Part II Constitutional Law of Corrections. Chapter 17 – Probation and Parole, Community...

Part II

Constitutional Law of Corrections

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

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

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

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

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


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


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


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


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


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)


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


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

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


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


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


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


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


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

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

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

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

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

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


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

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


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


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

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


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


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

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

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


Supreme Court in Gagnon v. Scarpelli addressed the question of due process at parole revocation proceedings - the Court relied on two earlier decisions:

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


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


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


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


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


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


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


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


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

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

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


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


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


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


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


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


In Pennsylvania Board of Probation and Parole v. Scott, Scott, as part of his release conditions, agreed not to own or possess any firearms or other weapons His parole agreement, which he signed,

allowed state probation and parole authorities to search his person, property, and residence without warrant

And to seize and use as evidence in revocation proceedings any violative items found


Five months into his parole, and pursuant to an arrest warrant, Scott was arrested by three parole officers

Prior to his transfer to a prison, Scott gave the officers the keys to his residence

The officers’ search, without warrant, discovered firearms and other weapons

The discovery was a contributory factor, along with alcohol consumption charges, to Scott’s parole revocation and return to prison


Scott argued the search of his residence was unreasonable

Supreme Court held the search was permissible and the revocation action taken was proper

Court noted that parolees are more likely to commit future criminal offenses than are average citizens – “Indeed,” the Court said, “this is the very premise behind the system of close parole supervision”


Because parole revocation deprives the parolee not of absolute liberty, but only of the conditional liberty properly dependent on observance of special parole restrictions, States have wide latitude under the Constitution to structure parole revocation proceedings

Martinez v. California (1980) Thomas was convicted of attempted

rape and sentenced to 20 years with a no-parole recommendation

After five years he was paroled Done in spite of Thomas’ record and

warning in his record that he was likely to commit another violent crime

Five months later he tortured and killed a 15-year-old girl

Martinez v. California: cont’d

Her family sued the state and its parole authority, claiming the girl’s life had been taken without due process of law and

That the paroling authorities were liable for the wrong decision in releasing Thomas


State statute, however, provided that government officials were not liable for any injury resulting from a decision to release a prisoner on parole, or from determining the conditions of his parole, or whether to revoke his parole Held to be a complete defense, giving

absolute immunity from a suit for damages


Supreme Court upheld the legality of the immunity statute – holding that it furthers a policy that reasonable lawmakers may favor The statutory defense allows the

parole board to take greater risks in this decision-making than they otherwise would have done


The victim’s family also filed an action under 42 USC § 1983, claiming a constitutional violation of the victim’s rights in depriving her of her life without due process of law


Court held that the action of Thomas five months after his release cannot be fairly characterized as state action

Her life was taken by the parolee, in no sense was he an agent of the parole board

Victim’s death is too remote a consequence of the parole officers’ action to hold them responsible under the federal civil rights law


As a general comment, action by a court placing a defendant on probation is even more clearly immunized from suits for damages Judges have absolute immunity

from lawsuits arising from their judicial decisions


In Forrester v. White (1988), the Court held absolute immunity applies only to the court’s adjudicative, not administrative, functions In Forrester, Judge White fired a probation

officer Supreme Court held in doing this firing, the

judge was acting in an administrative, not judicial capacity; and was not entitled to absolute immunity; the Court did note that qualified immunity would be available to judges in their employment decisions

Greenholtz v. Inmates (1979); Connecticut Board of Pardons v. Dumschat (1981); Board of Pardons v. Allen (1987); Ohio Adult Parole Authority v. Woodard (1998)

Examines the initial decision to place the offender on probation or parole

As to probation, the law is clear

Greenholtz v. Inmates (1979); Connecticut Board of Pardons v. Dumschat (1981); Board of Pardons v. Allen (1987); Ohio Adult Parole Authority v. Woodard (1998)

Placing defendant on probation is imposition of sentence; due process protections of a criminal trial apply

Defendant has the opportunity to be present

To present evidence for mitigation of sentence

To be heard himself

Greenholtz v. Inmates; Connecticut Board of Pardons v. Dumschat; Board of Pardons v. Allen; Ohio Adult Parole Authority v. Woodard: cont’d

Supreme Court has recognized individualization of sentencing as an important sentencing objective

Person has right to counsel at every significant stage of the proceeding, including sentencing

Strong movement recently to afford more rights to victims and their families at sentencing

Some courts allow a “victim impact statement” Supreme Court approved (Payne v. Tennessee

(1991))


The more contentious question – Is due process required at the time of decision regarding parole?


