Part II
Constitutional Law of Corrections
Chapter 17 – Probation and Parole,
Community Corrections, Fines

Introduction: This chapter examines the
constitutional decisions that affect the
work of probation and parole officers
and some of the other legal implications
of their work

Fines and other types of community
corrections also are examined
Chapter Outline

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How Probation and Parole Work
Jones v. Cunningham
Morrissey v. Brewer
Gagnon v. Scarpelli; Mempa v. Rhay
Griffin v. Wisconsin; United States v. Knights;
Pennsylvania Board of Probation and Parole v.
Scott
Martinez v. California
Greenholtz v. Inmates; Connecticut Board of
Pardons v. Dumschat; Board of Pardons v. Allen;
Ohio Adult Parole Authority v. Woodard
Chapter Outline: cont’d
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United States v. Addonizio; California Department
of Corrections v. Morales; Garner v. Jones; Lynce
v. Mathis
Jago v. Van Curen
Moody v. Daggett
Smith v. Doe; Connecticut Department of Public
Safety v. Doe
Community Corrections
Use of Fines
Williams v. Illinois; Tate v. Short
Bearden v. Georgia
How Probation and Parole Work

Similarities – probation and parole


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Both part of the sentencing phase
Both occur in the community
Both have offenders under supervision by
trained officers
Both have offenders legally placed under
conditions or restrictions on their release
status
How Probation and Parole
Work: cont’d

Differences – probation and parole



Probation - a judicial function; parole - an
administrative function
Probation – occurs instead of confinement;
parole – follows a period of confinement
Revocation status – for probation done by
court; for parole – done by paroling
authority
How Probation and Parole
Work: cont’d

Probation – imposed by a court

May impose a sentence of jail time or
prison, then suspend that sentence,
with person being placed on
probation – called suspended
execution of sentence
How Probation and Parole
Work: cont’d

May also suspend imposition of
sentence and place person on probation
There is no set term of imprisonment –
referred to as suspended imposition
 If person violates probation, court may
impose any sentence that might
originally have been imposed

How Probation and Parole
Work: cont’d


Both types of probation have specified
durations
Probationer typically has a supervising
officer
Required to regularly report to this
person
 Degree of supervision can vary –
from minimal to intense

How Probation and Parole
Work: cont’d

Parole – release to the community after serving
time in prison


Paroling authority determines release
Ordinarily, person has hearing before authority
 The hearing occurs at the prison before either
members of the parole authority or its hearing
examiners (or parole officers)
 When done by hearing examiners, report is
prepared and forwarded to the paroling
authority for decision
How Probation and Parole
Work: cont’d

Parole eligibility is determined

By sentencing statutes where the
court imposes a sentence within a
range specified by the legislature,
such as one to five years, with the
one year being the eligibility date
(the earliest the defendant can be
released on parole)
How Probation and Parole
Work: cont’d

When courts only impose the full term
date of the sentence (such as five years)


Parole eligibility is then established by
some formula (such as one-third of
sentence) set by the parole law
May be indeterminate, where court
imposes a single term (such as five
years) and the inmate is immediately
eligible for parole

Release is at the discretion of the parole
authority
How Probation and Parole
Work: cont’d


For a life sentence, parole eligibility may be
set by state statute or may be specified as
part of the sentence imposed by the court
(for example, 15 years to life)
Legislature may make some offenses
nonparolable, or may eliminate parole
completely
How Probation and Parole
Work: cont’d

16 states had abolished discretionary parole
for all inmates by the end of 2000

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Four other states had abolished it for certain
violent offenses or other crimes against a
person
The federal government also has abolished
parole
Abolishment does not mean the end of parole
authorities, as parole continues for those
sentenced prior to the abolition of parole
How Probation and Parole
Work: cont’d

Good conduct allowances – subtracted
from the full date of the sentence and,
in some instances, from the parole
eligibility date

If the inmate is not released on parole,
release occurs when that good time date is
reached
How Probation and Parole
Work: cont’d

Supervision is the essence of either
probation or parole release


To enforce supervision, there is the power
of revocation of release status
Occurs when supervising officer makes a
negative report, which may recommend
revocation
How Probation and Parole
Work: cont’d

For probation, court reviews the report
and decides whether probationer’s
actions are serious enough to terminate
probation

If yes, the court may impose original
sentence or any part of it that was
imposed and suspended
How Probation and Parole
Work: cont’d


Or if the court suspended imposition of
any prison term at the original
sentencing, and placed the offender on
probation, then, upon revocation, the
court may impose any length of sentence
to prison that could have originally been
imposed
If probation is revoked, probationer goes
to prison to serve the court specified
term
How Probation and Parole
Work: cont’d

For parole, the negative report goes to
the paroling authority, which has the
revocation authority

If a decision is made to revoke, person is
returned to prison to serve out the
balance of the sentence, computed in
accordance with the laws of the state
Jones v. Cunningham (1963)


Virginia parolee raised the question of
whether he could go into federal court
and challenge his sentence under the
federal habeas corpus statute
The inmate was paroled before his case
was decided in the court of appeals

Inmate tried to substitute the parole
members as respondents, instead of the
penitentiary superintendent
Jones v. Cunningham: cont’d


The lower court refused, saying the
inmate was no longer in custody, but
rather was “at large”
Supreme Court agreed to decide
whether a parolee is “in custody” within
the meaning of the federal habeas
corpus statute and the Constitution
Jones v. Cunningham: cont’d

