Criminal Justice | Section 6.3: Prisoner’s Rights
Criminal Justice
An Overview of the System
ADAM J. MCKEE
Section 6.3: Prisoner’s Rights
American courts were reluctant to get involved in prison affairs during most of the 19thcentury. Until the 1960s, the courts used a hands-off approach to dealing with corrections. Since, it the court has recognized that “Prison walls do not form a barrier separating prison inmates from the protections of the Constitution” (Turner v. Safley, 1987). Prisoners do give up certain rights because of conviction, but not all of them. The high courts have established that prisoners retain certain constitutional rights. As the Court stated in Hudson v. Palmer (1984), “While prisoners enjoy many protections of the Constitution that are not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration, imprisonment carries with it the circumscription or loss of many rights as being necessary to accommodate the institutional needs and objectives of prison facilities, particularly internal security and safety.” From this statement, it can be seen that institutional safety and security will usually trump inmate rights when the two collide in Court.
POLITICAL RIGHTS
The phrase political right is used to refer to rights related to the participation in the democracy of the United States. Chief among these is the right to vote. The Constitution of the United States allows states to revoke a person’s right to vote upon conviction, but does not require it. Several states revoke the right to vote while a person is incarcerated but restore the right once the person is released from prison. A few states revoke the right to vote for life when a person is convicted of a felony. The right to vote cannot be denied to those who are pretrial detainees confined to a jail, or someone who is a misdemeanant. These individuals are usually given the right to vote by absentee ballot.
THE RIGHT TO FREE SPEECH AND ASSEMBLY
The First Amendment right of prisoners to free speech is curtailed, but not eliminated. Prison administrators must justify restrictions on free speech rights. The rights to assemble is generally curtailed. As a rule, prison administrators can ban any inmate activity that is a risk to the security and safety of the institution.
THE RIGHT TO FREEDOM OF RELIGION
Generally, prisoners have the right to free exercise of their religious beliefs. These, however, can be curtailed when the health and safety of the institution are at risk. To be protected, the particular religious beliefs must be “sincerely held.” Prison officials may not, however, legally show a preference for one religion over another. In practice, some religious customs have conflicted with prison policies, such as requiring work on religious holidays that forbid labor. These types of policies have been upheld by the courts.
THE RIGHT OF ACCESS TO THE COURTS
The First Amendment guarantees the right “to petition the Government for a redress of grievances.” For prisoners, this has translated to certain types of access to the courts. The two major categories of petitions that can be filed by prisoners are criminal appeals (often by habeas corpus petitions) and civil rights lawsuits. The right to petition the courts in these ways is referred to as the right of access to the courts. The court discusses this right at length in the case of Johnson v. Avery (1969).
FREEDOM FROM RETALIATION
Inmates who file complaints, grievances, and lawsuits against prison staff have a constitutional right to be free from retaliation. The Supreme Court based this right on the logic that retaliation by prison staff hampers the exercise of protected constitutional rights. In practice, this right has been difficult for inmates to assert. Prison staff can often find legitimate reasons for taking action that was intended as retaliation.
RIGHTS DURING PRISON DISCIPLINARY PROCEEDINGS
In the landmark case of Wolff v. McDonnell (1974), the Supreme Court defined the contours of prisoner rights during prison disciplinary proceedings. While not all due process rights due a criminal defendant were due the prisoner in a disciplinary proceeding, some rights were preserved. Among those rights were:
- Advance written notice of charges must be given to the disciplinary action inmate, no less than 24 hours before his appearance before the Adjustment Committee.
- There must be a written statement by the factfinders as to the evidence relied on and reasons for the disciplinary action.
- The inmate should be allowed to call witnesses and present documentary evidence in his defense if permitting him to do so will not jeopardize institutional safety or correctional goals.
- The inmate has no constitutional right to confrontation and cross-examination in prison disciplinary proceedings, such procedures in the current environment, where prison disruption remains a serious concern, being discretionary with the prison officials.