In Greenholtz v. Inmates, the Supreme Court noted that “parole release and parole revocation are quite different” Parole revocation - depriving a person of

a liberty one has Parole release - denying a conditional

liberty one desires Court held no liberty interest inherent in

the parole-release process, and no constitutional right to due process inherent in that process


Court, however, also examined the language of the state statute to see if this provided a liberty interest

Nebraska statute provided for the inmate’s release unless it found the existence of one of four conditions

Court found this created expectation of release entitling an inmate to some due process


Court held the amount of due process required was:

an opportunity to appear and to be heard and

if parole is denied, to be informed of the reasons


In Connecticut Board of Pardons v. Dumschat, the Court dealt with a challenge to the State Board of Pardons’ actions


Dumschat, serving a life sentence, applied for a commutation

A commutation is a reduction in sentence, or changing some aspect of the sentence

Pardons are full-fledged wiping out of the conviction and sentence


In Connecticut, a board was established to consider pardon and commutation action

The board denied Dumschat’s application

He claimed he should have been given a hearing by the Parole Board

Connecticut law gave the board total discretion


Dumschat claimed he had some expectation of receiving a commutation because 85-90% of life sentences in the state were commuted


Supreme Court denied his contention, holding inmate’s expectation was simply a unilateral hope

Ground for a constitutional claim, if any, must be found in statutes or other rules defining the obligations of the authority charged with exercising clemency


In Board of Pardons v. Allen, inmates brought a § 1983 action, claiming denial of due process rights in parole release procedures


Montana statute stated

“the Board shall release on parole . . .when in its opinion there is reasonable probability that the prisoner can be released without detriment to the prisoner or to the community”


Supreme Court held this language created a liberty interest in parole release under the due process clause

Because mandatory language – “shall” – created a presumption that parole would occur when the designated findings were made

Supreme Court’s subsequent decision in Sandin v. Conner (1995) has called the mandatory language standard into question


Ohio Adult Parole Authority v. Woodard relied on both Greenholtz and Dumschat Ohio constitution gave governor the

power to grant clemency Legislature may regulate the application

and investigation process, but can’t curtail the governor’s discretionary authority

Woodard sentenced to death for aggravated murder done in the course of a carjacking


As his date for execution approached, the Parole Authority, as required, notified Woodard he could have a clemency interview, if he wanted one, on 9/9/94, with his clemency hearing 9/16/94

Woodard objected to the short notice and requested counsel be allowed to take part

Ohio did not allow counsel at the interview


Supreme Court held the Ohio procedures had no due process violations

Governor retains total discretionary authority to grant or deny clemency

Governor’s executive discretion need not be fettered by the procedural protections sought by Woodard

Offender has no substantive expectation of clemency


Court further noted that denial of clemency merely means inmate must serve the sentence originally imposed

Court also saw no violation of Woodard’s right under the Fifth Amendment to be free from self-incrimination

Court said it was hard to see how a voluntary interview could “compel” Woodard to speak

United States v. Addonizio (1979); California Department of Corrections v. Morales (1995); Garner v. Jones (2000); Lynce v. Mathis (1997)

Cases look at whether parole rules may be changed after a defendant has been sentenced

United States v. Addonizio; California Department of Corrections v. Morales; Garner v. Jones; Lynce v. Mathis: cont’d

In United States v. Addonizio, inmate claimed that the U.S. Parole Commission’s (USPC) change of rules resulted in his being sentenced longer than intended by the sentencing judge Addonizio had been sentenced to 10

years, with the judge indicating an expectation that the inmate, with good behavior, would be released after serving one-third of his sentence


New rules adopted by USPC three years after Addonizio was sentenced gave more weight to the seriousness of the offense

Resulted in the inmate’s consideration for parole being postponed

Inmate applied to the sentencing court, which found its sentencing expectations frustrated and ordered the inmate’s release, reducing his sentence to “time served”


