WBC-4-1

Chapter 12

Discuss the procedures involved in probation revocation. What are the rights of the probationer? Is probation a privilege or a right? Explain.

Chapter 13

What are the drawbacks of

shock incarceration

?

Chapter 14 

Define parole, including its purposes and objectives. How does it differ from probation?

12)

Legal Rights of Probationers

What are the legal rights of probationers? How has the U.S. Supreme Court set limits on the probation process? A number of important legal issues surround probation, one set involving the civil rights of probationers and another involving the rights of probationers during the revocation process.

CIVIL RIGHTS The Court has ruled that probationers have a unique status and therefore are entitled to fewer constitutional protections than other citizens. The following are some of these cases:

Minnesota v. Murphy (1984). In Murphy, the Supreme Court ruled that the probation officer-client relationship is not confidential, as physician-patient and attorney-client relationships are. If a probationer admits to committing a crime to his or her probation supervisor, that information can be passed on to the police or district attorney. Furthermore, the Murphy decision held that a probation officer could even use trickery or psychological pressure to get information and turn it over to the police.30

Griffin v. Wisconsin (1987). In Griffin, the Supreme Court held that a probationer’s home may be searched without a warrant on the grounds that probation departments “have in mind the welfare of the probationer” and must “respond quickly to evidence of misconduct.”31

United States v. Knights (2001). In Knights, the Supreme Court upheld the legality of a warrantless search of a probationer’s home for the purposes of gathering criminal evidence. The Court ruled that the home of a probationer who is suspected of a crime can be searched without a warrant if: (a) the search is based on reasonable suspicion that he had committed another crime while on probation and (b) a condition of his previous probation was that he would submit to searches. The Court reasoned that the government’s interest in preventing crime, combined with Knights’s diminished expectation of privacy, required only a reasonable suspicion to make the search legal, rather than a violation of the probationer’s Fourth Amendment right to privacy.32

REVOCATION RIGHTS During the course of a probationary term, a violation of the rules or terms of probation or the committing of a new crime can result in probation being revoked, at which time the offender may be placed in an institution. Revocation is not often an easy decision, because it conflicts with the treatment philosophy of many probation departments.

13)

nother correctional innovation that gained popularity in the 1980s and 1990s,

boot camp

involves youthful, first-time offenders in military discipline and physical training. The concept is that short periods (90 to 180 days) of high-intensity exercise and work will “shock” the inmate into going straight. Tough physical training is designed to promote responsibility and improve decision-making skills, build self-confidence, and teach socialization skills. Inmates are treated with rough intensity by drillmasters who may call them names and punish the entire group for the failure of one member.51

boot camp

A short-term, militaristic correction facility in which inmates undergo intensive physical conditioning and discipline.

Some programs also include educational and training components, counseling sessions, and treatment for special-needs populations, whereas others devote little or no time to therapeutic activities. Some receive program participants directly from court sentencing, whereas others choose potential candidates from the general inmate population. Some allow voluntary participation and others voluntary termination.52

Some experts viewed the boot camp as a low-cost correctional panacea, and a number of states, including Georgia, South Carolina, and New York, made extensive use of shock incarceration facilities. However, empirical research (the majority of it contributed by Doris Layton MacKenzie, a criminologist who has been involved in many evaluations of boot camp) yielded disappointing results.53 Because of these sketchy results, the future of the boot camp approach is clouded at best and many state programs have been canceled; in 2005, the federal government decided to close its boot camp program.54

shock incarceration

A short-term correctional program based on a boot camp approach that makes use of a military-like regime of high-intensity physical training.

Community Correctional Facilities

One goal of correctional treatment is to help reintegrate the offender into society. Placing offenders in a prison makes them more likely to adopt an inmate lifestyle than to reassimilate conventional social norms. As a result, the community treatment concept began to take off in the 1960s. State and federal correctional systems created community-based correctional models as an alternative to closed institutions. Many are halfway houses to which inmates are transferred just before their release into the community. These facilities are designed to bridge the gap between institutional living and the community. However, commitment to a community correctional center may also be used as an intermediate sanction and sole mode of treatment. An offender may be assigned to a community treatment center operated by the state department of corrections or to probation. Alternatively, the corrections department can contract with a private community center. Community corrections programs often offer specialized treatment or focus on specific groups of offenders, helping residents use the experience to cushion the shock of reentering society. This practice is common in the treatment of drug abusers and other nonviolent offenders whose special needs can be met in a self-contained community setting that specializes in specific types of treatment.