- Inmates have no right to retained or appointed counsel.
THE RIGHT TO PRIVACY
The right to privacy is closely related to the law of search and seizure. In the landmark case of Hudson v. Palmer (1984), the Court determined that inmates do not have a reasonable expectation of privacy in their living quarters. In the Court’s rationale, the needs of institutional security outweigh the inmate’s right to privacy. The policy implication of this decision is that shakedowns may be conducted at the discretion of prison staff, and no evidence of wrongdoing is necessary to justify the search.
THE RIGHT TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT
The right to be free from cruel and unusual punishment as guaranteed by the Eighth Amendment to the United States Constitution. The amendment only applies to criminal punishments; it has no bearing on civil cases.
Conditions in prison must not involve the “wanton and unnecessary” infliction of pain. Prison conditions, taken alone or in combination, may deprive inmates of the “minimal civilized measure of life’s necessities.” If this happens, the Court will judge the conditions of confinement unconstitutional. Conditions that cannot be said to be cruel and unusual under “contemporary standards” are not unconstitutional. According to the Court, prison conditions that are “restrictive and even harsh,” are part of the penalty that criminal offenders pay for their “offenses against society” (Rhodes v. Chapman, 1981).
In Estelle v. Gamble (1976), the court ruled that “Deliberate indifference by prison personnel to a prisoner’s serious illness or injury constitutes cruel and unusual punishment contravening the Eighth Amendment.”
Key Terms
Estelle v. Gamble (1976), Hudson v. Palmer (1984), Johnson v. Avery (1969), Political Right, Right to Access to the Courts, Right to Assemble, Right to be Free from Cruel and Unusual Punishment, Right to Free Speech, Right to the Free Exercise of Religion, Right to Vote, Shakedown, Wolff v. McDonnell (1974)
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Criminal Justice | Section 6.4: Parole, Probation, and Community Sanctions
Criminal Justice
An Overview of the System
ADAM J. MCKEE
Section 6.4: Parole, Probation, and Community Sanctions
Parole and probation, taken together with other forms of non-prison sanctions, are called community corrections. This is because these offenders reside in the community rather than in jail or prison. The idea of probation and parole is to reintroduce the offender into society as a productive member. The other major goal of probation and parole is to keep the community safe from predation.
Community-based sanctions are becoming increasingly popular as corrections budgets continue to rise, and overcrowding remains an issue. It is much cheaper to house an offender in the community than it is to keep them in prison. It is estimated that community supervision costs less than $1,000 per person supervised, while incarceration costs as much as $30,000 per prisoner. The push has been to increase prison time for predatory offenders, and to make room for them by finding alternatives to incarceration for nonviolent offenders.
Parole
The practice of releasing prisoners on parole before the end of their sentences has become an integral part of the correctional system in the United States. Parole is a variation on imprisonment of convicted criminals. Its purpose is to help individuals reintegrate into society as constructive individuals as soon as they are able, without being confined for the full term of the sentence imposed by the courts. It also serves to lessen the costs to society of keeping an individual in prison. The essence of parole is release from prison, before the completion of sentence, on the condition that parolees abide by certain rules during the balance of the sentence. Under some systems, parole is granted automatically after the service of a certain portion of a prison term. Under others, parole is granted by the discretionary action of a board, which evaluates an array of information about a prisoner and makes a prediction whether he is ready to reintegrate into society.
To accomplish the purpose of parole, those who are allowed to leave prison early are subjected to specified conditions for the duration of their parole. These conditions of parole restrict their activities substantially beyond the ordinary restrictions imposed by law on an individual citizen. Typically, parolees are forbidden to use alcohol and other intoxicants or to have associations or correspondence with certain categories of undesirable persons (such as felons). Typically, also they must seek permission from their parole officers before engaging in specified activities, such as changing employment or housing arrangements, marrying, acquiring or operating a motor vehicle, traveling outside the community, and incurring substantial indebtedness. Additionally, parolees must regularly report to their parole officer.