Supreme Court held the sentencing court’s action invalid

Court said actual parole decision is not for the court to make, either at the time of sentencing or later, if the court’s expectations are not met

Congress has determined USPC is in the best position to determine when release is appropriate


In California Department of Corrections v. Morales, the inmate was serving a 15 years to life sentence Became parole eligible in 1990,

with his first hearing in 1989, with parole denied

Under rules in effect at the time, subsequent hearings could occur each year


Law, however, was amended to allow Board of Prison terms to defer suitability for up to three years if inmate convicted of more than one offense involving the taking of life – Morales had two such convictions

Pursuant to the law change, the board rescheduled Morales for a hearing in three years, in 1992 rather than 1990


Morales filed a habeas corpus petition, claiming the amendment was an ex post facto law in violation of the constitution

Ex post facto (Article 1 Section 10) means laws may not be enacted that alter the definition of a crime after it has been done, or increase the penalty for criminal acts after their commission


Supreme Court held that the law change did not increase Morales punishment for his crime

The only change was procedural It affected only a few inmates for

whom the likelihood of release on parole was fairly remote


In Garner v. Jones, Jones was serving a life sentence in Georgia for murder. He escaped after five years, during which

time he did a second murder, receiving a second life term

Under Georgia law, parole consideration occurred after seven years for inmates serving life sentences

At the time of Jones conviction for the second murder, the board’s rules required reconsideration every three years


In 1985, after Jones began serving his second life sentence, the board changed its rules to provide reconsideration hearings for life sentence inmates at least every eight years

At his 1989 hearing, Jones received a rehearing date of 1997


A 1991 Eleventh Circuit Court of Appeals decision, in a separate case, held the retroactive application of the eight year rule violated ex post facto

Parole Board returned to its three year rule

Jones appeared before the Board in 1992 and 1995, being denied on both occasions


Following the Morales ruling, the board returned to eight-year reconsiderations, with the option to make shorter

Chose not to do so for Jones due to his multiple offenses and the circumstances and nature of the second offense

Jones sued, alleging violation of the ex post facto clause


Court saw the Georgia law as reasonable, allowing a better use of its resources

Court found it could not conclude, based on the record in the case, that the change lengthened Jones’ period of actual confinement

Court noted that Georgia law allowed for earlier consideration when warranted


Court’s holding, in its practical effect, gives deference to correction professionals to manage the parole process for the benefit of all


Lynce v. Mathis is a case holding there was an ex post facto violation In 1986, Lynce received 22 year

sentence (8,030 days) for attempted murder

Released in 1992 after the Corrections Department determined he had earned over 5,600 days of early release credits


A portion of those days (over 1,800) awarded as a result of the state’s plan to reduce prison overcrowding

Shortly after Lynce’s release, the state Attorney General issued an opinion interpreting a 1992 statute as having retroactively cancelled all provisional credits awarded to inmates convicted of murder or attempted murder

Lynce was returned to custody, and given a new release date in 1998


Lynce filed a petition for a writ of habeas corpus, claiming an ex post facto violation

Supreme Court agreed Held operation of the 1992 statute,

canceling overcrowding credits and requiring Lynce’s reconfinement, was clearly retroactive

Further, Lynce was unquestionably disadvantaged because it resulted in his rearrest and prolonged his imprisonment


The Court distinguished Lynce from Morales

Morales didn’t affect the length of punishment being served

Lynce did, by canceling provisional credits previously earned and pulling some people, such as Lynce, back into prison

Jago v. Van Curen (1981) Van Curen was sentenced to 6 to 100

years, with parole eligibility in 1976 Ohio passed a “shock parole” statute,

allowing earlier parole of first offenders who had served at least six months in prison for nonviolent crimes

Van Curen was approved by the Ohio Adult Parole authority for early release in 1974

Jago v. Van Curen: cont’d Shortly after his parole interview, the

Parole Authority learned inmate had not been truthful in the interview or parole plan he had submitted He said he had embezzled one million

dollars, when it was actually six million dollars

He said he planned to live with his half brother when released, when he really planned to live with his homosexual lover