Court held this could occur

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Parole conditions significantly restrain the
inmate’s liberty to do those things which
free men are entitled to do
The conditions significantly confine &
restrain his freedoms
This is enough to keep him in custody of
the Parole Board within the meaning of the
habeas corpus statute
Morrissey v. Brewer (1972)

Iowa inmate’s parole was revoked by
the parole board, following its review of
the parole officer’s report


The board of parole ordered Morrissey to
be returned to prison
Inmate challenged the revocation of his
parole, using habeas corpus, on the
grounds that he was given no hearing
Morrissey v. Brewer: cont’d

Supreme Court looked at whether
inmate is entitled to due process –
that is, some type of hearing –
before being returned to prison by
revocation of his parole status
Morrissey v. Brewer: cont’d

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Court held there was a liberty interest,
within the meaning of the Fourteenth
Amendment
Court held that the liberty of a parolee,
although indeterminate, includes many of
the core values of unqualified liberty
Its loss inflicts a “grievous loss” on the
parolee and often on others
Morrissey v. Brewer: cont’d

Court set forth the minimal requirements
needed for parole revocation – first is a
preliminary hearing

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To determine whether probable cause or
reasonable ground exists to believe person’s
acts would constitute a violation of parole
conditions
Hearing done by impartial party
Advance notice to the parolee of the hearing
and the alleged violations
Morrissey v. Brewer: cont’d

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Parolee must be allowed to appear and
speak in own behalf
Opportunity to bring letters, documents, or
individuals who can provide the hearing
officer with relevant information
At the parolee’s request, the opportunity for
questioning of a person who has given
adverse information on which the
revocation may be based
Morrissey v. Brewer: cont’d
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Hearing officer must make a summary
or digest of hearing
Hearing officer should determine
whether there is probable cause to hold
parolee for a final decision
Hearing officer should state the reasons
for his determination and the reliedupon evidence
Morrissey v. Brewer: cont’d

After the preliminary hearing, and within a
reasonable time, there must be a final
hearing
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The final hearing determines whether the
facts warrant revocation
Parolee must have an opportunity to be
heard and to show, if he can, that he did
not violate the conditions, or
If he did, that mitigating circumstances
suggest that the violation doesn’t warrant
revocation
Morrissey v. Brewer: cont’d

Minimum requirements at the final
hearing
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Written notice of the claimed parole
violation(s)
Disclosure to the parolee of evidence
against him
Opportunity to be heard in person and
to present witnesses and documentary
evidence
Morrissey v. Brewer: cont’d
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The right to confront and cross-examine
adverse witnesses (absent a hearing
officer finding of good cause not to)
A neutral and detached hearing body such
as a paroling authority, and
A written statement by the factfinders as
to the evidence relied on and reasons for
revoking parole
Gagnon v. Scarpelli (1973);
Mempa v. Rhay (1967)

Scarpelli pled guilty to armed robbery in
Wisconsin
 Received 15 year prison term; this was
suspended, and he was placed on probation
for seven years
 He was allowed to go to Illinois to reside
 Later arrested in that state for house burglary
 His probation was revoked by Wisconsin
without any hearing
 Sent to a Wisconsin prison to serve the 15year term that had originally been imposed
Gagnon v. Scarpelli; Mempa v.
Rhay: cont’d

He challenged the revocation of his
probation by petitioning for a writ of
habeas corpus

He was paroled prior to the case being
decided, but the court held his petition
was not moot because he was still under
the restraints of his parole
Gagnon v. Scarpelli; Mempa v.
Rhay: cont’d

Supreme Court in Gagnon v.
Scarpelli addressed the question of
due process at parole revocation
proceedings - the Court relied on
two earlier decisions:
Gagnon v. Scarpelli; Mempa v.
Rhay: cont’d

The first was Mempa v. Rhay (1967)
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Mempa had been placed on probation for
two years, on condition he spend 30 days in
county jail; imposition of further sentence
was deferred
Mempa had appointed counsel assisting him
Four months later, Mempa was back into
court on charges of burglary
He was not represented by counsel, nor was
he asked if he wanted counsel
Gagnon v. Scarpelli; Mempa v.
Rhay: cont’d
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His probation was revoked; he received a
10-year sentence
The court made a recommendation to the
parole board that Mempa be paroled after
one year
Six years later, Mempa filed for a writ of
habeas corpus, claiming a due process
violation in the denial of counsel at his
sentencing and parole revocation
proceeding
Gagnon v. Scarpelli; Mempa v.
Rhay: cont’d

Supreme Court in Mempa held that
the “deferred sentencing” procedure
in the state of Washington was so
important as to require the presence
of counsel
Gagnon v. Scarpelli; Mempa v.
Rhay: cont’d
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In Mempa, the Court said there is a
constitutional right to counsel in felony
cases “at every stage of a criminal
proceeding where substantial rights of a
criminal accused may be affected”
At his sentencing, although deferred,
Mempa was entitled to the appointment of
counsel because his rights (his liberty
interest) were so substantially affected
Gagnon v. Scarpelli; Mempa v.
Rhay: cont’d
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The second decision heavily relied on by the
Court in Gagnon was Morrissey v. Brewer
where the Court held that the loss of liberty is
a serious deprivation requiring due process
Using these decisions, the Court in Gagnon
held that a probationer, like a parolee is
entitled to a preliminary and a final
revocation hearing, under the conditions
specified in Morrissey v. Brewer
Gagnon v. Scarpelli; Mempa v.
Rhay: cont’d

