Punishment

Punishment-Justice for the Unjust Essay P A R T 4 Corrections RIGHTS OF THE CONVICTED AND IMPRISONED Common law, constitutional, statutory, and humanitarian rights of the convicted and imprisoned:  ¦  ¦  ¦  ¦  ¦  ¦  ¦ A right against cruel or unusual punishment A right to protection from physical harm A right to sanitary and healthy conditions of confinement A limited right to legal assistance while imprisoned A limited right to religious freedom while imprisoned A limited right to freedom of speech while imprisoned A limited right to due process prior to denial of privileges These individual rights must be effectively balanced against these public-order concerns:  ¦  ¦  ¦  ¦  ¦  ¦  ¦  ¦ Punishment of the guilty Safe communities The reduction of recidivism Secure prisons Control over convicts The prevention of escape Rehabilitation Affordable prisons ISBN: 0-536-09974-X How does our system of justice work toward balance? Criminal Justice Today: An Introductory Text for the Twenty-First Century, Ninth Edition, by Frank Schmalleger. Published by Prentice Hall. Copyright  © 2007 by Pearson Education, Inc. Punishment—Justice for the Unjust? The great Christian writer C. S. Lewis (1898–1963) once remarked that if satisfying justice is to be the ultimate goal of Western criminal justice, then the fate of offenders cannot be dictated merely by practical considerations. â€Å"The concept of just desert is the only connecting link between punishment and justice,† Lewis wrote. â€Å"It is only as deserved or undeserved that a sentence can be just or unjust,† he concluded. Once a person has been arrested, tried, and sentenced, the correctional process begins. Unlike Lewis’s exhortation, however, the contemporary American correctional system—which includes probation, parole, jails, prisons, capital punishment, and a variety of innovative alternatives to traditional sentences—is tasked with far more than merely carrying out sentences. We also ask of our correctional system that it ensure the safety of law-abiding citizens, that it select the best alternative from among the many available for handling each offender, that it protect those under its charge, and that it guarantee fairness in the handling of all with whom it comes into contact. This section of Criminal Justice Today details the development of probation, parole, community corrections, and imprisonment as correctional philosophies; describes the nuances of prison and jail life; discusses special issues in contemporary corrections (including AIDS, geriatric offenders, and female inmates); and summarizes the legal environment which both surrounds and infuses the modern-day practice of corrections. Characteristic of today’s correctional emphasis is a society-wide push for harsher punishments. The culmination of that strategy, however, is dramatically overcrowded correctional institutions, the problems of which are also described. As you read through this section, encountering descriptions of various kinds of criminal sanctions, you might ask yourself, â€Å"When would a punishment of this sort be deserved? † In doing so, remember to couple that thought with another question: â€Å"What are the ultimate consequences (for society and for the offender) of the kind of correctional program we are discussing here? Unlike Lewis, you may also want to ask, â€Å"Can we afford it? † 12 Probation, Parole, and Community Corrections 13 14 Prisons and Jails Prison Life ISBN: 0-536-09974-X Criminal Justice Today: An Introductory Text for the Twenty-First Century, Ninth Edition, by Frank Schmalleger. Published by Prentice Hall. Copyright  © 2007 by Pearson Education, Inc. C H A P T E R 12 Probation, Parole, and Community Corrections LEARNING OBJECTIVES After reading this chapter, you should be able to:  ¦ OUTLINE  ¦  ¦  ¦  ¦ Introduction What Is Probation? What Is Parole? Probation and Parole: The Pluses and Minuses The Legal Environment The Job of Probation and Parole Officers Intermediate Sanctions The Future of Probation and Parole  ¦  ¦  ¦  ¦  ¦  ¦  ¦  ¦  ¦ Explain the differences between probation and parole, and describe the advantages and disadvantages of each. Describe in detail the legal environment surrounding the use of probation and parole, and know the names of significant court cases. Describe the federal probation system. Explain the nature of the job of probation and parole officers. List the advantages of intermediate sanctions over more traditional forms of sentencing. Describe the likely future of probation and parole. â€Å" This year, some 600,000 inmates will be released from prison back into society. We know from long experience that if they can’t find work, or a home, or help, they are much more likely to commit crime and return to prison. . . . America is the land of second chance, and when the gates of the prison open, the path ahead should lead to a better life. Criminal Justice Today: An Introductory Text for the Twenty-First Century, Ninth Edition, by Frank Schmalleger. Published by Prentice Hall. Copyright  © 2007 by Pearson Education, Inc. —President George W. Bush1 ISBN: 0-536-09974-X â€Å" Community corrections is an integral part of the criminal justice system and should be fully implemented and promoted in order to save expensive and scarce jail and prison space for violent and serious offenders. —National