13)

hat happens if the parole authority denies early release, but the inmate believes he is deserving of parole? Perhaps he has witnessed other inmates receiving parole who have similar institutional records. Can he question the parole board’s decision via the courts? The Supreme Court answered this question in 2011 when it ruled in the consolidated cases of Swarthout v. Cooke and Cate v. Clay that due process requirements are satisfied when a prisoner has an opportunity to be heard and is provided a statement of the reasons why parole is denied; there is in essence no absolute or legal right to receiving parole. The first case, Swarthout v. Cooke, involved Damon Cooke, who was incarcerated in California for attempted first-degree murder. In 2002, the California Board of Prison Terms rejected his parole request. California law provides that if the board denies parole, the prisoner can seek judicial review. Subsequently, the California Superior Court, the California Court of Appeal, and the California Supreme Court all denied Cooke’s petitions, prompting him to seek federal assistance. Similarly, Cate v. Clay began with the 1978 conviction of Elijah Clay for first-degree murder. In 2003, the board found Clay suitable for parole, but the governor reviewed the case and found him unsuitable. After going through the state process, Clay filed a claim in federal court, and the district court concluded that the governor’s reliance on the nature of Clay’s original offense rather than his prison behavior violated his right to due process. The Ninth Circuit affirmed, concluding that the governor’s decision was unreasonable.

The Supreme Court reversed both decisions, holding that while the due process clause requires fair procedures in parole hearing, both Cooke and Clay received adequate process because they were allowed an opportunity to be heard and were provided a statement of the reasons why parole was denied. However, the courts do not have the right to step in and conclude the parole board (and governor’s) decisions were faulty. If the process is fair, then the inmate must live with the outcome.161

The Parolee in the Community

Once released into the community, a parolee is given a standard set of rules and conditions that must be obeyed. The offender who violates these rules may have parole revoked and be sent back to the institution to serve the remainder of the sentence. Once in the community, the parolee is supervised by a trained staff of parole officers who help the offender search for employment and monitor the parolee’s behavior and activities to ensure that the conditions of parole are met.

Parole is generally viewed as a privilege granted to deserving inmates on the basis of their good behavior while in prison. Parole has two conflicting sides, however. On the one hand, the paroled offender is allowed to serve part of the sentence in the community, an obvious benefit for the deserving offender. On the other hand, because parole is a privilege and not a right, the parolee is viewed as a potentially dangerous criminal who must be carefully watched and supervised. The conflict between the treatment and enforcement aspects of parole has not been reconciled by the criminal justice system, and the parole process still contains elements of both.

To overcome these roadblocks to success, the parole officer may have to play a much greater role than the probation officer in directing and supervising clients’ lives. In some instances, parole programs have become active in creating new postrelease treatment-oriented programs designed to increase the chances of parole success. For example, the Kansas Parole Department has adopted a restorative justice approach and is now having parolees work in community service settings upon their release. Jobs may include work at soup kitchens, homeless shelters, and halfway houses. Reports indicate that the program is quite successful.162 In other instances, parole agencies have implemented law enforcement-oriented services that work with local police agencies to identify and apprehend parolees who may have been involved in criminal activity. The California Department of Corrections has established the Special Service Unit, which (among its other tasks) acts as a liaison to help local police agencies solve major crimes when inmates or state parolees are the known or suspected offenders.163

INTENSIVE SUPERVISION PAROLE To aid supervision, some jurisdictions are implementing systems that classify offenders on the basis of their supervision needs. Typically, a point or guideline system (sometimes called a salient factor score) based on prior record and prison adjustment divides parolees into three groups: (1) those who require intensive surveillance, (2) those who require social services instead of surveillance, and (3) those who require limited supervision.

In some jurisdictions, parolees in need of closer surveillance are placed on

intensive supervision parole (ISP)

. These programs use limited caseload sizes, treatment facilities, the matching of parolee and supervisor by personality, and shock parole (which involves immediate short-term incarceration for parole violators to impress them with the seriousness of a violation). ISP clients are required to attend more office and home visits than routine parolees. ISP may also require frequent drug testing, a term in a community correctional center, and electronic monitoring in the home.

intensive supervision parole (ISP)

A form of parole characterized by smaller caseloads and closer surveillance; it may include frequent drug testing and, in some cases, electronic monitoring.