The Court in Gagnon held that at the
preliminary hearing for probation
revocation, there must be
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Advance notice of the alleged violations
An opportunity to appear and present
evidence
A conditional right to confront adverse
witnesses
An independent decision maker, and
A written report of the hearing
Gagnon v. Scarpelli; Mempa v.
Rhay: cont’d

Minimum requirements at a final
hearing are very similar

The one additional requirement, besides
those for the preliminary hearing, is that
the person be advised of what evidence
there is against him
Gagnon v. Scarpelli; Mempa v.
Rhay: cont’d
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Gagnon Court then decided issue of the
right to counsel (retained or, for indigents,
appointed) at revocation hearings
The Court held there was a right to counsel
in limited circumstances
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When the charges are contested or
There are substantial mitigating reasons for
his violative conduct and those reasons are
complex or difficult to present
Gagnon v. Scarpelli; Mempa v.
Rhay: cont’d
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Court did not see right to counsel when person is
convicted of another crime, or admitted to crime
Probationer or parolee may want to provide
mitigating reasons why revocation is not
appropriate; these reasons, said the Court,
ordinarily are not so complex as to require counsel
In practice, as a matter of reasonable precaution,
courts at most probation revocation proceedings,
and parole boards at most parole revocation
proceedings typically allow counsel to appear
Griffin v. Wisconsin (1987); United States
v. Knights (2001); Pennsylvania Board of
Probation and Parole v. Scott (1998)
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Probationers’ and parolees’ constitutional
rights are limited
In Griffin v. Wisconsin, probation officers
searched Griffin’s apartment without a
warrant
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Search followed police advising that Griffin
may have guns at that location
A gun was found
Griffin was convicted of possession of a
firearm by a convicted felon
Griffin v. Wisconsin; United States v.
Knights; Pennsylvania Board of Probation
and Parole v. Scott: cont’d

Griffin sued and the Supreme Court held
that the warrantless search of the
probationer’s home did not violate the
probationer’s constitutional rights

Probationer’s situation as a person under
close supervision by his probation officer
overrides the offender’s personal
protections
Griffin v. Wisconsin; United States v.
Knights; Pennsylvania Board of Probation
and Parole v. Scott: cont’d

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Probation agency “must be able to act based
upon a lesser degree of certainty than the
Fourth Amendment would otherwise require in
order to intervene (by conducting a search)
before a probationer does damage to himself
or society”
In Griffin, the right to search was granted to
probation officers by state regulation – could
do a search when there were “reasonable
grounds” to believe something illegal or
impermissible was in the home
Griffin v. Wisconsin; United States v.
Knights; Pennsylvania Board of Probation
and Parole v. Scott: cont’d

In United States v. Knights, probationer Knights
was suspected of being involved in criminal
activity

As a condition of his probation, a California’s court
order provided that
 Knights’ person, property, vehicle, residence,
and personal effects would be subject to search
at anytime
 With or without a search warrant, warrant of
arrest or reasonable cause
 By any probation officer or law enforcement
officer
Griffin v. Wisconsin; United States v.
Knights; Pennsylvania Board of Probation
and Parole v. Scott: cont’d
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
Knights signed the order
Based on the previously mentioned suspicion,
police searched Knights’ apartment, finding a
detonation cord, ammunition, and liquid
chemicals
Knights was indicted, and moved to suppress
the evidence
Lower courts held that the search was
impermissible, that the search condition in the
probation order was limited to probation
searches, and not for investigation purposes
Griffin v. Wisconsin; United States v.
Knights; Pennsylvania Board of Probation
and Parole v. Scott: cont’d

The Supreme Court reversed, holding for the
government


Fourth Amendment didn’t limit searches
pursuant to this probation condition to those
with a probationary purpose
When an officer has reasonable suspicion that a
probationer subject to a search condition is
engaged in criminal activity, there is enough
likelihood that criminal conduct is occurring that
an intrusion on the person’s significantly
diminished privacy interests is reasonable
Griffin v. Wisconsin; United States v.
Knights; Pennsylvania Board of Probation
and Parole v. Scott: cont’d

Griffin and Knights concerned
probationers, but similar rules apply
to persons released on parole and
generally to the authority of
supervising parole officers

Parolees also are clearly under the
sanction of a sentence
Griffin v. Wisconsin; United States v.
Knights; Pennsylvania Board of Probation
and Parole v. Scott: cont’d

In Pennsylvania Board of Probation and Parole
v. Scott, Scott, as part of his release conditions,
agreed not to own or possess any firearms or
other weapons


His parole agreement, which he signed, allowed
state probation and parole authorities to search his
person, property, and residence without warrant
And to seize and use as evidence in revocation
proceedings any violative items found
Griffin v. Wisconsin; United States v.
Knights; Pennsylvania Board of Probation
and Parole v. Scott: cont’d


Five months into his parole, and pursuant to
an arrest warrant, Scott was arrested by three
parole officers
Prior to his transfer to a prison, Scott gave the
officers the keys to his residence

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The officers’ search, without warrant,
discovered firearms and other weapons
The discovery was a contributory factor, along
with alcohol consumption charges, to Scott’s
parole revocation and return to prison
Griffin v. Wisconsin; United States v.
Knights; Pennsylvania Board of Probation
and Parole v. Scott: cont’d


Scott argued the search of his residence
was unreasonable
Supreme Court held the search was
permissible and the revocation action taken
was proper

