Legal Issues in Parole

1
Legal Issues in Parole

• APAI Training Conference
• Newport, Rhode Island
• April 20, 2009
• Professor Stan Adelman
• Albany Law School
• (former NY State Parole Officer)
• (former Counsel, Mass. Parole
  Board)
• sadelman_at_albanylaw.edu

2
Main 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

3

• Search Seizure almost no limitations.
  Exclusionary Rule n/a at revocation hearings.
• Liability and Immunity
• Board Members, Hearing Officers, and IPOs
• absolute immunity
• Field POs
• qualified immunity (but absolute immunity when
  writing violation reports)

4
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

5

• First Amendment freedom of speech, religion,
  association (marriage)
• Fourth Amendment unreasonable search seizure
• Fifth Amendment due process and
• self-incrimination

6
REVOCATION

• Cant 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 dont apply

7
Search Seizure

• Almost no limitations no warrant or probable
  cause, or even reasonable suspicion required
• By POs
• 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)

8

• 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.

9
LIABILITY/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, IPOs, and field POs
  (when writing violation reports)
• AI protects absolutely not subject to
  forfeiture
• Qualified (quasi-police) Immunity Field POs
  (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

10

• PARTING ADVICE
• Just do your job to the best of your ability and
  dont worry about litigation/liability
  consequences.
• Train your staff!!