or probable cause does not violate 4th Amendment

115. Search as Condition Other courts have held that a power to search without any restriction is too broad Restriction of 4th Amend right must not exceed legitimate needs of parole officer

116. Search as Condition Owens v. Kelly, (11th Cir. 1982) Upheld condition of probation that allowed warrantless search of probationers person and property by probation officers and other law enforcement officers Does not violate probationers 4th Amendment rights

117. Search as Condition Courts have ruled it unreasonable search and seizure when police officers used parole officer as a front to conduct search Other courts have held such a search was reasonable

118. Special Needs Searches US Supreme Court has recognized “special needs” exception to warrant requirement Applies to border searches, airport searches, student searches, includes jail and prison searches along with searches of parolees and probationers

119. Griffin v. Wisconsin, 483 U.S. 868 (1987)

120. Samson v. California, ___ U.S. ___, 126 S.Ct. 2193 (2006)