The parole officers are part of the administrative system designed to assist parolees and to offer them guidance. The conditions of parole serve a dual purpose; they prohibit, either absolutely or conditionally, behavior that is deemed dangerous to the restoration of the individual into normal society. Moreover, through the requirement of reporting to the parole officer and seeking guidance and permission before doing many things, the officer is provided with information about the parolee and an opportunity to advise him. The combination puts the parole officer into the position in which he can try to guide the parolee into constructive development.
The enforcement advantage that supports the parole conditions derives from the authority to return the parolee to prison to serve out the balance of his sentence if he fails to abide by the rules. In practice, not every violation of parole conditions automatically leads to revocation. Typically, a parolee will be counseled to abide by the conditions of parole, and the parole officer ordinarily does not take steps to have parole revoked unless he thinks that the violations are serious and continuing so as to indicate that the parolee is not adjusting properly and cannot be counted on to avoid antisocial activity. The broad discretion accorded the parole officer is also inherent in some of the quite vague conditions, such as the typical requirement that the parolee avoid “undesirable” associations or correspondence. Yet revocation of parole is not an unusual phenomenon, affecting only a few parolees. According to the Supreme Court in Morrissey v. Brewer, 35% – 45% of all parolees are subjected to revocation and return to prison. Sometimes revocation occurs when the parolee is accused of another crime; it is often preferred to a new prosecution because of the procedural ease of recommitting the individual on the basis of a lesser showing by the State.
Probation
Probation is very similar to parole, and many of the legal issues are identical. Many jurisdictions combine the job of probation and parole officer, and these officers are often employed in departments of community corrections. The most basic difference between probation and parole is that probationers are sentenced to community sanctions rather than a prison sentence. Parolees have already served at least some prison time. Some jurisdictions can sentence an offender to a split sentence. A split sentence requires the offender to stay in prison for a short time before being released on probation.
Most criminal justice historians trace the roots of modern probation to John Augustus, who began his professional life as a businessperson and boot maker. Augustus became known as the father of probation largely due to his strong belief in abstinence from alcohol. He was an active member in the Washington Total Abstinence Society, an organization that believed criminals motivated by alcohol could be rehabilitated by human kindness and moral teachings rather than incarceration. His work began in earnest when, in 1841, he showed up in a Boston police court to bail out a “common drunkard.” Augustus accompanied the man on his court date three weeks later, and those present were stunned at the change in the man. He was sober and well kempt. For 18 years, he served in the capacity of a probation officer on a purely voluntary basis. Shortly after his death in 1859, a probation statute was passed so that his work could continue under the auspices of the state. With the rise of psychology’s influence in the 1920s, probation officers moved from practical help in the field to a more therapeutic model. The pendulum swung back to a more practical bent in the 1960s when probation officers began to act more as service brokers. They assisted probationers with such things as obtaining employment, obtaining housing, managing finances, and getting an education.
Many jurisdictions have several levels of supervision. The most common distinction between levels of probationers is active supervision and inactive supervision. Probationers on active supervision are required to report in with a probation officer at regular intervals. Probationers can be placed on inactive supervision because they committed only minor offenses. Serious offenders can sometimes be placed on inactive supervision when they have completed much of a long probation sentence without problems.
The preferred method of checking in depends on the jurisdiction. Many require in person visits, but some jurisdictions allow phone calls and checking in via mail. Inactive probationers are not required to check in at all or very infrequently. Checking in with an officer is a condition of probation. Other conditions often include participation in treatment programs, paying fines, and not using drugs or alcohol. If these conditions are not followed, the the probationer is said to be a violator. Violators are subject to probation revocation. Revocations often result in a prison sentence, but some violators are given second chances, and some are sentenced to special programs for technical violations. Many jurisdictions classify absconders differently than other violators. An absconder is a probationer (or parolee) that stops reporting and “disappears.”