Evaluations of ISP programs have yielded mixed results. Some show that ISP may actually produce a higher violation rate than traditional parole supervision, because limiting caseload size enables parole officers to supervise their clients more closely and spot infractions more easily.164 Research has shown that under some conditions, a properly run ISP program can significantly reduce recidivism upon release. The key factors may be parole officer orientation (a balance between social service and law enforcement seems to work best) and running the program in a supportive organizational environment.165

The Effectiveness of Parole

Despite all efforts to treat, correct, and rehabilitate incarcerated offenders, a majority still return to prison shortly after their release. One study found that more than two-thirds of released state prisoners are rearrested within 3 years.166 Nearly 80 percent are rearrested within 5 years. These statistics are discouraging to say the least. Other key findings from the study include:

Within 5 years of release, 82.1 percent of property offenders were arrested for a new crime, compared to 76.9 percent of drug offenders, 73.6 percent of public order offenders, and 71.3 percent of violent offenders.

More than a third (36.8 percent) of all prisoners who were arrested within 5 years of release were arrested within the first 6 months after release, with more than half (56.7 percent) arrested by the end of the first year.

A sixth (16.1 percent) of released prisoners were responsible for almost half (48.4 percent) of the nearly 1.2 million arrests that occurred in the 5-year follow-up period.

FIGURE 14.2 Recidivism of Prisoners Released in 30 States in 2005, by Time from Release to First Arrest That Led to Recidivating Event

Within 5 years of release, 84.1 percent of inmates who were age 24 or younger at release were arrested, compared to 78.6 percent of inmates ages 25 to 39 and 69.2 percent of those age 40 or older.167

Figure 14.2 shows how a majority of inmates fail on parole and fail quickly.

Why Do People Fail on Parole?

Persons released from prison face a multitude of difficulties. They remain largely uneducated, unskilled, and usually without solid family support systems. Then add to this the burden of a prison record, which can make securing employment more than a little difficult.

It may come as no surprise that those who violate parole are typically younger, less well educated inmates who have histories of criminal activity and drug dependence and who live in deteriorated, crime-ridden communities. These social problems reduce the likelihood of post-prison success for both male and female offenders.168

A report by the influential Pew Foundation found that not all states had the same parole failure rates. The more successful ones made important correctional decisions—such as the types of offenders sentenced to prison, how inmates are selected for release, and how long they are under supervision. Which strategies were the most successful? States that made extensive use of probation for petty offenders had relatively higher inmate recidivism rates, since only the most hard-core inmates were actually sent to prison. Parole was more successful in states that employed programs that target motivated offenders to stay crime- and drug-free through a combination of swift and certain sanctions for prison violations and rewards for obeying correctional rules.169

Introduction to Criminal Justice

Siegel/Worrall

Chapter 12

Discuss the procedures involved in probation revocation. What are the rights of the probationer? Is probation a privilege or a right? Explain.

Chapter 13

What are the drawbacks of

shock incarceration

?

Chapter 14 

Define parole, including its purposes and objectives. How does it differ from probation?

12)

Legal Rights of Probationers

What are the legal rights of probationers? How has the U.S. Supreme Court set limits on the probation process? A number of important legal issues surround probation, one set involving the civil rights of probationers and another involving the rights of probationers during the revocation process.

CIVIL RIGHTS The Court has ruled that probationers have a unique status and therefore are entitled to fewer constitutional protections than other citizens. The following are some of these cases:

Minnesota v. Murphy (1984). In Murphy, the Supreme Court ruled that the probation officer-client relationship is not confidential, as physician-patient and attorney-client relationships are. If a probationer admits to committing a crime to his or her probation supervisor, that information can be passed on to the police or district attorney. Furthermore, the Murphy decision held that a probation officer could even use trickery or psychological pressure to get information and turn it over to the police.30

Griffin v. Wisconsin (1987). In Griffin, the Supreme Court held that a probationer’s home may be searched without a warrant on the grounds that probation departments “have in mind the welfare of the probationer” and must “respond quickly to evidence of misconduct.”31

United States v. Knights (2001). In Knights, the Supreme Court upheld the legality of a warrantless search of a probationer’s home for the purposes of gathering criminal evidence. The Court ruled that the home of a probationer who is suspected of a crime can be searched without a warrant if: (a) the search is based on reasonable suspicion that he had committed another crime while on probation and (b) a condition of his previous probation was that he would submit to searches. The Court reasoned that the government’s interest in preventing crime, combined with Knights’s diminished expectation of privacy, required only a reasonable suspicion to make the search legal, rather than a violation of the probationer’s Fourth Amendment right to privacy.32

REVOCATION RIGHTS During the course of a probationary term, a violation of the rules or terms of probation or the committing of a new crime can result in probation being revoked, at which time the offender may be placed in an institution. Revocation is not often an easy decision, because it conflicts with the treatment philosophy of many probation departments.