Court noted that parolees are more likely to
commit future criminal offenses than are
average citizens – “Indeed,” the Court said,
“this is the very premise behind the system of
close parole supervision”
Griffin v. Wisconsin; United States v.
Knights; Pennsylvania Board of Probation
and Parole v. Scott: cont’d

Because parole revocation deprives the
parolee not of absolute liberty, but only of
the conditional liberty properly dependent on
observance of special parole restrictions,
States have wide latitude under the
Constitution to structure parole revocation
proceedings
Martinez v. California (1980)


Thomas was convicted of attempted
rape and sentenced to 20 years with a
no-parole recommendation
After five years he was paroled


Done in spite of Thomas’ record and
warning in his record that he was likely to
commit another violent crime
Five months later he tortured and killed
a 15-year-old girl
Martinez v. California: cont’d


Her family sued the state and its
parole authority, claiming the girl’s
life had been taken without due
process of law and
That the paroling authorities were
liable for the wrong decision in
releasing Thomas
Martinez v. California: cont’d

State statute, however, provided that
government officials were not liable for
any injury resulting from a decision to
release a prisoner on parole, or from
determining the conditions of his
parole, or whether to revoke his parole

Held to be a complete defense, giving
absolute immunity from a suit for damages
Martinez v. California: cont’d

Supreme Court upheld the legality of
the immunity statute – holding that it
furthers a policy that reasonable
lawmakers may favor

The statutory defense allows the parole
board to take greater risks in this decisionmaking than they otherwise would have
done
Martinez v. California: cont’d

The victim’s family also filed an
action under 42 USC § 1983,
claiming a constitutional violation of
the victim’s rights in depriving her of
her life without due process of law
Martinez v. California: cont’d



Court held that the action of Thomas five
months after his release cannot be fairly
characterized as state action
Her life was taken by the parolee, in no
sense was he an agent of the parole board
Victim’s death is too remote a
consequence of the parole officers’ action
to hold them responsible under the federal
civil rights law
Martinez v. California: cont’d

As a general comment, action by a
court placing a defendant on
probation is even more clearly
immunized from suits for damages

Judges have absolute immunity from
lawsuits arising from their judicial
decisions
Martinez v. California: cont’d

In Forrester v. White (1988), the Court held
absolute immunity applies only to the court’s
adjudicative, not administrative, functions


In Forrester, Judge White fired a probation
officer
Supreme Court held in doing this firing, the judge
was acting in an administrative, not judicial
capacity; and was not entitled to absolute
immunity; the Court did note that qualified
immunity would be available to judges in their
employment decisions
Greenholtz v. Inmates (1979); Connecticut Board of
Pardons v. Dumschat (1981); Board of Pardons v.
Allen (1987); Ohio Adult Parole Authority v. Woodard
(1998)


Examines the initial decision to place
the offender on probation or parole
As to probation, the law is clear
Greenholtz v. Inmates (1979); Connecticut Board of
Pardons v. Dumschat (1981); Board of Pardons v.
Allen (1987); Ohio Adult Parole Authority v. Woodard
(1998)

Placing defendant on probation is
imposition of sentence; due process
protections of a criminal trial apply
 Defendant has the opportunity to be
present
 To present evidence for mitigation of
sentence
 To be heard himself
Greenholtz v. Inmates; Connecticut Board of
Pardons v. Dumschat; Board of Pardons v. Allen;
Ohio Adult Parole Authority v. Woodard: cont’d


Supreme Court has recognized individualization of
sentencing as an important sentencing objective
 Person has right to counsel at every significant
stage of the proceeding, including sentencing
Strong movement recently to afford more rights
to victims and their families at sentencing
 Some courts allow a “victim impact statement”
 Supreme Court approved (Payne v. Tennessee
(1991))
Greenholtz v. Inmates; Connecticut Board of
Pardons v. Dumschat; Board of Pardons v. Allen;
Ohio Adult Parole Authority v. Woodard: cont’d

The more contentious question –
Is due process required at the
time of decision regarding
parole?
Greenholtz v. Inmates; Connecticut Board of Pardons
v. Dumschat; Board of Pardons v. Allen; Ohio Adult
Parole Authority v. Woodard: cont’d

In Greenholtz v. Inmates, the Supreme Court
noted that “parole release and parole
revocation are quite different”
 Parole revocation - depriving a person of a
liberty one has
 Parole release - denying a conditional liberty
one desires
 Court held no liberty interest inherent in the
parole-release process, and no constitutional
right to due process inherent in that process
Greenholtz v. Inmates; Connecticut Board of
Pardons v. Dumschat; Board of Pardons v. Allen;
Ohio Adult Parole Authority v. Woodard: cont’d

Court, however, also examined the
language of the state statute to see if
this provided a liberty interest
 Nebraska statute provided for the
inmate’s release unless it found the
existence of one of four conditions
 Court found this created expectation
of release entitling an inmate to
some due process
Greenholtz v. Inmates; Connecticut Board of Pardons
v. Dumschat; Board of Pardons v. Allen; Ohio Adult
Parole Authority v. Woodard: cont’d

Court held the amount of due
process required was:
 an opportunity to appear and to
be heard and
 if parole is denied, to be
informed of the reasons
Greenholtz v. Inmates; Connecticut Board of Pardons
v. Dumschat; Board of Pardons v. Allen; Ohio Adult
Parole Authority v. Woodard: cont’d

In Connecticut Board of Pardons v.
Dumschat, the Court dealt with a
challenge to the State Board of
Pardons’ actions
Greenholtz v. Inmates; Connecticut Board of Pardons v.
Dumschat; Board of Pardons v. Allen; Ohio Adult Parole
Authority v. Woodard: cont’d

