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Legal Issues in Parole

Legal Issues in Parole. APAI Training Conference Newport, Rhode Island April 20, 2009 Professor Stan Adelman Albany Law School (former NY State Parole Officer) (former Counsel, Mass. Parole Board) sadelman@albanylaw.edu. Main Points.

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Legal Issues in Parole

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  1. Legal Issues in Parole APAI Training Conference Newport, Rhode Island April 20, 2009 Professor Stan Adelman Albany Law School (former NY State Parole Officer) (former Counsel, Mass. Parole Board) sadelman@albanylaw.edu

  2. Main Points • Parolees DO have rights – but much less than “free” citizens • Parole revocation: Morrissey v. Brewer, 408 U.S. 471 (1972) tells us how • Conditions of Parole: rational relationship test

  3. Search & Seizure: almost no limitations. “Exclusionary Rule” n/a at revocation hearings. • Liability and Immunity: • Board Members, Hearing Officers, and IPO’s: absolute immunity • Field PO’s: qualified immunity (but absolute immunity when writing violation reports)

  4. LESS RIGHTS THAN FREE CITIZENS • Morrissey and “qualified” or “conditional” liberty • Parolees as “prisoners on the street”? Wolff v. McDonnell, 418 U.S. 539 (1974): “No iron curtain between prisoners and the Constitution of the United States”

  5. First Amendment: freedom of speech, religion, association (marriage) • Fourth Amendment: unreasonable search & seizure • Fifth Amendment: due process and self-incrimination

  6. REVOCATION • Can’t take away “conditional liberty” without Due Process • Basic elements of Due Process: • Notice • “Opportunity to be heard” • Preliminary (“probable cause”) and final hearings • When required: Morrissey and Moody v. Daggett, 429 U.S. 78 (1976) • Timing • Formal rules of evidence don’t apply

  7. Search & Seizure • Almost no limitations – no warrant or probable cause, or even “reasonable suspicion” required • By PO’s • By police • Samson v. California, 547 U.S. 843 (2006) • No “exclusionary rule” at revocation hearings • Pennsylvania Bd. of Probation & Parole v. Scott, 524 U.S. 357 (1998)

  8. Might be limitations as to strip and body cavity searches • References to articles by Prof. A. • Some Further Reflections on Samson v. California: Standing Morrissey v. Brewer on its Head? Perspectives (APPA), v. 31, no. 4, fall 2007, p. 43. • U.S. v. Knights: Supreme Court rules on searches of probationers by police. Perspectives, v. 26, no. 3, summer 2002, p. 39.

  9. LIABILITY/IMMUNITY • GOOD NEWS – Parole Staff have extensive immunity protections (not just immunity from liability for $$$ damages, but immunity from being sued altogether) : • Absolute (“quasi-judicial”) Immunity: Board Members, hearing examiners, IPO’s, and field PO’s (when writing violation reports) AI protects absolutely – not subject to forfeiture • Qualified (“quasi-police”) Immunity: Field PO’s (regarding supervisory functions -- search & seizure, use of force, privacy) PO may lose QI for violating “clearly established rights” See Namey v. Reilly, 926 F. Supp. 5 (D. Mass. 1996) – good discussion of who has AI and who has QI

  10. PARTING ADVICE: • Just do your job to the best of your ability and don’t worry about litigation/liability consequences. • Train your staff!!

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