13)

nother correctional innovation that gained popularity in the 1980s and 1990s,

boot camp

involves youthful, first-time offenders in military discipline and physical training. The concept is that short periods (90 to 180 days) of high-intensity exercise and work will “shock” the inmate into going straight. Tough physical training is designed to promote responsibility and improve decision-making skills, build self-confidence, and teach socialization skills. Inmates are treated with rough intensity by drillmasters who may call them names and punish the entire group for the failure of one member.51

boot camp

A short-term, militaristic correction facility in which inmates undergo intensive physical conditioning and discipline.

Some programs also include educational and training components, counseling sessions, and treatment for special-needs populations, whereas others devote little or no time to therapeutic activities. Some receive program participants directly from court sentencing, whereas others choose potential candidates from the general inmate population. Some allow voluntary participation and others voluntary termination.52

Some experts viewed the boot camp as a low-cost correctional panacea, and a number of states, including Georgia, South Carolina, and New York, made extensive use of shock incarceration facilities. However, empirical research (the majority of it contributed by Doris Layton MacKenzie, a criminologist who has been involved in many evaluations of boot camp) yielded disappointing results.53 Because of these sketchy results, the future of the boot camp approach is clouded at best and many state programs have been canceled; in 2005, the federal government decided to close its boot camp program.54

shock incarceration

A short-term correctional program based on a boot camp approach that makes use of a military-like regime of high-intensity physical training.

Community Correctional Facilities

One goal of correctional treatment is to help reintegrate the offender into society. Placing offenders in a prison makes them more likely to adopt an inmate lifestyle than to reassimilate conventional social norms. As a result, the community treatment concept began to take off in the 1960s. State and federal correctional systems created community-based correctional models as an alternative to closed institutions. Many are halfway houses to which inmates are transferred just before their release into the community. These facilities are designed to bridge the gap between institutional living and the community. However, commitment to a community correctional center may also be used as an intermediate sanction and sole mode of treatment. An offender may be assigned to a community treatment center operated by the state department of corrections or to probation. Alternatively, the corrections department can contract with a private community center. Community corrections programs often offer specialized treatment or focus on specific groups of offenders, helping residents use the experience to cushion the shock of reentering society. This practice is common in the treatment of drug abusers and other nonviolent offenders whose special needs can be met in a self-contained community setting that specializes in specific types of treatment.

13)

hat happens if the parole authority denies early release, but the inmate believes he is deserving of parole? Perhaps he has witnessed other inmates receiving parole who have similar institutional records. Can he question the parole board’s decision via the courts? The Supreme Court answered this question in 2011 when it ruled in the consolidated cases of Swarthout v. Cooke and Cate v. Clay that due process requirements are satisfied when a prisoner has an opportunity to be heard and is provided a statement of the reasons why parole is denied; there is in essence no absolute or legal right to receiving parole. The first case, Swarthout v. Cooke, involved Damon Cooke, who was incarcerated in California for attempted first-degree murder. In 2002, the California Board of Prison Terms rejected his parole request. California law provides that if the board denies parole, the prisoner can seek judicial review. Subsequently, the California Superior Court, the California Court of Appeal, and the California Supreme Court all denied Cooke’s petitions, prompting him to seek federal assistance. Similarly, Cate v. Clay began with the 1978 conviction of Elijah Clay for first-degree murder. In 2003, the board found Clay suitable for parole, but the governor reviewed the case and found him unsuitable. After going through the state process, Clay filed a claim in federal court, and the district court concluded that the governor’s reliance on the nature of Clay’s original offense rather than his prison behavior violated his right to due process. The Ninth Circuit affirmed, concluding that the governor’s decision was unreasonable.

The Supreme Court reversed both decisions, holding that while the due process clause requires fair procedures in parole hearing, both Cooke and Clay received adequate process because they were allowed an opportunity to be heard and were provided a statement of the reasons why parole was denied. However, the courts do not have the right to step in and conclude the parole board (and governor’s) decisions were faulty. If the process is fair, then the inmate must live with the outcome.161

The Parolee in the Community

Once released into the community, a parolee is given a standard set of rules and conditions that must be obeyed. The offender who violates these rules may have parole revoked and be sent back to the institution to serve the remainder of the sentence. Once in the community, the parolee is supervised by a trained staff of parole officers who help the offender search for employment and monitor the parolee’s behavior and activities to ensure that the conditions of parole are met.

Parole is generally viewed as a privilege granted to deserving inmates on the basis of their good behavior while in prison. Parole has two conflicting sides, however. On the one hand, the paroled offender is allowed to serve part of the sentence in the community, an obvious benefit for the deserving offender. On the other hand, because parole is a privilege and not a right, the parolee is viewed as a potentially dangerous criminal who must be carefully watched and supervised. The conflict between the treatment and enforcement aspects of parole has not been reconciled by the criminal justice system, and the parole process still contains elements of both.