Association of Counties, Justice and Public Safety Steering Committee2 † ISBN: 0-536-09974-X Cr iminal Justice Today: An Introductory Text for the Twenty-First Century, Ninth Edition, by Frank Schmalleger. Published by Prentice Hall. Copyright  © 2007 by Pearson Education, Inc. 452 PA R T 4 Corrections KEY CONCEPTS TERMS caseload community corrections community service conditions of parole (probation) home confinement intensive probation supervision (IPS) intermediate sanctions mixed sentence parole parole board parole (probation) violation parole revocation prisoner reentry probation probation revocation remote location monitoring restitution revocation hearing shock incarceration shock probation split sentence CASES Bearden v. Georgia Escoe v. Zerbst Gagnon v. Scarpelli Greenholtz v. Nebraska Penal Inmates Griffin v. Wisconsin Mempa v. Rhay Minnesota v. Murphy Morrissey v. Brewer Pennsylvania Board of Probation and Parole v. Scott U. S. v. Knights The original full-text court opinion for each of these cases is available on the CD-ROM that accompanies this book. Introduction Hear the author discuss this chapter at cjtoday. com On February 1, 2004, 11-year-old Carlie Brucia was abducted as she took a shortcut to her home from a slumber party at a friend’s house. Video footage of Carlie’s abduction was captured by an unattended car wash security camera, which showed the girl being grabbed by an unidentified man and led away. Carlie’s body was discovered days later in a church parking lot a few miles from her home. Shortly after her abduction, authorities announced the arrest of Joseph P. Smith, a 37-year-old auto mechanic and father of three who had a lengthy criminal record. Authorities charged Smith with Carlie’s murder and said that they would try him for first-degree homicide, kidnapping, and capital sex ual battery. It was soon learned that Smith had been arrested at least 13 times in Florida in the 11 years before Carlie’s abduction and had previously been charged with kidnapping and false imprisonment. Only a month before Carlie’s murder, a probation officer had asked a Florida judge to declare Smith a probation violator because of unpaid fines and court costs that he had been ordered to pay. The probation officer’s request was denied and Smith remained free. In 2005, convicted sex offender John Evander Couey, 46, was arrested and charged with the rape and murder of nine-year-old Jessica Lunsford of Homosassa, Florida. 4 Prosecutors revealed tear-jerking details of the last moments of Jessica’s life, saying that she had been tied up and buried alive, kneeling and clutching a purple stuffed dolphin. Like the Smith case, it turns out that Couey had a long record, including 24 arrests for burglary, carrying a concealed weapon, indecent exposure, and other offenses. He had previously been arrested and charged with fondling a child. Although Couey was sentenced to 10 years in prison, he was paroled in 1980 because of prison overcrowding. In yet another story that came out of Florida in 2005, the body of 13-year-old Sarah Lunde was discovered in a fish pond about a mile from her Hillsborough County home. 5 The man arrested in her killing, 36-year-old David Onstott, has a lengthy criminal record dating back to 1986, including charges of exual abuse and attempted murder. After his arrest Onstott confessed to choking Lunde and dumping her body near her home. Stories like those involving Brucia, Lunsford, and Lunde appear all too frequently in the media and cast a harsh light on the early release and poor supervision of criminal offenders. This chapter takes a close look at the realities behind the practice of what we call community corrections. Community corrections, also termed community-based corrections, is a sentencing style that depends less on traditional confinement options and more on correctional resources available in the community. Community corrections includes a wide variety of sentencing options, such as probation, parole, home confinement, the electronic monitoring of offenders, and other new and developing programs—all of which are covered in this chapter. Learn more about comCriminal Justice Today: An Introductory Text for the Twenty-First Century, Ninth Edition, by Frank Schmalleger. Published by Prentice Hall. Copyright  © 2007 by Pearson Education, Inc.  ¦ Lecture Note Discuss community corrections, including its assumptions, its forms, and its prevalence. Class Activity Visit a local criminal court. Observe the sentencing choices of individual judges. Are some judges more likely to order probation than others? If so, how great is the difference? community corrections The use of a variety of officially ordered programbased sanctions that permit convicted offenders to remain in the community under conditional supervision as an alternative to an active prison sentence.  ¦ ISBN: 0-536-09974-X Probation, Parole, and Community Corrections CHAPTER 12 453 A car wash surveillance camera in Sarasota, Florida, showing 11-year-old Carlie Brucia being abducted in 2004. Brucia’s body was later discovered at a church three miles from the abduction site. Police quickly arrested Joseph P. Smith, 37, a chronic drug abuser with a long arrest record, and charged him with kidnapping and murder. Court records showed that Smith had violated the conditions of his probation and should have been imprisoned at the time of the abduction. In 2005, Smith was tried and convicted of kidnapping, raping, and strangling Brucia. AP Wide World Photos munity corrections by visiting the International Community Corrections Association via Web Extra 12–1 at cjtoday. com. What Is Probation? Probation, one aspect of community corrections, is â€Å"a sentence served while under supervision in the community. †6 Like other sentencing options, probation is a court-ordered sanction. Its goal is to retain some control over criminal offenders while using community programs to help rehabilitate them. Most of the alternative sanctions discussed later in this chapter are, in fact, predicated on probationary sentences in which the offender is ordered to abide by certain conditions—such as participation in a specified program—while remaining free in the community. Although the court in many jurisdictions can impose probation directly, most probationers are sentenced first to confinement but then immediately have their sentences suspended and are remanded into the custody of an officer of the court—the probation officer. Probation has a long history. By the fourteenth century, English courts had established the practice of â€Å"binding over for good behavior,†7 in which offenders could be entrusted into the custody of willing citizens. American John Augustus (1784–1859) is generally recognized as the world’s first probation officer. Augustus, a Boston shoemaker, attended sessions of criminal court in the 1850s and offered to take carefully selected offenders into his home as an alternative to imprisonment. 8 At first, he supervised only drunkards, but by 1857 Augustus was accepting many kinds of offenders and was devoting all his time to the service of the court. 9 Augustus died in 1859, having bailed out more than 2,000 convicts. In 1878, the Massachusetts legislature enacted a statute that authorized the city of Boston to hire a salaried probation officer. Missouri followed suit in 1897, along with Vermont (1898) and Rhode Island (1899). 0 Before the end of the nineteenth century, probation had become an accepted and widely used form of community-based supervision. By 1925, all 48 states had adopted probation legislation. In that same year, the federal government enacted legislation enabling federal district court judges to appoint paid probation officers and to impose probationary terms. 11 probation A senten ce of imprisonment that is suspended. Also, the conditional freedom granted by a judicial officer to a convicted offender, as long as the person meets certain conditions of behavior.  ¦ Lecture Note Explain probation as a sentence of imprisonment that is suspended. Tell the class that offenders who violate the conditions of probation may be sent to prison to serve the remainder of their sentences. ISBN: 0-536-09974-X The Extent of Probation Today, probation is the most common form of criminal sentencing in the United States. Between 20% and 60% of those found guilty of crimes are sentenced to some form of probation. Figure 12–1 shows that 59% of all offenders under correctional supervision in the United States Criminal Justice Today: An Introductory Text for the Twenty-First Century, Ninth Edition, by Frank Schmalleger. Published by Prentice Hall. Copyright  © 2007 by Pearson Education, Inc. Accepting released offenders into the community without a period of supervised release is morally unsatisfying; they have not yet earned their place at our table. —Jeremy Travisi 454 PA R T 4 Corrections CJ NEWS Getting Tough on Paroled Sex Offenders From the moment he enters the sex offender’s apartment, North Dakota parole officer Brian Weigel is looking for contraband. He kicks aside a blanket on the floor, peers down and spies a video game rated for mature players—complete with buxom computer-generated women on the cover. And despite protests from the man who lives here, the video game is coming with Weigel. In the year since college student Dru Sjodin was abducted from a North Dakota parking lot and killed, allegedly by a convicted sex offender, the state has worked to make its sex offender laws among the strictest in the nation. Officers such as Weigel have to determine whether an offender is sticking to restrictions that often include a ban on sexual material in the home. â€Å"There’s a real threat,† said Weigel, one of five sex offender specialists in the state’s parole and probation division. If these guys reoffend, there’s going to be another real victim out there. † Weigel’s unit is new, part of the state’s heightened enforcement since Sjodin’s abduction a year ago. The 22-year-old University of North Dakota student’s body was found in 2004 in a ravine in Minnesota. The man charged with abducting Sjodin and killing her, Alfonso Rodr iguez, is a convicted sex offender who had been released from prison six months before she disappeared. He has pleaded not guilty to a federal charge of kidnapping resulting in death. Prosecutors are seeking the death penalty. The passage of a year has not softened the blow for Sjodin’s family. â€Å"Every day weighs heavy in our hearts,† said Linda Walker, Sjodin’s mother. â€Å"There isn’t one day that we don’t think of her, even from the moment we wake up to the moment we go to sleep. † The case drew national