Following the trend of mass incarceration in the United States over the past several decades has been a similar trend in what has been called “mass community supervision.” In 1980, about 1.34 million offenders were on probation or parole in the United States. That figure exploded to nearly 5 million by 2012. The Bureau of Justice Statistics ( Maruschak & Parks, 2014) provides a look at these numbers from a different vantage point: about 1 in 50 adults in the United States were under community supervision at yearend 2012. The community supervision population includes adults on probation, parole, or any other post-prison supervision.
Officer Roles
Many jurisdictions combine the role of probation officer and parole officer into a single job description. In Gagnon v. Scarpelli (1973), the court had this to say of the duties of the such officers: “While the parole or probation officer recognizes his double duty to the welfare of his clients and to the safety of the general community, by and large concern for the client dominates his professional attitude. The parole agent ordinarily defines his role as representing his client’s best interests as long as these do not constitute a threat to public safety.” This statement suggests a dichotomy in the responsibility of parole (and probation) officers; these must look out for the best interest of the client as well as looking out for the best interest of the public. This fact frequently enters into politics. Liberals tend to focus on the treatment and rehabilitation of the offender, and conservatives focus more on the safety of the public and just deserts for the offender.
From the perspective of the parole officers, they must perform law enforcement duties that are designed to protect the public safety. These functions very much resemble the tasks of police officers. They are also officers of the court, and are responsible for enforcing court orders. These orders often include such things as drug testing programs, drug treatment programs, alcohol treatment programs, and anger management programs. Officers are often required to appear in court and give testimony regarding the activities of their clients. They frequently perform searches and seize evidence of criminal activity or technical violations. The courts often ask officers to make recommendations when violations do occur. Officers may recommend that violators be sent to prison, or continue on probation or parole with modified conditions.
There is ambivalence about the role of probation and parole officers within the criminal justice community. This has to do with an artificial dichotomy, often being characterized as police work versus social work. The detection and punishment of law and technical violations are characterized as the law enforcement role. The rehabilitation and reintegration of the offender are regarded as the social work role. Officers tend to lean more heavily toward one of these objectives than the other. Some officers embrace the law enforcement perspective, and seek strict compliance with the law and conditions of parole. Other officers view themselves more as counselors, helping the offender reform, and brokering community resources to help resolve problems. Which model a particular officer exemplifies has many influences. The officer’s personal beliefs, the dominate culture of the local office, the policy dictates of agency heads, and legislative enactments driven by political philosophies all play a role in shaping the working personality of each officer. The most effective officers are likely to be hybrids that fall somewhere in between the two archetypes.
Intermediate Sanctions
Traditionally, a person convicted of an offense was sentenced to probation, or sentenced to prison. There was no middle ground. The purpose of intermediate sanctions is to seek that middle ground by providing a punishment that is more severe than probation alone, yet less severe than a period of incarceration. Perhaps the most common among these alternatives is Intensive Supervision Probation (ISP). Offenders given to this sort of intermediate sanction are assigned to an officer with a reduced caseload. Caseloads are reduced in order to provide the officer with more time to supervise each individual probationer. Frequent surveillance and frequent drug testing characterize most ISP programs. Offenders are usually chosen for these programs because they have been judged to be at a high risk for reoffending.
Another common type of alternative to prison is the work release program. These programs are designed to maintain environmental control over offenders while allowing them to remain in the workforce. Most often, offenders sentenced to a work-release program reside in a work release center, which can be operated by a county jail, or be part of the state prison system. Either way, work-release center residents are allowed to leave confinement for work-related purposes. Otherwise, they are locked in a secure facility.
Correctional boot camps are facilities run along similar lines to military boot camps. Military-style discipline and structure along with rigorous physical training are the hallmarks of these programs. Usually, relatively young and nonviolent offenders are sentenced to terms ranging from three to six months in boot camps. Research has found that convicts view boot camps as more punitive than prison, and would prefer prison sentence to being sent to boot camp. Research has also shown that boot camp programs are no more effective at reducing long-term recidivism than other sanctions.