Jago v. Van Curen: cont’d

Parole Board rescinded its earlier actions and continued the case to a later date The inmate had no hearing with

regard to the parole rescission action

Jago v. Van Curen: cont’d Supreme Court held no entitlement to

a hearing Doesn’t doubt that Van Curen suffered

“grievous loss” from the parole rescission

But rejected view that any grievous loss visited upon person by the state is sufficient to invoke the protections of the due process clause

Cited Greenholtz and Dumschat, and said that the Ohio law provided no protected liberty interest

Moody v. Daggett (1976) Moody was on parole from a federal

rape conviction and was sentenced to new ten-year terms for manslaughter and second degree murder

While serving these terms, U.S. Board of Parole issued a warrant charging him with a violation of parole release terms

The warrant was lodged as a detainer

Moody v. Daggett: cont’d Moody asked that the warrant be

executed to allow for parole violation time to run concurrently with his homicide sentences

Parole board denied the request Moody filed a habeas corpus

petition, claiming denial of a prompt parole revocation hearing

Moody v. Daggett: cont’d In Moody v. Daggett, the

Supreme Court held there was no illegal loss of liberty, that Moody was not entitled to an immediate parole revocation hearing Court held there were good reasons

for the board to defer its decision and consider Moody for release or revocation of parole when he finished his current sentence

Moody v. Daggett: cont’d Court said it allows the authorities to

make a more informed judgment on whether or not to revoke the probation or parole status of the inmate

Court also noted – the loss of liberty as a parole violator doesn’t occur until the parolee is taken into custody under the warrant

Smith v. Doe (2003); Connecticut Department of Public Safety v. Doe (2003)

Cases look at the issue of continuing government “oversight,” even after the time the criminal has paid his debt to society

Smith v. Doe; Connecticut Department of Public Safety v. Doe: cont’d

Smith v. Doe (2003) concerned the Alaska Sex Offender Registration Act Act required every sex offender or child

kidnapper confined within the state to register with the department of corrections within 30 days prior to release from custody; if not confined, registration was to be with local law enforcement agencies, within a working day of the conviction or the offender’s entrance into the state


Periodic verification of the submitted information was required

Nonconfidential information about the offender – such as name, address, photograph, place of employment, and nature of conviction – would be available to the public, with the state choosing the means for this

The Act’s registration and notification requirements were to be retroactive


The Doe respondents in Smith were convicted sex offenders Had been released from prison

and completed sex offender treatment programs

Their convictions were before the Act’s passage


Suit was brought under § 1983, asking that the Act be declared not applicable to them Under the ex post facto clause

(Article I of the Constitution) And the due process clause (of

the Fourteenth Amendment)


Supreme Court saw the main question as Whether the legislature meant to

establish civil proceedings If yes, the question becomes whether

the statutory scheme was so punitive in purpose or effect as to negate the state’s intent


Court held for the government Intent of state legislature was

protection of public The Act mandated no specific

procedures, leaving this to the Department of Public Safety

The Department was responsible for enforcing both criminal and civil regulatory laws


The Act’s statutory scheme was not seen as punitive

It has a legitimate nonpunitive purpose of public safety

This is advanced by alerting the public to the risk of sex offenders in their community


Nor was the broadness of the Act – its application to all convicted sex offenders without regard to their future dangerousness, the duration of the reporting requirements, and the wide dissemination of the information – sufficient to make it punitive


Court held its role was not to determine whether the legislature made the best choice to address the problem it wants to remedy

But whether the regulatory means chosen are reasonable in light of the nonpunitive objective

The Court held the regulatory means chosen were reasonable


Connecticut Department of Public Safety v. Doe involved a due process claim Doe filed on behalf of himself and other

similarly situated sex offenders Claiming he was not a dangerous sex

offender And that his being listed without a

hearing deprived him of a liberty interest – his reputation combined with the alteration of his status under state law


The Court relied on Connecticut’s legislative intent in passing the act The state intent was to facilitate

access to publicly available information about persons convicted of sex offenses

There was no assessment of the specific risk of reoffense or current dangerousness


Persons were listed because of their conviction record and state law

Main purpose of placing this information on the Internet was to make it more easily available, not to warn about any specific person (dangerousness)

Court held state’s legislative scheme would govern

Community Corrections

A broad concept, encompassing all types of sanctions and sentencing arrangements that allow offenders to remain primarily in the community