Dumschat, serving a life sentence, applied
for a commutation


A commutation is a reduction in sentence,
or changing some aspect of the sentence
Pardons are full-fledged wiping out of the
conviction and sentence
Greenholtz v. Inmates; Connecticut Board of
Pardons v. Dumschat; Board of Pardons v. Allen;
Ohio Adult Parole Authority v. Woodard: cont’d


In Connecticut, a board was established to
consider pardon and commutation action
 The board denied Dumschat’s
application
 He claimed he should have been given a
hearing by the Parole Board
Connecticut law gave the board total
discretion
Greenholtz v. Inmates; Connecticut Board of Pardons v.
Dumschat; Board of Pardons v. Allen; Ohio Adult Parole
Authority v. Woodard: cont’d

Dumschat claimed he had some
expectation of receiving a commutation
because 85-90% of life sentences in the
state were commuted
Greenholtz v. Inmates; Connecticut Board of Pardons v.
Dumschat; Board of Pardons v. Allen; Ohio Adult Parole
Authority v. Woodard: cont’d

Supreme Court denied his contention,
holding inmate’s expectation was simply a
unilateral hope
 Ground for a constitutional claim, if any,
must be found in statutes or other rules
defining the obligations of the authority
charged with exercising clemency
Greenholtz v. Inmates; Connecticut Board of
Pardons v. Dumschat; Board of Pardons v. Allen;
Ohio Adult Parole Authority v. Woodard: cont’d

In Board of Pardons v. Allen, inmates
brought a § 1983 action, claiming
denial of due process rights in parole
release procedures
Greenholtz v. Inmates; Connecticut Board of
Pardons v. Dumschat; Board of Pardons v. Allen;
Ohio Adult Parole Authority v. Woodard: cont’d

Montana statute stated

“the Board shall release on parole
. . .when in its opinion there is
reasonable probability that the
prisoner can be released without
detriment to the prisoner or to the
community”
Greenholtz v. Inmates; Connecticut Board of
Pardons v. Dumschat; Board of Pardons v. Allen;
Ohio Adult Parole Authority v. Woodard: cont’d

Supreme Court held this language created a
liberty interest in parole release under the
due process clause


Because mandatory language – “shall” –
created a presumption that parole would
occur when the designated findings were
made
Supreme Court’s subsequent decision in
Sandin v. Conner (1995) has called the
mandatory language standard into question
Greenholtz v. Inmates; Connecticut Board of
Pardons v. Dumschat; Board of Pardons v. Allen;
Ohio Adult Parole Authority v. Woodard: cont’d

Ohio Adult Parole Authority v. Woodard relied
on both Greenholtz and Dumschat



Ohio constitution gave governor the power to
grant clemency
Legislature may regulate the application and
investigation process, but can’t curtail the
governor’s discretionary authority
Woodard sentenced to death for aggravated
murder done in the course of a carjacking
Greenholtz v. Inmates; Connecticut Board of
Pardons v. Dumschat; Board of Pardons v. Allen;
Ohio Adult Parole Authority v. Woodard: cont’d


As his date for execution approached, the
Parole Authority, as required, notified
Woodard he could have a clemency
interview, if he wanted one, on 9/9/94, with
his clemency hearing 9/16/94
Woodard objected to the short notice and
requested counsel be allowed to take part
 Ohio did not allow counsel at the
interview
Greenholtz v. Inmates; Connecticut Board of
Pardons v. Dumschat; Board of Pardons v. Allen;
Ohio Adult Parole Authority v. Woodard: cont’d

Supreme Court held the Ohio procedures had
no due process violations
 Governor retains total discretionary
authority to grant or deny clemency
 Governor’s executive discretion need not
be fettered by the procedural protections
sought by Woodard
 Offender has no substantive expectation
of clemency
Greenholtz v. Inmates; Connecticut Board of
Pardons v. Dumschat; Board of Pardons v. Allen;
Ohio Adult Parole Authority v. Woodard: cont’d


Court further noted that denial of clemency
merely means inmate must serve the
sentence originally imposed
Court also saw no violation of Woodard’s right
under the Fifth Amendment to be free from
self-incrimination
 Court said it was hard to see how a
voluntary interview could “compel”
Woodard to speak
United States v. Addonizio (1979); California
Department of Corrections v. Morales (1995);
Garner v. Jones (2000); Lynce v. Mathis (1997)

Cases look at whether parole rules
may be changed after a defendant
has been sentenced
United States v. Addonizio; California
Department of Corrections v. Morales; Garner v.
Jones; Lynce v. Mathis: cont’d

In United States v. Addonizio, inmate
claimed that the U.S. Parole Commission’s
(USPC) change of rules resulted in his
being sentenced longer than intended by
the sentencing judge

Addonizio had been sentenced to 10 years,
with the judge indicating an expectation that
the inmate, with good behavior, would be
released after serving one-third of his
sentence
United States v. Addonizio; California
Department of Corrections v. Morales; Garner v.
Jones; Lynce v. Mathis: cont’d

New rules adopted by USPC three years
after Addonizio was sentenced gave more
weight to the seriousness of the offense
 Resulted in the inmate’s consideration for
parole being postponed
 Inmate applied to the sentencing court,
which found its sentencing expectations
frustrated and ordered the inmate’s
release, reducing his sentence to “time
served”
United States v. Addonizio; California
Department of Corrections v. Morales; Garner v.
Jones; Lynce v. Mathis: cont’d

