legal issues in parole apai training conference newport, rhode island april 20, 2009 professor stan...

Legal Issues in ParoleLegal Issues in Parole

APAI Training ConferenceNewport, Rhode Island

April 20, 2009

Professor Stan AdelmanAlbany Law School

(former NY State Parole Officer) (former Counsel, Mass. Parole Board)

sadelman@albanylaw.edu

APAI Training ConferenceNewport, Rhode Island

April 20, 2009

Professor Stan AdelmanAlbany Law School

(former NY State Parole Officer) (former Counsel, Mass. Parole Board)

sadelman@albanylaw.edu

Main PointsMain Points

Parolees DO have rights – but much less than “free” citizens

Parole revocation: Morrissey v. Brewer, 408 U.S. 471 (1972) tells us how

Conditions of Parole: rational relationship test

Parolees DO have rights – but much less than “free” citizens

Parole revocation: Morrissey v. Brewer, 408 U.S. 471 (1972) tells us how

Conditions of Parole: rational relationship test

Search & Seizure: almost no limitations. “Exclusionary Rule” n/a at revocation hearings.

Liability and Immunity:

– Board Members, Hearing Officers, and IPO’s:

absolute immunity

– Field PO’s:

qualified immunity (but absolute immunity when writing violation reports)

Search & Seizure: almost no limitations. “Exclusionary Rule” n/a at revocation hearings.

Liability and Immunity:

– Board Members, Hearing Officers, and IPO’s:

absolute immunity

– Field PO’s:

qualified immunity (but absolute immunity when writing violation reports)

LESS RIGHTS THAN FREE CITIZENS

LESS RIGHTS THAN FREE CITIZENS

Morrissey and “qualified” or “conditional” liberty

Parolees as “prisoners on the street”?

Wolff v. McDonnell, 418 U.S. 539 (1974):

“No iron curtain between prisoners and the Constitution of the United States”

Morrissey and “qualified” or “conditional” liberty

Parolees as “prisoners on the street”?

Wolff v. McDonnell, 418 U.S. 539 (1974):

“No iron curtain between prisoners and the Constitution of the United States”

First Amendment: freedom of speech, religion, association (marriage)

Fourth Amendment: unreasonable search & seizure

Fifth Amendment: due process and

self-incrimination

First Amendment: freedom of speech, religion, association (marriage)

Fourth Amendment: unreasonable search & seizure

Fifth Amendment: due process and

self-incrimination

REVOCATIONREVOCATION

Can’t take away “conditional liberty” without Due Process

Basic elements of Due Process:– Notice– “Opportunity to be heard”

Preliminary (“probable cause”) and final hearings– When required: Morrissey and Moody v. Daggett, 429 U.S. 78

(1976) – Timing– Formal rules of evidence don’t apply

Can’t take away “conditional liberty” without Due Process

Basic elements of Due Process:– Notice– “Opportunity to be heard”

Preliminary (“probable cause”) and final hearings– When required: Morrissey and Moody v. Daggett, 429 U.S. 78

(1976) – Timing– Formal rules of evidence don’t apply

Search & SeizureSearch & Seizure

Almost no limitations – no warrant or probable cause, or even “reasonable suspicion” required

By PO’s

By police– Samson v. California, 547 U.S. 843 (2006)

No “exclusionary rule” at revocation hearings– Pennsylvania Bd. of Probation & Parole v. Scott, 524

U.S. 357 (1998)

Almost no limitations – no warrant or probable cause, or even “reasonable suspicion” required

By PO’s

By police– Samson v. California, 547 U.S. 843 (2006)

No “exclusionary rule” at revocation hearings– Pennsylvania Bd. of Probation & Parole v. Scott, 524

U.S. 357 (1998)

Might be limitations as to strip and body cavity searches

References to articles by Prof. A.

– Some Further Reflections on Samson v. California: Standing Morrissey v. Brewer on its Head? Perspectives (APPA), v. 31, no. 4, fall 2007, p. 43.

– U.S. v. Knights: Supreme Court rules on searches of probationers by police. Perspectives, v. 26, no. 3, summer 2002, p. 39.

Might be limitations as to strip and body cavity searches

References to articles by Prof. A.

– Some Further Reflections on Samson v. California: Standing Morrissey v. Brewer on its Head? Perspectives (APPA), v. 31, no. 4, fall 2007, p. 43.

– U.S. v. Knights: Supreme Court rules on searches of probationers by police. Perspectives, v. 26, no. 3, summer 2002, p. 39.

LIABILITY/IMMUNITYLIABILITY/IMMUNITY

GOOD NEWS – Parole Staff have extensive immunity protections (not just immunity from liability for $$$ damages, but immunity from being sued altogether) :

– Absolute (“quasi-judicial”) Immunity: Board Members, hearing examiners, IPO’s, and field PO’s (when writing violation reports)AI protects absolutely – not subject to forfeiture

– Qualified (“quasi-police”) Immunity: Field PO’s (regarding supervisory functions -- search & seizure, use of force, privacy)PO may lose QI for violating “clearly established rights”

See Namey v. Reilly, 926 F. Supp. 5 (D. Mass. 1996) – good discussion of who has AI and who has QI

GOOD NEWS – Parole Staff have extensive immunity protections (not just immunity from liability for $$$ damages, but immunity from being sued altogether) :

– Absolute (“quasi-judicial”) Immunity: Board Members, hearing examiners, IPO’s, and field PO’s (when writing violation reports)AI protects absolutely – not subject to forfeiture

– Qualified (“quasi-police”) Immunity: Field PO’s (regarding supervisory functions -- search & seizure, use of force, privacy)PO may lose QI for violating “clearly established rights”

See Namey v. Reilly, 926 F. Supp. 5 (D. Mass. 1996) – good discussion of who has AI and who has QI

PARTING ADVICE:

– Just do your job to the best of your ability and don’t worry about litigation/liability consequences.

– Train your staff!!

PARTING ADVICE:

– Just do your job to the best of your ability and don’t worry about litigation/liability consequences.

– Train your staff!!