To overcome these roadblocks to success, the parole officer may have to play a much greater role than the probation officer in directing and supervising clients’ lives. In some instances, parole programs have become active in creating new postrelease treatment-oriented programs designed to increase the chances of parole success. For example, the Kansas Parole Department has adopted a restorative justice approach and is now having parolees work in community service settings upon their release. Jobs may include work at soup kitchens, homeless shelters, and halfway houses. Reports indicate that the program is quite successful.162 In other instances, parole agencies have implemented law enforcement-oriented services that work with local police agencies to identify and apprehend parolees who may have been involved in criminal activity. The California Department of Corrections has established the Special Service Unit, which (among its other tasks) acts as a liaison to help local police agencies solve major crimes when inmates or state parolees are the known or suspected offenders.163

INTENSIVE SUPERVISION PAROLE To aid supervision, some jurisdictions are implementing systems that classify offenders on the basis of their supervision needs. Typically, a point or guideline system (sometimes called a salient factor score) based on prior record and prison adjustment divides parolees into three groups: (1) those who require intensive surveillance, (2) those who require social services instead of surveillance, and (3) those who require limited supervision.

In some jurisdictions, parolees in need of closer surveillance are placed on

intensive supervision parole (ISP)

. These programs use limited caseload sizes, treatment facilities, the matching of parolee and supervisor by personality, and shock parole (which involves immediate short-term incarceration for parole violators to impress them with the seriousness of a violation). ISP clients are required to attend more office and home visits than routine parolees. ISP may also require frequent drug testing, a term in a community correctional center, and electronic monitoring in the home.

intensive supervision parole (ISP)

A form of parole characterized by smaller caseloads and closer surveillance; it may include frequent drug testing and, in some cases, electronic monitoring.

Evaluations of ISP programs have yielded mixed results. Some show that ISP may actually produce a higher violation rate than traditional parole supervision, because limiting caseload size enables parole officers to supervise their clients more closely and spot infractions more easily.164 Research has shown that under some conditions, a properly run ISP program can significantly reduce recidivism upon release. The key factors may be parole officer orientation (a balance between social service and law enforcement seems to work best) and running the program in a supportive organizational environment.165

The Effectiveness of Parole

Despite all efforts to treat, correct, and rehabilitate incarcerated offenders, a majority still return to prison shortly after their release. One study found that more than two-thirds of released state prisoners are rearrested within 3 years.166 Nearly 80 percent are rearrested within 5 years. These statistics are discouraging to say the least. Other key findings from the study include:

Within 5 years of release, 82.1 percent of property offenders were arrested for a new crime, compared to 76.9 percent of drug offenders, 73.6 percent of public order offenders, and 71.3 percent of violent offenders.

More than a third (36.8 percent) of all prisoners who were arrested within 5 years of release were arrested within the first 6 months after release, with more than half (56.7 percent) arrested by the end of the first year.

A sixth (16.1 percent) of released prisoners were responsible for almost half (48.4 percent) of the nearly 1.2 million arrests that occurred in the 5-year follow-up period.

FIGURE 14.2 Recidivism of Prisoners Released in 30 States in 2005, by Time from Release to First Arrest That Led to Recidivating Event

Within 5 years of release, 84.1 percent of inmates who were age 24 or younger at release were arrested, compared to 78.6 percent of inmates ages 25 to 39 and 69.2 percent of those age 40 or older.167

Figure 14.2 shows how a majority of inmates fail on parole and fail quickly.

Why Do People Fail on Parole?

Persons released from prison face a multitude of difficulties. They remain largely uneducated, unskilled, and usually without solid family support systems. Then add to this the burden of a prison record, which can make securing employment more than a little difficult.

It may come as no surprise that those who violate parole are typically younger, less well educated inmates who have histories of criminal activity and drug dependence and who live in deteriorated, crime-ridden communities. These social problems reduce the likelihood of post-prison success for both male and female offenders.168

A report by the influential Pew Foundation found that not all states had the same parole failure rates. The more successful ones made important correctional decisions—such as the types of offenders sentenced to prison, how inmates are selected for release, and how long they are under supervision. Which strategies were the most successful? States that made extensive use of probation for petty offenders had relatively higher inmate recidivism rates, since only the most hard-core inmates were actually sent to prison. Parole was more successful in states that employed programs that target motivated offenders to stay crime- and drug-free through a combination of swift and certain sanctions for prison violations and rewards for obeying correctional rules.169

Introduction to Criminal Justice

Siegel/Worrall