Supreme Court held the sentencing
court’s action invalid
 Court said actual parole decision is
not for the court to make, either at
the time of sentencing or later, if the
court’s expectations are not met
 Congress has determined USPC is in
the best position to determine when
release is appropriate
United States v. Addonizio; California
Department of Corrections v. Morales; Garner v.
Jones; Lynce v. Mathis: cont’d

In California Department of Corrections v.
Morales, the inmate was serving a 15 years
to life sentence
 Became parole eligible in 1990, with his
first hearing in 1989, with parole
denied
 Under rules in effect at the time,
subsequent hearings could occur each
year
United States v. Addonizio; California
Department of Corrections v. Morales; Garner v.
Jones; Lynce v. Mathis: cont’d


Law, however, was amended to allow
Board of Prison terms to defer suitability
for up to three years if inmate convicted of
more than one offense involving the taking
of life – Morales had two such convictions
Pursuant to the law change, the board
rescheduled Morales for a hearing in three
years, in 1992 rather than 1990
United States v. Addonizio; California
Department of Corrections v. Morales; Garner v.
Jones; Lynce v. Mathis: cont’d

Morales filed a habeas corpus petition,
claiming the amendment was an ex post
facto law in violation of the constitution
 Ex post facto (Article 1 Section 10)
means laws may not be enacted that
alter the definition of a crime after it
has been done, or increase the penalty
for criminal acts after their commission
United States v. Addonizio; California
Department of Corrections v. Morales; Garner v.
Jones; Lynce v. Mathis: cont’d

Supreme Court held that the law change
did not increase Morales punishment for
his crime
 The only change was procedural
 It affected only a few inmates for
whom the likelihood of release on
parole was fairly remote
United States v. Addonizio; California
Department of Corrections v. Morales; Garner v.
Jones; Lynce v. Mathis: cont’d

In Garner v. Jones, Jones was serving a life
sentence in Georgia for murder.
 He escaped after five years, during which time
he did a second murder, receiving a second
life term
 Under Georgia law, parole consideration
occurred after seven years for inmates serving
life sentences
 At the time of Jones conviction for the second
murder, the board’s rules required
reconsideration every three years
United States v. Addonizio; California
Department of Corrections v. Morales; Garner v.
Jones; Lynce v. Mathis: cont’d


In 1985, after Jones began serving his
second life sentence, the board changed its
rules to provide reconsideration hearings
for life sentence inmates at least every
eight years
At his 1989 hearing, Jones received a
rehearing date of 1997
United States v. Addonizio; California
Department of Corrections v. Morales; Garner v.
Jones; Lynce v. Mathis: cont’d
A 1991 Eleventh Circuit Court of Appeals
decision, in a separate case, held the
retroactive application of the eight year
rule violated ex post facto
 Parole Board returned to its three year
rule
 Jones appeared before the Board in
1992 and 1995, being denied on both
occasions

United States v. Addonizio; California
Department of Corrections v. Morales; Garner v.
Jones; Lynce v. Mathis: cont’d


Following the Morales ruling, the board
returned to eight-year reconsiderations,
with the option to make shorter
 Chose not to do so for Jones due to his
multiple offenses and the
circumstances and nature of the
second offense
Jones sued, alleging violation of the ex
post facto clause
United States v. Addonizio; California
Department of Corrections v. Morales; Garner v.
Jones; Lynce v. Mathis: cont’d

Court saw the Georgia law as reasonable,
allowing a better use of its resources
 Court found it could not conclude,
based on the record in the case, that
the change lengthened Jones’ period of
actual confinement
 Court noted that Georgia law allowed
for earlier consideration when
warranted
United States v. Addonizio; California
Department of Corrections v. Morales; Garner v.
Jones; Lynce v. Mathis: cont’d

Court’s holding, in its practical effect,
gives deference to correction
professionals to manage the parole
process for the benefit of all
United States v. Addonizio; California
Department of Corrections v. Morales; Garner v.
Jones; Lynce v. Mathis: cont’d

Lynce v. Mathis is a case holding there
was an ex post facto violation


In 1986, Lynce received 22 year sentence
(8,030 days) for attempted murder
Released in 1992 after the Corrections
Department determined he had earned
over 5,600 days of early release credits
United States v. Addonizio; California
Department of Corrections v. Morales; Garner v.
Jones; Lynce v. Mathis: cont’d



A portion of those days (over 1,800) awarded
as a result of the state’s plan to reduce prison
overcrowding
Shortly after Lynce’s release, the state
Attorney General issued an opinion
interpreting a 1992 statute as having
retroactively cancelled all provisional credits
awarded to inmates convicted of murder or
attempted murder
Lynce was returned to custody, and given a
new release date in 1998
United States v. Addonizio; California
Department of Corrections v. Morales; Garner v.
Jones; Lynce v. Mathis: cont’d


Lynce filed a petition for a writ of habeas
corpus, claiming an ex post facto violation
Supreme Court agreed
 Held operation of the 1992 statute,
canceling overcrowding credits and
requiring Lynce’s reconfinement, was
clearly retroactive
 Further, Lynce was unquestionably
disadvantaged because it resulted in his
rearrest and prolonged his imprisonment
United States v. Addonizio; California
Department of Corrections v. Morales; Garner v.
Jones; Lynce v. Mathis: cont’d