Key Terms
Absconder, Active Supervision, Community Corrections, Conditions of Parole, Gagnon v. Scarpelli (1973), Inactive Supervision, John Augustus, Parole, Parole Officer, Parolee, Revocation, Split Sentence, Technical Violation, Violator, Work Release Program
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Criminal Justice | Section 6.5: Probation, Parole, and the Law
Criminal Justice
An Overview of the System
ADAM J. MCKEE
Section 6.5: Probation, Parole, and the Law
For most of the history of probation and parole in the United States, offenders were viewed as having received a gift from the state when they were not sent to prison. Because being on probation or parole was viewed as a privilege conferred by the state, most states believed that they were under no obligation to provide probationers and parolees with the elements of due process they were afforded prior to conviction. In today’s legal landscape, the Supreme Court has intervened and now probationers and parolees enjoy some, but not all, of the protections afforded by the Constitution. Note that most of the Supreme Court decisions regarding the rights of probationers and parolees blur the distinction. That is, most of the Court’s rulings on probation issues apply to parole as well, and vice versa.
Revocation of Parole
Implicit in the criminal justice system’s concern with parole violations is the idea that individuals on parole are entitled to retain their liberty as long as they largely abide by the conditions of parole (or probation). When parolees do fail to live up to these standards, their parole can be revoked. The first step in the parole revocation process involves answering a factual question: whether the parolee has in fact acted in violation of one or more conditions of his or her parole. Only if it is determined that the parolee did violate the conditions does the second question arise: should the parolee be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation?
The second question involves the application of expertise by the parole authority in making a prediction as to the ability of the individual to live in society without committing antisocial acts. This part of the decision, too, depends on facts, and therefore it is important for the parole board to know not only that some violation was committed but also to know accurately how many and how serious the violations were. Yet this second step, deciding what to do about the violation once it is identified, is not purely factual but also predictive and discretionary.
Parole revocation is very serious for the offender. If a parolee is returned to prison, he or she usually receives no credit for the time “served” on parole. Thus, the violator may face a potential of substantial imprisonment. Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions. This means that the legal standards for parole revocation are not the same as a finding of guilt in criminal court.
DUE PROCESS
The liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a “grievous loss” on the parolee and often on others. Historically, it was common for judges to speak of this problem in terms of whether the parolee’s liberty was a “right” or a “privilege.” By whatever name, the Supreme Court has determined that liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Because of this, the courts have determined that its termination calls for some orderly process, however informal.
In Morrissey v. Brewer (1972), the Supreme Court refused to write a code of procedure for parole revocation hearings; that, they said, is the responsibility of each State. In this case, the court pointed out that most States have set out procedures by legislation. The Supreme Court did establish a list of minimum due process requirements that must be followed in all revocation proceedings. They include (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.
Specifically, then, Morrissey held that a parolee is entitled to two hearings, one a preliminary hearing at the time of his arrest and detention to determine whether there is probable cause to believe that he has committed a violation of his parole, and the other a somewhat more comprehensive hearing prior to the making of the final revocation decision.
In Gagnon v. Scarpelli (1973), the court considered the problem of probation revocation hearings. In Scarpelli, the court stated:
Petitioner does not contend that there is any difference relevant to the guarantee of due process between the revocation of parole and the revocation of probation, nor do we perceive one. Probation revocation, like parole revocation, is not a stage of a criminal prosecution but does result in a loss of liberty. Accordingly, we hold that a probationer, like a parolee, is entitled to a preliminary and a final revocation hearing, under the conditions specified in Morrissey v. Brewer.
In Mempa v. Rhay (1967), the Court held that a probationer is entitled to be represented by appointed counsel at a combined revocation and sentencing hearing. Reasoning that counsel is required “at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.”