Community Corrections: cont’d The concept includes

Probation and parole Prerelease centers and halfway

houses Community service and fines Restitution Furloughs Work and study release and Electronic monitoring

Use of Fines

One of the oldest kinds of sentencing

Also one of the most common sanctions for minor offenses

For serious offenses, particularly those involving financial gain, fines may be imposed in combination with other sanctions

Williams v. Illinois (1970); Tate v. Short (1971)

In Williams v. Illinois, Williams sentenced to one year in jail and a $500 fine for petty theft He was not able to pay the fine Under Illinois law, he was to be kept in jail until

he “worked off” the fine at the rate of $5 per day Meant he would be in jail 100 days longer than

he would have been had he been able to pay the fine

This extended sentence also was 100 days longer than the maximum jail sentence authorized for the crime

Williams v. Illinois; Tate v. Short: cont’d

Supreme Court held it violated the equal protection clause to require an indigent defendant to serve longer than the most that could be required for a nonindigent defendant


In Tate v. Short, the Court extended its protection of indigents in fine cases Defendant was convicted of several

traffic offenses None of these authorized confinement He was given a fine, which he was unable

to pay He was ordered to the prison farm to

“work off” his fine at the rate of $5 per day


The Court held this was impermissible discrimination against an indigent defendant in violation of the Fourteenth Amendment

Here, confinement was ordered solely due to the person’s indigency; this was an equal protection violation


These rulings abolished the old practices of “working off” fines Sentences such as “$100 or ten

days” are no longer allowed

Bearden v. Georgia (1983)

In Bearden v. Georgia, Bearden was placed on probation With a condition that he pay a

fine of $500, and $250 in restitution

He paid $200 toward his fine, but lost his job and could not pay more

Bearden v. Georgia: cont’d When the balance came due, Bearden

told his probation office he was going to be late with his payments because he could not find a job He went before the court for a revocation

hearing His probation was revoked He was ordered to serve the balance of

his probationary term (about three years) in prison

Bearden v. Georgia: cont’d

The Court, upon getting the case, forged a new rule, one intended to take the competing interests into account An indigent inmate should not be excused

from punishment, including imprisonment, if he willfully refused to pay the fine (or restitution)

But if the person had made good efforts to pay the fine and could not do so…


It is “fundamentally unfair” to automatically revoke probation without considering whether adequate alternative methods of punishing the defendant are available

Only if alternative measures are not adequate to meet the state’s interests in punishment and deterrence, may the court imprison a probationer who has made sufficient bona fide efforts to pay


The case was sent back to the trial court to consider the new rule, taking into account the indigency of the probationer

Bearden v. Georgia: cont’d Other sentences that avoid

confinement: Orders for community service and other

“creative orders” These require certain activities or

contributions by the defendant in lieu of imprisonment

Electronic monitoring – used in conjunction with probation or parole, as well as by itself

Such monitoring keeps track of the offender’s location

Bearden v. Georgia: cont’d Drug testing – may be a condition

of probation, or could be an independent kind of sentencing, run by an entity, to monitor the drug-free status of the defendant, when that is specifically ordered by the sentencing court

Bearden v. Georgia: cont’d Programs that release the person

from prison to go into the community with special conditions, and with the prison constraint still hanging over him:

Parole Furloughs Work Release Study Release

Bearden v. Georgia: cont’d Legal questions raised by such

community corrections activities are small, compared to those of prisoners’ rights No Supreme Court rulings or significant

constitutional rulings on such programs, except the earlier discussed probation and parole cases

What does exist comes from those denied participation, or terminated from participation because of some failure on their part


The significant concern in community correctional activities would seem to be to ensure such programs are available to all offenders, without regard to race, gender, or other unjustifiable distinctions

Placing inmates into work or study release, on furlough, or on parole is a discretionary function

Bearden v. Georgia: cont’d Placement consideration should be

tied to the criminal history and past behavior of the offenders, along with their prospects for successful community involvement

Apart from the impermissible factors of discrimination, program decisions should be based on eligibility and risk criteria, along with correctional judgment

Part II Constitutional Law of Corrections. Chapter 17 – Probation and Parole, Community...

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Transcript of Part II Constitutional Law of Corrections. Chapter 17 – Probation and Parole, Community...