The Court distinguished Lynce from
Morales
 Morales didn’t affect the length of
punishment being served
 Lynce did, by canceling provisional
credits previously earned and pulling
some people, such as Lynce, back
into prison
Jago v. Van Curen (1981)



Van Curen was sentenced to 6 to 100
years, with parole eligibility in 1976
Ohio passed a “shock parole” statute,
allowing earlier parole of first offenders
who had served at least six months in
prison for nonviolent crimes
Van Curen was approved by the Ohio
Adult Parole authority for early release in
1974
Jago v. Van Curen: cont’d

Shortly after his parole interview, the
Parole Authority learned inmate had not
been truthful in the interview or parole
plan he had submitted


He said he had embezzled one million
dollars, when it was actually six million
dollars
He said he planned to live with his half
brother when released, when he really
planned to live with his homosexual lover
Jago v. Van Curen: cont’d

Parole Board rescinded its earlier
actions and continued the case to a
later date

The inmate had no hearing with regard
to the parole rescission action
Jago v. Van Curen: cont’d

Supreme Court held no entitlement to a
hearing



Doesn’t doubt that Van Curen suffered
“grievous loss” from the parole rescission
But rejected view that any grievous loss
visited upon person by the state is sufficient
to invoke the protections of the due process
clause
Cited Greenholtz and Dumschat, and said
that the Ohio law provided no protected
liberty interest
Moody v. Daggett (1976)



Moody was on parole from a federal
rape conviction and was sentenced to
new ten-year terms for manslaughter
and second degree murder
While serving these terms, U.S. Board of
Parole issued a warrant charging him
with a violation of parole release terms
The warrant was lodged as a detainer
Moody v. Daggett: cont’d



Moody asked that the warrant be
executed to allow for parole violation
time to run concurrently with his
homicide sentences
Parole board denied the request
Moody filed a habeas corpus petition,
claiming denial of a prompt parole
revocation hearing
Moody v. Daggett: cont’d

In Moody v. Daggett, the Supreme
Court held there was no illegal loss of
liberty, that Moody was not entitled
to an immediate parole revocation
hearing

Court held there were good reasons for
the board to defer its decision and
consider Moody for release or revocation
of parole when he finished his current
sentence
Moody v. Daggett: cont’d


Court said it allows the authorities to make
a more informed judgment on whether or
not to revoke the probation or parole
status of the inmate
Court also noted – the loss of liberty as a
parole violator doesn’t occur until the
parolee is taken into custody under the
warrant
Smith v. Doe (2003); Connecticut
Department of Public Safety v. Doe (2003)

Cases look at the issue of continuing
government “oversight,” even after the
time the criminal has paid his debt to
society
Smith v. Doe; Connecticut
Department of Public Safety v. Doe:
cont’d

Smith v. Doe (2003) concerned the
Alaska Sex Offender Registration Act

Act required every sex offender or child
kidnapper confined within the state to
register with the department of corrections
within 30 days prior to release from custody;
if not confined, registration was to be with
local law enforcement agencies, within a
working day of the conviction or the
offender’s entrance into the state
Smith v. Doe; Connecticut
Department of Public Safety v. Doe:
cont’d



Periodic verification of the submitted
information was required
Nonconfidential information about the
offender – such as name, address,
photograph, place of employment, and
nature of conviction – would be available
to the public, with the state choosing the
means for this
The Act’s registration and notification
requirements were to be retroactive
Smith v. Doe; Connecticut
Department of Public Safety v. Doe:
cont’d

The Doe respondents in Smith were
convicted sex offenders


Had been released from prison and
completed sex offender treatment
programs
Their convictions were before the
Act’s passage
Smith v. Doe; Connecticut
Department of Public Safety v. Doe:
cont’d

Suit was brought under § 1983,
asking that the Act be declared not
applicable to them


Under the ex post facto clause (Article
I of the Constitution)
And the due process clause (of the
Fourteenth Amendment)
Smith v. Doe; Connecticut
Department of Public Safety v. Doe:
cont’d

Supreme Court saw the main question
as


Whether the legislature meant to establish
civil proceedings
If yes, the question becomes whether the
statutory scheme was so punitive in
purpose or effect as to negate the state’s
intent
Smith v. Doe; Connecticut
Department of Public Safety v. Doe:
cont’d

Court held for the government


Intent of state legislature was protection
of public
The Act mandated no specific
procedures, leaving this to the
Department of Public Safety
 The Department was responsible for
enforcing both criminal and civil
regulatory laws
Smith v. Doe; Connecticut
Department of Public Safety v. Doe:
cont’d

The Act’s statutory scheme was not
seen as punitive
 It has a legitimate nonpunitive
purpose of public safety
 This is advanced by alerting the
public to the risk of sex offenders
in their community
Smith v. Doe; Connecticut
Department of Public Safety v. Doe:
cont’d

Nor was the broadness of the Act – its
application to all convicted sex offenders
without regard to their future
dangerousness, the duration of the
reporting requirements, and the wide
dissemination of the information –
sufficient to make it punitive
Smith v. Doe; Connecticut
Department of Public Safety v. Doe:
cont’d
Court held its role was not to
determine whether the legislature
made the best choice to address
the problem it wants to remedy
 But whether the regulatory means
chosen are reasonable in light of
the nonpunitive objective
 The Court held the regulatory
means chosen were reasonable