attention as volunteers, National Guard soldiers and law enforcement officers searched the region for months, looking for Sjodin. Her body wasn’t found until after the snow melted. The U. S. Senate endorsed a bill called â€Å"Dru’s Law,† which would set up a national public database of sex offenders and require strict monitoring of high-risk sex offenders for a year after their release from prison. The bill was introduced by Sen. Byron Dorgan, D–N. D. ISBN: 0-536-09974-X University of North Dakota student Dru Sjodin, 22 (left), was abducted from a shopping mall, raped, and murdered in 2003. Known sex offender Alfonso Rodriguez, Jr. , 50 (right), stands accused of the crimes. He had been released from prison six months before Sjodin disappeared after having served 23 years for stabbing and trying to kidnap a young woman. Sjodin’s brutal murder has spurred both North Dakota and Minnesota (where Rodriguez lived) into making their sex offender laws among the toughest in the nation. Grand Forks Police Department, Reuters, Landov LLC, and AP Wide World Photos Criminal Justice Today: An Introductory Text for the Twenty-First Century, Ninth Edition, by Frank Schmalleger. Published by Prentice Hall. Copyright  © 2007 by Pearson Education, Inc. Probation, Parole, and Community Corrections CHAPTER 12 455 CJ NEWS (continued) â€Å"The entire country was looking for Dru Sjodin,† Dorgan said. The case was particularly troubling here and in neighboring Minnesota, where Rodriguez lived. The convicted rapist hadbeen released even though he had been classified as a Level 3 offender, meaning he had the highest risk of committing another sex crime. Both states have since moved to crack down on sex offenders. In North Dakota, the new parole unit is partnered with an expanded sex offender program at the state psychiatric hospital in Jamestown for the most serious sexual predators, who are recommended for civil commitment after their release. The number of people civilly committed has doubled to 23 in less than a year. In Minnesota, two separate commissions have been working on new sentencing guidelines since the Sjodin case. One plan would double the maximum sentences for sex crimes and impose a life term on any repeat sex offender. It also would set up a board to review the cases of inmates who have served their minimum sentences. More restrictions may be on the way. When North Dakota lawmakers convene their next session, they will face a list of proposals from a task force launched by Gov. John Hoeven. Among them are life sentences without parole for gross sexual offenses that result in death, and supervised probation for all other felony sex offenses. The panel also is seeking a stronger method of tracking sex offenders, using global positioning devices that could alert authorities to an offender’s location at all times, said Duane Houdek, an attorney for Hoeven. Although North Dakota’s crime rate remains low, getting tough on sex offenders will help preserve that security, said state Rep. Lois Delmore. â€Å"It means we’re not just assuming that we’re in North Dakota and everyone’s healthy and happy and things like this can’t happen,† she said. For the latest in crime and justice news, visit the Talk Justice news feed at http://www. crimenews. info. Source: â€Å"N. D. Is Tougher on Sex Offenders after Abduction Last Year: New Parole Unit Keeps Tight Guard,† Associated Press, November 21, 2004.  © Copyright Associated Press. All rights reserved. Distributed by Valeo IP. Valeo Clearance Lincense 3. 5721. 4501570-109704. as of January 1, 2005, were on probation. Not shown is that the number of offenders supervised yearly on probation has increased from slightly more than 1 million in 1980 to over 4 million today—almost a 300% increase. 12 Even violent offenders stand about a one in five chance of receiving a probationary term, as Figure 12–2 shows. A Bureau of Justice Statistics study of felony sentences found that 5% of people convicted of homicide were placed on probation, as were 21% of convicted sex offenders. 13 Twelve percent of convicted robbers and 30% of those committing aggravated assault were similarly sentenced to probation rather than active prison time. In one example, 47-year-old Carrie Mote of Vernon, Connecticut, was sentenced to probation for shooting her fiance in the chest with a . 38-caliber handgun after he called off their wedding. 4 Mote, who faced a maximum of 20 years in prison, claimed to be suffering from diminished psychological capacity at the time of the shooting because of the emotional stress brought on by the canceled wedding.  ¦ Lecture Note Referring to Figure 12–1, describe the percentages of individuals under the various types of correctional supervision in the United States. Ask why probation is such a commonly used alternative. FIGURE 12–1 Parole 11% Jail 10% Probation 59% ISBN: 0-536-09974-X Offenders under correctional supervision in the United States, by type of supervision. Source: Bureau of Justice Statistics, Correctional Surveys. Prison 20% Criminal Justice Today: An Introductory Text for the Twenty-First Century, Ninth Edition, by Frank Schmalleger. Published by Prentice Hall. Copyright  © 2007 by Pearson Education, Inc. 456 PA R T 4 Corrections FIGURE 12–2 Percentage of convicted felony offenders receiving probation, by type of crime. Source: Jodi M. Brown and Patrick A. Langan, Felony Sentences in the United States, 1996 (Washington, DC: Bureau of Justice Statistics, 1999). 