The Fourth Amendment
As with due process rights, a person’s Fourth Amendment rights are not nullified just because they are convicted of a crime. What makes probationers and parolees different than the average citizen are their conditions of release. Most states require parolees to give up their right to be free from unreasonable searches as part of their conditions. Because the parolee is giving up Fourth Amendment rights, this element is often referred to as a Fourth waiver. The rules that govern officer conduct vary from state to state. In some states, an officer must have reasonable suspicion before conducting a probation search. In many states, an officer can conduct a suspicionless search at any time, without reason to believe that the offender committed a new crime. Who may search also varies from jurisdiction to jurisdiction. Some jurisdictions only allow probation and parole officers to search without probable cause, and some extend this authority to police officers as well.
Conditions of Probation and Parole
As previously discussed, offenders are only granted probation or parole if they agree to abide by certain, specified conditions. These can be general conditions that apply to all offenders released in a particular jurisdiction, or they can be tailored to the special needs of a particular offender. The intent of these conditions is to help ensure that the dual objectives of control and rehabilitation are met. Because of the fragmented nature of courts in the United States, there is a great deal of variability in the philosophy and practice of imposing these conditions.
The power to impose conditions of probation and parole is most often vested in the courts. Judges have immense discretion when it comes to choosing conditions. Most courts rely on community corrections officers to make suggestions, but the final say us up to the judge. This wide discretion is not, however, without bounds.
CLARITY
Recall the void for vagueness doctrine discussed in the criminal law chapter. The basis of this legal limit on the power of lawmakers is that it is fundamentally unfair when a reasonable person cannot figure out what exactly a law prohibits. The courts have viewed conditions of probation in the same light. In other words, if the offender cannot figure out what exactly is prohibited because the specification of the condition is too vague, then the condition is unconstitutional. In practice, this means that conditions of probation can vary widely in subject, purpose, and scope, but what is prohibited (or mandated) must be specified in such a way that there is no confusion as to what is required. Conditions that are crafted in vague terms such as “must live honorably” will be struck down by the courts.
REASONABLENESS
In the context of probation and parole conditions, the term reasonableness is often synonymous with realistic. The basic requirement is that the conditions set forth by the judge must be such that the offender has the ability to abide by them. If the offender is likely to fail because the conditions cannot possibly be complied with, then the condition will be deemed not reasonable by the courts. It would be unreasonable, for example, to order an indigent offender to pay $10,000 a month in restitution. Addicts have argued that it is unreasonable to expect them to refrain from drug and alcohol use because of the nature of addiction. These claims fail the vast majority of the time. Various courts have reasoned that drug use is illegal, and illegal behavior by probationers and parolees cannot be tolerated.
Related to Protection and Rehabilitation
Since the major goals of probation and parole are to protect society from crime and to rehabilitate the offender, conditions of probation and parole must be reasonably related to one or both of these objectives. If a condition does not relate to these objectives, it will likely be struck down by the courts. In practice, this gives judges very wide latitude in selecting conditions that may be related to these goals. Many courts have struck down conditions of probation that were obviously intended to be “scarlet letter” punishments.
CONSTITUTIONALITY
Several courts have nullified conditions that were contrary to constitutionally protected actions. When constitutional rights are at stake, the government will usually have to establish a compelling state interest in violating the right. In other words, the appellate court will balance the interest the state has in curtailing the right with the cost to the offender. Some rights are afforded greater protection by the court than other rights. These special liberties are often referred to as fundamental rights. The freedom of the press, freedom of assembly, freedom of speech, and freedom of religion are among these fundamental rights. For example, courts have struck down conditions that required and offender to attend Sunday school on a regular basis. The court reasoned that forcing someone to participate in a church activity violated the offender’s freedom of religion. As previously discussed, Fourth Amendment rights are not nearly so well protected.
Key Terms
Conditions of Release, Fourth Waiver, Fundamental Rights, Mempa v. Rhay (1967), Morrissey v. Brewer (1972), Parole Revocation