Smith v. Doe; Connecticut
Department of Public Safety v. Doe:
cont’d

Connecticut Department of Public Safety v.
Doe involved a due process claim



Doe filed on behalf of himself and other
similarly situated sex offenders
Claiming he was not a dangerous sex
offender
And that his being listed without a hearing
deprived him of a liberty interest – his
reputation combined with the alteration of
his status under state law
Smith v. Doe; Connecticut
Department of Public Safety v. Doe:
cont’d

The Court relied on Connecticut’s
legislative intent in passing the act


The state intent was to facilitate access to
publicly available information about persons
convicted of sex offenses
There was no assessment of the specific
risk of reoffense or current dangerousness
Smith v. Doe; Connecticut
Department of Public Safety v. Doe:
cont’d



Persons were listed because of their
conviction record and state law
Main purpose of placing this information
on the Internet was to make it more
easily available, not to warn about any
specific person (dangerousness)
Court held state’s legislative scheme
would govern
Community Corrections

A broad concept, encompassing all
types of sanctions and sentencing
arrangements that allow offenders to
remain primarily in the community
Community Corrections: cont’d

The concept includes







Probation and parole
Prerelease centers and halfway houses
Community service and fines
Restitution
Furloughs
Work and study release and
Electronic monitoring
Use of Fines



One of the oldest kinds of sentencing
Also one of the most common sanctions
for minor offenses
For serious offenses, particularly those
involving financial gain, fines may be
imposed in combination with other
sanctions
Williams v. Illinois (1970);
Tate v. Short (1971)

In Williams v. Illinois, Williams sentenced to one
year in jail and a $500 fine for petty theft




He was not able to pay the fine
Under Illinois law, he was to be kept in jail until
he “worked off” the fine at the rate of $5 per day
Meant he would be in jail 100 days longer than he
would have been had he been able to pay the fine
This extended sentence also was 100 days longer
than the maximum jail sentence authorized for
the crime
Williams v. Illinois; Tate v.
Short: cont’d

Supreme Court held it violated the
equal protection clause to require an
indigent defendant to serve longer
than the most that could be required
for a nonindigent defendant
Williams v. Illinois; Tate v.
Short: cont’d

In Tate v. Short, the Court extended its
protection of indigents in fine cases




Defendant was convicted of several traffic
offenses
None of these authorized confinement
He was given a fine, which he was unable
to pay
He was ordered to the prison farm to
“work off” his fine at the rate of $5 per day
Williams v. Illinois; Tate v.
Short: cont’d

The Court held this was impermissible
discrimination against an indigent
defendant in violation of the Fourteenth
Amendment
 Here, confinement was ordered solely
due to the person’s indigency; this was
an equal protection violation
Williams v. Illinois; Tate v.
Short: cont’d

These rulings abolished the old
practices of “working off” fines

Sentences such as “$100 or ten days”
are no longer allowed
Bearden v. Georgia (1983)

In Bearden v. Georgia, Bearden was
placed on probation


With a condition that he pay a fine of
$500, and $250 in restitution
He paid $200 toward his fine, but lost
his job and could not pay more
Bearden v. Georgia: cont’d

When the balance came due, Bearden
told his probation office he was going to
be late with his payments because he
could not find a job



He went before the court for a revocation
hearing
His probation was revoked
He was ordered to serve the balance of his
probationary term (about three years) in
prison
Bearden v. Georgia: cont’d

The Court, upon getting the case, forged
a new rule, one intended to take the
competing interests into account


An indigent inmate should not be excused
from punishment, including imprisonment, if
he willfully refused to pay the fine (or
restitution)
But if the person had made good efforts to
pay the fine and could not do so…
Bearden v. Georgia: cont’d
It is “fundamentally unfair” to automatically
revoke probation without considering
whether adequate alternative methods of
punishing the defendant are available
 Only if alternative measures are not
adequate to meet the state’s interests in
punishment and deterrence, may the court
imprison a probationer who has made
sufficient bona fide efforts to pay

Bearden v. Georgia: cont’d

The case was sent back to the trial
court to consider the new rule,
taking into account the indigency of
the probationer
Bearden v. Georgia: cont’d

Other sentences that avoid confinement:

Orders for community service and other
“creative orders”


These require certain activities or
contributions by the defendant in lieu of
imprisonment
Electronic monitoring – used in conjunction
with probation or parole, as well as by itself

Such monitoring keeps track of the offender’s
location
Bearden v. Georgia: cont’d

Drug testing – may be a condition of
probation, or could be an independent
kind of sentencing, run by an entity,
to monitor the drug-free status of the
defendant, when that is specifically
ordered by the sentencing court
Bearden v. Georgia: cont’d

Programs that release the person from
prison to go into the community with
special conditions, and with the prison
constraint still hanging over him:




Parole
Furloughs
Work Release
Study Release
Bearden v. Georgia: cont’d

Legal questions raised by such community
corrections activities are small, compared
to those of prisoners’ rights


No Supreme Court rulings or significant
constitutional rulings on such programs,
except the earlier discussed probation and
parole cases
What does exist comes from those denied
participation, or terminated from participation
because of some failure on their part
Bearden v. Georgia: cont’d


The significant concern in community
correctional activities would seem to be to
ensure such programs are available to all
offenders, without regard to race, gender,
or other unjustifiable distinctions
Placing inmates into work or study release,
on furlough, or on parole is a discretionary
function
Bearden v. Georgia: cont’d
Placement consideration should be tied
to the criminal history and past behavior
of the offenders, along with their
prospects for successful community
involvement
 Apart from the impermissible factors of
discrimination, program decisions should
be based on eligibility and risk criteria,
along with correctional judgment