40 35 30 25  ¦ Lecture Note Examine Figure 12–2. Ask the class to discuss the merits of granting probation to violent offenders. Clinton Vs. Lazio EssayParole fulfills a similar purpose for offenders released from prison. Both probation and parole provide a number of advantages over imprisonment, including these:  ¦ ISBN: 0-536-09974-X Lecture Note Describe probation and parole revocation. Explain that, in most cases, revocation orders can be issued only after a hearing in front of a neutral body and that certain procedures must be followed. Lower cost. Imprisonment is expensive. Incarcerating a single offender in Georgia, for example, costs approximately $39,501 per year, while the cost of intensive probation is as little as $1,321 per probationer. 0 The expense of imprisonment in some other states may be more than three times as high as it is in Georgia. Criminal Justice Today: An Introductory Text for the Twenty-First Century, Ninth Edition, by Frank Schmalleger. Published by Prentice Hall. Copyright  © 2007 by Pearson Education, Inc. Probation, Parole, and Community Corrections CHAPTER 12 461  ¦ In creased employment. Few people in prison have the opportunity for productive employment. Work-release programs, correctional industries, and inmate labor programs operate in most states, but they usually provide only low-paying jobs and require few skills. At best, such programs include only a small portion of the inmates in any given facility. Probation and parole, on the other hand, make it possible for offenders under correctional supervision to work full-time at jobs in the â€Å"free† economy. Offenders can contribute to their own and their families’ support, stimulate the local economy by spending their wages, and support the government through the taxes they pay. Restitution. Offenders who are able to work are candidates for court-ordered restitution. Society’s interest in restitution may be better served by a probationary sentence or parole than by imprisonment. Restitution payments to victims may help restore their standard of living and personal confidence while teaching the offender responsibility. Community support. The decision to release a prisoner on parole or to sentence a convicted offender to probation is often partially based on considerations of family and other social ties. Such decisions are made in the belief that offenders will be more subject to control in the community if they participate in a web of positive social relationships. An advantage of both probation and parole is that they allow the offender to continue personal and social relationships. Probation avoids splitting up families, while parole may reunite family members separated from each other by a prison sentence. Reduced risk of criminal socialization. Criminal values permeate prisons; prison has been called a â€Å"school in crime. † Probation insulates adjudicated offenders, at least to some degree, from these kinds of values. Parole, by virtue of the fact that it follows time served in prison, is less successful than probation in reducing the risk of criminal socialization. Increased use of community services. Probationers and parolees can take advantage of services offered through the community, including psychological therapy, substance abuse counseling, financial services, support groups, church outreach programs, and social services. While a few similar opportunities may be available in prison, the community environment itself can enhance the effectiveness of treatment programs by reducing the stigmatization of the offender and by allowing the offender to participate in a more â€Å"normal† environment. Increased opportunity for rehabilitation. Probation and parole can both be useful behavioral management tools. They reward cooperative offenders with freedom and allow for the opportunity to shape the behavior of offenders who may be difficult to reach through other programs.  ¦ Lecture Note List and discuss each of the advantages of probation and parole, such as lower costs versus imprisonment, the opportunity for restitution, and the reduced risk of criminal socialization. Thematic Question How well do the terms imposed on probationers and parolees serve the rights of individuals? How well do they serve the needs of the community? What issues or needs are not addressed but should be? Lecture Note List and discuss the disadvantages of probation and parole, including the relatively low degree of punishment inherent in both options. Ask students to decide whether the advantages outweigh the disadvantages and how such a decision might be reached in individual circumstances.  ¦  ¦  ¦  ¦  ¦  ¦  ¦ Disadvantages of Probation and Parole Any honest appraisal of probation and parole must recognize that they share a number of strategic drawbacks, such as these:  ¦ Relative lack of punishment. The â€Å"just deserts† model of criminal sentencing insists that punishment should be a central theme of the justice process. While rehabilitation and treatment are recognized as worthwhile goals, the model suggests that punishment serves both society’s need for protection and the victim’s need for revenge. Many view probation, however, as practically no punishment at all and it is coming under increasing criticism as a sentencing strategy. Parole is likewise accused of unhinging the scales of justice because (1) it releases some offenders early, even when they have been convicted of serious crimes, while some relatively minor offenders remain in prison, and (2) it is dishonest because it does not require completion of the offender’s entire sentence behind bars. Increased risk to the community. Probation and parole are strategies designed to deal with convicted criminal offenders. The release into the community of such offenders increases the risk that they will commit additional offenses. Community supervision can never be so complete as to eliminate such a possibility, and evaluations of parole have pointed out that an accurate assessment of offender dangerousness is beyond our present capability. 31 Increased social costs. Some offenders placed on probation and parole will effectively and responsibly discharge their obligations. Others, however, will become social liabilities. In addition to the increased risk of new crimes, probation and parole increase the chance that added expenses will accrue to the community in the form of child support, welfare costs, housing expenses, legal aid, indigent health care, and the like. The abolition of parole has been tried and has failed on a spectacular scale. . . . The absence of parole means that offenders simply walk out the door of prison at the end of a predetermined period of time, no questions asked. —American Probation and Parole Association and the Association of Paroling Authorities International ISBN: 0-536-09974-X  ¦ Criminal Justice Today: An Introductory Text for the Twenty-First Century, Ninth Edition, by Frank Schmalleger. Published by Prentice Hall. Copyright  © 2007 by Pearson Education, Inc. 462 PA R T 4 Corrections The Legal Environment  ¦ Thematic Question Do communities have the right to be informed when exconvicts are released from pri son? Do victims? How can we as a society balance the community’s right to selfprotection with individuals’ right to live where they choose, even in the case of ex-convicts? Lecture Note Explain that courts have not held probation and parole officers to the same standards as police officers in the gathering of evidence. Discuss the fact that probation and parole officers may turn incriminating statements made by clients over to prosecutors and that officers may enter a client’s home without a warrant.  ¦ revocation hearing A hearing held before a legally constituted hearing body (such as a parole board) to determine whether a parolee or probationer has violated the conditions and requirements of his or her parole or probation.  ¦ Thematic Question This textbook emphasizes the divergent orientations represented by individualrights advocates and publicorder advocates. In your opinion, which of the two perspectives would be most likely to favor the use of parole as a sentencing option? Which would favor probation? Why?  ¦ Thematic Question Consider the diverse sentencing goals identified in Chapter 11. Which of the goals identified there are most likely to be met through the use of probation? Which through parole? Why? Ten especially significant U. S. Supreme Court decisions provide the legal framework for probation and parole supervision. Among those cases, that of Griffin v. Wisconsin (1987)32 may be the most significant. In Griffin, the Supreme Court ruled that probation officers may conduct searches of a probationer’s residence without either a search warrant or probable cause. According to the Court, â€Å"A probationer’s home, like anyone else’s, is protected by the Fourth Amendment’s requirement that searches be ‘reasonable. ’† However, â€Å" State’s operation of a probation system . . . presents ‘special needs’ beyond normal law enforcement that may justify departures from the usual warrant and probable cause requirements. Probation, the Court concluded, is similar to imprisonment because it is a â€Å"form of criminal sanction imposed upon an offender after a determination of guilt. † Similarly, in the 1998 case of Pennsylvania Board of Probation and Parole v. Scott,33 the Court declined to extend the exclusionary rule to apply to sea rches by parole officers, even where such searches yield evidence of parole violations. In the words of the Court, â€Å"he Court has repeatedly declined to extend the rule to proceedings other than criminal trials. . . The social costs of allowing convicted criminals who violate their parole to remain at large are particularly high . . . and are compounded by the fact that parolees . . . are more likely to commit future crimes than are average citizens. † In 2001, the case of U. S. v. Knights34 expanded the search authority normally reserved for probation and parole officers to police officers under certain circumstances. Mark James Knights was a California probationer who had signed a standard state probation form agreeing to waive his constitutional protection against warrantless searches as a condition of his probation. The form did not limit such searches to probation officers but instead required that Knights submit to a search at any time, with or without a search or arrest warrant or reasonable cause, by any probation or law enforcement officer. When Knights came under suspicion of setting a fire that caused $1. 