legal issues in parole apai training conference newport, rhode island april 20, 2009 professor stan...
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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)
APAI Training ConferenceNewport, Rhode Island
April 20, 2009
Professor Stan AdelmanAlbany Law School
(former NY State Parole Officer) (former Counsel, Mass. Parole Board)
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!!