Chapter 12 Community Supervision and the Law: Probation and Parole

• Jurisdiction: United States

Chapter 12 Community Supervision and the Law: Probation and Parole

Community supervision is designed, among many other things, to alleviate prison overcrowding while promoting the rehabilitation and reintegration of convicted offenders to normative society. Probation and parole are the two primary forms of community supervision in the United States, and while many people use the terms interchangeably, they are not the same. Specifically, probation is a sentence by which the court requires offenders to serve a period of correctional supervision in the community in lieu of incarceration, as discussed earlier in Chapter 3. Accordingly, convicted offenders are placed under the care of community agents of supervision, namely probation officers, who are responsible for an offender's compliance with a set conditions in lieu of any period of incarceration, which is considered to be suspended as long as the offender complies with the conditions set forth by the court and probation agency. The aim of probation is to offer young, first-time, or low-risk offenders the opportunity of rehabilitation while avoiding the harmful consequences and stigma-tization of incarceration. As such, probation is also aimed at harm reduction, as it allows convicted offenders to remain in their communities with their families and thus avoid unnecessary disruption to these support networks. Parole is a period of conditional supervised release in the community following an active imprisonment term. In that regard, it is a conditioned release — a conditional freedom—in which prisoners are released early and serve their remaining sentence in the community under the supervision of a parole officer. It is similar to probation, however, in that the aim of early release is improved reintegration into society. At the same time, parole aims to protect the public by monitoring parolees, controlling their behavior, and helping them adjust to the world outside prison.

Because parole and probation occur at different points in the judicial process, judicial interventions in these two matters will receive different attention in certain circumstances. For example, the decision to grant or deny early release on parole has been determined by the courts to be a matter of institutional and executive discretion. This means that the courts decided not to interfere in administrative decision-making. While there is no constitutional right to parole or sentence commutation, the Supreme Court has held that when parole is a possibility, correctional administrators should follow due process in making their decision. This merely requires that a parole board hold a hearing and provide inmates with written reasons for its decision to grant or deny parole. When it comes to revocation of parole, a similar process to that of revocation of probation, the courts have focused their attention more closely on issues of due process as these relate to changing the conditions of punishment.

Of importance and relevance to the discussion is the 13th Amendment to the Constitution. While the Amendment aimed to abolish slavery, it also created a condition by which those convicted of a crime may forfeit their rights to the state, as if they were slaves. The Amendment reads as follows:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

It is within these parameters that revocation proceedings should be viewed, as often the courts are confronted with the requests to evaluate the legality of various processes that lead to revocation hearing. The argument set forth by the Thirteenth Amendment is that offenders who are sentenced to probation have been duly convicted of a crime and as such, lose some of their constitutional rights and in particular, those rights that pertain to privacy and search and seizure. Such an argument also applies to offenders that were granted early release on parole. However, due process must be followed to enable justified revocation.

Legal Rights of Probationers

In addition to their duties of supervision, probation officers are responsible for completing presentence investigation reports (PSIs) on every person who has been convicted of a crime. Indeed, completing these reports is often more time-consuming for probation officers than their supervision duties. These reports document an offender's criminal history, determine whether any treatment is necessary (especially mental health or substance abuse treatment), and most important, provide judges with the necessary information for sentencing, and even a recommendation for best practices that will fit the offender and his or her crime, within the limitations of the prescribed penal code. Thus, PSIs are extremely important to the sentencing process, yet it is not a given that offenders or their legal representation will be able to view these reports. This causes concern when an offender believes that an inaccuracy or a downright falsehood may be included in a report that carries weight in a judge's sentencing decision. Therefore, the courts have heard several cases concerning PSIs.

In Williams v. New York, a jury in a New York state court convicted Williams of first-degree murder and recommended a life sentence. The judge, however, imposed a death sentence. In doing so, the judge noted the findings of the jury, as well as the findings of the probation department, but did not disclose the latter findings to the defense. Williams argued that this violated his right to due process and his ability to confront witnesses, as guaranteed by the Fourteenth and Sixth Amendments, respectively. However, the Supreme Court ruled that Williams had no such right. According to the Court, the right to confront witnesses is a trial right, not a sentencing right. The Court ruled that judges have wide discretion in the sources and types of information that they use when deciding on a sentence. Furthermore, the Court ruled that even though Williams was given a death sentence, this did not give him extra rights beyond a normal offender being sentenced. Many years after the Williams v. New York decision, in 1977, the Supreme Court came to a slightly different conclusion in Gardner v. Florida. In this case, the Court ruled that, based on "constitutional developments" in which capital punishment had been given more scrutiny, when defendants faced the possible imposition of the death penalty, then any information contained in a PSI must be provided to them.

Civil Rights

One common constraint on probationers is that whenever they are asked a question by their probation officer, not only are they supposed to answer the question, but they are supposed to answer truthfully. However, it appears from the case of Minnesota v. Murphy that probationers should in some instances be careful about what they disclose. In that case, Marshall Murphy had been questioned by police on two separate occasions concerning the rape and murder of a teenage girl. No charges were brought against Murphy or anyone else. Six years later, Murphy pleaded guilty to false imprisonment in an unrelated case, for which he was given a 16-month suspended sentence and three years of probation. While on probation, Murphy had disclosed to his counselor, during a confidential treatment session, that he was responsible for the murder for which he had been previously questioned. Later, a probation officer, noting that Murphy was supposed to be truthful with him as a condition of his probation, asked Murphy if he had committed the murder. The probation officer did not read Murphy any Miranda warnings before asking the question. Murphy admitted to committing the crime, and was then indicted for murder. After this, Murphy challenged the introduction of the confession into evidence, arguing that this violated his Fifth and Fourteenth Amendment rights. Ultimately, the Supreme Court ruled that the probation officer did not need to read Murphy his Miranda rights, because Murphy was not in custody. Furthermore, the Court ruled that Murphy voluntarily made the statement and if he did not want the statement to be used against him, he should have invoked his Fifth Amendment right to remain silent.

In addition to having to report to a probation officer...