5 million in damages, police officers searched his home without a warrant. The search uncovered evidence that implicated Knights in the arson. A federal district court granted a motion by Knights’ attorneys to suppress the evidence because the search was for police investigatory purposes, rather than for probationary purposes. The Ninth Circuit Court affirmed the lower court’s decision. The U. S. Supreme Court disagreed, however, and held that the warrantless search of Knights’ residence, â€Å"supported by reasonable suspicion and authorized by a probation condition, satisfied the Fourth Amendment . . . as nothing in Knights’ probation condition limits searches to those with a ‘probationary purpose. ’† Other court cases focus on the conduct of parole or probation revocation hearings. Revocation is a common procedure. Annually, about 26% of adults on parole and 25% of those on probation throughout the United States have their conditional release revoked. 35 The supervising officer may request that probation or parole be revoked if a client has violated the conditions of community release or has committed a new crime. The most frequent violations for which revocation occurs are (1) failure to report as required to a probation or parole officer, (2) failure to participate in a stipulated treatment program, and (3) alcohol or drug abuse while under supervision. 6 Revocation hearings may result in an order that a probationer’s suspended sentence be made â€Å"active† or that a parolee return to prison to complete his sentence in confinement. In a 1935 decision (Escoe v. Zerbst 37) that has since been greatly modified, the U. S. Supreme Court held that probation â€Å"comes as an act of grace to one convicted of a crime† and that the revocation of probation without hearing or notic e to the probationer is acceptable practice. In 1967, however, in the case of Mempa v. Rhay,38 the Warren Court changed direction and declared that both notice and a hearing were required. The Court also held that the probationer should have the opportunity for representation by counsel before a deferred prison sentence could be imposed. 39 Two of the most widely cited cases affecting parolees and probationers are Morrissey v. Brewer (1972)40 and Gagnon v. Scarpelli (1973). 41 In Morrissey, the Court declared a need for procedural safeguards in revocation hearings involving parolees. After Morrissey, revocation proceedings would require that (1) the parolee be given written notice specifying the alleged violation; (2) evidence of the violation be disclosed; (3) a neutral and detached body constitute the hearing authority; (4) the parolee have the chance to appear and offer a defense, including testimony, documents, and witnesses; (5) the parolee have the right to cross-examine witnesses; and (6) a written statement be provided to the parolee at the conclusion of the hearing that includes the hearing body’s decision, the testimony considered, and reasons for revoking parole, if such occurs. 2 In 1973, the Court extended the procedural safeguards of Morrissey to probationers in Gagnon v. Scarpelli. Citing its own decision a year earlier in Morrissey v. Brewer, the Supreme Court ruled that probationers, because they face a substantial loss of liberty, were entitled to two hearings: (1) a preliminary hearing to determine whether there is â€Å"probable cause to believe that Criminal Justice Today: An Introductory Text for the Twenty-First Century, Ninth Edition, by Frank Schmalleger. Published by Prentice Hall. Copyright  © 2007 by Pearson Education, Inc. ISBN: 0-536-09974-X Probation, Parole, and Community Corrections CHAPTER 12 463 he has committed a violation of his parole† and (2) â€Å"a somewhat more comprehensive hearing prior to the making of the final revocation decision. † The Court also ruled that probation revocation hearings were to be held â€Å"under the conditions specified in Morrissey v. Brewer. † In Gagnon and later cases, however, the Court reasserted that probation and parole revocation hearings were not a stage in the criminal prosecution process, but a simple adjunct to it, even though they might result in substantial loss of liberty. The difference is a crucial one, for it permits hearing boards and judicial review officers to function, at least to some degree, outside of the adversarial context of the trial court and with lessened attention to the rights of the criminally accused guaranteed by the Bill of Rights. In 1997, the U. S. Supreme Court extended the rationale found in Morrissey and Gagnon to inmates set free from prison under early-release programs. In a unanimous decision, the Court held that â€Å"an inmate who has been released under a program to relieve prison crowding cannot be reincarcerated without getting a chance to show at a hearing that he has met the conditions of the program and is entitled to remain free. †43 In 1979, the case of Greenholtz v. Nebraska Penal Inmates44 established that parole boards do not have to specify the evidence used in deciding to deny parole. The Greenholtz case focused on a Nebraska statute that required that inmates denied parole be provided with reasons for the denial. The Court held that reasons for parole denial might be provided in the interest of helping inmates prepare themselves for future review but that to require the disclosure of evidence used in the review hearing would turn the process into an adversarial proceeding. The 1983 Supreme Court case of Bearden v. Georgia45 established that probation could not be revoked for failure to pay a fine and make restitution if it could not be shown that the defendant was responsible for the failure. The Court also held that alternative forms of punishment must be considered by the hearing authority and must be shown to be inadequate before the defendant can be incarcerated. The Supreme Court decision stated that â€Å"f the State determines a fine or restitution to be the appropriate and adequate penalty for the crime, it may not thereafter imprison a person solely because he lacked the resources to pay it. †46 The Court held that if a defendant lacks the capacity to pay a fine or make restitution, then the hearing authority must consider any viable alternatives to incarceration before imposing a prison sentence. Finally, a probationer’s incriminating statements to a probation officer may be used as evidence if the probationer does not specifically claim a right against self-incrimination, according to Minnesota v. Murphy (1984). 47 According to the Court, the burden of invoking the Fifth Amendment privilege against self-incrimination lies with the probationer. An important legal issue today surrounds the potential liability of probation officers and parole boards for the criminal actions of offenders they supervise or whom they have released. Some courts have held that officers are generally immune from suit because they are performing a judicial function on behalf of the state. 48 Other courts, however, have indicated that parole board members who do not carefully consider mandated criteria for judging parole eligibility could be liable for injurious actions committed by parolees. 49 In general, however, most experts agree that WHAT WOULD YOU DO? The CD-ROM scenario for Chapter 12 is built around a real-life case that involved a warrantless search of a parolee’s place of residence by parole officers. Firearms were found at the parolee’s home, and he was arrested, based in part on that evidence. Work through the scenario using the CD-ROM found in your textbook to learn more about warrantless searches by probation and parole officers.  ¦ Thematic Question Is it appropriate for an offender to be given certain procedural considerations in probation or parole hearings that must nevertheless stop short of introducing an adversarial element into the proceedings? Explain. Thematic Question What competing needs and rights must parole boards weigh? Whose rights or needs should be given the greatest consideration?  ¦ ISBN: 0-536-09974-X Angel Coronado, 20, rushing through the door of the Huntsville (Texas) Prison Unit after being released due to overcrowding. Coronado, who has been in trouble nearly half his life, had spent nearly two years in a 6- by 10-foot cell by himself. The U. S. Supreme Court has held that â€Å"an inmate who has been released under a program to relieve prison crowding cannot be reincarcerated without getting a chance to show at a hearing that he has met the conditions and is entitled to remain free. Todd Bigelow Photography Criminal Justice Today: An Introductory Text for the Twenty-First Century, Ninth Edition, by Frank Schmalleger. Published by Prentice Hall. Copyright  © 2007 by Pearson Education, Inc. 464 PA R T 4 Corrections A probation officer’s job can involve a wide variety of duties. Here, Georgia probation officers prepare to excavate a site at the Tri-State Crematory in Noble, Geo rgia, in 2002. Officials found the remains of hundreds of corpses on the crematory’s 16-acre grounds. The crematory’s operator, Ray Brent Marsh, was charged with 787 felony counts that include theft by deception, abuse of a corpse, and burial service fraud. He was also charged with 47 counts of making false statements to authorities. AP Wide World Photos A critical assessment of probation must begin by placing its ailments within the more encompassing and deeper crisis of legitimacy affecting the entire system of justice. —Reinventing Probation Council  ¦ parole board members cannot be successfully sued unless release decisions are made in a grossly negligent or wantonly reckless manner. 0 Discretionary decisions of individual probation and parole officers that result in harm to members of the public, however, may be more actionable under civil law, especially where their decisions were not reviewed by judicial authority. 51 The Job of Probation and Parole Officers The tasks performed by probation and parole officers are often quite similar. Some jurisdictions combine the roles of both into one job. This section describes the duties of probation and parole officers, whether separate or performed by the same individuals. Probation/parole work consists primarily of four functions: (1) presentence investigations, (2) other intake procedures, (3) needs assessment and diagnosis, and (4) client supervision. Where probation is a possibility, intake procedures may include a presentence investigation, which examines the offender’s background to provide the sentencing judge with facts needed to make an informed sentencing decision. Intake procedures may also involve a dispute-settlement process during which the probation o